# Ajai Kumar Gupta v. State of U.P

- **Citation:** (2024) 4 ILRA 1108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-05
- **Case number:** Criminal Appeal No. 573 of 1983
- **Bench:** Siddharth, Ram Manohar Narayn Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-kumar-gupta-v-state-of-u-p-51775
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 34 - Code of Criminal
Procedure, 1973 - Section 313 - Juvenile
Justice (Care and Protection of Children)
Act, 2000 - Sections 2(k), 2(l), 15, 16 &
18 - Criminal Appeals Against Conviction and
Sentence - Murder - Common Intention -
Juvenility Plea - Prompt FIR - Eye-Witness
Testimony - Motive in Direct Evidence Cases
The appellants, Ajai Kumar Gupta and Satish
Kumar Gupta, challenged the judgment dated
04.03.1983 by the Sessions Judge, Banda, in
S.T. No. 285 of 1982, convicting them under
Section 302 read with Section 34 IPC for the
murder of Avadhesh Singh on 16.05.1982 at
Atarra Railway Station, sentencing them to life
imprisonment. The incident arose from an
altercation at a tea shop, where Satish Kumar
Gupta exhorted Ajai Kumar Gupta to shoot
Avadhesh Singh with a countrymade pistol,
causing his death. The FIR was lodged
promptly at 4:30 AM, supported by eyewitnesses PW-1 (Rakesh Kumar Singh), PW-2
(Ramhit Singh), and PW-3 (Kishan Pal), though
PW-1 and PW-3 partly turned hostile. The
prosecution relied on medical evidence, FSL
reports confirming human blood on the
deceased's
clothes and
the bench, and
recovery of a .315 bore pistol from Ajai Kumar
Gupta. The appellants claimed false implication
due to enmity between the Investigating
Officer (PW-5, Ramji Mishra) and Ajai Kumar
Gupta's uncle, Shiv Prasad
Gupta,
over
defamatory articles, and raised a juvenility
plea. Held: (1) Criminal Appeal No. 705 of
1983 (Satish Kumar Gupta) was dismissed,
affirming his conviction and life sentence under
Section 302/34 IPC, as the prosecution proved
the case beyond reasonable doubt through
PW-2's reliable eye-witness account, prompt
FIR, medical evidence, and FSL reports;
discrepancies
in
witness
St.ments
(e.g.,
number of train tickets, mode of transport)
were minor and did not undermine the
prosecution case, per St. of U.P. Vs Jaggo, AIR
1971 SC 1586; motive was irrelevant in a direct
evidence case; (2) Criminal Appeal No. 573 of
1983 (Ajai Kumar Gupta) was partly allowed,
affirming the conviction but setting aside the
life sentence, as he was declared a juvenile
(aged 15 years 6 months on 16.05.1982) per
the Juvenile Justice Act, 2000, vide the
Sessions
Judge's
Inquiry
Report
dated
21.09.2023; under Sections 15 and 16, he was
ordered to be released on probation for three
years with a personal bond and two sureties,
prohibiting imprisonment for juveniles; (3) the
claim of false implication due to enmity lacked
evidence, and the defence failed to discredit
PW-2's testimony or the prompt FIR; (4) Satish
Kumar Gupta was directed to surrender to
serve his sentence, with coercive measures if
he failed to comply. The court emphasized that
juvenility can be raised at any stage, per
Section 15, Juvenile Justice Act, 2000, and
separate trials for juveniles and non-juveniles
are mandatory under Section 18.

List of Cases cited:

## Text

_Characters 0–39,744 of 70,715. This is a partial read: ask again with offset=39744 for what follows._

1108 INDIAN LAW REPORTS ALLAHABAD SERIES
reformatory,
retributive
and
deterrent
effects are balanced well. "

14. Now, coming to the instant case,
the appellant has confined his arguments on
the sentencing part only, submitting that the
accused has been convicted for an offence
under sections 363 and 366 I.P.C. both and
that that he has been sentenced for 7 years in
each one of them. It may be noted that
section 366 I.P.C. includes the ingredients of
section 363 I.P.C. Section 363 I.P.C. punishes
a person who kidnaps the victim from lawful
guardianship and the maximum punishment
provided in this section is seven years while
section 366 I.P.C. punishes a person who has
kidnapped or abducted a woman with certain
intent and in such case, the punishment
provided is 10 years. Section 366 I.P.C. is a
graver version of section 363 I.P.C.

15. There are no such facts or
circumstances mentioned in the judgment to
justify the award of maximum term of
punishment under sections 363 I.P.C. or 366
I.P.C. Definitely the court is vested with
power
to
award
maximum
term
of
punishment but that power is to be exercised
in a judicious manner.

16. Moreover, the section 363 and
366 I.P.C. pertains to one transaction only and
it does not appeal to reason that two separate
sentences be provided which should run
consecutively by default. The approach of the
court has not been judicious to that extent.
The accused has further been convicted for
offence under section 376 I.P.C. and
sentenced
to
10
years
of
rigorous
imprisonment. Incidently, it may be noted
that 10 years have already elapsed, a fact
which has been admitted by the State. Further
it may be noted that if all the sentences are
allowed to run consecutively, the proviso to
section 31 Cr.P.C. shall stand flouted.
17. I went through the judgment to
fathom the facts and circumstances and the
gravity of the matter which may justify the
running of consecutive sentences but found
none. In my opinion, the sentencing part of
the order is flawed on two counts, first that it
is against the provisions of section 31 Cr.P.C.
and that the learned trial court has overlooked
the legal obligation to expressly provide for
whether the sentences shall run concurrently
or consecutively.

