# Ayodhya & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 35
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Criminal Appeal No. 257 of 1981
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayodhya-ors-v-state-of-u-p-52107
- **Pages:** 19

## Headnote

Criminal Law-Indian Penal Code-1860Sections 147, 149 & 30 - Criminal Appeal &
Government Appeal against order passed by the
trail court whereby accused were convicted U/s
147, 149 & 302 IPC and under the same
impugned judgment other accused persons were
given benefit of doubt- The star prosecution
specifically St.d in their testimonies that all the
seven accused with intention to kill the deceased
had first beaten him at his doorstep and
thereafter they had dragged him to the doorstep
of accused, where they had mercilessly beaten
him by lathi and spears due to which he sustained
serious injuries and ultimately died on the spotNo contradiction or inconsistencies in the
testimonies of the witnesses- Post mortem report
and testimony of P.W.-4 who conducted the
autopsy also supports the prosecution case-
Accused also had motive to commit the murder.

While acquitting both the accused-respondents,
namely, Pyare and Chhotku, the trial court has
not
examined
the evidence
led
by
the
prosecution in correct perspective- Pyare and
Chhotku also actively participated in alleged
crime along with other five accused, who have
been convicted by the trial court on the same set
of evidence- The acquittal of the accusedrespondents, namely, Pyare Singh and Chhotku,
is consequently, reversed.
36 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Appeal
Dismissed
and
Government Appeal filed on behalf of the
St. is allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,999 of 64,793. This is a partial read: ask again with offset=39999 for what follows._

5 All. Ayodhya & Ors. Vs. State of U.P.
35
Hari Shanker Rai is convicted for the
offence under Section 302 I.P.C. and
sentenced him to undergo life imprisonment
with a fine of Rs. 50,000/-. In default of
payment of fine within three months, he
shall further undergo six months additional
imprisonment.

66. Since the accused-appellant Hari
Shanker Rai is reported to be on bail, the
Chief Judicial Magistrate, Deoria shall
ensure that the accused-appellant Hari
Shanker Rai is arrested and sent to jail for
serving his sentences awarded herein above.

67. Thus, in sum and substance, the
criminal appeal filed by the accusedappellant Hari Shanker Rai is dismissed.

68. The Government Appeal filed on
behalf of the State is, hereby, allowed by
setting aside the acquittal of accused Hari
Shanker Rai under Section 302 I.P.C. and
confirming his conviction under Section 302
I.P.C. and awarding the sentence of life
imprisonment with fine of Rs. 50,000/-, in
default of payment of fine, he has to further
undergo
six
months
additional
imprisonment.
Since
the
instant
Government
Appeal
qua
accusedrespondent Mahendra Rai has already been
abated by this Court vide order dated 31st
August, 2022, no further orders are required
to be passed against him.

69. There shall be no order as to costs.

70. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Deoria,
henceforth, for necessary compliance.
----------
(2024) 5 ILRA 35
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.05.2024
BEFORE

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

Criminal Appeal No. 257 of 1981
With
Government Appeal No. 757 of 1981

Ayodhya & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri C.S. Saran, Sri Adya Prasad Tiwari, Sri
Amar Saran, Sri Arunesh Kumar Singh, Sri
Rajeev Chaddha, Sri S.S. Tripathi

Counsel for the Opposite Party:
D.G.A.

Criminal Law-Indian Penal Code-1860Sections 147, 149 & 30 - Criminal Appeal &
Government Appeal against order passed by the
trail court whereby accused were convicted U/s
147, 149 & 302 IPC and under the same
impugned judgment other accused persons were
given benefit of doubt- The star prosecution
specifically St.d in their testimonies that all the
seven accused with intention to kill the deceased
had first beaten him at his doorstep and
thereafter they had dragged him to the doorstep
of accused, where they had mercilessly beaten
him by lathi and spears due to which he sustained
serious injuries and ultimately died on the spotNo contradiction or inconsistencies in the
testimonies of the witnesses- Post mortem report
and testimony of P.W.-4 who conducted the
autopsy also supports the prosecution case-
Accused also had motive to commit the murder.

While acquitting both the accused-respondents,
namely, Pyare and Chhotku, the trial court has
not
examined
the evidence
led
by
the
prosecution in correct perspective- Pyare and
Chhotku also actively participated in alleged
crime along with other five accused, who have
been convicted by the trial court on the same set
of evidence- The acquittal of the accusedrespondents, namely, Pyare Singh and Chhotku,
is consequently, reversed.
36 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Appeal
Dismissed
and
Government Appeal filed on behalf of the
St. is allowed. (E-15)

List of Cases cited:

1. Mritunjoy Biswas Vs Pranab Alias Kuti Biswas
& anr. (2013) 12 SCC 796.

2. Lakhan Sao Vs St. of Bihar & anr. [(2000) 9
SCC 82 : (AIR 2000 SC 2063 : 2000 AIR SCW
1955)

3. St. of Raj. Vs Arjun Singh & ors. [(2011) 9
SCC 115 : (AIR 2011 SC 3380 : 2011 AIR SCW
5295)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Both the Criminal as well as
Government Appeals are directed against
the impugned judgment dated 21st January,
1981 passed by the II Additional District &
Sessions Judge, Gorakhpur in Sessions Trial
No. 205 of 1980 (State Vs. Ayodhya & 6
Others), arising out of Case Crime No. 36 of
1978, under Sections 147/148/149/302
I.P.C., Police Station-Ghughuli, DistrictGorakhpur, whereby accused-appellants
Ayodhya, Sanhu, Chhangur, Lakhan and
Ram Ji, have been convicted for offence
under Section 147 I.P.C. and Section 302
read with Section 149 I.P.C. and have been
sentenced
to
two
years
rigorous
imprisonment for commission of offence
under Section 147 and life imprisonment for
commissioning of offence under Section
302 read with Section 149 I.P.C., with an
observation that both the sentences were to
run concurrently, whereas the accused-
Pyare and Chhotkoo have been acquitted for
all charges alleged against them.

2. Since the basic facts, issues and the
judgment of the trial court are similar and
common, both criminal appeals have been
clubbed and heard together and the same are
being decided by this common judgment.

3. We have heard Mr. J.P. Tripathi,
learned A.G.A. for the State, Shri P.K. Singh
and Mr. Gyan Prakash Singh, learned
counsel
for
accused-respondents
in
Government Appeal and Mr. Rajeev
Chaddha and Arunesh Kumar Singh,
learned counsel for accused-appellants in
criminal appeal as well as perused the entire
material available on record.

4. The present case proceeds on a
written report of the informant/P.W.-1 Naik
(Exhibit-ka-1) dated 23rd September, 1978,
wherein it has been stated that he was
resident of village Nebuiya Tola Dusadhi
Bari. Sister of accused Ayodhya, namely,
Sitabi having a bad character was resident of
same village. There was rumour/discussion
about illicit relationship of Sitabi with
informant's son i.e. deceased Ganga and
other villagers, namely, Pyare Singh and
Chhotku Baba etc. Sister of accused
Ayodhya,
namely,
Sitabi
fled
away
somewhere three-four days ago. The
accused Ayodhya and others suspected that
the deceased enticed away Sitabi. Due to the
said grudge, on the night of 22nd September,
1978 at around 9 p.m, the accused Ayodhya
and his associates, namely, Pyare Singh,
Chhotku, Ramjeet, Lakhan, Sanhu and
Chhangur having consensus opinion and
having been armed with lathi (sticks) and
spears came at the doorstep of the informant
and started asking him as to where his son
Ganga was, on which the informant replied
that his son went to the place of his relative
at Pipara. Just in the meantime when the
conversation between the informant/P.W.-1
and accused Ayodhya was being exchanged,
his son Ganga came with his relative,
namely, Mahajan resident of Sakin Pipra,
Police Station Shyam Deukha and suddenly
5 All. Ayodhya & Ors. Vs. State of U.P.
37
the accused persons pounced on his son and
started beating him and dragging him
towards accused Ayodhya's house. On this,
the informant, his wife Jaleba and his
relative Mahajan also followed and reached
at the doorstep of the accused Ayodhya for
saving Ganga. At the doorstep of accused
Ayodhya, all the accused persons started
beating Ganga mercilessly by sticks (lathi)
and spears, due to which deceased Ganga
sustained injuries and fell down. On the
alarm being raised by the informant, so
many persons of the village including
Kanhai and Sita Ram also arrived flashing
their torches. The accused Ayodhya and the
accused Pyare had pressed the throat of
Ganga and the other accused persons
wielded sticks (lathis) and spears at him.
The son of the informant Ganga died
instantly there. With the help of witnesses,
the accused Ayodhya was caught on the
spot, whereas the other accused persons
succeeded in running away. The dead body
of his son Ganga was lying at the doorstep
of accused Ayodhya throughout the night.

