# Ashok Kumar & Anr v. State of U.P

- **Citation:** (2025) 11 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-21
- **Case number:** Criminal Appeal No. 1669 of 1996
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-anr-v-state-of-u-p-54891
- **Pages:** 33

## Headnote

Lal Dhari Rajbhar, Muskan Pandey, Vimlendu
Tripathi, Deenanath Mishra, Rajiv Lochan Shukla

Issue for Consideration
Matter
pertains
to
whether
the
prosecution, on the basis of circumstantial
evidence, proved beyond reasonable doubt
that the appellants committed the murder
of
Govind,
caused
disappearance
of
evidence, and misappropriated the tractor
and bricks, so as to sustain conviction
under Ss. 302/34, 201 and 404 IPC, and
whether alleged delay in FIR, defects in
identification
parade
and
recovery
evidence vitiated the conviction.

Headnotes
Indian
Penal
Code,
1860
-
SS.
302/34, 201 and 404 - Murder -
Circumstantial evidence - "Last seen
together" theory - Criminal Trial -
Murder - Deceased last seen alive
with accused - Dead body recovered
next
day
-
Medical
evidence
corroborating time of death - Chain
of circumstances held complete.
Evidence Act, 1872 - Identification Parade
- Identification by single witness - Dock
identification - Delay in holding parade -
Effect -Identification held reliable when
corroborated.
Indian Penal Code, 1860 - Murder -
Causing disappearance of evidence
-
Dishonest misappropriation of property of
deceased - Conviction upheld.
Recovery of property - Tractor-trolley sold
after murder - Sale through ostensible
owner
- Recovery from purchaser
-
Accused's presence during sale - Inference
of guilt drawn.
FIR - Delay - Complaint given promptly
after identification of dead body - Delay
satisfactorily explained - Not fatal to
prosecution.
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: The prosecution case is based on
circumstantial evidence, but the chain of
circumstances is complete and unbroken,
pointing only towards the guilt of the accused -
It is proved that on 9.4.1983 at about 4 PM,
accused Ashok Kumar along with his two
accomplices took the deceased Govind along
with tractor-trolley No. URB-7911, and the
deceased was last seen alive with the accused
-The accused and deceased were again seen at
5:30 PM and thereafter at 8:30 PM by
independent witnesses, corroborating the last
seen theory - The deceased was found dead
on 10.4.1983, and as per medical evidence,
death occurred due to asphyxia caused by
strangulation, consistent with the prosecution
timeline - The tractor of the deceased was
sold on 13.4.1983 by an ostensible owner in
the presence of accused Ashok Kumar, and was
later
recovered,
establishing
dishonest
misappropriation - Identification parades of
accused Gore alias Ujagar Singh and Ramdas
were conducted in jail and were corroborated by
dock identification - Delay in lodging FIR is
satisfactorily explained, as the complainant was
continuously
searching
for
his
son
and
approached police after identifying the dead
body - Conviction under Sections 302/34,
201 and 404 IPC is justified - Appeal
dismissed. (Paras 7,9 15,16, 21, 24, 30, 34-36,
44, 47-49, 61, 62,73,74,75,76) (E-7)

Case Law Cited
Surajdeo Mahto and Another v. State of Bihar,
(2022) 11 SCC 800; Ram Gopal s/o
Mansharam v. State of Madhya Pradesh,
(2023) 5 SCC 534; Rajender v. State (NCT
of Delhi), (2019) 10 SCC 623; Satpal v.
State of Haryana, (2010) 8 SCC 714; Vinod
alias Nasmulla v. State; Rameshwar Singh v.
State of Jammu & Kashmir, (1971) 2 SCC
715; Raja v. State by the Inspector of Police,
(2020) 15 SCC 562; Ramanbhai Naranbhai
Patel v. State of Gujarat, (2005) 13 SCC
150: 2005 SCC (Cri) 75; Sk. Hasib v. State
of Bihar, (1972) 4 SCC 773; Malkhansingh
v. State of Madhya Pradesh, (2003) 5 SCC
746

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Indian Evidence Act, 1872;
U.P. Dacoity Affected Areas Act,1983
List of Keywords
Circumstantial
evidence;
Last
seen;
Identification parade; Asphyxia; Strangulation;
Tractor-trolley; Brick kiln; Recovery memo;
Panchayatnama; Superdginama, FIR delay.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1669 of 1996, arising out of
judgment dated 12.9.1996 passed by Special
Judge (U.P. Dacoity Affected Areas Act), Eta

## Text

_Characters 0–39,951 of 108,658. This is a partial read: ask again with offset=39951 for what follows._

11 All. Ashok Kumar & Anr. Vs. State of U.P.
579
Section 4 of the Probation of Offenders
Act, 1958 and they are directed to file two
sureties each of the like amount of
Rs.50,000/- alongwith their personal bonds
before District Probation Officer concerned
and also an undertaking to the effect that
they shall maintain peace and good
behaviour during the period of two years
from today. The said bonds are to be filed
by appellant no. 1 Ram Sajeewan and
appellant no. 2 Smt. Kevala within a period
of one month from the date of this
judgment.

34. In case they commit breach or
violate any conditions, stipulated in the
bonds and undertaking, they shall appear
before the trial court where they will be
taken into custody and shall have to
undergo the sentence awarded to them.

