Hon'ble Rajeev Singh,J.
(Per: Rajeev Singh,J.)
1. Both the appeals are being decided by way of a common order.
2. Both the appeals are filed against the judgment and order dated 16.12.2010 passed by Additional Sessions Judge/F.T.C., Court No.9, Pratapgarh in S.T. No.179 of 2009 (The State vs. Manoj Kumar Soni @ Manu Verma and others) arising out of Case Crime No.09 of 2008, under Sections 394, 411, 302/34 and 307/34 I.P.C., Police Station Hathigawan, District Pratapgarh, thereby, convicting and sentencing the appellants under Section 394/34 I.P.C. for 7 years' R.I. and a fine of Rs.2,000/-, in default of payment of fine, 3 months of further imprisonment; under Section 411 I.P.C. for 2 years' R.I.; under Section 307/34 I.P.C. for 7 years's R.I. and a fine of Rs.3,000/-, in default of payment of fine, 3 months of further imprisonment; and Section 302/34 I.P.C. for life imprisonment and a fine of Rs.5,000/-, in default of payment of fine, 6 months of further imprisonment.
3. In compliance of the order dated 04.08.2021, on 05.08.2021, the accused/appellant Manoj Kumar Soni @ Manu Verma appeared through video conferencing from Central Jail, Naini, Prayagraj, who was identified by Shri Kunj Bihari Singh, Deputy Jailor, Central Jail, Naini, Prayagraj, who was also present along with him. On the said date, the accused/appellant Manoj Kumar Soni @ Manu Verma was asked to engage a counsel of his own choice or Shri Rajendra Prasad Mishra, Advocate as Amicus Curiae, who was appearing in the connected Criminal Appeal No.276 of 2011 for the appellant Umesh Kumar Mishra, will argue the appeal on his behalf. As the criminal appeal is expedited by the Hon'ble Supreme Court, therefore, this Court has no option except to hear the instant appeal finally and vide order dated 05.08.2021, time was also granted to appellant Manoj Kumar Soni @ Manu Verma for engaging the counsel of his own choice by the next date of listing i.e. 11.08.2021, failing which, Shri Rajendra Prasad Mishra, Advocate had been appointed as Amicus Curiae vide order dated 28.07.2021 will argue the matter on his behalf. On 11.08.2021, Senior Superintendent, Central Jail, Naini, Prayagraj had reported that the order dated 05.08.2021 was communicated to the appellant Manoj Kumar Soni @ Manu Verma, therefore, the appeal was proceeded.
4. Heard Mr. Rajendra Prasad Mishra, Advocate as learned Amicus Curiae for the appellant Manoj Kumar Soni @ Manu Verma (Criminal Appeal No. 583 of 2012) and learned counsel for the appellant Umesh Kumar Mishra (Criminal Appeal No.276 of 2011), and Mrs. Smiti Sahay, learned A.G.A. for the State, and perused the record.
5. As per the prosecution case, on 05.02.2008, Rajesh Kumar and Vikas Kumar Soni, running a jewelry business, went to Allahabad in relation to their business and after completing their work, they were coming back with the purchased ornaments of gold and silver on one motorcycle to Kunda. At about 09:30 p.m. when they reached Yadav Dhaba near Allahabad-Unnao road, Village Mahrupur, then Manoj @ Manu Soni S/o Ravi Soni R/o Manzhanpur (Netanagar), P.S. Manzhanpur, District Kaushambi (who was residing near Main Chauraha Kunda four years ago) along with one unknown person, coming on another motorcycle, overtook their bike and asked them for petrol saying that petrol in his motorcycle is finished, as Manoj was known to them, therefore, they stopped their bike for giving petrol, then Manoj @ Manu shot Rajesh Kumar and the other accused shot Vikas Kumar with the intention to kill them, then both of them fell down. Thereafter, both the accused persons looted their ornaments amounting of Rs.60,000/- and Mobile of Rajesh Kumar, and fled away. Thereafter, both the injured were admitted to the hospital. Information of the aforesaid incident was given in writing by P.W.2 Rambabu (uncle of P.W.1 Vikas Kumar Soni (injured)) to the police station on 07.02.2008 and the F.I.R. was lodged on the same day (07.02.2008) at 17:30 hours as Case Crime No.9 of 2008, under Section 394 I.P.C., P.S. Hathigawan, District Pratapgarh against the appellant Manoj @ Manu Soni (named in the F.I.R.) and one unknown.