18. In my opinion, the sentencing
part of the order needs to be suitably
modified in the manner as below:

19. The terms of imprisonment
awarded by the trial court for each one of the
offences i.e. section 363, 366 and 376 I.P.C.
are upheld and that all the sentences shall run
concurrently.

20. Accordingly this appeal is
disposed of.

21. A copy of the order shall be
immediately transmitted to the trial court
concerned for necessary action.
----------
(2024) 4 ILRA 1108
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYN
MISHRA, J.

Criminal Appeal No. 573 of 1983
&
Criminal Appeal No. 705 of 1983

Ajai Kumar Gupta ...Appellant
Versus
State of U.P. ...Respondent
4 All. Ajai Kumar Gupta Vs. State of U.P.
1109
Counsel for the Appellant:
Sri Kamal Krishna (Sr. Adv.), Sri Ashok Gupta, Sri
D.N. Wali, Sri Rakesh Kumar Singh, Sri Viresh
Gupta, Sri Viresh Misra

Counsel for the Respondent:
A.G.A., Sri V.S. Chauhan

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 34 - Code of Criminal
Procedure, 1973 - Section 313 - Juvenile
Justice (Care and Protection of Children)
Act, 2000 - Sections 2(k), 2(l), 15, 16 &
18 - Criminal Appeals Against Conviction and
Sentence - Murder - Common Intention -
Juvenility Plea - Prompt FIR - Eye-Witness
Testimony - Motive in Direct Evidence Cases
The appellants, Ajai Kumar Gupta and Satish
Kumar Gupta, challenged the judgment dated
04.03.1983 by the Sessions Judge, Banda, in
S.T. No. 285 of 1982, convicting them under
Section 302 read with Section 34 IPC for the
murder of Avadhesh Singh on 16.05.1982 at
Atarra Railway Station, sentencing them to life
imprisonment. The incident arose from an
altercation at a tea shop, where Satish Kumar
Gupta exhorted Ajai Kumar Gupta to shoot
Avadhesh Singh with a countrymade pistol,
causing his death. The FIR was lodged
promptly at 4:30 AM, supported by eyewitnesses PW-1 (Rakesh Kumar Singh), PW-2
(Ramhit Singh), and PW-3 (Kishan Pal), though
PW-1 and PW-3 partly turned hostile. The
prosecution relied on medical evidence, FSL
reports confirming human blood on the
deceased's
clothes and
the bench, and
recovery of a .315 bore pistol from Ajai Kumar
Gupta. The appellants claimed false implication
due to enmity between the Investigating
Officer (PW-5, Ramji Mishra) and Ajai Kumar
Gupta's uncle, Shiv Prasad
Gupta,
over
defamatory articles, and raised a juvenility
plea. Held: (1) Criminal Appeal No. 705 of
1983 (Satish Kumar Gupta) was dismissed,
affirming his conviction and life sentence under
Section 302/34 IPC, as the prosecution proved
the case beyond reasonable doubt through
PW-2's reliable eye-witness account, prompt
FIR, medical evidence, and FSL reports;
discrepancies
in
witness
St.ments
(e.g.,
number of train tickets, mode of transport)
were minor and did not undermine the
prosecution case, per St. of U.P. Vs Jaggo, AIR
1971 SC 1586; motive was irrelevant in a direct
evidence case; (2) Criminal Appeal No. 573 of
1983 (Ajai Kumar Gupta) was partly allowed,
affirming the conviction but setting aside the
life sentence, as he was declared a juvenile
(aged 15 years 6 months on 16.05.1982) per
the Juvenile Justice Act, 2000, vide the
Sessions
Judge's
Inquiry
Report
dated
21.09.2023; under Sections 15 and 16, he was
ordered to be released on probation for three
years with a personal bond and two sureties,
prohibiting imprisonment for juveniles; (3) the
claim of false implication due to enmity lacked
evidence, and the defence failed to discredit
PW-2's testimony or the prompt FIR; (4) Satish
Kumar Gupta was directed to surrender to
serve his sentence, with coercive measures if
he failed to comply. The court emphasized that
juvenility can be raised at any stage, per
Section 15, Juvenile Justice Act, 2000, and
separate trials for juveniles and non-juveniles
are mandatory under Section 18.

List of Cases cited:

1. St. of U.P. Vs Jaggo @ Jagdish, AIR 1971 SC
1586

2. Habeeb Mohammad Vs St. of Hyderabad,
1954 SCR 475

3. Shahid Khan Vs St. of Rajasthan, 2016 0
Supreme (SC) 210

4. Ram Ranjan Roy Vs Emperor, ILR 42 Cal 422
: AIR 1915 Cal 545

5. Stephen Seneviratne Vs The King, AIR 1936
PC 289

(Delivered by Ram Manohar Narayan
Mishra,J.)

