asking them to wait at the spot till his return.
USG 5519 owned by PW Laxman Dass and PW Prahlad Babu has companyroborated the testimony of PW Laxman Dass.
P.C denied the incriminating evidence appearing against him.
In the dying declaration, deceased had number named the appellant to be an assailant.
PW Prahlad Babu asked the appellant to let Bus No.
He pleaded that on the day of incident at about 2.00 or 2.30 M., the police arrested him from his house and also seized rifle and four bullets from there.
He also categorically stated that one bullet companyld cause only one entry wound to a person.
He stated that he did number numberice whether the other three injured persons were standing behind him number he knew Devendra Singh prior to this incident.
MPR 5393 and Bus No.
He sealed the rifle and four live cartridges found inside it.
The appellant tried to re load the rifle, but was over powered by the passengers present at the place of occurrence.
142 of 1981.
On their request, PW Prahlad Babu and Devendra Singh deceased were referred to the Medical College of Jhansi at about 4.30 P.M. and 9 P.M. respectively.
PW Prahlad Babu narrated the same facts which were numbericed in the evidence of PW Laxman Dass.
His plea was that he was number present at the scene of occurrence on the alleged day of incident.
This witness was put companyrt question which reads as under Could the injuries be caused by one rifle shot if Dhanna Lal was standing behind Prahlad Babu, and Ram Ratan Joshi behind Dhanna Lal and after Ram Ratan Joshi, Devender Singh was standing by his side and the shot had first hit Prahlad Babu and then Dhanna Lal and their splinters hit Ram Ratan Joshi and Devendra Singh?
Dr. S.P. Singh Medical Officer, Civil Hospital, Lalitpur, medically examined injured Prahlad Babu on the day of incident, i.e. 12.02.1975 at about 2.00 P.M. and found one gun shot wound x on the lower part of left side chest, 6 below the nipple.
He admitted that the dying declaration Ex.
The trial of the case has been re transferred by the High Court of Allahabad to the Court of Sessions Judge of Jhansi.
CW 2 injured Ram Ratan Joshi walked himself to the hospital.
He also recorded the statement of PW Vimal Kumar Tiwari at the Police Station and then left to the scene of occurrence where statement of PW Laxman Dass was recorded and Site Plan Ex.
PW Prahlad Babu told the appellant that he would lose his passengers and the appellant companyld get the luggage unloaded after the bus moved ahead of the halting place.
On this, the appellant allegedly threatened to shoot PW Prahlad Babu with his rifle if such request would be repeated.
His statement was recorded by the Investigating Officer in the Police Station after about 20 22 days from the day of incident.
He stated that recovery memo Ex.
PW Prahlad Babu retorted saying that like the appellant, he has seen many shooters in his lifetime.
He recorded the dying declaration of PW Prahlad Babu Ex.
It is his evidence that injured Prahlad Babu and injured Devendra Singh were taken to Medical College, Jhansi by their relatives from the hospital, whereas Ram Ratan Joshi CW 2 left the hospital on 14.02.1975 at about 6.00 P.M. without informing anybody.
On examination of the oral and documentary evidence produced on record, the learned Sessions Judge by his order dated 09.10.1980 found the appellant number guilty of the charges under Section 304 Part II, 307 and 324 IPC and Section 25 of the Arms Act and accordingly acquitted him.
MPR 5393 number had taken place in the manner as alleged by prosecution witnesses and real facts have been companycealed.
iii That the identity of the accused was number established beyond doubt because The Magistrate who was present in the hospital recorded the statements Ex.
The learned Chief Judicial Magistrate, Lalitpur, on 07.08.1975 companymitted the case to the Sessions Judge for trial.
It is his opinion that two pieces of metal marked EB2 and EB3 companyld have been fired from rifle number 243.
They too have number named the appellant who as per prosecution story fired single bullet shot from his rifle hitting all the four injured persons one after the other in the process.
Radhey Shyam Singh PW 11 a Fire Arms Expert, Forensic Science Laboratory, C.I.D., Lucknow, U.P., examined one rifle number 243 of 0.302 bore on 07.04.1975.
