Rakesh and Others vs State of U.P.

Heard Sri Brijesh Sahai, learned Counsel for the Appellants and learned A.G.A. for the State.

This criminal appeal has been filed against the judgment and order dated 8.7.2004 passed by the Additional District and Sessions Judge, Bulandshahr, in S.T. No. 1472 of 2001. The Appellants, Rakesh, Bhagwat and Dinesh have been convicted under Sections 302/34, I.P.C. and sentenced to undergo life imprisonment and one year R.I. u/s 324/34, I.P.C. Both sentences are directed to run concurrently.

Charges were framed against all the three accused under Sections 302/34, 307/34, 324/34, I.P.C. and 25, Arms Act. The learned Additional District and Sessions Judge, acquitted the accused under Sections 307/34, I.P.C. and 25, Arms Act holding that these charges have not been proved beyond a reasonable doubt.

The occurrence is alleged to have taken place on 6.5.2000 at 3.45 p.m. in Jangalgram, Mirazapur, Bulandshahr. First information report was lodged on the same day at 4.30 p.m. P.S. Kotwali Dehat district Bulandshahr, nine kilometres north east from the place of occurrence by P.W. 1 Amolak Chand.

The prosecution has examined eight witnesses namely Amolak Chand P.W. 1, first informant Amit Kumar P.W. 2, Jai Prakash Giri P.W. 3 eye-witness, Dr. M. P. Singh P.W. 4, who proved injuries of P.W. 3, Dr. A. K. Bansal P.W. 5, who conducted post mortem on the body of the deceased. S.I. R. D. Pathak P.W. 6 second Investigating Officer, Thanedar Singh P.W. 7, who had investigated the case under Arms Act and Vijendra Kumar Singh P.W. 8 is first Investigating Officer.

The statements of the accused u/s 313, Cr. P.C. were recorded. All of them denied their involvement in the crime and stated that they were falsely implicated on account of enmity.

The defence has examined constable Kripal Singh D.W. 1, who proved entry of the register at police lines.

The facts as unfolded in the first information report are that on 6.5.2000. the deceased Shiv Kumar came to Bulandshahr to meet the first informant alongwith his security guard, Jai Prakash Giri posted at his residence in the village. After having their conversation at Bulandshahr, the deceased alongwith security guard on one scooter and the first informant and Amit Kumar on another scooter started for the village. The deceased was with Jai Prakash Giri, security guard on scooter No. U.P. 13-C 9744. They were going to village Surjawali. The scooter of the first informant was behind the vehicle on which the deceased and the security guard were going. At the time of occurrence, i.e. 3.45 p.m., the accused Rakesh, Dinesh and Bhagwat are alleged to have come from their backside on a Yamaha motorcycle and Rakesh gave a blow from his leg on the scooter of Shiv Kumar. As a consequence, the security guard and the deceased fell down and all the three accused got down from their bike and fired at Shiv Kumar with tamancha, which resulted in his instant death.

Jai Prakash Giri who had fallen on the ground got up and opened fire from his rifle in retaliation but the accused fled away. The first information report was lodged at 4.30 p.m. on the same day by P.W. 1. The autopsy was performed on 7.5.2000 in the early morning at 5.00 a.m. by P.W. 5. Injuries of P.W. 3 were examined on 6.5.2000 at 6.30 p.m.

It transpires from the evidence that there was a long standing enmity between the complainant and accused. Prem Prakash Sharma was brother of the accused Bhagwat and Dinesh, who was murdered on 16.5.1997 in the "gher" of P.W. 1 prior to the incident and in that case the accused were deceased Shiv Kumar and first informant Amolak Chand and Ramesh Chand father of P.W. 2, thereafter, brother of Shiv Kumar was also murdered on 22.2.1999. The present accused are also accused in the said case.