35. With the above modification, the
instant criminal appeal is partly allowed.

36. A certified copy of the order be
also sent to the court concerned for
compliance.

37. Office is directed to communicate
this order to the court concerned for
necessary compliance.

38. Trial court record, if any, shall also
be
sent
back
to
the
district
court
concerned.-
---------
(2025) 11 ILRA 579
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.11.2025

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 1669 of 1996
Ashok Kumar & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Dileep Kumar(Senior Adv.), Rajrshi Gupta

Counsel for the Respondent:
Lal Dhari Rajbhar, Muskan Pandey, Vimlendu
Tripathi, Deenanath Mishra, Rajiv Lochan Shukla

Issue for Consideration
Matter
pertains
to
whether
the
prosecution, on the basis of circumstantial
evidence, proved beyond reasonable doubt
that the appellants committed the murder
of
Govind,
caused
disappearance
of
evidence, and misappropriated the tractor
and bricks, so as to sustain conviction
under Ss. 302/34, 201 and 404 IPC, and
whether alleged delay in FIR, defects in
identification
parade
and
recovery
evidence vitiated the conviction.

Headnotes
Indian
Penal
Code,
1860
-
SS.
302/34, 201 and 404 - Murder -
Circumstantial evidence - "Last seen
together" theory - Criminal Trial -
Murder - Deceased last seen alive
with accused - Dead body recovered
next
day
-
Medical
evidence
corroborating time of death - Chain
of circumstances held complete.
Evidence Act, 1872 - Identification Parade
- Identification by single witness - Dock
identification - Delay in holding parade -
Effect -Identification held reliable when
corroborated.
Indian Penal Code, 1860 - Murder -
Causing disappearance of evidence
-
Dishonest misappropriation of property of
deceased - Conviction upheld.
Recovery of property - Tractor-trolley sold
after murder - Sale through ostensible
owner
- Recovery from purchaser
-
Accused's presence during sale - Inference
of guilt drawn.
FIR - Delay - Complaint given promptly
after identification of dead body - Delay
satisfactorily explained - Not fatal to
prosecution.
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: The prosecution case is based on
circumstantial evidence, but the chain of
circumstances is complete and unbroken,
pointing only towards the guilt of the accused -
It is proved that on 9.4.1983 at about 4 PM,
accused Ashok Kumar along with his two
accomplices took the deceased Govind along
with tractor-trolley No. URB-7911, and the
deceased was last seen alive with the accused
-The accused and deceased were again seen at
5:30 PM and thereafter at 8:30 PM by
independent witnesses, corroborating the last
seen theory - The deceased was found dead
on 10.4.1983, and as per medical evidence,
death occurred due to asphyxia caused by
strangulation, consistent with the prosecution
timeline - The tractor of the deceased was
sold on 13.4.1983 by an ostensible owner in
the presence of accused Ashok Kumar, and was
later
recovered,
establishing
dishonest
misappropriation - Identification parades of
accused Gore alias Ujagar Singh and Ramdas
were conducted in jail and were corroborated by
dock identification - Delay in lodging FIR is
satisfactorily explained, as the complainant was
continuously
searching
for
his
son
and
approached police after identifying the dead
body - Conviction under Sections 302/34,
201 and 404 IPC is justified - Appeal
dismissed. (Paras 7,9 15,16, 21, 24, 30, 34-36,
44, 47-49, 61, 62,73,74,75,76) (E-7)

Case Law Cited
Surajdeo Mahto and Another v. State of Bihar,
(2022) 11 SCC 800; Ram Gopal s/o
Mansharam v. State of Madhya Pradesh,
(2023) 5 SCC 534; Rajender v. State (NCT
of Delhi), (2019) 10 SCC 623; Satpal v.
State of Haryana, (2010) 8 SCC 714; Vinod
alias Nasmulla v. State; Rameshwar Singh v.
State of Jammu & Kashmir, (1971) 2 SCC
715; Raja v. State by the Inspector of Police,
(2020) 15 SCC 562; Ramanbhai Naranbhai
Patel v. State of Gujarat, (2005) 13 SCC
150: 2005 SCC (Cri) 75; Sk. Hasib v. State
of Bihar, (1972) 4 SCC 773; Malkhansingh
v. State of Madhya Pradesh, (2003) 5 SCC
746

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Indian Evidence Act, 1872;
U.P. Dacoity Affected Areas Act,1983
List of Keywords
Circumstantial
evidence;
Last
seen;
Identification parade; Asphyxia; Strangulation;
Tractor-trolley; Brick kiln; Recovery memo;
Panchayatnama; Superdginama, FIR delay.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1669 of 1996, arising out of
judgment dated 12.9.1996 passed by Special
Judge (U.P. Dacoity Affected Areas Act), Etawah
in Sessions Trial No. 150 of 1993, Case Crime
No. 58 of 1983, Police Station Bharthana,
District Etawah, convicting the appellants for
offence under Section 302/34 IPC.

Appearances for Parties
Advs. for the Appellants:
Dileep Kumar, Senior Advocate
Rajrshi Gupta
Advs. for the Respondents:
Lal Dhari Rajbhar
Muskan Pandey
Vimlendu Tripathi
Deenanath Mishra
Rajiv Lochan Shukla

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant Criminal Appeal has
been filed by the convicted accused against
judgment dated 12.9.1996 of Shri R.K.
Gupta,
Special
Judge
(U.P.
Dacoity
Affected Areas Act), Etawah in Sessions
Trial no.150 of 1993 (State versus Ashok
Kumar, Gore alias Ujagar Singh and
Ramdas) arising out of case crime No. 58
of 1983, PS Bharthana, District Etawah,
whereby all the accused have been
convicted for the offence under section
302/34 IPC and sentenced to suffer life
imprisonment, for offence under section
201 IPC to suffer 7 years imprisonment and
for offence under section 404 IPC to suffer
three years imprisonment. All the above
sentences were ordered to run concurrently.

