# Ashok v. State of U.P

- **Citation:** (2024) 5 ILRA 1322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Criminal Appeal No. 681 of 1984
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-v-state-of-u-p-52035
- **Pages:** 20

## Headnote

Criminal Law: Indian Penal Code, 1860 -
Section 302/34 - Murder - Criminal
Procedure Code,1973 - Section 313 - on
02.12.1982 PW-2 was accompanying his
maternal uncle (deceased) along with
another person for watching a movie - enroute to the Picture Hall, the accused
persons met the deceased and other
accused caught him by his waist - whereas
other accused caught him by his hands - he
was assaulted by accused- assailants with
their knives -causing injuries to the
deceased - Court convicted & sentenced
the appellant u/s 302/34 I.P.C. for life
imprisonment - other accused have been
acquitted from all the charges framed
against them - Held, PW-2 is a natural
witness in the facts and circumstances of
the case, who has deposed against the
accused in a most natural way -the defence
has not point out any inconsistency in his
testimony - Presence of PW-3 is doubtful -
Trial Court declared him "chance witness"
- Liable to be discarded - FIR is not a
substantive piece of evidence - any
omission could not ipso facto render the
prosecution story doubtful - when in the
subsequent St.ment and evidence it has
been clearly mentioned - where an accused
is the main perpetrator, resort to Section
34 IPC is not necessary as he is himself
individually liable for having caused the
offence - when an incident takes place, a
witness does not necessarily react in a
particular manner- Every person, who
witnesses a murder, reacts in his own way
-
Some
are
stunned,
some
become
speechless and stand rooted to the spot -
Hence, appeal has no merits, accordingly
dismissed (Para - 4, 69, 73, 74, 77, 83, 88,
93, 94)

Appeal is dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,471 of 68,457. This is a partial read: ask again with offset=39471 for what follows._

1322 INDIAN LAW REPORTS ALLAHABAD SERIES
that it is likely to cause death, but without
any intention to cause death, or to cause such
bodily injury as is likely to cause death.

80. This section is in two parts. If
analysed the section provides for two kinds
of punishment to two different situations. (1)
if the act by which death is caused is done
with the intention of causing death or
causing such bodily injury as is likely to
cause death. Here important ingredients is
the "intention"; (2) if the act is done with
knowledge that it is likely to cause death
but without any intention to cause death or
such bodily injury as is likely to cause
death. When a person hits another with a
lathi danda on vital part of the body with
such a force that the person hit meets his
death, knowledge has to be imputed to the
accused. In that situation, case will fall in
part II of Section 304 IPC as in the present
case.

81. We, therefore, hold that the
appellants to be guilty for an offence under
Section 304 (Part II) of IPC. Their
conviction under Section 325/149 IPC is,
therefore, set aside. Instead of convicting the
appellants under Section 325/149 IPC, they
are liable to be convicted under Section 304
(Part II)/149 of IPC and sentence them for
six years rigorous imprisonment with a fine
of Rs.30,000/-.

82. Thus, in sum and substance, the
appellants shall now stand convicted
under Section 147 IPC and sentenced to
undergo rigorous imprisonment for one
year and a fine of Rs. 500/- each, under
Section 304 (Part II)/149 IPC and
sentenced to undergo six years R.I. With a
fine of Rs. 30,000/- each, under Section
323/149 IPC and to a fine of Rs. 100/- each
and under Section 426/149 IPC and to a
fine of Rs. 50/- each.

83. In case of default of payment of
fine under Section 147 IPC, the defaulter
accused shall undergo R.I. for three months
each. In case of default of payment of fine
under Section 304 (Part II)/149 IPC, the
defaulter accused shall undergo R.I. for six
months each. In case of default of payment
of fine under Section 323/149 IPC, the
defaulter accused shall further undergo R.I.
for one month each. In case of default of
payment of fine under Section 426/149 IPC,
the defaulter accused shall undergo R.I. for
15 days each.

84. The appellants are on bail. Chief
Judicial Magistrate concerned is directed to
ensure the custody of the appellants to serve
out the remaining sentences. Accordingly,
the criminal appeal, filed by the appellants,
is dismissed, however, government appeal,
filed for reversing the acquittal of the
appellants under Section 302 IPC, is partly
allowed in terms of aforesaid order of
conviction and sentence.

