# Babu Pasi alias Babu Lal Pasi & Anr v. State of U.P

- **Citation:** (2022) 2 ILRA 309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-22
- **Case number:** Criminal Appeal No. 595 of 1982
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-pasi-alias-babu-lal-pasi-anr-v-state-of-u-p-48118
- **Pages:** 29

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A, Evidence Act, 1872 -
Section 3 - Offence of Murder - Attempt to
Murder - Dacoity with Murder - Evidence of Eye
witnesses - Credibility & Reliability - all three
eye witnesses - Alleged to be self contradictory
and their presence on the spot is doubtful.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section -3 - offence of Murder - Testimony of
Eye witnesses - Credibility & Reliability - Eye
witnesses implicated also Nine other co-accused
310 INDIAN LAW REPORTS ALLAHABAD SERIES
persons whom were clearly acquitted by the
Trial Court being not appreciating the evidence
of these eye witnesses against them and their
acquittal has not been challenged by the state
or by the informant.

Criminal Law -Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - Testimony of
Eye witnesses - Credibility & Reliability -
Mistakes made in identification parade the eye
witnesses - the eye witnesses, informant and
other are makes statements before the Special
Exe. Magistrate that they saw and identified
those accused persons are committing dacoity
and murdered - but prosecution case was not
relates with robbery with murder - though Eye
witnesses and the informant are seating in bus
nearby but why they are not take efforts to save
deceased
persons
rather
they
peacefully
watching, got down from the bus and take
shelter behind the tree with their luggage - they
did not see whom were make fire upon the
deceased - they were heard names of accused
persons on saying of other passengers.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - Testimony of
Eye witnesses - Credibility & Reliability - eye
witnesses deposed that accused persons were
armed with Katta, rifle and gun - admission of
eye witness that third person who were seating
nearby the deceased with empty handed had
not received any injury and despite being
relationship with deceased they were not
reacted on the incident - testimony of eye
witnesses is not trustworthy.

Criminal Law - Indian Penal Code, 1860
- Sections 300, 302 r/w 34 , 114, 396,
307, 323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) - 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - Testimony of
Eye witnesses - Credibility & Reliability - in
Medical evidence - injury no. 1 is attributable
by sharp edged weapon which

## Text

_Characters 0–39,978 of 99,562. This is a partial read: ask again with offset=39978 for what follows._

2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
309
draft in the name of mother of the
deceased namely Smt. Shanti Devi W/o
Ramnath and on his furnishing a personal
bond of Rs.1,00,000/- and two reliable
sureties of the like amount to the
satisfaction of the court concerned subject
to following additional conditions, which
are being imposed in the interest of justice:-

(i) If proceeding for cancellation of
armed license is not done, the District
Magistrate,
Sitapur
is
required
to
initiate proceeding in accordance with
law for the purpose to cancel the arm
license of the accused-applicant in
circumstances of the case.

(ii) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(iii) The applicant shall remain present
before the trial court on each date fixed,
either personally or through his counsel. In
case of his absence, without sufficient
cause, the trial court may proceed against
him under Section 229-A of the Indian
Penal Code.

(iv) In case, the applicant misuse the
liberty of bail during trial and in order to
secure his presence, proclamation under
Section 82 Cr.P.C. is issued and if the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(v) The applicant shall remain present,
in person, before the trial court on the dates
fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.
----------
(2022)02ILR A309
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 595 of 1982

Babu Pasi alias Babu Lal Pasi & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
J.N. Chaudhary, H B Singh, Harendra Pratap
Singh, Ram Chandra Dwivedi, Saket Tiwari,
Shilendra Kumar, Sumit K. Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A, Evidence Act, 1872 -
Section 3 - Offence of Murder - Attempt to
Murder - Dacoity with Murder - Evidence of Eye
witnesses - Credibility & Reliability - all three
eye witnesses - Alleged to be self contradictory
and their presence on the spot is doubtful.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section -3 - offence of Murder - Testimony of
Eye witnesses - Credibility & Reliability - Eye
witnesses implicated also Nine other co-accused
310 INDIAN LAW REPORTS ALLAHABAD SERIES
persons whom were clearly acquitted by the
Trial Court being not appreciating the evidence
of these eye witnesses against them and their
acquittal has not been challenged by the state
or by the informant.