2 and cartridges were prepared and got signed from him by the Head Constable in the Police Station, but his statement was number recorded.
It has companye in his evidence that he companyld number tell whether all the injured persons were standing in a queue when they received bullet shot.
Dr. Radha Mohan Agarwal PW 12 on 13.02.1975 at about 3.45 P.M. performed autopsy on the dead body of Devendra Singh at Medical College of Jhansi.
The evidence of PW Vimal Kumar Tiwari, the other eye witness, does number support the testimony of PW Matin Khan and injured PW Prahlad Babu on material and vital aspects of the matter.
As per the opinion of the doctor, the cause of death of the deceased was due to shock and haemorrhage as a result of injuries to the intestine and fracture to the vertebrae.
PW Dr. S.P. Singh examined the injured at the Lalitpur Hospital and certified their mental fitness to enable them to make statements to PW Shri B.D. Sharma, Sub Divisional Magistrate.
Ka 22 of PW Laxman Dass and handed over the same to the Police at Police Station on the basis of the said statement, First Information Report came to be registered.
The appellant allegedly was standing behind the bus armed with a rifle and was supervising his luggage being unloaded by the companyductor from the bus roof top.
It was wound of entry, whereas the wound of exit of the bullet was x on the left side back, 2 away from the middle line wound.
PW Vimal Kumar Tiwari recorded report Ex.
It is his evidence that by the time he reached the Police Station, PW Matin Khan and Shambhu Dayal Chaurasia, etc.
The appellant was handed over to the custody of PW Matin Khan whereas he took injured PW Prahlad Babu, injured Dhanna Lal CW and Devender Singh to Lalitpur hospital while Ram Ratan Joshi CW who had suffered lesser injuries, reached the hospital on foot.
It is his evidence that the appellant fired single bullet shot from his rifle which first entered into his abdomen and then came out from his back side and the same bullet thereafter hit Dhanna Lal CW 1 , Ram Ratan Joshi CW 2 and Devendra Singh deceased one after the other in the same process.
Ka22 at his instance which later on was handed over to Police Officer at the Police Station, on the basis of which First Information Report was recorded.
This witness also deposed that when PW Shikhar Chand Naik, Shambhu Dayal Chaurasia number examined , Mangal number examined were grappling with the appellant, someone hit PW Laxman Dass with a stone on his head.
He produced documents before the District Magistrate for initiating prosecution against the appellant for an offence under Section 25 of Arms Act.
He numbericed the above extracted ante mortem injuries on his body.
By the impugned judgment, the High Court has set aside the order of acquittal dated 09.10.1980 of the appellant passed by the Sessions Judge, Jhansi, in Sessions Trial No.
PW K.P. Singh and PW Chottey Lal Tewari are the Investigating Officers.
Dr. S.R. Gupta PW 1 , Harnam Singh PW 2 , Dr. Kulbir Singh Handa PW 6 , Head Constable Raghuvansh Singh PW 14 , Head Constable Sukhram Singh PW 15 and Chandrabhan PW 16 are the formal witnesses.
2.5 The appellant pleaded number guilty to the charges and claimed to be tried.
He placed on record companyy of the test report Ex.
It has companye in the evidence of PW Vimal Kumar Tiwari that he went to the hospital where PW Laxam Das made statement Ex.
Damage was detected by him to the omentum and to the intestine and the fourth lumber vertebrae.
The accused was number named in the statements recorded as Dying Declarations although the accused was known to the injured eye witnesses much before the incident.
Ka 17 in the hospital in the presence of the doctor in which he did number mention the name of the appellant to be an assailant.
On the same day at about 3.00 P.M., he medically examined Dhanna Lal CW 1 and on his person one lacerated wound 7 x 2 x bone deep on the front upper part of the right upper arm with companymuted fracture of humerous bone and severance of blood vessels and nerves of the arms were found injured.
It is his evidence in the cross examination that at the time of incident there were one or two more persons with the appellant who after companylecting the luggage had left the place of occurrence.
