# Angad v. State of U.P

- **Citation:** (2021) 3 ILRA 979
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-16
- **Case number:** Criminal Appeal No. 1044 of 2000
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/angad-v-state-of-u-p-47012
- **Pages:** 21

## Headnote

Law
-
Appeals
from
Convictions - Indian Penal Code, 1860 -
sections 302/34 - Murder - The Code of
980 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal
procedure,
1973
-
Section
107/116,145 - evidence of exhortation - a
weak piece of evidence - Unless the
evidence in this respect is clear, cogent
and
reliable,
no
conviction
can
be
recorded against the person alleged to
have exhorted the actual assailant.(Para -
52,)

(B) Criminal Law - Evidence Act - If an
omission or discrepancy goes to the root
of the matter and ushers in incongruities,
the defence can take advantage of such
inconsistencies - instant case - cross
examination which have been of the two
eye witnesses, i.e., P.W. 1 and P.W. 2 have
been put to by the accused about eight
months and more one year respectively
would show that such minor discrepancies
were quite natural but from their evidence
it does not go to the root of the matter
which belies the present case - their
evidence is trustworthy and has been
rightly relied upon by the trial court while
convicting
and
sentencing
the
appellant.(Para - 46)

(C) Criminal Law - Indian Penal Code,
1860 - Section 34 - acts done by special
persons
in
furtherance
of
common
intention - Even an illegal omission on the
part of accused can indicate the sharing
of common intention - accused who only
keeps the common intention in his mind,
but does not do any act at the scene,
cannot be convicted with the aid of
Section 34, IPC - To ascertain common
intention, totality of circumstances must
be taken into consideration in arriving at
the conclusion whether the accused had
the such intention to commit an offence of
which he could be convicted.(Para - 53)

P.W.1 (Informant) son of deceased lodged FIR
against appellant and other co accused -
allegation in FIR - opposite to his house a
house of appellant , was being constructed -
dispute with respect to a public pathway in
between their houses - compromise meeting
held between his father and appellant - dispute
settled - appellant came along with his 4-5
associates - armed with fire arm - entered into
the house of the informant along with accused
appellant - made an exhortation to the other
co-accused uttering that "Maro Sale ko
Bachne na Paye" - opened fire on deceased -
sustained fire arm injuries and fell down -
incident was witnessed by the informant, his
wife, Rajdeep Yadav and Chaukidar - present in
the house at the time of incident - deceased
was taken to Medical College in injured
condition where the doctor on duty declared
him dead.(Para - 3)

HELD:- Court after scrutinizing the evidence
lead by the prosecution and the defence of the
accused, who had only pleaded for his false
implication in the present case and has not
denied his presence at the place of occurrence,
and his previous conduct goes to show that the
appellant has played an active role in the instant
case by instigating the co-accused persons for
killing the deceased and uttered "Maro sale k

## Text

_Characters 0–39,672 of 73,343. This is a partial read: ask again with offset=39672 for what follows._

3 All. Angad Vs. State of U.P.
979
recovery of charas was shown. Further no
evidence has been led by them in their
defence to create any doubt in the
prosecution story.

64. Drug trafficking has become one
of the most serious problem of the world
at present. Many white collar criminals
are involved in this business who, for
their illegal profit, are not only exploiting
the life of young generation but also
permitting the heinous offences like
murder, kidnapping, sexual exploitation
of girls and other crimes. Only on
account of minor irregularities in search
and seizure proceedings or sending the
samples for chemical examinations, the
prosecution case cannot be held doubtful,
unless and until it is proved by the
defence that prosecution witnesses were
biased and prejudice with the appellants
accused and due to which failure of
justice was caused.

65. Thus, in the light of aforesaid
whole discussions, I am of the view that
testimony of the prosecution witnesses is
wholly reliable and trust worthy. They
were put to lengthy cross examination by
learned defence counsel before the trial
Court, but nothing could be extracted by
way of cross examination so as to create
any doubt in their testimony. All the
mandatory provisions of N.D.P.S. Act,
required in this case, have been complied
with by the prosecution witnesses. All the
evidence, proved by prosecution, leads to
only conclusion that said contraband
charas was being illegally transported and
possessed
by
the
appellants.
The
prosecution has proved its case beyond
reasonable
doubt.
The
impugned
judgment and order, passed by the
learned trial Court, is well discussed, well
reasoned and within the paramount of the
settled provisions of law. The appeals,
filed by both the appellants, lack merit
and are liable to be dismissed.

66. Both the Criminal Appeals
No.943 of 2013 (Raj Kumar Savita Vs.
Union of India (Govt. of India) New Delhi)
and 688 of 2013 (Gopal Verma @ Teetu
Vs. Union of India Thru. Directorate of
Revenue Intelligence) are dismissed and
impugned judgment and order passed by
the trial Court is affirmed.

67. Both the appellants are on bail.
Their bail bonds are cancelled and sureties
are discharged. They are directed to
surrender forthwith before the Court below
to serve out their sentence.

