Rahul Sharma Alias Manu Sharma And Another vs State Of U.P.
- Court
- Allahabad High Court
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 5704 of 2016
Rahul Sharma Alias Manu
Sharma And Another
…..Appellant(s)
Versus
State of U.P. …..Respondents(s)
Counsel for Petitioners(s) : Kartikeya Saran, Kuldeep Johri,
Radhey Shyam Shukla, Rajiv
Lochan Shukla, Rajrshi Gupta,
Sheshadri Trivedi, Syed Safdar Ali
Kazmi
Counsel for Respondent(s) : Amit Kumar Shukla, G.A., Sunil
Vashisth
Reserved
Court No. - 29
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
1. The present criminal appeal has been filed against the judgment
and order dated 29.10.2016 by which the appellants, Rahul Sharma alias
Manu and Pinku alias Anmol Sharma, were convicted under Section
302/34 IPC and sentenced to imprisonment for life with a fine of
25,000/- each. Rahul Sharma alias Manu was also convicted under
₹
Section 25 of the Arms Act and Pinku alias Anmol Sharma under Section
4/25 of the Arms Act; each was sentenced to three years’ rigorous
imprisonment with a fine of 10,000/-, and in default of payment of fine,
₹
to undergo six months’ additional imprisonment. The Trial Court further
directed each appellant to pay 75,000/- as compensation to Sri
₹
2
CRLA No. 5704 of 2016
Vishwanath Sharma, father of the deceased Prashant Sharma, under
Section 357(3) Cr.P.C.
2. When one Prashant Sharma was killed on 20th August, 1997, an
FIR was lodged on the same day, which had given rise to Case Crime
No. 329 of 1997. The case was registered under Section 302 IPC.
Vishwanath Sharma father of the deceased was the first informant, and
he had stated in the FIR that after his son Prabhat Sharma, the deceased,
had married on 13th May, 1996 one Preeti Sharma, daughter of
Jagdamba Saran Sharma in the court, the family members of Preeti
Sharma were not happy. However, there was some reconciliation
between the families and on 13th July, 1997 the son of the first
informant, Prashant Sharma and Preeti Sharma were formally married.
Despite this, the father and the elder brother of Preeti Sharma, namely
Rahul Sharma @ Manu, were, in their heart of hearts, not happy. The
elder brother, however, at times used to visit the house of the informant.
3. On 20th August, 1997, at around 2:00 p.m., Rahul Sharma, the
elder brother of Preeti, Rahul’s cousin, Ram Naresh Sharma, son of
Rahul’s Tau, Sri Bambam Sharma, along with a friend, Pinku, came to
the house of the first informant. There, they had food and remained at
the house till 2:30 p.m. After that, Ram Naresh Sharma and Pinku left
the house of the first informant. Thereafter, Rahul Sharma requested
Prashant Sharma to drop him at Ghanta Ghar. Prashant Sharma acceded
to the request and he proceeded towards the Ghanta Ghar. At that very
moment, the other son of the first informant, Prabhakar Sharma, and the
3
CRLA No. 5704 of 2016
first informant, Vishwanath Sharma, went out of the house to purchase
some household goods.
4. When they reached the Aina Wali Masjid, they found, at the
crossing, Ram Naresh Sharma and Pinku standing there. The first
informant asked Ram Naresh Sharma and Pinku as to why they were
standing over there then they told the first informant that they were
waiting for Rahul and at that very moment, at around 2:35 p.m., Rahul
and Prashant came on a scooter from the road which came straight from
the house of the first informant. Prashant was driving the scooter and
suddenly Rahul, who was sitting behind him, took out his country-made
pistol and, saying that he would teach him a lesson for having married
his sister, shot at Prashant from behind at the crossing itself. Prashant fell
down along with his scooter and Ram Naresh, who was standing nearby,
also shot at him. Pinku, the friend, took out his knife and stabbed
Prashant in the chest.
5. When the first informant tried to apprehend the accused, they sat
on that very scooter on which the deceased had come and went towards
the southern direction. Upon a hue and cry being raised, quite a few
people of the area gathered there and they took Prashant to the hospital,
where he died. Thereafter, the first informant came to the police station
to get the FIR lodged.