Criminal Law -Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - Testimony of
Eye witnesses - Credibility & Reliability -
Mistakes made in identification parade the eye
witnesses - the eye witnesses, informant and
other are makes statements before the Special
Exe. Magistrate that they saw and identified
those accused persons are committing dacoity
and murdered - but prosecution case was not
relates with robbery with murder - though Eye
witnesses and the informant are seating in bus
nearby but why they are not take efforts to save
deceased
persons
rather
they
peacefully
watching, got down from the bus and take
shelter behind the tree with their luggage - they
did not see whom were make fire upon the
deceased - they were heard names of accused
persons on saying of other passengers.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - Testimony of
Eye witnesses - Credibility & Reliability - eye
witnesses deposed that accused persons were
armed with Katta, rifle and gun - admission of
eye witness that third person who were seating
nearby the deceased with empty handed had
not received any injury and despite being
relationship with deceased they were not
reacted on the incident - testimony of eye
witnesses is not trustworthy.

Criminal Law - Indian Penal Code, 1860
- Sections 300, 302 r/w 34 , 114, 396,
307, 323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) - 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - Testimony of
Eye witnesses - Credibility & Reliability - in
Medical evidence - injury no. 1 is attributable
by sharp edged weapon which more fatal and
with possibility of death due to alone in
comparing to injury no. 4 of fire arm -
contrary this - both eye witnesses did not
stated about other mode of assault upon the
deceased
persons
-
Furthermore
-
prosecution fails to explain how multiple
incised wound came on the body of the
deceased persons and also there is no any
recovery of Katta or fire arms - accused
entitled to be benefit of doubt.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396,
307, 323, 325 & 404 - Code of Criminal
Procedure, 1973 - Section 313, 374 (2),
378 (1), 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder - NonExamination of Material & Natural Witnesses -
neither the informant nor injured nor deriver
and conductor of the bus has been examined
by the prosecution - no explanation given for
their non-examination - hence adverse
inference against the prosecution deserves to
be drawn and accused person has entitled to
be benefit of doubt.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396,
307, 323, 325 & 404 - Code of Criminal
Procedure, 1973 - Section 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section 3 - Offence of murder -Standard of
proof - duty of prosecution - case of triple
murder is going to unpunished - it might be
the case of prosecution is true - it was
necessary to examine such other witnesses -
findings of the Court - Distance between 'may
be true' and 'must be true' has not been
covered by prosecution by adducing legal,
reliable and unimpeachable evidence - Court
are squarely satisfied that instant case is a fit
case in respect of the Appellant no. 2 -
deserves benefit of doubt - Court propose
giving him benefit of that doubt.(Para - 37,
38, 39, 42, 44, 45, 46, 47, 48, 49, 50, 55, 56,
57, 58, 59, 60)

Criminal appeal is allowed judgment and
order of session Trial court is set aside. (E11)

List of Cases cited:
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
311
1. Surinder Kumar Vs St. of Har. (2011 Vol. 10
SCC 173)

2. St. of H.P. Vs Gian Chand (2001 Vol. 6 SCC 7)

3.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansingh & ors. (2001 Vol. 6 SCC 145)

4. Dahari Vs St. of UP (2012 vol. 10 SCC 256)

5. Sarwan Singh Vs St. of Punj. (1957 AIR 637)

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

(The judgment is pronounced in
terms of Chapter VII Sub-rule (2) of
Rule (1) of the Allahabad High Court
Rules, 1952 by Hon'ble Ramesh Sinha,
J.)

( Per Ramesh Sinha, J. for the
Bench)

(A) INTRODUCTION

(1) Eleven accused persons, namely,
Babu Pasi alias Babu Lal Pasi, Ringu
Pasi,
Ramesh,
Madan
Lal,
Ram
Swaroop, Ganga Sewak, Neta alias
Kunni, Chandra Kishore, Lalaunoo,
Ram Rup, Ram Chandra, were tried by
the VI Additional Sessions Judge, Unnao in
Sessions Trial No. 210 of 1981 : State Vs.
Babu Lal and others.

