# Annu v. State of U.P

- **Citation:** (2025) 5 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-26
- **Case number:** Criminal Appeal No. 2240 of 2008
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/annu-v-state-of-u-p-53381
- **Pages:** 15

## Headnote

(A) Criminal Law - Murder - Attempt to
murder - Grievous hurt - Possession of
arms - Code of Criminal Procedure, 1973 -
Sections 374(2), 428 & 437-A - Indian
Penal Code, 1860 - Section 302, 307, 326 -
Arms Act, 1959 - Section 3/25 - Evidence
Act, 1872 - Section 6 - Principle of "same
transaction" - Ocular testimony of injured
witness - Reliability - Medical evidence
vis-à-vis
ocular
evidence
-
Related
witnesses
-
Number
of
witnesses
-
Absence of motive - Effect - Where the eye
witness's account is found credible and
trustworthy, medical opinion pointing to
alternative possibilities is not accepted as
conclusive - Where direct evidence of
injured eyewitness is trustworthy and
corroborated by other witnesses and
medical evidence, absence of motive or
faulty
investigation
do
not
warrant
acquittal - power to impose a modified
punishment providing for any specific
term of incarceration or till the end of the
convict's life as an alternate to death
penalty, can be exercised only by the High
Court and the Supreme Court and not by
any other inferior court. (Para - 38 to 41, 44
to 46, 48 to 52,54)

Appellant, armed with country-made pistol -
fired at two boys playing in village - bullet
grazed arm of one (PW-2) and fatally injured
other (Rafiq), aged 18 - caught on spot by
villagers with weapon - Rafiq died next morning
- Trial Court convicted appellant - sentencing
him to life imprisonment for murder - concurrent
sentences for other offences - hence appeal.
(Para - 7 to 14)

HELD: - Conviction affirmed. Sentence for
Section 302 IPC modified from life imprisonment
to 25 years' rigorous imprisonment. Fine
maintained. No perversity in the findings of trial
court. (Para - 52 to 56)

Appeal partly allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,846 of 50,545. This is a partial read: ask again with offset=39846 for what follows._

5 All. Annu Vs. State of U.P.
191
the Indian Penal Code, read with Section
149 of the Indian Penal Code, since the
accused-appellant remained in custody
during the trial as well as post-conviction
and taking into account the period of
incarceration already undergone by him,
we deem it appropriate to impose a
sentence equivalent to the period already
undergone by the accused-appellant.

57. Thus the appeal stands partly
allowed in the above mentioned terms.The
appellant is on bail. He needs not surrender.
The bail bonds stand discharged.

58. A copy of this order be sent to the
learned
trial
Court
concerned
for
information.

59. Certified copy, as per rules.
----------
(2025) 5 ILRA 191
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.05.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Appeal No. 2240 of 2008

Annu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Arun Sinha, Hari Bux, Ravi Kant Pandey

Counsel for the Respondent:
G.A., G.S. Verma, S.P. Tiwari, Shiv Pramod
Tiwari, Vikas Pandey

(A) Criminal Law - Murder - Attempt to
murder - Grievous hurt - Possession of
arms - Code of Criminal Procedure, 1973 -
Sections 374(2), 428 & 437-A - Indian
Penal Code, 1860 - Section 302, 307, 326 -
Arms Act, 1959 - Section 3/25 - Evidence
Act, 1872 - Section 6 - Principle of "same
transaction" - Ocular testimony of injured
witness - Reliability - Medical evidence
vis-à-vis
ocular
evidence
-
Related
witnesses
-
Number
of
witnesses
-
Absence of motive - Effect - Where the eye
witness's account is found credible and
trustworthy, medical opinion pointing to
alternative possibilities is not accepted as
conclusive - Where direct evidence of
injured eyewitness is trustworthy and
corroborated by other witnesses and
medical evidence, absence of motive or
faulty
investigation
do
not
warrant
acquittal - power to impose a modified
punishment providing for any specific
term of incarceration or till the end of the
convict's life as an alternate to death
penalty, can be exercised only by the High
Court and the Supreme Court and not by
any other inferior court. (Para - 38 to 41, 44
to 46, 48 to 52,54)

Appellant, armed with country-made pistol -
fired at two boys playing in village - bullet
grazed arm of one (PW-2) and fatally injured
other (Rafiq), aged 18 - caught on spot by
villagers with weapon - Rafiq died next morning
- Trial Court convicted appellant - sentencing
him to life imprisonment for murder - concurrent
sentences for other offences - hence appeal.
(Para - 7 to 14)

HELD: - Conviction affirmed. Sentence for
Section 302 IPC modified from life imprisonment
to 25 years' rigorous imprisonment. Fine
maintained. No perversity in the findings of trial
court. (Para - 52 to 56)

Appeal partly allowed. (E-7)

List of Cases cited:

1. Edakkandi Dineshan Vs St. of Kerala, 2025
(3) SCC 273

2. Ramkant Rai Vs Madan Rai & ors.,
MANU/SC/0780/2003 : 2004

3. CriLJ 36 Dhananjay Singh Vs St. of Punj.,
2004 JIC 399
192 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Chandan Vs St. (NCT of Delhi), 2024 (6) SCC
799

5. Madan Vs St. of U.P., 2023 (15) SCC 701

6. Deen Dayal Tiwari Vs St. of U.P. , 2025 SCC
OnLine SC 237

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This Criminal Appeal has been filed
under Section 374(2) of the Cr.P.C. against
the judgement and order dated 02.09.2008
passed by learned Additional Sessions
Judge, F.T.C.-VI, Lakhimpur Kheri, in
Sessions Trial No. 593 of 2005, in Case
Crime No. 183 of 2005 and 184 of 2005,
under Sections 307, 302, 326 I.P.C. and
Section 3/25 Arms Act, registered at Police
Station-
Isha
Nagar,
District,
Kheri,
convicting and sentencing the appellant
under Section 302 of the I.P.C. to rigorous
imprisonment for life and fine, and under
Section 307 I.P.C., simple imprisonment
for seven years and fine, and under Section
326 I.P.C., simple imprisonment for seven
years and fine, and under Section 3/25 of
the Arms Act, simple imprisonment for two
years and fine; all sentences to run
concurrently, and in default of payment of
fine on each count, additional simple
imprisonment has to be undergone.

2. This Appeal was initially filed by
Sri Arun Sinha. He failed to appear on
various dates thereafter, and this Court
appointed Hari Baksh Singh, Advocate, as
Amicus on his behalf. Later on, Sri Ravi
Kant Pandey filed his power on 27.03.2023
on behalf of the appellant and thereafter
filed an application under Section 9(2) of
the Juvenile Justice (Care and Protection of
Children) Act, 2015 for declaring the
appellant as juvenile at the time of the
incident. Such application was filed in
February 2024, alleging that the appellant,
being born on 10.02.1988, as is mentioned
in the school leaving certificate, was
juvenile at the time when the incident took
place on 28.03.2005. His name in his
school records is shown as Ganesh Dutt, as
is evident from the transfer certificate
issued by Poorva Madhyamik Vidyalaya,
Dhaurhara,
Lakhimpur
Kheri.
Such
certificate was issued in his real nameGanesh Dutt, son of Uday Narayan Tiwari.

3.
This
Court,
by
order
dated
05.08.2024, gave time to the counsel for
the complainant to file objections against
the application claiming juvenility. Such
objections were filed on 21.08.2024. It was
alleged in the said objections that the
appellant was 22 years of age on the date of
the incident and his actual date of birth is
05.01.1983, as is evident from the school
leaving certificate issued by Prathmik
Vidyalaya,
Karohan,
where
he
took
admission in Class-I on 05.07.1991, and his
name was recorded as Annu Lal, son of
Uday Narayan. His name was struck off the
school rolls on 16.01.1996 due to his
continuous absence from the school when
he was studying in Class-V. A copy of the
Parivar Register, issued on 16.04.2002,
showed that the appellant was 18 years of
age in 2002.

4. It was also stated that the appellant
and his father, Kallu alias Uday Narayan,
had brutally murdered one Tribhuvan Dutt
Tiwari, resident of Village Chauhan, on
23.02.2002, and they were accused in Case
Crime No. 55 of 2002 under Sections 302
and 307 I.P.C. at P.S. Dhar. The appellant
was tried in Sessions Trial No. 522 of 2002
and convicted with life imprisonment by an
order dated 07.06.2004. They challenged
the order in Criminal Appeal No.1352 of
2004 before this Court, which is pending.
5 All. Annu Vs. State of U.P.
193
The appellant was bailed out in Criminal
Appeal No. 1532 of 2004 and started
threatening and bullying the witnesses. He
then
committed
another
murder
on
28.03.2005 of Rafiq S/o Jahoor and was
tried and convicted by the judgement and
order impugned in the instant Appeal.

5. On 28.08.2024, the counsel for the
appellant stated that the appellant does not
wish to press the application raising the
plea of juvenility and would rather argue
the Appeal on merit. The application
raising
the
plea
of
juvenility
was
accordingly rejected and the Appeal was
directed to be listed for hearing.

6. We have heard Sri Ravi Kant
Pandey for the appellant and Sri Vikas
Pandey, learned counsel for the contesting
respondent, and the learned A.G.A. for the
State.

7. In short, the prosecution story as
mentioned in the written report, Exhibit
Ka-1, submitted by the informant Rajendra
Prasad, son of Munim Brahman, resident of
Village Pandit Purwa, P.S. Isha Nagar, is
that on 28.03.2005, he was cleaning Masoor
(a kind of lentil) in front of his house and his
son, Anand Mohan was with him who left to
play with the children at some distance. After
a little while, he heard some noises and he,
along with Jahoor son of Badlu, Ramesh and
Vinod, sons of Indrabali, Mobin son of
Mangare, Banwari son of Lallu, ran towards
the place from where the noise was coming.
They saw one person with country-made
pistol, 315 bore, opening fire. This was at
around 11:00 AM in the morning. As a result
of this, his son Anand Mohan and Rafiq, son
of Jahoor, were injured. The informant, along
with other villagers, caught hold of the
assailant and beat him up. He told his name
as Annu, son of Kallu alias Uday Narayan, of
Village Karauha, P.S. Dhaurhara. The
informant had come to the Police Station
along with his injured son Anand Mohan,
Rafiq S/o Zahoor, Zahoor and other villagers
along with the injured assailant and his
country-made pistol.