85. Let a copy of this judgment and
order be forwarded to the court concerned
along with the trial court record for
information and necessary compliance.
----------
(2024) 5 ILRA 1322
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 681 of 1984
connected with
Government Appeal No. 1876 of 1984

Ashok ...Appellant
Versus
State of U.P. ...Respondent
5 All. Ashok Vs. State of U.P.
1323
Counsel for the Appellant:
Murlidhar, Rajesh Srivastava, Ram Pal, S.P.
Srivastava

Counsel for the Respondent:
D.G.A., R.P. Singh

Criminal Law: Indian Penal Code, 1860 -
Section 302/34 - Murder - Criminal
Procedure Code,1973 - Section 313 - on
02.12.1982 PW-2 was accompanying his
maternal uncle (deceased) along with
another person for watching a movie - enroute to the Picture Hall, the accused
persons met the deceased and other
accused caught him by his waist - whereas
other accused caught him by his hands - he
was assaulted by accused- assailants with
their knives -causing injuries to the
deceased - Court convicted & sentenced
the appellant u/s 302/34 I.P.C. for life
imprisonment - other accused have been
acquitted from all the charges framed
against them - Held, PW-2 is a natural
witness in the facts and circumstances of
the case, who has deposed against the
accused in a most natural way -the defence
has not point out any inconsistency in his
testimony - Presence of PW-3 is doubtful -
Trial Court declared him "chance witness"
- Liable to be discarded - FIR is not a
substantive piece of evidence - any
omission could not ipso facto render the
prosecution story doubtful - when in the
subsequent St.ment and evidence it has
been clearly mentioned - where an accused
is the main perpetrator, resort to Section
34 IPC is not necessary as he is himself
individually liable for having caused the
offence - when an incident takes place, a
witness does not necessarily react in a
particular manner- Every person, who
witnesses a murder, reacts in his own way
-
Some
are
stunned,
some
become
speechless and stand rooted to the spot -
Hence, appeal has no merits, accordingly
dismissed (Para - 4, 69, 73, 74, 77, 83, 88,
93, 94)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Gadadhar Chandra Vs St. of W. of B.l (Criminal
Appeal No. 1661 of 2009)

2. Chandra Pratap Singh Vs St. of M.P (Criminal
Appeal No. 1209 of 2011)

3. Mala Singh & ors. Vs St. of Hary. reported in
(2019) 5 SCC 127

4. Chittarmal Vs St. of Raj. reported in (2003) 2
SCC 266

5. Chhota Ahirwar Vs St. of M. P. reported in
(2020) 4 SCC 126

6. Ram Naresh Vs St. of U. P. (Criminal Appeal
No. 3577 of 2023)

7. Puran Vs St. of Punj., (1952) 2 SCC 454

8. Mousam Singha Roy Vs St. of West Bengal,
(2003) 12 SCC 377

9. Shankarlal Vs St. of Raj., (2004) 10 SCC 632

10. Jarnail Singh Vs St. of Pun. (2009) 9 SCC 719

11. Mritunjoy Biswas Vs Pranab @ Kuti Biswas &
anr.reported in (2013) 12 SCC 796

12. St. of Rajasthan Vs Gurbachan Singh & ors.
(Criminal Appeal No. 2201 of 2011)

13. Ram Naresh Vs St. of U. P. (Criminal Appeal
No. 3577 of 2023)

14. Rana Pratap Singh & ors. Vs St. of Har.
reported in (1983) 3 SCC 327

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri Arun Kumar Pundir,
learned counsel for the appellant in Criminal
Appeal, Shri Ashish Tiwari, learned AGA for
the State, Shri Abhishek Gupta, learned
counsel for the accused-respondent- Raju, Shri
Harshit Gupta, holding brief of Shri Rohan
Gupta, learned counsel for the accused
respondent- Kalloo and perused the record.
1324 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The instant criminal appeal as well
as government appeal has been filed against
the judgment and order dated 28.02.1984
passed by 6th Additional Sessions Judge,
Kanpur in Sessions Trial No. 63 of 1983
(State of U.P. Vs. Ashok and 3 Others),
arising out of Case Crime No. 411 of 1982,
Police Station Harbans Mohal, District
Kanpur, by which the accused-appellant
Ashok has been convicted for the offence
under Section 302 read with Section 34 IPC
and
awarded
the
sentence
of
life
imprisonment,
whereas
accusedrespondents Raju, Kalloo and Chander have
been acquitted of all the charges framed
against them.

3. Since the basic facts, issues and the
judgment of the trial court are similar and
common, both criminal appeal as well as
government appeal have been clubbed and
heard together and the same are being
decided by the common judgment.

