# Amit @ Amit Yadav v. State of U.P

- **Citation:** (2022) 9 ILRA 1630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-22
- **Case number:** Criminal Appeal No. 3774 of 2011
- **Bench:** Mahesh Chandra Tripathi, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-amit-yadav-v-state-of-u-p-49058
- **Pages:** 21

## Headnote

A. Criminal Law - Criminal Procedure
Code,1860 - Sectionn 374(2) - Indian
Penal
Code,1860-Sections
302/34,
504,506 - Arms Act,1959 - Section 25 -
Challenge to-Conviction- In the present
case, total 11 prosecution witnesses were
examined but from the perusal of the
evidence, it is clear that there is no direct
evidence against the accused and he is
the nephew of the PW-1, who is the
informant of the case and he has been
falsely implicated in the present casethere was a dispute between PW-1 and
the deceased regarding a shop and the
alleged incident had taken place at the
house of the informant, which also
creates
doubt
about
the
place
of
occurrence one of the eye witnesses who
is the step mother of the deceased, has
not been produced before the trial court
and the witnesses of recovery (PW-5 and
PW-6) have turned hostile-Once the
testimony of the PW-1 was trustworthy
and even his testimony was intact in the
cross-examination then in such situation
we do not find any good ground to make
any
adverse
reference
against
the
prosecution to the effect that even
though other witness was available but
she was being withheld from the CourtThe recovery of the country made pistols
and live cartridges, which were testified
to be true and the said weapons utilised
by the appellants for commission of
offence, which was proved by Doctor
(PW-3)
and
Doctor
(PW-4),
clearly
corroborate the same and hence, the
argument of recovery is also not tenable,
rather
the
prosecution
version
is
established- The recovery of the weapons
on their pointing out, the utilization
thereof and the manner of assault by the
appellants all stood corroborated with
the medical evidence and further fortified
by the post-mortem report- The evidence
on record also indicates that all the
accused had joined together on spot with
the common intention of committing
murder of the deceased-Held, the trial
court
had
rightly
accepted
the
prosecution version and the same was
proved beyond reasonable doubt -The
trial court is also fully justified in coming
to the conclusion that there was meeting
of mind established from the evidence on
record-learned trial court committed no
error to arrive at the conclusion of
convicting the appellants.(Para 1 to 52)

B. It is a trite proposition of law that in
criminal trial, it is the quality of evidence
which matters and not the quantity. Thus,
no
malafide
could
be
attributed
to
prosecution case simply on that premise.
Section 134 of Evidence Act does not
require
any
particular
number
of
witnesses to prove any fact. Plurality of
witnesses in a criminal trial is not the
legislative
intent.
Therefore,
if
the
testimony of sole witness is found reliable
on the touchstone of credibility, accused
can be convicted on the basis of said sole
testimony.(Para 46)

The appeal is dismissed. (E-6)
9 All. Amit @ Amit Yadav Vs. State of U.P.
1631
List of Cases cited:

## Text

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1630 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 9 ILRA 1630
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2022

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 3774 of 2011
Connected With
Criminal Appeal No. 4433 of 2011

Amit @ Amit Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
P.C.
Srivasatva,
Sri
Amit
Singh
Chauhan, Sri Anil Srivastava, Sri Manish
Tandon, Sri Noor Mohammad, Sri Rajesh
Yadav, Sri Rajiv Lochan Shukla, Sri V.K.
Upadhyay, Sri Thakur Prasad Dubey

Counsel for the Opposite Party:
Govt. Advocate, Sri Jai Shankar Malviya

A. Criminal Law - Criminal Procedure
Code,1860 - Sectionn 374(2) - Indian
Penal
Code,1860-Sections
302/34,
504,506 - Arms Act,1959 - Section 25 -
Challenge to-Conviction- In the present
case, total 11 prosecution witnesses were
examined but from the perusal of the
evidence, it is clear that there is no direct
evidence against the accused and he is
the nephew of the PW-1, who is the
informant of the case and he has been
falsely implicated in the present casethere was a dispute between PW-1 and
the deceased regarding a shop and the
alleged incident had taken place at the
house of the informant, which also
creates
doubt
about
the
place
of
occurrence one of the eye witnesses who
is the step mother of the deceased, has
not been produced before the trial court
and the witnesses of recovery (PW-5 and
PW-6) have turned hostile-Once the
testimony of the PW-1 was trustworthy
and even his testimony was intact in the
cross-examination then in such situation
we do not find any good ground to make
any
adverse
reference
against
the
prosecution to the effect that even
though other witness was available but
she was being withheld from the CourtThe recovery of the country made pistols
and live cartridges, which were testified
to be true and the said weapons utilised
by the appellants for commission of
offence, which was proved by Doctor
(PW-3)
and
Doctor
(PW-4),
clearly
corroborate the same and hence, the
argument of recovery is also not tenable,
rather
the
prosecution
version
is
established- The recovery of the weapons
on their pointing out, the utilization
thereof and the manner of assault by the
appellants all stood corroborated with
the medical evidence and further fortified
by the post-mortem report- The evidence
on record also indicates that all the
accused had joined together on spot with
the common intention of committing
murder of the deceased-Held, the trial
court
had
rightly
accepted
the
prosecution version and the same was
proved beyond reasonable doubt -The
trial court is also fully justified in coming
to the conclusion that there was meeting
of mind established from the evidence on
record-learned trial court committed no
error to arrive at the conclusion of
convicting the appellants.(Para 1 to 52)