6. After the said incident, both the injured persons were brought to hospital at Kunda, but due to their serious condition, they were referred to Allahabad and were admitted at Jeevan Jyoti Hospital, Allahabad and during the course of investigation, Rajesh Kumar Kesharwani died on 19.02.2008. The appellant Manoj Kumar Soni @ Manu Verma was arrested on 12.02.2008 and the appellant Umesh was arrested on 16.02.2008. On their pointing out, weapon was recovered and during the course of investigation, site plan was prepared by the Investigating Officer as well as the inquest report of the deceased Rajesh Kumar Kesharwani was prepared and thereafter, postmortem of the body was also conducted. The recovered weapon and other articles were also sent for forensic examination to F.S.L.
7. During the course of investigation, statements of Ram Babu Soni, Ram Bahadur, Nanke @ Pushpendra Kumar, Harsihchandra Kesarwani, Shrinath Soni, Vikas Soni (injured), Vinod Kumar Vaish, Sanjay Kumar, Shiv Lal Kesharwani, Gulabchand Kesarwani, Constable Habib Siddiqui, Constable Narsingh Sharan Yadav, Constable Vinod Kumar Kushwaha, Constable Vinod Dubey, Constable Murli Singh, Constable Ashok Kumar Shukla, S.I. Shiromani Bhaskar, S.H.O. Vikas Yadav, P.S. Hathigawan, Investigating Officer were recorded under Section 161 Cr.P.C. and thereafter, Investigating Officer prepared charge sheet against the appellants under Sections 394, 411, 302 I.P.C. and submitted to the court below and after taking cognizance, the case was committed to the court of Sessions and after framing of charges, the prosecution relied on the oral testimony of 10 witnesses i.e. P.W.1 Vikas Soni (injured), P.W.2 Rambabu Soni (informant), P.W.3 Harishchandra, P.W.4 Dr. Shivcharan Lal, P.W.5 Ashok Kumar Shukla, P.W.6 Dr. C.K. Gupta (Emergency Medical Officer of Jeevan Jyoti Hospital, Allahabad), P.W.7 S.I. Ram Ashrey Yadav, P.W.8 S.I. Shiromani Bhaskar, P.W.9 S.I. Shri Nivas Yadav, P.W.10 Dr. Raksha Gupta (Vijay Diagnostic Center, Allahabad).
8. The prosecution also relied on 30 documentary evidences i.e. Ext. Ka- 1 memo of identification of recovery of articles, Ext. Ka-1A G.D. Entry in relation to lodging of the F.I.R., Ext. Ka-2 postmortem report of Rajesh Kumar Kesharwani, Ext. Ka-3 Chick F.I.R., Ext. Ka-4 G.D. Entry in relation to F.I.R., Exts. Ka-5 & 6 injury reports of Vikas and Rajesh Kumar Kesharwani, Ext. Ka-7 death report of Rajesh Kumar Kesharwani, Ext. Ka-8 Photo Naash, Ext. Ka-9 Namoona seal, Ext. Ka-10 Jeevan Jyoti Hospital, Police form No.13, Ext. Ka-12 report of P.S. Kotwali, District Allahabad in relation of letter to C.M.O. for conducting the postmortem of the body of the deceased, Ext. Ka-13 arrest of accused and recovered ornaments and mobile, Ext. Ka-14 site plan, Ext. Ka-15 recovery memo of taking of plain and blood stained mud, Ext. Ka-16 recovery memo of taking two mufflers, Ext. Ka-17 memo of recovery of one blank cartridge, Ext. Ka-18 arrest memo of appellant Manoj Kumar Soni, Ext. Ka-19 arrest memo of appellant Umesh Kumar Soni, Ext. Ka-20 site plan, Ext. Ka-21 memo of recovery of weapon and other articles on the pointing out of the appellant Umesh Kumar Mishra, Ext. Ka-22 site plan in relation to the arrest of the accused, Ext. Ka-23 ballistic experts report of country made pistol of two cartridges of 315 bore, Ext. Ka-24 report of F.S.L. in relation to blood stained mud, Ext. Ka-25 recovery memo in relation to mufflers, spectacles and blood stained mud, Ext. Ka-26 report of F.S.L. in relation to the blood stained mud and ballistic report of country made pistol and other articles, Ext. Ka-26A C.T. Scan report of neck and cervical spine plain of injured Vikas, Ext. Ka-27 CT Scan report of Brain Plain of Vikas, Ext. Ka-28 CT Scan report of neck and cervical spine plain of Rajesh Kumar, Ext. Ka-29 CT Scan report of Brain Plain of Rajesh Kumar, Ext. Ka-30 charge sheet submitted against the accused persons, under Sections 394, 411, 302 I.P.C.