4. Shorn of unnecessary details,
prosecution story as unfurled in the FIR
lodged by one Kamal Kumar, son of Shyam
Lal based on a written report, which has been
proved and marked as (Ext. Ka-2) is that first
informant Kamal Kumar is the resident of
House No. 61/203, Sitaram Mohal and few
days back, there has been some verbal duel
between his maternal uncle Dinesh Chand and
one Ashok, who was putting his shop/kiosk in
front of tea stall of the deceased, which was
resisted by his maternal uncle, consequent to
which, on 02.12.1982, when he along with his
maternal uncle and one Satya Narayan had
reached near Shivraj Tobacco Company in
Harbans Mohal at about 06:40 p.m., Ashok
son of Ram Chander, Chander son of Ram
Shanker, Raju son of Ajay Gupta and Kalloo
son of Kuwarji met them. Ashok and Raju
were armed with knife, Kalloo then caught
hold of his uncle Dinesh Chand by his waist
and Chander held him his hands and made him
fall down and exhorted to assault him,
consequent to which, Ashok and Raju by their
knives gave 4-5 blows causing injuries to
Dinesh Chand, who fell down. On raising
alarm, Ram Narayan and his younger brother
Vimal Kishor reached the place of incident
and witnessed the crime, however, the
accused-assailants made their escape good.
On account of fear, they did not chase them,
however, since his maternal uncle was badly
injured, as such, his brother Vimal Kishor
rushed to take him to the hospital, however,
en-route to the hospital, he succumbed to his
injuries. Leaving his dead body there, he had
gone to the Police Station to lodge the report.
On the basis of a written report, FIR was
lodged vide Case Crime No. 411 of 1982,
under Section 302 IPC, carbon copy whereof
has been drawn vide G.D. Report no. 46 at
20:10 hours dated 02.12.1982, which has been
proved and marked as Exhibit Ka-4. The FIR
was registered in the presence of S.H.O.,
Police Station Harbans Mohal, who was
entrusted with the investigation of the present
case.

5. The Investigating Officer recorded
the statement of the first informant Kamal
Kumar (P.W.1) and thereafter, he alongwith
PW-1 reached the place of incident and
found the blood and a shoe of the deceased
lying there, which were taken in his
possession and its fard recovery memo was
prepared.

6. The Investigating Officer has further
collected the plain earth and bloodstained
earth from the place of incident and kept it
in a container and prepared its recovery
memo, which has been proved and marked
as Ext. Ka-6 and Ext. Ka-7.

7. Thereafter, the Investigating Officer
has prepared the site plan, which has been
5 All. Ashok Vs. State of U.P.
1325
proved and marked as Ext. Ka-8 and then,
reached the hospital and saw the corpse of
the deceased but in the absence of proper
arrangement, could not conduct the inquest,
however, in the hospital, he recorded the
statement of Vimal Kishor (P.W.3) and Satya
Narayan,
another
eye-witness
of
the
incident.

8. On the next day i.e. 03.12.1982, the
inquest was conducted by S.S.I. R.S.
Kushwaha, which has been proved and
marked as Ext. Ka-9. The relevant
documents, namely, photo-nash, challannash, letter to R.I., letter to C.M.O. etc. were
prepared, which have been proved and
marked as Ext. Ka-9 to Ext. Ka-12.
Thereafter, dead body of the deceased was
sealed and dispatched to the mortuary for
post-mortem examination.

9. An autopsy was conducted on the
person of the deceased on 03.12.1982 at
04:40 p.m. The doctor has noted six injuries
on his person, which are as under :-

(i) incised wound of 7cm x 3cm x
muscle deep down at the right lateral side of
Back, transverse in direction 7 cm below the
posterior axillary angle.

(ii) Incised punctured wound of
3cm x 2cm x Chest cavity deep at the
intercostal spine between 3rd & 4th ribs on
right side of back, which is at medial end
14cm below the root of the back & 4cm from
the backbone. It is transverse in direction.

(iii) Incised wound of 4 cm x 2 cm
x muscle deep at the right side of Back,
above downwards in direction and at medial
end (upper) is 14cm below the injury no. 2
and 7cm from the backbone.

(iv) Incised wound of 3 cm x 1x1/2
cm x muscle deep at the right side of skull
which is from transverse in direction and 11
cm above the right ear Tragus.

(v) Incised wound 1 cm x 1⁄2 cm x
muscle deep at the left side of eyebrow.

(vi) Contusion of 4 cm x 2.5 cm at
the right side of forehead just above the
eyebrow.

10. Thereafter, an attempt was made to
arrest the accused person but to no avail nor
any incriminating article was recovered, in
respect of which, Ext. Ka-13 to Ext. Ka-15
have been drawn.

11. On 25.12.1982, the Investigating
Officer after concluding the investigation,
submitted the charge-sheet against the
accused persons, which has been proved and
marked as Ext. Ka-16. On the basis of the
said charge-sheet, learned Magistrate had
taken cognizance, however, since the case
was exclusively triable by the court of
Sessions, made over the case to the court of
Sessions, where it was numbered as S.T. No.
63 of 1983 (State of U.P. Vs. Ajay @ Raju
and others).

12. The trial court thereafter framed
the charges against the accused-appellant
under Section 302 read with Section 34 IPC,
which was read out and explained to the
accused person in Hindi, however, they
abjured the charges, pleaded not guilty and
claimed to be tried.

13. During the course of trial, the
prosecution examined as many as two
witnesses of fact and four other formal
witnesses. Their testimony, in brief, is
enumerated herein-under :-

14. P.W.1 Dr. Madan Bihari is the
person, who conducted an autopsy on the
person of the deceased and proved the
autopsy report and contents thereof, which
has been proved and marked as Ext. Ka-1.
He further stated that injury nos.1 to 5 could
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
be caused by knife and the deceased could
have died on 02.12.1982 at 06:45 p.m.

