# Akhilesh @ Pappu (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-06
- **Case number:** Criminal Appeal No. 1217 of 1993
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-pappu-in-jail-v-state-of-u-p-48563
- **Pages:** 23

## Headnote

Law
-Code
of
Criminal
Procedure,1973-Sections 374(2) - Indian
Penal
Code,
1860-Sections
302/34challenge to-conviction- motive to commit
murder-deceased built toilet in front of
the house of the accused party, to which
they were objecting and had threatened
the
deceased-PW-1
and
PW-2
have
throughout disclosed active participation
of the accused-ocular version explains the
travel of the bullet in a downward
direction-the participation of appellant in
the occurrence and sharing of common
intention with co-accused to kill the
deceased
proved
beyond
reasonable
doubt.(Para 1 to 39)
The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,950 of 78,275. This is a partial read: ask again with offset=39950 for what follows._

5 All. Akhilesh @ Pappu Vs. State of U.P.
611
being a consequence of infliction of blow
from an axe.

25. As we find the ocular account
rendered by PW-1 and PW-3 reliable and
not inconsistent with medical evidence; and
that the first information report was
promptly lodged considering the distance
and the mode of transport available, we do
not find any error in the judgment and
order of conviction recorded by the trial
court. More so, when it is a case where a
natural father and step sister of the accused,
with
whom
no
ill-will
could
be
demonstrated, have deposed against the
accused-appellant. Keeping in mind that
accused-appellant's natural father and stepsister (who was brought up as real sister of
the
accused-appellant)
have
deposed
against him and have proved the charge, we
do not wish to draw an adverse inference
for non-production of Harphool who is
stated to have left the employment due to
threat extended by the in-laws of the
accused-appellant as stated by PW-3. We
are therefore of the considered view that
the prosecution has succeeded in proving
its case against the appellant beyond
reasonable doubt.

26. For the reasons above, the
judgment and order of the trial Court is
affirmed. The appeal is dismissed.

27. The appellant is reported to be on
bail. His bail bonds are cancelled and
sureties are discharged. He shall surrender
before the court concerned forthwith from
where he shall be sent to jail to serve the
sentence awarded by the trial court.

28. Let a copy of this order be sent to
the trial court along with the record for
information and compliance.
----------
(2022)05ILR A611
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 1217 of 1993
Connected with
Criminal Appeal No. 1300 of 1993

Akhilesh @ Pappu ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.S. Sengar, Sri Adarsh Bhushan, Sri
Jeetandra Kumar Sharma, Sri Sushant, Sri V.P.
Srivastava (Senior Adv.)

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure,1973-Sections 374(2) - Indian
Penal
Code,
1860-Sections
302/34challenge to-conviction- motive to commit
murder-deceased built toilet in front of
the house of the accused party, to which
they were objecting and had threatened
the
deceased-PW-1
and
PW-2
have
throughout disclosed active participation
of the accused-ocular version explains the
travel of the bullet in a downward
direction-the participation of appellant in
the occurrence and sharing of common
intention with co-accused to kill the
deceased
proved
beyond
reasonable
doubt.(Para 1 to 39)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Thaman Kumar Vs St. of UT of Chandigarh
(2003) 6 SCC 380.

2. Anil Rai Vs St. of Bih. (2001) 7 SCC 318
612 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Punjab Singh Vs St. of Har. (1984) Supp SCC
233

4. Abdul Sayeed Vs St. of M. P. (2010) 10 SCC
259

5. CBI & anr. Vs Mohd. Pervez Abdul Kayyum &
ors. (2019) 12 SCC 1

6. Sukhdeep Singh Vs St. of U.P. (2010) 2 SCC
177

(Delivered by Hon'ble Manoj Misra, J.)

1. These two appeals question the
judgment and order dated 07.07.1993
passed
by
the
Additional
Sessions
Judge/Special Judge (E.C. Act), Etawah in
Sessions Trial No. 11 of 1992 convicting
Arvind Kumar (appellant in Criminal
Appeal No. 1300 of 1993), under Section
302 I.P.C., and Akhilesh @ Pappu
(appellant in Criminal Appeal No. 1217 of
1993), under Section 302 read with Section
34
I.P.C.,
and
sentencing
them
to
imprisonment for life. As the two appeals
arise from a common judgment and order,
they are being decided by a common
judgment and order.

