Durga Prasad … v. State of U.P on 06 Oct 2025

Judgment

1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.

2. The present appeal arises from the judgment and order dated

26.08.1988 passed by Shri R.S. Pandey, learned First Additional Sessions Judge, Banda in Sessions Trial No.16 of 1988, State Vs. Durga Prasad, Kamal Kishor and Shakir Ali, under Sections 308 read with Section 34 I.P.C., Police Station Kotwali, District Banda.

3. By the impugned judgment and order, the learned trial Court convicted the accused appellants, namely, Durga Prasad, Kamal Kishor and Shakir Ali, who were held guilty of attempting to commit culpable homicide for the offence under Section 308 read with Section 34 I.P.C. and sentenced each of them to pay a fine of Rs.500/-. In default of payment of the fine, they shall undergo three months’ rigorous imprisonment.

4. During pendency of the appeal, accused appellant no.2 Kamal Kishore died. His appeal has already been abated vide order dated

17.09.2025. The appeal survives on behalf of the appellant Nos.1 and 3, namely, Durga Prasad and Shakir Ali, respectively.

In brief, the prosecution story is that the complainant/first informant-Rameshwar Prasad Gupta submitted a complaint to the S.H.O. Kotwali, District Banda, on 20.07.1987 alleging therein that on 18th July, 1987, there was scuffle between the brother of the complainant/first informant, namely, Ram Bihari Gupta and the accused- appellant nos. 1 and 2 Durga Prasad and Kamal Khore for cutting of of Indian Jujube Tree (‘Berry ka ped’) due to which they harboured a grudge with them. During the intervening night of 19/20.07.1987, at about 11:30 p.m., when the complainant and his wife, namely, Smt. Jagrani Bai were sleeping outside the room of his house, the accused- appellants Durga Prasad and Kamal Kishor alongwith one unknown person, climbed on the platform and the unknown person fired through the window upon them by country-made pistol (Tamancha) with intention to kill them and some pellets of the same hit wife’s abdomen and some pellets hit the wall nearby them. On his screaming, his younger brother-Ram Bihari Gupta came out and by that time, Kamal Kishore and the unknown person had flew from the place of occurrence, but the first informant and others present there somehow caught the accused Durga Prasad on the spot and took him to the Police Station. It has also been alleged that the complainant, his brother and others saw and identified the unknown person in the light of bulb.

6. On the Written Report dated 20.07.1987, the F.I.R. had been lodged under Section 307 I.P.C., which came to be registered as Case Crime No. 854 of 1987, Police Station-Kotwali, District Banda. 2 of 11

7. The investigation was started by the Investigating Officer. During the course of the investigation, the Investigating Officer inspected the spot, prepared the site plan and ‘fard’ (recovery memo) of the pellets found and collected from the place of occurrence and recorded the statements of the witnesses. After completing all the formalities regarding the investigation, the charge-sheet was submitted by the Investigating Officer against the accused appellant Shakir Ali under Section 307 I.P.C. and another charge-sheet under Section 307/34 I.P.C. was submitted against the accused appellants Durga Prasad and Kamal Kishore.

8. Before the trial court, the accused pleaded not guilty and claimed to be tried. To bring home charge, the prosecution examined five witnesses, namely, the first informant-Rameshwar Prasad Gupta (P.W.- 1), Dr. Keshav Gupta (P.W.-2), Shri Radhey Shyam Tripathi (P.W.-3), who was the Executing Magistrate, who conducted the test identification parade of accused Shakir Ali, Ram Bihari Gupta (P.W.-4), who is the brother of the first informant and S.I. Chhatrapal Singh Chauhan (P.W.- 5), who is the Investigating Officer.

9. The prosecution has also produced some documentary evidence to prove the guilt of the accused persons, such as, the F.I.R. (Ex.Ka.1), Injury Report (Ex.Ka.2), Identification Parade Memo (Ex.Ka.3), Chick Report (Ex.Ka.4), G.D. entry (Ex.Ka.5), site-plan (Ex.Ka.6), ‘Fard’ (recovery memo) of pellets (Ex.Ka.7), charge-sheet submitted against Durga Prasad and Kamal Kishore (Ex.Ka.8) and charge-sheet submitted against Shakir Ali (Ex.Ka.9).