8. On the basis of this written report,
First Information Report, Exhibit Ka 6, was
registered and G.D. Entry No. 16, Exhibit Ka
7, was made at 12:30 PM. Crime No. 183 of
2005 under Section 307 I.P.C. initially
(Section 302 I.P.C. was added later) was
registered against the accused, and Case
Crime No. 184 of 2005 was registered under
Section 3/25 of the Arms Act.

9. After registering the F.I.R., the
injured Anand Mohan and Rafiq were sent to
the District Hospital Kheri for treatment
along with Police Constable and Rafiq died
the next morning at 07:00 AM on
29.03.2005.

10. The deceased Rafiq's body was sent
for postmortem, which was conducted by Dr.
Badrish Kumar, and the Postmortem Report,
Exhibit Ka 5, was prepared. The ante-mortem
injuries that were noted were as follows:

One firearm wound of entry 1 cm x
1 cm deep into the abdomen towards the left,
20 cm below the left nipple. The margins were
inverted, irregular, and on opening such
wound, the stomach, the small intestine, and
the transverse colon were all found lacerated,
and one conical bullet was found stuck in such
abdominal cavity. The entire abdomen was
found full of fluid, blood, and faecal matter.

The bullet that was retrieved was
sealed and sent to Superintendent of Police,
Kheri.

11. In the opinion of the Doctor, cause
of death was excessive bleeding and shock,
194 INDIAN LAW REPORTS ALLAHABAD SERIES
resulting from such hemorrhage caused by
ante-mortem firearm injury.

12. The Investigating Officer prepared
chargesheet on 24.04.2005 and filed it
before
the
Court
of
Chief
Judicial
Magistrate,
Kheri.
The
accused
was
produced in Court and he was handed over
copies of all relevant documents, and the
Chief Judicial Magistrate committed the
trial to the Sessions Court on 30.05.2005.
Charges were framed thereafter under
Sections 307, 302 and 326 I.P.C. and
Section 3/25 of the Arms Act. The accused
pleaded not guilty and claimed trial.

13. The prosecution relied upon eleven
witnesses:-

Rajendra Prasad P.W.-1, Anand
Mohan Pathak P.W.-2, Jahoor P.W.-3, Dr.
Rajendra Prasad P.W.-4, Dr. Badrish
Kumar P.W.-5, Constable Man Singh
P.W.-6, Dr. S.N.H. Rizvi P.W.-7, SO
Kailash Yadav P.W.-8, SI Balram Yadav
P.W.-9, SI Sarju Prasad P.W.-10 and
Constable Rajaram as P.W.-11.

14. Documentary evidence relating to
written report, F.I.R., Recovery Memo
prepared of country-made pistol and spent
cartridge,
inquest
report,
postmortem
report,
injury
report,
X-ray
report,
prosecution sanction under Section 3/25 of
the Arms Act, and police papers relating to
letter sent to the Chief Medical Officer, and
to the Reserve Inspector, X-ray plates, site
plan prepared by the Investigating Officer,
were proved by the official witnesses.

15. The learned counsel for the
appellant, Sri Ravi Kant Pandey, has
argued that no one had actually seen the
accused Annu firing the gunshot which hit
Anand Mohan and Rafiq. He has pointed
out from the statement recorded of P.W.-1
Rajendra Prasad that he had initially stated
in his examination-in-chief that he was
cleaning Masoor at his doorstep along with
his son, when his son Anand Mohan ran
away to play with the kids in the village.
He heard some cries and noise and ran
along with Ramesh and Vinod, sons of
Indrabali, Banwari, Mobin and Jahoor
towards the place where kids were playing
and found that his son Anand Mohan had
been hit by a gunshot on his right arm, and
Rafiq was also hit in his abdomen and both
had fallen to the ground. They immediately
caught hold of the assailant who was
holding the gun in his hand and beat him up
and snatched the Tamancha from him, and
he revealed his name as Annu, son of Kallu
alias Uday Narayan. P.W.-1, and got the
report written by one Shridaya Yadav
before approaching the Police Station Isha
Nagar along with the injured, the accused
and other villagers. Such written report was
made the basis of F.I.R. in Case Crime
No.183 of 2005, under Sections 302, 307,
326 I.P.C. and Case Crime No. 184 of
2005, under Section 3/25 of the Arms Act

It has been argued that P.W.-1
only saw his son Anand Mohan & Rafiq
falling down after the gunshot was heard by
him.

