# Angad Rai @ Jhullan Rai @ Fhulak & Anr v. State of U.P

- **Citation:** (2023) 6 ILRA 756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Criminal Appeal No. 3832 of 2014
- **Bench:** Ashwani Kumar Mishra, Vinod Diwarkar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/angad-rai-jhullan-rai-fhulak-anr-v-state-of-u-p-50353
- **Pages:** 21

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 r/w 34 & 506 - Punishment
for murder - Code of Criminal Procedure,
1973 - Sections 161, 313 & 319 - Appeal
against conviction - Life imprisonment -
Relied
upon
testimony
of
PW-4,
postmortem report and other evidence,
trial court convicted them - Contention by
appellants,
they
have
been
falsely
implicated for political reasons - St.
argued that deceased was died by them at
the instance of opposite party who
exercised enormous political clout in the
area - On account of this all other eyewitnesses turned hostile - Held, except
version of informant and St.ment of close
relatives of deceased about receiving of
threats from opposite party no other
material
was
collected
against
them
during investigation - PW-4 was a related
and chance witness - PW-4 as sole eyewitness, was 80 year old, suffering from
old age disease - At such age faculties of
man would be somewhat restricted -
Second Investigating Officer had recorded
St.ment of PW-4 - PW-4, never St.d that
he informed anyone of incident or offered
to get his St.ment recorded - Timing of
incident as per prosecution has been
overlooked on ground that couple of hours
variation can be expected in assessment
of time - Witnesses who have turned
hostile have not supported prosecution
case in examination-in-chief - Impugned
order set aside. (Para 2, 3, 12, 13, 14, 35,
39, 42, 43, 46, 53, 55)

Criminal Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,765 of 72,371. This is a partial read: ask again with offset=39765 for what follows._

756 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The Court is also of the view that
when Sohan Lal had given statements to
the contrary in the First Information Report
then his testimony was not very reliable. In
the FIR had had stated that the deceased
and the PW-2 were standing at the puncture
repairing
shop
while
in
the
crossexamination only to explain the site-map
which states that there were bullet marks on
the closed shutter, he states that he and
Jaswinder were standing at a place where
the shutter was closed. We are, therefore,
of the view that he was definitely not a very
reliable witness. Furthermore, the Court is
also of the view that when the PW-2 in the
cross-examination states that he did not
know the name of the father of the
deceased then the FIR was definitely not
lodged by the PW-2 but was the handiwork
of the police who had, for some reason or
the other, implicated the accused in the
case and was also trying to implicate Sunil
Kumar and Mahipal @ Pappu as assailants.
Such a person, therefore, who is not wholly
reliable, his testimony cannot be used for
the conviction of an accused without any
corroborating
evidence.
Some
more
corroboration in the material particulars by
some
reliable
testimony;
direct
or
circumstantial ought to have been there. In
the absence of the corroborating evidence,
we find that it was absolutely unsafe to
convict the accused.

20. We also find that the police was not
above board. Firstly, as has been stated
above, the name of the father as was included
in the FIR was the result of the handiwork of
the police and secondly we find that the deadbody which was sent at 9.30 PM from
Najibabad, reached Bijnor next day at around
10.00 AM and there is absolutely no
explanation for this delay. The fact about
breaking down of the tempo was nowhere
recorded in the GD. We also find that the
story of exhortation wherein the PW-2 says
that the accused had uttered "Maaro Saale
Ko Yahi Jaswinder Hai" could not be used
to convict the accused. One cannot conclude
as to why he had taken the name of only
Jaswinder when there were two individuals
there. It could have also meant that the
deceased was to be only assaulted in some
manner and was not to be killed and also; we
are definitely of the view that the exhortation
was not possibly done as there were two
individuals who were unknown to the
assailants and, therefore, it was an absolutely
a futile exhortation. We further find that
when the assailant Pukhraj himself had been
acquitted, no purpose would be served in
punishing the person who allegedly exhorted
the main accused-assailant Pukhraj in
Sessions Trial No.546 of 1997.

21. Under such circumstances, we set
aside the judgment and order dated 29.5.1999
passed by the IInd Additional Sessions Judge,
Bijnor in Sessions Trial No.193 of 1996
(State vs. Surat Singh). The appellant be
released forthwith if he was not required in
any other criminal case.

22. The appeal is, accordingly,
allowed.
----------
(2023) 6 ILRA 756
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWARKAR, J.