5. The next morning, first informant
Naik went to the police station Ghughuli,
which was at a distance of about 7 miles
from
his
village
and
lodged
first
information report on 23rd September,
1978 at 7.30 A.M. on the basis of his
written
report
(Exhibit-Ka/1)
dated
23.9.1978. After that, Head Constable
Brijraj Yadav prepared the chik report.
The head constable also re-arrested the
accused Ayodhya, who was brought by the
informant and the village Chaukidar at the
police station. The blood stained Kurta
worn by the accused Ayodhya was taken
into custody and recovery memo (Exhibitka/14) in that regard has been prepared by
the Head Constable. The case was entered
in General Diary No. 11 at 7.30 A.M.
(Exhibit-Ka/13).
The
Investigating
Officer/P.W.-3, namely, Devendra Kumar
Singh started the investigation on 23rd
September, 1978 and interrogated the
accused Ayodhya at the police station.
Thereafter the Investigating Officer/P.W.-
3 proceeded for the place of occurrence
and took into possession the dead body of
the deceased Ganga from the house of the
accused Ayodhya. The inquest (ExhibitKa/2) was prepared on the same date i.e.
23rd September, 1978 at 10.00 A.M and
ended at 12:05 P.M. on the same date. The
Investigating
Officer/P.W.-3
also
prepared the Khaka Lash( Exhibit-Ka/3)
and Challan Lash (Exhibit-Ka/4). The
dead body of the deceased was handed
over in a sealed cover to constable Sharda
Lal
Srivastava
for
being
taken
to
mortuary.
A
letter
(Exhibit-Ka/5)
requesting the Medical Officer to conduct
the post-mortem examination of the dead
body of the deceased was also prepared
and sent. The Investigating Officer also
collected the blood-stained earth and plain
earth from the place where the dead body
was lying and recovery memo in that
regard was also prepared (Exhibit-Ka/ 6).
Two recovery memos Exhibits Ka/7 and 8
were also prepared for the torches, which
were produced by the witnesses Kanhai
and Sita Ram. On the same date the
Investigating Officer prepared the siteplan (Exhibit Ka/9) showing the house of
accused Ayodhya and the place where the
dead
body
was
found
lying.
The
Investigating Officer/P.W.3 also recorded
the statements of the informant/P.W.-1
Naik, his wife Jaleba, his relative Mahajan
and other witnesses at the spot. All other
accused persons ultimately surrendered in
the court.

6. The post-mortem has been
conducted by Dr. A.P. Singh (P.W.-4) on
24th September, 1978 at 12:30 p.m. and in
38 INDIAN LAW REPORTS ALLAHABAD SERIES
the post-mortem report (Exhibit-ka/11), the
cause of death of the deceased has been
reported to be shock and haemorrhage as a
result of following ante-mortem injuries:

"1. Lacerated wound 1" x 1/4" x
bone deep on left side head, 3 1/2" above the
left ear.

2. Contusion 1 1/2" x 1" on left
upper lid.

3. Abressed contusion 1" x 1/2"
on right eyebrow.

4. Abressed contusion 1" x 1" on
right side of face just below eye.

5. Contusion swelling 4" x 1" on
part of neck middle.

6. Incised wound 1" x 1/2" x 2"
on back of left upper arm, 3" above elbow
joint, direction from back to front.

7. Incised wound 1" x 1/2" x 1
1/2" on back of left forearm, 2" below the
elbow joint, direction from back to front.

8. Multiple contusion area of 8" x
4" on back of right upper arm.

9. Multiple contusion area of 4" x
3" on back of right forearm just above wrist
joint.

10. Contusion 3 1/2" x 1 1/2" on
right iliac fossa.

11. Contusion 2" x 2 1/2" on outer
aspect of left thigh middle.

12. Incised wound 1" x 1/2" x 1
1/2" on front of left leg, 3" below knee joint.

13. Incised wound 1" x 1/2" x 1
1/2" on front of left leg, 2" below injury no.
12

14. Incised wound 1" x 1/2" x
1/2" on front of left leg, 3" below injury
no.13

15. Incised wound 1/2" x 1/3" x
1/2" on front of left leg, 1" below injury no.
14.

16. Incised wound 1" x 1/2" x 1
1/2" on front of right leg, 2" below ankle
joint.

17. Multiple contusion on area of
6" x 4" on front of right leg, 2" below knee
joint.

18. Contusion 4" x 1" on front of
left thigh, 3 1/2" above knee joint.

19. Contusion 5 1/2" x 1" on outer
aspect of right thigh, 2" above knee joint.

20. Multiple contusion on area of
12" x 12" on back both side just below neck
root."

7. After conclusions of the statutory
investigation under Chapter XII Cr.P.C..
P.W.-3 has submitted the charge-sheet
(Exhibit-Ka/10) against all the accused
persons, namely, Ayodhya, Chhotkoo,
Pyare, Ramji, Sanhu, Lakhan and Chhangur
on 17th October, 1978.

8. On submission of charge-sheet, the
concerned Magistrate took cognizance in the
matter and committed the case to the Court
of Sessions by whom the case was to be
tried. On 10th September, 1980, the
concerned Court framed following charges
against the accused-persons:

"CHARGES

I, G. Chandra, II Addl. District
and Sessions Judge, Gorakhpur, hereby
charge
you
Ayodhya,
Pyare
Singh,
Chhotkoo, Ram Ji, Lakhan, Sanhoo and
Chhangur as follows:-

Firstly, that you, on 22.9.1978, at
about 9.00 Ρ.Μ., at village Nebuiya, Tola
Dusadhi Bari, P.S. Ghughuli District
Gorakhpur were a member of an unlawful
assembly, and, in prosecution of the
common object of such assembly, viz., in
committing the murder of Ganga, committed
the offence of rioting and there by committed
an offence punishable u/s. 147,1.P. C., and
within my cognizance.