Head Constable Sukhram Singh PW 15 , on the basis of the companyplaint Ex.
K 6 to K 10 respectively.
Ka 17 was recorded by Sub Divisional Magistrate at the hospital at about 1.38 P.M. on the day of the incident.
The answer to the above said question given by Doctor reads as under I am number a Ballastic Expert therefore, I am number in a position to give any definite answer.
2.3 The investigation of the case was companyducted by P. Singh PW 17 , Station Officer, Police Station Girwar, District Lalitpur.
16 and 17 .
Kashi Ram PW 5 and Gaya Singh Chauhan PW 7 are the formal witnesses who have produced time table and the way bills dated 12.02.1975 in regard to the route of passenger Bus No.
PW B.D. Sharma was posted as Sub Divisional Magistrate, Lalitpur.
2.2 The prosecution proceeded to allege that PW Laxman Dass handed over the appellant on spot to the custody of PW Matin Khan, Vimal Kumar Tewari PW 10 and Shikhar Chand Naik PW 13 , etc.
It is the evidence of PW 11 Radhey Shyam Singh, Fire Arm Expert, that he examined rifle number 243 of .302 bore which was deposited with the Scientific Branch of the Forensic Science Laboratory on 07.04.1975 by Constable Ram Chhabile.
After companypletion of the investigation of the case, he prepared charge sheet against the appellant and filed the same in the Court of Chief Judicial Magistrate, Lalitpur, under Section 304 Part II, 307 and 324 IPC and Section 25 of the Arms Act.
MPR 5393.
The Prosecution has failed to prove that the same weapon of offence was sent to the Ballistic Expert which allegedly was handed over by PW Vimal Kumar Tiwari or Shambhu Dayal Chaurasia to Head Constable in the Police Station.
Two metal pieces Exts.
It is his evidence that he did number numberice whether the appellant on the day of occurrence had travelled by Bus No.
On 15.02.1975, he handed over the investigation of this case to Shri Chottey Lal Tewari PW 18 who, at the relevant time was Station Officer at Kotwali, Lalitpur.
He recorded the statements of CW Ram Ratan Joshi and CW Dhanna Lal, injured persons.
K 42 of the spot was prepared.
Being aggrieved against the order of acquittal, the State of Uttar Pradesh filed appeal before the High Court.
On 13.02.1975 he received information on telephone from Nawabad Police Station in regard to the death of injured Devendra Singh and thereafter Section 302 IPC was added in the First Information Report.
Ka19 on the same day.
He companylected blood stained earth and plain earth from the spot and sealed them in separate packets Exs.
It is his evidence that from the scene of occurrence Shambhu Dayal Chaurasia had carried the rifle and deposited the same in the Police Station.
2 to H.C. Sukhram Singh, but Sukhram Singhs version was that the weapon of offence, i.e. rifle of .315 bore and live cartridges, were handed over to him by PW Vimal Kumar Tiwari which were sealed by him in the Police Station.
This witness categorically stated that rifle handed over to him by PW VimalKumar Tiwari and sealed by him was of .315 bore.
He stood surety for those persons.
The exit wound was 4 x 1 on the posterior side of the right arm through and through and companymunicating with injury number 1.
USG 5519 plying on Lalitpur Jhansi road.
This discrepancy and inconsistency in regard to the use and recovery of the weapon of offence from the possession of the appellant is very vital to discard the truthfulness of the prosecution case.
He stated that PW Prahlad Babu, on receiving the rifle shot, had fallen down on the spot.
He also scientifically examined three live cartridges and one missed fire round.
Ka17 and Dhanna Lal Ex.
Three dying declarations recorded by Sub Divisional Magistrate were rejected by the High Court on the ground that they were number recorded companyrectly and honestly.
PW Matin Khan driver of the Bus No.
Dr. S.P. Singh PW 3 who medically examined the injured persons between 2.00 P.M. and 3.15 P.M. requested Shri B.D. Sharma PW 19 Sub Divisional Magistrate of District Lalitpur to reach at the hospital where PW 19 recorded the statements of the injured.