Argument advanced by the counsel for the Appellants are manifolds. First challenge to the prosecution case is that presence of the three eye-witnesses does not stand proved, mode and manner of assault do not substantiate the circumstances of the case, post mortem report does not support ocular version, first information report is ante timed, independent witnesses were deliberately withheld and also that injuries of P.W. 3 being superficial do not substantiate the case of falling from scooter. It is also submitted that on the same evidence, the Appellants have been acquitted under Sections 307/34 and 25, Arms Act, therefore, it is not safe to record a judgment of conviction.

P.W. 1 has admitted in his statement during the trial that he is an employee of U.P.S.R.T.C. since last 30-32 years and stays at Bulandshahr alongwith his children and his wife lives in the village. Explanation for his presence at the scene of occurrence by the first informant is that he had taken leave on that date with an intention to go to the village. A suggestion was put to him that if that be so why had he not gone till as late as 3.45 p.m. and started for the village only in the afternoon. No explanation or reason has been given by him why Shiv Kumar has come to his village only to return back immediately and get shot at.

Submission of the counsel for the Appellants is that behaviour of P.W. 1 on the face of it appears to be very unnatural as he admits that the occurrence had taken place outside abadi and P.W. 1, P.W. 2 and P.W. 3 went to the police station at distance of nine kilometres leaving the dead body alone unattended. Besides, P.W. 1 being an omnibus witness as he is witness of inquest and the recoveries but surprisingly the names of the accused were not mentioned in the inquest, which admittedly preceded the first information report.

This argument is advanced on the basis of statement of P.W. 1, who has clearly admitted that he had not tried to touch the body of the deceased but he had noticed injuries and number of shots caused to the deceased at the time of inquest. Inquest was completed at 7.30 p.m. On perusal of the inquest report, it transpires that Amolak Chand P.W. 1 has stated that the deceased was killed on account of firearm injuries. It is apparent that inquest was performed prior to lodging of the first information report and further P.W. 1 has admitted that a number of passerby including buses, which were either coming from his village or going to his village had stopped but he had not tried to send any information about the incident whatsoever to his village. It is also contended that the accused had not made any attempt to cause injuries to the first informant though he is also an accused alongwith the deceased in the murder of Prem Chand Sharma brother of the accused. In fact, Prem Chand Sharma was killed in his "gher". He expressed his ignorance regarding the time when family members arrived at the scene of occurrence.

Learned Counsel for the Appellants submits that according to P.W. 1, no attempt was made on his life whereas Shiv Kumar who was accompanied by the armed security guard was killed. This is yet another circumstances, which belies presence of the first informant at the scene of occurrence.

Learned Counsel while analysing the evidence of Amit Kumar P.W. 2 pointed out that he has stated that the deceased fell down on pakka road and he was shot at immediately. Though in the cross-examination he states that their scooter was going at very slow pace because it was an old one. The scooter on which the deceased was going, was neither taken into custody nor any fard was prepared to substantiate that there was any dent or blood stains found on the scooter. P.W. 2 was confronted with his statement u/s 161, Cr. P.C. where he had admitted that P.W. 1 had taken a turn on his scooter when he saw the accused and tried to hide himself to save his life. There is no mention in the case diary about the scooter number on which P. Ws. 2 and 3 were going. A number of contradictions have been pointed out by the counsel for the Appellants.

Sri Brijesh Sahai, learned Counsel for the Appellants has pointed out that P.W. l has very clearly stated in his cross-examination that he saw the accused only after they had shot Shiv Kumar and not before his murder. Learned Counsel has categorically tried to lay emphasis on the statement of P.W. 1 and P.W. 2, who are witnesses of fact. Therefore, on the basis of these contradictions as well as circumstances brought to our notice by the learned Counsel for the Appellants, he has tried to impress upon us that two eye-witnesses. who are admittedly inimical and interested, were not present at the scene of occurrence.

Learned Counsel for the Appellants, while placing the evidence of P.W. 3 security guard, submits at the very outset that he appears to be a reluctant witness, who has come in the witness box only on account of pressure of his superiors. Besides, injuries caused to him also do not confirm that injuries were caused on account of his falling on the ground. His injuries were examined by Dr. M. P. Singh P.W. 4 and on perusal of the injury report, it transpires that following injuries are shown to have been received by him.