Secondly,
that
you,
on
the
aforesaid date, time and place, were a
5 All. Ayodhya & Ors. Vs. State of U.P.
39
member of an unlawful assembly, in
prosecution of the common object of which,
did commit murder by intentionally or
knowingly causing the death of Ganga, and
thereby committed an offence punishable
under section 302 read with section 149,
1.P.C., and within my cognizance.

And I hereby direct that you be
tried by me on the said charges."

9. The charges were read out and
explained to the accused persons in Hindi,
who pleaded not guilty denying the
accusation and demanded trial.

10. The trial started and the
prosecution has examined six witnesses,
who are as follows:-

1
Naik (complainant) (father of the
deceased)/eye witness as per the
prosecution
P.W.-1
2
Mahajan
(relative
of
the
informant/P.W.-1)/another eye witness
as per the prosecution
P.W.-2
3
Devendra Kumar Singh/Investigating
Officer, the then Station House Officer,
Police
Station-Ghughuli,
DistrictGorakhpur
P.W.-3
4
Dr. A.P. Singh, the then Medical
Officer,
Primary
Health
Centre,
Maharajganj,
who
conducted
the
autopsy of the deceased
P.W.-4
5
Sharda Lal, Constable, Police StationGhughuli District-Gorakhpur
P.W.-5
6
Brijraj Yadav, the then Head Constable,
Police
Station-Ghughuli,
DistrictGorakhpur
P.W.-6

11. The prosecution in order to
establish the charges levelled against the
accused-appellant has relied upon following
documentary evidence, which were duly
proved
and
consequently
marked
as
Exhibits:

1
Written report dated
23rd
September,
1978
Ex.Ka.-1
2
First
Information
Report dated 23rd
September, 1978
Ex.Ka.-12
3
Recovery memo of
blood stained and
plain
earth
dated
23rd
September,
1978
Ex. Ka.-6
4
Two
recovery
memos
torches
which
were
produced
by
the
witnesses
Kanhai
and Sita Ram dated
23rd
September,
1978
Ex. Ka/7 & 8
5
Recovery memo of
Kurta, which was
taken into possession
from
accused
Ayodhya dated 23rd
September, 1978
Ex.Ka.-14
6
Copy of the G.D.
entry about the first
information report
Ex.Ka.-13
7
Panchayatnama
(Inquest Report)
Ex.Ka.-2
8
Khakha Lash and
Photo Lash
Ex.Ka.-3 & 4
9
Letter written to the
Chief
Medical
Officer for getting
the post-mortem of
the
deceased
conducted
Ex.Ka.-5
10 Post-mortem report
dated
24th
September, 1978
Ex.Ka.-11
14 Charge-sheet
original dated 17th
October, 1978
Ex.Ka.-10
40 INDIAN LAW REPORTS ALLAHABAD SERIES
15 Site plan with index
dated
23rd
September, 1978
Ex.Ka.-9

12.

After
completion
of
the
prosecution evidence, statement of the
accused was recorded under Section 313
Cr.P.C. The accused Chhotkoo, Pyare,
Ramji, Sanhu, Lakhan and Chhangur, while
giving their statements in the Court, denied
the prosecution evidence and stated that they
have been falsely implicated on account of
harbouring grudges. The accused persons
had also taken a plea that they had been
implicated falsely due to the election rivalry
of Pradhan. The accused Ayodhya, while
giving his statement in the Court of Session
u/s.313, Cr.P.C., also denied the entire
prosecution evidence. He further stated that
the informant Naik and the Pradhan Vidya
Singh were very close to each other and that
he did not cast his vote in favour of Vidya
Singh in the election rivalry of Pradhan. He
further stated that he had accompanied the
informant Naik to Maun Nala' where the
dead body of Ganga was lying. Naik took
the dead body and carried it to his (Naik's)
house. Naik took him (accused Ayodhya) to
the police station. It was at the instance of
Naik that the police had taken him into
custody at the police station. The accused
persons did not adduce any defence
evidence.

13. On the basis of above evidence oral
as well as documentary adduced during the
course of trial, the trial court, relying upon
the testimonies of P.W.-1/Informant and
P.W.-3 Mahajan that the accused Ayodhya,
Sanhu, Chhangur, Lakhan and Ram Ji, all
belong to the same family, had wielded
sticks (lathi) and spears (Ballam) on the
deceased Ganga and that the deceased died
instantaneously on the spot as a result of
injuries caused by them, has come to the
conclusion that the case against those
accused persons is fully established for the
offence under Section 147 and Section 302
read with Section 149 I.P.C. As such, they
have been sentenced to undergo two years
rigorous imprisonment for the offence under
Section 147 I.P.C. and life imprisonment for
the offence under Section 302 read with
Section 149 I.P.C. However, the trial court
under the same impugned judgment, with
regard to the involvement of the accused
Pyare and Chhotkoo in the alleged crime,
has recorded its finding that there is no
strength in the testimonies of the witnesses
to show that those accused Pyare and
Chhotkoo would also have involved in
committing the alleged crime, more so when
they neither had any friendship with the
informant/P.W.-1 nor they had any foeship
against the deceased Ganga. The trial court
had further recorded that though in the first
information report lodged on the basis of
written report given by the informant/P.W.-
1, specific role has been attributed to the
accused Pyare of throttling the neck of the
deceased
Ganga
along
with
accused
Ayodhya but in their testimonies, P.W.-1
and P.W.-3 did not at all state that the
accused Pyare had played any part in the
alleged crime. The trial court has also
observed that on the basis of such finding,
the prosecution has failed to prove the guilt
of the accused Pyare and Chhotkoo
successfully in commissioning of the
alleged crime. As such the trial court has
given benefit of doubt to the accused Pyare
and Chhotkoo and resultantly, the trial court
has acquitted both the accused.