1. Heard Sri Kamal Krishna learned
Senior Advocate, assisted by Sri Rakesh
Kumar Singh, learned counsel for the
appellant, Ajai Kumar Gupta; and also
assisted by Sri Chandra Shekhar Garg,
learned counsel for the appellant, Satish
Kumar Gupta; as well as Sri Virendra
Singh Chauhan, learned counsel for the
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
mother of the deceased; Sri Gyan Narayan
Kanojia, learned AGA Ist for the State and
perused the material placed on record.

2. As both the criminal appeals
have arisen out of same judgement of
conviction and sentence, hence, these are
being decided by this common judgement:-

3. Above noted Criminal appeals
have been preferred by the accused
appellants namely, Ajai Kumar Gupta and
Satish Kumar Gupta, with a prayer to set
aside the judgment and order dated
4.3.1983, passed by Sessions Judge, Banda,
in S.T. No.285 of 1982, under Sections-
302 IPC, arising out of Case Crime No.78
of 1982, Police Station- Atarra, District-
Banda, whereby, they have been convicted
for charge under Section 302 read with
Section 34 IPC and have been sentenced to
imprisonment for life. The appellant Ajai
Kumar Gupta was released on bail on
8.3.1983 and appellant Satish Kumar Gupta
was released on bail vide order dated
22.3.1983, in their respective appeals.

4. The factual matrix of the case in
brief are that the informant lodged present
FIR on the basis of written report (Ext.Ka1) at police station concerned on 16.5.1982,
at 4:30 AM, with allegation that a groom's
party (barat) had come from district Jalaun
at the place of his maternal uncle, Raj
Singh, in village Musasi, Police Station
Badausa. This marriage party was to leave
in the intervening night of 15/16.5.1982
from Atarra railway station. The passenger
train by which this marriage party was to
leave was late. The train arrived at the
station at around 2:00 AM, in which
informant got the marriage party boarded
and he also travelled in the same train
alongwith his three companions up to
Khurhand railway station together with said
groom's party (barat). They disembarked
from the train at Khurhand railway station
and came back to railway station Atarra by
Bundelkhand Express. It was 3:30 AM. As
soon as they reached at the platform,
accused Ajay Kumar Gupta and Satish
Kumar Gupta, who hail from Kasba Atarra
and were known as local goons, appeared
there. Satish Kumar wielded an iron rod in
his hand. They stopped Shyam Sundar
Gupta, one of the companions of the
informant and accosted him while abusing
that he appeared to be a rogue (badmash),
from where he was coming. The informant
and his companions objected to this and
intervened. They asked them not to speak
in bad manner, which resulted in altercation
between informant and his companions and
the accused persons. They came out of the
station and sat in the tea shop of one Badku
on a bench lying outside his shop. These
two
miscreants
started
abusing
and
threatening them while standing in front of
the shop. Avadhesh Singh, one of the
companions of the informant, took a strong
exception to their conduct and asked them
to refrain from abusing them. As soon as he
stood from the bench, Satish Kumar Gupta
caught hold of his hand and twisted it and
got him forcefully seated on the bench.
Accused Satish Kumar also exhorted
accused Ajay Kumar to kill him as he was
showing arrogance, thereupon, accused
Ajai Kumar whipped out a countrymade
pistol from pocket of his pant and fired
close to the chest of Avadhesh Singh.
Avadhesh Singh got injured in his left chest
and fell down on the bench. Thereafter,
both the accused fled away towards town.
The occurrence was also seen by one
Kishan Pal Singh. A written report Ext.Ka1 of the occurrence was lodged by Rakesh
Kumar Singh (PW-1) at 4:30 AM at Police
Station Atarra, situated about one kilometer
away from the scene of the incident.
4 All. Ajai Kumar Gupta Vs. State of U.P.
1111
Station Officer of Police Station Atarra,
Ramji Mishra (PW-5) was present at the
police station. Soon after the case was
registered, he took up the investigation and
examined Rakesh Kumar Singh and Shyam
Sundar. He reached at the scene of incident
at about 7:30 AM and found dead body of
Avadhesh Singh lying on the bench in front
of the shop of Badku outside the railway
station. He started inquest proceeding and
preapred
Panchayat
nama
(Ext.Ka-7),
Challan (Ext.Ka-8), Sketch (Ext.Ka-9) and
letters (Ext.Ka10 and 11) for postmortem.
The dead body was sealed and handed over
at 9:00 AM to constable Jagdeo Lal and
Jeev Mandal alongwith inquest papers and
copies of chik FIR (Ext.Ka-20) and general
diary
(Ext.Ka-21).
The
Investigating
Officer also recovered from the dead body
a pair of sleeper (Ext.Ka-5), blood stained
shirt (Ext.Ka6) and prepared recovery
memo Ext.Ka-12 and 13 in respect thereof.
He also recovered sample boold stained
and unstained chips (Ext.Ka-6 and 7) of the
bench and prepared memo (Ext.Ka-14) in
respect thereof. The Investigating Officer
rushed from the scene of occurrence and
arrested the accused at about 11:00 or 11:15
AM near the hostel of Degree College and
on search found a .315 bore countrymade
pistol, two live cartridges and discharged
cartridge from the possession of accused
Ajai Kumar. The accused were lodged at
the police station at 13:15 hours on the
same
day.
The
Investigating
Officer
inspected the scene of occurrence on
18.5.1982, examined witnesses Ramhit
Singh,
Kishanpal,
conducted
spot
inspection and prepared site plan (Ext.Ka15) and after concluding the investigation
submitted
chargesheet
(Ext.Ka-16)
on
1.6.1982. The autopsy was conducted by
Dr. G.J. Gupta, Medical Oficer, District
Hospital, Banda (PW-6) at 12:10 Noon on
17.5.1982. The deceased was aged about 18
years and had died about one and half days
before.