INTRODUCTORY FACTS

2. On a written report (Exb. Ka-1),
scribed by Dev Narayan Mishra (not
examined), signed by Smt. Sobha Awasthi
(PW-1), first information report (FIR) was
registered at P.S. Auraiya, District Etawah
on 21.08.1991 at 7.45 am, vide GD No. 15
(Exb. Ka-5) of which Chik FIR (Exb. Ka-4)
was made/ prepared by Srinarayan Awasthi
(PW-6). It is alleged in the FIR that the
accused-Arvind Kumar (appellant in Crl.
Appeal No. 1300 of 1993) and Akhilesh @
Pappu (appellant in Crl. Appeal No. 1217
of 1993) are both sons of Kunwar Pal and
they live across Kharanja (vertical bricklaid road), right in front of the informant's
house. It is alleged that informant's husband
Satish Chand (the deceased) had built a
latrine on the south eastern corner of her
house which falls in front of Kunwar Pal's
house. As the toilet was in front of Kunwar
Pal's house, Kunwar Pal and his sons were
not happy with it and were building
pressure on the deceased to remove the
toilet, but the informant's husband was not
agreeable. Two days before the incident,
the accused-appellants had threatened the
informant in connection with that issue. It
is alleged that in the night of 20/21.08.1991
while informant was sleeping in a room, on
the southern side of her house and her
husband (the deceased), her son (Saurabh)
and daughters Km. Seema (PW-2) and Km.
Tapasya were sleeping in the courtyard,
where a lighted lantern was hanging as
usual, at about 2 am, informant's sleep got
disturbed because of noise. When she woke
up, she saw that her husband (the deceased)
was engaged in a scuffle with Arvind
whereas Arvind's brother (Akhilesh) was
pressing the mouth of her daughter (Km
Seema-PW-2)
to
restrain
her
from
screaming. It is alleged that as soon as the
informant
raised
an
alarm,
Akhilesh
exhorted Arvind to finish off the deceased.
Upon which, a shot was fired by Arvind at
the deceased, who fell and died. After
firing the shot, Arvind and Akhilesh
escaped by scaling the wall of the southeast corner of a bathroom of her house. The
informant alleged that there was a third
person also, who was sitting on the wall
and keeping a watch on the incident and as
soon as the incident was over, he ran away.
In the report it is alleged that the entire
incident was witnessed in the light of the
lantern. It was also alleged that Shyam
Sundar Mishra (not examined) had also
noticed these three accused jumping off the
wall and escaping in the light of a torch.
5 All. Akhilesh @ Pappu Vs. State of U.P.
613
Informant alleged that the third person is
not known to her but she can recognise him
if he is produced in front of her. The FIR
also alleges that an empty cartridge was
found lying at the spot. Upon registration
of the FIR, inquest was conducted by S.I.
R.N. Sharma (not examined) under the
direction of PW-5. The inquest report (Exb.
Ka-6) describes the body as having been
laid on a Chadar (bed-sheet) spread on the
ground.

3. The autopsy was conducted by Dr.
R.N. Sharma (PW- 4) at about 3.30 pm on
22.08.1991. The autopsy report (Exb. Ka-3)
recites:-

EXTERNAL EXAMINATION:

Average body built, rigor mortis
passed
from
both
the
extremities.
Decomposition started. Skin peeling off at
places.
Abdomen,
penis,
scrotum
distended.

ANTE-MORTEM INJURIES:

(i) Firearm wound of entry 1 cm
x 1 cm x chest cavity deep on the anterio
medial aspect of left shoulder 7 cm below
to head of humerus. Margins inverted;

Blackening,
tattooing
and
scorching around the wound;

(ii) Blackening, tattooing in an
area 15 cm x 12 cm extending from left
side face, sic, left side of neck and some
portion of chest.

INTERNAL EXAMINATION:

(i) Left side 3rd rib fractured, left
pleura
lacerated,
left
lung
lacerated,
pericardium lacerated, heart lacerated, one
metallic bullet found embedded in the
heart; stomach empty, small intestine had
digested food matter, large intestine had
faecal matter with gases.

CAUSE OF DEATH:

Death
due
to
shock
and
haemorrhage as a result of ante-mortem
injuries.

ESTIMATED TIME OF DEATH:

About 1 and 1⁄2 day before.