14. Being aggrieved with the
impugned judgment and order of conviction
passed by the trial court, the accusedappellants
has
preferred
the
present
Criminal Appeal, whereas the State of U.P.
5 All. Ayodhya & Ors. Vs. State of U.P.
41
has preferred the present Government
Appeal against the impugned judgment of
acquittal of accused Pyare and Chhotkoo by
the trial court.

15. Assailing the impugned judgment
and order of conviction, the learned counsel
for the accused-appellants in present
criminal appeal has advanced following
submissions:

(i)
The
alleged
occurrence
happened on 22nd September, 1978 at 09:00
p.m. (night), whereas the first information
report was lodged on 23rd September, 1978
at 7 to 8 a.m. (morning), meaning thereby
that there is delay of 10 to 11 hours in
lodging of first information report for which
no plausible explanation has been given
making the prosecution case doubtful.

(ii) On the date and time of alleged
incident, there was no source of light so as
to identify the accused, who have committed
the alleged crime.

(iii) P.W.-2 Mahajan, who is
stated to be relative of the informant is a
chance witness and not an eye witness. His
testimony that on the date of incident, he
came along with the deceased to drop him at
his house is also doubtful. Since deceased
was a major person and not a minor,
therefore, it is impossible to believe as to
why P.W.-2 accompanied the deceased
when he was returning to his home.

(iv) As per the prosecution
version, the accused persons have assaulted
the deceased with lathi (sticks) and spears
(Ballam)
but
during
the
course
of
investigation, no recovery of any weapon
was made from any of the accused persons.

(v) As per the version of the first
information report as well as the testimony
of P.W.-1, at the door of accused Ayodhya,
when the accused persons were assaulting
the
deceased,
on
shouting
of
the
informant/P.W.-1 so many persons of the
village including Kanhai and Sita Ram also
arrived flashing their torches and recovery
memos of the torches of Kanhai and Sita
Ram have also been prepared and exhibited.
However, both Kanhai and Sita Ram have
not been examined as prosecution witnesses
during the course of trial.

(vi) Neither the place i.e. front of
house of P.W.-1, initially where the accused
persons have assaulted the deceased with
lathi and spears, when he returned from his
relative place along with P.W.-2 has been
marked by the Investigating Officer in the
site plan nor any blood stain earth or plain
earth has been collected by the Investigation
Officer while preparing the recovery memo.

(vii) As per the post mortem report
of the deceased, no stab wound has been
found on the body of the deceased whereas
according to the prosecution witnesses, the
accused have assaulted the deceased by lathi
and spears.

(viii)
The
watchman/village
chowkidar, who is alleged to have guarded
the body of the deceased throughout the
night till morning, has not been examined
during the course of trial.

16. On the cumulative strength of the
aforesaid submissions, learned counsel for
the accused appellants submits that the
impugned judgment and order of conviction
cannot be legally sustained and is liable to
be quashed.

17. Following submissions have been
made by the accused-respondents in the
present Government Appeal in order to
support the judgement of the trial court:

In the murder case of one Ram
Parikhan Singh, Vidya Singh was an
accused. Though it is not clear from the
record as to whether he was convicted or
42 INDIAN LAW REPORTS ALLAHABAD SERIES
acquitted in the said case but it crops up
from the record that he was in jail for some
period in the said murder case. Vidya Singh
who was friend of P.W.-1 was also village
pradhan and accused Pyare had not cast his
vote in favour of Vidya Singh. Sundar Singh
i.e. father of the accused Pyare Singh was
also a witness in the murder of Ram
Parikhan Singh and that is why there was
direct inimical relations between the family
of Pyare Singh and Vidya Singh along with
P.W.-1. The accused Pyare Singh and
Chhotkoo were neither the family members
of other accused Ayodhya and others nor
they had any concern with their family.
Because of inimical relations with Vidya
Singh, they have been falsely implicated in
the present case.