10. Thereafter, the statements of the accused appellants were recorded under Section 313 Cr.P.C., in which the accused appellants have denied the allegations made against them and stated they had been falsely implicated, for the reasons best known to the prosecution. No evidence 3 of 11 has been adduced on behalf of the defence side, either oral or documentary.

11. Before proceeding to appreciate the evidence, it would be appropriate to have a glance at the testimony and evidence produced by the prosecution. The first informant of this case, Rameshwar Prasad Gupta was examined as P.W.-1. He proved the FIR (Ex.Ka.1). He has stated that when he and his wife were sleeping inside their room, Kamal Kishor and Durga Prasad alongwith one unknown person came onto the ‘chabutra’ (porch). One of them fired a shot upon the complainant and his wife through the window, some pellets hit the wall and the window in which the security grill of the window was also broken, one of the pellet hit the wife of the complainant due which his wife sustained injuries in her abdomen. He opened the door and his younger brother came out thereafter. They somehow managed to apprehend Durga Prasad at the spot. Although Kamal Kishor was identified, he was successful in escaping from the place of occurrence. The face of the unknown person was seen in the light of the bulb and later he was identified as Shakir Ali by the witness, both in test identification parade as well as before the learned trial court. This witness stated that accused Shakir Ali had also escaped from the place of occurrence along with Kamal Kishor.

12. Next, Dr. Keshav Gupta was examined as P.W.-2. He examined injured, namely, Smt. Jagrani, wife of Rameshwar Prasad Gupta (P.W.- 1) at 2:40 a.m. on 20.07.1987. During the medical examination, he observed one abrasion measuring 1 cm× ¼ cm on the front side of the epigastria region of the injured. The injury was testified as fresh and simple in nature. In his opinion, the injury was caused by friction. The doctor has since proved the Injury Report (Ex.Ka.2). 4 of 11

13. Next, Sri Radhey Shyam Tripathi, the Executive Magistrate was examined as (P.W.-3), who supervised the Test Identification Parade held at the District Jail. During the parade, the accused-Shakir Ali, was correctly identified by both Rameshwar Prasad Gupta (P.W.-1) and Ram Bihari Gupta (P.W.-4). P.W.-3, who proved the Identification Parade Memo (Ex.Ka.3) testified that any distinguishing marks on the face of the accused that could have influenced the identification test were concealed. Similarly, comparable marks were also concealed on the faces of the other persons who stood with the suspect in the parade to ensure fairness.

14. Next, Ram Bihari Gupta, the younger brother of the first informant, was examined as P.W.-4, who corroborated the entire account. He stated that he came out of his room upon hearing the sound of gunfire and the alarm raised by his brother i.e. complainant/P.W.1. He found the assailants, who were trying to escape but in the meantime he overpowered accused-appellant Durga Prasad. The other two accused persons, namely, Kamal Kishor and Shakir Ali, who were clearly identified, were successful to escape from the place of occurrence. The witness confirmed that Durga Prasad was later taken to the Police Station. Further, Ram Bihari Gupta identified Shakir Ali in the identification parade (TIP) proceedings and confirmed that he had fled the place of occurrence.

15. Thereafter, S.I. Chhatrapal Singh Chauhan was examined as P.W.-5. He formally proved several key documents, including the Chick Report (Ex.Ka.4) prepared by Constable Johari Ramayan Singh, and the copy of the entry made in the General Diary (G.D.) (Ex.Ka.5) prepared by Head Moharrir Jameem Ullah. As part of his duties, he recorded the statements of the witnesses and prepared the site plan (Ex.Ka.6). Further, he collected two pieces of the broken grill and six pellets from the spot, formalizing their collection in the Seizure Memo (Ex.Ka.7). 5 of 11 Upon completion of the investigation, this witness submitted the initial charge-sheet (Ex.Ka.8). The charge-sheet specifically against Shakir Ali was submitted subsequently by Senior Sub-Inspector (S.S.I.) S.N. Trivedi.

16. In that state of the evidence, the learned court below has convicted the appellants and sentenced them as noted above.