4. During investigation, the I.O.
collected an empty cartridge of .315 bore of
which seizure memo (Exb. Ka-10) was
prepared. The I.O. collected torches of
witnesses, namely, Gyan Prakash and
Ramjas (who was not examined), and
prepared custody memo (Exb. Ka-12). The
I.O. also collected blood-stained earth and
plain earth from the spot of which
memorandum (Exb. Ka-9) was prepared.
The I.O. had collected lantern from Shobha
Awasthi
(the
informant)
which
was
allegedly hung at the spot and in the light
of which the incident was witnessed. The
I.O. also collected torch from witness
Shyam Sundar. A composite collection and
custody memo of torch and lantern (Exb.
Ka-2) was prepared. The I.O. also prepared
site plan (Ex. Ka-13) and, after recording
the statement of witnesses and completing
the investigation, the I.O. Sri K.R. Mishra
(PW-5) submitted charge-sheet (Exb Ka16) against both the appellants. After taking
cognizance on the charge sheet and
committal of the case to the Court of
Session, vide order dated 02.04.1992, the
trial court framed charge against appellants
for the offence punishable under Section
614 INDIAN LAW REPORTS ALLAHABAD SERIES
302 I.P.C. The appellants denied the charge
and claimed trial.

5. During the course of trial, the
prosecution examined six witnesses: PW-1
(Shobha Awasthi) and PW-2 (Km. Seema),
namely,
the
wife
and
daughter,
respectively, of the informant, the eyewitnesses of the incident; Pahalwan (PW-3)
- the person who took the written report of
the informant to be lodged at the police
station concerned; Dr. R.N. Sharma (PW-4)
- the autopsy surgeon who conducted the
autopsy of the body of the deceased;
Keshav
Ram
Mishra
(PW-5)
-
the
investigating officer (I.O.) who proved
various stages of the investigation; and Sri
Narayan Awasthi (PW-6) - the constable
who made GD entry of the written report
and prepared Chik FIR thereof.

6. After the examination of the
prosecution witnesses, the incriminating
circumstances appearing in the prosecution
evidence were put to the accused while
recording their statement under Section 313
Cr.P.C. Both the accused denied their
involvement and claimed that they have been
falsely implicated because of the enmity
arising out of Pradhan Election. It was
claimed that in the Pradhan election, the
accused party had supported Bhogi Lal
Pandit as against Aditya Mishra, who was
elected Gram Pradhan. It was stated that
Aditya Mishra runs a school in which the
informant is a Principal. It was stated that the
informant was elected unopposed on the post
of Up Pradhan and for the above reason, the
informant bore enmity with the accused and
has, therefore, falsely implicated the accused.
The accused, however, did not lead any
evidence in defence.

7. The trial court after considering
the ocular account rendered by PW-1 and
PW-2 and upon finding that the incident
occurred within the house where the
presence of PW-1 and PW-2 was natural
and that there was no serious conflict
between the medical evidence and the
ocular account rendered by the witnesses,
taking
into
account
that
the
first
information report, in the facts of the
case,
was
not
delayed,
recorded
conviction and sentenced the appellants
as above.

8. We have heard Sri V.P.
Srivastava,
learned
senior
counsel,
assisted by Sri Sushant, for the appellants
and Sri J.K. Upadhyay, learned A.G.A.,
along with Miss. Sanyukta Singh, brief
holder, for the State and have perused the
record.

SUBMISSIONS ON BEHALF OF
THE APPELLANTS

9. Questioning the judgment and
order of conviction passed by the court
below, the learned counsel for the
appellants submitted as follows:-

(i) The prosecution has not been
able to prove a serious motive for the
crime;

(ii) The ocular account does not
inspire confidence for the following
reasons:-

(a) If the accused had entered the
house with an intent to finish off the
deceased and were armed with country
made pistol as is the ocular account, there
is no logical reason why the accused would
not use it at the first opportunity. The
allegation that there was a scuffle with the
deceased does not inspire confidence
5 All. Akhilesh @ Pappu Vs. State of U.P.
615
therefore, the incident occurred in some
other
manner
than
alleged
and
the
prosecution is hiding true facts;

(b) The ocular account would
suggest that the appellant (Arvind) fired a
shot at the deceased while the deceased was
in a standing position with his hands held
by appellant (Akhilesh). Holding of hands
by appellant (Akhilesh) is neither disclosed
in the FIR nor in the statement recorded
under Section 161 Cr.P.C. Further, if the
shot had been fired in that position, the
bullet would not travel in a downward
direction as is disclosed by the autopsy
surgeon. According to autopsy surgeon
(PW-4), the bullet travelled in a downward
direction which suggests that the shot was
fired while the deceased was lying on the
cot or he was at a much lower level than
the assailants;

(c) There appear two injury
marks on the body of the deceased
suggesting that two shots were fired at the
deceased whereas the ocular account is in
respect of solitary shot which renders the
ocular
account
untrustworthy
and
unacceptable.

(d) The empty cartridge was
recovered from bathroom at quite a
distance from the place where the shot is
alleged to have been fired. This suggests
that no one witnessed the incident and the
ocular account is untrustworthy.