15. During cross-examination, he
stated that injury no.6 could be caused by
some blunt object and the said injuries were
sufficient in the ordinary course of nature to
cause death. He further stated such injuries
could be caused by some small axe or
Khurpi.

16. P.W.2 Kamal Kumar is the first
informant of the case and the nephew of the
deceased. In his testimony, he stated that he
is a permanent resident of House No.
61/203, Sitaram Mohal, where he, his
mother, his brother Vimal Kishor, his sister
Kamini Devi, his maternal uncle Dinesh
Chand used to live and Dinesh Chand used
to run a tea stall in Sitaram Mohal. He
identified the accused Ashok, present in the
court and stated that he used to keep a fruits
kiosk in front of the shop of his maternal
uncle Dinesh Chand, however, his maternal
uncle used to resist putting his kiosk in front
of his shop because his sister was young and
he used to stand in front of his sister. His
shop is situated at Canal Patari and there has
been some verbal duel between Ashok and
his maternal uncle Dinesh Chand over
placing of his kiosk in front of his shop.

17. He further stated that about one
year back, his maternal uncle Dinesh
Chand, his brother Vimal Kishor and Satya
Narayan were present at his house,
however, Vimal Kishor had gone out for
some work and they were conversing for
watching a movie in Apsara Talkies. Their
mother asked them to take their meals,
however, they refused to take the meals
and proceeded towards Apsara Talkies and
when, they reached near the Shivraj
Tobacco Company, they saw the accused
persons Ashok, Chander, Raju and Kalloo,
present in the court, standing in front of
tea-shop of Arjun.

18. He further stated that accused
Kalloo came from behind and caught hold
of the victim Dinesh Chand by his waist,
whereas Chander held him by his hands
and then, Chander exhorted to assault and
not to spare him, then Chander made his
maternal uncle Dinesh Chand fall down.
Ashok and Raju, armed with knives,
assaulted him. After assaulting the victim,
accused persons tried to make their escape
good, however, on hearing the alarm, Ram
Narayan and his younger brother Vimal
Kishor reached there and witnessed the
incident. His maternal uncle suffered
injuries by knife, as such, he along with
his brother Vimal Kishor had taken him to
the K.P.M. Hospital on a rickshaw,
however, on reaching there, the doctor
declared him dead.

19. The said incident had occurred at
about 07:00 p.m. in the evening. After his
death, he returned back to his house,
scribed the report and lodged the same at
the Police Station, which has been proved
and marked as Ext. Ka-2.

20. He further stated that at the
Shivraj Tobacco Company, bulbs were lit
and even at the tea stall, bulbs were lit and
at a distance of 10-15 paces, electric tubelight was also lit and there was sufficient
source of light.

21. He further stated that Satya Narayan
and Ram Narayan have colluded with the
accused persons and as such, they do not wish
to adduce their evidence and all the other
accused persons are the friends of Ashok.

22. During cross-examination, he
stated that there are four shows of screening
5 All. Ashok Vs. State of U.P.
1327
of movies i.e. 12:00 Noon to 03:00 PM,
03:00 PM to 06:00 PM, 06:00 PM to 09:00
PM and 09:00 PM to 12:00 PM, however,
the film does not starts at the exact time but
around 06:30 PM. On the fateful day, Satya
Narayan had reached his house at 06:15 p.m.
and his maternal uncle's tea stall is situate at
a distance of 10-15 paces from his house.
Near the shop of his maternal uncle, there
are 12-15 other shops. At 6:00 p.m., Satya
Narayan had reached his shop and asked him
to go together for watching a movie. At the
relevant time, his maternal uncle Dinesh was
also present there as his shop was closed.
He, however, does not remember as to
which movie was being screened in Apsara
Talkies, where they were proceeding for
watching the movie. The incident had
occurred about 02-03 furlongs on canal road
turning, where on both the sides, shops were
situated and were opened. The accused
persons were standing at the shop of Arjun
Prasad, who also was present there. The said
incident was witnessed by him and several
other persons.

23. He further stated that when he had
gone about 10-15 paces ahead of shop of
Arjun, then the incident had occurred,
however, when they crossed the accused
persons, they did not utter a word. He denied
the suggestion that when he reached near the
Shivraj Tobacco Company, accused persons
met him and held them.

24. On his attention been drawn to the
contents of the FIR, he admitted the fact that
in the FIR, it is not stated that accused
persons were standing in front of tea stall of
Arjun but it is stated that accused persons
met near the Shivraj Tobacco Company.

