Allowed

Harswaroop and 2 Ors. v. State of U.P.

Allahabad HC13 Feb 2023CRLA/5596/2018

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against conviction for murder and attempted murder, finding the trial court ignored material inconsistencies in the prosecution case, namely delayed FIR, medical evidence contradicting indiscriminate firing, unreliable weapon recoveries, and the informant's criminal antecedents. The court held the prosecution failed to prove guilt beyond reasonable doubt an

What did the court decide?

The judgment of conviction and sentence dated 06.08.2018 is set aside. The appellants are directed to be released forthwith unless wanted in any other case, subject to compliance of Section 437 Cr.P.C

Harswaroop and 2 Ors. Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Court No. - 47

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Case:- CRIMINAL APPEAL No. - 5596 of 2018

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Appellant :- Harswaroop And 2 Ors. Respondent:- State of U.P.

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Counsel for Appellant:- Prakash Chandra Srivastava, Pradeep Kumar Mishra, Vijay Shanker Tripathi, Vinod Shankar Tripathi

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Counsel for Respondent:- G.A.

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Hon'ble Ashwani Kumar Mishra, J.

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Hon'ble Vinod Diwakar,J.

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This appeal is by the accused-appellants Harswaroop, Anil Kumar and Prem Shankar challenging the judgment and order dated 06.08.2018 passed by the court below in session Trial No. 195 of 2015 (State Vs. Harswaroop and Others), arising out of Case Crime No. 2934 of 2014, under Sections 147, 148, 149, 452, 307, 302, 504, 506 IPC and Section 3(2) (V) of SC/ST Act, Police Station Sungarhi, District Pilibhit.

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The accused-appellants have been convicted under Section 147 I.P.C. and sentenced to undergo one-year imprisonment, under Section 148 I.P.C. to undergo two years imprisonment, under Section 452/149 I.P.C. to undergo three years imprisonment and fine of Rs. 1,000/-, in default of payment of fine six months additional imprisonment, under Section 307/149 I.P.C. read with Section 3(2) (V) of SC/ST Act to undergo life imprisonment and fine of Rs. 5,000/-, in default of payment of fine one year additional imprisonment, under Section 302/149 I.P.C. read with Section 3(2) (V) of SC/ST Act to undergo life imprisonment and fine of Rs. 10,000/-, in default of payment of fine one year additional imprisonment, under Section 504 I.P.C. to undergo six months imprisonment, under Section 506 I.P.C. to undergo three years imprisonment and under the Arms Act, the accused-appellants have been sentenced to undergo imprisonment of two years, two years, three years and six months respectively and fine of Rs. 500/- each and in default of

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fine six months, six months and eight months additiona imprisonment, respectively. The sentences are to run concurrently.

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Prosecution case proceeds on a written report of PW-2 Jaganlal, as per which at about 8:00 PM he was sitting in his house when in front of his door the accused dumped cow dung. The informant objected to it, whereafter the accused Prem Shankar came armed with a licensed single barrel gun of his father Kanhai Lal and Harswaroop, Anil and Shailendra armed with country-made pistols barged into his courtyard and with the intent to kill him resorted to indiscriminate firing on the informant and his family members. The informant suffered a firearm injury on his left hand whereas Vijendra sustained a firearm injury on his abdomen. The informant's wife Munni Devi and daughter-in-law Saraswati somehow managed to survive by rushing inside the house. A firearm injury was also sustained by Dinesh Kumar. It is then stated that the accused persons extended threats and fled from the spot. The incident was promptly reported on the phone to the local police and as three injured were critical, they were referred to Ram Murti Medical College, Bhojipura, Bareilly where the informant's son Dinesh died at 9:00 a.m. The other son Vijendra was admitted to the ICU. The informant, however, was discharged after initial treatment. The FIR has been registered at 17:20 hours on 26th December 2014 in respect of the incident that occurred at 8:00 p.m. on 25th December 2014.