(iii) There is an inordinate delay
in lodging the FIR. The incident allegedly
occurred in the night, at about 2 am,
whereas, the report has been lodged at 7.45
am after 5 hours 45 minutes. This delay
would suggest that either none was present
at the time of the incident and the
informant had to be called to the spot or it
is a case where the prosecution story was
developed after deliberation on the basis of
suspicion and guess work;

(iv)
That
the
independent
witnesses, namely, Gyan Prakash, Ramjas
and Shyam Sundar, amongst others, were
not examined as a result whereof an
adverse inference be drawn against the
prosecution case.

(v) The scene of crime was
altered before the I.O. could reach the spot
as the body was found lying on a Chadar
with
a
pillow
underneath
the
head
therefore, the ocular account cannot draw
support from the material collected during
the course of investigation.

SUBMISSIONS ON BEHALF OF
THE STATE

10. Per contra, the learned AGA
submitted that this is a case where the
incident took place within the house of the
deceased. PW-1 is the wife and PW-2 is the
daughter of the deceased. Their presence at
the spot, particularly during night hours, is
natural. The source of light has been
disclosed both in the first information
report and in the statement made to the I.O.
as also in the deposition before the Court.
The source of light was shown during
investigation and the I.O. also noticed the
lantern of which custody memo was
prepared and the same was produced as a
material exhibit. Since there was death of
the husband of the informant, who had two
daughters and a young son, it is not
expected that she would rush to lodge the
first information report leaving her two
daughters and a young son back therefore,
the written report, after being scribed and
signed by the informant, was dispatched
through PW-3, who lodged the same at the
616 INDIAN LAW REPORTS ALLAHABAD SERIES
police station in the early hours of the
morning. PW-3 confirmed that the written
report was handed over to him at about 3
am for being lodged at the police station.
Under these circumstances, it cannot be
said that there is a delay in lodging the
report.

11. In respect of the motive for the
crime, the learned AGA submitted that the
motive is a mental condition which none
can speculate upon therefore, whether, in a
given set of circumstances, the motive was
sufficient for the crime or not is not to be
guessed by the Court. Moreover, it is a case
based
on
ocular
account
therefore,
existence or non-existence of motive is not
of material significance. Otherwise also,
the prosecution has been successful in
proving the motive, which is, that the
accused party had been objecting to the
construction of the latrine which was right
in front of the house of the accused, across
the Kharanja.

12. In respect of there being conflict
between the ocular account and the medical
evidence, the learned AGA submitted that
there is no apparent conflict. The ocular
account is in respect of a single shot fired at
the deceased. Notably, there is a solitary gun
shot entry wound and the other injuriy
noticed is of discharge of gun powder. It has
been submitted that merely because the
direction of the shot was downwards it would
not be sufficient to disbelieve the ocular
account because as per the ocular account, the
deceased was caught hold by hand by
Akhilesh and was shot by Arvind. In that
moment, it is possible that the deceased
might have bent while Arvind in an erect
position would get an opportunity to fire from
close, on or about the shoulder region, with
barrel pointing downwards so that the bullet
could enter the chest cavity near the left
shoulder joint, break the rib, proceed
downwards, lacerate the lung and the heart
and get embedded there as was found during
autopsy. In that kind of a posture, if the shot
is fired from a country made pistol, there
would be discharge of gun powder resulting
in blackening of the face, neck and shoulder
region as is noticed while recording injury no.
2 therefore, it is not a case where two shots
were fired rather it is a case of single shot,
which gave rise to two noticeable injury
marks, one where the bullet penetrated the
body and the other which was on account of
discharge of gun powder. It has thus been
submitted that there is no conflict between
medical evidence and the ocular account.

13. In respect of the submission as to
why the accused would enter into a scuffle
if they had a desire to finish off the
deceased from the beginning, it has been
argued by the learned AGA that it is quite
possible that the accused might have had a
desire to molest the young daughter of the
informant (PW-2) and, in that process, the
deceased, who was sleeping in the
courtyard, might have got up, resulting in a
scuffle. It was submitted how the incident
started would not be relevant at this point.
What is relevant is that both the appellants
had entered the house at night. Both
participated in the crime. Appellant-Arvind
fired the shot whereas the appellantAkhilesh caught hold the deceased and
exhorted the other appellant to fire the shot.
As the ocular account is trustworthy and is
corroborated by medical evidence on these
material particulars, there would be no
justification to disbelieve the prosecution
account. It was thus prayed by the learned
AGA that the prosecution has been able to
prove its case beyond reasonable doubt,
hence, the appeal be dismissed.