6. The police got into action and on 25th August, 1997 recovered two
country-made pistols of 3.15 bore along with three cartridges of 3.15
bore. They also recovered a knife. Upon the recovery of these articles on
4
CRLA No. 5704 of 2016
25th August, 1997, three FIRs under the Arms Act were lodged, giving
rise to Case Crime No. 336 of 1997, under Section 25 of the Arms Act;
Case Crime No. 337 of 1997, under Section 25 of the Arms Act; and
Case Crime No. 338 of 1997, under Section 4/25 of the Arms Act. These
articles were recovered on the pointing out of the arrested accused, who
were also arrested on 25th August, 1997 itself.
7. On the date of the incident, from the place where the dead body
was lying, bloodstained soil and plain soil were collected and a memo
was prepared as Exhibit Ka-7. On 20th August, 1997 itself, a bullet
having blood on it was recovered and the recovery memo of it was
prepared as Exhibit Ka-8. Thereafter, a panchayatnama was conducted
on 20th August, 1997 itself. It commenced at 5:00 p.m. and was
concluded at around 6:00 p.m. The person who had initially given
information at the police station regarding the discovery of the dead
body was one Munna Lal, Sweeper. The witnesses of the panchayatnama
were Rakesh Sharma, Sukdev Mishra, Ashish Tripathi, Pradeep Singh
and Navin Shukla.
8. When the postmortem was conducted, the cause of death was said
to be coma as a result of ante-mortem firearm injuries. There were two
entry wounds and one exit wound. The exit wound was the one which
tallied with entry wound No. 2, and the fourth wound was a stab wound.
9. After the police had submitted its report, the court framed charges.
The Sessions Court, on 7th August, 2000, framed charges vis-à-vis
Rahul Sharma, Ram Naresh Sharma and Pinku @ Anmol Sharma under
5
CRLA No. 5704 of 2016
Section 302 read with Section 34 IPC and also under Section 25 of the
Arms Act. The charge under Section 25 of the Arms Act was vis-à-vis
Ram Naresh Sharma and Rahul Sharma, while vis-à-vis Anmol Sharma,
for the recovery of knife, charge was framed under Section 4/25 of the
Arms Act.
10. From the side of the prosecution, as many as seven witnesses were
examined.
11. PW-1 Vishwanath Sharma was the first informant and had stated
that the deceased was his younger son and that he had two more sons,
namely, Pradeep Sharma and Prabhakar Sharma. The deceased Prashant
Sharma and Preeti Sharma had a court marriage. Preeti Sharma was the
daughter of Jagdamba Sharan Sharma. He had stated that he very much
knew the accused Rahul Sharma @ Manu Sharma, Ram Naresh Sharma
and Anmol Sharma @ Pinku. Preeti Sharma was the elder daughter of
Jagdamba Sharma and the family members of Preeti Sharma were not
happy with the marriage. Prashant Sharma never used to go to his in-
laws’ place after the marriage. Rahul Sharma, the brother of the wife of
the deceased, at times, used to come and meet his son Prashant Sharma.
Ram Naresh Sharma and Anmol Sharma also used to visit his house.
12. After the marriage, the couple had decided to live separately and
settle down, and for this purpose the son had left the house of the
informant in July, 1997. About the marriage, the couple had informed the
family members of Preeti Sharma on telephone. When the families of
both sides were informed, they had eventually got them married formally
6
CRLA No. 5704 of 2016
on 13th July, 1997 and thereafter the couple had started living in the
house of the first informant.
13. Thereafter, in the court, PW-1 testified about the manner in which
the incident had taken place. In the hospital itself, he had stated that he
had scribed the FIR and had lodged the same. He had stated that he was
the person who had taken the Investigating Officer to show the site. In
the cross-examination, he had stated that he had remained at the police
station till 5:00 p.m. and thereafter he had gone to his house. Upon being
questioned as to when he had gone to the place of postmortem, he had
stated that after the Daroga had left the police station, he had gone to the
District Hospital and then he had gone to the postmortem house. The
panchayatnama was not filled in his presence. At the place of incident,
he had not picked up the dead body and had gone to the hospital on a
separate rickshaw. He had then told as to where the deceased used to
work. He had also told about his occupation and had said that since he
was a teacher, he had to come to his house after the teaching hours. The
place of incident was around 150 steps away from his house. On the
fateful day, there were two shops at the place of incident and both the
shops were closed, as they normally used to remain closed in the
afternoon. The incident as per him had occurred at 1:00 p.m. After the
accused had run away, his son had come to the place of incident and had
taken him to the hospital, which was one and a half kilometres away.