9. After the prosecution evidence, the statement of the appellants under Section 313 Cr.P.C. were recorded and appellants denied the prosecution case and submitted their statements.
10. After hearing the arguments of parties, the judgment and order of conviction dated 16.12.2020 was passed by the trial court and the same is under challenge before this Court by way of the present appeals.
11. Learned counsel for the appellants has submitted that the judgment of trial court is not sustainable on the grounds that:-
A. Only one eye witness namely Vikas Soni (P.W.1) was produced by the prosecution, who is the interested witness, therefore, his statement is not reliable.
B. It is undisputed that the incident was taken place on 05.02.2008 at about 09:30 p.m., but the F.I.R. in question was lodged on 07.02.2008 at 17:30 hours by uncle of Vikas Soni (injured), therefore, prosecution sotry is not reliable.
C. As per the prosecution case, both the persons namely Vikas Soni and Rajesh had received injury on their neck, therefore, it was not possible to speak and narrate the incident.
D. The identification of the alleged recovered ornaments was not done in accordance with law, therefore, the same is not reliable.
E. As per the prosecution case, both the appellants shot fire, but only one weapon was recovered and the recovery of one weapon shown by the police is also not reliable.
F. No identification parade of accused-appellant Umesh Kumar Mishra was conducted as per the law.
11.1 Learned counsel for the appellants has further submitted that P.W.-1 Vikas Soni (injured) has deposed in his cross-examination that after the said incident, injured persons were lying on the place of incident and within 10 minutes, his father Srinath Soni and his friend Sahjade reached on the spot and his uncle (Tau) Rambabu Soni (PW-2) informant do not reached there, thereafter, both the injured were brought to the hospital at Kunda and after treating them, they were sent to Allahabad, and father of Rajesh namely Harish Chand P.W.3 was with them when they were sent to Allahabad. He also stated in his cross-examination that he narrated the story to the informant Rambabu Soni (P.W.2) when he regain the consciousness after 2-3 days from the date of incident. He also submitted that as per the prosecution case deposed by P.W.1 that both the appellants opened fire with their respective pistols and caused injury to P.W.1 as well as to his friend Rajesh Kesharwani, but recovery of one country made pistol of 315 bore is shown, which is not reliable, but this fact was not considered by the court below. He further submitted that as the appellant Umesh Kumar Mishra was not known to the P.W.1 Vikas Soni, but no identification parade was conducted and during the course of trial in court, P.W.1 identified the appellant Umesh Mishra as one of the assailant, therefore, prosecution story is not reliable and court below committed error in considering the evidences deposed by the witnesses.
11.2. Learned counsel for the appellants has further submitted that only P.W.1 Vikas Soni is placed by the prosecution as an eye witness and no any other eye witness was placed by the prosecution before the trial court. As other witnesses namely P.W.2 Ram Babu Soni and P.W.3 Harishchandra were examined as witnesses of the fact, but they were not an eye witnesses, therefore, the prosecution story is not reliable and the learned court below committed error in considering the fact that no any independent eye witness was placed by the prosecution, therefore, the prosecution story is not reliable.
11.3. Learned counsel for the appellants has further submitted that incident was taken place on 05.02.2008 at about 09:30 p.m. and the F.I.R. was lodged by P.W.2 Ram Babu Soni (uncle of P.W.1 Vikas Soni) on 07.02.2008. He further submitted that P.W.2 deposed before the trial court in his examination-in-chief that the injured persons were in serious condition and they were unconscious, and after gaining consciousness, P.W.1 Vikas Soni narrated the incident to him, then the written complaint was given at the police station concerned and later on, the F.I.R. in question was lodged, but he failed to give reply that why the F.I.R. in question was not lodged on the same day and he also stated that Vikas Soni and Rajesh were seriously injured, therefore, they were focusing for their medical treatment. In his deposition, P.W.2 has also stated that on the date of incident at 10:30 p.m., Sahjade had informed him about the incident that his nephew Vikas and Rajesh were shot, then he reached on the spot, but he found that injured were brought to hospital at Kunda and thereafter, he again received phone call of Sahjade that due to serious condition of injured, they were referred to Allahabad. Thereafter, he reached at Jeevan Jyoti Hospital, Allahabad on the same day and he found that Rajesh was in his senses and he was talking, but Vikas Soni (P.W.1) was critical and Rajesh informed him about the incident. He further submitted that though, P.W.2 was informed by Rajest about the incident on the same day, even then, the F.I.R. was not lodged on the same day, therefore, the prosecution story is not reliable.