68. Office is directed to send a copy
of this judgment and order forthwith to the
trial Court along with lower Court record
for necessary compliance
----------
(2021)03ILR A979
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1044 of 2000

Angad ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:

Counsel for the Opposite Party:

(A)
Criminal
Law
-
Appeals
from
Convictions - Indian Penal Code, 1860 -
sections 302/34 - Murder - The Code of
980 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal
procedure,
1973
-
Section
107/116,145 - evidence of exhortation - a
weak piece of evidence - Unless the
evidence in this respect is clear, cogent
and
reliable,
no
conviction
can
be
recorded against the person alleged to
have exhorted the actual assailant.(Para -
52,)

(B) Criminal Law - Evidence Act - If an
omission or discrepancy goes to the root
of the matter and ushers in incongruities,
the defence can take advantage of such
inconsistencies - instant case - cross
examination which have been of the two
eye witnesses, i.e., P.W. 1 and P.W. 2 have
been put to by the accused about eight
months and more one year respectively
would show that such minor discrepancies
were quite natural but from their evidence
it does not go to the root of the matter
which belies the present case - their
evidence is trustworthy and has been
rightly relied upon by the trial court while
convicting
and
sentencing
the
appellant.(Para - 46)

(C) Criminal Law - Indian Penal Code,
1860 - Section 34 - acts done by special
persons
in
furtherance
of
common
intention - Even an illegal omission on the
part of accused can indicate the sharing
of common intention - accused who only
keeps the common intention in his mind,
but does not do any act at the scene,
cannot be convicted with the aid of
Section 34, IPC - To ascertain common
intention, totality of circumstances must
be taken into consideration in arriving at
the conclusion whether the accused had
the such intention to commit an offence of
which he could be convicted.(Para - 53)

P.W.1 (Informant) son of deceased lodged FIR
against appellant and other co accused -
allegation in FIR - opposite to his house a
house of appellant , was being constructed -
dispute with respect to a public pathway in
between their houses - compromise meeting
held between his father and appellant - dispute
settled - appellant came along with his 4-5
associates - armed with fire arm - entered into
the house of the informant along with accused
appellant - made an exhortation to the other
co-accused uttering that "Maro Sale ko
Bachne na Paye" - opened fire on deceased -
sustained fire arm injuries and fell down -
incident was witnessed by the informant, his
wife, Rajdeep Yadav and Chaukidar - present in
the house at the time of incident - deceased
was taken to Medical College in injured
condition where the doctor on duty declared
him dead.(Para - 3)

HELD:- Court after scrutinizing the evidence
lead by the prosecution and the defence of the
accused, who had only pleaded for his false
implication in the present case and has not
denied his presence at the place of occurrence,
and his previous conduct goes to show that the
appellant has played an active role in the instant
case by instigating the co-accused persons for
killing the deceased and uttered "Maro sale ko
aaj bachne na paye" on which co-accused
persons have committed the murder of the
deceased with their respective rifles in broad
day light which had been witnessed by P.W. 1
and 2, namely, Vijay Kumar Yadav (informant)
and Smt. Kumkum Yadav, who are son and
daughter-in-law of the deceased and the ocular
testimony is corroborated by the medical
evidence and considering the law laid down by
the Apex Court in cases regarding exhortation,
we are of the opinion that the trial Court has
rightly convicted and sentenced the appellant
for the offence under section 302/34 I.P.C.,
hence does not require any interference by this
Court. The impugned judgment and order
passed by the trial Court is hereby upheld. (Para
- 54)

Criminal Appeal dismissed. (E-6)

List of Cases cited:

1. Brahm Swaroop & ors. Vs St. of U.P., 2011
(6) SCC 288

2. Yogesh Singh Vs Mahabir Singh & Ors., 2017
(11) SCC 195

3. Jainul Haque Vs St. of Bih., AIR 1974 SC
1651

4. Ramesh Singh @ Photti Vs St. of A.P. , AIR
2004 (SC) 4545
3 All. Angad Vs. State of U.P.
981
5. Surendra Chauhan Vs St. of M.P., 2000 4 SCC
110

6. Pandurang VS St. Of Hyderabad, 1955 1 SCR
1083

(Delivered by Hon'ble Ramesh Sinha, J.)

1. This criminal Appeal has been
preferred against the judgment and order
dated 18.11.2000 passed by VIII Additional
Sessions Judge, Lucknow in S.T. No. 579
of 1996 convicting and sentencing the
appellant under sections 302/34 I.P.C. for
life imprisonment with a fine of Rs.
20,000/- and in default of payment of fine
further to go simple imprisonment for 3
years

2. Out of six accused persons,
namely, Angad Yadav, Surajpal Yadav,
Chandrapal Yadav, Ramesh Kaliya, Ramji
Prasad, Shiv Bahwan, accused Surajpal
Yadav and Chandrapal were killed in
police encounter whereas accused Ramesh
Kaliya died during the pendency of the
appeal and his appeal, i.e., Crl. Appeal No.
1047 of 2000 has been abated by Coordinate Bench of this Court vide order
dated 21.11.2017. So far as accused Ramji
Prasad and Shiv Bhawan have been
acquitted by the trial Court, hence the
Court proceed to adjudicate the appeal on
behalf of the surviving appellant Angad
Yadav only.