M.I.: One black mole just left to mid line tip of chin.

Injuries: (l) Incised wound 1.5 cm. x 0.5 cm. x (Full thickness) subcutaneous tissue deep on outer and back of Rt. upper arm lower part 3.5 cm. above Rt. elbow vertically with slight obliquely placed. Margins clean cut. Clotted blood present over around wound.

(2) Incised wound 0.6 cm. x 0.1 cm. x skin deep on dorsum of Rt. hand 4.5 cm. above knuckle of Rt. index finger. Vertically with slight obliquely placed. Margins clean cut. Clotted blood present over around wound.

Opinion: Injuries are simple caused by some sharp edged object.Duration Fresh.

Two injuries received by him are superficial incised injuries margin are clean cut and simple in nature.

Dr. M. P. Singh P.W. 4, who proved injuries, has stated that if someone falls on the sharp edged instrument then these injuries are possible. The doctor has gone one step ahead and admitted that he did not confirm from the injured whether he is the same person in respect of whom majrubi chitthi was prepared by the police. He has further admitted that these injuries can be self inflicted by a blade. He has tried to explain that clean cut margins can be caused by a sharp edged instrument such as blade. He has also not noticed any mud particles in the wound. He had examined the entire body after getting his clothes removed but he did not find any other injury though he has tried to give an explanation that in the event someone falls on the ground and there is a blade embeded on the ground and edge is above the ground level then such injuries are possible. No blade or anything else with sharp edge was recovered from the scene of occurrence though recovery memo of blood stained earth and plain earth was prepared. P.W. 1 happens to be a witness in those recovery memo as well.

Next argument advanced on behalf of the Appellants to substantiate that P.W. 3 was not present, is the fact that he was posted in the police line in the year 1998 and security was deputed for the first time for the deceased Shiv Kumar on 23.3.2000. There were three guards who used to change duty. He had gone on 6.5.2000 for his security duty and he came from Surajawali with Shiv Kumar to take leave from police line, he was present in the police line till 3.00 p.m. Thereafter, since he was not able to get leave as Senior Officers of the police lines were not available. He has also admitted that he got his Amad reported on 7.5.2000. He went to police line after getting himself examined as he was in the hospital the entire night till early morning of 7.5.2000.

P.W. 3 has also further admitted in his cross-examination that the deceased told him that he apprehends danger from other villagers. He as well as Shiv Kumar reached the house of P.W. 1 at Bulandshahr at 10.00 in the morning. He stated before the Investigating Officer that he arrived at his house in the afternoon. Thus, after leaving Shiv Kumar in the house of Amolak Chand, he went to police line on 6.5.2000. He was confronted with his statement in the case diary to which he had no answer.

Learned Counsel for the Appellants has also placed his statement where he admitted that khokhas of his rifle were not recovered from the spot but he had handed over to Daroga Ji himself. He had brought G.D. register at the time while making his deposition. His rifle was not sealed by the police.

The learned Counsel emphasized this is a glaring circumstances and points a finger that neither P.W. 3 was present on the scene of incident nor had opened fire as alleged by prosecution. The scooter fell down on the left side and the motorcycle on which the accused had come, was standing nearby. The fire was made from the distance of one yard. Injuries of P.W. 3 alleged to have been received in the incident, are specifically disputed on the basis of statement of P.W. 1 and constable Kripal Singh, who was examined as a defence witness, had proved entry of register of police line. The prosecution has withheld the said document and, therefore, defence got him examined as D.W. l, who admitted during the trial and proved from record of the police line that P.W. 3 had no injury when he came to the police line on the said date and his arrival is entered in the register on 7.5.2000. He had seen no injury on his body. The fact that he was in the hospital the entire night of 6.5.2000, is not corroborated from any documentary evidence by the doctor. He was not even present in the police line till 7.5.2000. Besides, P.W. 3 has admitted that he fell down on his left side but surprisingly injuries received by him are on the right side. The doctor, who had examined his injuries has also not stated that he was in the hospital since he was admitted with majrubi chitthi to get his injuries examined.