11.4. Learned counsel for the appellants has submitted that as per the prosecution case, the F.I.R. in question was lodged by P.W.2 (informant) on the narration of P.W.1 Vikas Soni after regaining his consciousness and informed him about the incident. He further submitted that the alleged injury is found on the neck of P.W.1, therefore, it is not possible to speak, and Dr. C.K. Gupta (P.W.6) categorically deposed before the court below in his cross-examination that both the injured persons were not in position to speak. In such circumstances, there is contradiction that the F.I.R. lodged by the P.W.2 on the narration of P.W.1 (injured eye witness). The injuries found on the body of the injured Vikas Soni (P.W.1) and the deceased Rajesh Kesharwani are as under :-
Injuries of P.W.1 Vikas Soni (injured witness)
1. Gunshot wound of entry 2 cm x 2 cm on back of Rt. side of the neck below Hairline. Blackening & tattooing present around the wound.
2. Gunshot wound of exit 3 cm x 2 cm on Rt. side of face. Just anterior to angle of Mandible, Pieces of fracture mandible seen through the wound. No Blackening & tattooing present. Margin Everted.
Injuries of Rajesh Kumar Kesarwani (deceased)
1. Gunshot wound of entry 2 cm x 2 cm on back of Rt. side of the neck. Blackening & tattooing present around the wound. Margin Inverted.
2. Gunshot wound of exit 2 cm x 1 cm part of Rt. side of neck 4 cm below angle of Mandible. Margin Everted. No Blackening & Tattooing present.
11.5. Learned counsel for the appellants has further submitted that the identification of the recovered ornaments was not done in accordance with law. He also submitted that all the recovered articles were taken from the shop of father of appellant Manoj Kumar Soni and planted. He also submitted that recovery of one piece of silver was shown from the appellant Umesh and the identification was also not conducted in accordance with law. He also submitted that during the course of investigation not even a single receipt or evidence in relation to the purchase of ornaments was procured by the Investigating Officer and this fact was also not investigated that whether any article was purchased by the Rajesh Kesharwani and Vikas Soni or not, and even the shop were also not disclosed from which the alleged ornaments were purchased, therefore, the prosecution story is not reliable. He also submitted that alleged recovered ornaments were not weighed and it is admitted by P.W.8 in his deposition before the trial court and only on assumption, weight of ornaments were mentioned about 600 grams in the recovery memo, this shows that all the exercise of recovery was done in the most mechanical manner.
11.6. Learned counsel for the appellants also relied on the following judgments of Hon'ble Supreme Court in support of his submissions :-
A. Sonu @ Sunil vs. State of Madhya Pradesh (2020) SCC OnLine SC 473.
B. Mohanlal Gangaram Gehani vs. State of Maharashtra (1982) 1 SCC 700.
C. Dana Yadav @ Dahu & Others vs. State of Bihar (2002) 7 SCC 295.
11.7. Learned counsel for the appellants has further submitted that as per the prosecution case, it is a case of single fire which is alleged to be fired by each appellants, therefore, conviction u/s 302 I.P.C. may be converted into Section 304 Part II I.P.C. and sentence of the appellants be reduced in the interest of justice.
12. Learned A.G.A. has submitted that there is no illegality in the judgment of learned court below and made following submissions :-
12.1. P.W.1 Vikas Soni is the injured witness and he was examined before the trial court and identified the accused persons and he also deposed that on 05.02.2008, Manoj Soni shot Rajesh Kesarwani and Umesh shot him, as a result, they fell down and the appellants looted the ornaments. P.W.1 also identified the recovered ornaments and submitted that ornaments were purchased from the shop of Chotelal Agarwal and purchase slip was given by him which was with Rajesh Kesarwani who died due to fire arm injury caused by the accused persons. She also submitted that P.W.1 was cross-examined by the counsels of the appellants on 24.09.2009, 31.10.2009, 07.11.2009, 09.02.2010 and 16.02.2010 in detail, who deposed the manner of assault by the appellants with their respective weapons. She also submitted that the injury report of the P.W.1 and Rajesh Kesarwani (deceased) are corroborating with the deposition of P.W.1 Vikas Soni and learned court below has rightly appreciated the evidence of prosecution as well as the statement of appellants under Section 313 Cr.P.C. She also submitted that the statement of witnesses cannot be considered in part and complete statement of the witnesses is to be considered, therefore, there is no illegality in the judgment which is under challenge.