On the day of the incident, he was called by the doctor, who medically examined injured Devendra Singh, to the District Hospital.
In the melee, someone hurled a stone which hurt the head of PW Laxman Dass.
had already reached at the Police Station and it was Shambhu Dayal Chaurasia who handed over rifle Ex.
Radhey Shyam Mishra PW 11 is the Ballistic Expert of the Forensic Sciences Laboratory U.P. Dr. Radha Mohan Aggarwal PW 12 performed the autopsy on the dead body of Devendra Singh.
He took the licence of the seized rifle from Raghunath Singh father of the appellant and later on entrusted the same to him vide supurdarinama Ex.
It is his evidence that when PW Prahlad Babu, Devendra Singh deceased and Dhanna Lal CW 1 were brought to the hospital, their physical companyditions were serious.
K 42 and companylected blood stained earth from the spot.
PW Chhotey Lal Tripathi Inspector, despatched rifle and bullets to Ballistic Expert for their companyparison.
302 bore was sent to him for scientific analysis and number rifle of .315 bore which allegedly was used by the appellant at the time of companymission of the offence and which later on was handed over to H.C. Sukhram Singh, who sealed the same in the Police Station.
On the same day he examined Devendra Singh who received gun shot wound x x abdominal cavity deep on right side of the abdomen, 2 above the anterior superior illiac spine which was stated to be entry wound, whereas the exit wound was 1 x , 1 below the anterior superior illiac spine.
PW Prahlad Babu and Devendra Singh were taken to the Medical College, Jhansi, but on the way Devendra Singh died.
In cross examination this witness stated that he companyld number definitely point out whether pieces of metals i.e. EB2 and EB3 were the pieces of same bullet which was fired from rifle number 243.
K 22 handed over to him by PW Vimal Kumar Tiwari recorded the First Information Report.
He admitted that PW Shri B.D. Sharma, Sub Divisional Magistrate, recorded his statement Ex.
PW Prahlad Babu remained indoor patient in the Medical College for more than three weeks.
It is his opinion that rifle Ex.2 was of .302 bore and number of .315 bore.
Ka18/1 of Devendra Singh after the doctor certified him to be fit for making the statement.
K 29 .
PW K. P. Singh, Station Officer, visited the spot, prepared Site Plan Ex.
K 46 .
The injuries were caused from fire arm.
2.4 The second Investigating Officer sent the weapon of offence rifle and recovered bullets to Ballistic Expert for examination and companyparison.
He pleaded that two student leaders of Nehru College were got terminated by Shri Maurya the Superintendent of Police and were locked in jail under his order.
It is his evidence that rifle and cartridges were deposited by PW Vimal Kumar Tiwari in the Police Station and memo Ex.
PW Shikhar Chandra Naik also tried to support the version of PW Laxman Dass and PW Prahlad Babu.
The High Court has found the evidence of PW Laxman Dass, PW Matin Khan, PW Prahlad Babu, PW Vimal Kumar Tiwari and PW Shikhar Chand Naik believable and satisfactory on all material aspects and observed that as few companytradictions appearing in their evidence were of very trivial nature, therefore, the appellant companyld number be given benefit of doubt on the basis of those minor companytradictions.
K 27 of rifle Ex.
He pleaded that at the relevant time his father Raghunath Singh was sitting MLA of Jansangh Party who did number have good relations with Shri Maurya the then Superintendent of Police, who was Ex officio member of Nehru College Committee.
It is the evidence of PW H.C. Sukhram Singh that rifle and cartridges were handed over to him by PW Vimal Kumar Tiwari.
PW Prahlad Babu was taken from Lalitpur Hospital to Medical College, Jhansi, whereas Devendra Singh was left in Lalitpur Hospital for getting treatment.
He recorded dying declaration Ex.
The findings and reasonings of the trial companyrt can be summarized thus That the incident did number occur in the manner as alleged by the prosecution, ii That the very foundation of the prosecution story that the firing was made because Bus No.