(2) It is pertinent to mention here
that during the trial, accused Babu Lal
Master died, whereas accused Vinod
Kumar
and
Babu
Lal
Dom
were
absconding,
hence
their
trial
was
separated from aforesaid eleven accused
persons and the trial Court had charged
accused Ringu Pasi and Babu Lal Pasi
under Sections 302 read with Section 34
I.P.C. for committing murder of Shiv
Balak and Ram Balak and under Section
404 I.P.C. for having taken arms from the
deceased persons; and accused Ramesh,
Madan Lal, Ram Swaroop, Ganga Sewak,
Neta alias Kunni, Chandra Kishore,
Lalaunoo, Ram Roop and Ram Chandra
were charged under Sections 201, 148,
302 read with Section 34 I.P.C. and
Section 302 I.P.C. read with Section 114
I.P.C.

(3) Vide judgment and order dated
17.07.1982, the VI Additional Sessions
Judge, Unnao, acquitted nine accused
persons, namely, Ramesh, Madan Lal,
Ram Swaroop, Ganga Sewak, Neta alias
Kunni, Chandra Kishor, Lalaunoo, Ram
Roop, Ram Chandra and convicted two
accused persons, namely, Babu Pasi alias
Babu Lal Pasi (appellant no.1 herein),
Ringu Pasi (appellant no.2 herein) under
Section 302 read with Section 34 I.P.C.
and Section 404 I.P.C. and sentenced
them in the manner as stated hereinafter
:-

"(i) Under section 302 read with
Section
34
I.P.C.
to
undergo
imprisonment for life; and

(ii) Under Section 404 I.P.C. to
undergo one year's R.I."

Both the sentences were directed to
run concurrently.

(4) Feeling aggrieved by their
conviction and sentence above vide
judgment and order dated 17.07.1982,
Babu
Pasi
alias
Babu
Lal
Pasi
(appellant no.1 herein ) and Ringu Pasi
(appellant no.2 herein) have preferred
the instant criminal appeal under Section
374 (2) of the Code of Criminal
Procedure.

(5) It is pertinent to mention here that
no appeal against the acquittal of nine
accused persons, namely, Ramesh, Madan
312 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal, Ram Swaroop, Ganga Sewak, Neta
alias Kunni, Chandra Kishor, Lalaunoo,
Ram Roop, Ram Chandra, has been filed
either by the State or by the complainant's
side.

(6) It transpires from the record that
during pendency of the instant appeal,
appellant no.1-Babu Pasi alias Babu Lal
Pasi died on 12.07.2015, hence the instant
criminal appeal filed on his behalf stands
abated vide order dated 07.02.2019. Now
the instant criminal appeal survives only in
respect of appellant no.2-Ringu Pasi.

(B) FACTS

(7) Shorn off unnecessary details, the
case of the prosecution is as under :-

Gaya Prasad Singh (informant), son of
Sheo Darshan Singh Kachi, who is the
resident of village Hamirpur, Police Station
Bihar, District Unnao, has lodged an F.I.R.,
alleging therein that in the year 1979,
Chandrika
Pasi
of
his
village
was
murdered, in which his son Ram Balak
(deceased), his nephew Raj Narayan son of
Suryawali Kachi, Dinesh Chandra (injured)
and Harish Chandra alias Kunne, sons of
Udai Shanker Shukla, resident of village
Bhagwant Nagar, Police Station Bihar,
were challaned and in this case, on
30.09.1980, they were required to be
present in Court. On that date i.e. on
30.09.1980, his another civil case was
listed in Civil Court.

On 30.09.1980, his son Ram Balak
(deceased), Shiv Balak (deceased) and his
brother Vishnu Dutt came to kachahari
(Court) for doing pairvi in both the cases.
On the said date, the relatives of Chandrika
Pasi and his companions, namely, Babu Lal
Pasi Master, Ringu Pasi, Babu Pasi
(accused), residents of Village Osiya,
Police Station Bighapur, were also gone
along with other 2-3 friends to kachahari
(court) for doing pairvi of the case of
Chandrika.