Upon a question being put as to whether Rahul had come to his place
earlier, he had stated that one day prior to the date of incident he had
come to his place. Prior to the date of incident, Ram Naresh and Anmol
7
CRLA No. 5704 of 2016
Sharma had never come to his house. He had stated that the copy of the
FIR was received by him at around 4:00 to 4:30 p.m. in the evening.
Upon a specific question being asked as to whether he had earlier lodged
an FIR in which he had stated that the three accused had fired upon the
deceased and thereafter had got another FIR lodged after the
postmortem, then he had replied in the negative. He had also stated that
it was wrong to say that Exhibit Ka-1 was scribed one day after the
incident had taken place. He denied the suggestion that he was not there
at the place of incident.
14. PW-2 was Prabhakar Sharma, who allegedly had gone with PW-1
for doing the shopping for the household. He had also stated as to how
his brother had gone along with the accused persons. In the cross-
examination, he had told as to who had reached the place of incident and
how he had gone to the hospital. He denied the suggestion that the
incident had not taken place in his presence.
15. PW-3 was Dr. Anil Sood and he had told about the injuries which
were found on the dead body, and they are being reproduced here as
under.:-
“ (1) 0.5cm.X0.4cm.X
नं० गोलीकेघुसनेकाएकघाव क्रेनियलकैविटीजो
कि आक्सीपिटप्राटूब्रेन्सपरथा।किनारेअन्दरकीओरमुडेहुयेथे।कालिमाव
गूदनउपस्थि तथी।
(2) 1.5cm.X1cm.X
न० गोलीकेघुसनेकाएकघाव छातीतकगहराजोकि
छातीकेदाहिनीतरफदाहिनीक्लेवीकलकेअन्दरूनीहिस्सेसेजरानीचेथा।
कालिमावगूदनपायीगयी।किनारेअन्दरकीओरमुड़ेहुयेथे।
8
CRLA No. 5704 of 2016
(3) 2cm.X1.5cm.X
न० गोलीकेबाहरनिकलनेकाघाव आरपारजोकि चोट
(2) Communicate ( )
नं० से कम्यूनीकेट कररहाथातथाछातीकेबायीवबाहरी
12cm.
ओरबगलसे नीचेथा।किनारेबाहरकीओरमुड़ेहुयेथे।
(4) 3cm.X1.5cm.X
न० स्टैववूनड ऐवडामनलकैविटि तकगहराजोकि
Epigastrium (2)
परथा।किनारेसाफकटेहुयेथे।जिगरकटाहुआथा।चोटनं०
(3) direction ”
से का नीचेकीओरतिरछावदाहिनीसेबायीतरफथा।
With regard to injury No. 4, he had stated that it was a stab wound. He
had also given his opinion that the injury had been caused from a close
distance as there was blackening and tattooing.
16. PW-4 was constable Sumer Chand of police station – Rauja,
District Saharanpur and he had testified that he was posted as constable
clerk on the relevant date and he had received the Tehrir exhibited as
exhibit ka-1 and on the basis of which he had prepared the chik which
was in his hand writing and that he had signed over it and was exhibited
as Exhibit Ka-3. The same was entered in the G.D. as G.D. No. 30 at
3:45 p.m. He had stated that the special report which was exhibited as
Exhibit Ka-4 was prepared by Ram Bahadur Awasthi and was entered as
G.D. No. 42 at 21:05 p.m. He did not remember who had prepared the
G.D. Upon a question being put to him in cross-examination as to
whether there was overwriting over G.D. No. 30 and that earlier it was
G.D. No. 15, he had denied the said fact and had stated that there was no
such overwriting over No. 15. He, however, admitted that G.D. No. 30
had an overwriting, but he denied the fact that 15 had been changed to
30. He only had stated that the overwriting was done because the digit
30 itself had not been written properly. Thereafter, he had stated that it
was correct to say that the numbers 26, 27, 28 and 29 also had over
9
CRLA No. 5704 of 2016
writings. He had categorically stated that the special report was prepared
by Ram Bahadur Awasthi, who was the Head Constable at that point of
time. He had informed the Court that, at the relevant time, all those
police officials who had their duties at the police station had to be
present and had to be sitting at the police station and, on that particular
day, there were six Constable Clerks and two Head Moharrirs. In the
Court, on 24.09.2004, the sealed envelope 23-Ka was opened and from it
a letter of the District Magistrate, Shahjahanpur, dated 07.12.2001 was
found, along with two copies of the special report of Case Crime No.