18. On the cumulative strength of the
aforesaid submissions, learned counsel for
the accused-respondents submits that since
this is not a case of direct evidence and there
are major contradictions and inconsistencies
in the prosecution evidence oral as well as
documentary, produced during the course of
trial, impugned judgment and order of
conviction does not suffer from any
illegality and infirmity so as to warrant any
interference by this Court. As such the
Government Appeal filed by the State is
liable to be dismissed.

19. On the other-hand, learned A.G.A.
for the State in reply to the submissions
made by the learned counsel for the accusedappellants have made his point wise
submissions.

(i) To the first submission made
by the learned counsel for the accusedappellant regarding delay in lodging of the
first information report, it is submitted that
the delay has satisfactorily been explained
by
the
prosecution.
In
the
crossexamination, P.W.-1 has stated that the
villagers advised him that the accused
persons who ran away, had come and were
hiding here and there and if the informant
and other villagers would go to the Police
Station for lodging of the first information
report, in their absence, the remaining
accused persons could take away the
accused Ayodhya along with them, who was
caught from the spot and other accused
would succeed to run away. P.W.-1 has also
stated that since it was already late in the
night and the dead body also had to be
guarded, as such, they did not go to file the
report at night and waited for the morning.

(ii) Qua the second submission
made by the learned counsel for the accusedappellants, learned A.G.A. submits that
since all the accused were of the same
village of informant/P.W.-1 and were well
known, they could be identified at night
easily. Apart from the above, it is submitted
that in the torch lights of several people
along with Kanhaiya and Sita Ram, who
came to the spot on shouting of informant,
the accused persons have been identified by
the prosecution witnesses. The recovery
memos of the torches of Kanhaiya and Sita
Ram have also been exhibited.

(iii). So far as the third submission
made by the learned counsel for the accusedappellants that P.W.-2 Mahajan is a chance
witness is concerned, it is submitted that
P.W.-2 is not a chance but an eye witness of
the alleged crime. In his cross-examination,
he has specifically stated that on the date of
incident the deceased went to his relative
place and reached the place of P.W.-2 and
requested him to drop him to his house and
on his request, he came to his house along
with him. He is thoroughly consistent in his
examination-in-chief as also in his crossexamination. His testimony has also been
supported by P.W.-1 in his testimony. There
5 All. Ayodhya & Ors. Vs. State of U.P.
43
is no inconsistency in testimonies of both
eye witnesses i.e. P.W.-1 and P.W.-2.

(iv) Qua the fourth submission
made by the learned counsel for the accusedappellants that as per the prosecution case,
all the accused persons have caused injuries
to the deceased by sticks (lathi) and spears
but no recovery has been made from any of
the accused persons, which cast a dent in the
prosecution version, learned A.G.A. submits
that since the prosecution version that the
accused persons assaulted the deceased by
lathi (sticks) and spears has been supported
by the testimonies of eye witnesses i.e.
P.W.-1 and P.W.-2 and the post-mortem
report of the deceased, non recovery of any
weapon from any of the accused persons
would not affect the credibility of the
prosecution witnesses. It was failure on the
part of the Investigating Officer that he has
not made any recovery of any weapon from
any of the accused for which no benefit can
be extended to the accused-appellants.

(v) So far as the fifth and eighth
submissions made by the learned counsel for
the accused-appellants that non examination
of eye witnesses, namely, Kanhaiya and Sita
Ram in whose torch lights, the accused have
been identified and also the village
chowkidar, who guarded the dead body of
the deceased throughout the night, as per the
version of the first information report is
concerned, it is submitted by the learned
A.G.A. that same does not prevail over the
clinching
evidence
produced
by
the
prosecution by way of testimonies of eyewitnesses, namely, P.W.-1 and P.W.-2,
which has been fully supported by the
medical evidence.

(vi) It is submitted by the learned
A.G.A. that the sixth submission made by
the learned counsel for the accusedappellants that since the Investigating
Officer has not made any recovery memo of
the blood stain earth and plain earth from the
place i.e. front of the house of the
informant/P.W.1,
where
initially,
the
accused persons assaulted the deceased by
lathi and spears as soon as he reached
thereafter from his relative place along with
P.W.-2 nor the Investigating Officer marked
the said place in the site plan, which makes
the prosecution case doubtful, has also no
relevance, as at that time, where the
deceased was not seriously injured and no
blood was coming out from his body. Even
otherwise, the Investigating Officer has
collected the blood stain earth and plain
earth from the place i.e. front of the house of
accused Ayodhya, where the deceased was
seriously injured and ultimately has been
done to death and he has also prepared their
recovery memos, which have been exhibited
and has also marked the said place in the site
plan.

(vii) To the seventh submission
made by the learned counsel for the accusedappellants that since no stab wound has been
found on the body of the deceased as per the
post-mortem report, the entire prosecution
case is doubtful, learned A.G.A. submits
that according to the prosecution case the
accused persons assaulted the deceased by
lathi (sticks) and spears, which is duly
supported by the post mortem report on the
ground that if a person assaulted with a stick
and a spear, he will not get the same injury
as if he is assaulted with a knife like stab
wound.