External
examination:-
Young
man of average built, rigor mortis passing
off from the upper extremities and partially
present
in
the
lower
extremities,
decomposition set in, foul smell, abdomen
penis scortum swollen up, blisters are
occasionally present. Skin peeled off at
places.

Antemortem Injuries:-

(1) gun shot wound of entry 1.5 cm
X 1.5 cm X chest cavity deep on the front
of left side chest 12 cm above and lateral to
left
nipple
blackening,
charring
and
tattooing
present.
Direction
inward,
backward and downward towards right
side. One section heart perforated and
lacerated.
Left
lung
lacerated
and
perforated at one place. 4th rib front left
fractured.
(2) Gun shot wound of exit 1 cm X
1 cm X communicating to injury No.1, on
the back of chest right side 5 cm lateral to
verbatim spin and 7 cm below and medial
to inferior angle of scapula margin
lacerated and everted.

Internal
Examination:-
Pleura
perforated on left side and lacerated on
right side. Right chamber of heart full and
left empty weight 240 grams. Free and
clotted blood about 1.5 litres present in
chest cavity. Stomach contained about 200
grams of semi digested food material.
Small and large intestine contain faecal
matter and gases.

In the opinion of Dr. G.J. Gupta
cause of death was due to shock and
haemorrhage resulting from ante mortem
gun shot injuries. Doctor also recovered a
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
blood stained under shirt (Ext.Ka-4) and
underwear (Ext.Ka-3) and pant (Ext.1)
from the dead body and forwarded the
same to the police station. The accused
have thus been committed for their trial
upon being charged, stated as above.

5. The prosecution, in support of
its case examined Rakesh Kumar Singh,
complainant, as PW-1; Ramhit Singh as
PW-2 and Kishanpal as PW-3 on facts. PW4, Bahadur Singh was Head Moharrir of the
police station Atarra and he proved chik
FIR, general diary entries and other police
papers. PW-5, Station Officer, Ramji
Mishra, proved the investigation of the case
as indicated above. Dr. G.J. Gupta, PW-6,
proved postmortem examination of the
deceased and memo Ext.Ka20, which he
had prepared at the time of examination.

6. The prosecution tendered in
evidence report of Chemical Examiner
(Ext.Ka 22) and of serologist (Ext. Ka 23),
according to whom blood stained shirt
(Ext.2), chips of the Bench (Ext-6), Banyan
(Ext.4), underwear (Ext.3) and pant (Ext.
1), were found to contain human blood and
the pant (Ext.-1), chips (Ext-6) and Banyan
(Ext.-4) were found to contain blood of
group "O'.

7. The accused denied the
allegations of the prosecution and their
complicity in the occurrence of this case in
their statement recorded under Section 313
Cr.P.C. Accused Ajai Kumar stated that
S.O. of P.S. Atarra namely, Shri Ramji
Mishra, was highly inimical with his uncle
Shiva Prasad Gupta, who edited weekly
newspaper 'GANTAVYA LAHAR', that his
uncle
had
published
articles
against
misdeeds of Shri Ramji Mishra and that the
news item in respect thereof were supplied
by him and that there fore Shri Ramji
Mishra implicated him falsely in the case.
He also alleged that
deceased Avdhesh Singh was not
resident of village Musasi and was also not
related as nephew of P.W.-2 Ramhit. The
accused also alleged that he was taken
away by the police from his house at about
8:00 A. M. on 16.5.82 and was implicated
in the case. Accused Satish Kumar stated
that he was taken away by the police from
his house at about 9:00 A. M. on 16.5.82
and was required by S.O. Ramji Mishra to
become a witness against accused Ajai
Kumar, that when he declined to become a
false witness, he too was implicated in the
case. The accused also alleged that there
had been ill will between him and accused
Ajai Kumar and that he had instituted a
criminal case under section 324 IPC against
Ajai Kumar.

8. After hearing counsel for
parties, the accused were called upon to
enter in defence. Accused examined Kali
Charan, Assistant Judicial Assistant of
Collectorate as D.W.1 to state that special
report of this case, which is received at the
residence of District Magistrate was
received in his office on 22.5.82 and that
endorsement was made : Send to A.J.A.: by
Shri R.C.Dixit for Collector on 22.5.82.
The witness brought file of the special
report and made statement with reference
to the same. The said special report has
been brought on record as Ext. Kha 3. The
accused
further
examined
S.U.Khan,
Station Master, Atarra Railway Station as
D.W.-2, to state that on the night between
15 and 16.5.1982, three tickets were sold at
Atarra Railway Station for Jhansi, that on
that night Bundelkhand Express arrived
Atarra Railway Station at 1:12 AM and left
for
Jhansi
at
1:17
AM
and
that
Bundelkhand
Express
arrived
Atarra
Railway Station at 3:23 AM from Jhansi.
4 All. Ajai Kumar Gupta Vs. State of U.P.
1113
The
accused
have
also
filed
some
documents, which will be dealt with at
appropriate stage in this judgement.