PROSECUTION EVIDENCE
5 All. Akhilesh @ Pappu Vs. State of U.P.
617

14. Before we proceed to weigh the
rival submissions and analyse and evaluate
the prosecution case/ evidence, it would be
appropriate to notice the testimony of the
prosecution witnesses in some detail. The
prosecution examined as many as six
witnesses, their testimony, in brief, is as
follows:

15. PW-1 - Shobha Awasthi -
Informant - the wife of the deceased.
PW-1 deposed about the location of her
house being across the Kharanja, in front
of the house of the accused. She stated
that at the east corner of her house, her
husband got a latrine/toilet constructed
which falls right in front of the house of
the accused across the Kharanja to which
the accused had objection and were
pressing her husband to demolish the
latrine. In connection with which, on
19.08.1991, in the evening, there was an
altercation between the deceased and the
accused-Arvind and Akhilesh, who left
extending threats to the deceased. PW-1
stated that her husband was a teacher in
Nehru Inter College, Auraiya. She stated
that
in
the
night of
the
incident
(20/21.08.1991) while she was sleeping
near the opening of a doorless kothri (a
small room) of her house, on disturbance,
at about 2 am, she woke up and saw her
neighbour (Arvind) and her husband
grappling with each other. She came out,
and in the light of lantern lit there, she
saw that accused Akhilesh @ Pappu was
pressing the mouth of her daughter
(Seema-PW-2). Underneath the Chappar,
her other daughter (Tapasya) and son
(Saurabh), who are aged 14 years and 910 years, respectively, were lying on cot.
She stated that that day her husband
(deceased) was lying in the courtyard
(Aangan) on a cot. She also stated that
with Arvind and Akhilesh, there was one
unknown person who was squatting on
the wall of the house. She stated that
when she came out and raised an alarm,
Akhilesh exhorted Arvind to finish off
the deceased, upon which Arvind fired a
shot from close distance at the deceased.
The shot hit the deceased, he fell and
died. Whereafter, the accused escaped by
scaling the wall of the bathroom. Soon
thereafter, neighbours Shyam Sundar and
others arrived. They also told her that
they had noticed Arvind and Akhilesh in
the light of torch. PW-1 stated that she
dictated the report to Dev Narayan
Mishra. Thereafter she signed the report
and gave it to Pahalwan (PW-3), her
neighbour, to lodge the report at the
police station. The report was marked
Exhibit Ka-1. She identified the two
accused Arvind and Akhilesh in court.
She stated that the police had collected
the lantern and gave its custody to her.
She proved the custody memo and also
produced the lantern.

In her cross-examination, in
respect of construction of the house and the
latrine/toilet, she stated that her house was
constructed 13/14 years ago whereas the
toilet was constructed 6-7 years later. She
stated that prior to this toilet/latrine, there
was no other toilet/latrine in her house. She
stated that the latrine is covered and is
about two hands away from the Kharanja,
across which, there is house of the accused.
She stated that Kharanja is about 15 feet
wide with drain on both sides and the water
of both sides is discharged into that drain.
She was cross-examined, at length, to
ascertain whether she is aware of her
neighbourhood
and
surroundings,
but
nothing much could be elicited therefrom.
Consequently, we do not propose to notice
the same. Suggestions were put to her that
her husband had opened a bank with the
618 INDIAN LAW REPORTS ALLAHABAD SERIES
Gram Pradhan (Aditya Narayan Mishra) by
the name of Neelanchal and people thought
that he had lot of money. She denied both
the suggestions.

In respect of the source of light to
witness the incident, she stated that that day
was Ekadashi of Shukl Paksh meaning
thereby that it was close to full moon. She
stated that she is aware that on that day the
moon rises near about evening time and
sets by about 1.30 am in the night. She
denied the suggestion that because it was
month of August, kerosene lamp would
have had attracted insects therefore, it was
not there. She also denied the suggestion
that that night it was raining and as there
was a full moon, no lantern was lit.

In
respect
of
reporting
the
incident regarding extension of threat for
removal of the latrine, she stated that no
report in that regard is to her knowledge
but, if her husband has made a report, she is
not aware of that. She stated that the
accused raised objection regarding the
toilet on 19.08.1991 but not before. In
respect of the time when they raised
objection and extended threat, she stated
that when threat was extended it must be
between 5-6 pm. She stated that threat was
not extended by entering the house but at
the door of her house. Threat was extended
to
her
husband
(the
deceased)
and
altercation in that regard must have lasted
about an hour. She stated that she did not
venture out to listen to what all were being
said but her husband had told her that the
accused were threatening him. She stated
that she is not aware whether any other
person was present when threats were
extended. She denied the suggestion that
the story of extension of threat has been
introduced on legal advise.