12.2. In reply to the argument of the learned counsel for the appellants that the incident was taken place on 05.02.2008 at about 04:30 p.m., but the F.I.R. was lodged on 07.02.2008 at 17:30 hours, learned A.G.A. submitted that the P.W.1, P.W.2 and P.W.3 have categorically deposed before the trial court that P.W.1 and Rajesh Kesharwani were seriously injured and therefore, there first obligation was to facilitate them proper treatment and they were hoping for their recovery. In such circumstance, delay in lodging the F.I.R. is not fatal to the case of prosecution. She also submitted that P.W.1 is the injured witness and he categorically supported the prosecution version and narrated the manner of assault by the appellants, therefore, trial court has rightly considered the aforesaid fact, and on this point, the learned court below has rightly appreciated the law laid down by the Supreme Court in the case of Rabindra Mahto and Another vs. State of Jharkhand reported in (2006) 10 SCC 432 and submitted that considering the critical condition of the injured persons, delay in lodging the F.I.R. is not fatal to the case of prosecution.
12.3. P.W.1 as well as P.W.2 were examined before the trial court and they categorically deposed that when P.W.1 regained his consciousness after two days from the date of incident, then he narrated the incident to P.W.2 and thereafter, the F.I.R. in question was lodged by P.W.2 Ram Babu Soni and he was also cross-examined by the counsels for the appellants but nothing was gained, and trial court came to the conclusion that due to critical condition of the injured persons, priority was given for their treatment and after their recovery, the F.I.R. in question was lodged and this fact was rightly dealt by the learned court below.
12.4. In reply to the submission of learned counsel for the appellants that the injured persons were not in position to speak as seat as deposed by P.W.6. Learned A.G.A. submitted that in his cross-examination, P.W.6 deposed before the trial court that the injured persons were not in position to speak and their admission timings 12:05 a.m. and 12:10 a.m. respectively, then they were medically examined, but he did not refute that the injured persons were also not in position to speak later on; as in his cross-examination, P.W.1 categorically deposed before the trial court that after he regained his consciousness, he narrated the whole incident to Rambabu Soni (P.W.2). She further submitted that in his cross-examination, P.W.2 also deposed before the trial court that when he reached to the Jeevan Jyoti Hospital, Allahabad, then he found that injured Rajesh was conscious and he was speaking, but Vikas was unconscious. She further submitted that P.W.3 Harishchandra also deposed before the trial court that when he reached on the spot, then Rajesh was conscious and he told him that Manoj Soni had shot him and friend of Manoj Soni had shot Vikas and they looted all the ornaments and his (Rajesh) mobile phone was also snatched. Therefore, the argument of learned counsel for the appellants is not sustainable and the aforesaid point was also rightly dealt by the court below. She also submitted that due to excessive bleeding, condition of Rajesh deteriorated and he died, and also deposed by P.W.4 Dr. Shivcharan Lal before the trial court that after such type of injuries, the injured would not be able to speak clearly and in absence of medical facilities, he will be conscious for about one hours. She further submitted that in the present case, Harishchandra (P.W.3) reached on the spot within 10-15 minutes and both the injured were in condition to speak, therefore, the court below has rightly dealt the issue on the strength of law laid down by the Hon'ble Supreme Court in the case of Thaman Kumar vs. State of Union Territory of Chandigarh (2003) 6 SCC 380 in which it was held that the testimony of the injured witness would be on higher pedestal and it could not be doubted except the extreme contradictions.
12.5. In reply to the submission of the learned counsel for the appellants that the manner of identification of the alleged recovered ornaments was not done in accordance with law, learned A.G.A. submitted that the identification of the recovered articles was done before the Magistrate complying the established procedure and P.W.1 Vikas Soni (Injured eye witness), in his cross-examination, has deposed before the trial court that ornaments i.e. One pairs of Chhagal, Six pairs of Anklet, One silver plate as well as Silver coconut and Silver areca nut were purchased from the shop of Chotelal Agarwal, and on all the Anklets, monogram of ML was stamped. The identification memo for recovery of articles was prepared as Ext. Ka-1 and it was duly signed & proved by the P.W.1 (injured eye witness). She further submitted that receipt of the aforesaid articles was with the Rajesh Kesharwani who died in the incident. She also submitted that P.W.9 Shri Nivas Yadav also proved the identification memo of the recovered articles and opportunity to cross-examine him was also given to the counsels for the appellants, but they did not got any material in his cross-examination and they could not refute his argument. Therefore, the learned trial court has rightly dealt the aforesaid issue.