9. There can be no doubt that
Avdhesh singh, a young man aged about 18
years, was murdered in the wee hours of
16.5.82. There can also be raised no doubts
that dead body of Avdhesh Singh was
found on a woođen bench lying in front of
the shop of Badku close towards south of
Atarra Railway Station. It is also borne out
from the evidence that the assailant fired a
gun shot which caused gun shot wound of
entry on the front of left side chest 12 cm
above and lateral to left nipple and
corresponding gun shot wound of exit on
the back of chest right side from close
range, say few inches, as blackening,
charring and tattooing was present. It is
also not denied that the Investigating
Officer found dead body of Avdhech Singh
on the bench in front of the shop of Badku.
The accused persons had come up of age at
the time of incident and were of young age
at the time of incident. In essence, the
defence denied participation of present
appellants in homicidal death of the
deceased Avadesh Singh.

10. The prosecution in order to
bring home its case relied upon evidence of
P.W.1 Rakesh Kumar Singh, complainant;
P.W.2 Ramhit Singh and Kishan Pal P.W.3.
P.W.-1, Rakesh Kumar Singh, had set up
the story of the prosecution in all its
essential details in the first information
report Ext. Ka-1, but was not inclined to
support the case in full in his evidence.
According to the evidence of P.W.-2,
Ramhit Singh, the case of the prosecution
had been that Rakesh Kumar Singh, Ramhit
Singh, Avdhesh Singh and Shyem Sundar
had escorted the Barat party from the house
of Raja Singh from village Musasi to
Atarra, that they took the Barat party by
Bundelkhand Express from Atarra Railway
station towards Jhansi, that they got down
at the corssing at Khurhand Railway
Station and came back by Bundelkhand
Express, that they got down at about 4:00
AM at Atarra Railway Station, that the
accused accosted Shyam Sundar at the
platform and came along with them at the
shop of Badku and hurled abuses and that
when Avdhesh Singh got up to protest,
accused Satish Kumar twisted his hand and
got him seated on the bench and that at his
exhortation accused Ajai Kumar whipped
out a country made pistol and fired at
Avdhesh singh and killed him.

11. P.W.1, Rakesh Kumar Singh, in
his evidence stated that he along with
Avdhesh Singh, Shyam Sundar and Ramhit
had come to Atarra to see off the Barat
party which was returning after the
marriage of sister of Raja Singh of village
Musasi, that they went upto Khurhand with
the Barat party and returned by another
train, that the accused met them at Atarra
Railway Station and accosted Shyam
Sundar, that they all came along with the
accused upto the shop of Badku and sat on
the bench lying there, that the accused
continued hurling abuses and that Avdhesh
Singh got up to protest as to why the
accused were hurling abuses. The witness
thereafter appeared not inclined to support
factum of the actual incident in which
Avdhesh Singh was murdered. He stated
that thereafter he went away on another
shop for getting tea prepared, that in the
meantime he heard a gun shot fire, that he
rushed and came there and that he saw
Avdhesh singh lying dead and the two
accused running away. P.W.-1, Rakesh
Kumar Singh, further stated that he at once
rushed to the police station and lodged
written report Ext.Ka-1 and that he had
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
correctly stated in the report as to what he
had seen. This witness in the report Ext.Ka
1 had stated that accused Satish Kumar
twisted the hand of Avdhesh Singh and that
on the exhortation of Satish Kumar,
accused Ajai Kumar whipped out a country
made pistol and fired at Avdhesh Singh by
his chest.