On further cross-examination, she
stated that at the time of the incident when
she woke up, moon was there and the time
must have been around 1-1.30 am. She
stated that after killing her husband, the
accused escaped from her house at about 2
am. She stated that she saw the accused
when they were inside the house and not
when they escaped from the house.

In respect of the period during
which the accused stayed in the house of
the informant, PW-1 stated that between
her waking up, on sensing disturbance, and
the accused leaving the house at least half
an hour must have elapsed.

In respect of the scuffle between
her husband and the accused, she stated
that during the scuffle, Arvind held a pistol
in his hand but he did not assault her
husband with that pistol. She stated that at
the time of the scuffle, the deceased must
have been 1 and 1⁄2 pace north of the cot
where he had slept. She added that during
the course of the scuffle, she was making
attempts to come close to her husband but
when she was just few paces away, Arvind
fired at the deceased. She stated that, at that
time, Akhilesh had caught hold the
deceased. Prior to that, Akhilesh had been
pressing the mouth of her daughter
(Seema). She stated that Akhilesh caught
hold the deceased when she came near to
the deceased and it was only then, that
Akhilesh exhorted Arvind to fire.

In respect of the posture which
the deceased held at the time of fire, she
stated that when Arvind fired shot at the
deceased, deceased was in a standing
position and Akhilesh had pulled both his
hands from behind. She stated that when
the shot was fired, her husband's face was
5 All. Akhilesh @ Pappu Vs. State of U.P.
619
towards north and Arvind's face was
towards south.

In respect of the distance from
where the shot was fired, she stated that it
was a close shot and the pistol was near
about touching the body of the deceased.
She stated that at that point of time, the
distance between the deceased and Arvind
must have been less than one hand. She
stated that the shot struck the deceased on
left side chest. She stated categorically that
a single shot was fired and no sooner the
shot struck the deceased, the deceased fell
and the accused ran away. She also stated
that after the shot was fired, the pistol was
opened in the courtyard (Aangan). She
stated that she had not noticed any weapon
in the hand of Akhilesh or with the person
who was sitting on the wall.

In respect of arrival of the
villagers after the incident, she stated that
first
to
arrive
was
Shyam
Sundar;
thereafter, there were others including
Ramjas and Gyan Prakash. Shyam Sundar,
Ramjas and Gyan Prakash had also noticed
and recognised the accused while they were
running away.

In respect of the time when the
report was scribed, she stated that after the
villagers, namely, Shyam Sundar, Ramjas
and Gyan Prakash, arrived, at about 3 am,
she dictated the report to Devendra
Narayan Mishra, who is maternal uncle of
the deceased, and it was handed over to
Pahalwan to be lodged at the police station.

On further cross-examination, she
stated that she is a teacher in a Junior High
School since 1967 and since 1973 she is a
Principal. She stated that Aditya Narayan
Mishra, the current Gram Pradhan, is
manager of that institution.

In respect of the empty cartridge
recovered from her house, she stated that
empty cartridge had not fallen in the
Aangan (courtyard) but was noticed in the
bathroom and it was recovered by the
police from the bathroom and its position
was not disturbed by anyone. She stated
that she came to know about the cartridge
lying there when villagers had come in the
night and had noticed the same in the light
of torch.

She stated that neither she nor
any of her children received any injury. She
stated that as soon as the accused left, after
killing the deceased, she came near the
body of the deceased, lifted it and put its
head on her lap. She stated that, at that
time, the body was bleeding and her clothes
got blood-stained but she had not shown
blood-stains to the I.O. If the I.O. had seen
those blood-stains then she cannot say.
Later, those clothes were washed. She
stated that her daughters' clothes were not
blood-stained.

At this stage, she was confronted
with her report where she had not disclosed
that the deceased was caught hold by
Akhilesh @ Pappu. She stated that during
investigation, she had disclosed it to the
I.O. but if that had not been written, she
cannot tell the reason for the same. She also
stated that though, that night, her husband
was lying on the cot but at the time when
he was killed he was not on that cot and,
therefore, on that cot, there was no blood.
She stated that when the shot was fired at
her husband, he fell on the ground of the
courtyard and there was no cloth there.
Immediately thereafter, she clarified that
when villagers arrived, the body was
covered with cloth and when the I.O.
arrived, the body was in the same position
and the head of the body was on her lap.
620 INDIAN LAW REPORTS ALLAHABAD SERIES
But the I.O. took off the head from her lap
and placed it on the floor. She stated that
she dictated the written report at 3 am
while her husband's head was on her lap.
She again reiterated that empty cartridge
was not at the spot where the shot was fired
but was noticed in the bathroom.