In the Court, some hot talk took place
between his sons and Babu Lal Master etc.
Thereafter, Babu Lal said that "[kqu dk cnyk
[kqu ls pqdk;k tk;sxk" (blood would be
avenged for blood), which was also heard
by Ram Narayan Kadi, who had gone there
for pairvi of his brother Raj Narayan. On
the said date, the case was posted for
06.10.1980.

On 06.10.1980, he (informant Gaya
Prasad Singh), his sons Ram Balak
(deceased), Shiv Balak (deceased), his
nephew Raj Narayan and Shivdhar Singh
sons of Ganga Singh, resident of village
Bhunau Kheda, Ram Balak Yadav son of
Kali Prasad resident of village Pitua Kheda,
Ramdas Lohar son of Bhalu, Ram Balak
son of Satya Narayan Pasi resident of
Village Hamirpur, Police Station Bihar,
District Unnao, were gone to kachahari
(Court) but the case was posted for
07.10.1980, then, they were coming from
Kanpur to Buxer through a bus, bearing
registration No. U.T.T. 7367, upon which
his grand-child Upendra Singh (P.W.1) son
of Shiv Balak (deceased) was also
returning from Kanpur. Babu Pasi, Ringu
Pasi (appellants) of Usiya also boarded on
the said bus from Unnao.

When the bus was started to go from
Bighapur to Buxer, then, 3-4 men from
Bighapur also boarded the said bus and
when the bus moved ahead from frjkgk (a
place where three road met with each other)
of Usiya village at around 05:30 p.m., loud
sound jksdks jksdks (stop stop) came inside
the bus from its behind and 3-4 fire also
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
313
happened in the bus. Thereafter, the bus,
after running about 150 yard, stopped and
then, they saw that Ram Balak (deceased)
and Shiv Balak (deceased) got shot and fell
on their seats and near to them, Babu Pasi,
Ringu (appellants) and 24 year old
wheatish colour boy wearing a red bushirt
were holding a katta (pistol) in their hands
and while abusing the passengers, asked
them that bastard get out from the bus and
ran away and if someone spoke, he too
would be shot. Thereafter, while snatching
the rifle of his son Ram Balak (deceased)
and a single bore gun of Shiv Balak
(deceased) by Babu Pasi and Ringu Pasi
(appellants), respectively, they took it in
their hands.

Thereafter, Dinesh Chandra Shukla
(injured), who was sitting in front of the
seat of the next gate with his rifle facing his
face towards back, was caught holding his
rifle by a wheatish man wearing Khakhi
paint and bushirt and appeared to be a
young age. Thereafter, Dinesh tried to
escape from the grip of a wheatish man but
he was jerked by him and then, while
pulling over from bus with rifle, the said
wheatish man snatched his rifle. Thereafter,
all the passengers got out of the bus and hid
under the trees here and there. They
(informant Gaya Prasad Singh and Upendra
Singh (P.W.1) also ran away and hid here
and there under the cover.

As soon as the bus stopped the side of
the road, Babu Lal Pasi Master (accused),
who was armed with one bore gun and along
with him 10-12 persons, who armed with
Katta (pistol) and shotguns (vn~/kh canwds),
started firing. When the passengers got down,
Babu Lal Master (accused) had said that dead
body of the bastard be taken out from the bus,
thereupon 3-4 persons entered into the bus
and took out the dead body of his two sons,
who died on account of shot inside the bus
and thereafter, took away the dead bodies of
his two sons to the south of the road towards
the field. Thereafter, on saying of Babu Lal
Master (accused), one of his companion, after
soaking his angaucha (towel) in water,
entered into the bus and cleaned the blood
that had fallen in it.

A passenger, who was running towards
the east and fell into the water about seven
yards east of the road, was too shot by the
miscreants. Two miscreants picked up his
body and took him towards south of the road
towards agriculture. The miscreants fired 1516 shots and all the miscreants went south
through the fields.