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After receiving information about the incident of firing, the police personnel rushed to the spot and collected the blood stains and plain earth from the place of occurrence, vide Ext. A-27 and A-28. Two empty cartridges of 12 bore have also been recovered. The injured were medically examined at the District Hospital and the injury reports of Vijendra and Jaganlal are on record, as per which the following injuries have been caused to them:-

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Injuries of Vijendra

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I. Multiple Fire Arm Entry Wound 22 x 17 cm. over abdomen and chest lower part size vary from 0.1 x 0.2 cm. x DNP to 0.3 cm. X 0.2 cm. x DNP. No blackening and tattooing KUO X-ray chest.

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II. Multiple Fire Arm wounds of entry 28 cm. above left knee joint size varying from 0.1 x 0.2 cm. x DNP to 0.3 cm. X 0.2 cm. x DNP.

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Injuries of Jaganlal

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I. Fire Arm Wound injury over left wrist 2 in number 0.1 to 0.2 to 0.2 to 0.3 x DNP KUO.

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II. Fire Arm between the index finger and left middle finger 2 in number 0.1 x 0.2 cm.- 0.2 to 0.3 cm. x DNP KUO.

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III. Fire Arm Wound in little finger 2 in number 0.1-0.2 x 0.2-0.3 x DNP KUO.

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The injuries sustained by Dinesh has also been examined at 9:20

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p.m. on 25th December 2014, which are as under:-

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I. Multiple fire wound injuries 4 in number over the abdomen and right lower chest. 30 x 26 cm. At the right thigh and upper part area 0.1 x 0.2 cm. X DNP 0.2-0.3 cm. X DNP. No tattooing and no blackening KUO.

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II. Multiple firearm injuries on right hand 5 x 22 cm., 0.1 x 0.2 cm. to 0.2 x 0.3 cm. X DNP.

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Inquest proceedings were conducted in respect of deceased Dinesh in the afternoon of 26th December 2014 and as per the inquest witnesses, the deceased Dinesh died homicidal death due to firearm injuries and it was required that a postmortem be conducted and consequently, the body was sealed and sent to the mortuary, where the postmortem was conducted. The autopsy surgeon has opined that the deceased has died due to shock and haemorrhage on account of the following ante-mortem firearm injuries:-

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I. Multiple Wound 0.5 x 0.5 abrasion and entry wound present on over right abdomen, right lower chest, right thigh, waist 44 x 18 cm. Over 8 pellets recovered from S/C just above the right iliac crest.

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(i) One from the right ascending colon.

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(ii) One from the right side transverse colon.

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(iii). Two from the anterior aspect of the liver.

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(iv) Two from the abdomen.

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(v) One from the right ilio caecal joint.

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II. Multiple 0.5 x0.5 cm. round above 2 entry wound present over the right arm. One area 10 x 5 cm. and one pallet recovered from a joint above right 5 cm. above 40 in number over the abdomen.

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The record further reveals that accused Prem Shankar was arrested on 14.01.2005 and on his pointing out the licensed single barrel gun of Kanhai has been recovered. A first information report in respect of the incident of recovery of a firearm from Prem Shankar being Case Crime No. 14 of 2005 has been registered on 14.01.2005. Accused Shailendra has been arrested on 03.04.2015 and on his pointing out, a country-made pistol has been recovered on 10.04.2015 from an open field. A separate FIR as Case Crime No. 107 of 2015 has been registered. The accused Anil has been arrested on 08.04.2015 and on his pointing out, another country-made pistol has been recovered from an open field on 19.04.2015. It is worth noticing at this stage that in respect of the recovery of three firearms, there are no independent witnesses and the recoveries are from the open field. The recovery of the country-made pistol is almost after three and half months of the incident.

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The recovered cartridges as well as the firearm were sent for scientific examination to the Forensic Laboratory and its report has been placed on record as Ext. Ka-34.