Submission made by the counsel for the Appellants is that P.W. 3 is only witness of fact, who can be said to be an independent witness and for the aforesaid reasons, he asserted that presence of P.W. 3 stands if not negated at least it is doubtful.

Dr. A. K. Bansal P.W. 5 performed post mortem. Ante mortem injuries found on the body of the deceased by the doctor, were proved by him during the trial. According to the doctor, following ante mortem injuries were found on his person, which are quoted hereinbelow:

(1) Firearm wound of entry 2 cm. x 2 cm. Rt. side head 10 cm. above Rt. Ear Lac inverted margin with blackening tattooing. A hole of 1 cm. x 1 cm. in the vault under the wound into cranial cavity with M. Linear extension of skull vault radiating.

(2) Firearm wound of exit 6 cm. x 4 cm. on Lt. side head just above Lt. Ear Lac everted margin with brain matter coming out. Both ward comn. Track through brain direction Rt. to Lt. and downward.

(3) Firearm wound, gutter shaped conical injury measuring 6 cm. long x 2 cm. on Rt. side. 4 cm. on Lt. side under the nose involving upper lip and both ala of nose. Blackening and tattooing present. Maxilla exposed. Lac. Margin.

(4) Lac. gutter sub cut deep wound 6 cm. x 2 cm. on Lt. side front of chest oblique just below Lt. nipple. Lt. end narrower than Rt. blackish margins.

(5) Firearm wound of entry 2 cm. x 1.5 cm. x abd. cavity deep on Rt. side pelvis, posterior to mid Ax line just above iliac crest blackening tattooing present. Track traced into abdomen, laceration of iliac varnity? of Rt. side Lac. bladder obliration forearm and into Lt. thigh up to lower Trochanter. A bullet recovered from Lt. thigh near lower Trochantor. Direction Rt. to Lt. downward.

Submission by Sri Brijesh Sahai is that all the three injuries have blackening and tattooing meaning thereby these injuries were caused from a very close range.

Submission is that on a close examination of injuries, which are gutter shape, establishes that these injuries are contact injuries and also it cannot be caused by tamancha. Grooving of barrel vis-a-vis exit wound No. 2 can by no stretch of imagination be said to be caused by country made pistol. It can only be caused by rifle or factory made pistol. Injury No. 1 is also very doubtful to have been caused by 315 bore country made pistol. The case of the prosecution is that shooting had taken place from the same direction whereas the doctor who performed autopsy states otherwise.

The Investigating Officer P.W. 8 is also of little help to the prosecution. He has got the murder weapon recovered from a nearby field. After getting a declaration from the accused for recovery u/s 27, Evidence Act, the Investigating Officer has stated that weapon was embeded in the field, which was produced after removing earth. The Investigating Officer was also cross-examined at great length on the question of special report to substantiate his argument that the first information report is ante timed. In fact, suggestion of the counsel for the Appellants is that no special report was ever dispatched. He has also admitted that no blade or razor was recovered from the place of occurrence. At serial No. 5, he has shown in the site plan the place where security guard P.W. 3 had fallen down. His statement could not be recorded u/s 161, Cr. P.C. till 8.5.2000 as he was not traceable. Neither he has even tried to examine clothes of the deceased nor were clothes sent to the serologist. The alleged weapon was also not sent to the ballistic expert. He has admitted that he did not recover any broken glass of the scooter and, therefore, there is no description about it in the case diary. No technical examination of the scooter was got done. He was not even aware about the time when the first information report was sent to the Court of the Chief Judicial Magistrate concerned, He has denied the fact that relevant papers were sent alongwith the dead body to the police lines or to the doctor at the time of post mortem.