3. The prosecution story as has been
set out by the informant Vijay Kumar
Yadav in the F.I.R. is that opposite to his
house a house of Angad Yadav, who was a
State Minister in the regime of B.S.P.
Government, was being constructed. There
was a dispute going on with respect to a
public pathway in between their houses. On
28.10.1995, with respect to the dispute of
public pathway, a compromise meeting was
held between his father Laxmi Shanker
Yadav and Angad Yadav and the dispute
was settled but on 29.10.1995, at about
9:30 p.m., Angad Yadav came along with
his 4-5 associates at the place where his
house was being constructed and was
standing. Few minutes thereafter a white
Gypsy with a banner of Samajwadi Party
came there from which 3-4 persons
including Ramesh Kaliya and Surajpal
Yadav came out. They were armed with
fire arm. The said persons entered into the
house of the informant along with accused
Angad
Yadav.
The
deceased
Laxmi
Shanker Yadav was in his bed room in the
house. Accused Angad Yadav made an
exhortation to the other co-accused uttering
that "Maro Sale ko Bachne na Paye". On
his exhortation, the associates of accused
Angad Yadav opened fire on Laxmi
Shanker Yadav, who sustained fire arm
injuries and fell down. The incident was
witnessed by the informant Vijay Kumar
Yadav, his wife Smt. Kumkum Yadav,
Rajdeep Yadav and Chaukidar Ram Charan
Yadav, who were present in the house at
the time of incident. The deceased Laxmi
Shanker Yadav was taken to Medical
College in injured condition where the
doctor on duty declared him dead.

4. The informant Vijay Kumar Yadav
prepared a written report (Ex. Ka-1) and
submitted the same at police station
Hazratganj, Lucknow on the basis of which
chik report was prepared and the case was
registered as case crime no. 835 of 1995
under sections 147, 148, 149, 302 I.P.C. at
10:45 a.m. which was endorsed in G.D.
rapat no. 21 dated 29.10.1995 at 10:45 a.m.
The distance of police station from the
place of occurrence was about 2 kms. The
inquest report (Ex. Ka-10) was prepared
and further necessary documents such as
police form no. 13 (Ex. Ka-11), challan
982 INDIAN LAW REPORTS ALLAHABAD SERIES
nash (Ex. Ka-12) etc. were also prepared.
Thereafter, the dead body of the deceased
was sent to mortuary for post mortem. The
post
mortem
of
the
deceased
was
conducted on 29.10.1995 at 12:30 p.m. by
P.W. 4 Dr. R.K. Mishra, who opined that
the cause of death of the deceased is due to
shock and hemorrhage as a result of ante
mortem injuries. The Investigating Officer
took over the investigation of the case and
after recording the statement of the
witnesses prepared the site plan of the place
of occurrence etc. and after investigation
submitted charge-sheet against accused
Angad Yadv, Surajpal Yadav, Chandrapal
Yadav, Head Constable A.P. 14 Ramji
Prasad, Constable A.P. 204 Shiv Bhawanthe security guards of appellant Angad
Yadav and Ramesh Kaliya under sections
147, 148, 149, 302, 109, 120-B I.P.C. On
submission of charge-sheet before the
Magistrate, the case was committed to the
Court of Sessions. The trial Court framed
charges on 25.2.1997 against accused
persons, who denied the same and claimed
their trial.

5. The prosecution in support of its
case has examined seven prosecution
witnesses, i.e., P.W. 1 Vijay Kumar Yadav,
who is the informant of the case and son of
the deceased, P.W. 2 Smt. Kumkum Yadav
wife of the P.W. 1 and daughter-in-law of
the deceased, P.W. 3 Head Constable
Chandra Bhan, P.W. 4 Dr. R.K. Mishra,
P.W. 5 S.I. Ram Chandra Maurya- the 1st
Investigating Officer, P.W. 6 S.I. Chakki
Lal Verma, who conducted the inquest
proceedings and P.W. 7 S.I. Vedpal Singhthe second Investigating Officer, who
concluded the investigation and submitted
charge-sheet.

6. Appellant Angad Yadav in his
statement under section 313 Cr.P.C. has
stated that under the influence of the police,
the witnesses have falsely deposed against
him and further at the instance of police
false prosecution has been launched against
him. He has been falsely implicated in the
present case.

7. The appellant has not led any
witness in his defence nor filed any
documentary evidence.

8. P.W. 1 Vijay Kumar Yadav, who is
the informant of the case and son of the
deceased, in his deposition before the trial
Court has reiterated the prosecution case as
has been set out by him in the F.I.R., for
brevity the same is not repeated.