Criminal Appeal No. 3832 of 2014

Angad Rai @ Jhullan Rai @ Fhulak & Anr.
 ...Appellants
Versus
State of U.P. ...Opposite Party
6 All. Angad Rai @ Jhullan Rai @ Fhulak & Anr. Vs. State of U.P.
757
Counsel for the Appellants:
Sri Dileep Kumar, Sri Ajay Srivastava, Sri
Mohd. Farooq, Sri Raja Ullah Khan, Sri
Rajrshi Gupta, Sri Shashi Bhushan Kunwar,
Sri Sheshadri Trivedi, Ms. Shambhawi, Sri
Pradeep Kumar Rai, Sri Kamal Krishna (Sr.
Adv.)

Counsel for the Opposite Party:
G.A., Sri A.K.Rai, Sri D.K.Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 302 r/w 34 & 506 - Punishment
for murder - Code of Criminal Procedure,
1973 - Sections 161, 313 & 319 - Appeal
against conviction - Life imprisonment -
Relied
upon
testimony
of
PW-4,
postmortem report and other evidence,
trial court convicted them - Contention by
appellants,
they
have
been
falsely
implicated for political reasons - St.
argued that deceased was died by them at
the instance of opposite party who
exercised enormous political clout in the
area - On account of this all other eyewitnesses turned hostile - Held, except
version of informant and St.ment of close
relatives of deceased about receiving of
threats from opposite party no other
material
was
collected
against
them
during investigation - PW-4 was a related
and chance witness - PW-4 as sole eyewitness, was 80 year old, suffering from
old age disease - At such age faculties of
man would be somewhat restricted -
Second Investigating Officer had recorded
St.ment of PW-4 - PW-4, never St.d that
he informed anyone of incident or offered
to get his St.ment recorded - Timing of
incident as per prosecution has been
overlooked on ground that couple of hours
variation can be expected in assessment
of time - Witnesses who have turned
hostile have not supported prosecution
case in examination-in-chief - Impugned
order set aside. (Para 2, 3, 12, 13, 14, 35,
39, 42, 43, 46, 53, 55)

Criminal Appeal allowed. (E-13)

List of Cases cited:
1. Rajesh Yadav & anr. Vs St. of U.P., (2022) 12
SCC 200, (Para 21, 39)

2. Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Mah., 2022 SCC OnLine SC 883, (Para 27,
28)

3. Md. Jabbar Ali & ors. Vs St. of Assam,
reported in 2022 SCC OnLine SC 1440, (Para 55
to 58)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Vinod Diwarkar, J.)

1. Heard Sri Kamal Krishna, learned
Senior Advocate assisted by Sri Shashi
Bhushan Kunwar and Sri Pradeep Kumar
Rai, Advocates for the appellant Angad Rai
@ Jhullan Rai @ Fhulak; Sri Dileep
Kumar, learned Senior Advocate assisted
by Ms. Shambhawi Shukla, Advocate for
the appellant Umesh Rai @ Gora Rai; Sri
Arunendra Kumar Singh, learned AGA for
the State; Sri Durgesh Kumar Singh,
learned counsel for the informant and
perused the materials placed on record
including the lower court records.

2. This appeal is by the accused
Angad Rai @ Jhullan Rai @ Fhulak and
Umesh Rai @ Gora Rai challenging their
conviction and sentence vide judgment and
order dated 26.09.2014, passed by the
Additional Sessions Judge, Court No.01,
Ghazipur in Sessions Trial No. 140 of
2006, arising out of Case Crime No. 493 of
2005, under Sections 302, 506 IPC, Police
Station Muhammadabad, District Ghazipur;
whereby they have been sentenced to life
imprisonment
alongwith
fine
of
Rs.
10000/- coupled with a default sentence of
one year imprisonment, under Section 302
r/w 34 IPC and under Section 506 IPC, five
years imprisonment alongwith fine of Rs.
758 INDIAN LAW REPORTS ALLAHABAD SERIES
5000/- coupled with a default sentence of
six months, each. All the sentences are
directed to run concurrently.