25. On his further attention been drawn
to the contents of the FIR, he stated that
Kalloo came from behind and caught hold of
the deceased from the back by his waist. At
the place of incident, he stayed for 3-4
minutes and he and his brother had lifted his
maternal uncle, who was bleeding profusely
and took him in a rickshaw to the hospital,
consequent to which, their clothes and hands
were smeared with blood. They had shown
their
bloodstained
clothes
to
the
Investigating
Officer,
however,
the
Investigating Officer did not took them in
his possession. The victim had fallen in a
prone position and thereafter, he could not
rise. The accused persons had stabbed the
deceased on his back and head but the blood
did not gushed out. When the deceased was
assaulted by knife, he was bent on his knees
but did not raise alarm, however, he had
raised the alarm. The incident took place
within 2-3 minutes. When the victim was
held by the waist, he was standing beside
him but could not rescue him. The victim
was made to fall down and assault started.
He was also pushed but he did not fall down
and was standing at the chabutra of Shivraj
Tobacco
Company,
from
where,
he
witnessed the incident. The accused persons
also tried to assault him but could not and
thereafter, ran away. He is known to
Chander for the last about 11⁄2 years as he
used to sell Kerosene and used to come at
his crossing. He further stated that all the
accused persons are friends but the said fact
is not stated in the F.I.R.

26. He further denied the suggestion that
shop of the deceased was not his own but that
of Ramanand @ Buddhu Baba and he wanted
to take forcible possession of the said shop, as
such, deceased had assaulted Pappu, son of
Buddhu Baba. The factum that Ashok wanted
to put his kiosk in front of shop of his maternal
uncle, was stated in the FIR.

27. He further categorically stated that
when he had seen the accused persons
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
standing at the shop, he had not seen that
they were having knives, though, in the FIR,
he has stated that Ashok and Raju were
having knives but when the deceased was
held by his waist, then he had seen the knife.
When the accused persons exhorted to
assault, then he raised alarm, however,
nobody rushed to rescue him. To quote :-

"जब र्ुिदजर्रनों को खडे िेखर तब उन पर चरकू नहीं
िेखे थे। ररपोटम र्ें र्ैंने ररजू व अशोक पर चरकू होनर दिखर है र्गर
जब कर्र पकडी तब यह चरकू िेखे थे। जब र्ुिदजर्रन ने र्ररने को
ििकररर तब र्ैं दचल्िरयर। जब र्ररने को दचल्िरए तो आस परस कर
कोई नहीं िौडर चूांदक इतनर सर्य नहीं दर्िर थर।" At the place
of incident, shops are situated on both the
sides, houses are also built and Shivraj
Tobacco Company is also there. After the
incident, he had not asked anyone to lodge
the report nor to inform anyone at his house,
although within 12 minutes, one can reach
the Police Station walking on foot from the
place of incident.

28. He further denied the suggestion
that report was lodged at the dictation of
police. Earlier, in the instant case, 10th was
fixed for adducing evidence. On 6th - 7th, he
had informed Satya Narayan to adduce his
evidence, however on 9th, he was threatened
by the accused persons not to depose,
consequently, he ran away from the village
and did not adduce his evidence. It is wrong
to state that since the story is cooked-up as
such, Satya Narayan does not want to
adduce his evidence.

29. He further stated that hundreds of
time, he had gone to the house of Raju, in
which, a coaching school is run and he used
to study there and had also gone in the
portion, where he used to live. Further, it is
wrong to state that Raju was not involved in
the incident and his name has been falsely
implicated. For Kallu, he stated that he had
seen his house but had never visited there,
though has passed through there, hundreds
of time. It is wrong to state that Kallu does
not live in Kachiyana.

30. He further denied the suggestion
that at the instance of Mahesh, son of
Munna, who is his friend, he has falsely
implicated Kalloo in the instant case. It is
also wrong to state that he neither held the
victim by his waist nor was present there.

31. It is further stated that his sister's
name is Kamini Devi and she used to sit at
his shop, where he alongwith his brother
used to sit and the factum of Ashok putting
his kiosk in front of his shop was not liked
by them as his younger sister also used to sit
at the shop, as such he, his brother and his
mother asked Ashok not to place his kiosk
there.

32. He further denied the suggestion
that there was friendship between his sister
and Ashok, for which, he and his mother had
rebuked and beaten her, however over that,
there was no verbal duel between him, his
mother and Ashok.

33. He further categorically stated that
when the deceased was being assaulted, then
nobody had held the victim. When he was
being given knife blows, then he did have
any chance to stand up or rescue himself. He
did not even tried to roll over.

34. He further denied the suggestion
that incident did not take place at the
scheduled place nor he was not present
there. He further denied the suggestion that
his brother had taken the deceased to the
hospital and he was not present there and
reached there on being informed.

35. PW-3 Bimal Kumar is another eyewitness of the incident and is real brother of
5 All. Ashok Vs. State of U.P.
1329
PW-2 Kamal Kumar and nephew of the
deceased. He, in his statement, has stated
that his maternal uncle's tea stall is at canal
road on the Naher Patari. Prior to the
incident, his maternal uncle Dinesh, his
brother Kamal and his friend Satya Narayan
were conversing/ planning for watching a
movie in Apsara Talkies at about 6:00 PM.