9. In addition to it, he identified
accused Ramji Prasad and Shiv Bhawan,
who were present in the Court as
gunners/shadow of accused Angad Yadav.
He stated that a white Gypsy having banner
of Samajwadi Party reached near his house
and from the said vehicle Chandrapal
Yadav, Surajpal Yadav and Ramesh Kaliya
came out and two persons were sitting
inside it. All the three persons were armed
with rifles out of three Ramesh Kaliya fired
in the air and Surajpal Yadav and
Chandrapal Yadav abused his father and
came to his house. Surajpal Yadav had shot
a fire at the door which after hitting the
door went inside and hit the wall and the
window. He identified Surajpal Yadav and
Chandrapal Yadav, who were also present
in the Court. He stated that he was at the
roof of his house at the time of incident and
he saw the said incident from there. When
the accused persons entered into his house
they were abusing and uttering that "Aaj na
bachne paye". Thereafter he got down from
his roof and came inside his house till that
time the accused had entered in his house
and his wife had tried to stop them and
3 All. Angad Vs. State of U.P.
983
when he had reached in the hall of the
house, he saw that Chandrapal Yadav had
dragged his father from his bed room into
the big hall. By that time Surajpal Yadav
and Ramesh Kaliya had also come in the
hall. Appellant Angad Yadav was present
in the gallary. On the exhortation made by
accused Angad Yadav uttering "Maro sale
ko aaj na bachne paye" Chandrapal Yadav
had firstly assaulted his father with the butt
of the country made pistol on his neck
thereafter Chandrapal Yadav, Surajpal
Yadav and Ramesh Kaliya had fired at his
father. On receiving the gun shot injuries
his father had fallen down. At that time
both the guards of Angad Yadav, namely,
Ramji Prasad and Shiv Bhawan were
standing at the door of the house and while
going back the accused have broken the
telephone which was kept on the table. The
witness further stated that till he could
come out all the accused had gone away on
their vehicle. The witness further stated that
at the time of incident, his wife Smt.
Kumkum Yadav, Chaukidar Ram Charan
and one of his relative, namely, Rajdeep
were present at the place of occurrence.
Thereafter, the witness made a call to Civil
hospital for Ambulance on which he took
his father to the hospital. An information
was also send to police station Hazratganj
by sending some persons. The witness had
taken his father to the Medical College
where the doctor after seeing his father had
declared him dead. Thereafter he took a
paper at the medical college and got a
report written and lodged the F.I.R. at
police station Hazratganj. He has dictated
the report about the incident and the person
to whom he dictated the report, he did not
remember but he has signed the report. He
has proved the written report as A5/2 which
is marked as Ex. Ka-1. The witness stated
that Angad Yadav was in Bahujan Samaj
Party. The name of Surajpal Yadav had
come for contesting the election. The
witness stated that he did not has any
information about the relationship of the
accused persons and Angad Yadav.

10. In the cross examination made on
behalf of the appellant Angad Yadav, the
witness stated that he started practice in
Lucknow in the year 1980 and did practice
for one and half years. He had heard the
name of Angad Yadav before laying down
the foundation of the house of Angad
Yadav but neither he has seen him and nor
he has been formerly introduced by any one
to him. He has also neither formerly met
his gunner nor anyone had introduced him.
He also did not formerly meet Surajpal
Yadav, Chandrapal Yadav and Ravi Yadav.
On the day of incident, he did not know the
name of the gunner of Angad Yadav and he
identified them by their faces. At the time
of incident, there was name plate of the
gunners and he came to know about their
name from it. He did not mention the name
of the gunners in the F.I.R. but he told the
Investigating Officer about their names in
his statement and if the Investigating
Officer had not mentioned the same then he
cannot tell any reason for the same. He
denied the suggestion that at the tutoring of
someone he has identified the gunners as he
did not mention in the F.I.R. that at the
time of incident there was any guard or
shadow along with Angad Yadav. He stated
that at the time of the incident no person
was in police uniform. He saw the uniform
and name plate of the gunners prior to the
incident. He did know that whether on the
date of incident or prior to it any police
squad was deputed for the security of
Angad Yadav or not. He further deposed
that neither he had seen any sale deed nor
any map of the house of Angad Yadav. He
further did not know about the area of the
plot of Angad Yadav. He saw Angad
984 INDIAN LAW REPORTS ALLAHABAD SERIES
Yadav coming to his plot for getting the
work done. He further did not know
whether the plot on which Angad Yadav
was getting his house constructed, was part
of sale deed or not. He further deposed that
he did not mention in the F.I.R. that in spite
of his father opposing, Angad Yadav had
not stopped the work of digging of the land
and abused him. He further did not mention
in the F.I.R. that from the conduct of
Angad Yadav, it was apparent that he was
not happy with the compromise. He stated
that he had told the Investigating Officer
about the said fact and if he has not
mentioned the same then he cannot tell the
reason. He further stated in the F.I.R. that
he did not mention that Angad Yadav had
made an exhortation to his associates but he
has told the same in his statement to the
Investigating Officer that Angad Yadav
made an exhortation and if he has not
mentioned the same in his statement then
he cannot tell any reason. He further did
not mention in the F.I.R. that at the time of
incident both the guards of Angad Yadav
were standing at the gate. He denied the
suggestion that the aforesaid facts were not
mentioned by him in the F.I.R. and on the
tutoring he has stated the same in his
statement. He further stated that he did not
mention in the F.I.R. that Angad Yadav
was getting the digging done excess 12ft.
wide on public pathway and he has stated
the said fact to the Investigating Officer
that
Angad
Yadav
was
making
constructions on excess 12 ft. wide on
public pathway. The total width of the
public pathway was 12 ft. and he cannot
tell that as to how much in width Angad
Yadav was getting the digging done. The
question was being put to the witness that
whether Angad Yadav was getting the
construction done on more 12 ft. width? on
which the witness replied that after leaving
2-3 ft. public pathway, the digging was
being done by him. The digging was being
done by Angad Yadav after leaving 10 ft.
from the gate of the house of the witness.
On the day of the incident, no shadow was
provided to his father. Surajpal Yadav had
absconded after the incident. Angad Yadav
was in B.S.P. and he did not know in which
party Surajpal was. On the Gypsy the
banner of Samajwadi Party was put. He
stated that he had shown the place where
the accused were standing at the time of the
incident and he has also stated that Angad
Yadav was standing in the gallery. The
Investigating Officer had prepared the site
plan at his instance on the day of the
incident. He has denied the suggestion that
on the day of the incident Angad Yadav
and his shadow, namely, Shiv Bhawan and
Ramji Prasad were not present. He further
denied the suggestion that Angad Yadav
had not exhorted the accused to kill the
deceased.
He
has
also
denied
the
suggestion that he was not present at the
place of occurrence. He also denied the
suggestion that the report which has been
stated to be written, has not been written at
that time. He denied the suggestion that
because of the political rivalry the name of
Angad Yadav has been falsely implicated
in the present case.

