✦ High Court of India

Others v. Counsel for

Case Details High Court of India

Court

High Court of India

Bench

RAJEEV MISRA

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12,829 words

Acts & Sections

Code of Criminal Procedure §156(3)Code of Criminal Procedure §161 Code of Criminal Procedure §173 Code of Criminal Procedure §209 Code of Criminal Procedure §313 Code of Criminal Procedure §319 Code of Criminal Procedure §384 Code of Criminal Procedure §425 Code of Criminal Procedure Indian Penal Code §302

Cited in this judgment

thereafter, released the same in favour of first informant Udai Raj Singh after preparing a Supurdaginama of the same, which is (Ext-Ka-2).

8. The dead body of deceased, was found on the spot. Investigating Officer, accordingly, took possession of the same. He, thereafter, took steps for getting the inquest (Panchnama) of the body of deceased conducted. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was categorized as homicidal as a gun shot injury was found on the body of deceased. After completion of inquest proceedings, he prepared the inquest report (Ext-Ka-6). Investigating Officer, thereafter, completed the papers for getting post mortem of the body of deceased conducted. He, thereafter, dispatched the body of deceased for post mortem.

9. PW-5 Dr. Subhash Chandra conducted autopsy on the body of deceased and prepared the Post Mortem Report (Ext-Ka-14). In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of anti-mortem fire arm injuries. The Autopsy Surgeon found following anti-mortem injuries on the body of deceased;- शर है कि प्रार्थी उदयराज सिंह ने दिनांक ीर है कि प्रार्थी उदयराज सिंह ने दिनांक में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक अकड़न गद;न एव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीं चार है कि प्रार्थी उदयराज सिंह ने दिनांक ों में लिये हार्थी उदयराज सिंह ने दिनांक प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ै कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक ों में लिये में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था " बाह्य परीक्षण प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक ीक्षण गंगाबक्स सिंह व गंगाबक्स सिंह पुत्र रघुराज सिंह अपने - - एंटी माट;म इंज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक ी 1- फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक आम; व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीाउण्ड ऑफ एंट्री ऑफ करीब एक फर्लांग एंट्री 2.5 cm x 1.5 cm सीने की दी कि गहर है कि प्रार्थी उदयराज सिंह ने दिनांक ाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी तक, सीने प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक बाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी तर है कि प्रार्थी उदयराज सिंह ने दिनांक फ करीब एक फर्लांग सेमी नीचे घड ऑफ एंट्री ी के 6.00 बज सिंह ने दिनांक े के स्र्थी उदयराज सिंह ने दिनांक ान प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक कि प्रार्थी उदयराज सिंह ने दिनांक दशा बाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ें केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक से दांय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ी ओर है कि प्रार्थी उदयराज सिंह ने दिनांक नीचे सामने की दी कि ओर है कि प्रार्थी उदयराज सिंह ने दिनांक कि प्रार्थी उदयराज सिंह ने दिनांक नप में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक (cid:28) से 3 एव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीं प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ीछे की दी कि ओर है कि प्रार्थी उदयराज सिंह ने दिनांक सीने की दी कि दाकि प्रार्थी उदयराज सिंह ने दिनांक हनी ओर है कि प्रार्थी उदयराज सिंह ने दिनांक 1 2- घाव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी के कि प्रार्थी उदयराज सिंह ने दिनांक कनार है कि प्रार्थी उदयराज सिंह ने दिनांक े अंदर है कि प्रार्थी उदयराज सिंह ने दिनांक की दी कि ओर है कि प्रार्थी उदयराज सिंह ने दिनांक र्थी उदयराज सिंह ने दिनांक े। मेरा भाई मोटरसाईकिल चला रहा था फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक आम; व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीाउण्ड ऑफ एंट्री ऑफ करीब एक फर्लांग एलिPज सिंह ने दिनांक ट 3.5 cm x 2.5 cm सीने की दी कि गहर है कि प्रार्थी उदयराज सिंह ने दिनांक ाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी तक, सीने प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक दाकि प्रार्थी उदयराज सिंह ने दिनांक हनी एक्ज सिंह ने दिनांक (cid:28)ा (आम;कि प्रार्थी उदयराज सिंह ने दिनांक प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ट) से 12 सेमी नीचे। मेरा भाई मोटरसाईकिल चला रहा था घाव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी के कि प्रार्थी उदयराज सिंह ने दिनांक कनार है कि प्रार्थी उदयराज सिंह ने दिनांक े बाहर है कि प्रार्थी उदयराज सिंह ने दिनांक की दी कि तर है कि प्रार्थी उदयराज सिंह ने दिनांक फ करीब एक फर्लांग र्थी उदयराज सिंह ने दिनांक े। मेरा भाई मोटरसाईकिल चला रहा था ओर है कि प्रार्थी उदयराज सिंह ने दिनांक बाहर है कि प्रार्थी उदयराज सिंह ने दिनांक की दी कि ओर है कि प्रार्थी उदयराज सिंह ने दिनांक एलिPज सिंह ने दिनांक ट / य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक े चो लिखितट चो लिखितट ने 1 से कि प्रार्थी उदयराज सिंह ने दिनांक म(cid:28) र है कि प्रार्थी उदयराज सिंह ने दिनांक ही र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था आं तरिर है कि प्रार्थी उदयराज सिंह ने दिनांक क प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक ीक्षण गंगाबक्स सिंह व गंगाबक्स सिंह पुत्र रघुराज सिंह अपने - 1- सीने की दी कि बाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ीं छठी पसली टूटी हुई थी। छठी प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक स(cid:28)ी टू टी हुई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था 2- दो लिखितनों में लिये फ करीब एक फर्लांगे फ करीब एक फर्लांगड़ों में लिये की दी कि झिSझिल्लय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ाँ लेसरेटेड थी। दाहिना फेफड़ा लेसरेटेड था। दिल की झिल्ली लेसरेटेड (cid:28)ेसर है कि प्रार्थी उदयराज सिंह ने दिनांक ेटेड ऑफ एंट्री र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था दाकि प्रार्थी उदयराज सिंह ने दिनांक हना फ करीब एक फर्लांगे फ करीब एक फर्लांगड़ा (cid:28)ेसर है कि प्रार्थी उदयराज सिंह ने दिनांक ेटेड ऑफ एंट्री र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था कि प्रार्थी उदयराज सिंह ने दिनांक द(cid:28) की दी कि झिSल्ली (cid:28)ेसर है कि प्रार्थी उदयराज सिंह ने दिनांक ेटेड ऑफ एंट्री र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था कि प्रार्थी उदयराज सिंह ने दिनांक