36. He further stated that for some
personal work, he had gone out at Trimurti
Mandir and after completing his work, he
was returning back to his home, en-route to
the Apsara Talkies, he heard the alarm raised
by his brother Kamal and then, reached at
the Shivraj Tobacco Company, when he saw
Kalloo holding his maternal uncle by his
waist and Chander by his hands and made
him fall down. When his maternal uncle fell
on his knees, then Raju and Ashok assaulted
him with knives and thereafter, escaped
towards Hoolaganj, then he alongwith his
brother Kamal took him to K.P.M. Hospital,
where he was declared dead by the Doctors.
Kamal then went to the Police Station,
however, he remained in the hospital. He
was interrogated by the Investigating
Officer at 10:00 PM in the night. The
incident had taken place at about 6:40 PM
near the Shivraj Tobacco Company, where
there was sufficient light and tube-lights
were lit. One or two persons were present at
the office of the Tobacco Company,
however, they did not reach the place of
incident. Apart from his brother Kamal,
Satya Narayan also raised the alarm but no
one rushed to the place of incident nor
anyone raised alarm. When he heard the
alarm, then he was present at a distance of
25-30 paces from the place of incident and
from the said place, his maternal uncle was
visible. He further stated that when Kamal
raised alarm, then for the first time, he had
seen there. At the relevant time, Satya
Narayan was also present with him, who
also raised alarm.

37. He further denied the suggestion
that he had not seen Kamal holding his
maternal uncle by his waist and Chander by
his hands but has only seen him assaulted by
knives, however, he had not disclosed this
fact to the Investigating Officer. To quote :-

"यह कहनर गित है दक र्ैंने कल्िू को कर्र पकडते
व चन्िर को हरथ पकडते नहीं िेखर बदल्क केवि चरकू र्ररते ही िेखर
थर। र्ैंने िरोगर जी को नहीं बतरयर थर दक कल्िू ने र्ेरे र्रर्र जी को
कर्र पकडकर उठर िी और चन्िर ने हरथ पकड दियर थर। चूांदक
िरोगर जी ने नहीं पूछर थर इसदिए नहीं बतरयर थर। र्ैं िरोगर जी को
र्न से अपने बरते बतर रहर थर ऐसर नहीं दक जो वो र्ुझसे पूछ रहे थे
वही बतर रहर थर। र्ैं घबडर गयर थर। इसीदिए यह बरत र्ैंने िरोगर जी
को नहीं बतरई थी।"

38. He further stated that Kalloo
caught him by his waist and Chander by his
hands and his back was towards him and
when his maternal uncle had fallen on his
knees, then he was assaulted by knife. When
knife blows were given, then his hands and
waist were released. He could not state
whether the knife was stabbed or was used
otherwise. A knife was also hit on the
forehead. He further stated that :-

"र्ैंने िरोगर जी से नहीं कहर थर "र्ैं अपनर करर् करके
अप्सरर टरकीज की तरफ जरने के दिए बैजनरथ शुलिर गिी र्ें पहुांचर।
र्ैं नहीं बतर सकतर यह बयरन कैसे दिख दियर। पहिे िरोगर जी को
बतर दियर थर दक घटनर के सर्य सत्य नररयन र्ौजूि थर। र्ैं नहीं बतर
सकतर दक िरोगर जी ने यह बरत लयों नहीं दिखी।"

39. He further stated that he is not
aware of the fact that several cases were
lodged against his maternal uncle Dinesh
and that he was arrested for enticing away
Rama Devi's sister and gambling used to
take place at his shop. He further denied the
suggestion
that
there
was
friendship
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
between Ashok and his sister Kamini Devi,
for which, his mother had beaten his sister.

40. PW-4 Pratap Singh is the Head
Moharrir, who, on the basis of a written
report, had lodged the FIR at 8:10 PM,
which has been proved and marked as Ex.
Ka-2. On the basis of which, a chik report
was prepared, which has been proved and
marked as Ex. Ka-3 and corresponding G.D.
Entry No. 46 has also been proved and
marked as Ex. Ka-4. The chemical
examination report has also been proved and
marked as Ex. Ka-5.

41. During cross-examination, he
stated that FIR was not registered after due
deliberation by the police, however, no
cognizable report after the aforesaid incident
was written. It is wrong to state that on
getting information of murder, G.D. entry
was withheld and later, fake entry has been
made.

42. PW-5 Inspector D.C. Seth is the
Station House Officer of Police Station
Harbans Mohal, District Kanpur. He, in his
testimony, has stated that on 02.12.1982, on
the basis of a written report of Kamal
Kumar, a FIR was registered in his presence
and he was entrusted with the investigation.
He had recorded the statement of first
informant at the Police Station and then, he
reached at the place of incident and found
blood lying there and a shoe was also found
there, in respect of which, a fard recovery
memo was drawn. He had also collected the
sample of plain earth and blood-stained
earth and prepared the recovery memo,
which has been proved and marked as Ex.
Ka-6 and Ex. Ka-7. The site plan was also
prepared, which has been proved and
marked as Ex. Ka-8. He had also recorded
the statement of the witnesses and went to
the hospital and seen the dead body of the
deceased. On the next day i.e. on
03.12.1982, the inquest was prepared by
S.S.I. R.S. Kushwaha, which has been
proved and marked as Ex. Ka-9 and the
other relevant papers were prepared, which
has been proved and marked as Ex. Ka-10 to
Ex.
Ka-12.
After
concluding
the
investigation,
the
charge-sheet
was
submitted against the accused persons on
25.12.1982, which has been proved and
marked as Ex. Ka-16.