12.6. In reply to the submission of learned counsel for the appellants that recovery of only one weapon was shown, but it was alleged in the F.I.R. that both the appellants shot fire, therefore, the prosecution case is not reliable, learned A.G.A. submitted that after the arrest of appellant Umesh Kumar Mishra, on his pointing out, one country made Pistol of 315 bore along with looted piece of silver was recovered from the bush adjoining to the house of Devendra Shukla and recovery memo was prepared as Ext. Ka-26 which has been duly proved. One cartridge of 315 bore was also recovered from the place of incident. She further submitted that the recovered cartridge as well as country made pistol were sent for the ballistic analysis to F.S.L. and the ballistic report reveals that the cartridge was fired with the recovered pistol, and it is also deposed by P.W.1 that Umesh Mishra shot fire on him. Therefore, merely on the ground that second weapon was not recovered, therefore, recovery from appellant Umesh Mishra is not reliable, is not acceptable. She also submitted that report of F.S.L. as well as the statement of injured witness P.W.1 and the injury report of the injured corroborates with the prosecution case, therefore, the arguments of the learned counsel for the appellants is not sustainable.
12.7. In reply to the point argued by learned counsel for the appellants that identification parade of the appellant Umesh Mishra was not conducted in accordance with law and the learned court below has not rightly dealt the aforesaid point, learned A.G.A. submitted that the aforesaid point is not correct as in the written complaint, appellant Manoj Soni was named and the P.W.1, in his deposition before the court below, stated that he was known to the appellant Umesh Mishra by face, but he could not recollect his name earlier and later on, the name of Umesh Mishra came into his knowledge. Therefore, the testimony of injured witness cannot be discredited and the benefit of doubt cannot be given to the appellant Umesh Mishra who shot fire on the injured and looted the ornaments. She further submitted that appellant Umesh Mishra was rightly identified by P.W.1 (injured eye witness) and this point was also rightly dealt by the learned trial court.
13. Considering the arguments of learned counsel for the appellants as well as learned A.G.A. and going through the record, it is evident that :
13.1. Submission made by learned counsel for the appellants is that testimony of P.W.1 Vikas Soni (injured witness) is not reliable on the ground that in his cross-examination, he deposed that within 10 minutes of the incident, his father Shrinath Soni along with his friend Sahjade reached on the spot and thereafter, both the injured were brought to the hospital at Kunda and from there, they were shifted to Allahabad and P.W.3 Harishchandra (father of the deceased Rajesh) was also with them, and the incident was narrated to Rambabu Soni (P.W.2) when he regained his consciousness after 2-3 days from the date of incident; and P.W.1 is an interested witness as there was business rivalry in between him and appellant Manoj Soni, but it is evident from the deposition of P.W.1 that he was cross-examined by the counsels for the appellants before the trial court and he categorically deposed the incident and the manner of assault and medico-legal report of the injured and the deceased Rajesh corroborates with the deposition of P.W.1 and in his cross-examination he also deposed that he was known to the appellant Manoj Soni and also known to the co-accused by face, who was the pillion rider of Manoj Soni. He narrated the incident before the trial court that at Chowk, Meerganj Main Market, Allahabad, he and his friend Rajesh (deceased) went to Jewelry shop for purchasing the ornaments. He purchased ornaments amounting to Rs.60,000/- but he was not aware about the amount of purchased ornaments by Rajesh. In the market, appellant Manoj Soni @ Manu Verma, who was familiar to P.W.1 and his friend Rajesh, along with appellant Umesh (whose face was familiar to P.W.1 but not well known) met them. At about 07:00 p.m., after purchasing the ornaments, when they started moving for home at Kunda, then the appellant Manoj Soni & his friend Umesh Mishra also moved for their home at Kunda, and P.W.1 & his friend Rajesh were riding on one motorcycle and Manoj Soni & his friend Umesh Mishra were on the other motorcycle. When they reached near 20 meter away from Madri Intersection, then the appellant Manoj Soni stopped his motorclyce after overtaking them and asked for fuel as petrol in his motorcycle was finished, P.W.1 was driving the motorcycle and Rajesh was the pillion rider, and when Rajesh was getting off from the motorcycle for taking out