After hearing learned Counsels for the respective parties at length, we have given a careful consideration to the evidence brought on record and number of infirmities pointed out by the learned Counsel in the foregoing part of this judgment and also examined the lower court record. No doubt it is a day light occurrence and there are eye-witness account of the incident but we are also conscious of the fact that the parties are highly inimical. Murders have taken place on either side and both the parties are arrayed as accused in the respective murder, therefore, evidence of P.W. 1 and P.W. 2 has to be examined with great circumspection, caution and care. P.W. 3 can be said to be an only independent person but he is also a police security guard and, therefore. cannot be treated at parlance with normal independent witness. The deceased and P.W. 1 Amolak Chand were accused in the murder of brother of the accused.

The case of the prosecution is that P.W. 1. was immediately behind the scooter of the deceased and the accused came from backside sparing P.W. 1 but attacked on Shiv Kumar, deceased, who was accompanied by an armed guard. The incident had taken place outside abadi area and since the armed guard had also fallen down, it is not the prosecution case that firing was resorted to from a running scooter but they had stopped and alighted from the scooter and fired from the same direction. They did not make any attempt on the life of P.W. 1 and P.W. 2 and leave them to give evidence against three accused, who were all armed. The behaviour of the accused taken into consideration and their proximity with the witnesses and coupled with the extent of enmity, it belies the natural conduct especially when Amolak Chand did not make any attempt to flee from the spot, which would be normally expected from a prudent man.

P.W. 2 on the other hand comes up with the story that they took U-turn and Amolak Chand witnessed the occurrence hiding himself behind the bush. No doubt, this statement stands denied during the trial. This is the statement, which was given by him u/s 161, Cr. P.C. He was confronted with the said statement. On cross-examination, he negated by saying that he does not remember that he has given such a statement. He has also stated that Shiv Kumar had fallen on pakka road and that they were going at a very slow speed on the scooter since it was an old one. He has further admitted that they kept standing after parking their scooter and calling for help till the accused had fled away. It brings us once again to the same question as to why the accused did not make any attempt on Amolak Chand or P.W. 2 when they were going at such a slow speed and they must have crossed their vehicle before reaching the deceased, besides they kept standing while the deceased was shot at, still the accused did not make any attempt to cause any injuries to the eye-witness.

This fact also belies the mode and manner of occurrence as propounded by the prosecution. The scooter and deceased had fallen down on pakka road but there appears to be no corroborative evidence to substantiate this fact. The deceased was wearing dhoti and kurta but there are no abrasion, contusion or bruise etc. on the body of the deceased by falling. This again leaves us wondering as to why and how? Eye-witness account raises a presumption in our mind that the witnesses are not worthy of reliance. Both witnesses P.W. 1 and P.W. 2 has stated that the three accused caused injuries from one side whereas the doctor has admitted in his cross-examination that one of the injuries were caused from opposite direction. Reason for his presence given by P.W. 1 is that he had taken leave from his office because he had planned to come to his village but remained the entire day at Bulandshahr itself and started for village late in the afternoon only to witness the occurrence. Both the witnesses P.W. 1 and P.W. 2 stated that vehicles including buses carrying villagers, were going to and fro but no information was sent in the village for a considerable length of time, which again belies the normal human conduct.

The first informant goes further to admit that Dharm Pal Sharma, resident of village Ghinaura and Kacchi Dutt Sharma resident of Shashtri Nagar, Bulandshahr, had arrived at the place of occurrence at about 4.00 p.m. but they were also not sent to give information in his village regarding murder of the deceased.

P.W. 2 was cross-examined regarding weapon of crime, which was used by the accused at the time of occurrence and he has given a detailed description of the weapons as well as his knowledge about country made pistol of different nature and dimensions and kind of cartridges used in tamancha. P.W. 2 has stated that he had not touched the body of the deceased whereas P.W. 1 Amolak Chand had tried to examine his injuries. P.W. 2 has stated that he reached police station at 5.30 p.m. Subsequently, he corrected himself that he reached at 4.30 p.m. and stayed at the police station till 5.30 p.m. They came back at the place of occurrence at 6.00-6.15 p.m. He has further admitted that at the time when he reached the place of occurrence, there was no one near the dead body.