द(cid:28) (cid:28)ेसर है कि प्रार्थी उदयराज सिंह ने दिनांक ेटेड ऑफ एंट्री र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था सीने के अंदर है कि प्रार्थी उदयराज सिंह ने दिनांक की दी कि एव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीं काटेड ऑफ एंट्री ब्(cid:28)ड ऑफ एंट्री ( ज सिंह ने दिनांक ै कि प्रार्थी उदयराज सिंह ने दिनांक से प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ानी में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र्थी उदयराज सिंह ने दिनांक क्का ज सिंह ने दिनांक मा हो लिखित) मौज सिंह ने दिनांक ूद र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था 3 of 26 प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ेट की दी कि झिSझिल्लय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ाँ लेसरेटेड थी। दाहिना फेफड़ा लेसरेटेड था। दिल की झिल्ली लेसरेटेड (cid:28)ेसर है कि प्रार्थी उदयराज सिंह ने दिनांक ेटेड ऑफ एंट्री र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ेट के अंदर है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक क्त एवं रक्त का थक्का भरा हुआ था। अमाशय के अंदर एव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीं र है कि प्रार्थी उदयराज सिंह ने दिनांक क्त एवं रक्त का थक्का भरा हुआ था। अमाशय के अंदर का र्थी उदयराज सिंह ने दिनांक क्का भर है कि प्रार्थी उदयराज सिंह ने दिनांक ा हुआ र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था अमाशय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक के अंदर है कि प्रार्थी उदयराज सिंह ने दिनांक प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ेस्टी लि(cid:28)क्विक्व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीड ऑफ एंट्री र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था स्प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक (cid:28)ीन (तितल्ली) गुदZ प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ी(cid:28)े र्थी उदयराज सिंह ने दिनांक े। मेरा भाई मोटरसाईकिल चला रहा था मूत्राशय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक आधा प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ेशाब भर है कि प्रार्थी उदयराज सिंह ने दिनांक ा हुआ र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था झिज सिंह ने दिनांक गर है कि प्रार्थी उदयराज सिंह ने दिनांक फ करीब एक फर्लांगटा हुआ र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था मृत्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ु का कार है कि प्रार्थी उदयराज सिंह ने दिनांक ण गंगाबक्स सिंह व गंगाबक्स सिंह पुत्र रघुराज सिंह अपने सदमा एव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीं अतिधक र है कि प्रार्थी उदयराज सिंह ने दिनांक क्त एवं रक्त का थक्का भरा हुआ था। अमाशय के अंदर का बहना र्थी उदयराज सिंह ने दिनांक ा ज सिंह ने दिनांक ो लिखित मृत्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ु प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ूव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी; आय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ी चो लिखितटो लिखित के कार है कि प्रार्थी उदयराज सिंह ने दिनांक ण गंगाबक्स सिंह व गंगाबक्स सिंह पुत्र रघुराज सिंह अपने र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था शव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी से प्राप्त सभी वस्तुएं साथ में आये कांस्टेबल के सुपुर्द कर दी थी। उपरोक्त पोस्टमार्टम रिपोर्ट सभी व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीस्तुएं सार्थी उदयराज सिंह ने दिनांक में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक आय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक े कांस्टेब(cid:28) के सुप में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ुद; कर है कि प्रार्थी उदयराज सिंह ने दिनांक दी र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था उप में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक ो लिखितक्त एवं रक्त का थक्का भरा हुआ था। अमाशय के अंदर प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ो लिखितस्टमाट;म रिर है कि प्रार्थी उदयराज सिंह ने दिनांक प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ो लिखितट; प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक त्राव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी(cid:28)ी प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक कागज सिंह ने दिनांक सं 7 झिज सिंह ने दिनांक स प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक प्रदश; क-14 ड ऑफ एंट्री ा(cid:28)ा गय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ही मेर है कि प्रार्थी उदयराज सिंह ने दिनांक ा बय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ान है कि प्रार्थी उदयराज सिंह ने दिनांक । मेरा भाई मोटरसाईकिल चला रहा था " 10. Thereafter, PW-3 examined the place of occurrence and prepared the अ के रूप में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक मेर है कि प्रार्थी उदयराज सिंह ने दिनांक े हस्त(cid:28)े(cid:29) व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी हस्ताक्षर है कि प्रार्थी उदयराज सिंह ने दिनांक में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक उप में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक (cid:28)ब्ध है कि प्रार्थी उदयराज सिंह ने दिनांक , site plan (Ext-Ka-3). He examined the first informant and various other witnesses under Section 161 Cr.P.C. in connection with the crime in question. Ultimately, on the basis of above and other material collected by him, during course of investigation, he came to the conclusion that offence complained of is prima-facie established and complicity of two of the named accused only is apparent in the crime in question. Investigating Officer thus submitted the charge sheet/police report dated 07.04.2006, in terms of Section 173 (2) Cr.P.C., whereby two of the named accused i.e. Manoj Singh @ Guddu and Ashok Singh @ Chunnu were charge sheeted for an offence under Sections 302/34 and 504 IPC, whereas the other named accused Ganga Bux Singh was exculpated.

11. Upon submission of aforementioned charge sheet/police report, cognizance was taken upon same by the Jurisdictional Magistrate. Since offence complained of is triable exclusively by the Court of Sessions, therefore, the Jurisdictional Magistrate, in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions.

12. Resultantly, Sessions Trial No. 78 of 2007 (State Vs. Manoj Singh and Others) came to be registered. Concerned Sessions Judge proceeded with the trial. He, accordingly, framed separate and distinct charges against charge sheeted accused, who denied the same, pleaded not guilty and innocence. They, therefore claimed to be tried. Accordingly, the trial procedure commenced.