3. Accused appellants have been
convicted and sentenced for the murder of
Rajendra Rai (hereinafter referred to as the
'deceased') in the morning hours on
27.6.2005. A written report was made in
respect of the incident by the father of the
deceased namely Kapil Dev Rai. This
written report was scribed by Rakesh
Kumar Rai, who happens to be the son of
the deceased. The written report states that
the informant's son Rajendra Rai is an
active member of political party (we deem
it appropriate to avoid referring the name of
party as it has no relevance for the matter in
issue) and as the Zila Panchayat and
Kshettra Panchayat Elections were nearby,
as
such,
Afzal
Ansari
(Member
of
Parliament Ghazipur) and his younger
brother Mukhtar Ansari (MLA) were
attempting to get the deceased in their
party. About fifteen days prior to the
incident the deceased was stopped at
Muhammadabad and was told that since he
is the husband of the Ex-Block Pramukh of
Block Bhawarkol if he leaves the company
of Krishnanand Rai and joins their party,
then he would be benefited and it would
secure his life and property. Again on
26/27.6.2005, the aforesaid persons sent
message through the accused Umesh Rai @
Gora Rai alongwith three others, who came
to
informant's
house
at
village
Vachchhalpur and threatened that since the
deceased is not joining the political party of
the aforesaid two persons and is also not
dissociating himself with Krishnanand Rai,
as such, his life is at risk. The informant's
son got frightened and divulged the
receiving of threat, to the informant. In
order to report such threat to the police, the
informant alongwith the deceased were
going to police station in the next morning
at about 6.30 am, when at village Mathiya,
under a planned conspiracy of Mukhtar
Ansari and Afzal Ansari, the accused
Umesh Rai @ Gora Rai alongwith three
unknown persons exhorted that as the
deceased is not joining the party of Afzal
Ansari and Mukhtar Ansari, as such, he
would
face
the
consequences.
The
informant's son ran in order to save himself
but the accused chased him inside the
house of Shiv Kumar Yadav and shot him
dead. The informant's son accordingly has
died and at the place of occurrence Chandra
Shekhar Rai and various other persons have
arrived, who have seen the incident, but due to
fear of the accused they could do nothing. A
request was thus made to lodge the report and
take action against the guilty persons. Based
on such written report, first information report
(Exhibit Ka-7) came to be registered as Case
Crime No. 493 of 2005, under Sections
302/506/120B IPC at 7.40 a.m. at Police
Station Muhammadabad, District Ghazipur.
The distance between the police station and
village Mathiya is stated to be about two and
half kilometer. In the FIR three named accused
were shown as Afzal Ansari, Umesh Rai @
Gora Rai, Mukhtar Ansari and the other three
were unknown persons.

4. Investigation commenced pursuant
to FIR and bloodstained and plain plaster
was recovered from the place of incident
(roof of the house of Shiv Kumar Yadav)
and kept in separate boxes. A recovery
memo in that regard has been prepared,
which is duly exhibited as Ext.Ka-2. Four
empties alongwith two pellets were also
recovered from the place of occurrence, in
respect of which also the memo of recovery
is prepared and exhibited as Ext.Ka.3.

5. Inquest proceedings were then
conducted at the place of occurrence and
6 All. Angad Rai @ Jhullan Rai @ Fhulak & Anr. Vs. State of U.P.
759
the inquest report has been duly exhibited
as Ext.Ka.9. As per the inquest report, the
information of crime was received at the
police station at 7.40 a.m. on the date of
incident i.e. 27.6.2005 and the inquest
began at 8.15. Information in respect of
incident was received from Kapil Dev Rai
(first informant). The inquest concluded at
10.05 am. The five witnesses to the inquest
are Rambachan Rai, Vijay Bahadur Rai,
Tarkeshwar
Rai,
Ravikant
Rai
and
Ramashankar Rai.

6. The condition of body has been
specified in the inquest as lying on the roof of
the house of Shiv Kumar Yadav. The inquest
witnesses found gunshot injury on the head
and thighs of the deceased. There were other
injuries on the body of deceased. The inquest
witnesses thus opined that in order to
ascertain the cause of death the postmortem
be got conducted on the dead body of
deceased. The body was accordingly sealed
and sent to the mortuary.

7. The postmortem on the deceased
has been conducted at 4.45 pm on the date
of incident, wherein the deceased was
found to be 55 years old with a heavy body
and the time of death was reported to be
about half day. In the opinion of autopsy
surgeon the deceased suffered instant death
as a result of ante-mortem head injury from
a firearm. The postmortem has been proved
by the autopsy surgeon (PW-3). As per
postmortem,
following
ante-mortem
injuries have been found on the deceased:-

"1. Firearm wound of entry 1.2
cm x 1.0 cm inverted margin with ring
abrasion, situated at left occipital region
head 7.0 cm behind left ear.

2. Firearm wound of exit 1.6 cm x
1.2 cm everted irregular margin on right
parietal scalp, 6.0 cm above right eyebrow.
On carefull dissection and probing both
wounds (1 & 2) were found intercommunicating with fracture of occipital and
right parietal bone and laceration of meninges
and brain matter.

3. Contusion of left frontal scalp
and eyelid 7.0 cm x 3.0 cm.

4. Firearm wound of entry 1.1. cm
x 1.0 cm inverted margin at upper most part
of right back thigh just below gluteal region.

5. Firearm wound of exit 1.4 cm x
1.1 cm everted margin on the upper part of
right thigh 28 cm about patela right knee
joint. On careful dissection and probing both
the wounds (4 & 5) were found intercommunicating with laceration into soft
tissue and muscle.

6. Abrasion 36 cm x 8 cm
involving right thigh and upper leg
medially.

7. Abraded contusion 12 cm x 8
cm on left back"

The postmortem report also shows
existence of semi-digested food in the
stomach as well as gases and fecal matter in
the large and small intestine.