16. It has been argued that P.W.-1 in
his cross-examination has stated that his
son was helping him in cleaning Masoor
and they worked for around one and a half
hours and then filled up the cleaned
Masoor in a sack and kept it at home and
started eating their meal. Anand Mohan ate
his meal quickly and ran away to play with
children outside, and while P.W.-1 was
finishing his meal he heard a gunshot being
fired, and he ran outside and saw that
around a hundred paces away, his son was
5 All. Annu Vs. State of U.P.
195
bleeding from his hand. In the meantime,
other people had gathered there and they
were saying that Pandit's son had been shot
at. He had taken his injured son and also
Rafiq to the Police Station in a Marshal
jeep, along with other villagers viz. Jahoor,
Banwari, Ramesh and one Rajendra, and
from there he took the injured to the
hospital. He stayed at the hospital for
eighteen days and therefore could not show
the scene of crime to the Investigating
Officer.

17. We have examined the testimony
of P.W.-1 and we have found that P.W.-1
also admitted that he knew Annu from
childhood as his maternal uncle Sahaj Ram
lives in Naurangabad, which is a hamlet of
the same Gaon Sabha, and he knew also
that Annu was convicted of murder earlier.
He also stated that Rafiq was around
eighteen years of age at the time of the
incident and he was around one span (Bitta)
taller than his son, Anand Mohan. He
denied the suggestion that Annu used to go
to the police station often and was falsely
accused of the crime at the instance of
police personnel at the police station when
they had gone to report the incident along
with injured persons.

18. P.W.-2 Anand Mohan Pathak was
around twelve and half years of age at the
time when he was shot at by Annu. He
stated that he, along with Rafiq and other
children, were playing in the village when
Annu came with Tamancha in his hand.
Rafiq told him not to brandish the
Tamancha as Police will come to the
village and will arrest him. Annu got
annoyed and fired his Tamancha at them,
which, after grazing his right hand, hit
Rafiq in his left abdomen. Both fell to the
ground and shouted for help when his
father Rajendra Prasad, along with other
villagers, came and caught hold of Annu
along with his Tamancha. His father, along
with Rafiq's father Jahoor and other
villagers, took him to the Police Station and
from there to the hospital where both were
admitted. Rafiq died the next morning.
P.W.-2 admitted that he had never gone to
school and that his father owned land on
which sugarcane, corn and paddy was
sown. On 28.03.2005, he was cleaning
Masoor along with his father in the
Khalihan, which was some four to five
houses away from his home.

19. It has been argued by learned
counsel for the appellant that P.W.-2 also
stated that on the day of the incident he,
along with Santosh, Rafiq, Annu, Guddu,
Dayashankar, etc., around ten to twelve
children, were playing in the village.
Around fifty to sixty villagers were
watching them play. When he was hit by
the bullet in his hand, he was running after
Santosh, and Rafiq was a little behind him
towards his right. The bullet hit him from
behind and he fell down and fainted. He
had only heard the sound of the gunshot.
He regained consciousness only in the
hospital.
Although,
he
denied
the
suggestion that there were at least two
gunshots fired, one of which hit him and
the other hit Rafiq. He admitted that he did
not see how the bullet had hit him as he
was running. He also admitted that Annu
was known to him as his maternal home
was in Village Naurangabad.

20. P.W.-3 Jahoor, the father of the
deceased Rafiq, had stated that he along
with Rajendra Prasad, Ramesh, Banwari,
Mobin and others, ran towards the south of
the village where they had heard a loud
noise. On reaching the place, he found
Annu holding a Tamancha in his hand, and
he fired the Tamancha and the gunshot at
196 INDIAN LAW REPORTS ALLAHABAD SERIES
first hit Anand Mohan in his hand, and later
hit his son, Rafiq, in his abdomen. The
villagers surrounded and got hold of him
and snatched the Tamancha away. They
reached the police station thereafter along
with the injured, and Rajendra Prasad
lodged the F.I.R.. The Tamancha was
handed over to the Sub-Inspector, and
injured were taken to the hospital at Isha
Nagar, from where they were referred to
Lakhimpur District Hospital. The injured
were admitted. Rafiq died the next
morning.

21. It has been argued by learned
counsel or the appellant that P.W.-3 stated
that on the day of the incident, he had not
gone to his field to work, but was sitting at
home along with his family members at his
door when he heard someone shout
regarding Annu roaming with a Tamancha.
He knew Annu from before. However,
when he reached the place he saw Rafiq
had already been hit and Rajendra's son
had also been hit by the gunshot and they
were lying on the ground. The accused was
apprehended along with the weapon of
assault at the scene of crime by Rajendra
Prasad, Banwari, Ramesh and himself.
They beat up Annu and he may have
received some injuries in the process, and
snatched the Tamancha away. They all
went to the Police Station in a jeep, which
was brought by the villagers. His son had
been shot at and fallen towards the north of
the Nala/drain, which was towards the west
of the house of Lalta Prasad. He had shown
the scene of crime to the Sub-Inspector and
had also shown him blood having stained
the ground. No empty cartridge was found
on the scene of crime; it was stuck in the
Tamancha.