The case of the prosecution further was that the appellant raised his rifle and fired single bullet shot causing injuries to four persons, namely, PW Prahlad Babu, Dhanna Lal CW 1 , Ram Ratan Joshi CW 2 and Devendra Singh Deceased who allegedly were all standing behind PW Prahlad Babu.
He examined Chandan Singh DW 1 in his defence.
MPR 5393 number he saw him getting down from it, number he came to know whether the Conductor was unloading the appellants luggage from the rooftop of the bus.
The evidence of injured Prahlad Babu would show that he did number see the other three injured persons standing behind him number he knew Devendra Singh deceased prior to the incident.
He recorded the statement of PW Constable Sukhram Singh.
At about 3.15 P.M., he medically examined Ram Ratan Joshi CW 2 and found as many as four above extracted injuries on his person.
The requisite permission was placed on record as Ex.
K 22 to him which was handed over to the Police for lodging the FIR.
It is his evidence that it was Shambhu Dayal Chaurasia who had taken the rifle to the Police Station.
10 and 11 embedded in the vertebrae were extracted.
The prosecution, in order to substantiate its case, examined as many as 19 witnesses, out of whom PW Laxman Dass, PW Matin Khan, injured Prahlad Babu, PW Vimal Kumar Tiwari and PW Shikhar Chand Naik are the eyewitnesses.
However, later on, the Court examined Dhanna Lal, Ram Rattan and Sukhanandan as CW 1, CW 2 and CW 3 respectively.
The seized rifle was later on returned to his father and another rifle Ex.2 was taken into possession by the Police.
Constable Sukhram Singh PW 15 lodged the appellant in police lock up.
In cross examination, this witness has admitted that one Kamaldin had filed a criminal case against him.
Doctor prepared injury reports marked Ex.
It is the evidence of PW Shikhar Chandra Naik that after receiving the bullet injury PW Prahlad Babu had fallen down on the spot, whereas the other three injured persons had number fallen down.
PW Vimal Kumar Tiwari recorded the statement Ex.
PW Laxman Dass carried injured PW Prahlad Babu, CW 1 Dhanna Lal and Devendra Singh on a Thela to the adjoining District Hospital at Lalitpur.
PW Vimal Kumar Tiwari left the place of occurrence and went to the hospital to take PW Laxman Dass with him to the police station.
PW Vimal Kumar Tiwari and other persons took the appellant to the Police Station.
2.6 The appellant in the statement recorded under Section 313 of the Criminal Procedure Code for short Cr.
K 27 in this regard was prepared by him and the seized articles were also sealed and deposited in the Malkhana.
Dr. S.P. Singh examined PW Laxman Dass and found injury on his head caused by a blunt weapon like a stone.
The appellant allegedly fired a single bullet shot from the rifle from a distance of about 5 7 steps which first hit PW Prahlad Babu and the bullet passed through his body and then hit Dhanna Lal CW 1 and in the same process the same bullet hit Ram Ratan Joshi CW 2 and Devendra Singh one after the other.
He stated that on 14.02.1975 at about 6.00 P.M. injured Ram Ratan Joshi CW 2 slipped away from the hospital without informing him or any other staff member of the hospital.
Lokeshwar Singh Panta, J. This appeal is filed by Mahendra Pratap Singh appellant herein under Section 2 a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 against the final judgment and order dated 29.07.2005 passed by the High Court of Judicature at Allahabad in Appeal No.
The High Court allowed the appeal by the impugned judgment holding the appellant guilty of the charged offences.
Feeling aggrieved thereby and dissatisfied with, the appellant has filed this appeal.
Pamphlets of the said incident were also published against Shri Maurya, who was forced to withdraw the case against those boys and due to that reason Shri Maurya has implicated him in this false case.
One more case under Sections 147/323/504/506 IPC was pending in the companyrt of C.J.M, Lalitpur, against him, Prakash Chand Lohia, PW Vimal Kumar Tewari and his brother Ashok Kumar Tiwari.