8.

The
Investigating
Officer
proceeded to record statement of various
eye-witnesses,
whereafter
charge-sheet
under Sections 302/506 IPC came to be
submitted on 22.11.2005 against the two
accused, which has been duly exhibited as
Ext.Ka.5. The site plan has also been
prepared by the Investigating Officer on the
basis of information furnished by the first
informant, which has been exhibited as
Ext.Ka.6, during trial.
760 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The Magistrate took cognizance on
the charge-sheet and committed the case to
the Court of Sessions wherein charges were
framed against the accused appellants
under Sections 302/34 and 506 IPC. The
accused appellants were explained the
charges levelled against them on 10.1.2007,
which they denied and demanded trial. The
trial accordingly commenced in which
prosecution
has
adduced
following
documentary evidence:-

"1.
FIR
dated
27.06.2005
Ex.Ka.7

2.
Written
Report
dated
27.06.2005 Ex.Ka.4

3. Report of Blood Stained &
Plain Plaster Ex.Ka.2

4. Recovery memo of empties
and pellets Ex.Ka.3

5. P.M. Report dated 27.06.2005
Ex.Ka.1

6. Report of Vidhi Vigyan
Prayogshala dated 19.01.2006

7.
Panchayatnama
dated
27.06.2005 Ex.Ka.9

8. Charge Sheet (Mool) dated
22.11.2005 Ex.Ka.5"

10. In addition to documentary
evidence the prosecution has also produced
Vijay Bahadur Rai (PW-1), who is a
witness to the inquest. Ravi Kant Rai is
produced as PW-2, who too is a witness of
inquest. Dr. Nishar Ahmad, Autopsy
Surgeon has been produced as PW-3.
Chandra Shekhar Rai, who allegedly has
seen the incident and whose presence is
mentioned in the FIR, has been produced as
PW-4. Dinesh Kumar Pandey is the
nephew (Bhanja) of the deceased, who has
been produced as PW-5. Rakesh Kumar
Rai is produced as PW-6, who is the scribe
of the written report and is the son of the
deceased. Tara Yadav has been produced as
PW-7, who had come to her maternal house
on the date of incident, situated next to the
house of Shiv Kumar Yadav, where the
deceased has been done to death. Yogendra
Yadav @ Jogi Yadav has been produced as
PW-8, who is resident of village Mathiya
and had allegedly seen the incident.
Similarly, Ashok Singh Yadav (PW-9) and
Triveni Yadav (PW-10) are the resident of
village Mathiya and had allegedly seen the
incident. Constable Rampreet Chauhan has
been produced as PW-11, who was
associated in preparation of inquest and has
taken the dead body to the mortuary.
Kamlesh Yadav has been produced as PW12, who too is resident of village Mathiya
and had allegedly seen the incident.
Mahendra Yadav has been produced as
PW-13, who too is a resident of village
Mathiya and had allegedly seen the
incident. Jagdish Kumar Yadav has been
produced as PW-14, who was the second
Investigating Officer in the present case.
PW-15 Harish Chandra Mishra is the first
Investigating Officer in the present case.
Ram Awadh Adarsh has been produced as
PW-16 to prove the FIR and GD of the
FIR. Mangla Yadav has been produced as
PW-17, who had conducted the inquest.

11. On the basis of evidence led in the
matter by the prosecution, the incriminating
material
produced
during
trial
was
confronted to the two accused, for
recording their statement under Section 313
Cr.P.C. It is thereafter that the prosecution
has adduced the testimony of Smt. Brijbala
Rai as PW-18, who happens to be the wife
6 All. Angad Rai @ Jhullan Rai @ Fhulak & Anr. Vs. State of U.P.
761
of the deceased. The accused were
thereafter confronted with the incriminating
material that had appeared against them in
the
testimony
of
PW-18,
and
their
supplementary statement was recorded
under Section 313 Cr.P.C. The defence,
however, has not produced any witness on
its behalf. Trial court has examined the
testimony
of
witnesses
as
also
the
documentary evidence and found that all
other eye-witnesses, except PW-4 Chandra
Shekhar Rai, have turned hostile.

12. Trial court found the testimony of
PW-4 to be trustworthy and reliable and his
presence at the place of occurrence was
also found free of any doubt. Relying upon
the postmortem report as also other
evidence brought on record the trial court
has come to the conclusion that the
prosecution has succeeded in establishing
the guilt of the accused appellants beyond
reasonable
doubt
and
consequently
convicted them for the offence under
Sections 302/34 and 506 IPC and sentenced
them to life and other punishments as per
above.