22. We have examined the testimony
of P.W.-3 and we find that P.W.-3 had also
stated that his son, Rafiq, was speaking
softly at the hospital, and one Police
Constable from Isha Nagar Police Station
was asking him some questions. He did not
hear what his son was saying. The SubInspector was not present. His son Rafiq
died before dawn the next day. He, along
with Rajendra Prasad, Mobin, Ramesh, and
Banwari, had caught hold of Annu and
snatched the Tamancha away from him.

23. It has been argued by Sri Ravi
Kant Pandey that none of the prosecution
witnesses have seen the incident of Annu
firing the gunshot, which hit Anand Mohan
and Rafiq; and their statements cannot be
relied upon.

24. Additionally, it has been argued
that P.W.-2 had stated that the incident
occurred at around 1:00 PM, whereas P.W.-
1 and P.W.-3 stated that it occurred at
around 11:00 A.M. There was a difference
in the timing, and therefore, such witnesses
cannot be said to be reliable.

25. It was also argued that although all
the prosecution witnesses of fact had stated
that other villagers were present when
Annu was caught hold of and the
Tamancha snatched away from him, no
independent witness was examined. Only
related witnesses were examined, who were
obviously interested in the conviction of
the accused.

26. We have also gone through the
testimony of P.W.-4, Dr. Rajendra Prasad,
the Medical Officer who had examined the
injured at Lakhimpur District Hospital, and
he had stated in his testimony that Rafiq,
the injured, was brought by Constable
Ashok Varma from Police Station, Isha
Nagar, at around 3:00 PM, and on
examination, a lacerated wound was found
5 All. Annu Vs. State of U.P.
197
on his left abdomen caused by firearm, and
he was advised x-ray. The injury was fresh
and may have been caused at 11:00 AM the
same morning.

27. P.W.-4 had also examined Anand
Mohan and found a firearm entry wound on
the back of the right upper arm, 15 cm
below the right shoulder with blackening,
tattooing, and inverted margins. X-ray was
advised by him. One fire wound of exit was
found in front of the upper arm, 14 cm
below the right shoulder with everted
margins. X-ray was advised. The injury
was caused around six hours before the
examination, which took place at 3:20 PM.
During cross-examination, P.W.-4 stated
that it was not possible for one gunshot to
have injured both Anand Mohan and Rafiq,
if they were standing side by side.

28. Sri Ravi Kant Pandey has argued
that all the prosecution witnesses have
stated that only one gunshot was fired by
Annu, which hit both Anand Mohan and
Rafiq. The medical opinion is contrary to
the ocular evidence, and it is possible that
the prosecution witnesses had not seen the
incident and were lying.

29. We have examined the testimony of
other prosecution witnesses as well. Dr.
Badrish Kumar, Medical Officer, District
Hospital, Lakhimpur Kheri, was examined as
P.W.-5, and he stated that he had conducted
the postmortem on Rafiq. The deceased was
around 18 years of age. He died at 7:00 AM
on 29.03.2005 in the District Hospital. A
firearm wound of entry was found on the left
abdomen with inverted and irregular margins.
On opening the wound, the stomach, small
intestine, and transverse colon were all found
lacerated, and one conical bullet was
retrieved, which was sealed and sent to the
Superintendent of Police. It was possible for
the injury to have occurred from a distance of
around six feet, as no blackening was found
on the wound.

30. P.W.-6, Constable Maan Singh, as
official witness, had proved the Chik F.I.R. and
also the G.D. entry. He stated that Rajendra
Prasad had brought a written report along with
three other villagers. He also stated that he had
no knowledge whether Annu was convicted
and was a history-sheeter. He also stated that
when the country-made pistol was sealed, no
signatures of the accused Annu were taken,
although he was present in the Police Station,
Isha Nagar.

31. Dr. S.N.H. Rizvi, the Radiologist, was
examined as P.W.-7, and he stated that on x-ray
being done, he had found the right humerus
shaft of Anand Mohan having multiple
fractures. X-ray of Rafiq was also done by him,
and he found a long conical metallic opaque
bullet in his left abdomen near the L2 vertebra.

32. We have also examined testimony of
Kailash Yadav as P.W.-8, who was the second
Investigating Officer, and Balram Yadav, who
was the third Investigating Officer as P.W.-9.
He had recorded the statement of Annu in the
lock-up. Sub-Inspector Sarju Prasad as P.W.-
10, who was posted as Head Constable in the
Police Station, had prepared the inquest report
of the deceased Rafiq and proved official
documents prepared by him.

33. P.W.-11, Constable Rajaram, had
stated that Sub-Inspector Richhpal Singh was
originally the Investigating Officer who had
prepared the site plan, but he was transferred
and later on retired. He had seen Sri Richhpal
Singh working, and he recognized his
handwriting.