2. Factual matrix is that, on 9.4.1983
at about 4 PM accused Ashok along with
11 All. Ashok Kumar & Anr. Vs. State of U.P.
581
two unknown accomplices, arrived at the
house of first informant Ramswaroop
Dubey (PW-1 at the trial). The unknown
accomplices were disclosed by accused
Ashok to be his relatives and he enquired
about first informant's son Govind, for
transporting the bricks of his accomplices
by his tractor, from the brick kiln. On their
request, Govind was called, who arrived
and freight for transporting the bricks was
settled
with
them.
At
that
time,
Ramswaroop Dubey and his daughter
Heera(PW-3 at the trial) were present, who
had recognised accused Ashok and his two
accomplices. Thereafter, Govind, Ashok
and his two accomplices went by tractor
no.7911, to the brick kiln for loading the
bricks on the tractor. At about 5:30 PM,
Govind along with Ashok and his two
accomplices passed in front of the house of
Ramswaroop Dubey, who were going
towards Bharthana, who were sitting in the
above tractor with trolley loaded with
bricks. Ramswaroop Dubey saw Govind on
the above tractor going towards Bharthana.
When first informant's son Govind didn't
return till the next morning with the tractor,
then he enquired about him, then he was
told by Mahesh Chandra that he saw his
tractor, Saturday evening going through
railway crossing towards the market, on
which Ashok and two persons were seated,
the tractor was being driven by Govind.
Thereafter, first informant was told by
Chandra Prakash of Baluganj that on
Saturday evening, he saw his tractor loaded
with bricks, on which three persons were
seated, which was being driven by Govind
towards Umarsanda. On further enquiry the
first informant was told by Narain that he
met Govind, who was driving the tractor
loaded with bricks on which three persons
were seated, after crossing Umarsanda
bridge. Thereafter, the first informant
enquired at many places then, he was told
by Rajendra Prasad Shukla(PW-2 at the
trial) that when he was coming from bus
from Kishni and was going towards
Bharthana, then he saw Govind near village
Maman, who was carrying bricks in a
tractor, on which three other persons were
seated. The first informant continuously
enquired about his son Govind, then
ultimately, he came to know that a boy's
dead body was found in the area of Police
Station Kurra, District Mainpuri. The first
informant apprehended that his son Govind
might have been killed by Ashok and his
two accomplices or there might be more
persons and they had also taken his tractortrolley.

3. On the basis of the above written
complaint (Ex.Ka-1 at the trial),scribed by
Balram Singh, dated 12.4.1983 of first
informant
Ramswaroop
Dubey,
FIR(Ex.Ka-4) was registered on 15.4.1983
at 1 PM, being case crime no. 58 of 1983
under section 364/368 IPC at Police Station
Bharthana,
District
Etawah,
against
accused Ashok and his 4 accomplices. The
investigation was assigned to SI Shafiq
Ahmad Siddiqui(PW-11 at the trial).

4. Prior to the above FIR, one Nawab
Singh had given oral information at Police
Station
Kurra,
District
Mainpuri
on
10.4.1983 that he left his village Bilanda
for attending Karhal market, then near
village Padura, he saw the dead body of an
unknown person in the Ganges canal, lying
in water, who had injuries on his neck, he
left some person near the dead body. On
this
information,
FIR(Ex.Ka-8)
on
10.4.1983 at 2 PM being case crime no. 36
of 1983 under section 302 IPC was
registered at police Station Kurra, District
Mainpuri against unknown persons. The
investigation
was
assigned
to
SI
Ramkrishna Arya(PW-10 at the trial).
582 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The dead body of an unknown
person was taken into possession by the
police and blood stained and plain soil was
also collected from the spot on 10.4.1983.
The recovery memo is Ex.Ka-16 at the
trial. A shoe was also recovered from the
left leg of unknown deceased, on which
BUMPY was written, which was of orange
colour. The recovery memo is Ex.Ka-17 at
the trial. Further, some papers from the
pocket of kurta of the unknown deceased--a
slip of Messers Anoop brick manufacturing
factory, Modie, Bharthana, Etawah bearing
the name of Ram Siya nai , a slip signed by
Govind Narain Dubey, 4 cash memo of
purchasing
10-10
litre
diesel
from
Kasimbhai
upbaitawala
Indo
Burma
Petroleum Co. Ltd on 2.4.1983, 4.4.1983,
5.4.1983 and 6.4.1983 and one book titled
'film Brij Bhumi' were also recovered. The
recovery memo of above items is Ex. Ka18 at the trial.

6. The Panchayatnama of unknown
deceased was prepared on 10.4.1983
between 16:00 hours and 18:30 hours by SI
Ramkrishna Arya, which is Ex. Ka-9 at the
trial.

7. The autopsy of the unknown dead
body was conducted at post-morterm
house, Mainpuri on 12.4.1983 at 12:30 PM
by Dr. Rajeshwar Prasad Samboo (PW-5 at
the trial). The following ante-mortem
injuries were found on the dead body :-

(i)Transverse incised wound 4 cm
x 1.5 cm x muscle deep, 1 cm below chin.
Margins are sharp and clean cut tapering
laterally right side.