B. It is a trite proposition of law that in
criminal trial, it is the quality of evidence
which matters and not the quantity. Thus,
no
malafide
could
be
attributed
to
prosecution case simply on that premise.
Section 134 of Evidence Act does not
require
any
particular
number
of
witnesses to prove any fact. Plurality of
witnesses in a criminal trial is not the
legislative
intent.
Therefore,
if
the
testimony of sole witness is found reliable
on the touchstone of credibility, accused
can be convicted on the basis of said sole
testimony.(Para 46)

The appeal is dismissed. (E-6)
9 All. Amit @ Amit Yadav Vs. State of U.P.
1631
List of Cases cited:

1. Gangadhar Behera & ors. Vs St. of Ori.

2. Padamasundara Rao (dead) & ors.. Vs St. of
T.N. & ors.. (2002) 3 JT SC 1

3. Vadivelu Thevar Vs St. of Madras

4. Sunil Kundu Vs St. of Jhar. (2013) 4 SCC 422
: (2013) 2 SCC (Cri) 427

5. Anand Ramachandra Chougule Vs Sidarai
Laxman Chougala & ors.

6. St. of Raj. Vs N.K.(2000) 5 SCC 30

7. Vishnu Vs St. of Mah. (2006) 1 SCC 283

8. St. (NCT of Delhi) Vs Pankaj Chaudhary

9. Wahid Khan Vs St. of M.P.

10. P. Rajagopal & ors. Etc. Vs St. of T.N.

11. St. of H.P. Vs Raghubir Singh

12. Lallu Manjhi & anr. Vs St. of Jhar.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Both Criminal Appeals are directed
against
judgment
and
order
dated
03.06.2011 passed by Additional District
and
Sessions
Judge,
Court
No.6,
Moradabad in Sessions Trial No.1171/2007
(Pawan & two others vs. State) connected
with Sessions Trial No.1172/2007 (Pawan
Yadav
&
another)
whereby,
Pawan
(appellant in connected Criminal Appeal
No.4433 of 2011) and Amit @ Amit Yadav
(appellant in leading Criminal Appeal
No.3774 of 2011) have been convicted and
sentenced under Section 302 read with
Section 34 IPC for life imprisonment with
fine of Rs.20,000/- each and in default of
payment of fine to further undergo
imprisonment for a period of three years.
They have also been convicted and
sentenced under Section 504 IPC to
undergo R.I. for six months with fine of
Rs.1000/- each and under Section 506 IPC
to undergo R.I. for two years with fine of
Rs.4000/- each. They have further been
convicted and sentenced under Section 25
of Arms Act to undergo three years R.I.
with fine of Rs.6000/- each. All the
sentences have been ordered to run
concurrently.

2. We have heard Sri Rajiv Lochan
Shukla, Sri Manish Tandon and Sri Thakur
Prasad Dubey, learned counsel for the
appellants; Sri A.N. Mulla/Sri G.P. Singh,
learned AGA for the State and have
perused the record.

3. In an abridged form, prosecution
allegations against appellants, as were
contained in the written report dated
09.8.2007 (Ext. Ka-1), were that the
informant Rajaram submitted a written
report on 09.8.2007 alleging therein that on
08.8.2007 at about 11.00 p.m, when he was
about to take dinner, his elder son Pawan,
real nephew Amit and one more boy armed
with country made pistols, entered his
house and Pawan abused and threatened
him stating that as the complainant had
given the shop to Amod (younger son),
today he will not let him live. They got the
complainant and his wife, namely Hansho
Devi, sat down at the Varandah. At that
point of time, his son Amod returned to the
home after shutting down the shop and all
three persons caught him. Pawan fired the
first shot while Amit fired the second shot
at Amod with intention to kill him due to
which he sustained injuries. He had taken
his injured son to the hospital from where
he was referred to 'Sai Hospital' and while
they were leaving for 'Sai Hospital', his son
(Amod)
succumbed
to
injuries.
The
1632 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant went to the Police Station
Kotwali, Moradabad on 09.8.2007 and
submitted the written report, whereupon
Case Crime No.1333/2007 under Section
302/504/506
IPC
and
Case
Crime
No.1341/2007 under Section 25 of Arms
Act, Police Station Kotwali, Moradabad,
were
registered
against
the
accused
persons.

4. The body of the deceased was sent
for post-mortem examination, which was
conducted by R.P.S. Suman (PW-3) on
08.8.2007, wherein he noticed following
injuries:-

"(1) Firearm wound of entry on
front of right side of chest 3cm x 2.5cm x
chest cavity deep present, 6 cm below the
right nipple and 8 cm lateral to mid line,
margins of the wound inverted and
blackening present around the wound
margins.