Hearing the fire sound, the men working
in the nearby fields came on the road and saw
the incident and recognized the miscreants.
After the miscreants ran away, the said people
came near the bus. The passenger, who had
boarded the bus from Bighapur, told his name
as Lallu Yadav of Mardan Khera, Kishan
Mohan of Usiya, Jagmohan Singh of
Akwabad, Police Station Bighapur. The men,
who had gathered on the spot and who had
seen and recognized the miscreants, told that
the red bushirt miscreant was Vinod Kumar
Chamar; the name of the person wearing
Khakhi paint and bushirt was Babal Lal Dom
of village Usiya and the name of the other
miscreants was Kunni alias Neta, Ram
Chandra Ahir, Madan Pasi, Ramesh Pasi,
Ram Swaroop Ahir, Ganga Sewak Ahir of
Usiya, Lalaunu Pasi of village Bhagrar,
Chandra Kishore Lohar of village Aram
police station Bighapur Unnao. The name of
3-4 miscreants could not tell by them but they
said they would recognize by seeing them.

It has further been stated by the
informant Gaya Prasad Singh that his son
Shiv Balak was wearing half black tericoat
314 INDIAN LAW REPORTS ALLAHABAD SERIES
bushirt, in which big white check was
made, one rainy shoe, one rose colour
aunguacha having its corner green, H.M.T.
Automatic white dial white Kesh and a
watch connected with chain amounting to
Rs.400/-; and Ram Balak was wearing
tericot bellbottom and tericot bushirt, rainy
shoe, Omax automatic of catechu color and
a watch connected with chain amounting to
Rs. 400/-. They were also having license of
rifle and gun and cartridge. The window of
the bus where his sons were sitting got
broken on the shot of miscreants and the
seat where his sons were sitting in the bus,
were having entry of gun shot and blood
stained. On account of the shot of the
miscreants, Dinesh Shukla and 2-3 persons
were also sustained injuries. The name of
the miscreants told by the persons came
there after the incident, has not been known
by him prior to the incident. He, Upendra
Singh, Shivdhar Singh, Ram Balak Yadav,
Ram Balak Pasi, Ram Das Lohar had seen
the miscreants and recognized them and
when they came in front of them, he can
recognized them. He and his family
members can identify the belongings of his
sons when they come in front of them.

(8) Thereafter, informant Gaya Prasad
Singh Kachi got the FIR scribed at
Bighapur Bus Station through Upendra
Singh (P.W.1), who after scribing it read it
over to him and thereafter got his signature
on it and subsequently handed it over to
informant
Gaya
Prasad,
who,
then,
proceeded to Police Station Bighapur and
lodged it.

(9) The evidence of Syed Ibtida
Husain Rizvi (P.W. 8) shows that on
06.10.1980, he was posted as Constable
Clerk at Police Station Bighapur and on the
said date, at 07:15 p.m., informant Gaya
Prasad came and filed his written FIR (Ext.
Ka.1), on the basis of which he prepared
the chik FIR (Ext. Ka.33).

(10) A perusal of the chik FIR shows
that the distance between the place of
incident and Police Station Bighapur was 3
miles. It is significant to mention that a
perusal of the chik FIR also shows that on
its basis, Case Crime No. 144 of 1980,
under Sections 396, 201 I.P.C. was
registered against appellants and 3-4
unknown persons.

(11) The evidence of SI Hari Shanker
Singh (P.W. 7), in short, shows as under :-

In October, 1980, he was posted as
Station Officer at police station Bighapur.
On 06.10.1980, this case was registered in
his presence at the police station. He
commenced
the
investigation
and
proceeded to the place of incident along
with the informant (Gaya Prasad Singh)
and other witnesses from police station,
where Station Officer of police station
Bihar and S.I. R.P. Shukla along with
Constables were met at the place of the
occurrence. He, thereafter, instructed them
to search the dead bodies of the deceased
and also to search the accused persons.
Thereafter, he recorded the statements of
Krishna Mohan and Lalloo etc.

On 07.10.1980, at 02:00 a.m., he again
commenced the investigation and at the
place of occurrence, he recorded the
statement of witness Upendra Singh
(P.W.1) etc. Subsequently, he inspected the
place of occurrence and on the pointing out
of the informant and other witnesses, he
prepared the site plan (Ext. Ka.5). From the
place of incident, he seized two empty
catridges, blood stained earth lying on the
road on the side of the bus and plain earth
near it in two containers under a recovery
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
315
memo. He also seized four pellets, fVdyh
dkjrwl, and a ticket of roadways bus in two
containers under a recovery memo. He also
seized the blood stained earth and plain
earth from the places ''N' and ''Q' shown in
the site map in two separate containers
under a recovery memo. He also seized
blood stained ' in the site plan in two
separate containers under the recovery
memo. Their recovery memo is Ext. Ka. 6
to Ext. Ka. 9.