12. PW-2, Ramhit Singh has
testified before the Court that he was
identifying both the accused Ajai Kumar
and Satish Kumar prior to incident and he
identified them before the Court. He further
stated that informant Rakesh Kumar Singh,
who is before the Court is his nephew and
deceased Avadhesh Singh was also his
nephew. On fateful day marriage of the
sister of Raj Singh was scheduled in village
Musasi. The groom's party had come from
District Jalaun. It was intervening night of
15/16.5.1982. The groom's party went back
from
Atarra
by
train.
The
witness
accompanied
by
Rakesh,
Avadhesh
(deceased) and Shyam Sundar had come to
station to see off the party, which was
boarded in the train at around 3:00 AM in
the Bundelkhand Express, which was
running between Manikpur to Jhansi at
Atarra Railway Station. He also boarded
the train alongwith Avadhesh, Rakesh and
Shyam Sundar
and
travelled
up
to
Khurhand alongwith groom's party. They
disembarked from the train at Khurhand
and reached at Atarra Railway Station at
4:00 AM by Jhansi Manikpur Train from
Khurhand. Accused Ajai Kumar and Satish
Kumar met them at railway station Atarra,
who grabbed Shyam Sundar and stated that
he is gunda. The witness and his
companions objected to this and they
walked up to tea shop of Badku while
talking together. The shop was closed and
light was illuminating on electric poll. They
sat on the bench lying in front of the shop.
The accused Ajai Kumar and Satish Kumar
engaged in abusing throughout whereupon
Avadhesh stood up and asked them to
refrain from abusing them. Thereupon,
Satish Kumar grabbed hand of Avadhesh
and twisted it and forcefully made him to
sit on the bench and exhorted Ajai Kumar
to kill him. Ajay Kumar whipped out a
countrymade pistol from his west and
pointed out towards left side of his chest
and shot a fire. Avadhesh rolled down on
the bench and died. The incident was
witnessed by the witnesses Rakesh Kumar,
Shyam Sundar and one another person
named as Krishna Pal. They cried on the
incident whereupon the accused persons
fled away in southwards of the town. He
stayed near the dead body and Rakesh
Kumar went to police station Atarra to
lodge a report. A Sub-Inspector and
constable reached the spot at around 6:00
AM. The witness opened a sealed bundle
comprising a pant, bushirt, underwear,
banyan and a pair of chappal on which
material Ext.1 to 5 were marked. He
identified these articles as those worn by
the deceased at the time of incident. The
witness also stated that the deceased
Avadhesh was his real nephew and Rakesh
(PW-1) is not closely related to him. In
cross-examination this witness denied his
statement recorded by the Investigating
Officer under Section 161 Cr.P.C. that on
that date marriage of his daughter was
scheduled in his house and clarified that he
stated to Investigating Officer that on that
date marriage of his niece was scheduled
and he is not aware as to how the
Investigating Officer had written in his
statement that marriage of his daughter was
scheduled. He also denied statement under
Section 161 Cr.P.C. that Rakesh Kumar
Singh was his 'Bhanja' (sister's son). He
also stated that he had told the Darogaji
that Satish Kumar exhorted Ajai Kumar to
4 All. Ajai Kumar Gupta Vs. State of U.P.
1115
kill Avadhesh by calling his mother's name
and if Darogaji has referring the abuse
hurled on Avadhesh by some other way, he
is not apprised of that. He had stated that he
has told the Darogaji that he stayed near the
dead body, when Rakesh went to lodge the
report at police station, if this fact is not
appearing in his statement, he is not able to
disclose its reason. Barat had visited the
venue of marriage on 13th date by train at
Badausa and he had visited the station to
receive the barat, which comprise 15
persons. 4 to 5 other persons also
accompanied him while receiving the barat.
The marriage was solemnized in the
intervening night of 13/14.5.1982. The
barat was scheduled to depart in the
morning of 15.5.1982. One Raghuraj Singh
of Musasi had stopped the barat by way of
courtesy, when it departed in the morning
of 15.5.1982. He had purchased tickets of
groom's party up to Jhansi for which
money was paid to him by father of Raj
Singh, which cost total Rs.156/-. The
witness and his 4 companions had not
purchased any ticket while returning from
Khurhand. There was a crossing at
Khurhand railway station and for that
reason, the descended from train at
Khurhand and went back. There was much
rush in the train on that night. He has been
posted as police constable and retired 16
years earlier to his statement before the
Court. There were a number of passengers
in musafirkhana of railway station Atarra
on that date. They did not find any police
constable at the railway station at the time
of incident. They sat on the bench with a
view to let the accused move from there.
The deceased was sitting on the bench
while keeping his face northwards. Shyam
Sundar and Rakesh were sitting on the
bench by the side of Avadhesh. There was
time gap of five minutes between their
descending at the platform and commission
of the offence. Shyam Sundar also
accompanied Rakesh after the incident to
lodge the report. The witness denied the
defence suggestion that he had not seen any
occurrence and the Sub Inspector of Police
got written report prepared in consultation
with the witness and his companions. He
further stated that the accused persons were
running shops at Atarra and had seen them
at Atarra.

12. PW-3, Kishan Pal, is also
projected as one of the persons who was
coming down from platform alongwith
informant and deceased and had seen the
occurrence. He is resident of Atarra town
and stated that he had to go to Chitrakoot
by train, which he missed, therefore, he
was coming back from railway station
towards town at about 4:00 AM. He heard
and saw the commotion in the nearby tea
and sweet shop, where murder had taken
place. In the cross examination, the witness
was declared hostile and in the crossexamination
by
the
prosecution,
he
reiterated that he had not seen how the
murder had taken place and who committed
the murder. He also reiterated that he did
not see the accused there. The witness
denied the prosecution suggestion that he
was not ascerting true facts in view of
being scared by accused persons. He also
denied the prosecution suggestion that he
witnessed the entire incident of commission
of murder of Avadhesh Singh by present
accused persons. He also stated that he had
requested folded hands to Investigating
Officer to spare him from to be a witness of
the incident.

13.