11. P.W. 2 Smt. Kumkum Yadav,
who is the wife of P.W. 1 and daughter-inlaw of the deceased in her deposition
before the trial Court has reiterated the
prosecution case as has been stated by P.W.
1 in its entirety, hence for the sake of
brevity the same is not being repeated.

12. In her cross examination, she has
stated that when the house of Angad Yadav
was being constructed, he was not the
Minister and he was Minister prior to it.
The witness stated that towards the East of
her house there was house of Angad Yadav
3 All. Angad Vs. State of U.P.
985
and in between there was a public pathway.
Towards West of the house of the witness
there was house of Ravi Yadav. There was
some hot talks of her father-in-law with
Ravi Yadav 3-4 months prior to the
incident as he wanted to grab their land.
She stated that quarrel took place in the
year 1994. She is not aware of the month in
which the quarrel had taken place. She did
not accompany her father-in-law when
there was quarrel between them. She used
to live in her house and outside work and
other matter were taken care of by her
husband and father-in-law. She used to live
in the house and take care of children and
during the talks in the house she came to
know about the dispute with Ravi Yadav.
During the course of talks she further came
to know that Ravi Yadav, Surajpal Yadav,
Chandrapal Yadav and Ramesh wanted to
grab their land. She did not meet them but
she had seen them earlier when they used
to come. She has stated that at the time of
incident Angad Yadav was getting the
digging done at his plot. At the time of
incident, there was President rule in the
State. She denied the suggestion that
because of the influence of Congress party,
her father-in-law had grab the land of
nearby areas. She did not know that her
father-in-law had a sale deed of two biswas
of land. She has stated that security was
provided to her father-in-law by the
administration with gunner, who used to
accompany her father-in-law but in June,
1995, the government has withdrawn the
same and her father-in-law had not tried to
get the shadow as there was no threat to his
life. She did not know that to whom Angad
Yadav had got the arm license provided.
She stated that no identification of the
shadow and gunners of Angad Yadav was
got done from her. She has stated about the
names of guards in her statement to the
Investigating Officer and if the same has
not been mentioned by him then she cannot
tell any reason. She did not have any
conversation with Angad Yadav prior to
the incident nor anyone got her introduced
with him. Angad Yadav used to come at his
plot prior to a month and used to sit there.
On the date of incident, no work was being
done on the plot of Angad Yadav though
the work on the plot used to start at about 9
a.m. She denied the suggestion that the said
incident had not taken place on the
exhortation of Angad Yadav. She further
denied the suggestion that he did not enter
in the boundary of house. She also denied
the suggestion that he has not participated
in the incident. She denied the suggestion
that on the tutoring, she named the shadow
and gunners of Angad Yadav in the Court.
She also denied the suggestion that there
was no dispute of Angad Yadav for digging
the base on the disputed land. She also
denied the suggestion that because of
political rivalry the name of Angad Yadav
has been falsely implicated. She denied the
suggestion that the name of guards have
been taken by her after due deliberation and
consultation.

13.