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The Investigating Officer has recorded the statement of witnesses, whereafter separate charge sheets were submitted in respect of the four separate FIRs registered in the matter, vide Ext. Ka. 7, Case Crime No. 2934 of 2014, under Sections 147, 148, 149, 452/34, 302, 307, 504, 506 I.P.C. and Section 3 (2) (V) of SC/ST Act, Police Station Sungarhi, District Pilibhit, Ext. Ka. 25, Case Crime No. 0107 of 2015, under Sections 3, 25 of Arms Act, Police Station Sungarhi, District Pilibhit, Ext. Ka. 35, Case Crime No. 0817 of 2015, under Section 25 of the Arms Act, Police Station Sungarhi, District Pilibhit and Ext. Ka. 37, Case Crime No. 0014 of 2015, under Sections 25, 27, 29, and 30 of the Arms Act, Police Station Sungarhi, District Pilibhit.

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The Investigating Officer has submitted two separate charge sheets in respect of the main offence registered as Case Crime No. 2934 of 2014. The Magistrate took cognizance of the charge sheets and committed the case to the court of sessions, where six separate trials were registered as Session Trial No. 195 of 2015 (State Vs. Harswaroop and Others), Session Trial No. 110 of 2015 (State Vs. Prem Shankar), Session Trial No. 111 of 2015 (State Vs. Premshankar), Session Trial No. 196 of 2015 (State Vs. Kanhai), Session Trial No. 197 of 2015 (State Vs. Harswaroop) and Session Trial No. 198 of 2015 (State Vs. Anil Kumar).

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The court of sessions proceeded to frame charges against the accused-appellants under Sections 147, 148, 149, 452, 307, 302, 504, and 506 IPC as well as under Section 3 (2) (V) of SC/ST Act separately against the accused-appellants. The charges against Harswaroop, Anil and Kanhai Lal were framed on 29.01.2016 and against Prem Shanker by a separate order of the same date. The accused denied the charges levelled against them and demanded trial.

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The prosecution in order to prove its case has placed on record the following documentary evidence:-

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Written Report (Ext. Ka. 1)

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Medical Examination Report of Vijendra (Ext. Ka. 2).

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Medical Examination Report of Jagan Lal (Ext. Ka. 3)

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Medical Examination Report of Dinesh (Ext. Ka. 4).

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Postmortem report of Dinesh (Ext. Ka. 5).

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Copy of G.D. (Ext. Ka.6).

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Chik FIR (Ext. Ka. 7).

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Carbon Copy of G.D. (Ext. Ka. 8).

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Panchayatnama (Ext. Ka. 9)

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Recovery Memo of Pistol and Empty Cartridge (Ext. Ka. 10).

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Recovery Memo of Pistol and Empty Cartridge (Ext. Ka. 11).

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Site Plan (Ext. Ka. 12).

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Charge-Sheet (Ext. Ka. 13).

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Charge-Sheet (Ext. Ka. 14).

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Site Plan (Ext. Ka. 15).

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Charge-Sheet (Ext. Ka. 16).

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Site Plan (Ext. Ka. 17).

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Charge-Sheet (Ext. Ka. 18).

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Order of District Magistrate (Ext. Ka. 19).

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Site Plan (Ext. Ka. 20).

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Site Plan (Ext. Ka. 21).

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Order of District Magistrate (Ext. Ka. 22).

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Charge-Sheet (Ext. Ka. 23).

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Charge-Sheet (Ext. Ka. 24).

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F.I.R. (Ext. Ka. 25).

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Recovery Memo of SBBL Gun and Live Cartridge and arrest Memo (Ext. Ka. 26).

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Recovery Memo of Blood Stained Earth (Ext. Ka. 27).

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Recovery Memo of Empty Cartridge (Ext. Ka. 28).

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Site Plan (Ext. Ka. 29).

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Order of District Magistrate (Ext. Ka. 30).

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Order of District Magistrate (Ext. Ka. 31).

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True Copy of G.D. (Ext. Ka. 32).

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True Copy of G.D. (Ext. Ka. 33).

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Report of Forensic Science Laboratory (Ext. Ka. 34).