43. During cross-examination, he
stated that when the first informant came to
lodge the report, he was present, however,
did not mark any blood on his clothes. He
further stated that if any blood is found on
the clothes of the first informant, then it is
noted and the clothes are taken in
possession. He further stated that Kamal
Kumar has not pointed out any blood on his
clothes or the clothes of his brother Bimal
Kumar. He further stated that Bimal Kumar,
in his statement, has stated that :-

"गवरह दवर्ि दकशोर ने र्ुझ से कहर थर दक र्ैं अपनर
करर् करके आिर पौन घांटे र्ें अपसरर टरकीज की तरफ जरने के दिए
बैजनरथ शुलि रोड पर पहुाँचर। दवर्ि दकशोर गवरह ने सत्य नररयन
कर घटनरस्थि पर र्ौजूि होनर र्ुझसे नहीं कहर। दवर्ि दकशोर ने
कहर की घटनर िेखी नलशर नजरी र्ें नहीं दिखरयर।"

44. In the FIR, time of death of the
victim has not been mentioned, it is only
stated that en-route to the hospital, he died,
even in the challan-nash, time of death has
been mentioned on the basis of imagination.

45. After concluding the recording of
the testimonies of the witnesses, statement
of the accused under Section 313 Cr.P.C. has
been
recorded
by
putting
all
the
incriminating
circumstances
to
the
appellant, who denied all the incriminating
circumstances and claimed that they have
been falsely implicated in the instant case.
5 All. Ashok Vs. State of U.P.
1331
46. In his defence, Accused-appellant has
produced Ashok Kumar Gupta, Clerk,
Central Bank of India, Nayaganj Branch,
Kanpur as DW-1 and Shri Ram Lakhan
Shukla, Clerk, Area Rationing Office,
Cantonment, Kanpur as DW-2. DW-1 has
submitted the Statement of Bank Account of
one Rakesh Kumar Awasthi, Resident of
65/267, Moti Mohal, Kanpur. The accused
persons has also filed certain documents that
the deceased was a man of bad character. Ex.
Kha-1 and Ex. Kha-2 are the copies of
charge-sheet and the FIR of the case, which
was lodged against the deceased in respect
of incident dated 22.08.1981. Ex. Kha-3 is a
copy of the charge-sheet submitted against
the deceased for an offence under Section
324 IPC. The trial court on appreciating the
evidence has held that the prosecution has
successfully established its case against the
appellant Ashok by relying upon the
testimony of PW-2 Kamal Kumar, however,
so far the testimony of PW-3 Bimal Kumar,
is concerned, the trial court has held that
he is a chance witness. The trial court has
further pointed out that there has been
noticeable variance in his statement before
the court and his statement before the
Investigating Officer, where he stated that
after finishing his work, he reached at
Baijnath Shukla Lane for going to the
Apsara Talkies, even though before the
court, he stated that accused persons came
and caught the deceased by waist and held
him by his hands and then, he was
assaulted, however, these facts were not
stated by him before the Investigating
Officer. PW-3 reached the incident on
hearing the alarm raised by his brother
Kamal Kumar, when for the first time he
had seen the incident, therefore, it can not
be said that he witnessed the incident from
the initial stage, on the basis of which, his
testimony has been doubted and only on
the basis of solitary testimony of PW-2
Kamal Kumar, appellant Ashok has been
convicted, while other three accused
persons, namely, Raju, Chander and
Kalloo have been acquitted vide impugned
judgment and order dated 28.02.1984.

47. Being aggrieved and dissatisfied
by the said order, accused-appellant Ashok
has filed instant criminal appeal before
this Court against his conviction, whereas
government appeal has been preferred
against the order of acquittal of Chander,
Raju and Kalloo. During the course of
pendency of the said appeal, Chander has
already passed away and as such, his
appeal has been dismissed as abated vide
order dated 13.03.2014.

48. So far as the arguments of learned
counsel for the appellant in criminal
appeal is concerned, he has submitted that
even according to the prosecution own
case, the incident has taken place in a
market place, where number of shops were
situated. Except the two brothers PW-2
and PW-3, who are the nephews of the
deceased, no independent witness has
come
forward
to
corroborate
the
prosecution story, which creates a serious
dent in the prosecution story. Admittedly,
PW-2 and PW-3 are highly interested and
partisan witnesses being the nephews of
the deceased Dinesh, therefore, by placing
implicit reliance on their testimony, the
appellant could not be convicted.