(ii)Ligature mark 24 cm x 2 cm
present over front and side of neck, 6 cm
above supra sternel Notch. Abrasions and
Eechymosis present around the ligature
mark. Sub-cutaneous tissue under the
ligature mark is Eechymosid.

(iii)Multiple abrasions in an area
of 13 cm x 8 cm on front of left side chest
and abdomen 3 cm below left nipple.

8. In the autopsy Hyoid bone and
larynx were found fractured, lungs and
trachea were found congested, carotid
vessels were found lacerated. In the opinion
of the doctor, the deceased died about three
days prior to the time of post-mortem, due
to asphyxia, due to strangulation and antemortem injuries. The autopsy report is Ex.
Ka-2 at the trial.

9. According to prosecution, the
accused persons after murdering Govind
had sold his tractor no.URB-7911 make
Swaraj
735,
colour
yellow-green,
to
Tabarak Ali (PW-8 at the trial).The tractor
was sold by Akil Ahmed in the presence of
accused
Ashok
to
Tabarak
Ali
on
13.4.1983 for ₹ 32,200/-, regarding this
transaction, receipt was also prepared,
which is Ex. ka.-7 at the trial. The
witnesses
of
this
transaction
were
Tarachand (PW-9 at the trial) and Ved
Prakash. The tractor was recovered on
19.4.1983
from
Tabarak
Ali's
house
situated in village Bondara, Police Station
Kithore, District Meerut. The recovery
memo of the tractor is Ex.Ka-20 at the trial.
Further, the trolley of the tractor was sold
to
Vishnu
Dutt
Sharma
at
Sonipat(Haryana).

10. According to the prosecution on
29.4.1983, 892 bricks and 216 half bricks,
of 'T & Co' and 'Shri' make, were recovered
from the courtyard(angan) situated inside
the house of accused Ramdas, in Police
Station Basrehar, District Etawah, which
were concealed in a pit beneath the soil,
11 All. Ashok Kumar & Anr. Vs. State of U.P.
583
covered by straw. The bricks were
recovered after digging the ground. The
bricks were given in the custody of Kali
Charan and Nathuram. The recovery memo
of bricks is Ex. ka-24 at the trial. One brick
of 'Shri' make and one brick of 'T& Co'
make, from the bricks recovered from the
house of accused Ramdas, were taken as
sample on 29.4.1983. The recovery memo
is Ex.Ka-23 at the trial.

11. A receipt book from Anup Brick
factory Maudhi, Police Station Bharthna,
District Etawah, bearing T & Co. make,
starting from 9.4.1983, which was issued
by Swami Saroop, was also taken into
possession on 29.4.1983, in which receipts
no.801-855 were issued. The recovery
memo is Ex.Ka-25 at the trial

12. After investigation chargesheet
was submitted against accused Ashok
Kumar and Gore alias Ujagar Singh under
section 364, 368, 302, 201, 394 IPC and
against accused Ramdas under section 364,
368, 302 and 201 IPC on which cognizance
was taken by the court below and the case
was committed to the Sessions Court for
trial.

13. The trial court on 22.5.1986
framed charges against accused Ashok
Kumar, Gore alias Ujagar Singh and
Ramdas under section 302/34, 201 and 404
IPC to which they pleaded not guilty and
claimed trial.

14. The prosecution examined the
following witnesses at the trial to prove the
following documents/objects:-

Sr.no.

Witness
Examined

Document/object
proved
1
Ram
Swaroop
(1) Proved
written
Dubey, first
informant,
examined as
PW-1
application
as Ex.Ka-1.
(2) Proved
tractor
as
material
Ex.-1,
trolley
as
material
Ex.-2,shoe
of deceased
as material
Ex.-3.
2
Rajendra
Prasad,
as
PW-2
None
3
Km.Heera,
as
PW-3

Shoe of deceased as
material Ex.-3.
4
Sarvesh
Kumar,
as
PW-4
None
5
Dr.
Rajeshwar
Prasad
Samboo, as
PW-5
Proved
autopsy
report of deceased
as Ex.Ka-2.
6
Swamy
Swaroop
Tiwari , as
PW-6
(1)Proved
carbon
copy
of
receipt
no.809 issued to
accused Ashok for
purchasing
1000
bricks, as Ex.Ka-3.
(2)Proved
sample
brick of 'Shri' and
'T&Co' make, as
material Ex.4 & 5.

7
Jairam
Dubey,
retired Head
Constable as
PW-7
(1)Proved copy of
G.D.entry
dated
12.4.1983 no.4 time
5.30
hours,
as
Ex.Ka-3.
(2)Proved
chick
FIR
dated
15.4.1983
as
584 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex.Ka-4 and copy
of G.D.entry no.25
time
1
PM,
as
Ex.Ka-5.
(3)Proved copy of
G.D.entry
dated
21.4.1983
regarding recovery
of
tractor-trolley
and
arrest
of
accused Ashok, as
Ex.Ka-6
8
Tabarak Ali,
as
PW-8

None

9
Tarachand,
as
PW-9

Proved sale receipt
of
tractor
dated
13.4.1983,as
Ex.Ka-7
10
Ramkrishna
Arya,
as
PW-10