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In addition to the above, the prosecution has produced Jaganlal as PW-1, who is the first informant in the present case. He stated that all the accused belonged to other backward castes and are not members of scheduled castes. He has stated that the incident occurred on 25th December, 2014 at about 8:00 P.M. when he was sitting in his own Angan (courtyard) with his son Dinesh and Vijendra. His wife and daughter-inlaw were also present and the light was available from the inverter. It is alleged that suddenly the accused persons barged into the courtyard of the informant. The accused Prem Shankar was carrying a single-barrel gun whereas accused Harswaroop, Anil and Shailendra were carrying countrymade pistols and stated that they would not leave them and started indiscriminate firing. In the firing, the witness sustained firearm injuries on his left hand while his two sons Dinesh and Vijendra sustained firearm injuries on their abdomen. The role of exhortation has been assigned to Kanhai who died during the pendency of the present appeal. The accused person after coming out of the house again fired on his door and the bullet hit the electricity pole and the walls. He has stated that about 2 to 3 days earlier also the accused Harswaroop and his family members had dumped cow dung on the footpath covered with bricks in front of his door and on his objection to it, an altercation took place but the matter was somehow pacified. He has stated that on one pretext or the other, the accused Harswaroop and his family members were in habit of creating trouble for him. Previously also, the accused used to tie their cattle in front of the

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entrance of the informant. It is alleged that a written report in that regard was filed in the year 2013 at the Police Station and a receiving was also issued to him. However, no action was taken against the accused persons as one of them is an advocate. Since then the accused started maintaining enmity.

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PW-1 has also stated that he informed the Police that the accused persons barged in his house and had fired on him and his two sons as well. The injured have been taken to the District Hospital whereafter they are being referred to Ram Murti Hospital, Bareilly . His son Dinesh died on 26.12.2014 whereas the informant was discharged on the same day. The inquest proceedings were undertaken by the Bhojipura Police.

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P.W. 1 has been cross-examined, in which he has admitted that he has a criminal history and he has a 12-bore license gun, for which the firearm was purchased in the year 1999. He has admitted that his firearm was got deposited at Police Station and even in the present incident his firearm has been taken by the Police. He also admitted that there were three criminal cases against him; murder of his nephew; in the second case, he is accused of murdering one Om Prakash and; attempt to murder of previous Pradhan Pooran Lal. The fourth case registered against him is under the Arms Act. He has denied the suggestion that the informant of those four cases and their family members maintained enmity with the accused. All the informants otherwise are residents of the same village and are neighbours of P.W. 1. He has further stated that the accused Prem Shankar, Harswaroop, Anil and Shailendra are also accused in a criminal case in respect of firing on their cousin Tej Bahadur's son of Pothi Ram. PW-1 however showed ignorance about the status of other cases. The accused Harswaroop is an advocate whereas Premshankar and Anil are Shiksha Mitra and Kanhai is an elderly person. P.W. 1 has denied the fact that on account of enmity, the accused have been falsely implicated.

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This witness in his cross-examination has also admitted that the written report in respect of the incident was given belatedly after the death of his son and after the conduct of inquest proceedings. He has denied that the written report was given after the conduct of the post-mortem. P.W. 1 however is not a witness to the inquest proceedings. A specific question was put to P.W. 1 as to why he was not present at the time of the postmortem of his son, to which he stated that he had gone to Pilibhit for lodging the F.I.R. P.W. 1 has also admitted that in the election for the post of Pradhan in the year 2010, the accused Harswaroop had contested against him. Harswaroop and PW-1 both lost the election. He has denied the suggestion that he lost the election only because Harswaroop stood as a candidate. Witness P.W. 1 in his cross-examination also stated that when he made the phone call to the Police-Station he has not specified the name of the persons who had fired at them and had only stated that his neighbours have barged into his house and caused firearm injuries to them. He stated that neither the Policemen asked the name of the accused persons nor he had disclosed it to them. He also denied the suggestion that there was no light at the place of occurrence and that the incident occurred elsewhere and due to previous enmity, the accused persons have been falsely implicated. He has also stated that there was a distance of 8 to 10 paces between the accused and the informant however this fact has been disclosed for the first time during the examination and it was not disclosed earlier at the time of recording of the statement under Section 161 Cr.P.C.

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P.W. 2 is the son of P.W. 1 and has supported the prosecution case. He stated that the incident is of 25th December, 2014. Harswaroop had dumped cow dung in front of his house and his father had objected on account of which there was an altercation/fight. P.W. 1 along with P.W. 2 and deceased Dinesh were inside the house when the accused persons came armed with firearms into the courtyard of the witness and resorted to indiscriminate firing.