20. On the basis of the aforesaid
submissions learned A.G.A. submits that as
this is a case of direct and clinching
evidence, the testimonies of eye witnesses,
namely, P.W.-1 and P.W.-2 who are
consistent throughout in their examinationin-chief and the cross-examinations are
credible in the facts and circumstances of the
case and they have disclosed about the
commissioning of the offence of murder of
44 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased Ganga and the same has also
been supported by the medical evidence and
the police evidence, therefore, trial court has
not committed any error in recording
conviction of the accused-appellants under
Section 147 and 302 read with Section 149
I.P.C. As such the appeal filed by the
accused-appellants, who committed heinous
crime by murdering the deceased Ganga is
liable to be dismissed.

21. In reply to the submissions made
by the learned counsel for the accusedrespondents in Government Appeal, learned
A.G.A. submits that the prosecution has
fully established its case beyond reasonable
doubt against the accused-respondents by
oral as well as documentary evidence but the
trial court has not examined the same and
passed the impugned judgment of acquittal
of accused Pyare and Chhotkoo only on the
argument raised by the defence counsel
before the trial court, which is per-se illegal
and is liable to be quashed. The learned
A.G.A. further submits that in support of the
above argument, learned counsel for the
accused-respondent has failed to produce
any documentary as well as oral evidence
before this Court as well as trial court. There
exist direct evidence against the accused
Pyare and Chhotku by way of testimonies of
P.W.-1
and
P.W.-2.
As
such
the
Government Appeal filed by the State is
liable to be allowed reversing the impugned
judgment of the trial court and convicting
and sentencing them for the offence under
Section 147 I.P.C. and Section 302 read with
Section 149 I.P.C. as to when other five
accused have been convicted on the same
evidence, how could these two accused go
scot free.

22. We have examined the respective
contentions urged by the learned counsel for
the parties and have perused the records of
the present appeal including the trial court
records.

23. The only question requires to be
addressed and determined in this appeal is
whether the conclusion of guilt arrived at by
the learned trial court and the sentence
awarded is legal and sustainable in law or it
suffers from infirmity and perversity.

24. Before entering into the merits of
the case set up by the learned counsel for the
accused-appellant and the learned A.G.A.
qua impugned judgment and order of
conviction passed by the trial court, it is
desirable for us to briefly refer to the
statements of the prosecution witnesses.

25. P.W.-1/informant Naik , who is the
father of the deceased Ganga, has stated in
his examination-in-chief that the accused
Ayodhya, Chhangur, Lakhan, Sanhu and
Ramjit belong to the same family, whereas
the accused Pyare and Chhotkoo are their
associates. The name of sister of accused
Ayodhya is Sitaabi. Sitaabi's behavior was
not good, she had an illicit relationship with
the deceased Ganga. Two years ago, murder
of the deceased took place. Sitaabi ran away
from the village four days prior to the
incident and the deceased also ran away
from his home. The accused Ayodhya and
others tried to search Sitaabi but she was not
traced. Ayodhya and others suspected that
the deceased had taken away Sitaabi along
with him and showed their serious
displeasure towards the deceased. Further
P.W.-1 has reiterated the same version as
unfolded in the first information report.

26. In the cross-examination it has
been submitted by P.W.-1 that the father of
the accused Pyare is Sundar Singh and
nephew of Sundar Singh is Satveer Singh.
Bidya Singh is the relative (Pattidar) of the
5 All. Ayodhya & Ors. Vs. State of U.P.
45
aforesaid persons. Sunder Singh was not the
relative (Pattidar) of Ram Parikhan Singh,
who was murdered in which Vidya Singh
and others were implicated. He did not know
whether Vidya Singh was convicted in that
case or not but he was imprisoned. He also
did not know whether Sunder Singh was
pursuing the said case against Vidya Singh.
Vidya Singh was the Pradhan of the village.
There was no enmity between Vidya Singh
and Sundar Singh, and they used to talk.
Consolidation cases were pending between
Satveer Singh and Vidya Singh.

27. It has been further stated by this
witness that Sitaabi had four brothers.
Initially Sitaabi was married in Pakdi and
then she started living with Vanshraj
resident of her village. The name of her first
husband was not known to him. Vanshraj
has three boys and one girl. The name of
Sitaabi's eldest son is Sudarshan. Sitaabi's
two sons and one daughter were married. At
the time of the incident, Sitaabi's son had
already
given
birth
to
a
daughter.
Sudarshan's daughter was 3 years old at the
time of the incident. Sitabi's husband
Vanshraj was working in Dhanbad coal
mine at the time of the incident. Sitaabi lived
with her husband in Dhanbad. He did not
know as to whether Sitaabi has filed any
affidavit in this case or not. Other brothers
of Sitaabi are Beni, Mangroo and Brijlal and
they had also come at the time of the
incident but they were not involved in the
alleged crime. He did not disclosed the
names of the aforesaid brothers of Sitaabi to
the Investigating Officer because they were
not involved. He only disclosed the names
of those persons who had actually killed the
deceased, to the Investigating Officer.