(2) Firearm wound of entry on
back left side of chest 2 cm x 2 cm x
abdominal cavity deep present 5 cm below
the inferior angle of left scalpha and 15 cm
lateral to mid line margins of the wound
inverted and blackening present around the
wound margins.

(3) Firearm wound of exit on
front of abdomen 3 cm below the umbilicus
just lateral to mid line on right side. It is
5cm x 4 cm in size and margins of the
wound everted. Intestines coming out of the
wound."

5. The investigation of the case was
conducted and three separate charge sheets
were submitted on 31.8.2007 (Ext.Ka-23 &
24) and 23.9.2007 (Ext. Ka-21). Ex. Ka-23
and 24 are the charge sheets submitted by
Sunil Kumar Pachauri, SHO, Police Station
Kotwali, Moradabad (PW-8) against Pawan
Yadav and Amod Yadav under Section 25
of Arms Act, whereas, Ex. Ka-21 is the
charge sheet submitted against Pawan,
Amod
and
Subhash
under
Sections
302/504/506 IPC. After taking cognizance
on the charge sheets, case was committed
to the Court of Session. Two separate trials
were instituted, namely, S.T. No.1172 of
2007, which was against Amit Yadav and
Pawan Yadav for offences punishable
under Section 25 of Arms Act and S.T.
No.1171 of 2007, which was against
Pawan, Amit and Subhash for offences
punishable under Sections 302/504/506
IPC. In the Memorandum of Charges, there
were allegations that on 08.8.2007 at about
11 p.m. Pawan, Amit and Subhash
intentionally insulted the complainant by
using abusive language and thereby they
gave provocation to the complainant and
committed an offence punishable under
Section 504 IPC; secondly, on the aforesaid
date, time and place, they threatened the
complainant and in consequence of the
threat, they committed the murder of the
Amod and thereby, they committed the
offence punishable under Section 506 IPC
and thirdly, they intentionally committed
the murder of Amod and thereby, they
committed an offence punishable under
Section 302 IPC. Amit Yadav and Pawan
Yadav were further charged that on
17.8.2007 at about 7 a.m. they were found
in possession of country made pistols (12
bore/315 bore) and live cartridges (12
bore/315 bore) for which they had no valid
licence. The accused persons pleaded not
guilty and claimed for a trial.

6. During the course of trial, 11
prosecution witnesses were examined,
namely, Raja Ram (PW-1/complainant);
Nazar Hasan (PW2-Constable, who made
GD entry of the written report and prepared
Chik FIR); R.P.S. Suman (PW-3-the
Doctor, who carried the postmortem); Dr.
9 All. Amit @ Amit Yadav Vs. State of U.P.
1633
P.S.
Sharma
(PW4-
Senior
Medical
Officer,
who
conducted
the
medical
examination of the deceased); Ram Autar
(PW5-the real maternal uncle of the
deceased); Hari Om (PW6-good friend of
the deceased); Suresh Chandra (PW-7,
Constable, who carried the body of the
deceased to the mortuary for autopsy);
Sunil
Kumar
Pachauri
(PW-8,
the
investigating officer, who conducted the
investigation of the case and submitted
charge sheet); Umesh Kumar Singh (PW9-
Sub Inspector, who recovered the country
made pistols from the accused); Mahesh
Chandra
(PW10-Inspector,
who
also
conducted the investigation of the case and
submitted charge sheet) and M.S. Chauhan
(PW-11-Sub Inspector, who conducted the
investigation of the case under Section 25
of Arms Act and submitted charge sheet).
After the prosecution evidence was led, the
statements of the accused persons were
recorded under Section 313 Cr.P.C. The
trial court convicted and sentenced the
appellants, as noticed above, against which
these appeals have been filed.

7. Before we proceed to notice the
rival submissions, in order to have a clear
understanding of the context in which those
submissions have been made, it would be
apposite to notice the testimony of the
prosecution witnesses. The testimony of the
prosecution
witnesses,
shorn
of
unnecessary details, is as follows:-