She denied the suggestion that in
the darkness of the night she did not
witness the incident and that the incident
was caused by some unknown person. She
also denied the suggestion that at the time
of the incident, her husband was alone. She
also denied the suggestion that no empty
cartridge was recovered. She denied the
suggestion that the report was not lodged
by her and that the same was lodged later,
after deliberation.

On further cross-examination, she
stated that it must have taken 15 minutes to
dictate the report. She stated that the report
was carried by Pahalwan son of Shyam
Sundar to lodge at the police station. She
stated that she is not aware as to which
conveyance was used by him to lodge the
report but Pahalwan uses a cycle. She
stated that he must have left at about 3 am.
She denied that a police personnel had
arrived at the spot before the arrival of the
I.O. She stated that the I.O. first inspected
the spot and thereafter he interrogated her
and had also noticed the lantern etc. The
I.O., thereafter, carried out inquest and the
proceedings relating thereto. She stated that
the body was carried in a trolley attached to
the police jeep. With the body, her dewar
(Mahesh Chand) and her brother (Kamla
Kant) and Uma Kant were there along with
several others. She stated that along with
the I.O. there was another Inspector, who
left by 12 noon. She denied the suggestion
that she was not at Quotara (the village
where the incident took place) but had to be
called after the incident had taken place.
She denied the suggestion that she arrived
after day break on 21.08.1991 and, by the
time she arrived, the body had been sealed.

16. PW-2 - Km. Seema - daughter of
the deceased, aged about 20 years. After
describing the location of various cots where
her family members were laid that night, she
stated that in the night of 20/21.08.1991, at
about 2.00 am, while she was lying in her cot
underneath
the
Chappar,
Arvind
and
Akhilesh after scaling the wall jumped into
the courtyard. She woke up and saw that a
person was also squatting on the wall next to
the bathroom. Arvind was moving towards
her father (the deceased) and Akhilesh came
towards her. When she shouted, Akhilesh
pressed her mouth and, thereafter, Arvind and
the deceased entered into a scuffle. Her
mother rushed out and in that scuffle, Arvind
fired a shot at the deceased after Akhilesh
exhorted him. After receiving injury, her
father died. The accused thereafter scaled the
wall of the bathroom and escaped. After the
incident, several persons arrived. Her mother
opened the door on recognising the voice of
Shyam Sundar, who was the first to arrive
after the incident. Shyam Sundar told her that
he had seen the accused Arvind and Akhilesh
running along with a third person. She stated
that her mother dictated the written report to
Devendra Narayan Mishra after which it was
handed over to Pahalwan to lodge the report.
She also stated that the accused were
objecting to the toilet and were pressing the
deceased to demolish the same. The clothes
that were worn by the deceased at the time of
his death, were produced in the Court and she
recognised the same. As a result whereof,
those clothes were made material exhibits.

In her cross-examination, she
stated that Aangan/courtyard of her house
is open and it has no trees. In the night of
5 All. Akhilesh @ Pappu Vs. State of U.P.
621
the incident, moon had come out in the
evening. It was a bright moon and lantern
was also lit in the courtyard as usual. She
denied the suggestion that at the time of the
incident, no lantern was lit. She also stated
that the incident occurred at about 1.30 am
and the moon had not set by then. She
stated that when she woke up, she saw
Arvind and her father in a scuffle, they
were at a distance of 1 and 1-1/2 paces
away from deceased's cot. They were
fighting with both hands though Arvind
had held a pistol in one hand. She stated
that she did not notice whether Arvind was
using both hands but did notice that Arvind
had a pistol in his hand. She stated that at
the time of the scuffle, her father was not
making any utterances and was not
shouting. She stated that she had shouted
only when she woke up sensing disturbance
and soon thereafter, her mother also woke
up.