PW-4,
Head
Constable,
Bahadur Singh, stated that he was posted in
the month of April and May, 1982 at police
station Atarra as Head Moharrir. On
16.5.1982, the informant Rakesh Kumar
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
produced written report Ext.Ka-1 before
him and lodged chik report on the basis of
Ext.Ka-1 at 4:30 AM, on which Ext.Ka-2
was marked. He prepared this chik report in
his signature and hand writing. He further
stated that a special report was sent on
16.5.1982, vide GD Report No.9, at 9:30
AM by SHO Lalji Shukla to senior
officials. The written entry of special report
is made vide GD Report No.21, time 21:30
hours on same date. SHO Ramji Mishra
was present in the police station when this
case was registered and he undertook the
investigation of the case. The case was
registered after lodging of FIR vide GD
Report No.4, on which Ext.Ka-3 is marked.
The special report and its receiving report
were proved by this witness as Ext.Ka-4
and 5. he filed certified copies of extracts
of GD at the time of his evidence. He
further stated that constable Jagdeo and
Jeev Mandal made entry of their return at
police station after postmortem on dead
body of the deceased vide GD report
No.22, time 19:30 hours, dated 17.5.1982.
The Investigating Officer Shri Ramji
Mishra returned to police station on
16.5.1982 alongwith both the two arrested
accused persons namely, Ajai Kumar and
Satish Kumar and five bundles of sealed
case property and lodged them at police
station and a GD entry in this regard was
made by the report No.12 by him. He filed
certified copy of GD Entry on record as
Ext.Ka-6.

14. PW-5, Ramji Mishra, is
Investigating Officer of the case. He proved
steps taken during investigation. He also
proved inquest report being its author as
Ext.Ka-7 and stated that he conducted
inquest on the body of the deceased at
around 7:30 AM on the date of incident.
The dead body of the deceased was lying
on a bench in front of tea shop of Badku at
Railway Station Atarra. After conducting
inquest proceeding sent the dead body of
Avadhesh Singh after preparing police
papers relating to postmortem of the
deceased i.e. challan lash Ext.Ka-9 and
letters Ext.Ka-10 and 11 through two
constables. He also got the dead body
sealed after
inqeust proceeding. The
sleepers worn by deceased and his shirt
wee sealed and their inventory was
prepared which proved as Ext.Ka-12 and
Ka-13 during his evidence. He also stated
that he scratched the blood stains from the
bench on which dead body was lying and
collected the blood stained and plain pieces
of wood and got them sealed separately and
prepared its inventory as Ext.Ka-14. He
produced these articles before the Court
and on which Ext.Ka-5, 6 and 7 were
marked. He also stated that he arrested
accused persons on secret information at
around 11:00 AM near hostel of Degree
College. A .315 bore countrymade pistol
and two live cartridges, and one empty
cartridge
shell
were
recovered
from
accused Ajay Kumar Gupta. He produced
the accused persons at police station at
13:15 hours. He also stated that so long as
the case property remained with him, it was
in sealed condition. He also proved site
plan as Ext.Ka-15 being in his hand writing
and signature. He stated that after carrying
out
the
investigation,
he
submitted
chargesheet (Ext.Ka-16) on 1.6.1982. he
also filed statement of witnesses namely,
Rakesh Kumar and Krishna Pal as Ext.Ka17 and Ka-18 during his evidence.

15. PW-5, Investigating Officer,
Ramji Mishra, deposed that soon after the
case was registered at the police station, he
took up the investigation, that he recorded
the statements of complainant Rakesh
Kumar Singh and his companion Shyam
Sundar and that thereafter he reached the
4 All. Ajai Kumar Gupta Vs. State of U.P.
1117
scene of incident at about 7.30 A.M. The
police station was about one kilometre
away from the scene of incident and I
consider that the Investigating Officer lost
no unreasonable time in reaching the scene
of incident in course of investigation. The
Investigating Officer, as it appears from the
evidence, after the inquest proceedings
which were concluded at 9 A.M. ,and after
making recoveries and examining other
witnesses, rushed to apprehend the accused
persons whose presence in the town was
made known to him through his informant.
He deposed that he found the two accused
at about 11 A or 11.15 A.M near the hostel
of Degree College in the town of Atarra
and he arrested both of them. He also
deposed that accused Ajai Kumar was
found in possession of .315 bore country
made pistol with two live cartridges and
one discharged cartridge and that the
accused were deposited in the police station
at 1.15 P.M. on the same day. He further
deposed that he again came on the spot on
18.5.82 and examined. P.W. Ramhit Singh
who was summoned by him and that
thereafter he prepared site-plan Ext.Ka-15.

16. PW-6, Dr. G.J. Gupta, is author
of postmortem report of the deceased, who
proved the postmortem report as Ext.Ka-19
and stated that he prepared this in his hand
writing and signature. He in his evidence
stated that deceased was around 18 years of
age and there was gap of one and half day
between death and postmortem. Rigor
mortis had passed off from the upper
extremities but it was present in small
portion of lower extremities. There was
onset of marks of decomposition on dead
body. He elaborated antemortem injuries
and internal examination of dead body. He
stated that antemortem injuries found on
the dead body were sufficient to cause
death. These were caused by some firearm
like countrymade pistol or gun. He
retrieved the clothes worn on dead body
and prepared a bundle and sent the same
through police constables, after getting it
sealed. In cross-examination, he stated that
firearm injuries were caused to deceased
from a distance of 5 to 6 inches. Wound of
entry was found to be bigger than wound of
exit, which was due to reason of
decomposition. He also stated that even
after death, chemical process continues in
digestive system and for that reason, food
does not proceed further and gets blocked
on same place in the stomach. The
deceased might have taken meal one or two
hours before the incident.