8. Raja Ram (PW-1/complainant)
stated in his testimony that the deceased
Amod was his son. The accused Pawan is
his elder son and another accused Amit is
his real nephew. The third accused Subhash
is friend of the accused Pawan and Amit.
The incident is dated 08.8.2007 at 11
o'clock in the night. At the time of closing
of his grocery shop, which is under the
house of his residence, around 10-1/2 and
quarter to eleven, he was on the upper floor
of his house (residence). At that time his
wife Hanso Devi was also at home. After
five minutes all the three accused persons
(present in the Court) came to his residence
having Tamanchas (country made pistols)
in their hands by way of staircase. In a
threatening voice, his son Pawan, who was
present in Court, calling him by abusive
language (Harami) to sit on one side and if
he says a little bit, then his wife would be
killed. He was frightened by their threat
and being afraid, they sat on one side.
Then, after 2-3 minutes Amod (deceased)
after closing his shop, came to his house on
his way to the staircase. Subhash grabbed
his son Amod and Pawan and Amit
together shot at his son (Amod) one bullet
each. One bullet hit his son Amod's
stomach and the second bullet hit his chest.
His son Amod fell on the floor and he was
bleeding. The PW-1 did not try to nab all
the three accused as they had fled
threatening at that time. After this incident
his wife remained sitting on the spot but he
ran outside the house; came on the road and
raised noise. They were running forward
and he was running after them, then all the
accused threatened the local people, if they
testify against them, they would also have
to face same consequences as Amod
(deceased) suffered. No person came
forward to help him. Meanwhile, the police
patrolling Jeep had reached near his house.
He had informed the patrolling policemen
about the incident. There was also a police
Inspector in the patrolling Gypsy. Then the
police men had picked his son, who was in
critical condition, in Gypsy vehicle and his
son was taken to the District Hospital. The
PW-1 also accompanied them to the
District Hospital in the same Gypsy. By
that time, his relatives had not come and
the doctor told in the hospital that the
1634 INDIAN LAW REPORTS ALLAHABAD SERIES
condition of his son Amod was worrying.
Therefore, he took his son Amod to Sai
Hospital, Moradabad for treatment in the
same Gypsy. After reaching at Sai
Hospital, the doctors declared him dead on
arrival. After this he wrote the written
Tahrir of the incident (Paper No.5/2) in his
own handwriting at the Police Station
Kotwali, Moradabad (paper torn). On the
basis of Tahrir, the case was registered and
the carbon copy of the same was received
by him. Thereafter the police reached the
place where the body of his son was kept.
The police had made a Panchayat Nama
after seeing the dead body of his son and
had sealed the dead body. After sealing the
dead body the same was sent to the
mortuary for postmortem. The police had
narrated the Panchayat Nama to him and
got his signatures on the Panchayat Nama.
The witness corroborated his signatures on
the Panchayat Nama available on the letter.
The Inspector had taken his statements. He
lodged the FIR wherein he named two
persons and another person was unknown.
He had written in the FIR that he knows by
looks (third person) and not by name. The
name of the accused (third person) was told
to him by his wife when he was
apprehended. On the next date he had told
the Inspector that the name of third accused
was told by his wife as Subhash, upon
which the police arrested the third accused
Subhash.

9. The witness stated that the reason
for the murder was that his son Pawan lived
separately after marriage and he had given
him a part of the second floor of that
property for the purpose of living, wherein
his son Amod (deceased) used to run a
grocery shop. This house was a threestoried building and his son Amod
(deceased) used to run a grocery shop on
the ground floor. He had given the first and
second floor of the house to his accused
son Pawan for living. Apart from this
property, he has another house at Qazi
Sarai in the same locality. In ground floor,
he used to run a grocery shop at the time of
the incident. This house is a four-storied
building. In the rest of the floors of this
house, he himself used to live alongwith his
wife Hanso Devi and two unmarried sons
Amod (deceased) and Sagar. The house, in
which Amod (deceased) used to run a
grocery shop on the ground floor and his
accused son Pawan lived in the upper two
floors, is also located in Mohalla Qazi
Sarai. He had given a shop on rent to the
accused son Pawan after his marriage and
he had started the work of retail in that
shop so that he could take care of his
children. His accused son Pawan had
closed this rental shop about 5-6 months
before the incident. The accused son Pawan
used to ask him to give the Amod's shop to
him, otherwise there would be serious
consequences. He was not in a position to
give Amod's grocery shop because his
house was also running from the earning of
this shop. He had married his daughter in
which huge money was spent and his
younger son Sagar was living at Mussorie,
which also requires expenses. He told his
accused son Pawan for not insisting him to
take Amod's shop because he had given
him a separate grocery shop. Both the
houses of Qazi Sarai are in his name. The
accused Amit is the son of his elder brother
Murari Lal and he is his real nephew. His
accused son Pawan had shot at his younger
son Amod because he could not find the
grocery shop of Amod. The reason for the
accused Amit to shoot his son Amod was
that Amod and Amit used to work in the
business of cassette together in the year
2007. Both have suffered losses in the
business of cassette. Amit owed about
Rs.40,000/- from his son Amod (deceased)
9 All. Amit @ Amit Yadav Vs. State of U.P.
1635
which Amod could not pay to Amit due to
which Amit used to quarrel with his son
Amod every day. Due to this enmity,
accused Amit alongwith Pawan shot his
son Amod. The third accused Subhash was
the friend of his accused son Pawan and
accused
Amit
and
therefore,
he
accompanied them to the spot. The witness
stated that he had married his accused son
Pawan on 19.1.1999. After the marriage,
Pawan and his wife Mrs. Rajkumari stayed
with him for about two months. At that
time his first wife Prabha Devi was dead
and till that time, he was not married to his
second wife Hanso Devi. All his children
are born from the first wife Mrs. Prabha
Devi. After two months' of his marriage,
his son's wife refused to make Chapati
(Roti) for him and started saying that he
will
live
separately
with
his
wife.
Thereafter, his son Pawan started living
separately and the PW-1 was forced to do
his second marriage with Hanso Devi so
that arrangements can be made for his
cooking. His son Amod had died on the
way before reaching Sai Hospital.