(1)
Proved
chik FIR
dated
10.4.1983
as Ex.Ka8.
(2)Proved
panchaya
tnama of
deceased
as Ex.Ka9.
(3)Proved
other
prosecuti
on papers
prepared
at
the
time
of
panchaya
tnama as
Ex.Ka-10
to
14.
(4)
Proved
site-plan
of
place
of
recovery
of
dead
body
as
Ex.Ka15.
(5)Proved
recovery
memo of
blood
stained &
plain soil
as Ex.Ka16,recove
ry memo
of shoe of
deceased
as Ex.Ka17,recove
ry memo
of
document
s
recovered
from the
pocket of
kurta
of
deceased
as Ex.Ka18.
(6)Proved
blood
stained
and plain
soil,book'
film Brij
Bhumi',4
diesel
purchase
cash
memos
and
slip
of
M/S
Anoop
11 All. Ashok Kumar & Anr. Vs. State of U.P.
585
Brick
manufact
uring
factory as
material
Ex.4
to
11.
11
S.I.Shafiq
Ahmed,
as
PW-11
Proved
recovery
memo of tractor as
Ex.Ka-20, site plan
of the place of
recovery of tractor
as Ex.Ka-21, site
plan of the place of
murder as Ex.Ka22, recovery memo
of sample bricks as
Ex.Ka-23,
superd
ginama of bricks as
Ex.Ka-24, recovery
memo
of
whole
receipt
book
of
brick kiln as Ex.Ka25, site plan of
trolley as Ex.Ka-26,
chargesheet against
accused
Ashok
asEx.Ka-27
12
Ramesh
Dutt
Sharma, as
PW-12
Proved chargesheet
against
accused
Ramdas as Ex.Ka28.

13
Manrakhan
Lal Sharma
,as PW-13
Proved
identification
memo of accused
Gore alias Ujagar
and
Ramdas
as
Ex.Ka-29
&
30.

Evidence of prosecution

15. The first informant Ramswaroop
Dubey PW-1 deposed in his examinationin-chief that his son Govind was abducted
on 9.4.83 at about 4 PM, at that time he
was in his house along with his daughter
Km. Heera, then accused Ashok and his
two accomplice, who were unknown to him
but whom he can recognise, came to his
house. He knew Ashok prior to the
incident. Ashok informed him that his
accomplices
were
his
relatives.
He
enquired about Govind for transporting the
bricks. He called Govind, then Ashok told
Govind to transport the bricks of his
relatives, the freight of transportation of
bricks was also settled. His son went with
the above named three persons on his
tractor trolley no.URB-7911, tractor was of
Swaraj make of green yellow colour, the
trolley was of blue colour on which for
agricultural
purposes
and
Dubey
agricultural farm, was written, in front Jai
Bajrang Bali and in back Horn
Please, was written. His son left with the
above accused for loading the bricks at
about 4 PM who, after loading the bricks in
the tractor trolley, left for Barthana, who
was seen by him from his house, along with
the above three accused persons at about 5-
5:30 PM. His son had not returned that day.
He started searching his son next morning
at 8 9 AM then in the Bharthana market,
he was informed that his son, accused
Ashok and two other persons were seen
going on tractor trolley loaded with bricks
at Bharthana railway crossing yesterday
evening at about five 5:30 PM. He
further deposed that in Baluganj he was
informed by Chandraprakash that yesterday
Govind was transporting bricks, along with
Ashok and two other persons and they were
going towards UmarSanda.

16. He further deposed that he met
Narain in Bharthana market, who also told
him that he met Govind transporting bricks
near Umarsanda village, on the bridge,
586 INDIAN LAW REPORTS ALLAHABAD SERIES
along with Ashok and two other persons.
He further deposed that Rajendra Shukla
also informed him that he saw Govind with
Ashok and two persons transporting bricks
near Maman. He also informed him that
of the two unknown persons, one was
having fair complexion and another was
having dark complexion. The person
with fair complexion was having some
golden hair. The first informant proved the
application written by Balram on his
dictates, which was given on 12.4.1983 at
Police Station, Barthana, District Etawah as
Ex.Ka-1.

17. He further deposed that on the
evening of the third day, in the market,
he came to know that a boy's dead body
was found near Bilinda bridge within
Police Station Kurra District Mainpuri,
then he apprehended that it was possible
that the dead body might be of his son,
who might been killed by those persons.
Since, that day it was too late, as such,
he did not go to Bilinda bridge, but the
next day he went there, then people
present informed that the dead body was
sent to the post-mortem house Mainpuri,
where he saw and identified the dead
body of his son, but his tractor- trolley
were not found. He further deposed that
after autopsy, his son's dead body was
handed over to him.

18. He further deposed that after about
4 5 days, his tractor was recovered from
some village within Police Station Kithore,
District Meerut and after about 5 6 days,
trolley was also recovered within Police
Station Sonipat in Haryana. He disclosed
that tractor and trolley were given in his
custody by the court. During his testimony,
the first informant proved the above tractor
as material Ex.-1 and trolley as material
Ex.-2.

19. He further deposed that for
identifying the two unknown persons who
accompanied accused Ashok on that day,
who came to his house for taking Govind
with them, he went to the District Jail
Etawah. This witness identified accused
Ujagar Singh in the dock, as the accused
he previously identified in the Jail, who
accompanied accused Ashok for taking
tractor, to his house. He also identified
accused Ashok in the dock. This witness
also identified and proved the canvas shoe
of yellow colour of his son Govind as
material Ex.-3, which was recovered from
his son's dead body.

20.
PW-1
deposed
in
crossexamination that when his son had left his
house then he was wearing kurta, paijama,
baniyan and underwear. When he saw his
son's dead body then, it was naked, which
was having cut injuries on neck. He saw his
son's dead body at Mainpuri at about 11
12 AM, after taking permission of the
doctor, which was lying on a table in the
post-mortem house, which was handed to
him at about 1.30 2 PM by Mainpuri
police.