13. Prosecution in discharge of it's burden to prove the prosecution case adduced the following witnesses:- 4 of 26 (i). PW-1, Uday Raj Singh (First informant) (ii). PW-2, Pradeep Singh (eye witnesse) (iii). PW-3, SI Sripal Singh (Investigating Officer) (iv). PW-4, Constable Computer Clerk Rajkumar (Formal witness) (v). PW-5, Dr. Subhash Chandra (Autopsy Surgeon)

14. P.W.-1, Udayraj Singh is the first informant/brother of deceased. The F.I.R. giving rise to present criminal proceedings was lodged by him. He has proved the written report (Tahrir) Ext. Ka-A-1. This witness in his deposition before court below has attempted to prove the prosecution case. He has, therefore, deposed regarding the enmity between the parties, the cause of occurrence, the manner of occurrence and also the seen after the occurrence. However, his deposition is not very natural but a very factitious one. We shall deal with the true import of his deposition in the later part of this judgement.

15. PW-2 Pradeep Singh is alleged to be an eye witness of the occurrence in question. He fully supported the prosecution story in his statement-in- chief. He has given a vivid eye witness account of the occurrence and also stated about his presence at the spot and after the police arrived on spot. He has then stated how he helped the police to identify the place of occurrence and in recovery of empties and live cartridges from the place of occurrence. According to this witness, the accused are villagers of the same village, therefore, he recognizes them and it is the accused, who have caused the murder of deceased.

16. However, in his cross examination i.e. examination-in-chief on behalf of accused, this witness resiled from his statement-in-chief. He has now stated that at the time of occurrence, he was present at home and therefore, he has not seen the occurrence. 5 of 26

17. PW-2 Pradeep Singh was also cross examined on behalf of the prosecution. At this juncture, he has stated that the earlier statement was given by him under the threat of police. His subsequent statement is the correct statement. He has further gone to state that all the three accused are from his village and belong to his community. It is true that Devraj died. It is also true that the death of deceased Devraj Singh was caused by firing gun shot at him. His murder was caused on 13.07.2005 outside the village on the way to Vishungarh. No enquiry was made by the police from him. The accused have been falsely implicated on account of rivalry. His deposition given on 17.07.2023 is the correct deposition.

18. It is thus evident that this witness has ultimately denied his presence at the time and place of occurrence. As such, no strength can be gathered by the prosecution from the deposition of this witnesses.

19. PW-3 SI Sripal Singh is the Investigating Officer. This witness had investigated the crime in question. He has accordingly, proved the site plan of the place of occurrence prepared by him (Ext-Ka-3), recovery memo of plain earth and earth mixed with blood from the place of occurrence (Ext-Ka-4), the recovery memo regarding recovery of 2 empties from the spot (Ext-Ka-5), the inquest report (Panchnama) of the body of deceased (Ext-Ka-6), the detailed police scroll prepared for post mortem of the body of deceased (Ext-Ka-7 to Ext-Ka-10) as well as the material exhibit (M. Ext-3) pertaining to publication in the newspaper. This witness in his deposition before Court below has explained how the information regarding the death of deceased was submitted at the police station and how he took the investigation of concerned case crime number. He has also detailed the manner of investigation as well as steps taken by him to secure the arrest of accused. This witness was cross examined on behalf of accused. However, he could not be dislodged as nothing adverse could be culled out so as to dislodge his deposition. Moreover, there is nothing in the impugned judgment to show that the 6 of 26 accused disputed the papers prepared by him and relied upon by the prosecution.

20. PW-4 Constable Clerk Rajkumar was posted as Constable Clerk at Police Station-Bewar, District-Mainpuri at the relevant point of time. This witness has deposed that Udairaj Singh PW-1 had submitted the wirtten report, which was entered by him in the G.D. of police station (Ext. Ka.12). On the basis of same, he prepared the Check FIR (Ext-Ka-11). Aforesaid exhibits were proved by him. This witness was cross examined on behalf of accused. However, nothing adverse against the prosecution emerged in his statement.

21. PW-5 Dr. Subhash Chandra is the Autopsy Surgeon. He had conducted post mortem of the body of deceased. In the opinion of this witness, the cause of death of deceased is shock and haemorrhage as a result of ante- mortem injuries. According to this witness, two fire arm injuries were found on the body of deceased. The same have already been noted in the preceding paragraph of this judgement, wherein the post mortem report has been dealt with. This witness in his cross examination has further deposed that rigour-mortis had passed on from neck to hands and to both legs. It would take about 12 hours before the rigour-mortis can travel down to legs. As per the deposition of this witness, the post mortem had started at 11:30 a.m. on 14.07.2005. It is thus apparent that as per the medical evidence, the death of deceased must have taken twelve hours before.

22. Apart from the depositions of aforementioned prosecution witnesses, prosecution also relied upon documentary evidence, which is tabulated herein under (i). Ext. Ka-1, written report-proved by P.W.-1, Udayraj Singh, Informant. (ii). Ext. Ka-2, Supurdaginama proved by Medical Examination Report- proved by P.W.-1, P.W.-1, Udayraj Singh, Informant. 7 of 26 (iii). Ext. Ka-3, Site Plan proved by PW-3 SI Sripal Singh (Investigating Officer). (iv). Ext. Ka-4, Recovery Memo of Plain Earth and earth mixed with blood, proved by P.W.3 SI Sripal Singh (Investigating Officer). (v). Ext-Ka-5 Recovery of memo of empty, proved by P.W.3 SI Sripal Singh (Investigating Officer). (vi). Ext-Ka-6 Panchayatnama, proved by P.W.3 SI Sripal Singh (Investigating Officer). (vii). Ext-Ka-7 Letter to CMO, proved by P.W.3 SI Sripal Singh (Investigating Officer) (viii). Ext-Ka-8 Letter to RI, proved by P.W.3 SI Sripal Singh (Investigating Officer) (ix). Ext-Ka-9 Photo Nash, proved by P.W.3 SI Sripal Singh (Investigating Officer) (x). Ext-Ka-10 Chalan Nas, proved by P.W.3 SI Sripal Singh (Investigating Officer), proved by P.W.4 Constable Clerk Raj Kumar formal witness. (xi). Ext-Ka-11 Check FIR, proved by P.W.4 Constable Clerk Raj Kumar formal witness. (xii). Ext-Ka-12 GD Entry, proved by P.W.4 Constable Clerk Raj Kumar formal witness. (xiii). Ext-Ka-13 Charge sheet, proved by P.W.4 Constable Clerk Raj Kumar. 8 of 26 (xiv). Ext-Ka-14 Post Mortem Report, proved by P.W.-5, Dr. Subhash Chandra (Autopsy Surgeon).

