# Ajayraj @ Raja (In Jail) v. State of U.P

- **Citation:** (2023) 1 ILRA 1362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-14
- **Case number:** Criminal Appeal No. 5737 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajayraj-raja-in-jail-v-state-of-u-p-49124
- **Pages:** 5

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- There is no doubt that when an
occurrence takes place inside the house,
only the family members and the relatives
are eye witnesses but in this case in hand,
the testimony of alleged eye witnesses do
not
inspire
confidence-Informant
has
admitted that he had not seen the
occurrence. PW-4 and PW-5 are other
alleged eye witnesses but there are
several material contradictions in their
evidence which go to the root of the case.

Although testimony of family members of the
deceased cannot be doubted merely on the
ground that they are family members of the
deceased,
but
where
there
are
material
contradictions in the testimony of the alleged
eye witnesses which go to the root of the case
of the prosecution then such testimony is
rendered doubtful and unreliable.

Criminal Law- Indian Evidence Act, 1872-
Section
3-
There
is
no
doubt
that
1 All. Ajayraj @ Raja Vs. State of U.P.
1363
antemortem
injury
shown
in
the
postmortem report could be inflicted by
fire arms but prosecution has to prove
beyond reasonable doubt that fire arm
was used by accused - appellant. The
testimony of PW-6 is not wholly reliable
and
not
corroborated
by
any
other
evidence. The accused can be convicted on
the basis of sole testimony of eye witness
but his testimony should be wholly
reliable. In our case, no testimony of any
alleged eye witness is found reliable.

Where the testimony of the eye witnesses is
wholly unreliable then the accused cannot be
convicted merely because the ante mortem
injury in the post mortem report corroborates
the ocular allegation. (Para 16, 19, 21)

Criminal Appeal allowed. (E-3)

## Text

1362 INDIAN LAW REPORTS ALLAHABAD SERIES
deposited the rent @ 1,000/- per month
after service of notice. The defendanttenant has not deposited the admitted rent
in the Court, hence, it is concluded that the
defendant-tenant has defaulted in making
payment of the rent. Thus, point for
determination no. 3 goes against the
defendant-tenant and in this regard the
finding recorded by the trial Court is
affirmed.

18. The point for determination no.
4;

On
the
basis
of
the
aforesaid
discussions, it has been proved that the
defendant-tenant is the defaulter, he has not
paid the rent and taxes, there is no defect in
notice, hence, the trial Court has wrongly
dismissed the suit in respect of relief of
eviction. Since it is found that the suit was
not bad under Section 106 of the Transfer
of the Property Act, therefore, the suit had
to be decreed in toto for the reliefs claimed
by the plaintiffs-landlords.

19. Both the revisions are decided
accordingly.

Order

(i). Civil Revision No. 465 of 2012 is
dismissed with cost.

(ii). Civil Revision No. 486 of 2012 is
allowed and the decree of eviction from the
shop in suit is also passed against the
defendant-tenant (Ramesh Kumar Singh) in
addition to the other reliefs already granted
by the trial Court.

(iii). Let a copy of this order be placed
on the record of Civil Revision No. 486 of
2012 (Virendra Singh and Others Vs.
Ramesh Kumar Singh).

(iv). A copy of this judgment be sent
to the Court of Judge Small Causes
Court/Additional District Judge Court No.
1, Hathras, for keeping on the concerned
file.
----------
(2023) 1 ILRA 1362
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 5737 of 2013

Ajayraj @ Raja ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.C. Srivastava, Sri Uttar Kumar
Goswami (A.C.)

Counsel for the Respondent:
G.A., Sri S.K. Dubey

Criminal Law- Indian Evidence Act, 1872-
Section 3- There is no doubt that when an
occurrence takes place inside the house,
only the family members and the relatives
are eye witnesses but in this case in hand,
the testimony of alleged eye witnesses do
not
inspire
confidence-Informant
has
admitted that he had not seen the
occurrence. PW-4 and PW-5 are other
alleged eye witnesses but there are
several material contradictions in their
evidence which go to the root of the case.