329 of 1997. He had explained that after a report was lodged, six copies
of the special report were prepared and, out of those six copies, one copy
was sent to the office of the District Magistrate. The special report which
had been sent to the District Magistrate and which came out of the
envelope had the signature of Ram Bahadur, Head Moharrir. The special
report was numbered as Exhibit Kha-1. He denied the suggestion that the
first FIR had been destroyed and thereafter a second FIR was got
prepared and that the chik was prepared on the basis of the second FIR.
17. PW-5 was,S.I. Sri Sanjeev Lochan Tyagi. He testified before the
Court that on 20.08.1997 he was posted as Senior Sub Inspector at the
relevant police station at the relevant time. He stated that on that date a
written report was received at the police station at around 2:45 p.m.
stating that Rahul Sharma and Ram Naresh had shot at the deceased and
that Pinku @ Anmol Sharma had stabbed him. The incident had taken
place at the Aina Wali Masjid crossing. The chik was entered as G.D.
No. 30 at 3:45 p.m. Thereafter, the police personnel were sent for
10
CRLA No. 5704 of 2016
searching out for the accused persons. The Investigating Officer, along
with other constables Subhash Chandra and Chandra Prakash, reached
the place of incident and, on the pointing out of PW-1, the site plan was
prepared. The relevant portion of the examination-in-chief of the
Investigating Officer is being reproduced hereunder.
“ C/ C/ (sic)
मैंस्वयं सुभाषचंद्रव चंद्रप्रकाशके घटनास्थलपरआया।वादी
मुकदमामेरेसाथथे।वादीकीनिशानदेहीपरमेरेद्वाराघटनास्थलकानिरीक्षण
,
कियागयातथाघटनास्थलकामानचित्रबनायागया जो बलिहाजमौका सहीहै।
”
खसरादर्जहै।नक्शानजरीमेरेलेखवहस्ताक्षरमेंहै।
18. He thereafter stated the manner in which he had tried to arrest the
accused persons. He had also facilitated the recording of the statement of
Preeti Sharma under Section 161 Cr.P.C. on 12.09.1997. PW-5, in his
cross-examination, had further stated that in the site plan only the places
from where the shooting was done had been shown. The place from
where the accused had stabbed the deceased was not shown. The
relevant portion thereof is being reproduced hereunder.
“ Ex -6 (sic)
नक्शानजरी क वहस्थाननहीदिखायागयाहैजहाँपर बुलटमिला
B
था।पंचायतनामाअस्पतालमेंभरागयाहैनक्शानजरीकेइन्डेक्समें स्थानतो
वहजगहदर्शायीगयीहैजहाँसेमृतककोगोलीमाराजानाबतायागयाहैमृतकपर
”
चाकूकावारकिसस्थानसेकियागयाहैनक्शामेंनहीलिखाहै।
19. He had categorically stated that in the Panchayatnama it was
stated that the deceased had died owing to bullet injuries.
20. PW-6 was C.O. Vikram Singh Rana. He was a member of the team
which had arrested the accused persons. He was also the police official
in whose presence the alleged recovery of the firearms and knives was
made.
11
CRLA No. 5704 of 2016
21. P.W. 7, Sub Inspector, Munna Khan was the officer who had
prepared the chik of the Arms Act.
22. C.W.-1 Uday Pratap Singh, the Superintendent of Police, Dr. B.R.
Ambedkar, U.P. Police Academy, Moradabad was a court witness. He
had stated that in October 1997, he had been transferred from Fatehpur
to Shahjahanpur, and at that point of time, he had stated that there was a
complaint made by Pinku alias Anmol Sharma with regard to the FIR
being got changed by the father of the deceased, Vishnath Sharma, with
the help of Head Constable Ram Bahadur Awasthi. He had stated that the
complaint was that in the original FIR there was no injury of knife and
that it was stated in the original FIR that Pinku had also fired. In the
complaint, it was stated that there was thus a difference in the special
report and FIR which was there on the record of the police. On this
basis, he had stated that Pinku alias Anmol was also released on bail and
for this reason, it was stated that Ram Bahadur Awasthi, Head Constable,
Constable Ram Krishna Pal and Raj Pal Singh were suspended on 14th
October 1997.