petrol, then he was advised by him (P.W.1) that in few distance Yadav Dhaba is situated where there is appropriate light and he can takeout the petrol there, then Manoj Soni told him that who will carry the motorcycle there give it here. Then Rajesh (deceased) started taking out the fuel. Manoj Soni first shot Rajesh with the intention to kill and Umesh shot him (P.W.1). Learned A.G.A. submitted that P.W.1 was confronted by the counsel for the appellants but the testimony of the witness was intact and the manner of assault and respective injuries with the respective weapon are corroborating. In the statement of appellants under Section 313 Cr.P.C., questions were framed on the basis of prosecution evidence relied during the course of trial, but both the appellants had given answers to the questions as incorrect, wrong and implicated with the intention to harass them. It is also evident from the aforesaid statement of the appellant Umesh Kumar Mishra that he denied to place any defence witness and in his additional statement, he stated that he was having inimical relations with Bachha Yadav, and Constable Santosh Yadav is his relative, therefore, he was falsely implicated in the present case. Appellant Manoj Kumar Soni also stated in his additional statement, in writing, with the narration that he is the goldsmith and was working with the P.W.2 (informant) prior to the date of incident, and Rs.20,000/- as labour charges was due to him, and earlier dispute was taken place between them, as a result, merely on the basis of suspicion, he was implicated in the present case. He also narrated that the ornaments those were shown by the police as recovered articles were taken from the shop of his father; but he failed to produce any witness in support of his additional statement and neither any detail that when the ornaments were taken away from the shop of his father nor the detail of ornaments which were taken away are mentioned, therefore, such statement is a vague one and the trial court has rightly considered the evidence of the P.W.1 (injured eye witnesses) as the testimony of injured witnesses cannot be discredited when the manner of assault was properly deposed and an opportunity was also given to the counsels of accused-appellant to cross examine, but they failed to refute, therefore, the arguments of learned counsel for the appellants has no force.
13.2. Second submission of learned counsel for the appellants is that the incident was taken place on 05.02.2008 at about 09:30 p.m., but the F.I.R. in question was lodged on 07.02.2008 at 17:30 hours by P.W.2 (uncle of injured Vikas Soni) after well thought, therefore, prosecution story is not reliable; but in the present case, it is evident that the injury was caused by the appellants to P.W.1 and his friend Rajesh with intention to kill & loot them and in their depositions, P.W.2 and P.W.3 have categorically stated that the injured were in critical condition and they were focusing for their treatment first, therefore, delay has been caused in lodging the F.I.R. In the present case, merely delay in lodging the F.I.R. does not vitiate the trial, as the injured eye witness has categorically defined the role of informant, and the learned court below has rightly dealt the issue by relying on the decision of Hon'ble Supreme Court in the case of Rabindra Mahto and Another vs. State of Jharkhand (supra), therefore, the submission of learned counsel for the appellants is not sustainable.
13.3. Third submission of learned counsel for the appellants is that as per the injury report of the injured and his friend Rajesh who later on died and as per deposition of Dr. C.K. Gupta (P.W.6), injured persons were not in position to speak, therefore, it is highly improbable that P.W.1 narrated the whole incident to P.W.2 and then the F.I.R. was lodged; but as per the record, P.W.6 Dr. C.K. Gupta was examined and cross-examined and he categorically deposed that that the injured persons were not in position to speak, but he did not depose that the injured persons were not in position to speak later on also and P.W.1 has categorically deposed before the trial court in his cross-examination that when he regained his consciousness, he narrated the incident to P.W.2. The testimony of P.W.2 also corroborates and he also deposed in his cross-examination that Rajesh was not in sense when he reached to the hospital, and P.W.3 also deposed before the trial court and supported the prosecution version. Therefore, the submissions of learned counsel for the appellants has no force and the trial court has rightly considered the deposition in accordance with the law laid down by Hon'ble Supreme Court in the case of Thaman Kumar vs. State of Union Territory of Chandigarh (supra).