17. Submission of learned counsel for the appellants is that the incident occurred late at night at about 11:30 p.m., making it not possible to identify the accused in the dim light of a zero-watt bulb. It has further been argued that it was also not possible for the informant and his brother to catch hold of the accused Durga Prasad at the spot but on the other hand, they had given chance to other two accused, namely, Kamal Kishore and Shakir Ali, to run away from the spot, therefore, the appellant Durga Prasad also had an opportunity to flee from the spot immediately.

18. It has further been averred that the first-informant of this case admitted in his testimony that the Written Report was got scribed by one Ram Gopal Gupta at about 2:00 a.m. in the night, who met the first informant near the Police Station. It has further been stated that there was no occasion for the scribe of the ‘Tehrir’ to be present near the Police Station at about 2:00 a.m. at night. It has been contended by the learned counsel for the appellants that on 18.07.1987, some scuffle took place on account of cutting of an Indian Jujube Tree (‘Beri ka ped’) between the brother of the informant and accused Durga Prasad and Kamal Kishore and it is because of that enmity, with the connivance of Police personnel, that the informant falsely roped the accused appellants in the present case. 6 of 11

19. It has again been submitted that the injury sustained by the wife of the informant is a mere abrasion caused by friction, as stated by the doctor (P.W.-2) in his testimony and there is no clear opinion of the doctor regarding whether the injury was caused by a firearm or not? Further, it has been vehemently contended that since the injured person of this case was not examined by the prosecution, in such circumstances, the injury alleged to have been caused by a firearm cannot be said to be proved.

20. It has again been argued by the learned counsel for the appellants that insofar as the identification of the accused Shakir Ali is concerned, the statement of the daughter of the informant was recorded on 21.07.1987, in which she had already stated the name of one of the accused as Shakir Ali. However, the Test Identification Parade (TIP) was conducted much later on 19.11.1987. This means that prior to the Test Identification Parade, the name of the accused Shakir Ali was disclosed by the daughter of the informant. In such circumstances, no reliance can be placed on the Test Identification Parade conducted by P.W.-3. On the above premise, learned counsel for the appellants submits that since absolutely no corroborative material exists to establish that the accused persons committed the aforementioned occurrence in the present case. With these submissions, therefore, the present appeal is liable to be allowed after setting aside the impugned judgment and order of conviction of the appellants passed by the learned trial court.

21. On the other hand, learned A.G.A. submitted that two of the accused were resident of the same village and neighbours of the informant and thus, it was not difficult for the prosecution witnesses to identify them. It has been further stated that the accused Durga Prasad was apprehended at the spot at the time of the occurrence. He 7 of 11 contended that since this fact was not denied by the accused, no doubt can be created on the testimony of the eye-witnesses. It has further been argued by the learned A.G.A. that the judgment and order of the learned trial court is sound and well-reasoned and every aspect of the case has been duly considered by the learned trial court. On the above premise, learned A.G.A. submits that since the accused committed a serious offence and tried to kill the wife of the informant by using a firearm, therefore, the appeal filed by the appellants is liable to be dismissed.

22. Having heard the learned counsel for the parties and having perused the record, it transpires from the testimony of P.W.-1 that the incident took place at about 11:30 p.m. Although, he stated in his testimony that there was a light from a zero-watt bulb inside the room, but in the site-plan, there was no description of any such bulb. Moreover, the testimony of the I.O. i.e. P.W.-5 does not mention any zero-watt bulb. Even otherwise, identification of a person in the dark is not possible merely on the basis of light of a zero-watt bulb.

23. Apart from this, the deposition made by P.W.-1 that he had the Written Report scribed by one Ram Gopal Gupta, who met the informant near the Police Station at about 2:00 a.m. caste a dent in the prosecution case, as it is cannot be easily believe that a person would be present near the Police Station without any reason and that too at 2:00 a.m. (dark night). Furthermore, it creates a doubt in the mind of a common man that on one hand, one of the accused, namely, Durga Prasad was apprehended by the complainant with the help of his brother i.e. P.W.4 and on the other-hand they had given chance to other two accused-persons to flew from the place of occurrence. 8 of 11

24. It is also created a doubt in the mind of this Court to accept the prosecution that when complainant and the injured were sleeping inside the house, then on hearing the sound of complainant and firing, P.W.-4 younger brother of the complainant came out and reached immediately at the place of occurrence. Moreover, it is also unbelievable that after committing the crime, out of three accused, two were successful in escaping from the place of occurrence while one remained standing there for being apprehended by the complainant and his bother. On the night of the occurrence, the accused Durga Prasad also had an opportunity to flee from the place of occurrence but as per the prosecution case he was caught. This story set up by the prosecution does not appear to be reliable.