23. During course of trial, after the depositions of PW-1 and PW-2 were recorded, an application under Section 319 Cr.P.C. was filed by the prosecution to summon Ganga Bux Singh (who was exculpated by the Investigating Officer) on the ground that his complicity in the crime in question is prima-facie established) as per the depositions of the prosecution witnesses examined upto this stage i.e. PW-1 and PW-2. Court below, vide order dated 30.11.2022 allowed the same. As such, Ganga bux Singh, an exculpated accused was also summoned by Court below to stand his trial in above-mentioned Sessions Trial.

24. After the prosecution evidence was over, all the adverse/incriminating circumstances were disclosed to the accused for their statements under Section 313 Cr.P.C.

25. Accused Ashok and Manoj in their statements under section 313 Cr.P.C. in respect of P.W.1 Udai Raj Singh (first informant) stated that out of enmity a false case has been launched against them. In respect of P.W.2 it was stated that no occurrence as alleged took place. With regard to P.W.3 aforementioned accused pleaded ignorance. With regard to P.W.4, it was stated that a false case was registered against them and the charge sheet has been falsely proved. With regard to P.W.5 they have pleaded that they have no knowledge.

26. Apart from above, accused Ashok has additionally stated that at the time of occurrence, he was studying in R.P. College, Kamalganj. He is an student of B.A. He is residing with his sister to pursue his studies. The knowledge regarding occurrence in question was gathered by him at his sister’s place. He has not committed any crime. On account of old political rivalry/enmity regarding the post of Pradhan, he has been falsely implicated. 9 of 26

27. Accused Manoj, apart from replying to the suggestions put to him has additionally stated that he was not present at home at the time of occurrence. It is only when he returned home that he acquired knowledge about the occurrence. It is the villagers who had informed him that some unknown person has caused the murder of Devraj Singh and that he would be implicated in the aforesaid crime on account of political rivalry for the post of Pradhan. He has further stated that he has not committed the crime in question nor he has any connection with the crime in question.

28. Accused Ganga Bux Singh, in his statement under section 313 Cr.P.C. in respect of P.W.1, stated that on account of enmity a false case has been registered and due to above false evidence has been adduced. Regarding P.W.-2, he stated that this witness has stated/disclosed the true facts before court. There is no evidence against him as the deposition of this witness is not against him. This witness has pleaded ignorance regarding P.W.3. In respect of P.W.4 he has stated that he has registered a false case at the behest of first informant and illegally the charge sheet has been proved. He has however, pleaded ignorance regarding P.W.5. Apart from replying to the suggestions put to him he has additionally stated that he is an old man aged about 86 years. He is incapable of moving. No crime has been committed by him. On account of elections for the post of Pradhan, he has been falsely implicated. His complicity in the crime in question was proved to be false during course of investigation. His name has been added in the criminal case on the basis of application filed by first informant.

29. All the accused however stated that defence evidence shall be given.

30. Accused in support of their defence/proof of innocence adduced three defence witnesses.

31. D.W.1 Shyam Manohar in his deposition before Court below has completely exonerated the accused Ganga Bux Singh in the crime in question. According to this witness he had gone to village- Chirawar for a 10 of 26 tractor and then he heard the sound of gun shots. Upon this the villagers got collected. At this juncture Ganga Bux Singh remarked that from where the sound of gun fire is coming. The villagers Ganga Bax singh and he then proceeded in the direction from where the sounds of gun shot were coming, but then the sound of gun shot came to an end. Thereafter he proceeded for his home. Later on it was discovered that Desraj S/O Ramraj was put to death by inflicting gun shot injuries on him. His statement was recorded by the Investigating Officer. In short this witness has raised the plea of alibi in favour of accused Ganga Bux Singh.

32. D.W.2. Surendra Kumar Singh is the brother-in-law of accused-Ashok singh. In his deposition before Court below this witness has not supported the prosecution story against Ashok Singh. As per the deposition of this witness, Ashok Singh was residing with him since the year 2005. In the year 2005 Ashok Singh took admission in B.A.-IIIrd year and was regularly attending his classes. He took admission in Class-VIIIl at Vidyavati Junior High School and since then till he completed his B.A. he stayed with him. Therefore, he used to go to his home of and on. However, as the college was open, therefore on 1.7.2005 he went to the college from his place. After college, he resided with him.

33. In this cross examination on behalf of prosecution this witness however, could not be dislodged as nothing adverse could be culled out from this witness.

34. The sum and substance of the testimony of this witness is that accused Ashok was not present at the time and place of occurrence. In fact the plea of alibi has emerged against accused Ashok as per the deposition of this witness.

35. D.W.3 Jai Prakash has deposed in favour of accused Manoj Singh. According to this witness, accused Manoj Singh had come to Delhi on

10.7. 2005 and had left on 15.7.2005. He had come to Delhi for job. However, even after much effort he could not get any job. This witness 11 of 26 was cross examined by the prosecution. However, the prosecution could not dislodge him as he remained consistent. As per the deposition of this witness, the plea of alibi has arisen in favour of accused Manoj Singh

36. On behalf of accused the following papers were produced: (i). The application under section 156(3) Cr.P.C (ii). In respect of occurrence dated 11.7.2005 i.e. the case rime no. 9728 of 2005, the post mortem report, the statement of witnesses and summoning order etc.

37. After the stage of evidence was over the prosecution and as well as the defence placed their respective arguments. The same have been crystallized by court below in paragraphs 9.1 and 10 of the impugned judgement.

38. On the basis of above, Court below opined that the the only question, which is required to be considered in the trial is; Whether the accused have caused the death of deceased or the same has been caused by another person or whether the occurrence in question was caused by one or more than one of the accused.