23. This incident, or complaint, was investigated into by Shri Ajay
Kumar Mishra, and he had stated that there was a difference in the FIR
which was there on the record of the police and the one which was sent
by way of special report, in which it was found that there was
interpolation and the sentence, “
पिंकूनेचाकूनिकालकरझटपटप्रशांतकीछाती
,” was removed and it was written, “
परवारकिया पिंकूनेभीअपनेतमंचे
”
निकालकरप्रशांतपरफायरकिए।
12
CRLA No. 5704 of 2016
24. The punishment order was on record, he had stated. He had then
stated, upon a question being put as to which FIR was actually lodged by
Vishnath Sharma, that Paper 4 Ka/2, the original tahreer dated 20th
August 1997, was the actual tahrir. In the cross-examination further done
by the accused, he had stated that first the chik was prepared and
thereafter the special report was sent. In the further cross-examination,
he had stated how he had punished the erring officials.
25. CW-2 was Priti Sharma and she had stated that she had got her
statement recorded under Section 164 CrPC and had also proved the
same in the Court. However, she had mentioned that on the relevant date,
she was not in her proper senses and was not confident as to what she
had stated therein was correct. However, upon reading the statement, she
had stated that the statements were correct. She had stated that on the
relevant date neither Rahul Sharma had come nor had she given food to
anyone as was stated there in the FIR. She had, in fact, testified in the
Court that her in-laws were maltreating her. In her cross-examination
further, she had stated that all that had stated by the other prosecution
witnesses against the accused was wrong.
26. Thereafter, the statement under Section 313 CrPC was recorded,
and the accused Rahul Sharma and Anmol Sharma were found guilty
under Section 302/34 IPC, and Rahul Sharma was also found guilty
under Section 25 of the Arms Act. Similarly, Anmol Sharma was also
found guilty under Section 4/25 Arms Act. Ram Naresh Sharma had died
during the trial, and thus the trial had abated against him.
13
CRLA No. 5704 of 2016
27. The Trial Court, vide its judgment and order dated 29.10.2016,
convicted the appellants, Rahul Sharma alias Manu and Pinku alias
Anmol Sharma, under Section 302/34 IPC and sentenced them to
imprisonment for life with a fine of 25,000/- each. Rahul Sharma alias
₹
Manu was also convicted under Section 25 of the Arms Act, while Pinku
alias Anmol Sharma was convicted under Section 4/25 of the Arms Act,
and for that each of them was sentenced to three years’ rigorous
imprisonment with a fine of 10,000/-. In default of payment of the fine,
₹
each appellant was directed to undergo six months’ additional
imprisonment. The Trial Court further directed each appellant to pay
75,000/- as compensation to Sri Vishwanath Sharma, father of the
₹
deceased, Prashant Sharma, under Section 357(3) Cr.P.C.
28. Aggrieved by the aforesaid judgment and order, the appellants
have preferred the instant Criminal Appeal.
29. Learned counsel for the appellants has made the following
submissions:-
(i). The Tehrir (written report) which is there on record and has
been exhibited as exhibit ka-1 and the chik thereafter which was
prepared and exhibited as exhibit ka-3 were the FIRs which were
later on interpolated / changed. The chik FIR which was exhibited
as exhibit Ka-3 whereas another FIR in respect of the same
incident had been exhibited as exhibit kha -1A and in the cross-
examination P.W.-4 at pages 60-61 of the paper book had even
proven that FIR. Learned counsel for the appellant submits that if
14
CRLA No. 5704 of 2016
the cover of the chik FIR of Exhibit Kha -1A is perused, then it
appeared that the tehrir initially showed that there were three
accused persons and that they all had shot the deceased by
country-made pistols. There was no mention of any stab wound
caused by any knife. The chik FIR, which was brought from the
office of the District Magistrate, was numbered as K-1A, while the
information prepared by the doctor who declared Prashant dead,
and which information was sent along with the other documents
and body to the doctor conducting post-mortem, was exhibited as
Exhibit K-1. The special report, which was sent to the District
Magistrate and was brought to the court in the envelope No. 23
Ka, when was opened in the court room, had two documents. One
was the special report and the second was the chik of the FIR. The
chik FIR was proved by PW-4, to be in the handwriting of Ram
Bahadur Rawat, Head Moharrer, and since the original chik had
been sent along with the special report to the higher officials,
which contained the averment that three gunshots were there, it
clearly established that the Exhibit Ka-1 and Exhibit Ka-3 were
the documents which were the changed documents. Learned
counsel for the appellant, therefore, states that, in fact, PW1 and
PW2 were not eyewitnesses and even they were not at the place of
incident. They had judged the three injuries, which they had seen
in the hospital, and had concluded that they were caused by
gunshots. However, when the post-mortem was conducted and it
transpired that the third injury in the chest was not that of a
15
CRLA No. 5704 of 2016
gunshot but was of a stab wound caused by a knife, then the entire
exercise was undertaken of getting the FIR changed.