Although testimony of family members of the
deceased cannot be doubted merely on the
ground that they are family members of the
deceased,
but
where
there
are
material
contradictions in the testimony of the alleged
eye witnesses which go to the root of the case
of the prosecution then such testimony is
rendered doubtful and unreliable.

Criminal Law- Indian Evidence Act, 1872-
Section
3-
There
is
no
doubt
that
1 All. Ajayraj @ Raja Vs. State of U.P.
1363
antemortem
injury
shown
in
the
postmortem report could be inflicted by
fire arms but prosecution has to prove
beyond reasonable doubt that fire arm
was used by accused - appellant. The
testimony of PW-6 is not wholly reliable
and
not
corroborated
by
any
other
evidence. The accused can be convicted on
the basis of sole testimony of eye witness
but his testimony should be wholly
reliable. In our case, no testimony of any
alleged eye witness is found reliable.

Where the testimony of the eye witnesses is
wholly unreliable then the accused cannot be
convicted merely because the ante mortem
injury in the post mortem report corroborates
the ocular allegation. (Para 16, 19, 21)

Criminal Appeal allowed. (E-3)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. Heard Sri Uttar Kumar Goswami,
learned
counsel
Amicus
Curiae
for
appellant and Sri Patanjali Mishra, learned
A.G.A. for the state.

2. This appeal challenges the
judgment and order dated 16.11.2013
passed by Additional Sessions Judge, Court
No.12, District Meerut, in Session Trial
No.664 of 2010( in Case Crime No.665 of
2009) (State of U.P. Vs. Ajayraj @ Raja
and others) convicting accused-appellant,
under Section 302 of Indian Penal Code,
1860 (hereinafter referred to as 'IPC') and
sentenced the accused-appellant to undergo
imprisonment
for
life
with
fine
of
Rs.50,000/- and in case of default of
payment of fine, further to undergo
imprisonment for a period of one year.

3. Brief facts as culled out from the
record are that P.W.1, Vinod Kalanjari,
gave first information the police authority
stating therein that at around 6:15 in the
morning of 1.12.2009, three unknown
young persons barged in his house at
Kalanjari Gaon and fired indiscriminately
with the intention to cause death of his
younger brother Subodh Kumar, as a
consequence of which his brother received
grievous injuries and accused persons
escaped firing aerial shots. He carried his
injured brother with the help of his family
members and villagers to K.M.C. Hospital
for treatment and got him admitted where
his treatment is going on and he continues
to be critical.

4. The then Constable Clerk PW-3 at
P.S.
Jani
had
prepared
Chik
First
Information Report Ex Ka-4 for the offence
under Sec. 307 at 8:05 in the morning itself
of 1-12-09 on the basis of aforesaid written
complaint. Entry of the aforesaid was done
by constable clerk PW-12 posted at P.S.
Jani in report no. 14 of the G.D. on the
same day at 8.05 in the morning as Ex Ka13. Case was comitted u/s 302 of IPC after
the death of injured during treatment,
postmortem was done.

5. On being summoned, the accusedperson pleaded not guilty and wanted to be
tried. The offence for which accused was
charged was triable by the Court of
Sessions, hence, the accused-appellant was
committed to the Court of Sessions. The
learned Sessions Judge framed charge
under Section 302 of IPC.