13. Aggrieved by the judgment of
conviction and sentence, the two accused
appellants have filed the present appeal. It
is urged on behalf of the appellants that the
testimony of eye-witness PW-4 is not
reliable and his presence at the place of
occurrence is also doubtful. Submissions
have been made at length in order to submit
that the prosecution had included reference
of PW-4 in the written report, primarily as
as he was closely related to the informant
and would have supported the prosecution
case, blindly, to implicate the accused
appellants. It is also urged that the evidence
led by the prosecution in no way connects
the accused appellants with the commission
of the offence, inasmuch as, neither the
motive for committing the offence has been
established against the accused appellants
nor their association with Ansari brothers
are
established
and,
therefore,
their
conviction and sentence is wholly without
any basis. It is urged that the accused
appellants have been falsely implicated for
political reasons, particularly, as the brother
of the accused Angad Rai namely Ram
Narayan Rai @ Pahalwan Rai had been
done to death in which the then local MLA
Krishnanand Rai was named as accused
and it was at his instance that the accused
appellants have been falsely implicated. It
is also urged that the other accused namely
Gora Rai is the cousin of Angad Rai
(Mausera Bhai). Further arguments have
been made on behalf of the appellants to
contend that they are wholly innocent and
have been falsely implicated and that the
trial court has erred in convicting and
sentencing them.

14. The appeal is strongly opposed by
Sri Arunendra Kumar Singh, learned AGA
and Sri Durgesh Kumar Singh, who has
appeared for the informant, who states that
the deceased was done to death in a brutal
manner in broad day light by the two
accused at the instance of Ansari Brothers,
who exercised enormous political clout in
the area. It is submitted that on account of
political influence exercised by the accused
appellants all other eye-witnesses have
turned
hostile
and
the
investigation
deliberately left out such materials, as
would
have
implicated
the
accused
appellants in the matter.

15. On behalf of the informant it is
urged that as per the then law the informant
had no right to actively participate in the
proceedings and since the prosecution acted
in wholly unfair manner, on account of
political influence exercised by powerful
762 INDIAN LAW REPORTS ALLAHABAD SERIES
persons, as such, the facts of the case needs
to be carefully examined by the Court so
that justice is done in the case and the faith
of the common man in the system is
strengthen. Informant also alleges that the
investigation was wholly botched up and
due to political influence all other eyewitnesses were produced on the same day,
and declared hostile, which shows that the
whole system was acting in a partisan
manner so as to deny justice in the facts of
the case.

16. It is in the above backdrop that
this Court is required to consider as to
whether the prosecution has succeeded in
proving its case against the accused
appellants, beyond reasonable doubt, on the
basis of evidence led in the matter and also
whether the conviction and sentence
awarded to the two accused appellants is
just and proper or not?

17. In order to effectively appreciate
the contentions urged on behalf of rival
parties, it would be appropriate to refer to
the evidence led in the matter at some
length.

18. Vijay Bahadur Rai has been
produced as PW-1, who is witness of
inquest. He has proved the inquest report in
his examination-in-chief. In the crossexamination, he has stated that place of
occurrence
is
actually
a
ward
of
Muhammadabad town, which is also a
town area. He has stated that he heard
about the murder of deceased at about 6.00
in morning and arrived at village Mathiya
alongwith large number of other villagers
at about 7.00 am. He has stated that prior to
his arrival at the place of occurrence, large
number of persons as well as police had
already arrived and gathered there. The
SHO of Muhammadabad had come to the
place of occurrence at about 12.00 noon by
when the dead body of deceased was still
lying there. He has stated that the SHO
took the dead body alongwith other
villagers, including PW-1, to the police
station where the inquest was conducted.
He has stated that the inquest was
completed at about 2.00 in the afternoon. It
was thereafter that the dead body was taken
by the police for postmortem to Ghazipur.
The defence relies upon this testimony of
PW-1 to submit that police papers are
fudged and not reliable.

19. PW-2 Ravi Kant is also a witness
of inquest. He too has proved the inquest
report. Contrary to what has been stated by
PW-1, PW-2 has stated that the inquest was
conducted at the place of occurrence. He
has further stated that the Investigating
Officer has not interrogated him.

20. PW-3 is Dr. Nishar Ahmad, who
has proved the postmortem report and has
specified the injuries found on the deceased. As
per him, the deceased met an instant death on
account of gunshot injury sustained on his head.
As per the doctor the deceased had eaten
something about 3-31⁄2 hours prior to the
incident since undigested food was found in his
stomach. He also found existence of gases and
fecal matter in his intestine and opined that
either deceased was suffering from constipation
or had not eased himself. He has explained that
Injury No. 1 & 4 are firearm wounds of entry
whereas Injury No. 2 & 5 are firearm wound of
exit. The witness has stated that the deceased
would have died at about 6.00 in the morning
and that variation of 2-4 hours in the estimated
time of death is possible. He has opined that it
was possible that the deceased died at about
2.00 or 3.00 in the night.