Learned counsel further submitted that the C.W.1 had also,
upon an inquiry being initiated, stated that action had also been
taken against certain erring police officials. Learned counsel for
the appellant submits that even though action was taken stating
that the special report, was a changed one the fact was otherwise.
In fact the special report was on the basis of the original FIR and
the chik in the Police Station was on the basis of the second FIR
which had subsequently mentioned about the stab wound. Learned
counsel for the appellant submits that definitely there was
tampering done and interpolations were admitted by the police
officials. This definitely would create a doubt in the mind of the
Court. Learned counsel for the appellant submitted that what had
gone with the special report could not have been changed, but
what was there with the police could have been changed, and this
was even more evident because the GD entry starting from GD
No. 27 to GD No. 30, all had overwriting and interpolations.
Learned counsel for the appellant further submitted that the
document Ka-01 was a document sent by the doctor of the hospital
to the doctor who was conducting the post-mortem, and he had
also in his assessment stated that there were gunshot wounds.
Learned counsel for the appellant submits that since PW1
and PW-2 actually were not there at the spot and since a bare look
16
CRLA No. 5704 of 2016
at the injuries showed that the injuries were result of gunshot
injuries, the FIR, which was initially lodged, had mentioned that
there was three gunshot injuries.
(ii) Learned counsel for the appellant further submitted that if
the panchayatnama is seen, then on it there was no Case Crime
number mentioned. Also, a bare perusal of the post-mortem report
showed that there was no mention of any Case Crime Number on
the document which had accompanied the panchayatnama.
Learned counsel for the appellant, therefore, submits that
since manipulation was being done, the Case Crime Number was
not mentioned in the panchayatnama and also in the post-mortem,
and also the post-mortem did not contain the Case Crime Number.
(iii) There were further documentary evidence and circumstances
to show that P.W.-1 and P.W.-2 were not eyewitnesses of the
incident:
(a) Special Report Exhibit Kha-1A:—This report discloses
bullet injuries and stab wounds caused by knife.
(b) Exhibit Kha-1:—This was a letter addressed to the SHO,
Kotwali, by Doctor Yogesh Kaul, who had declared the
deceased Prashant dead and it had stated that there were
only bullet injuries, “ ”
शरीरपरगोलीकेघावहैं।
(c) The site plan as was prepared by the Investigating
Officer, PW5, on the pointing out of PW1 Vishwanath
Sharma, did not show or mention any place from where any
17
CRLA No. 5704 of 2016
stab wound could have been caused. Only the position of
such assailant had been shown who had shot the deceased
by their guns.
(d) The panchayatnama also had given opinions of the
panchayat witnesses and there was only mention of gunshot
injuries. Ultimately, learned counsel for the appellant stated
that it could safely be stated that PW1 and PW2 had not
been at the place of incident.
(iv) The scooter which was said to have been driven by the
deceased and thereafter was allegedly taken away by the accused
was never recovered and no investigation vis-à-vis the scooter was
done.
(v) If the deceased had fallen down from the scooter upon firing
been done, then definitely there would have been injuries and
there was no mention of any injury suggesting a fall from a
scooter.
(vi) P.W.1 and P.W.2, who were alleged to be eyewitnesses, were
the only eyewitnesses of an incident which had occurred in broad
daylight. No independent eyewitnesses ever came to the Court.
(vii) The pistol which was recovered from Rahul Sharma on
25.08.1997 was sent for FSL examination with the bullet
recovered, but there was no record as to what happened with the
FSL report.
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(viii) There is no motive given out, and in fact the relationship
between the families had not been as sour as had been reported in
the FIR and after the court marriage, there was also a marriage
which had been traditionally solemnized.
30. The learned Additional Government Advocate, Sri Amit Sinha,
however, has opposed the appeal and has submitted that the Tehrir,
Exhibit Ka-1, which was there on record, mentioned about the fact, vis-
a-vis, the stabbing, and therefore the FIR, which was there on record,
was made the basis of the investigation and no fault can be found with it.