P.W.
3
Head
Constable
Chandrabhan Singh Gautam had stated
before the trial Court that on 29.10.1995,
he was posted at Kotwali Hazratganj and
on his instructions, on the basis of written
report (Ex, Ka-1) submitted by the
informant Vijay Kumar Yadav, chik F.I.R.
no. 833 was written and case was registered
as case crime no. 835 of 1995 under
sections 147, 148, 149, 302 I.P.C. by
Constable No. 355 Girish Kumar Sharma.
Chik F.I.R. No. 833 is in the hand writing
and signature of Constable Girish Kumar
Sharma. He is conversant with the hand
writing and signature of Constable Girish
Kumar Sharma as he was posted with him.
He has proved Ex. Ka.3 (G.D. No. 21)
986 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 29.10.1995 which was prepared by
him in his hand writing and signature. He
has further stated that no endorsement
regarding receiving of any information on
telephone on 29.10.1995 has been made in
the
G.D.
On
23.10.1995
also,
no
endorsement regarding the information
given by Laxmi Shanker Yadav against
Angad Yadav, has been made in the G.D.
of the police station. He next stated that it
might be possible that Laxmi Shanker
Yadav or his son have given any
application
to
Chauki
In-charge
of
Bandariya Bagh as proceeding under
section 107/116 Cr.P.C. was initiated. On
28.10.1995, a notice for proceeding under
section 145 Cr.P.C. was received in the
police station from the Court in the matter
of Angad Yadav and Laxmi Shanker Yadav
which was endorsed in G.D. rapat no. 36 at
7:30 hours. On 29.10.1995 at 16:05 hours
special report was sent to the authorities as
the case was of murder, hence special
report was sent.

14. P.W. 4 Dr. R.K. Mishra has
submitted that on 29.10.1995, he was
posted at medical college and was on post
mortem duty. On 29.10.1995 at 12:30
hours, he had conducted the post mortem of
the deceased Laxmi Shankar Yadav which
was sent in an unsealed condition and he
found following ante mortem injuries on
his person:-

"1. Fire arm wound of entry 1/2
cm. x 1 cm. x abdominal cavity deep put at
Ant. auxiliary line 12 cm. Above ASIS right
side, 16 cm. lateral to umbilicus at 9:30
O'clock. Margins inverted.

2. Fire arm wound of entry 1/2
cm. x 1 cm. x bone deep 12 cm. above, right
elbow in an outer aspect of right arm.

3. Wound of exit 12 cm. x 7 cm. x
bone deep 6 cm. below axilla inner side of
right arm wound communicating to injury
no. 2 . All tissues in below. Two injuries
are lacerated bone right humerous is
fractured.

4. Fire arm wound of entry 1/2
cm. x 1 cm. x chest cavity deep put on left
side of chest at post axillary line 9-1/2 cm.
below left axilla 17 cm. lateral to nipple
(left).

5. Wound of exit 7 cm. x 4 cm. x
chest cavity deep margin inverted 7 cm.
lateral to right nipple 9-1/2 cm. below
axilla,
on
probing
this
wound
is
communicating to injury no. 4. On opening
each injury on observation put under ...
each injury bright red coloured blood fluid
+ clotted put in chest cavity 1/2 litre and in
abdominal cavity 1 litre. 8th and 9th ribes
right side fractured under injury no. 4 and
7th to 10th ribes left fractured under injury
no. 5. Both lungs lacerated along with
pleurae. Liver lacerated chest muscles
lacerated under injury no. 4, 5 abdominal
muscle lacerated Psoas muscle lacerated.
10th + 11th vertebra lacerated. Metallic
piece of bullet found in vertebrae. Three in
number sealed in double envelope and sent
to S.S.P. Lucknow through police constable
concerned."

15. He has proved the post mortem
report of the deceased as Ex. Ka-5. The
doctor opined that all the injuries on the
person of the deceased, were caused by fire
arm before his death. At the time of post
mortem, the duration of death was 1/2 day
old. The injuries in the ordinary course of
nature, were sufficient to cause death. All
the injuries were caused by Rifle on
29.10.1995 at about 9:30 a.m. The cause of
3 All. Angad Vs. State of U.P.
987
death was found to be shock and
hemorrhage as a result of fire arm injuries.

16. P.W. 5 S.I. Ram Charan Maurya
in his deposition before the trial Court has
stated that the F.I.R. of the present case was
lodged at the police station at 10:45 a.m. on
29.10.1995 in his presence. He took over
the investigation and proceeded to the spot
with copy of the report of the chik etc. He
examined
Head
Constable,
who had
prepared the chik F.I.R. and registered the
case. On the spot, he recorded the
statements of the informant-Vijay Kumar
Yadav, Smt. Kumkum Yadav and Ram
Charan and prepared the site plan of the
place of occurrence at the instance of the
informant and proved the same as Ex. Ka6. On the spot, he recovered three
cartridges of 315 bore and one bullet of
rifle and broken telephone and taken the
same in police custody. Blood stain and
plain earth taken and sealed the same in
three memo were prepared on which he put
his signature and also taken the signature of
the witnesses. He proved the same as Ex.
Ka-7 to Ex. Ka-9. After the arrest of Ramji
Prasad and Shiv Bhawan, their uniform,
batch, belt and cap were taken in police
custody.
Rest
of
the
accused
had
surrendered before the Court. As the said
witness
could
not
conclude
the
investigation, the remaining investigation
was handed over to another Investigating
Officer. The remaining investigation was
conducted by S.I. Ved Pal Singh P.W. 7,
who submitted charge-sheet against the
accused persons and proved it as Ex. Ka13.