34. It has been argued by learned
counsel for the appellant that Annu had
198 INDIAN LAW REPORTS ALLAHABAD SERIES
denied any involvement in the incident in
his statement under Section 313 of the
Cr.P.C. and stated that the police had
conspired to falsely implicate him. His
father, Kallu alias Udai Narayan, also
stated that no weapon was recovered from
his son and he had been falsely implicated
at the instance of the police. However, no
reasons could be assigned by the accused
and his father as to why the police would
falsely implicate Annu.

35. Ravi Kant Pandey, during the
course of argument, has stated that the
Forensic Science Laboratory did not test
the weapon, the country-made pistol
allegedly recovered from the accused, as
the seal was not intact on the parcel, and
therefore it could not be said that the bullet
that was recovered from the body of the
deceased was actually fired from the same
weapon.

36. Sri Vikas Pandey, who appeared
for the complainant, has argued that it is
settled law that testimony of related
witnesses cannot be discarded outright but
has to be scrutinized with more care and
circumspection. It has been argued that the
prosecution is not bound to produce a
specific number of independent witnesses
to prove the offence to have been
committed by the accused. It has also been
argued that no doubt there were several
people on the scene of crime, and not only
P.W.-1 and P.W.-3, but also several other
villagers had seen Annu shooting from his
country-made
pistol.
But
rustic
and
ordinary villagers are less inclined to give
testimony in Court. It is only related
witnesses who are willing and persevering
enough to continue to appear in Court to
give testimony. Their sincerity alone will
not make their testimony unreliable. And it
is less likely that they would falsely
implicate an innocent person and hide the
real culprit.

37. Having heard learned counsel for
the parties, we have gone through the
statements of all the prosecution witnesses,
both related and official ones, and also the
judgment impugned.

38. It is evident from the statement of
P.W.-1, P.W.-2, and P.W.-3, the three
witnesses of fact, that the incident occurred
in the forenoon of 28.03.2005, as the F.I.R.
was lodged at 12:30 PM in the Police
Station, Isha Nagar. It is also clear from the
testimony of such witnesses that not only
they, but several other villagers, were
present when the incident occurred, and
they had accompanied the injured as well
as the accused, who was caught on the spot,
to the Police Station. The injured were
admitted to the hospital. Their medico-legal
examination report, x-ray plates, and
postmortem report were proved by the
doctors from District Hospital, Lakhimpur
Kheri. The medical evidence with regard to
the injuries caused corroborated the ocular
evidence of the injuries being caused
within six hours of their examination at the
hospital, which occurred at around 3:00
PM. One conical bullet of .315 bore was
retrieved from the abdomen of the
deceased. Anand Mohan, who was only
around twelve years of age, had suffered
multiple fractures in his right humerus shaft
and remained admitted in hospital for
around ten days. Being an injured witness,
his testimony comes with an inbuilt
guarantee of being truthful and reliable.
This witness naturally had stated that he
was running after one Santosh and Rafiq
was following him when suddenly a bullet
was shot by the accused, which went
through his right arm and hit Rafiq, who
was a few steps behind him, in his
5 All. Annu Vs. State of U.P.
199
abdomen. Rafiq was eighteen years old,
and Anand Mohan was only around twelve
years old, hence there was a difference in
their height. And if the bullet went through
his right upper arm, it would, in all
likelihood, hit Rafiq in his abdomen as he
was right behind him.

39. The Trial Court has considered the
argument of the defence counsel regarding
none of the prosecution witnesses actually
seeing Annu firing the gunshot which hit
both Anand Mohan and Rafiq, and taking
into account the testimony of all the
witnesses, the Trial Court has referred to
the provisions of Section 6 of the Evidence
Act.

40. Section 6 of the Evidence Act is
being quoted hereinbelow:-

6. Relevancy of facts forming
part of same transaction- Facts which,
though not in issue, are so connected with a
fact in issue as to form part of the same
transaction, are relevant, whether they
occurred at the same time and place or at
different times and places.

(a) A is accused of the murder of
B by beating him. Whatever was said or
done by A or B or the by-standers at the
beating, or so shortly before or after it as
to form part of the transaction, is a relevant
fact.

(b) A is accused of waging war
against the [Government of India] by
taking part in an armed insurrection in
which property is destroyed, troops are
attacked and gaols are broken open. The
occurrence of these facts is relevant, as
forming part of the general transaction,
though A may not have been present at all
of them.

(c) A sues B for a libel contained
in
a
letter
forming
part
of
a
correspondence.
Letters
between
the
parties relating to the subject out of which
the libel arose, and forming part of the
correspondence in which it is contained,
are relevant facts, though they do not
contain the libel itself.

 (d) The question is, whether
certain goods ordered from B were
delivered to A. The goods were delivered to
several intermediate persons successively.
Each delivery is a relevant fact.