6. The Trial started and the
prosecution examined 12 witnesses who are
as follows:

1
Vinod Kumar
PW1
2
Dr. Sanjay Sharma
PW2
3
Pradeep Kumar
PW3
4
Radha
PW4
5
Abhimanyu
PW5
6
Seema
PW6
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
7
Satyapal Singh
PW7
8
Pratap Singh
PW8
9
Dr. Sanjeev Lalwani
PW9
10
Rajveer Sharma
PW10
11
Chandra
Prakash
Chaturvedi
PW11
12
Gyandas
PW12

7. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.4
2
Written Report
Ex.Ka.1
3
Application
Ex.Ka.10
4
Supurdginama
of
dead body
Ex.Ka.9
5
Recovery Memo
EX.Ka10
6
Recovery memo of
empty cartridges and
cartridge
Ex.Ka.6
7
Letter of CMO
Ex.Ka.6A
8
Medical examination
report
Ex.Ka.3
9
Statement
Ex.Ka.8
10
Letter
to
Autopsy
Surgeon
Ex.Ka.7
11
Postmortem report
Ex.Ka.11
12
Panchayatnama
Ex.Kal6B
13
Charge sheet
Ex.Ka.12

8. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellant as mentioned
above.

9. Learned amicus curiae for appellant
first of all submitted that there is no eye
witness in this case. All the witnesses of
fact are planted. PW-1 (Vinod Kumar)
informant has admitted in his testimony
that he was not present at the place of
occurrence when the alleged occurrence
had taken place. P.W.-4(Radha) is the wife
of the deceased, she has narrated the
incident in her examination-in-chief. In her
examination-in-chief she has deposed that
she and her husband together came out of
gate. If it was so how she could further
depose that on the date of occurrence, she
did not see his Jeth and her son Kabya
because in her examination-in-chief she has
specifically stated that her son Kabya also
had reached to the place of occurrence. In
her cross examination, she has also stated
that she has given contradictory statement
that after two or three months of incident,
she had seen Kabya and Vinod and on the
date of occurrence, she did not see Kabya
and Vinod. She has stated that both the
aforesaid statements, are correct but it
cannot be so. Hence, the testimony of PW4 ( Radha) goes to show that she had not
seen the occurrence and her testimony is
hearse evidence.

10. PW-1 ( Vinod Kumar ) informant
has admitted in his testimony that he was
not present at the place of occurrence when
the incident had taken place. P.W5(Abhimanyu) is the son of brother of the
deceased. He has stated in his cross
examination that after the fire, he did not
go near the deceased and hide herself
behind the pillar. This is very unnatural
conduct of PW-5. In his cross examination,
he has stated that he did not tell to his
father that accused had murdered his uncle.
This is also very unnatural and cannot be
believed. His testimony also does not
inspire confidence. He has also stated that
after departure of accused person, his father
and cousin brother( son of the deceased )
also came at the spot on hearing the sound
of firing. This statement is very much in
contradiction with the statement given by
PW-4.
1 All. Ajayraj @ Raja Vs. State of U.P.
1365

11. These aforesaid contradictions
have argued by learned amicus curiae and
after that he vehemently submitted by PW6 is daughter of the brother of deceased and
she is star witness of the prosecution. Her
testimony is also goes to show that she has
not seen any occurrence. Even the
Investigating Officer has not recorded her
statement during the investigation.

12. It is further submitted by learned
amicus curiae for appellant that only the
appellant- accused is charge-sheeted by the
Investigation Officer and no weapon is
recovered from him. The Trial Court has
wrongly convicted the accused and the
impugned judgment is liable to be set aside.
The Investigating Officer has recovered the
empty cartridge of different bore from the
place of occurrence but no weapon was
ever recovered from the accused. Hence,
the prosecution also failed to connect that
the fires have been opened by the accused -
appellant. Hence, the connecting evidence
is also missing in this case.

13. Learned counsel appearing on
behalf of State opposed the aforesaid
submission made by learned amicus curiae
for appellant and contended that PW-6 is
the family member of the deceased and she
has told the name of accused in her
statement. It is also submitted that the
Investigating Officer has recovered two
empty cartridge of 32 bore and one empty
cartridge of 315 Bore along with bullet
from the courtyard of house of the
deceased.

14. Antemortem injuries in the
postmortem report are fire arm injuries
which could be inflicted by the weapon of
the aforesaid bore. It is vehemently
submitted that PW-6 has identified the
accused- appellant in Court during her
testimony. Hence, there is no infirmity and
illegality in the impugned order/ judgment
which calls for any interference by this
Court.