He further submitted that the special report, in fact, was changed and
therefore no fault could be found with the FIR, Exhibit Ka-1, which was
there on record. He further submitted that the interpolation / over
writings on the GD entries numbers 27 to 30, were also such over
writings which could not be given much importance, as over writings
were natural things to happen when digits were either wrongly written
down or there were some mistakes in the writings of those digits. He
further submitted that the non-mentioning of the case crime number on
the panchayatnama and also on the postmortem, again were of no
importance. He submitted that Exhibit Kha 1A was possibly the changed
FIR and not the original FIR and only to create a confusion it was
inserted along with the special report. The learned AGA further
submitted that the investigating officer had prepared the map on the
pointing of P.W.1 Vishwanath Sharma and since Vishwanath Sharma
probably was not in a proper frame of mind, he had got the site plan
prepared without pointing out as to from where the assailant who had
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stabbed the deceased was standing. With regard to the panchayatnama,
not disclosing any fact about stabbing, the learned AGA submitted that a
panchayatnama was only opinions of the persons preparing the
panchayatnama. He further submitted that if the scooter was not found
then that also did not turn things much. With regard to the fact that there
was no independent eyewitness, learned AGA stated that in cases where
murders are involved, normally independent witnesses refrain from
appearing in the court. Learned AGA further submitted that there was no
answer to there being no FSL report on the record.
31. Sri Sunil Vashisht, who appeared for the informant, endorsed the
argument of the learned AGA.
32. Having heard Sri Dilip Kumar, Senior Advocate assisted by Sri
Yogesh Chandra Dubey and Sri Sudhanshu Kumar, learned counsel for
the appellants, Sri Sunil Vashisth learned counsel for the informant and
learned AGA Sri Amit Sinha, the Court finds that definitely there was
some tampering done with the original FIR. The special report which
was sent after the lodging of the FIR was produced by the C.W.1 Uday
Pratap Singh. He was a person who had investigated into the complaint
made by Anmol Sharma that the FIR had been got changed by the father
of the deceased. He had admitted that the inquiry had revealed that FIR
in the special report was different from the FIR in the record of the
police. But we find that the inquiry done by the police official had
mentioned that in fact there was interpolation in the special report and
not in the records of the police. We somehow are unable to subscribe to
the view of the inquiry officer. Definitely there was some tampering
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done, and if any tampering was possible, it was there with the FIR which
was lodged in the police station, as the FIR accompanying the special
report had reached the Office of the District Magistrate and there the
police had no access and definitely the informants were having no access
in the office of the District Magistrate. Also we find that before the FIR
was lodged, there was a document Exhibit Kha-1, which was sent by the
doctor who had declared Prashant dead to the doctor who was to conduct
postmortem, and in this report the doctor had stated that there were
gunshot injuries only. Since the injuries, including the one which was a
stab wound, were such which appeared to be that of gunshot injuries,
and since the doctor had also mentioned that there were only gunshot
injuries, the first informant who had not seen the incident, had reiterated
in the FIR, that there were only gunshot injuries. We are of the view that
had the first informant been there on the spot, then he would have seen
the instruments with which the stab wound had been inflicted, and in the
FIR he would have definitely mentioned that there was a stabbing done.
Also, we are of the view that even if the doctor who had attended the
injured / deceased had written that there were firearm injuries, the first
informant would have categorically got a statement made in the FIR that
there was a stab wound injury, and he would have stated that as to who
was responsible for the stab wound injury. Also, we are of the view that
the first informant would have, in some way or the other, got the
witnesses of the panchayatnama to write that there were also stab wound
injury. Since there was no mention of the stab wound injury, we are
convinced that P.W. -1 and P.W.- 2 were not there at the site, and they
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had only mentioned about the gunshot injuries on the basis of the
appearances of the injuries, and also on the basis of the report which was
sent by the doctor who had sent the Exhibit Kha-1. Also, we find that the
GD entry No. 27 to GD entry No. 30 had overwriting. This was in all
probability because of the fact that certain documents were being
managed and therefore interpolations had to be done. Still further, we
find that in the panchayatnama, as also in the postmortem, there was no
mention of any case crime number. This went to definitely show that till
such time as the panchayatnama and the postmortem were being
conducted, the FIR was not in existence.
33. From the record, we find that the prosecution had proved the chik
FIR, which was exhibited as Exhibit Ka-03, while another chik FIR of
the same incident had been proved and exhibited as Exhibit Kha-1A.