21. PW-4 is the sole eye-witness, who
has supported the prosecution case and,
6 All. Angad Rai @ Jhullan Rai @ Fhulak & Anr. Vs. State of U.P.
763
therefore, his statement needs a careful
examination. This witness is the cousin of
the first informant and has stated that on
the date of incident he was on way to the
Yusufpur market to purchase paddy seeds.
He sat below a tree to take rest in a grove.
He saw firing on the motorcycle on which
the deceased was sitting with the informant.
The
two
accused
were
also
on
a
motorcycle. Angad Rai was driving it while
the other accused Gora Rai had pistols in
both his hands from which he fired on the
deceased. The gunshot, however, missed.
The motorcycle of deceased fell and he
rushed towards Mathiya basti to save
himself.
The
accused
followed
the
deceased on the motorcycle and got down
after about 15 paces and rushed in the lane.
After the witness reached a well, he heard
4-5 gunshots and saw the two accused
coming out of the house of Shiv Kumar
Yadav. He went inside the house of Shiv
Kumar Yadav and saw that the deceased
had fallen on the roof of Shiv Kumar
Yadav.

22. In the cross-examination, PW-4
has stated that for work he used to go to
Muhammadabad on foot which took about
an hour's time. PW-4 has disclosed that he
has two sons in the age group of 25-35
years, who look after the agricultural work
and that the witness also supports them.
This witness retired as a Constable from
West Bengal Police. He has admitted that
in 1977 Shiv Sagar Rai had been killed
wherein the deceased was an accused. He
has also been confronted with the criminal
antecedent of the deceased. He has been
confronted with his previous statement
made under Section 161 Cr.P.C. where he
had not disclosed the Investigating Officer
about his purpose of going to the market
i.e. to buy seeds. He has also stated that
because of his advance age he cannot walk
fast and often suffers from pain in his legs.
In his further cross-examination, PW-4 has
admitted that market is held in Yusufpur on
Tuesday and Saturday and that on other
days no market is held. However, the shops
remain open. He has disclosed that soon
after the incident he returned to the village
to inform about the murder of Rajendra, but
he did not inform this fact to his son, when
he crossed him on the way. He has also
stated that after the incident he fell sick and
his statement was recorded later on. The
witness
has
further
explained
that
informant slammed his head on seeing the
dead body of his son. Clothes worn by
informant were soaked with blood as he
tried to hold the deceased. The witness
further claims that on entering the house of
Shiv Kumar Yadav he saw only a girl aged
18-20 years cooking food and that none
else was present. He claims to have seen
the incident from a distance of 100 paces.
The witness has admitted that he has weak
eye-sight and that only by wearing specs he
can read or write.

23. PW-5 Dinesh Kumar Pandey is the
son of informant's daughter and has supported
the prosecution case, particularly with regard to
receiving of threat by deceased about 10-15
days prior to the incident. He claimed that
deceased and other family members had their
meal around 2.30 the previous night. This
witness in the cross-examination has been
confronted with his previous statement made
under Section 161 Cr.P.C. where he had not
disclosed the fact of deceased having food at
about 2.30 in the previous night. PW-5 has
denied the suggestion that the statement about
having food at 2.30 in the night has been
cooked up in order to explain the medical
evidence.

24. PW-6 Rakesh Kumar Rai is the
son of the deceased who feigned ignorance
764 INDIAN LAW REPORTS ALLAHABAD SERIES
that his mother had won election of Block
Pramukh in the year 1995, 1996 but later
lost the election. He asserted that only his
grandfather was present when scribed the
written report. He claims that he had not
gone to the police station to lodge the
report.

25. PW-7 Tara Yadav has stated that
she was at her maternal house on the date of
incident at Mathiya. She heard that somebody
had died in her house and did not return till
evening. She denied seeing anyone running
away with a firearm. In the crossexamination, she has stated that she left while
it was still dark to ease herself and by the
time she returned before the sunrise she
found that crowd had gathered at her house.
This witness also carried her three year old
daughter with her. She has denied that there
was any girl aged 17-18 years in the house.
She has not identified the two accused. She
did not notice as to when the family members
of the deceased arrived. She claims that by
the time she returned, she found police
personnel present but none of the family
member of the deceased was weeping.

26. PW-8 Yogendra Yadav, PW-9
Ashok Singh Yadav and PW-10 Triveni
Yadav incidentally have been produced on
the same day before the court below by the
prosecution. These three witnesses have not
supported the prosecution case either in the
examination-in-chief,
or
in
the
crossexamination. Much emphasis is laid to
contend that there was a strong undercurrent
and extraneous influence at work due to
which witnesses turned hostile and even the
conduct
of
prosecution
officer
was
questionable. This aspect of the matter shall
be dealt with, later.