10. The witness stated in crossexamination that he has three sons and one
daughter, his elder son's name is Pawan and
younger son's name is Amod. His daughter's
name is Chanchal Rani, who is elder than
Amod and the name of his third son is Sagar.
Naveen is Hanso Devi's son but not his
biological son. Naveen is only 8-9 year's old
and stays with him. The witness was married
to Hanso Devi about 7 years' ago and he does
not remember the day, date, month and year.
His accused son Pawan got married in the
year 1999. Naveen was one year old when he
married Hanso Devi and he borne all the
expenses of Naveen. His son Sagar has
completed his education and he studied at
Mussoorie since Class-I and thereafter,
studied at Dehradun. He opens his shop at
06.00 in the morning and closes it at 9 to 10
in the night. Amod also used to open his shop
at 06.00 in the morning and used to close it at
9 to 10 in the night. Amod's shop is at a
distance of 50 yards from his shop. His son
Amod (deceased) had a general provision
store. The complainant and his son Amod
stayed together and took meals together. The
door of his shop is separate from the staircase
of his residential house. His son Pawan and
nephew Amit used to visit his house
sometimes. The relations of his son Pawan
and Amod (deceased) were good and there
was no dispute between them. He had not
partitioned his property in writing. Sachin
and Dinesh were his tenants but they were
not present at the time of incident. The
complainant and his wife were present at the
time of incident.

11. The PW-1 admitted in his statement
that his son Pawan had no dispute with him
prior to this incident nor he demanded any
money before this incident. He was sitting
after taking meal, when Amit, Subhash and
Pawan entered his house and Amod was not
present at that time. Pawan abused him and
all three accused were armed with country
made pistols. He did not raise the alarm due
to fear of country made pistols. They did not
fire at him and at that very moment, his son
Amod (deceased) arrived. Subash wrapped
his arms on Amod as soon as he arrived.
Pawan and Amit shot him and Subhash held
him. The witness was declared hostile for
accused Subhash. The occurrence took place
on 8.8.2007 at 11 o'clock night and at that
time, the electricity was run by inverter in his
house and in the same light, he recognised all
the three accused persons Pawan, Amit and
Subhash properly.

12. PW-2 (Nazar Hasan) stated that
on
09.08.2007
he
was
posted
as
Clerk/Constable at Police Station Kotwali,
1636 INDIAN LAW REPORTS ALLAHABAD SERIES
Moradabad. The complainant moved the
written complaint registered as Case Crime
No.1333/2007 under Sections 302/504/506
IPC (Ext. ka-02). He had made entry of this
case in G.D. No.02 on the same day.
During the cross-examination, the witness
stated that the time of the incident
mentioned at 22:45 hours in the Chik FIR
(Ext. Ka-02) was overwritten as 11:00 oclock. by him. He had brought the record of
the police station, wherein the time at 22:45
was overwritten as 11:00 on the same day.
There are cuttings at many places in
Exhibit Ka-01, which was presented before
him and the entry of cuttings was made in
the G.D. He stated that on the same day, he
prepared
the
Chik
FIR
No.200/07
concerning C.C.No.1340 & 1341/07 under
Section 25 Arms Act (State versus Pawan
& Another). He denied the suggestion that
the G.D. was not written in the same
manner, as it is available, rather number
was mentioned later on after writing the
G.D. at any other time.

13. PW-3 (R.P.S. Suman) has stated in
his testimony that on 09.8.2007 he was deputed
at District Hospital, Moradabad and on that day,
he was posted at Post Mortem House.
Constable Prem Kumar and Suresh Chandra
brought the dead body of the deceased (Amod)
in sealed condition at about 02.30 p.m. The
dead body was perused and the seal of dead
body was intact. The seal of dead body was
opened and post mortem examination was
conducted by him. The deceased was aged
about 25 years and the death was presumed to
have occurred 12 hours' before. He had
examined the dead body externally and stated
that the deceased was of average height and
built. The following injuries were found on the
person of deceased:-

"1. Fire arm wound of entry on
front of right side of chest 3 cm X 2.5 cm X
chest cavity deep present, 6 cm below the
right nipple and 8 cm lateral to mid line,
margins of the wound inverted and
blackening present around the wound
margins.

2. Fire arm wound of entry on
back of left side of chest 2 cm X 2 cm X
abdominal cavity deep present 5 cm below
the inferior angle of left scaphla and 15 cm
lateral to mid line margins of the wound
inverted and blackening present around the
wound margins.

3. Fire arm wound of exit on front
of abdomen 3 cm below the umblicus just
lateral to mid line on right side. It is 5 cm X
4 cm in size and margins of the wound
everted. Intestines coming out of the
wound.