39. In view of above, Court below examined the material on record and analysed the evidence adduced by the parties. On the basis of above, court below came to the conclusion that P.W.-1, the solitary eye witness of the occurrence is not reliable and thus the prosecution has failed to prove the guilt of accused beyond doubt. Accordingly, by means of judgement dated

21.8.2025 court below acquitted the accused of the charges framed against them on the following reasons/grounds: (A). As per the deposition of PW-5 Dr. Subhash Chandra, the Autopsy Surgeon, who had conducted post mortem of the body of deceased, it is proved that there was one fire arm wound of entry 2.5 cm x 1.5 cm, chest deep and was on left front of the chest 3 cm below the nipple at an angle 12 of 26 of 6 ‘o’ clock from left to right. Another fire arm wound of exit 3.5 cm x

2.5 cm chest deep was on the outer right side 12 cm below AXILA (Armpit). The death had occurred 2-3 days ago and cause of death of deceased was shock and haemorrhage due to ante-mortem fire arm injury. It is thus apparent that there was only one fire arm injury on the body of deceased on the basis of which, it can be concluded that only person had fired on the deceased leading to his death. (B). It is evident from record that in between Devraj Singh (brother of first informant) and accused, a scuffle had taken place on 11.07.2005, in which, the accused had fired shot at Devraj Singh and caused him injuries. An application under Section 156(3) Cr.P.C. was filed just 2 days thereafter the accused are alleged to have committed the present crime in question. (C). When the written report submitted by first informant Udairaj Singh is examined in the light of above, it is apparent that a scuffle had taken place in between Devraj Singh and accused Manoj on 09.07.2005. It is alleged that on account of above, the accused have caused death of the brother of first informant. It is thus evident that on account of aforementioned rivalry, the first informant had lodged the first informant report regarding the occurrence, which took place on 13.07.2005. However, the above clearly establishes that prior to FIR dated 13.07.2025 there was rivalry in between Devraj Singh and accused Manoj alone. (D). PW-1 Udairaj Singh in his statement-in-chief has stated that the criminality, which was committed on 11.07.2005, the accused Manoj and Ganga Bux caused injury upon his brother Devraj Singh by firing at him. However, in his examination-in-chief i.e. during cross examination on behalf of accused, he has stated that the incident did not occur in front of him. Awadhesh Singh and Sarvajeet Singh are the witnesses of aforesaid crime. The report regarding aforesaid occurrence was not registered on

09.07.2025. No gun shot was fired in the incident. He has then stated that 13 of 26 he does not know whether gun shots were fired or not. He also does not know where gun shots struck. The X-Ray of the injured was conducted, however, the Doctor recorded that no bullet was there in the wound. As per the aforesaid statement of this witness, it is apparent that on account of the occurrence dated 09.07.2005, there was rivalry but what rivalry was in existence and on what ground the occurrence dated 09.07.2005 took place is not proved from record. The sum total of above is that prior to the alleged incident dated 13.09.2005, there was rivalry in between the deceased Udairaj Singh and accused Manoj, whereas, there was no rivalry in between Udairaj Singh and the accused Ashok and Ganga Bux inasmuch as, had there been any rivalry with Ashok and Ganga Bux Singh, their names would also have been mentioned. (E). In respect of occurrence dated 11.07.2005, it has been alleged by PW- 1 that gun shot injuries were inflicted by the accused on Devraj Singh. However, no FIR was lodged immediately. An application dated

01.08.2005 under Section 156(3) Cr.P.C. was filed subsequently. However, in his cross examination, this witness has stated that Devraj (deceased) had gone to Bewar Hospital for his medical examination. However, he does not have any knowledge of the fact as to whether he was medically examined or not. He also has no knowledge of fact as to whether he was referred to Mainpuri. He, however, subsequently acquired information that his brother was medically examined and an X-Ray was conducted. Medico Legal Report of Devraj (deceased), which was conducted on 13.07.2005, is on record as Paper No. 202B/9. As per said report injury no. 2 is 0.2 x 0.2 muscle deep on the left side of chest. Upon comparison of aforesaid Medico Legal Report and the post mortem report of the present case, it is apparent that the alleged occurrence dated