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In cross-examination, P.W. 2 has stated that his father was falsely implicated in various cases wherein he has been acquitted. He has denied that the enmity was maintained by the informant side and said that enmity was maintained only by the accused persons. He has stated that after sustaining the firearm injury he became unconscious and could regain consciousness only around 10 A.M., the next morning. His statement under Section 161 Cr.P.C. was recorded after about 22 days. The boundary of the house of P.W. 2 was found 8 to 10 feet high. This witness could not disclose the number of gunshots fired on the informant's side.

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P.W. 3 is Dr. Anupam Sharma, who has examined the injured. In his testimony, he admitted that at the time of medication examination the informant Jagan Lal was in normal condition and the smell of alcohol was coming from him. He further stated that the injured were not in serious condition and, therefore, he did not think it proper to get their dying declaration recorded. However, he did sent a report to the police station for recording their statement.

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P.W. 4 is the autopsy surgeon, who has proved the postmortem. There are other formal witnesses as well, who all have supported the prosecution.

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P.W. 9 is the Investigating Officer who has explained the manner in which the investigation was conducted and charge-sheet was submitted.

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P.W. 12 is the Sub-Inspector who had arrived at the place of occurrence on 25th December, 2014 and at about 9 p.m. he claims that the police party remained in the village and collected blood stains and plain earth on the next day. He admitted that due to lack of light at the place of occurrence, the paperwork was done by him on the next morning.

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On the basis of such evidence led in the matter, the accused were confronted with incriminating material against them for recording their statement under section 313 Cr.P.C. The accused persons have denied the allegations made against them by stating that the report lodged subsequently is a result of afterthought. It has been stated that the informant is a hardcore criminal and is accused in various cases and his firearm was also suspended by police. It has been further stated that on account of such enmity borne by the informant, someone else has killed the deceased and they have been falsely implicated only because they do not have good relations with him. It has been stated that all the accused have been falsely implicated and they are innocent. The accused have further stated that no recovery of the firearm has been made from them and that the evidence in the form of recovery of the firearm is manufactured and is not reliable.

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On the basis of evidence so led in the matter, the trial has concluded that the prosecution has succeeded in establishing the guilt of the accused-appellants beyond reasonable doubt. All the accused have accordingly been convicted and sentenced. The accused Shailendra since has been declared a juvenile the proceedings in respect of him have been segregated.

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Challenging the judgment of conviction and sentence, Shri Rahul Saxena, learned counsel for the appellants submits that this is a case of false implication of accused-appellants on account of enmity borne by the informant side against them. It is contended that one of the accused Harswaroop is an Advocate and the informant apprehended his role in lodging various reports etc. against him previously. It is further contended that the incident has not occurred in the manner explained by the prosecution and the existence of the mark of pellets on the boundary of the informant's house shows that the incident occurred outside the house and not in the courtyard, as is alleged by the prosecution. He further submits that the plea of indiscriminate firing from a short distance is also

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not substantiated since indiscriminate firing would cause much greater injuries to the informant side. Learned counsel further submits that this was a case of single shot fired due to which the deceased Dinesh died and it was only the disbursal of pellets which caused injuries to Jaganlal and Vijendra and they were in close proximity. Learned counsel further submits that there was no light available on the spot and in fact, the assailants were not recognized by anyone and that is why the intimation was given to the police on phone without specifying their name or identity. The informant (PW-1) had not disclosed the name of persons, who had fired on him, and his family members, to the police at first instance. It is also argued that the implication of four persons is otherwise wholly unexplained, particularly when only a single fire has caused the death of Dinesh and injuries to the injured. Learned counsel further submits that the author of this injury has not been specified by the prosecution. Submission is that the accused appellants are languishing in jail for the last over eight years and are entitled to be released. It is also pointed out by the counsel for the appellants that the statement of PW-1 about the accused party having criminal history is factually incorrect inasmuch as the accused Anil was the informant in the case relating to firing on his cousin Tej Bahadur and the allegation that he was an accused is factually incorrect. It is further contended that apart from this incident, none of the accused-appellants have any criminal history, rather it is the informant who is a hardened criminal and has falsely implicated the accused persons.