41. It was observed by the Trial Court
that all the prosecution witnesses had stated
the same story with regard to the children
playing in the field near the nala/drain and
Rafiq telling Annu, who was holding a
Tamancha, not to brandish it as the police
keeps coming to the village and may arrest
him. Within minutes, the gunshot was fired,
which hit Anand Mohan first and then
Rafiq in his abdomen. Almost at the same
time, Rajendra Prasad, Jahoor, and other
villagers reached the spot and saw the
children falling down. They overpowered
Annu, who was still holding the Tamancha
in his hand. The other villagers who were
present on the spot were also saying that
Annu had fired the gunshot which hit the
two
children.
The
evidence
of
the
prosecution witnesses of fact was reliable
and relatable to the same transaction.

42.
The
Trial
Court
has
also
considered the argument raised by the
counsel for the defence that in the
description of the scene of crime, the
prosecution witnesses have given different
versions with regard to the direction in
which the houses of Lalta Prasad and Pyare
Lal were situated. The site plan showed a
different direction. The Trial Court found
that the witnesses had stated that the house
of Pyare Lal was situated on the west and
the house of Lalta Prasad was situated on
200 INDIAN LAW REPORTS ALLAHABAD SERIES
the east of the Gram Samaj land near the
nala where the children were playing. In
the site plan, however, direction of houses
of Pyare Lal and Lalta Prasad was shown in
the east and west respectively, i.e.,
diametrically
opposite
to
what
the
witnesses had stated, but all other details
regarding the houses of other villagers near
the place where the children were playing
were found to be stated correctly. Only
because the direction of houses of Pyare
Lal and Lalta Prasad had been stated
differently, the testimony of the witnesses
cannot be discarded. The testimony of the
witnesses, being otherwise cogent and
reliable, would be preferred over that of the
investigating officer who had prepared the
site plan and who was also not present to
prove the same as he had already retired.
We do not find any infirmity in such
conclusion being arrived at by the Trial
Court.

43.
Hon'ble
Supreme
Court
in
Edakkandi Dineshan Vs. State of Kerala,
reported in 2025 (3) SCC 273, has
observed as under:-

"26. A cumulative reading of the
entire evidence on record suggests that the
investigation has not taken place in a
proper and disciplined manner. There are
various areas where a proper investigation
could have strengthened its case. In Paras
Yadav v. State of Bihar [Paras Yadav v.
State of Bihar, (1999) 2 SCC 126 : 1999
SCC (Cri) 104] , the Supreme Court
observed as under :

 "8. ... the lapse on the part of the
investigating officer should not be taken in
favour of the accused. It may be that such
lapse is committed designedly or because
of negligence. Hence, the prosecution
evidence is required to be examined dehors
such omissions to find out whether the said
evidence is reliable or not. For this
purpose, it would be worthwhile to quote
the following observations of this Court
from Ram Bihari Yadav v. State of Bihar
[Ram Bihari Yadav v. State of Bihar,
(1998) 4 SCC 517 : 1998 SCC (Cri) 1085]
: (SCC pp. 523-24, para 13)

'13. ... In such cases, the story of
the prosecution will have to be examined
dehors such omissions and contaminated
conduct of the officials otherwise the
mischief which was deliberately done
would be perpetuated and justice would be
denied to the complainant party and this
would obviously shake the confidence of
the people not merely in the law-enforcing
agency but also in the administration of
justice.' "

44.
The
Trial
Court
has
also
considered the argument raised by the
accused that at least two shots were fired,
one at Anand Mohan and the other at Rafiq,
as the Medical Officer who had examined
both the injured had stated that it was not
possible for one bullet to have hit both
Anand Mohan and Rafiq if they were
standing side by side. However, the Trial
Court had found from the testimony of the
witnesses that Anand Mohan had clearly
stated that he was running after Santosh
and Rafiq was behind him towards his
right. If they were diagonally positioned,
Rafiq being around two paces away, it was
possible for the bullet which pierced Anand
Mohan's right arm and went through it to
have hit Rafiq in his left abdomen, as there
was a difference in height of both the
children.

45. In Ramkant Rai v. Madan Rai
and
Ors.,
reported
in
MANU/SC/0780/2003 : 2004 CriLJ 36, the
Apex Court has observed in Para No. 22 as
under:
5 All. Annu Vs. State of U.P.
201

"22. It is trite that where the eye
witnesses' account is found credible and
trustworthy, medical opinion pointing to
alternative possibilities is not accepted as
conclusive. Witnesses, as Bantham said,
are the eyes and ears of justice. Hence the
importance and primacy of the quality of
the trial process. eye witnesses' account
would require a careful independent
assessment
and
evaluation
for
their
credibility which should not be adversely
prejudged making any other evidence
Including medical evidence, as the sole
touchstone for the test of such credibility.
The evidence must be tested for its inherent
consistency and the inherent probability of
the story; consistency with the account of
other witnesses held to be credit-worthy;
consistency with the undisputed facts the
'credit' of the witnesses; their performance
In
the
witness-box;
their
power
of
observation etc. Then the probative value
of such evidence becomes eligible to be put
into
the
scales
for
a
cumulative
evaluation."