Internal Examination of dead
body

1. Pleura was lacerated. One litre
blood was present in pleura cavity. Right
and
left
lungs
were
lacerated.
A
cylinderical Metilical bullet was received
from the right lung. Peritoneum was
lacerated. Around 1-1/2 litre blood was
present in Abdominal cavity. Around 150
gm partially digested food was present in
stomach. Small intestine was lacerated. A
plastic cap and four pellets were recovered
from intestine. Large intestine was also
lacerated. Left kidney was lacerated."

14. PW-3 stated that in his opinion,
deceased died due to fire arm injuries
resulting into hemorrhage and trauma. The
post mortem report was prepared by him
during
postmortem.
In
his
crossexamination, he stated that the deceased
might have taken food 4-5 hours before the
death. The pellets/bullets of firearm were
9 All. Amit @ Amit Yadav Vs. State of U.P.
1637
taken out of the body of deceased. The
deceased had not undergone any operation
before the postmortem. There was injury on
the front of the person of deceased and
another was on left side at the back. On
further cross-examination, he sated that he
cannot tell as to how many weapons caused
injuries to the deceased. He denied the
suggestion that the injury on the person of
deceased was not caused by the firearm.

15. PW-4 (Dr. P.S. Sharma) stated in
his testimony that on 8.8.2007 he was
posted as Emergency Medical Officer at
District Hospital, Moradabad. On that day
at 11:40 p.m. he had examined the injuries
of Amod, aged around 26 years. The
identification mark has been mentioned and
the following injuries were found on the
person of injured:-

"Injury number 1- 3 cm below the
right nipple and inwards covering 12 cm X
8 cm area on the right side of chest in front
1 cm X 2-1/2 cm length and 1/2 cm to 2 cm
width. Four incised-lacerated entry wounds
of firearm were found.

Injury number 2- 12 cm below
xiphisternal nostch somewhat outwards
navel incised-lacerated exit wound 4 cm X
4 cm on the front of stomach caused by
firearm from where intestines and Mesentry
were coming out stomach deep bleeding."

16. The PW-4 stated that the health
condition of injured was poor and he was in
trauma, therefore, detailed examination was
postponed. The aforesaid injuries were
fresh and were possible to have been
caused by the firearm. The injured was
admitted in emergency ward and was
referred to surgeon and the X-ray was
advised.
He
stated
that
the
thumb
impression of injured was obtained on
report during the examination. On seeing
medical report, the PW-4 stated that it was
the same medical report (Ex Ka-5), which
was prepared by him during examination
and he certified the same. In his crossexamination, he stated that the injured was
brought at P.S. Kotwali by Constable
Shyam Kumar. The injuries sustained by
the injured were fatal for his life. All the
three injuries of the injured were caused by
the firearms. He denied the suggestion that
all the injuries of the injured were not
caused by the firearms and the injuries
sustained by the injured were not fatal for
his life. Injured's injuries may have
happened 1⁄2 hour before he did the test. He
further denied the suggestion that the
examination of the injuries of the injured
was not done properly at the time of
medical examination and the injury no.3
was mentioned later on just to strengthen
the case.

17. PW-5 (Ram Autar Singh) stated
on oath that he knew the deceased Amod.
He was son of his brother-in-law (Behnoi)
Rajaram, and was his real nephew
(Bhanja). On 09.08.2007, he came to
Moradabad from his house at Kashipur on
hearing the information of Amod's murder
but his dead body was not sealed in his
presence, which was already sealed prior to
his arrival. The Sub-Inspector had called
him to the police station and got his
signature there on the Panchayat Nama. At
this stage, the witness was declared hostile
on an application moved by the ADGC.

18. During cross-examination by
ADGC (Criminal), the witness stated that
he does not know as to how Amod was
killed and he did not hear who did the
murder. On the next day i.e. 09.08.2007, he
reached the house of the deceased Amod
after getting the information of his death.
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
He further stated that his sister had already
died prior to this incident and hence, there
arises no question of any interaction with
anybody. He had met with his brother-inlaw (Behnoi) Rajaram but he did not held
any talk as to who had committed the
murder of the deceased. After the death of
his sister, his brother-in-law Rajaram had
solemnized second marriage due to which
he did not speak with his brother-in-law.
When he reached there, the police was
sitting inside the house but he did not see
the dead body of Amod in open state. He
admitted that both the deceased Amod and
accused Pawan are sons of his real sister
and brother-in-law Rajaram. He denied that
he was giving false testimony before the
court in order to save the accused Pawan.
The accused Amit is also his nephew.

19. PW-6 (Hariom) has stated in his
statement that he knew Amod and he was a
good friend of mine. On 09.08.2007
morning, he went to Moradabad (Amod's
house) from Kashipur with Ramavtar.
Amod's body was not sealed in front of
mine nor was the Panchayatnama filled in
his presence. At this stage on the request of
A.D.G.C. (Criminal), the witness was
declared hostile and given an opportunity
of
cross-examination.
During
crossexamination, he stated that Ramavtar is the
maternal uncle of Amod (deceased) and he
also lives in his locality at Kashipur.
Ramavtar is his real cousin. Due to this
relationship, Amod (deceased), Pawan
(accused) and Amit (accused) also seem to
be his nephews. The witness was shown the
panchayatnama available on the letter, the
witness said that no such panchayatnama
has been prepared by the police in front of
us. The signatures on the panchayatnama
are of mine. It is wrong to say that he has
given false testimony against accused Amit
and Pawan because they seem to be his
nephews in the relationship. It is wrong to
say that today he was deliberately giving
false statement to save the accused.