On the date itself, the dead body of the
deceased Shiv Balak was recovered on
excavating the field of Devideen and he
then prepared a recovery memo (Ext. Ka.
10). Thereafter, the dead body of another
person was recovered from that field on
excavating it but due to darkness, the
Panchayatnama of any corpse could not be
done. The dead body of Shiv Balak was
identified by Upendra Singh (P.W.1). The
accused persons were searched but they
were not found at their home. He and other
people remained on the spot for the
supervision of the dead bodies.

On 08.10.1980, at about 07:00 a.m., he
prepared panchayatnama of the dead body
of the deceased Shiv Balak (Ext. Ka. 12),
photo lash (Ext. Ka. 13), challan lash (Ext.
Ka. 14) and a letter to C.M.O. (Ext. Ka. 15)
and handed over the dead body of the
deceased Shiv Balak in a sealed condition
for post-mortem to Constable Ram Vilash
etc. To identify the dead body of the
unknown person, it was brought from the
field of Devideen to Urmiya Tiraha and got
identified from the people who were
coming and going there. But after not being
identified,
Ramdas
Photographer
was
called from Janta Studio Bighapur and
photo of the dead body of the unknown
person
was
taken
in
his
presence.
Thereafter, photographer had handed over
the positive photograph of the unknown
person to him (Ext. Ka. 14 and Ext. Ka.
15).
Thereafter,
he
prepared
the
panchayatnama of the dead body of the
unknown person (Ext. Ka. 16), photo lash
(Ext. Ka. 17), challan lash (Ext. Ka. 18)
and a letter to C.M.O. (Ext. Ka. 19) and
handed it over to aforesaid Constable Ram
Bilas etc. in a sealed condition.

Thereafter, he came at Bighapur Bus
Stand, where the bus was standing. From
inside the bus, he seized one briefcase (Ext.
Ka.16) and articles found inside of it under
recovery momo (Ext. Ka. 20). The address
was known from the letter found in the
briefcase. He also recovered six pellets and
2 vnn fVdyh from inside the bus, which
was taken in possession and prepared its
recovery memo. He seized the pieces of
mirror of broken window inside the bus in
a container under recovery memo (Ext. Ka.
23). He found blood on the rexine on the
seat of the bus and therefore he cut the
blood stained rexine and seized it under
recovery memo (Ext. Ka. 24). He also
prepared the site plan of the bus (Ext. Ka.
22). The injury report of Dinesh Chandra
was received at the police station, which
was copied and after that he came at police
station, Bihar.

On 09.10.1980, he went to the house
of Shiv Kumar Trivedi of village Babu
Kheda along with recovered items Ext. Ka.
16 wherein his son Rama Shanker met and
he identified the briefcase and clothes
inside it and said it was his brother-in-law.
Smt. Shail Kumari has said that the
briefcase and its article were of his
husband.

On 11.10.1980, he handed over the
custody of the bus to Sri R.P.Singh, Station
Officer, Unnao and got receipt thereof (Ext.
316 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka. 24). On the date itself, another dead
body was found in the field of aforesaid
Devideen on excavating (Ext. Ka. 26) but it
could not be identified at that time,
therefore, informant Gaya Prasad was
called. He prepared the site map of that
place (Ext. Ka.25). He, thereafter, left the
unknown dead body under the supervision
of S.I. R. P. Shukla and came to Unnao and
informed the S.P.

On
12.10.1980,
informant
Gaya
Prasad came there, identified the dead body
and told that it was his son Ram Balak. He,
thereafter, prepared panchayatnama of the
dead body of Ram Balak (Ext. Ka. 27),
photo lash (Ext. Ka. 28), challan lash (Ext.
Ka 29) and a letter to C.M.O. (Ext. Ka. 30).
He thereafter sealed the dead body of Ram
Balak and handed it over to Constable Ram
Pal etc. for post-mortem.