Definitely, on perusal of the chik FIR proved as Exhibit Kha-1A, showed
that the tehrir/ information given by the PW-1 had stated that there were
three accused persons and they had caused gunshot injuries to the
deceased Prashant. The FIR, Exhibit Kha-1A, had no mention about the
stab wound. We find that the Exhibit FIR Kha-1A was found attached to
the special report which was sent vide GD No. 42. The FIR along with
special report was summoned by the trial court in an envelope which had
a paper no. 23 Ka. In the envelope two pieces of papers were found,
namely, a special report and another the chik FIR. This chik FIR was
proved by PW4, namely Constable Sumer Chandra and he had proved
that it was in the handwriting of Ram Bahadur, head moharrir. Thus, the
Court is of the view that there can be absolutely no doubt about the facts
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that P.W.1 and P.W.-2 were not eyewitnesses of the alleged incident and
they were definitely not having the knowledge of the fact that the
deceased Prashant had also a stab injury. Also we find that when the chik
FIR was being manipulated then in the general diary there were
manipulations so as to make GD 15 read as GD 30, and since one injury
was being manipulated, four others had to be manipulated and there
were over writings in GD Nos. 26, 27, 28 and 29. It was a simple matter
of good fortune that one original FIR had gone along with the special
report to the higher officials. The departmental inquiry, has in strange
manner, held that it was the FIR which had accompanied the special
report which had been manipulated. In the matter of Nallabothu Ramulu
alias Seetharamaiah and others vs. State of Andhra Pradesh with
Chalmala Veeraiah vs. State of Andhra Pradesh, 2014 Cri. L. J. 2487
(Supreme Court) where alongwith other infirmities circumstances
regarding the F.I.R. were found suspicious, the Hon’ble Apex Court held
that the whole prosecution story was doubtful.
34. Be that as it may, this Court definitely finds that there was
manipulation taking place, and when that was the case, then definitely a
doubts got created in the minds of the Court, and therefore, we are of the
view that the presence of P.W.1 and P.W.2, becomes doubtful. Also, our
view with regard to the absence of P.W.1 and P.W. 2 becomes
strengthened by the fact that when the site plan was being prepared by
the investigating officer, the P.W.5, he had stated that the map had been
prepared on the pointing out of the P.W.1, but in the site plan there were
only indication as to how and from where the gunshots were fired. There
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was no mention of any stab wound being caused to the deceased. We
also find that the FIR version was that Prashant, the deceased, was
driving a scooter and the appellant, Rahul Sharma, was riding as a
pillion rider and had shot Prashant from the back, but the scooter was
never recovered and no explanation has been given for the non-recovery
of the scooter. Also, we are of the view that when Prashant Sharma was
fired at and he must have died, then the fall from the scooter would have
given injuries on his body indicating that he had fallen from scooter but
there were no such injuries. It all thus definitely goes to show that PW1
and PW2 were not present at the place of incident at all. In fact, an
incident which had taken place in the broad daylight had not attracted
any independent eyewitnesses. We also find that the investigation had
been done in a most unsatisfactory manner, as the forensic science
laboratory report was never produced before the court with regard to the
matching of the fire arm with the bullet found. Also, we find that the
motive on the part of the appellant was not proved, as apparently, after
the marriage sometime had passed. The wife Preeti and the husband had
accepted their matrimonial relationship. Not only that the family had
also accepted the relationship.
35. Thus, in view of what we have stated above, we are of the view
that the entire case as was brought forth by the prosecution was a
doubtful one, and therefore we have no other option but to hold that the
appellants were innocent and thus we hold that the appellant no. 1, Rahul
Sharma @ Monu Sharma and the appellant no. 2 Anmol Sharma @
Pinku Sharma are innocent.
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36. The criminal appeal is allowed. The judgment and order dated
29.10.2016 passed by the Additional Sessions Judge, Court No. 4,
Shahjahanpur, is set aside. The appellant no. 1 Rahul Sharma @ Manu
Sharma and the appellant no. 2 Anmol Sharma @ Pinku Sharma, if they
are in jail, be released forthwith. Bail bonds and sureties be discharged.
(Jai Krishna Upadhyay,J.)(Siddhartha Varma,J.)
October 16, 2026
PK
Digitally signed by :-
PRAVEEN KUMAR
High Court of Judicature at Allahabad