21. He further deposed that when he
went to register his complaint to police
station Bharthana, he was aware that a dead
body was lying near Bilinda canal bridge in
Kurra police station, but he was not sure
about the identity of the dead body. He
became aware on the third day after his son
left, at 4 5 PM that a dead body was
lying near Bilinda bridge.

22. The first informant in crossexamination deposed that he heard the
conversation that took place between his
son, Ashok and others. He had not noticed
what freight was agreed. In his presence, it
was not agreed, where the bricks were to be
11 All. Ashok Kumar & Anr. Vs. State of U.P.
587
transported, but he heard Ashok saying that
the bricks were to be transported to his
relatives
place.
When
the
above
conversation took place, at that time
tractor-trolley was at his house. He had
written the number of tractor in his report.
He had also informed URB in the number
of his tractor to the investigating officer, if,
it is not mentioned in his statement, then he
cannot tell its reason. He had not
mentioned the colour of the tractor trolley
and what was written on it, in his report.

23. He further admitted in his crossexamination that he had not mentioned that
Mahesh told him that he saw his son
driving tractor at 5:00 5:30 at Barthana
railway crossing. Rajendra had informed
him that he saw the accused in the night.
He scribed the complaint at his house from
Balram at about 7 8 PM, on the third
evening, after his son left. At that time his
daughter Heera was studying in BA, but he
had not scribed the complaint from her. He
had not made any complaint at Police
Station Panipat regarding tractor-trolley.
He purchased the tractor after taking loan
from State Bank Bharthana. Lalta Prasad
was with him when tractor was purchased.
He intimated the bank that his tractortrolley was stolen. He possesses 7 8 acre
land. He heard that after 8-10 days of his
report,
Ashok
was
apprehended.
He
disclosed
that
he
had
signed
the
superdginama of tractor -trolley. He denied
the suggestion that accused had not taken
Govind in his presence. He also denied the
suggestion that he gave complaint at the
police station on 15.4.1983.

24. Rajendra Prasad Shukla PW-2
deposed in his examination-in-chief that he
knew deceased Govind and his father Ram
Swaroop much prior to the incident. On
9.4.1983 he went to Kishni for his personal
work
and
returned
by bus
through
Usarahar, the same night at about 8 8:30
PM. He was returning from bus to
Bharthana, and when he was in between
village Maman and Bharthana, then at
about a distance of 23 furlong from
Maman, he saw a tractor coming from
Bharthana, in which bricks were loaded,
which was going towards Maman, the
tractor was being driven by Govind, in
which 3 other persons were also seated. He
recognised accused Ashok Kumar, in the
dock. He also recognised the appearance of
two other persons seated in the tractor, in
the light of his bus. The two unknown
persons whom he had recognised, he had
not known their name and address
previously. Then he returned to Bharthana
and on the next day, he met Ram Swaroop,
who asked about Govind, then he informed
him, that he saw Govind near Maman,
driving tractor-trolley loaded with bricks. 4
 5 days later, he became aware that
Govind was murdered, whose dead body
was found in Mainpuri. His statement was
taken by the investigating officer. He
further deposed that he went to the
District Jail, Etawah for identification of
accused. This witness identified accused
Ramdas in the dock, as the same person,
he previously identified in the Jail, whom
he also saw in the tractor- trolley near
Maman.

25.
PW-2
deposed
in
crossexamination
that
his
statement
was
recorded by the investigating officer after
20 days. During this period, he didn't go to
the police station for giving his statement.
When he was 2 furlongs ahead of Maman
culvert towards Bharthana, then tractor
met. The culvert is situated on small canal.
He saw the tractor at about 8:30 PM, it was
dark at that time, he saw the tractor in bus
light, when the bus and tractor came near to
588 INDIAN LAW REPORTS ALLAHABAD SERIES
each other. He saw the accused from front.
There was hood on the tractor. There was
light inside the bus. He left by the last bus
from Usarahar for Bharthana, which is a
distance of 24 26 km from Usarahar. The
road was in north south direction. There
is a gallery in the centre of the bus and
besides it, there are seats. He was seated
exactly behind the driver of the bus. The
bus was having drivers seat on the right
side. Besides that, no other tractor trolley
and cart met. Pedestrians and bicycle riders
met.

26. He further deposed in crossexamination that he went to the jail twice
for identification. There was a gap of 15
days between both the identification. The
eyes of accused were normal and his
moustache was joined at the centre. The
investigating officer neither asked him
about the identity of the accused nor he told
him. The accused was aged about 27 to 28
years. He denied the suggestion that during
remand he was shown the face of the
accused. He denied that he saw accused
Ramdas taking potatoes on a tractor trolley,
from his house. He further disclosed that
the bus from which he was returning, was a
private bus, which was not driven at a
speed, in excess of 30 km. He further
disclosed that when the tractor came near to
the bus, the speed of the bus was very
much reduced, but he had not told this to
the
investigating
officer.
He
further
disclosed that Ram Swaroop met him on
the next day near tehsil at about 4 PM. Ram
Swaroop's house was at a distance of about
2 km. from his house. He disclosed the
name of accused Ashok to Ram Swaroop.