20. PW-7 (Suresh Chandra) has stated
on oath that on 09.08.2007, he was deputed
as Constable in the Police Station Kotwali;
on that day panchayatnama of the deceased
Amod (son of Rajaram) was prepared by
Daroga Ji Mukesh Kumar and the dead
body of the deceased (son of Rajaram) was
sealed and other forms were prepared. On
that day, he had handed over the dead body
of Amod for postmortem. Dr. R.P.S.
Suman did the post mortem and after the
postmortem the body of the deceased was
handed over to his father Rajaram. The
panchayatnama
was
prepared
on
09.08.2007. In cross examination on behalf
of the accused Amit, he stated that around
30-40 people were present while filling the
panchayatnama. The dead body of Amod
was handed over to him by the Inspector
after filling the panchayatnama and after
sealing the dead body of the deceased.

21. PW-8 (Inspector Sunil Kumar
Pachauri) stated that on 08.8.2007, he was
posted as Inspector in Kotwali, Moradabad.
After getting the papers related to the case
from the Police Station, he got engrossed in
the investigation and took the statement of
informant. He went to the spot with the
informant, Majroore (injured) was admitted
to the hospital prior to him. The inspection
could not be done at the site of the incident
as it was night. Thereafter PW-8 came to
the hospital. The deadbody was kept in
mortuary. His colleague SI Mukesh Kumar
was directed to fill up the panchayatnama.
S.I. U.K.Singh and a Constable were
present in the District Hospital, who gave
him medical report, which was recorded in
the
GD.
All
the
proceedings
of
panchayatnama were done by SI Mukesh
9 All. Amit @ Amit Yadav Vs. State of U.P.
1639
Kumar, who has been posted with him. He
recognized his writing and signature. He
certified Ext.A-8, A-9, A-10, A-11, A-12
and A-13. The PW-8 stated that he came to
the site of the incident on 09.8.2007 with
the informant and inspected the site. He
had prepared the site plan of the spot and
taken plane and blood stain earth/soil from
the spot and one cartridge (12 bore), one
cartridge (315 bore) & also one flattened
cartridge into his custody. It's Fard was
written on the spot. The inverter and
battery were seized from the spot and it's
Fard was made. The witness read the same
and signed the Fard (Ext.14, 15, 16, 17 and
18 (Fard of inverter and battery) after
receiving postmortem report of deceased at
the police-station the copy was attached to
the GD. On 10.8.2007 again the statement
of the informant was recorded, wherein he
apprised that the third person, among those
who killed his son, is a man named
'Subhash'. His wife apprised his name and
consequently, Hanso Devi's statement was
taken. The statement of informant's tenant
Mahesh was taken and on 12.8.2007 the
statements of witnesses of panchayatnama
were also taken. On 17.8.2007 at 05.25 AM
accused Pawan and Amit were arrested
from Kashipur Tiraha on the informer's tip.
They were brought to the police station and
questioned. On being told by the accused,
the
recoveries
of
country
made
pistols/tamanchas (315 bore) and (12 bore)
used in the crime were made from the field
of Parkar Inter College. One country made
pistol of 315 bore and one live cartridge
(315 bore) were recovered from Pawan and
one 12 bore country made pistol and one
live cartridge (12 bore) were recovered
from Amit. The same were sealed on the
spot and the sample stamp was made on the
recovered items. The Fard was prepared by
SI J.K. Singh, which was also singed by
him (Ext. A-19). The statement of SI
Umesh Singh was taken on 26.8.2007 and
the statement of the Inspector was written
on 28.8.2007. On 08.9.2007 at 05.10 AM
the third accused Subhash was arrested
from his residence. On 09.9.2007, the PW8 was transferred from Kotwali Police
Station. The seal of the recovered items
was opened in the Court in which one
Tamancha (12 bore) and one Tamancha
(315 bore) came out which the accused said
that it was the same items.

22. During cross-examination, the
PW-8 stated that he went to the spot at
night but cannot remember the time by
now. When he reached the spot for the first
time, he did not take any empty cartridge
on account of darkness at the site. He had
not called any public witness while
recording the statements of the accused
persons on 17-8-2007. The complainant
showed him two godowns and one staircase
on the ground floor under his house. No
shop was found on the ground floor of the
house. On seeing the statement of the
complainant under Section 161 Cr.P.C. the
witness stated that the complainant had not
told him that he was residing on the ground
floor. In the site-plan, he had shown the
second house of the complainant. He had
recorded the statements of the informant's
tenants Sachin and Dinesh. At the time of
inspecting the place of the incident, he did
not see the blood on the complainant's
staircase from the first floor and on the
road. Exhibit Ka-16 does not bear Naresh's
signature or thumb impression. The memo
(Exhibit Ka-15) does not bear the signature
or thumb impression of the witness Naresh.
Even Exhibits (Ka-17 and Ka-18) do not
bear the signatures and thumb impressions
of the witness Naresh. When he reached the
hospital, he did not take the statement of
Hanso Devi as she was not in a condition to
give the statement. The place of the
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
incident was located in the middle of the
city near the market. Amit and Pawan fired
one gunshot each and one hit in the chest of
the deceased and another hit in his
stomach. The complainant did not tell him
that the accused Subhash was a friend of
Pawan and Amit and therefore, he went to
the scene of the incident.