17. P.W. 6 S.I. Chakki Lal Verma has
stated before the trial Court that on
29.10.1995 he was posted as S.I. at police
station Chowk, Lucknow and on the death
memo being received he was entrusted with
the task to conduct the inquest on the dead
body of the deceased Laxmi Shanker
Yadav. He prepared the inquest report and
handed over the body to Constable Saroj
Mishra for being taken to mortuary for post
mortem examination. He prepared the
relevant document such as Ex. Ka-10
challan nash, Ex. Ka.11, photo nash Ex.
Ka. 12, police paper Ex. Ka-13 and Ex. Ka11.

18 . P.W. 7 S.I. Vedpal Singh has
deposed before the trial Court that he took
over the investigation of the case from
Investigating Officer S.I. Ram Chandra
Maurya, who was earlier investigating the
matter. The witness stated that after
concluding the investigation, he submitted
charge-sheet against the accused persons
which he has proved as Ex. Ka-13.

19. The trial Court after examining
the evidence led by the prosecution and
considering the defence has convicted and
sentenced the appellant for the offence in
question and being aggrieved by the same,
the appellant has preferred the instant
appeal.

20. Heard Sri Nagendra Mohan,
learned counsel for the appellant, Sri
Umesh Chandra Verma, learned A.G.A. for
the State and perused the impugned
judgment and order as well as lower Court
record.

21. Learned counsel for the appellant
argued that the appellant Angad Yadav was
named in the F.I.R. along with other
accused persons, namely, Surajpal Yadav
and Ramesh Kaliya. During the course of
investigation the involvement of one
Chandrapal Yadav came into light along
with accused Ramji Prasad and Shiv
Bhawan. All of them were put to trial but
988 INDIAN LAW REPORTS ALLAHABAD SERIES
two co-accused, namely, Ramji Prasad and
Shiv Bhawan were acquitted by the trial
Court and the appellant along with accused
Surajpal Yadav, Chandrapal Yadav and
Ramesh Kaliya was convicted. He argued
that the appellant had no motive to commit
the murder of the deceased as there was no
animosity between the appellant and the
deceased. He submitted that so far as coaccused Ramesh Kaliya, Chandrapal Yadav
and Surajpal Yadav are concern, the
appellant has no concern with the said coaccused persons, who had motive to
commit the murder of the deceased. As per
the prosecution case, appellant Angad
Yadav has been assigned the only role of
exhortation
whereas
other
co-accused
persons, namely, Ramesh Kaliya, Surajpal
and Chandrapal opened fire with their rifles
on the deceased Laxmi Shankar Yadav,
who sustained fire arm injuries and fell
down. The incident was witnessed by P.W.
1 Vijay Kumar Yadav, who is the
informant and son of the deceased along
with his wife P.W. 2 Kumkum Yadav, who
is the daughter-in-law of the deceased but
their testimony is unworthy to be believed
as they are highly interested and partisan
witnesses on close scrutiny of their
evidence shows that they have made
contradictory statements before the trial
Court regarding the manner in which the
incident had taken place.

22. He submitted that the F.I.R. of the
incident was lodged after the inquest
proceeding done and it is evident from the
evidence of P.W. 1 that he did not disclose
the identity or the involvement of the
appellant Angad Yadav to the police, who
had arrived soon after the incident. He had
only stated that it was accused Surajpal and
his associates, who have committed the
murder of the deceased and the F.I.R. of the
incident is an ante time document as in the
panchayatnama of the deceased, no case
crime number, police station etc. were
mentioned.

23. It was further vehemently argued
that the motive which has been suggested
by the prosecution that there was animosity
between the appellant and the deceased
with respect to a public pathway and on
28.10.1995, a compromise also took place
between the parties but on 29.10.1995, the
appellant along with his 4-5 associates
came to the place where his house was
being constructed and was standing and
within few minutes thereafter a white
Gypsy with flag of Samajwadi Party had
come from which 3-4 persons got down,
who were armed with fire arm weapons. In
the said Gypsy co-accused Ramesh Kaliya
and Surajpal Yadav were present. He
submitted that there was a compromise
taken place between the appellant and the
deceased, hence there was no occasion for
the appellant to participate in the murder of
the deceased with co-accused Surajpal
Yadav, Chandrapal Yadav and Ramesh
Kaliya with whom the appellant was not
having good relation.