27. First informant's daughter Km.
Heera PW-3 deposed in her examination-inchief that about 4 years and 9 months back, at
about 4 PM, she was present in the courtyard
of her house along with her father, then
accused Ashok along with two other persons
arrived at her house. Ashok told them to call
Govind, for transportation of bricks of his
relatives to their place, at this, her father
called her brother Govind. She also called her
brother Govind, then Govind arrived. Then,
these persons started conversation with
Govind near tractor, which was standing in
the courtyard on the Chabutra. She hadn't
heard their conversation. Thereafter, Ashok
and his two accomplices went with Govind,
on his tractor, to brick kiln at about 4 PM,
who returned and passed in front of her house
at about 5:30 PM. At that time, the tractor
was loaded with bricks, which went towards
the market. The tractor no.URB-7911
belonged to her father Ram Swaroop Dubey.
Thereafter, her brother never returned. When
that night, her brother Govind had not
returned, then on the next day 10.4.1983, her
father went in search of Govind, who
returned at 12 noon, and informed that
Mahesh Chandra told him that he saw
Govind near the railway crossing, driving
tractor, with Ashok and two other persons.
Her father made further inquiries, then in the
evening of 11.4.1983, he became aware that
an unknown dead body was found in the area
of police station Kurra, then they became
apprehensive. Her father had not gone to
Kurra to see the dead body, he went
straightaway to post-mortem house at
Mainpuri, where he identified her brother
Govind's dead body. When her brother
Govind left, at that time he was wearing
underwear, baniyan, kurta, paijama and
shoes. This witness identified the shoe found
on the dead body of her brother, which has
already been exhibited as material Ex. 3. This
witness identified accused Ashok in the dock.

28.
PW-3
deposed
in
crossexamination that she had not gone to
Mainpuri to see the dead body of her
11 All. Ashok Kumar & Anr. Vs. State of U.P.
589
brother. She didn't ever had any talk with
Ashok. Ashok used to frequently visit her
brother, who had told her Ashok's name.
Her brother Govind used to operate tractor
daily on freight. He used to return home in
the evening. The day Ashok came to her
house, she was reading in the courtyard
with her father. The conversation took
place for around 4 5 minutes. She didn't
focus
on
their
conversation.
The
investigating officer visited her house on
29.4.1983 and enquired from her. She told
the I.O. that they went towards the brick
kiln. She doesnt know whether her father
purchased tractor by taking loan from the
bank or from his own money. On getting
apprehensive, her father went on 12.4.1983
at 7 AM to Mainpuri, and returned at 6-7
PM. Her father went in the evening of
10.4.1983 to Ashok's house. The complaint
was written at her house in the evening of
11.4.1983, which was taken the next day by
her father to the police station. She denied
that she had witnessed nothing and she was
giving false testimony on behalf of her
brother and police.

29. Sarvesh Kumar PW-4 deposed in
his examination-in-chief that about five
years back, at 11:15 PM, he was operating
engine for irrigating his field near Lucknow
canal bridge, then he saw a light coming
from the side of village Bilinda canal
bridge. When the light came nearby, he saw
a tractor, make Swaraj, on which 2-3
persons were seated, which went towards
Karhal. The next day at about 8 PM, the
investigating officer of Kurra police station
came with a dead body, at that time, he was
present near canal, operating his engine.
The investigating officer enquired about a
vehicle which passed from there, then he
told
him,
what
he
saw.
In
crossexamination he deposed that his field is at a
distance of about one furlong from the
footpath of canal. The night was not dark,
there was moonlight till morning. He
recognised the tractor was of Swaraj
company, only from his sound, he could
not see the tractor number. He saw 2-3
people on the tractor, from his engine. He
cannot recognise any of them.

30. Dr Rajeshwar Prasad Samboo PW5 deposed in his examination-in-chief that
on 12.4.1983 he was posted as incharge
medical
officer
at
District
Hospital
Mainpuri, then at 12:30 PM he conducted
autopsy of an unknown male, aged about
27 years, who died about three days back.
Foul smell was emanating from the dead
body, maggots were present, skin was
peeling off from body, hairs were loose,
blisters were present, the tongue was
clenched between the teeth, clotted blood
was present around mouth and face, face
was swollen and livid. Faecal matter was
present around anal orifice. The body was
smeared with mud. Eyes were bulged out
and congested. The ante-mortem injuries
found on the dead body, have already been
mentioned earlier in this judgment. This
witness proved the autopsy report of the
deceased as Ex.ka-2. He further opined that
the deceased died due to asphyxia, due to
strangulation and ante-mortem injuries, in
the intervening night of 9/10.4.1983 at
about 11 PM, but he could also have died
on 9.4.1983 at 12 noon and also, on
9.4.1983 at 3 PM.

31. Swami Swaroop PW-6 deposed in
his examination-in-chief that his brick kiln
was situated in Patiya Chatorpur, Police
Station Bakewar. He was the owner of the
brick kiln. On 9.4.1983 he was present at
his brick kiln, then accused Ashok along
with two other persons with tractor of
Govind, arrived at his brick kiln, who
purchased 1000 awwal bricks from his
590 INDIAN LAW REPORTS ALLAHABAD SERIES
brick kiln. He issued a receipt, a carbon
copy of which was available with him, in
his receipt book which was from no. 801
900. He issued original receipt no. 809 to
accused Ashok Kumar, the carbon copy of
which was available in his receipt book,
which was in his own handwriting. This
witness proved the carbon copy of the
receipt no. 809 as Ex.Ka-3. He further
deposed that the two sample bricks of make
'Shri' and 'T&Co' were of his brick kiln. He
clarified that 'T& Co' denotes 'Tiwari &
Co'. The above sample bricks were proved
as material Ex.-4 and 5. He further deposed
that the bricks were loaded in the tractortrolley by his servants. He further deposed
that the tractor which accused Ashok
Kumar brought for transporting bricks, was
having no.URB-7911, which was driven by
Govind.