23. PW-9 (Umesh Kumar Singh)
stated on oath that the S.H.O Suneel Kumar
Pachauri, S.S.I. J.K. Singh, Constables
Jitendra Singh, Akash Kumar, Satyapal,
Constable/Driver Rafiq and the witness
took the accused Pawan and Amit and
when they reached inside the main gate of
the Parkar Inter College, both the accused
persons got down from the Jeep and went
ahead and then took out a polythene from
the bushes located at a distance of four
steps from the wall and 10 steps away
towards north from the southern corner of
Ramesh Chandra Sahu Girls Inter College.
Out of this polythene, the accused Pawan
took out a country-made pistol 315 bore
and handed it over at around 7:00 am and
stated that he had inflicted the injury to
Amod Yadav by firing gunshot with the
same country-made pistol. From the same
polythene, the accused Amit gave a
country-made pistol 12 bore, and stated that
with the same pistol, he had inflicted the
injury to Amod by firing gunshot at the
time of the incident. The cartridges of both
the country made pistols were extracted
from the barrels and sealed separately.
During the cross examination the witness
stated that the departure GD was prepared
by the Inspector and he had not put his
signature on the departure GD. The witness
denied that he had not gone to the Parker
Inter College. The recovery memo was
prepared in duplicate and copy of the
recovery memo was given to the accused
Pawan.

24.

PW-10
(Inspector
Mahesh
Chandra) stated that on 12.09.2007 he had
taken the investigation on the transfer of
the SHO Sri Pachauri. The statements of
the S.I. Mukesh Kumar, S.S.I. J.K Singh,
Constables Jitendra Singh, Akash Kumar,
and Satyapal Singh were recorded on
14.09.2007.
The
statements
of
the
witnesses to the inquest namely Ram Autar
and Hariom were recorded on 21.09.2007.
On 23.09.2007 the statements of Constable
Prem Kumar and Suresh Chandra were
recorded
and
on
the offense
being
established,
the
charge-sheet
under
Sections 302, 504, 506 IPC was filed
against the three accused. During the cross
examination, the witness stated that he did
not mention the time of the investigation.
Neither, he had verified the statements,
which were recorded by the earlier
investigator nor the place of occurrence. He
had not made any attempt to record the
statements of the people living in the
neighborhood of the place of occurrence.
He had not found in his investigation that
the deceased had died in 'Sai hospital'. As
per his investigation, both the weapons
were recovered from the same spot and he
had not found in the investigation that both
the weapons involved in the murder were
kept at some distance from each other.

25. PW-11 (M.S. Chauhan) stated in
his
statement
that
the
preliminary
investigation in the Case Crime No.1340 of
2007 under Section 25 of the Arms Act
lodged against Pawan Yadav and the Case
Crime No.134 of 2007 lodged against Amit
Yadav were conducted by Sub Inspector
Mukesh. He had taken up the investigation
on 31.08.2007 and thereafter, he had
recorded the statement of the complainant,
Sunil Kumar Pachauri and the statement of
the witness. The site map of the place of
occurrence (Exh. Ka-22) was prepared by
9 All. Amit @ Amit Yadav Vs. State of U.P.
1641
the witness in his handwriting and after
completion of the investigation, he had
filed charge-sheets (Exh. Ka-23 and Ka-24)
against the accused Pawan Yadav and Amit
Yadav before the court concerned. The
sanctions for prosecution were obtained by
him and these papers are marked as Exhibit
Ka-25 and Exhibit Ka-26. During the crossexamination, he had mentioned in the casediary about the GD for the police party
proceeding for the arrest of the accused. He
did not take permission of the Principal of
the college for preparing the site-map. In
the map, the recovery had been shown near
Ramesh Sahu Inter College at the behest of
the complainant.

26. After appreciating the evidence
available on record, the trial court found
the occurrence duly proved by ocular
account as well as material collected during
investigation. Consequently, the trial Court
has convicted and sentenced the appellants
as aforementioned on the ground that the
convict-appellants Pawan and Amit had
murdered their real brother and real cousin
brother Amod with the illegal weapons in
their hands and the accused persons had
committed this offence at the house of their
father in which the only witness is the
father of accused-appellant Pawan and the
offence of the accused persons is of
grievous nature.

27. Learned counsel for the appellants
submitted that there was a delay in lodging
the FIR.