27. PW-11 Rampreet Chauhan is the
Constable, who was present at the time of
inquest and has taken the body of deceased
to the mortuary. PW-12 Kamlesh Yadav
and PW-13 Mahendra Yadav are also
resident of village Mathiya, who have been
produced on the same day i.e. 5.12.2007
and they too have turned hostile.

28. PW-14 Jagdish Kumar Yadav is
the second Investigating Officer. He has
stated that during investigation no evidence
was found against the accused Mukhtar
Ansari and Afzal Ansari and, therefore,
their names were excluded from further
investigation. He claims to have tried to
locate PW-4 - Chandra Shekhar Rai, but he
was not available and, therefore, his
statement was recorded at the police station
only on 9.7.2005. This witness has stated
that PW-4 had not disclosed him that he
was going to purchase seed from Yusufpur.
He has also stated that PW-4 did not inform
him during investigation that he had
reached 20 minutes prior to the incident,
nor had he informed him that after a couple
of minutes he left for the village to inform
about the murder of the deceased. The
witness also found no trace of any
motorcycle, nor such a motorcycle was
made available to the Investigating Officer
and even details of such motorcycle was
not furnished. During investigation it could
not be ascertained as to by which route the
deceased reached the place of incident.
This witness has also stated that it was not
possible from point 'B' shown in the site
plan to see point 'D' as there were bamboo
plants in between. He claimed that no
firearm was recovered on the pointing out
of the accused. He has further stated that
the deceased was a history-sheeter and his
wife was a Block Pramukh. In case crime
no.411 of 2004, under Section 302 IPC the
brother of accused Angad Rai was killed
and Krishnanand Rai was accused therein
as a conspirator. He claimed that Sri Rai
6 All. Angad Rai @ Jhullan Rai @ Fhulak & Anr. Vs. State of U.P.
765
had telephoned him to know about the
progress of the case.

29. PW-15 Harish Chandra Rai is the
first Investigating Officer and has proved
the recoveries made from the place of
occurrence. He has stated that PW-5 never
informed him that the deceased was
frightened or that any threat was received
by him from Ansari brothers about 15 days
back. This witness has also been confronted
with various improvements made in the
statement of PW-5 and he has stated that
such disclosure was not made to him by the
witness during investigation. When he
arrived at the place of occurrence, he found
the dead body of deceased on the roof of
Shiv Kumar Yadav and not on the stairs. He
also asserted that no motorcycle was traced,
nor its detail was furnished; he tried to locate
Chandra Shekhar Rai and had also visited his
house but was informed that he had gone to
Ghazipur and on 30th he was not well. This
witness has stated that till investigation was
carried out by him no eye witness from village
Mathiya had given statement in support of the
prosecution case. No eye witness had come
forward to implicate accused Angad Rai.

30. PW-16 S.I. Ram Awadh Adarsh in
his statement has stated that Rakesh Kumar
Rai had come alongwith the informant to
lodge the FIR. However, the signatures of the
informant or his companion were not obtained
on the FIR.

31. PW-17 is Mangla Yadav, who has
proved the police papers and had conducted
the inquest. He has stated that after the inquest
was conducted at 10.05 in the morning, he
delivered the dead body to the Constables,
who took it by a Jeep.

32. PW-18 Smt. Brijbala Rai has
supported the prosecution case with regard
to receiving of threats by the deceased, to
leave the company of Krishnanand Rai, and
join Ansari Brothers. She has supported the
prosecution case that four persons arrived
on two motorcycles at 8.00 pm the day
prior to the incident and extended threats to
her husband. Her husband allegedly told
such persons that he would not leave
Krishnanand Rai. Later, the deceased
informed PW-18 that he had received
threats from Umesh Rai @ Gora Rai. She
has stated that the informant came
thereafter and various family members also
arrived at the house. The witness offered
food at about 11.00, but as they were
troubled, they kept discussing the affairs
and it was only around 2.30 that they had
food. She also stated that her husband left
by
motorcycle
to
lodge
the
report
alongwith
informant.
In
the
crossexamination, this witness has admitted that
she has engaged two private counsels; all
applications etc., were moved by the
private counsels with her consent; her son
had earlier moved an application for her
discharge during trial as Investigating
Officer had not correctly recorded her
statement;
no
application
was
made
through the counsel for not appearing as a
witness but that she could not depose as she
was ill; her statement was incorrectly
recorded by the Investigating Officer. This
witness has further showed her ignorance
about criminal antecedent of her husband.
The witness has also been confronted with
her previous statement made under Section
161 Cr.P.C. where she had not deposed
about the family members having food at
about 2.30 in the night.