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Per contra, learned A.G.A. submits that this is a case where eyewitnesses have seen the incident and a definite motive for the commissioning of offence is otherwise disclosed. Submission is that the medical evidence on record proves that the informant's side has sustained multiple firearm wounds and all the accused have been assigned the role of firing firearms. The firearms have also been recovered from them as such the conviction and sentence of the appellants are proper.

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We have heard Shri Rahul Saxena Advocate for the appellants, learned A.G.A. for the State and have carefully examined the evidence on record of this appeal and also the trial court records.

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The prosecution has explained the genesis of the incident as being the act on part of the accused persons in throwing cow dung in front of the door of the informant.

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P.W. 1 in his testimony has stated that an incident had earlier occurred in the year 2013 relating to the tying of cattle in front of the house of the informant and a written report, in that regard, was also filed in the year 2013. However, neither such a report has been placed on record nor any evidence has been led to prove the actual making of a previous complaint against the accused persons. In the absence of any evidence, in that regard, the plea of prior enmity is not established. The incident has occured on 25.12.2014 when the accused Harswaroop allegedly dumped cow dung in front of the entrance of the informant. The informant objected to it and soon thereafter the accused persons came armed with firearms and indiscriminately fired on the informant and his two sons.

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The prosecution evidence clearly shows that a trivial issue triggered the incident on the spot at the spur of moment.

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At the outset we may note that the prosecution has heavily relied upon the recovery of the country-made pistols from the accused and therefore the evidence produced on this score be analysed first.

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So far as recovery of the firm arm from Harswaroop and Anil are concerned, these recoveries have been made after about three and half months of the alleged occurrence i.e. on 10.04.2015 and 19.04.2015 respectively. Both the recoveries have been attempted to be proved vide Ex. Ka-25 and Ka-35 respectively. Both recoveries have not been witnessed by any independent person. The circumstance relating to

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recovery is also interesting since the recoveries have been made from an open field which is otherwise accessible to members of the public. We are thus not impressed by the recovery of firearms from the accused Harswaroop and Anil both on account of the unusually long delay of about three and half months and also for the reason that recovery is from open field and the recovery is not witnessed by any independent person. Even the forensic report which has been placed on record does not connect these two firearms with the empty cartridges recovered from the place of occurrence. The recoveries made from Harswaroop and Anil, therefore, are not reliable.

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So far as the recovery of firearms from Prem Shankar is concerned this recovery is of a licensed gun belonging to his father Kanhai. As per the forensic report, this firearm has also not been proved to have been used in the incident as the empty cartridges seized have not matched the single-barrel gun recovered from Prem Shankar. Even this recovery is after 20 days and has not been witnessed by any independent person. The alleged recovery of firearms from the accused-appellant Prem Shankar also does not inspire the confidence of this Court.

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The prosecution case further is that the accused persons came and fired indiscriminately, however, we find that the evidence on record does not support the plea of indiscriminate firing on the informant and his two sons. The injury report and the postmortem report shows that 48 pellets have been found on the person of the deceased whereas few other pellets hit the injured Vijendra and Jagan Lal. The number of pellets fired on Vijendra and Jagan Lal has not been specified.

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In the event, there were multiple shots fired upon the informant side, the possibility of causing greater injury would exist. The firing as per prosecution evidence was made from a short distance of 8 to 10 paces. We find some force in the arguments of Shri Saxena that the existence of few pellet injuries on the injured witness could be on account of dispersal

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of pellets fired from the single shot aimed at Dinesh. The prosecution case that all four accused fired from a short range upon the informant and his two sons is thus not supported by the injury and the postmortem report. On the basis of evidence adduced we are persuaded to take the view that it is a case of single gunshot fired on the deceased with some of the pellets dispersed which hit the two injured. This is otherwise admitted that the two injured were present in close proximity of the deceased.