16. Accused persons in their
statement under Section 313 Cr.P.C. stated
that the witnesses of fact have stated falsely
against them. They are not aware about the
time, place, mode and manner of the
incident. There was enmity between Shiv
Prasad Gupta, a family member of the
accused persons and S.I. Ramji Mishra, the
Investigating Officer of the case due to
reason that said Shiv Prasad Gupta had
published
an
article
in
his
weekly
publication "Gantavya Lahar" against said
Investigating Officer. The said police
officer falsely implicated the accused
persons in this case. They were not arrested
from the place where shown in the police
papers but they were arrested from their
home on 16.5.1982 at 8/9:00 AM. Accused
Satish Kumar also stated that he was forced
to testify against accused Ajai Kumar by
police officials and when he declined to
oblige them he was falsely implicated in
the case.

17. D.W.1, Kali Charan and D.W.-
2 S.U. Khan were examined as defence
witnesses. D.W.-1, Kali Charan, stated that
he was posted as Judicial Assistant in the
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
collectorate. The special report is received
from police station at the bungalow of
District Magistrate and from there it goes in
his office. He received a special report of this
case on 22.5.1982, which bears signature of
Sri R.C. Dixit. An order to the effect "sent to
A.J.A." is appended thereon. He produced
file before the court regarding special report
and In its column 11, the name of arrested
accused namely Ajai Kumar Gupta and
Satish Kumar is mentioned. He filed a copy
of special report which is marked as Ext.Ka3. In cross-examination, this witness could
not tell as to when this special report was
received in the bungalow of District
Magistrate.

18. D.W.-2, S.U. Khan stated that on
15/16.6.1982, he was posted as A.S.M. Head
Quarter, Banda and stated that he had brought
daily train cash book of Railway Station
Atarra dated 15/16.5.1982, three tickets for
Jhansi were sold from Railway Station Atarra
on that date. These tickets were sold after
12:00 hours in the night, which is entered in
register dated 16.5.1982. One ticket was
valued Rs.12.50/-. He also produced train
timing register, which shows that on that date
i.e.
16.5.1982,
Bundelkhand
Express
(towards Jhansi) reached at Atarra Station at
1:12 AM and departed at 1:17 AM.
Bundelkhand Express reached from Jhansi at
3:23 AM at said station. He was on station
duty in the night. He also stated that booking
gates closed after arrival of train and no ticket
can be sold to passengers after closing of
booking window. The passengers get their
ticket issued by T.T.E. thereafter. Sometimes
passengers take journey certificate from
guard after informing him.

19. Learned counsel for the
appellants submitted that PW-1, Rakesh
Kumar Singh, has stated at page No.28 of
his evidence that he scribed the written
report at police station and he has admitted
that prior to writing the report (Ext.Ka-1),
he was guided by the Head Muharrir as to
how the report should be written. He has
also stated that the barat reached at Atarra
railway station from Musasi to Atarra by
bus and the witness and his companions
reached at Atarra station around 10:00 PM.
In fact, appellants have been falsely
implicated at the instance of PW-5, Ramji
Mishra, the Investigating Officer.

20. He further submitted that from
statement of PW-1, at page No.28, it
appears that the FIR has been lodged at the
instruction of police and not in natural
manner. The witnesses are not reliable. PW1 has stated that marriage party left the
railway station Atarra by Bundelkhand
Express whereas PW-2, Ramhit, has stated
that marriage party left from Atarra railway
station to Banda by passenger train, which
is material contradiction in their mutual
statements at certain points. PW-2, has
stated tat page No.35 in his evidence that
he had purchased 15 tickets from Atarra to
Jhansi
for
Bundelkhand
Express
for
Rs.156/-, paid by Raja Singh whereas
D.W.-2, the Assistant Station Manager, who
is an independent and official witness has
stated that in the intervening night of
15/16.5.1982, only three tickets were sold
for Railway Station Atarra to Jhansi. D.W.-
2 als sated that the value of one ticket is
Rs.12.50/-. Thus, total value of 15 tickets
accordingly comes to Rs.187.50/- and not
Rs.156/-, as told by PW-2. The prosecution
evidence is also very much discrepant
inasmuch as the key witness Raj Singh,
who was host of marriage ceremony of his
sister has not been produced in evidence.
Even, none of the members of the marriage
party (barat) was examined in support of
prosecution case. He further submitted that
PW-1, has stated that he purchased tickets
4 All. Ajai Kumar Gupta Vs. State of U.P.
1119
for themselves from railway station Atarra
to railway station Khurhand but this fact
has been denied by PW-2 and he has stated
that he had not purchased any ticket for
himself and his companions. PW-1 has
stated
in
his
cross-examination
that
marriage party came from the village to
railway station by bus whereas PW-2 has
stated that it came by a tractor from village
to railway station. Thus, the prosecution
version that witnesses escorted the barat
from Atarra railway station to Khurhand is
completely absurd and does not appeal to
common sense. PW-1 has denied that he
had seen the actual incident of firing
allegedly made by accused Ajai Kumar
Gupta upon deceased and has stated that he
had only seen back posture of accused
persons while they were fleeing away.

21.