11.07.2005 is false. Had Devraj Singh sustained any gun shot injury then the same would have been mentioned in the post mortem report but there is no such description. 14 of 26 (F). The prosecution has tried to explain aforesaid anomaly by contending that the injured has sustained fire arm injury at the same place, which was earlier received by him on 11.07.2005. According to Court below, this explanation offered by Court below is palpably false as it is hard to believe that two different injuries inflicted on different dates would be at the same place. As such, on the basis of false injuries alleged to have been inflicted on 11.07.2025, the first informant has attempted to falsely implicate the accused. (G). There are inherent contradictions in the deposition of PW-1 Udairaj Singh as this witness has changed his deposition from time to time. The same are extracted herein under’- (i). Firstly he stated that the accused did not ask him to stop the motorcycle. Because there was a pit, he himself had slowed the motorcycle. As he slowed his motorcycle, the accused fired from the north-east direction. They fired 3-4 shots. However, he had jumped from the motorcycle before the shots were fired. After firing the shots, the accused chased him. They fired at him. Two shots were fired. He was at a distance of 8-10 paces when the shots were fired at him. However, this fact was not disclosed in the F.I.R. However, this fact was disclosed to the Investigating Officer. (ii). Secondly, he has stated that before firing, he was sitting on the motorcycle. At the time of firing, he got down from the motorcycle and stood up. This fact has not been stated in the F.I.R. On account of firing by accused he did not sustain any injury. It is not that since he fell from the motorcycle and therefore he did not receive any gun shot injury. This fact has not been stated in the F.I.R. As he got down from the motorcycle and stood for 5-7 seconds at the spot, the accused fired at him. (iii). Thirdly, he has stated that he reached his brother Devraj Singh after 3-4 minutes. Alongwith him Dhrendra, Pradeep and Ramesh also reached on the spot. When he reached his brother, blood was oozing out. He 15 of 26 thereafter lifted his brother and laid him straight and then he realised that his brother is dead. His clothes got blood stains. (iv). Fourthly, the clothes worn by him at the time of occurrence had blood stains, which were shown to the Investigating Officer. However, no proceedings were conducted by the Investigating Officer in that regard. He had further disclosed to the Investigating Officer that his brother had sustained firearm injury on his chest. The Investigating Officer had arrived at the place of occurrence at 10.30 PM. (v). However, the Investigating Officer in his deposition has stated that the police station is 18 k.m away from the place of occurrence. He reached the place of occurrence on 13.07.2005 at 23.15 hours. The dead body of deceased was lying on the non-metalic road. There was pit near the dead body of deceased, which was filled with water. He thereafter recorded the statements of Dhirendra Singh and Pradeep Singh. (vi). He then recorded the statement of first informant. However, this witness had not disclosed that accused had fired upon him. He had further not stated that he had laid his brother on the road. Apart from above, neither his clothes soaked with blood were shown by the first informant nor he (Investigating Officer) took possession of aforesaid clothes of first informant. P.W.-1 had further not disclosed that Manoj was armed with rifle, Ashok was also armed with rifle and Ganga Bux Singh was holding a gun in his hand. Apart from above, it was also not disclosed that as to which place, the deceased had sustained injury. (vii). Furthermore, P.W.-1 in the F.I.R. lodged by him and in his examination-in-chief has stated that after making purchase from Vishungarh he and his brother returned on a motorcycle. However, in his examination-in-chief, he has stated different facts regarding above at different places. The case set-up by the first informant that his brother Devraj was driving the motorcycle and he was sitting behind even if accepted is highly improbable as on account of the gun shots fired by 16 of 26 accused, Devraj died, whereas the pillion passenger i.e. the first informant did not sustain any injury. As such, the deposition of P.W.-1 is doubtful. (I). Court below in paragraph 17 of the impugned judgment has examined and evaluated the deposition of PW-2 and on basis thereof, has come to the conclusion that PW-2 was not present at the time and place of occurrence nor he has seen the accused committing the crime in question. (J). As per the prosecution case, 4 witnesses had witnessed the crime in question. PW-1 Udairaj Singh, PW-2 Pradeep and Dhirendra as well as Ramesh. The deposition of PW-1 is doubutful. Prosecution filed an application to discharge PW-2 Pradeep Kumar but the same was rejected. However, PW-2 in his deposition has not supported the prosecution. Dhirendra was got discharged whereas Ramesh was not produced. (K). As per the depositions of 3 defence witnesses i.e. DW-1 Shyam Manohar, DW-2 Surendra Kumar Singh and DW-3 Jai Prakash, the accused were not present at the time and place of occurrence. (L). The prosecution on the basis of evidence adduced by it has failed to prove and establish the accused, who caused the death of deceased by inflicting gun shot injury on him. (M). The burden to prove that accused Manoj Singh, Ashok Singh and Ganga Bux Singh were not present at the time and place of occurrence is upon the accused, who have successfully proved the same in their statements under Section 313 Cr.P.C. and by producing their defence witnesses i.e. DW-1 Shyam Manohar, DW-2 Surendra Kumar Singh and DW-3 Jai Prakash. (N). Upon evaluation of the depositions of the prosecution witnesses and examination of the facts and circumstances of the case, it cannot be concluded that Devraj Singh (deceased) was murdered by inflicting gun shot injury upon him but the said act was not committed by accused Manoj Singh, Ashok Singh and Ganga Bux Singh with a common object. 17 of 26 (O). No credible and reliable eye witness has been adduced who may prove the charges against accused beyond doubt. (P). No such oral and documentary evidence has been adduced by the prosecution, which may prove the prosecution case.

40. Thus feeling aggrieved by the impugned judgement passed by court below, appellant who is the first informant has now approached this Court by means of present appeal.

41. Mr. Sushil Dubey, the learned counsel for appellant in challenge to the impugned judgement, contends that present case is a case of direct evidence. As such, there is/are eye witness of the occurrence. The prosecution had adduced two witnesses of fact i.e. P.W.1 and P.W.2. P.W.- 2 in his examination-in-chief did not support the prosecution story. However, P.W.-1, who is also an eye witnesses of the occurrence has fully supported the prosecution case. P.W.1 Udai Raj Singh is the first informant and also the brother of deceased. This witness in his deposition before Court below has implicated the accused in the crime in question. He has given a graphic description of the place of occurrence, manner of occurrence and also an elaborate account of the scene after the occurrence. As such, this witness has fully proved the prosecution case. However, inspite of above, Court below has disbelieved this witness, as being unworthy of credit and trust on account of previous enmity and contradiction in his deposition. It is true that certain contradictions have emerged in his deposition before Court below. However, the same are minor in nature and could have been ignored. As such, Court below has erred in disbelieving this witness. It is further contended by the learned counsel for appellant that the medical evidence clearly supports the ocular version. It is the specific case of the prosecution that the deceased was put to death by the accused by inflicting fire arm injuries upon him. The autopsy surgeon who had conducted post mortem of the body of the deceased had found fire arm injuries on the body of deceased. Apart from 18 of 26 above, recoveries of empties and live cartridges were also made from the place of occurrence. This again is an additional circumstance, which adds strength to the prosecution case. However irrespective of above, Court below has disbelieved P.W.1 and acquitted the accused. He thus contends that in view of above, the impugned judgement is liable to be set aside and the appeal be allowed.

42. Per contra, Mr. Pankaj Srivastava, the learned A.G.A I, algong with Mr. Prashant Kumar, the learned A.G.A. has vehemently opposed the present appeal. He submits that the impugned judgement passed by Court below does not suffer from any error of law and fact and therefore, the same is not liable to be interfered with by this Court. Court below has recorded cogent reasons for disbelieving the prosecution case. The reasons so recorded by Court below cannot be said to be illegal, perverse or erroneous. Court below has examined the entire evidence on record. As such, it cannot be said that court below has ignored any material piece of evidence. Furthermore, court below has analysed the evidence on record threadbare and arrived at a logical conclusion, therefore, it cannot be said that court below has misconstrued any vital evidence. In view of above, no perversity can be attributed to the impugned judgement. The prosecution in order to prove its case, had relied upon Udai Raj, P.W1, Pradeep P.W.2 as well as Dhirendra and Ramesh. The testimony of P.W1 Udairaj first informant/brother of deceased was found to be doubtful by court below on account of the fact that there is previous enmity/rivalry between the parties could not be established, the element of interestedness emerging in the statement of PW-1, the improbable character in the prosecution case, the repeated contradictions that have emerged in his deposition, his statement having been rendered false partially as per the deposition of the Investigating Officer. P.W.2 was declared hostile Dhirendra was discharges and Ramesh, father of first informant and deceased was not produced. According to the prosecution case, aforementioned witness had seen the crime in question. Admittedly, 19 of 26 rivalry between the parties has clearly emerged on record. As such, there was an underlying current of false implication of accused in the crime in question. On the above premise, the learned A.G.A. would submit that prosecution had failed to prove the very story which it set out to prove by leading cogent and reliable evidence. The defence witness have clearly supported the alibi emerging in favour of accused. As such, the accused will not present at the time and place of occurrence. On the above conspectus, the learned A.G.A. would submit that the impugned judgement is perfectly just and legal. Same is therefore, not liable to be interfered with by this Court.