Learned Counsel for the Appellants has drawn our attention to this fact as well which we initially did not think to be important enough that assuming all three eye-witnesses had left for police station, there must be someone, who would be entrusted to guard the dead body but P.W. 2 has unequivocally admitted in his cross-examination that after they returned from the police station, the dead body was lying alone unguarded. It does not stand to reason and in consonance with normal human conduct whereas P.W. 1 has clearly stated in his statement that a number of persons from Bulandshahr had reached the scene of occurrence and, therefore, at least security guard should have been left back with the dead body.

It also transpires from evidence of P.W. 1 and P.W. 2 that they were very close behind the vehicle of the deceased but at a slow pace. The accused, who came from behind did not make any attempt on the life of P.W. 1 or P.W. 2 but chose to go ahead and shot at Shiv Kumar, who was accompanied by an armed guard. Injuries of the deceased also do not substantiate the theory of having fallen down on pakka road from scooter as there are no contusion or abrasion on his body. Ante mortem injuries are only entry and exit injuries caused by firearm. The accused are also said to have got down from their vehicle and fired at the deceased from one side whereas P.W. 1 and P.W. 2 were few paces behind the deceased did not try to run away but got down from their vehicle and stood making hue and cry without any attempt by either of the accused on their life though all of them are said to be fully armed.

Now we proceed to examine evidence of P.W. 3. Obviously, injuries of P.W. 3 are superficial in nature, which did not require immediate attention and, therefore, we are in agreement with the submission of the counsel on behalf of the Appellants. It appears to be feasible and not in conformity with normal human behaviour. P.W. 3 looks to have been introduced as there was no independent witness.

Besides. we are not able to ignore the fact that P.W. 3 opened fire from his rifle but the Investigating Officer did not make any recovery of the cartridges fired from the rifle at the place of occurrence. The cartridges were admittedly handed over to him at a subsequent time by P.W. 3. His rifle was neither sealed nor any recovery memo was made. Injuries of P.W. 3 also do not substantiate that he had fallen down from the scooter, which caused injuries, on the contrary the doctor has admitted that injuries are absolutely superficial and can be self inflicted and also that it can be caused by blade. The introduction of P.W. 3 on the face of it appears to be only to create an independent witness. Since admittedly P.W. 1 and P.W. 2 are highly inimical and no injuries on their person definitely makes our thinking process in a reverse direction, which is detrimental to the prosecution case. Besides, we are not able to overlook the documentary evidence brought on record by the defence and also the assertion of the constable Kripal Singh that there was no injury on his person (P.W. 3) when he reached police lines on 7.5.2000. Besides, the Investigating Officer has admitted that whereabouts of P.W. 3 was not known till 8.5.2000. The scooter on which the deceased was riding was not got examined whether there was any dent or scratch. The deceased was wearing dhoti and kurta but his clothes were not taken by the Investigating Officer to examine whether there were any bullet or pellet holes.

Learned Counsel for the Appellants has invited our attention on the question that the first information report is ante-timed. P.W. 2 has stated that he reached at the Police Station at 5.30 p.m. but instantly he corrected himself and stated that he reached at 4.30 p.m. which is the time of lodging of the first information report. Admittedly the police station is 9 kilometres from the place of occurrence. After firing was made at 3.45 p.m., the witnesses examined injuries of the deceased and also injuries of the security guard and thereafter started their vehicle which was admittedly old one and was running at very slow speed which reached the police station within 25-30, i.e., 40 minutes of the time of occurrence whereas the police after receiving information at 4.30 p.m. and registering the case at that time, was able to arrive at the place of occurrence only at 6.30 p.m. The dead body was sealed and thereafter inquest was completed at 7.30 p.m. It is once again very surprising that either inquest preceded lodging of the first information report or the first information report was lodged at least not at the time alleged by the prosecution.