33. Before proceeding any further it
would be worth noticing that the first
informant Kapil Dev Rai died few months
after the incident and he could thus not be
produced in evidence. His statement has
766 INDIAN LAW REPORTS ALLAHABAD SERIES
been recorded under Section 161 Cr.P.C.,
which is required to be examined, as the
prosecution and the informant submits that
his statement made under Section 161
Cr.P.C. be read in evidence in the facts of
the present case. We have examined the
statement of informant made under Section
161 Cr.P.C. The informant has supported
the prosecution case about threats being
extended to the deceased by Ansari
Brothers to join their party and to leave the
company of Krishnanand Rai.

34. There are two statements of the
informant. One immediately after the
incident and the other after the second
Investigating
Officer
took
over
investigation on 9.7.2005. He has stated in
his first statement that the deceased
informed him about threats extended to him
in the night preceding the day of incident
and then decided that in the morning itself
the police be informed. The informant
further stated that on account of conspiracy
hatched by the Ansari Brothers, the accused
Umesh Rai alongwith three unknown
persons extended threats to the deceased
and chased him with an intent to fire on
him. As per the informant his son was
driving motorcycle, while he was the
pillion rider. The motorcycle fell and his
son rushed towards locality where he was
chased by the accused and shot dead. In the
second statement of the informant recorded
on 9.7.2005, name of the other accused
Angad Rai was also introduced for the first
time. It is also stated that two other persons
were also waiting on a motorcycle but their
names are not known.

35. The prosecution case essentially
proceeds on the premise that the deceased
was being pressurized by Ansari Brothers
to join their party and dissociate himself
with Krishnanand Rai. Though some of the
prosecution witnesses have supported this
version of the prosecution, but it remains
admitted that no charge-sheet was filed
against Afzal Ansari and Mukhtar Ansari in
the matter. The Investigating Officer has
specifically stated that no material was
collected during the course of investigation
against these two persons and, therefore,
during course of investigation itself their
names were excluded from the case. During
the course of trial also no application was
moved under Section 319 Cr.P.C. to
summon the Ansari Brothers. Except the
version of informant and the statement of
close relatives of deceased about receiving
of threats from Ansari Brothers no other
material apparently was collected against
them during the course of investigation.

36. Although it is alleged that Ansari
Brothers asked the deceased to leave the
company of Krishnanand and join their
party and that this would be in the interest
of his life and property but no specific time
or place of such threat apparently has been
disclosed. The other part of the prosecution
story is with regard to threats received from
the two accused on the date preceding the
incident by Gora Rai and three other
unknown persons. No challenge has been
laid by anyone to this part of the
investigation nor this aspect has been
pressed even at the stage of trial. Though
we find that allegations were made against
Ansari brothers of extending threats to the
deceased for joining their party but it
remains a fact that neither they were
charge-sheeted nor summoned during trial
under section 319 Cr.P.C. No date, time or
place is otherwise disclosed when such
threat was extended by these two persons,
directly. No overt act is attributed to these
two persons and they are not a party to
these proceedings. We are thus not inclined
to invoke our jurisdiction under section 391
6 All. Angad Rai @ Jhullan Rai @ Fhulak & Anr. Vs. State of U.P.
767
Cr.P.C. by directing further probe in the
matter after expiry of 18 years, though we
are not impressed by the manner in which
investigation was suddenly dropped against
them.

37. We are constrained to make some
observations on the manner in which the
investigation has been carried out in this
case. We have examined the facts of the
case and we find that the incident occurred
in the house of Shiv Kumar Yadav,
however, Shiv Kumar Yadav has not been
produced in evidence by the prosecution.
None of the other neighbours of the house
have been produced either The allegation
made by the first informant with regard to
threats extended by the political persons
named in the police report has also not
been investigated thoroughly and properly.
No material has been referred to by the
Investigating Officer on the basis of which
an opinion could be formed that the plea of
threats extended to the deceased by the
political persons named in the report was
baseless. We do not find the subjective
satisfaction of the Investigating Officer on
the role of the political persons for
extending threats to be well founded. We,
however, refrain ourselves from saying
anything further as those persons are
neither before the Court nor any chargesheet has been filed while investigation.
We, therefore, confine the scope of this
appeal to the evidence on record against the
two convicted accused. The impassioned
prayer made by Sri D. K. Singh, in this
regard, is thus reluctantly declined.

38. With regard to the incident of
27.6.2005, it is the prosecution case that the
deceased had left alongwith the informant
to lodge the report early in the morning.
The prosecution case further is that while
they were going towards the police station
they were intercepted by two accused at
village Mathiya and thereafter the deceased
was shot dead. This part of the prosecution
version is based upon the testimony of eyewitnesses
and
also
the
documentary
evidence, referred to above.

39.