15.

We
have
considered
the
submission made by learned Amicus
Curiae for appellant and learned AGA for
State and perused the record.

16. Learned Trial Court has opined
that the occurrence of this case had taken
place inside the house of deceased. Hence,
in such situation only the family member
can be the eye witness. There is no doubt
that when an occurrence takes place inside
the house, only the family members and the
relatives are eye witnesses but in this case
in hand, the testimony of alleged eye
witnesses do not inspire confidence.

17. Informant has admitted that he had
not seen the occurrence. PW-4 and PW-5 are
other alleged eye witnesses but there are several
material contradictions in their evidence which
go to the root of the case. PW-6 is also the
family member and the learned AGA has
contended that she had identified the appellant
at the time of her testimony but in her opinion
the conduct of this witness is highly unnatural.
She has stated in her cross examination that at
the time of occurrence, her father was not
present in the house and after returning also her
father did not ask from her or other family
members regarding the incident. She has further
stated that nobody in the family told to the
police authority that as to who had fired on the
decease. It is also pertinent to note that
Investigating Officer did not record the
statement of this witness, during the course of
investigation under Section 161 Cr.P.C. as
stated by learned Amicus Curiae for appellant.

18. Moreover, according to her, all
other family members were also in the
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
house at the time of occurrence but their
testimony is not found liable as discussed
above.

19. There is no doubt that antemortem
injury shown in the postmortem report
could be inflicted by fire arms but
prosecution has to prove beyond reasonable
doubt that fire arm was used by accused -
appellant. The testimony of PW-6 is not
wholly reliable and not corroborated by any
other evidence. The learned Trial Court has
convicted the appellant by placing reliance
on the testimony of alleged eye witnesses
who are family members of the deceased
but their evidence is not found reliable.

20. In our considered view, as
discussed above, their testimony is not
found reliable and prosecution have failed
to prove that the offence is committed by
accused - appellant. It is also pertinent to
mention that the FIR of this occurrence as
alleged is exaggerated because in the FIR,
it is mentioned that there were three
persons who had indiscriminately fired at
the deceased. While during the course of
investigation the evidence was found only
against the appellant as per Investigating
Officer and only the appellant was chargesheeted. This fact goes to show that there is
exaggerated version of the incident in the
FIR and the informant has not seen the
occurrence because in his testimony as
PW-1, he has admitted this fact that he had
not seen the incident and he was not
present at the house when the incident took
place. It is mentioned in the FIR that there
were three unknown persons who had
committed offence and the informant did
not know their names. No identification
parade was done.

21. The accused can be convicted on the
basis of sole testimony of eye witness but his
testimony should be wholly reliable. In our
case, no testimony of any alleged eye witness
is found reliable by us and we are of the
considered opinion that the accused - appellant
has wrongly been convicted and sentenced by
the learned Court below as he was entitled to
be acquitted on the basis of doubt created by
the prosecution evidence, hence, we upturn the
impugned judgment and the accused-appellant
is entitled to be given benefit of doubt as
prosecution has failed to prove the case against
him beyond reasonable doubt.

22. Appeal is liable to be allowed and is,
accordingly, allowed. The conviction and
sentence of the accused- appellant is set aside.
He is acquitted of the charge framed against
him. The amount of fine be refunded to the
appellant, if already deposited. The appellant
be set free forthwith, if not wanted in any other
cases.

23. The record and proceedings be sent
back to the Trial Court forthwith.

24. We direct the High Court Legal
Service Committee to disburse a sum of
Rs.15,000/- to Sri Uttar Kumar Goswami,
learned Amicus Curiae for his well
assistance.
----------
(2023) 1 ILRA 1366
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Contempt Appeal (D) No. 2 of 2022

Sanjay Kumar ...Appellant
Versus
Santosh Kumar Srivastava ...Respondent