25. Insofar as the injury of the injured-Jagrani Bai (wife of the first informant P.W.-1) is concerned, P.W.-2 specifically stated in his testimony that the injury may have been caused by friction and specific opinion has not been given by the doctor (P.W.-2) that the injury was caused by a firearm. Moreover, the strange behaviour of the prosecution is that it did not produce the injured-Jagrani Bai, as a prosecution witness despite the fact that her testimony was the sheet anchor of the entire prosecution. As such, this Court is of the considered view that without examining the injured, no conclusion can be drawn regarding any injury sustained by the injured person. Based solely on the testimony of the doctor and the eyewitness, the injury of the injured person cannot be said to be proved.

26. Insofar as the identification of the accused Shakir Ali is concerned, it is admitted by the I.O. of this case i.e. P.W.- 5 that he recorded the statement of the daughter of the informant, wherein the name of Shakir Ali was disclosed as the third accused on 21.07.1987, whereas the Test Identification Parade (T.I.P.) was conducted on 19.11.1987, which is Ex.Ka.3 at the trial. Thus, it is clear that prior to the Test Identification 9 of 11 Parade, the name of the accused Shakir Ali had come into light. As such, no reliance can be placed on the Test Identification Parade and the story set up by the prosecution becomes doubtful.

27. It is also improbable to believe that It is impossible to believe that in the year 1987, when there was no electricity in the cities all the time and everywhere, then how did the villages have electricity at night? As such, the the prosecution case that in the zero watt bulb lit on the mid night of the date of occurrence, the prosecution witnesses identified the accused persons is not reliable.

28. As per the prosecution case, the appellant no.3 fired upon the complainant and his wife through window of their room by a country- made pistol (Tamancha) and some pellets hit the nearby wall of the said room and one of the pellets hit the victim/injured due to which she sustained injury on her abdomen. However, neither the country-made pistol (Tamancha) was said to be recovered from the possession of any of the accused-appellants nor the same was sent to concerned Forensic Science Laboratory for its chemical analysis. There is also no report of any Forensic Science Laboratory regarding the pellets which were said to be recovered by the Investigating Officer from the place of occurrence.

29. It is also evident from the fact that the day before the occurrence, a scuffle took place between the informant’s brother i.e. P.W.4 and accused Durga Prasad and Kamal Kishore on account of cutting of the Indian Jujube Tree (‘Berry ka ped’). The possibility cannot be ruled out that because of the said scuffle which started animosity between them, on the next day of the said scuffle, this entire story was fabricated and the accused persons were falsely implicated in the present case.

30. For all the reasons noted above, this Court is of the view that the prosecution has utterly failed to prove the charge framed against the accused persons and the prosecution case has not been proven it its 10 of 11 case against the accused-appellants beyond reasonable doubt. As such, the appellants are liable to be acquitted of all the charges framed against them.

31. Accordingly, this appeal succeeds and is allowed. The judgment and order of conviction dated 26.08.1988 passed by Shri R.S. Pandey, learned First Additional Sessions Judge, Banda in Sessions Trial No.16 of 1988, State Vs. Durga Prasad, Kamal Kishor and Shakir Ali, under Sections 308 read with Section 34 I.P.C., Police Station Kotwali, District Banda, is hereby set aside. The accused-appellants are, hereby acquitted of all the charges framed against them.

32. Since the accused-appellants are reported to be on bail, they need not surrender before the court below. Their bail bonds are cancelled and sureties discharged. However, the appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

33. A copy of this judgment alongwith the trial court record be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record.

33. Pending application, if any, stands disposed of. October 6, 2025 Prajapati RK/Anurag RAMKESH PRAJAPATI High Court of Judicature at Allahabad (Madan Pal Singh,J.) 11 of 11