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The prosecution evidence that four accused persons fired on the informant and the injured is thus disbelieved. We are now required to examine as to who is the author of the single gunshot fired at the deceased which caused injuries to the two injured also. The prosecution evidence has been carefully examined by us and we find that only general allegations have been made against all the accused of firing at the deceased and injured as well. It has not been specified in the testimony of prosecution witnesses as to who fired the gunshot, because of which the deceased died and the other two sustained pellets. It would be difficult for us to pinpoint the person who caused the single gunshot injury on the deceased due to lack of evidence in that regard and cannot hold any single individual guilty of firing, in the facts and circumstances of the present case where four persons are accused of firing and only a solitary shot is shown to be fired.

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So far as the prosecution case, about the applicability of Section 149 IPC is concerned, the ingredients of the section requires law that all accused formed an unlawful assembly for committing the offence with a common object. The evidence on record merely shows that soon after the incident of dumping cow dung by the accused an altercation followed whereafter the incident of firing accused. The plea of indiscriminate firing does not find any corroboration from the medical evidence. Apart from it, there is no specific evidence produced by the prosecution to show that all four accused committed the offence with a common object and were members of an unlawful assembly to commit the crime. Since the incident

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appears to have been caused otherwise at the spur of the moment, we are not inclined to accept the prosecution case that necessary ingredients exists in the facts of this case for commissioning of offence under Section 149 IPC. It appears that on account of alleged differences between the neighbours all members of the accused family are implicated.

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Had the prosecution specified the author of the injury we could have considered the question of convicting such accused under Section 304 IPC. However, as we find that the author of the injury itself has not been established by the prosecution, we find it difficult to pinpoint the accused on whom responsibility for firing the solitary gunshot could be fixed.

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We otherwise find some substance in the argument of defence that the informant has a checkered criminal history and is accused of several offences and the possibility of his enemies committing the incident cannot be entirely ruled out particularly as the name of the assailants were admittedly not disclosed to the police when the incident was reported first on phone.

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In the present case, the accused were the next-door neighbour and their identity was known. The first informant is well versed with the working of police as he is facing numerous cases and therefore the identity of the perpetrator was expected to be disclosed to the police. The fact that their identity was not disclosed indicates that the informant himself was not certain as to who had fired on him. It also gives the impression that the first informant utilised the time to falsely implicate the accused of his own choice. The second circumstance is that the FIR has been lodged after 21 hours even though the distance between the police station and the place of the incident is only four kilometres. The delay in lodging the FIR is thus the other circumstance, to infer that the report may have been made after due deliberation. The inquest proceedings and postmortem both had by then been concluded. It was, therefore, possible

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to specifically implicate the accused person based on facts ascertained during the inquest and the post-mortem.

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Considering the fact that all the three accused-appellants have remained in jail for more than 8 years and the prosecution has not succeeded in establishing the guilt of accused beyond reasonable doubt, we are persuaded to hold that the accused-appellants are entitled to benefit of the doubt in the matter.

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The trial court for convicting accused-appellants has relied upon the various circumstances but the impact of delayed lodging of FIR; medical evidence negativing the plea of indiscriminate firing; forensic report not fully supporting the recovery of firearms; criminal antecedents of the informant etc. have been over looked. The finding by the court below that prosecution has succeded in establishing the guilt of accused beyond reasonable doubt cannot be sustained.

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In such circumstances we cannot endorse the findings returned by the court below about the establishment of guilt of the accusedappellants and the same stands reversed. The appeal consequently succeeds and is allowed. The judgment and order passed by the court below dated 06.08.2018, convicting and sentencing the accusedappellants, is set aside. The accused-appellants are entitled to benefit of the doubt and as they have already undergone incarceration of more than 8 years without remission they are entitled to be released forthwith unless they are wanted in any other case subject to compliance of Section 437 Cr.P.C.

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Order Date :- 13.2.2023

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n.u./Shafique

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Digitally signed by :- SAFIKUR RAHAMAN High Court of Judicature at Allahabad

Harswaroop and 2 Ors. v. State of U.P.

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Harswaroop and 2 Ors. v. State of U.P.

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