46.
The
Trial
Court
has
also
considered the argument raised by the
learned counsel for the accused that Annu
was not caught at the scene of crime but
was at the police station, and when the
written report was submitted by Rajendra
Prasad along with other villagers, he, being
conveniently
available,
was
falsely
implicated at the instance of the police
personnel at the police station. The Trial
Court has considered the medico-legal
examination conducted on 28.03.2005 at
12:50 PM of Annu and had found that he
had at least four lacerated wounds on his
head and upper part of his body and
multiple contusions, one abrasion, on him
and compared it to the statement recorded
of P.W.-1 and P.W.-3, who had admitted to
having beaten him up along with other
villagers while snatching the Tamancha
away from him. All the injuries were fresh
and simple in nature and had been caused
by a hard and blunt object.

47. The Trial Court rightly came to the
conclusion that Annu, being caught by the
villagers, had been beaten up and may have
suffered such injuries in the process.

48.
The
Trial
Court
has
also
considered the argument raised by the
defence counsel that blood-stained soil was
not collected by the investigating officer
from the spot where the incident was
alleged to have occurred, but has observed
that as per law settled by the Supreme
Court in Dhananjay Singh versus State of
Punjab, 2004 JIC 399, the Trial Court
should not give the benefit of doubt to the
accused
only
because
of
faulty
investigation.

49.
The
Trial
Court
has
also
considered the argument raised by the
counsel for the accused that there was no
motive for Annu to have fired the gunshot
which hit Anand Mohan and Rafiq. The
Trial Court observed that when Annu had
come to the place where the children were
playing, he had a Tamancha in his hand,
and Rafiq had said that he should not
brandish the same as he might be arrested
by the police. It may have annoyed Annu,
and he retaliated by firing the shot. Also,
the Trial Court has observed that if there is
direct
eyewitness
account
available
regarding the incident, lack of motive alone
would not be a relevant factor in deciding
the culpability of the accused. We do not
find any legal infirmity in the conclusion
arrived at by the Trial Court.

50.
Hon'ble
Supreme
Court
in
Chandan Vs. State (NCT of Delhi),
202 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in 2024 (6) SCC 799, has
observed in paragraphs-10 & 11 as under:-

"10. In Shivaji Genu Mohite v.
State of Maharashtra [Shivaji Genu Mohite
v. State of Maharashtra, (1973) 3 SCC 219
: 1973 SCC (Cri) 214 : AIR 1973 SC 55] ,
it was held that it is a well-settled principle
in criminal jurisprudence that when ocular
testimony inspires the confidence of the
court, the prosecution is not required to
establish motive. Mere absence of motive
would not impinge on the testimony of a
reliable eyewitness. Motive is an important
factor for consideration in a case of
circumstantial evidence. But when there is
direct eyewitness, motive is not significant.
This is what was held : (SCC pp. 224-25,
para 12)

"In case the prosecution is not
able to discover an impelling motive, that
could not reflect upon the credibility of a
witness proved to be a reliable eyewitness.
Evidence as to motive would, no doubt, go
a long way in cases wholly dependent on
circumstantial evidence. Such evidence
would form one of the links in the chain of
circumstantial evidence in such a case. But
that would not be so in cases where there
are eyewitnesses of credibility, though even
in such cases if a motive is properly
proved, such proof would strengthen the
prosecution case and fortify the court in its
ultimate conclusion. But that does not mean
that if motive is not established, the
evidence of an eyewitness is rendered
untrustworthy."

11. The principle that the lack or
absence of motive is inconsequential when
direct evidence establishes the crime has
been reiterated by this Court in Bikau
Pandey v. State of Bihar [Bikau Pandey v.
State of Bihar, (2003) 12 SCC 616 : 2004
SCC (Cri) Supp 535] ; Rajagopal v.
Muthupandi [Rajagopal v. Muthupandi,
(2017) 11 SCC 120 : (2017) 3 SCC (Cri)
872] ; Yogesh Singh v. Mahabeer Singh
[Yogesh Singh v. Mahabeer Singh, (2017)
11 SCC 195 : (2017) 4 SCC (Cri) 257] .

51. Hon'ble Supreme Court in Madan
Vs. State of U.P., reported in 2023 (15)
SCC 701, has observed in paragraphs-65
and 66 as under:-

65. In this respect, we may
gainfully refer to the judgment of this Court
in State of A.P. v. Bogam Chandraiah
[State of A.P. v. Bogam Chandraiah,
(1986) 3 SCC 637 : 1986 SCC (Cri) 357] ,
which reads thus : (SCC p. 640, para 11)

"11. ... Another failing in the
judgment is that the High Court has held
that the prosecution has failed to prove
adequate motive for the commission of the
offence without bearing in mind the well
settled rule that when there is direct
evidence of an acceptable nature regarding
the commission of an offence the question
of motive cannot loom large in the mind of
the court."

66. This Court in Darbara Singh
v. State of Punjab [Darbara Singh v. State
of Punjab, (2012) 10 SCC 476 : (2013) 1
SCC (Cri) 1037] , has observed thus :
(SCC p. 482, para 15)

"15.