13.4. Fourth submission of learned counsel for the appellants is that in relation to recovery of alleged ornaments, established procedure was not adopted and without mixing sample of ornaments of identical nature, identification of ornaments was conducted, therefore, the recovery memo is not reliable and he also relied on the decision of Hon'ble Supreme Court in the case Sonu @ Sunil vs. State of Madhya Pradesh (supra) and submitted that in case, identification procedure was conducted without mixing the recovered jewelry or identical ornaments, the identification is not admissible, and the learned court below has committed error in accepting the identification of the ornaments; but the aforesaid case relied by the learned counsel for the appellants is of circumstantial evidence and in the present case, P.W.1 is the injured eye witness and he also narrated the manner of assault by the appellants, therefore, the application of the law laid down in the aforesaid case law does not apply in the present case, hence, the submission of learned counsel for the appellants has no force and the learned court below has rightly appreciated the recovery memo in relation to recovered articles and the deposition of P.W.1 (injured eye witness).
13.5. Fifth submission of learned counsel for the appellants is that as per the prosecution case, both the appellants shot fire, but only one weapon was recovered, therefore, prosecution story is not reliable; but as per record, after arrest of the appellant Umesh Mishra, weapon was recovered on his pointing out. The recovery memo was prepared by P.W.9. and it was duly proved before the trial court and opportunity to cross-examine was also given to the counsels for the appellants, but the same could not be refuted. It is also evident that recovered weapon and cartridge were sent to F.S.L. and F.S.L. report (Ext. Ka.- 23) reveals that the cartridge was fired with the recovered weapon. In case, the second weapon was not recovered, then the testimony of injured witness cannot be discredited in view of the law laid down by Hon'ble Supreme Court in the case of Rakesh and another vs. State of Uttar Pradesh and another (2021) 7 SCC 188 and the learned court below has rightly dealt the issue and the submission of learned counsel for the appellants has no force.
13.6. Learned counsel for the appellants also relied on the decision of Hon'ble Supreme Court in the case of Mohanlal Gangaram Gehani vs. State of Maharashtra (supra) and submitted that testimony of a witness who identified the accused for the first time in the court in absence of any T.I. parade would not be reliable; but the P.W.1 (injured eye witness) categorically deposed before the court below that appellant Umesh Mishra was familiar to the witness by face but not by name, and in his cross-examination, the counsel for Umesh Mishra confronted him but failed to disbelieve him; and it is well settled in the case of Dana Yadav @ Dahu & Others vs. State of Bihar (supra) that if the accused persons is well known by sight, then it would be waste of time to put him up for identification and trial will not be vitiated as the testimony of the injured witness cannot be discredited.
13.7. Final submission of the learned counsel for the appellants is that it is a case of single shot which is alleged to be done by each appellant, therefore, conviction under Section 302 I.P.C. may be altered in Section 304 Part II I.P.C. and sentence of the appellants be reduced in the interest of justice; but as per the deposition of P.W.1, who is the injured eye witness, appellants followed him and his friend Rajesh from Allahabad and at an isolated place took advantage by saying that fuel in their motorcycle is finished and asked for some petrol, and when Rajesh (deceased/friend of P.W.1) came down and started taking out petrol from his motorcycle, then a shot was fired by Manoj Soni at him and at the same time, appellant Umesh Mishra also shot fire on the P.W.1 and thereafter, looted them. In the said incident, P.W.1 and his friend received grievous injuries and later on, because of the said injury, Rajesh (friend of P.W.1) died. As the motive and the conduct of the appellants reveals that they were in premeditated mind with the common intention to kill the injured and loot the ornaments, therefore, the submission of learned counsel for the appellants has no force.
14. In view of the above discussion, the appellants failed to establish their case, and there is no illegality in the judgment and order dated 16.12.2010 passed by Additional Sessions Judge/F.T.C., Court No.9, Pratapgarh.
15. Accordingly, both the appeals are hereby dismissed.
16. From perusal of the record, it appears that the appellant namely, Umesh Kumar Mishra is on bail. His bail bonds is cancelled and sureties are discharged. He is directed to surrender in the court below forthwith to serve out the sentence awarded by the learned trial court, failing which, trial court is directed to take all coercive steps for taking him in custody and sent to jail.
17. In the connected appeal, appellant-Manoj Kumar Soni @ Manu Verma is in jail. He shall serve out the sentence awarded by the trial court.
18. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.
19. District & Sessions Judge, Pratapgarh is directed to ensure the communication of this order to the appellant-Manoj Kumar Soni @ Manu Verma at his confinement place.
(Rajeev Singh,J.) (Ramesh Sinha,J.) Order Date :- 23.10.2021 S. Shivhare/-