On further cross-examination, she
stated that she woke up when the wall of
the house was scaled by the accused and
they had jumped into the courtyard. The
moment she woke up, she shouted. At that
moment, Akhilesh was just 2-3 paces away
from her. When she woke up and sat on the
cot, Akhilesh caught her and pressed her
mouth. On that noise, her mother woke up
and came out and as soon as her mother
came out, Arvind fired at the deceased. She
clarified that when her mother came out,
Akhilesh left her and caught hold the
deceased by his hand and was pulling it
from back when the shot was fired. After
firing the shot, the accused escaped. She
stated that the shot struck the deceased on
left side of chest. She stated that the spot
where he had fallen, blood had splattered.
She stated that the police arrived by about 9
am in the morning. She stated that the body
was not displaced till the time police
arrived. She also stated that a village doctor
had arrived about half an hour after the
incident to declare the deceased dead.
Villagers had also arrived after the incident.
She admitted that the narration of Akhilesh
holding the hands of the deceased is for the
first time in Court. She also stated that
except for Shyam Sundar, no one else in
the village had said that they had seen the
accused escaping. She stated that the blood
had also stained the saree and petticoat of
her mother. She stated that she is not aware
as to what conveyance was used by the
person who took the written report to lodge
at the police station. She stated that she is a
B.A. IIIrd year student. She denied the
suggestion that she was not in the house at
the time of the incident and that she did not
witness the incident. She denied the
suggestion that till the time the body of the
deceased was sealed, neither she, nor her
mother, was present in the house. She also
denied the suggestion that the entire story
has been tutored.

17 . PW-3 - Pahalwan - the
messenger who carried the written report to
the police station for registration of the first
information report.

He stated that the written report
was written by Devender Mishra on the
dictation of Smt. Shobha Awasthi (the
informant). The written report was handed
over to him at 3 am. He waited for the night
to pass and at sun rise, he went to the police
station and the report was lodged at 7.30
am. He stated that he started his journey
back from police station at 8.15 am. The
written report (Exb. Ka-1) was identified
by him.

In his cross-examination, he
stated that he was sleeping in his house
when he heard the gun shot. He woke up
622 INDIAN LAW REPORTS ALLAHABAD SERIES
and went straight to the house of the
deceased. There were several other persons
there, at least, fifteen. He got the door of
the house opened and saw Satish's body
lying in a supine position in the courtyard
with injuries and blood flowing out. He
stated that he did not notice where the
report was written but he was given the
written report at 3 am by the informant
with instruction to lodge the same at the
police station. He stated that he did not
recognise who all were present at the spot
and in the crowd could not notice whether
Devendra Narayan Mishra was present or
not. He stated that his house is about 100200 paces away from the house of the
informant. He stated that after taking the
report, he went to his house, fed fodder to
his cattle and then left for the police station
at about 3.30 am. He stated that he covered
the distance on foot. On being questioned
as to why he did not take a cycle, he stated
that it was cloudy and the Kharanja was
uneven and had rain water therefore, he
preferred to walk. He stated that he walked
on the footpath. He stated that he went
straight to Auraiya and the distance
covered by him must be around 11 km. He
stated that he took Kachha rasta. He denied
the suggestion that he did not go to lodge
the report and because of his relationship
with the informant, he is telling a lie. He
stated that he is class 8 pass. In respect of
the period he stayed at the police station, he
stated that he stayed there for around 20
minutes. He stated that the Station House
Officer did not come with him to the spot
rather, he came walking. He stated that
after returning from the police station, he
again went to the spot at 11.30 am and
stayed there for half an hour. Thereafter, he
did not go again to the house of the
deceased. He stated that when he went
there again, he saw police there, and also
noticed a police jeep parked in the Gali.
But he did not notice any other vehicle for
carrying the body. He did notice the body
lying inside the house but he did not notice
whether the body was sealed or not. He
denied the suggestion that the body was
taken away from the spot between 11.30
am and 12 noon. He also denied the
suggestion that neither informant nor her
children were present in the house on the
date of the incident. He also denied the
suggestion that the written report was
prepared later.

18. PW-4 - Dr. R.N. Mishra - the
Autopsy Surgeon. He proved the autopsy
report and the injuries noticed therein and
accepted
possibility
of
death
having
occurred at 2 am in the night of
20/21.08.1991. The autopsy report was
marked Exhibit Ka-3 on the basis of his
statement.

In his cross-examination, he
stated that injury no.1 was about 2 to 2 and
1⁄4 inch below the shoulder and its direction
was downwards which means that the
direction of the barrel of the gun was from
up to down, that is the bullet entered
around the shoulder region and got
embedded in the heart. He stated that
because scorching was noticed, the distance
of the barrel from the body must have been
within 6 to 9 inches. He stated that this
injury is not possible if the target and the
shooter were face to face at the same level.
He stated that if the man was lying and the
shot was fired from the head side, such
injury could appear. He also accepted the
possibility that if the shot is fired from a
higher level and the target is close to the
barrel, such injury could appear.