24. He argued that the appellant
because of political rivalry in collusion
with the police has been falsely implicated
in the present case and has been given
ornamental role of exhortation. He further
pointed out that as per the evidence of P.W.
1, it has been stated that appellant Angad
Yadav was getting the public pathway dig
which was objected by the deceased Laxmi
Shanker Yadav but the Investigating
Officer-P.W. 4 did not find any such
incident of digging at the place of
occurrence nor he has shown any said place
in the site plan. Further in the site plan Ex.
Ka-5
which
was
prepared
by
the
Investigating Officer, the place from where
3 All. Angad Vs. State of U.P.
989
the appellant Angad Yadav had made
exhortation to the co-accused to kill the
deceased, has not been shown.

25. He submitted that during the
course of cross examination PW-1 has
admitted that in the F.I.R. he had not
written that there was any guard or shadow
of Angad Yadav with him nor there was
any person in police uniform at the time of
incident with Angad Yadav. He had seen
the guard in police uniform and shadow of
Angad Yadav and their name plate a day
prior to the incident. He further in his cross
examination has stated that he has neither
seen any map of the house of Angad Yadav
nor any sale deed. He also did not know the
size of the plot of Angad Yadav. He further
did not know the land on which Angad
Yadav was digging foundation of the
house. The said land was part of sale deed
or not he did not mention in the F.I.R. The
fact that in spite of his father had opposed
the digging of the land/pathway, Angad
Yadav abused him and continued digging,
has not been mentioned by him in the F.I.R.
He has further not mentioned in the F.I.R.
that Angad Yadav was not happy with the
compromise entered into between the
parties. He stated that he had given the said
statement to the Investigating Officer but if
he has not mentioned the same, he cannot
tell any reason.

26. He further argued that from the
evidence of P.W. 1, it is apparent that he
did not ever had any conversation with
Angad Yadav or his associates and prior to
the incident they have not insulted or used
any filthy language to him. Angad Yadav
once had met the witness and on the said
occasion his conduct was good. The
pathway with a width of 12 ft. on which
digging was being done, did not belong to
the witness as it was public pathway.

27. With regard to the evidence of
P.W. 2 Smt. Kumkum Yadav wife of P.W.
1 and daughter-in-law of the deceased, it
has been argued by learned counsel for the
appellant that she has stated in her
examination in chief the manner of incident
stating that Angad Yadav along with
Surajpal Yadav, Chandrapal Yadav and
Ramesh Kaliya entered into the house and
Chandrapal Yadav, Surajpal Yadav and
Ramesh Kaliya were armed with rifle and
her father-in-law, who was in his bed room
and Angad Yadav exhorted to kill him on
which Chandrapal Yadav entered into the
bed room and dragged him into the hall and
when she tried to interfere, she was pushed
and thereafter Chandrapal Yadav, Surajpal
Yadav and Ramesh Kaliya all the three
fired one shot each from rifle. Thereafter,
the deceased fell on the carpet which was
on the floor and Surajpal, Chandrapal and
Ramesh Kaliya also broke the phone which
was kept on a table and went outside
whereas P.W. 1 has narrated the incident
stating that he saw Chandrapal Yadav
dragged his father in a hall and at that time
Surajpal and Ramesh Kaliya had also came
in the hall and Surajpal Yadav was present
in the gallery and Chandrapal had firstly
assaulted by butt of country made pistol on
the neck of his father and thereafter all the
three accused fired at his father and Angad
Yadav had exhorted his associates to kill
the deceased so that he may not remain
alive and at that time the two guards of
Angad Yadav, namely, Ramji Prasad and
Shiv Bhawan were standing at the door of
the house which goes to show that the
evidence of P.W. 1 and 2 are highly
contradictory in nature.

28. It was also argued that P.W. 1 has
stated that his wife and Chaukidar Ram
Charan and one person Raj Deep, who is
resident of Jaunpur and came to meet him,
990 INDIAN LAW REPORTS ALLAHABAD SERIES
were present but the said persons, who
were independent witnesses, were not
produced by the prosecution.

29. He further argued that the two
security guards of the appellant, namely,
Ramji Prasad and Shiv Bhawan, who were
also stated to be present with the appellant
Angad Yadav as has been deposed by P.W.
1 and 2, have been acquitted by the trial
Court as their involvement was found to be
false, thus, the counsel for the appellant
assailed the presence of the two eye
witnesses, i.e., P.W. 1 and 2 at the place of
occurrence
and
submitted
that
their
evidence is not reliable one. Lastly it was
argued that the reasoning given by the trial
Court for convicting and sentencing the
appellant for the offence in question is
against the evidence on record, hence the
appellant is entitled to be acquitted by this
Court and the judgment and order of the
trial Court be set aside.

30. Per contra, learned A.G.A. on the
other
hand
vehemently
opposed
the
arguments of learned counsel for the
appellant and submitted that the incident
had taken place at 9:30 a.m. in the morning
on 29.10.1995 and the F.I.R. of the incident
was lodged by P.W. 1 on the same day at
10:45 a.m. at the concerned police station
which was at a distance of two kms. from
the place of occurrence.