49. Learned counsel for the appellant
has next submitted that even as per the
impugned judgment and order passed by the
trial court, the testimony of PW-3 Bimal
Kumar has been discarded and it has been
held that he could not be an eye-witness of
the incident and that his testimony do not
inspire confidence and as such, at the time
of recording the finding of conviction, he
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
has been disbelieved and held to be a chance
witness.

50. Learned counsel for the appellant
has thus submitted that PW-2 is only a
solitary witness in the instant case, who is
highly partisan and interested. There are
several contradictions and embellishment in
his testimony, which goes to the root of the
case and as such, by no stretch of
imagination, he can be said to be a wholly
reliable witness and his testimony can not be
said to be of "sterling quality." However, the
trial court by placing implicit reliance on his
testimony has recorded the finding of
conviction against the appellant Ashok but
on the same set of facts, has acquitted the
accused Raju, Kalloo and Chander, which
creates serious dent in the prosecution story
and renders the conviction illegal.

51. Learned counsel for the appellant has
further submitted that in the FIR lodged by
PW-2, there is no mention of the fact that at the
relevant time, he alongwith his maternal uncle
Dinesh and Satya Narayan were proceeding to
watch a movie in the Apsara Talkies, however
subsequently, the said factum has been
mentioned, which is nothing but is an
improvement in his testimony.

52. Learned counsel for the appellant
has next submitted that Section 34 of IPC is
not attracted in the instant case and that prior
concert and pre-arranged plan to kill the
deceased has not been established. He
further submitted that existence of a prearranged plan has to be proved from the
conduct of the accused or the circumstances
or from any incriminating circumstance and
does not infer to have same intention
independently.

53. Learned counsel for the appellant
Ashok has further submitted that by the
impugned judgment and order dated
28.02.1984, the appellant Ashok has been
convicted under Section 302 read with
Section 34 of IPC, however, except the
appellant Ashok, who has been convicted,
none of the three other accused persons has
been convicted for the offence under Section
34 IPC. It is well settled principle of law that
there must be two or more than two persons
to attract the provisions of Section 34 IPC,
however, in the instant case, the appellant
has solely been convicted for the offence
under Section 302 read with Section 34 IPC,
which is bad in law and as such, the entire
conviction is liable to be set aside.

54. In support of his arguments,
learned counsel for the appellant has relied
upon the judgments passed in Criminal
Appeal No. 1661 of 2009 (Gadadhar
Chandra Vs. State of West of Bengal) and
Criminal Appeal No. 1209 of 2011
(Chandra Pratap Singh Vs. State of M.P.).
He has further placed reliance upon the case
law reported in (2019) 5 SCC 127 Mala
Singh and Others Vs. State of Haryana and
further on the cases reported in (2003) 2
SCC 266 Chittarmal vs. State of Rajasthan
and (2020) 4 SCC 126 Chhota Ahirwar Vs.
State of Madhya Pradesh.

55. Per contra, learned AGA has
submitted that though the testimony of PW-3
is not of much relevance but so far as the
testimony of PW-2 is concerned, there are no
serious contradictions, embellishment or
exaggeration in his testimony on material
particulars, which goes to the root of the case,
rather his testimony is of sterling quality and
as such, he is a "wholly reliable witness" and
relying upon his sole testimony, the finding of
conviction can well be recorded.

56. Learned AGA has next submitted
that though the factum of witnesses going
5 All. Ashok Vs. State of U.P.
1333
with the deceased for watching a movie in
the Apsara Talkies has not been mentioned
in the FIR but has been categorically stated
in subsequent statements, thus it can not be
said to be a material improvement in the
testimony of PW-2 and the contrary
submissions of learned counsel for the
appellant in this regard is liable to be
discarded.

57. Learned AGA has further
submitted that there is consistent evidence to
the extent that the deceased, his nephew and
Satya
Narayan
were
proceeding
for
watching a movie in the Apsara Talkies and
at the relevant time, all the four accused
persons had assembled at the tea stall of
Arjun, therefore, it can be said that prior
concert,
which
necessarily
postulates
existence of pre-arranged plan implying the
prior meeting of minds can very well be
inferred and thus, the appellant can very
well be convicted for the offence under
Section 302 read with Section 34 IPC
alongwith co-accused Raju, whose case
stands on identical footing as that of Ashok,
who has been convicted by the trial court.

58. Learned AGA has further
submitted that Section 34 IPC introduces
vicarious liability and when the common
intention is proved, the appellants can very
well be convicted under Section 302 read
with Section 34 IPC, for which, they have
been charged.

59. Learned AGA has further
submitted that for Section 34 IPC to apply,
there should be a common intention
between co-perpetrators, which means
there should be community of purpose and
common design or pre-arranged plan but it
is not necessary that co-perpetrators may
have engaged in any prior discussion,
agreement or valuation as held by the
Hon'ble Apex Court in several of its
decisions.

60.