43. Having heard the learned counsel for appellant, the learned A.G.A. for State and upon perusal of record this Court finds that the only question required to be considered in this appeal is :- Whether court below has rightly disbelieved P.W.1 and on basis thereof rightly acquitted the accused or that prosecution has failed to prove the guilt of accused beyond reasonable doubt.

44. Before proceeding to answer the said question, which has emerged for consideration in this appeal. 4 concluded facts as have emerged on record be taken note of. (i) First informant Udayraj Singh is the brother of deceased Devraj Singh. (ii) Accused Ganga Bux Singh is the father whereas accused Ashok and Manoj are his sons. (iii) According to the prosecution case four persons are alleged to have witnessed the crime in question i.e. Udayraj Singh, Pradeep, Dharmendra and Ramesh. Udayraj Singh deposed before court below as P.W.-1 and tried to support the prosecution story. P.W.-2, Pradeep has not supported the prosecution story in his deposition before court below. Dharmendra, was got discharged and Ramesh, who is the father of the deceased and first informant was not produced before court below. 20 of 26 (iv) P.W.-4, Udayraj Singh is the solitary eye witness of the crime in question but has been disbelieved by court below.

45. The case in hand rests upon the oral testimony of P.W.-1, Udayraj Singh, the first informant/brother of deceased. Before considering the true import of his deposition to find out that the inference drawn by court below regarding this witness that his deposition is doubtful, is sustainable or not, we may refer to the judgement of Supreme Court in Shahaja Alias Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, (2023) 12 SCC 558 wherein Court has observed about the manner in which the deposition of an eye witness is to be considered. Paragraph 29 of the said report is relevant for the controversy in hand. Accordingly, the same is extracted herein-under:- “29. The appreciation of ocular evidence is a hard task. There is no fixed or straitjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

29.1. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief

29.2. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

29.3. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

29.4. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the 21 of 26 investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

29.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

29.6. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

29.7. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

29.8. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

29.9. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

29.10. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

29.11. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

29.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

29.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.”

46. During the course of hearing, we invited the attention of the learned counsel for appellant to the provisions contained in Section 384 Cr.P.C./ 22 of 26 Section 425 BNSS, which provides for summary disposal of an appeal. We also pointed out that the entire deposition of P.W.-1 has not been brought on record to contradict the inference drawn by court below regarding the credibility and reliability of P.W.-1. In the absence of above, there is nothing on record to contradicted the inference drawn by court below regarding the nature of deposition of P.W.-1.

47. When confronted with above, the learned counsel for appellant contended that since deposition of P.W.-1 has been substantially noted by court below in the impugned judgement, therefore, the only question which is required to be considered by this Court is whether court below has rightly disbelieved P.W.-1.

48. In the preceding paragraphs of this judgement, we have noted the genesis of the deposition of P.W.-1 and also the ground on which court below has disbelieved P.W.-1. From the tenor of the deposition of P.W.-1, it is apparent that his deposition is not free and natural deposition but a factitious one. The fallacy in his deposition has not emerged once but has occurred repeatedly. Same have been noted by court below and also by us. It is on account of above that the prosecution case appears to be improbable.