28. Again this witness has stated that
his son Ganga (deceased) was married but
his wife had died a year before the incident.
The characters of both Ganga and Sitaabi
were bad. He did not know which woman
was related to Ganga. When Ganga left his
house since 3 to 4 days, he did not make any
effort to search him as he had gone to his
relative place at Pipra. At the time of the
incident, he was sitting on the outer porch of
his house. The accused came to his door but
did not come to his porch. Even his son
Ganga and his relative Mahajan (P.W.-2)
could not come to his porch. When his son
came to the door, the accused started beating
him with a stick only for a minute but none
of the accused hit the deceased at his door
with a spear. There was no blood on his
door. His son Ganga was hanged by the
accused from his hands and legs and taken
along with them. Two accused caught the
hands of the deceased and two caught his
legs. When the informant/P.W.-1, his wife
and P.W.-2 Mahajan reached the door of
accused Ayodhya, his son Ganga was on the
ground and the accused were beating him.
He first saw from a distance of two steps that
the accused were beating his son at the door
of accused Ayodhya. He started screaming
as soon as he saw it. At that time there was
no one else there except the accused. On his
alarm, people reached there. Kanhai and Sita
came first on his alarm. Seeing Kanhai and
Sita, the accused started running away.
However,
accused
Ayodhya
was
apprehended by the informant/PW.-1 and
P.W.-2 Mahajan, Sita Ram and Kanhai.

29. It has also been stated that after
apprehending accused Ayodhya, he brought
him to his house and made him sit there. No
information was sent to the Village Pradhan.
The
watchman/village
chowkidar
had
arrived shortly after the murder took place.
Sita, P.W.-2 Mahajan and the people of the
village had come near the dead body. Till the
Police came, the same people were guarding
the dead body. His wife and he stayed at
46 INDIAN LAW REPORTS ALLAHABAD SERIES
their home. People advised him that the
remaining six accused had returned and they
were hiding here and there. If they went to
the Police Station along with accused
Ayodhya, they would rescue him on the way
and also the dead body had to be guarded
and that is why he didn't go to lodge the
report at night. There were still 2 hours of
night left and then he went to the police
station along with the watchman and the
accused Ayodhya.

30. In his cross-examination, this
witness has denied that accused Pyare Singh
has been falsely implicated under the
influence of Vidya Singh from him. He also
denied that Vidya Singh was his friend or
associate. He further stated that dead body
of his son remained lying at the door of
accused Ayodhya till 11 o'clock on that date.
From the door of accused Ayodhya, the
body of the deceased was taken on a cot to
Badagaon and then taken on a Dunlap. He
has denied that body of the deceased was
taken away from the spot much later.

31. In his examination-in-chief, P.W.-
2 Mahajan, who is another eye and star
witness has stated that the deceased Ganga
and the informant/P.W.-1 are his relatives.
Two years ago, Ganga was murdered. He
had gone to his house in the morning on the
day when Ganga was murdered. He left his
house at 8:00 p.m. in the evening to drop
Ganga at his house and reached his house at
around 9:00 p.m. in the night. When P.W.-1
along with Ganga reached his doorstep, he
saw that accused Sanhu, Ayodhya, Lakhan,
Chaangur, Ramjeet, Chhootkoo and Pyare
having sticks (lathi) and spears were
inquiring about the whereabout of Ganga, in
the meantime, he alongwith Ganga reached
there. Immediately thereafter, all the
accused pounced on Ganga and wielded
two-three lathi blows, consequent to which
he fell down. Thereafter, all the accused
together dragged Ganga to the door of
accused Ayodhya and when they were
hitting Ganga by sticks (lathi) and spears,
P.W.-2, P.W.-1 Naik and his wife reached
the door of accused Ayodhya. On hearing
the noise, Sita and Kanhai came there
having torches in their hands and thereafter
several people reached there. Seeing them
coming, all the accused except accused
Ayodhya, ran away but the accused
Ayodhya was apprehended by them and he
was brought at the doorstep of P.W.-1 Naik.
When Ganga went to his house, he was
wearing lungi and shirt.

32. In the cross-examination, P.W.-2
stated that on the day of incident, he just
went to drop Ganga at his house but
otherwise, had no specific reason to visit
there. They did not carry any weapon from
the village. Only on the request of Ganga, he
went to drop him at his house for which he
did not assign any reason. No one
accompanied Ganga at his place.

33. This witness has further stated that
he and Ganga were ten steps away when
they overheard the accused at the door of
Ganga. As soon as they saw Ganga, the
assailants attacked him and they did not try
to save Ganga because accused were seven
in number.

34. Again this witness has stated that
he knew Vidya Singh, the then Pradhan of
Nebuiya village. When the Investigating
Officer came to the spot, Vidya Singh also
came.