P.W. 1 who is also a witness of inquest was not able to specify the names of the accused. In fact, he is an omnibus witness. The Investigating Officer would have definitely taken care not to make him a witness of inquest if he was aware that Amolak Chand will be the first informant. Learned Counsel has correctly pointed out that P.W. 1 is also a witness in all the recovery memos as well.

Besides, the Investigating Officer has not been able to substantiate that when the special report was sent and on what date report to the Chief Judicial Magistrate was given. He was unable to give any detail. It is also to be noted that though the prosecution witnesses remained at the police station up till 6.00 to 6.15 p.m. but their statements u/s 161, Cr. P.C. were not recorded. The fact that the first informant and the prosecution witnesses reached at the police station within 40 minutes whereas the police arrived at the scene of occurrence only after one hour and 45 minutes, we are, therefore, inclined to accept the reasonings given by the learned Counsel for the Appellants and it raises certain misgivings in our mind regarding time of lodging of the first information report.

The argument of the learned Counsel for the Appellants regarding weapon used that whether it was country made pistol or factory made vis-a-vis the injury, we are not inclined to give weight to this argument. No doubt, P.W. 2 has tried to give graphic description and elucidate on the weapon used by the accused but these days there are very sophisticated country made firearms.

Considering the argument of the counsel for the Appellants that grooving of the barrel can only be of a rifle or factory made pistol etc. we are little hesitant to give our opinion and record a finding against prosecution. In the present days local fire arms are very much akin to the factory made fire arms or even imported fire arms and, therefore, we do want to express our opinion and deal on this aspect.

Learned Counsel for the Appellants has placed post mortem report and argued that injury Nos. 1 and 2 explain the recovery of bullet of 315 bore, therefore, injury No. 1 was not caused by country made pistol. He has also tried to emphasize that injury No. 3 is only grievous injury which entered the body but no 315 bore cartridge was found. The bullet was recovered from left thigh. While placing injury No. 5 coupled with the fact that blackening was present in all the injuries, in fact gutter shape injuries are contact injuries. Assuming we accept his argument even then the assailants are alleged to have caused fire arm injury from a very close range and, therefore, it is not of much consequence. We decline either to confirm or to accept this argument since other aspects detailed above are sufficient to raise a doubt in our mind regarding presence of three eye-witnesses. The ground for false implication glaring on the face and even if we broadly assess the evidence not only a shadow of doubt but it cannot be ruled out that an overall assessment of evidence leads us to a conclusion that it is not sufficient enough to confirm the judgment of conviction, it is a lopsided judgment without evaluating the overall facts and circumstances.

Besides, recovery of the weapon at the instance of the accused has been disbelieved and a clear acquittal has been given for the offence u/s 25, Arms Act. The investigation also on the face of it appears to be very sloppy. It is surprising that blood stained earth and clothes of the deceased were not sent for chemical analysis. The weapon was not sent to the ballistic expert and also bullets claimed by the prosecution to be fired from the rifle of the security guard was not recovered from the place of occurrence coupled with the fact that consistent prosecution case that the deceased was thrown out from the scooter on Pakka road, there being no such injury and no attempt on the life of P.W. 1 and P.W. 2 who were within very close range render the entire prosecution case doubtful. The totality of the circumstances do not inspire confidence and we are hesitant to record the judgment of conviction and overall estimation of evidence leads us to a definite conclusion that the accused who are in jail since the time of occurrence are liable to be given benefit of doubt.

For the reasons discussed above, the appeal is allowed. The judgment and order dated 8.7.2004 passed by the Additional District and Sessions Judge, Bulandshahr in S.T. No. 1472 of 2001 is set aside as prosecution failed to establish its case beyond reasonable doubt. The Appellants are acquitted, the offence under Sections 302/34 and 324/34, I.P.C. are not sufficiently proved. The Appellants are in jail. They shall be released forthwith.

Office is directed to send a certified copy of this order to the Court below so that the accused be released forthwith.