32.
PW-6
deposed
in
crossexamination that in receipt Ex.ka3,
Govind's name was not mentioned. He
also disclosed that when these persons
came to take bricks, at that time he didn't
knew
accused
Ashok.
He
further
disclosed that one of them told his name
as Ashok, then he issued receipt in the
name of Ashok. He sat in his room at the
brick kiln. A Munim also remained at the
brick kiln, who in his absence, issued
receipts. His brick kiln opened in the year
1981. For two years, his bricks had 'shri'
make inscribed on them. Thereafter,
make 'T & Co' began to be inscribed. In
between the year 1981 to 1983, several
lacs bricks of 'shri' make were sold. In the
year 1987 several lacs bricks of 'T & Co'
make were sold. He cannot tell who had
taken the bricks of the above make,
which were present in the court. The
investigating
officer
recorded
his
statement 20 days after the bricks were
sold, who had also taken the statement of
the labourers working at the brick kiln,
who loaded the bricks in the tractor.

33. Jairam Dubey PW-7,retd.Head
Constable deposed in his examination-inchief that on 12.4.1983 he was posted as
Head
Moharrir
at
Police
Station
Bharthana, then on the basis of written
complaint of Ram Swaroop Dubey, an
entry was made in the GD of the police
station at serial no. 4 at 5:30 AM by
Vijay Singh, Head Constable. This
witness proved the copy of the above GD
entry as Ex.Ka-3. He further deposed that
its investigation was assigned to SI
Shafiq Ahmed. He further deposed that
on the direction of the investigating
officer, case was registered on 15.4.1983,
regarding which an entry was made in the
GD at serial no. 25 at 13:00 hours. This
witness proved the Chik FIR dated
15.4.1983 as Ex.ka.4 and the copy of
the above GD entry as Ex.ka.5. He
further deposed that on 21.4.1983 and
entry was made in the GD regarding
recovery of tractor trolley and arrest of
accused Ashok. This witness proved a
copy of this GD entry as Ex. ka.6. In
cross-examination he disclosed that no
Chik FIR was registered on 12.4.1983,
only an entry was made in the GD.
Tractor-trolley was not brought by the
investigating officer to Police Station
Bharthana.

34. Tabarak Ali PW-8 deposed in his
examination-in-chief that about 5 6 years
back, he purchased a tractor make Swaraj,
of 3 cylinder, of yellow green colour.
Since, he was illiterate, he cannot tell the
number of the tractor. He purchased this
tractor in Sonipat from Akil and accused
Ashok,who was accompanying Akil. At
that time, Kakku was also present, who
brokered the deal. This witness identified
11 All. Ashok Kumar & Anr. Vs. State of U.P.
591
accused Ashok in the dock, as the person,
who accompanied Akil. He purchased
tractor for a consideration of ₹ 32,200/-. He
further deposed that, Akil disclosed that he
was the owner of the tractor. He paid ₹
30,000/- in cash. When he demanded the
papers(of the tractor) then they were not
given by Akil, due to this, he withheld ₹
2,200/-, which were to be paid, after the
receipt of papers(of the tractor). He further
deposed that on the third day Akil again
came with another person, even then, he
reiterated that he will only pay the
remaining amount, when the papers were
received. Then, they left after assuring that
in 2 4 days they will send the papers. He
further deposed that a receipt of the above
transaction was written by Kakku, which
was signed by Akil Ahmed, the receipt
remained with him for a month. This
witness identified the signature of Kakku
on the above receipt. He further deposed
that the above tractor was recovered by the
investigating officer after about 5-7 days.
He further deposed that he was not aware
that the tractor was stolen or looted, he only
became aware of this fact at the Police
Station Kithore. He further deposed that on
enquiry he had given the above receipt of
tractor purchase to the investigating officer.

35.
PW-8
deposed
in
crossexamination that for purchasing the tractor,
he went to Sonipat. His village is at a
distance of 6-7 kilometre from Kithore. The
writer of receipt, Kakku is resident of
Sonipat. Since, he is illiterate, he does not
know the date when the tractor was
purchased but he recollects that he went
after Holi for purchasing the tractor. He
paid ₹ 30,000/-. He handed the receipt of
the tractor after about 20 days or a month
after its purchase, to the investigating
officer. He handed the receipt to the
investigating officer, on his second visit.
He disclosed that he was confined in the
lock-up of the police station, along with
tractor, because he had not shown the
receipt at that time. He further disclosed
that on the next day he was produced
before a court in Meerut. He revealed that
since, the receipt was at his house, he could
not show it in the court. On the same day,
he was enlarged on bail. He remained for
one night in the lock-up of the police
station. He further disclosed that he was not
arrested, he himself went on tractor to the
police station. He denied the suggestion
that after he was released on bail, he
prepared the receipt fraudulently, for his
defence. He further deposed that the tractor
was at the shop of Vishnu. Akil Ahmed had
given his Haryana address. He further
deposed
that
he
had
not
told
the
investigating officer that ''Akil Ahmed
disclosed his Delhi address and now he
became aware that he was resident of 136
Vikaspuri, Meerut.''

36. Tarachand PW-9 deposed in his
examination-in-chief that about six years
back, he was a mechanic in the factory of
Vishnu Dutt, situated at Murthan road
Sonipat, when a person came with a tractor.
This witness identified accused Ashok
Kumar in the dock, as the person, who
came with a tractor on that day.