49. It is the basic prosecution case as disclosed in the FIR that the motorcycle was being driven by Devraj Singh (deceased) and the first informant Udayraj Singh was a pillion passenger. It is well settled that F.I.R. is not the encyclopedia of the prosecution case but does reflect the basic prosecution case. In this regard reference be made to the following judgements of Supreme Court in (i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268, (ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641 and (iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543. Though PW-1, in his statement-in-chief, has supported the prosecution case. However in his examination-in-chief, he has departed from the basic prosecution case and has now alleged that it 23 of 26 was he, who was driving the motorcycle and Devraj Singh (deceased) was sitting behind. PW-1 in his cross examination has stated that “ बदमाशों में लिये ने मो लिखितटर है कि प्रार्थी उदयराज सिंह ने दिनांक साइकि प्रार्थी उदयराज सिंह ने दिनांक क(cid:28) र है कि प्रार्थी उदयराज सिंह ने दिनांक ो लिखितकने के लि(cid:28)ए नहीं छठी पसली टूटी हुई थी। कहा र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था गड्डा हो लिखितने की दी कि व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीज सिंह ने दिनांक ह से मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीने स्व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ं मो लिखितटर है कि प्रार्थी उदयराज सिंह ने दिनांक साइकि प्रार्थी उदयराज सिंह ने दिनांक क(cid:28) स्(cid:28)ो लिखित कर है कि प्रार्थी उदयराज सिंह ने दिनांक (cid:28)ी र्थी उदयराज सिंह ने दिनांक ी। मेरा भाई मोटरसाईकिल चला रहा था ज सिंह ने दिनांक ै कि प्रार्थी उदयराज सिंह ने दिनांक से ही मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीने मो लिखितटर है कि प्रार्थी उदयराज सिंह ने दिनांक साइकि प्रार्थी उदयराज सिंह ने दिनांक क(cid:28) स्(cid:28)ो लिखित की दी कि तो लिखित मु(cid:28)झिज सिंह ने दिनांक मानो लिखित ने प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ूव मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी; उत्तर है कि प्रार्थी उदयराज सिंह ने दिनांक साइड ऑफ एंट्री से फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक कि प्रार्थी उदयराज सिंह ने दिनांक कय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था तीन चार है कि प्रार्थी उदयराज सिंह ने दिनांक फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक हुए हों में लियेगे। मेरा भाई मोटरसाईकिल चला रहा था मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक हो लिखितने से प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ह(cid:28)े ही कू द चूका र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था”. PW-1 has then stated that फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक रिंर है कि प्रार्थी उदयराज सिंह ने दिनांक ग के समय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी मो लिखितटर है कि प्रार्थी उदयराज सिंह ने दिनांक साइकि प्रार्थी उदयराज सिंह ने दिनांक क(cid:28) से उतर है कि प्रार्थी उदयराज सिंह ने दिनांक कर है कि प्रार्थी उदयराज सिंह ने दिनांक नीचे (cid:29)ड़ा हो लिखित गय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ा र्थी उदयराज सिंह ने दिनांक ा , whereas at page-6, “ मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी फ करीब एक फर्लांगाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक हो लिखितने से प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ह(cid:28)े ही कू द चूका र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था". He has running page 12, he has stated that “ मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीने दर है कि प्रार्थी उदयराज सिंह ने दिनांक ो लिखितगाज सिंह ने दिनांक ी को लिखित व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनीह स्र्थी उदयराज सिंह ने दिनांक ान स्र्थी उदयराज सिंह ने दिनांक (cid:28) ज सिंह ने दिनांक हाँ लेसरेटेड थी। दाहिना फेफड़ा लेसरेटेड था। दिल की झिल्ली लेसरेटेड प में केस के तथ्य इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक र है कि प्रार्थी उदयराज सिंह ने दिनांक मैं व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी मो लिखितटर है कि प्रार्थी उदयराज सिंह ने दिनांक साइकि प्रार्थी उदयराज सिंह ने दिनांक क(cid:28) से 3 उतर है कि प्रार्थी उदयराज सिंह ने दिनांक कर है कि प्रार्थी उदयराज सिंह ने दिनांक दर है कि प्रार्थी उदयराज सिंह ने दिनांक ो लिखितगाज सिंह ने दिनांक ी को लिखित बताय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ा र्थी उदयराज सिंह ने दिनांक ा व मेरा भाई देवराजसिंह भदौरिया विशुनगढ़ से बाजार करके अपनी कि प्रार्थी उदयराज सिंह ने दिनांक द(cid:29)ाय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ा र्थी उदयराज सिंह ने दिनांक ा। मेरा भाई मोटरसाईकिल चला रहा था”. No explanation, worthy of further stated that “ (cid:29)ड़ा हो लिखित गय इस प्रकार है कि प्रार्थी उदयराज सिंह ने दिनांक ा र्थी उदयराज सिंह ने दिनांक ा, ” acceptance has emerged in the examination-in-chief of PW-1 explaining aforesaid contradictions.

50. Another adverse feature, which has emerged in the deposition of P.W.- 1, which also makes the prosecution case improbable is that in case his statement-in-chief is accepted to be true it does not stand to reason that though the deceased sustained firearm injury on his chest but P.W.-1, who was a pillion passenger, remained unhurt. The said mystery becomes more serious in view of the fact that according to the prosecution story three persons i.e. accused opposite parties 2, 3 and 4 are alleged to be armed with firearms and all the three are said to have fired upon the deceased and P.W.-1.

51. The deposition of P.W.-1 qua the manner of occurrence has also changed like the shades of time. The said fact become apparent when the disclosure made by P.W.-1 qua the manner of occurrence was disclosed by him to the Investigating Officer also. However, the Investigating Officer in his cross-examination has clearly denied the factum of disclosure alleged to have been made by P.W.-1 to the Investigating Officer.

52. Another departure, which has emerged in the deposition of this witness, is that while previously this witness stated that his brother was holding the bag containing medicine, he has subsequently stated that the 24 of 26 bag of medicine was held by him. When confronted with above, this witness has stated that both the statements are correct.

53. The accused in proof of their innocence adduced three defence witnesses. All the three defence witnesses have raised the plea of alibi in favour of the accused which means that the accused were not present at the time and place of occurrence. As such, the defence discharged the burden as required under section 103 of the Evidence Act. However, even though the defence witnesses were cross examined on behalf of accused, the defence failed to dislodge them.

54. Even though there are four prosecution witnesses who are alleged to have witnessed the occurrence in question only two of such witnesses were adduced before Court below i.e. P.W.1 Udai Raj (first informant/brother of deceased) who has been disbelieved by Court below and P.W.2 Pradeep, who did not support the prosecution story. Dhirendra was discharged and Ramesh who is the father of P.W.1 as well as deceased was not produced before court.

55. On the cumulative effect of the discrepancies emerging in the deposition of P.W.1 Court below has rightly concluded that P.W.1 is unworthy of credit and acceptance. We have ourselves carefully analysed his deposition as depicted in the impugned judgement to find out as to whether the fallacy emerging in his deposition as noted by Court below is clearly discernable or not. Prima-facie, we do not find any infirmity in the inference drawn by court below. It is well settled that the deposition of a witness has to be read as a whole vide (i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268, (ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641 and (iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543. When the deposition of P.W.-1 is examined in the light of above, the same does not inspire confidence. We, therefore, again raised a pointed query to the learned counsel for appellant as to how such discrepancies which make P.W.1 unworthy of acceptance shall stand 25 of 26 dislodged as mere minor contradictions as the elements of interestedness, contradiction and improbability have clearly emerged therein. The learned counsel for appellant only reiterated his previous submissions that as per the deposition of P.W.-1 and the medical evidence on record, the prosecution story stands proved and therefore, the same are liable to be ignored. We are afraid of the said submission. When the deposition of P.W.1 as noted by Court below in the impugned judgment is examined in the light of the parameters laid down by Apex Court for analysing the deposition of an eye witness the inherent fallacy, contradictions, interestedness and improbability emerging therein, which we have noted herein above are clearly reflected. As such, the ring of truth inspiring confidence is lacking. We, therefore, find that no other view than the one taken by Court below is possible in the present case. The impugned judgement thus neither suffers from any illegality or perversity. Same is based upon due appreciation of the weight of evidence on record.

56. For all the reasons given above, we decline to entertain the present appeal.

57. As a result, the appeal fails and is liable to be dismissed.

58. It is, accordingly, dismissed. October 27, 2025 Vinay (Dr. Ajay Kumar-II,J.) (Rajeev Misra,J.) 26 of 26