On
14.10.1980,
he
recorded
the
statements of Head Moharrir Ram Asre
Tiwari, Constable Ram Bilas Yadav and Ram
Pal. On 15.10.1980, he came to Unnao and
under the order of the Court, Kunni alias Neta
was taken in police custody for 48 hours and
brought him to police, where he recorded his
statement. On 20.10.1980, at about 03:30
a.m., he arrested Madan Pal Cheddi from the
Tiraha of Unnao-Raibareli road and Maiku
Teli road at the east of village Sikandarpur.
On the search of accused Chhedi, he
recovered a country-made pistol, four live
cartridges and a wrist watch and prepared two
separate recovery memo. On the pointing out
of accused Madan and Cheddi, he recovered
a bag (Ext. Ka. 26), which was buried in the
ground under the water in the field of Ludhai
Pasi, in which one angaucha (towel) was
found (Ext. Ka. 31).

On 23.10.1980, he went to Kanpur and
searched other accused persons but he
could not find them. On 24.10.1980,
photographer Ram Baran had given him
five photograph.

On 24.10.1980, he came to know that
accused Babu Lal Master, Babu Lal, Ringu,
Ramesh, Vinod Kumar and Chandra
Kishore
(accused)
were
surrendered
themselves in the Court of Chief Judicial
Magistrate, Lucknow. On 28.10.1980, he
received information from the Court of
J.M.-8, Unnao that aforesaid accused
persons came to Unnao Jail from the
Lucknow
Jail
on
26.10.1980.
On
31.10.1980,
he
learnt
that
accused
Ramroop, Ram Swaroop and Gram Sewak
surrendered themselves in the Court of
Unnao on 28.10.1980 and accused Babu
Lal Dom surrendered himself in Court on
29.10.1980. On 02.11.1980, the property of
the accused Lalaunoo and Chandra Kumar
was attached and handed it over to Munni
Lal. On 06.11.1980, he came to know that
accused Ram Chandra surrendered himself
on
03.11.1980.
On
10.11.1980,
he
conducted the proceedings for reporting the
identification of aungaucha and watch and
on
12.11.1980,
he
conducted
the
proceedings for reporting the identification
of accused persons. Thereafter, he was
transferred
to
Kotwali
and
further
investigation was done by Jora Singh
(P.W.15).

(12) The evidence of H.C. Ram Asre
(P.W.9) shows that in the month of October,
1980, he was posted as Head Moharrir at
Police Station Bighapur. On 09.10.1980,
Devideen, son of Lalloo, resident of
Ibrahimpur, P.S. Saraini, District Raibareli,
came at the police station. He stated that
Devideen was sent for medical examination
along with Constable Sriram with chithi
majroobi (letter for medical examination) at
Primary Health Centre, Bighapur. On
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
317
20.10.1980, he took accused Madan Lal
and Chhedi Lal from police station
Bighapur at 11:10 a.m. and detained them
at District Jail, Unnao.

In cross-examination, P.W.9 H.C. Ram
Asrey had deposed before the trial Court
that accused Madan and Cheddi were
arrested on 20.10.1980 and at 10:15 a.m.,
they were brought at police station. The
injuries of Devideen, which he had seen,
were mentioned in the G.D.

(13) The evidence of Sri Janardan
Singh (P.W.10) shows that on 29.12.1980
and also on 03.01.1980, he was posted as
Executive Magistrate at District Unnao. On
03.01.1981, he conducted the identification
parade of accused Vinod Kumar, Babulal
son of Dhannu Dom and Ramesh and Ram
Chandra, Ram Swaroop, Ramroop, Ganga
Sewak, Madan Lal, Lalaunu alias Chandra
Kumar and Chandra Kishore at District
Jail, Unnao. A separate parade consisting of
10-10 undertrial prisoners with each
accused was prepared and the witnesses
were
called
one
by
one.
During
identification, they were made to sit in such
a place where they would not have a
conversation with the coming witnesses nor
made any indication. The result of the
identification parade was that the accused
Babu Lal was correctly recognized by the
witness Gaya Prasad Singh; accused
Chandra Kishore was correctly recognized
by the witness Upendra Singh; accused
Vinod Kumar and Madan Lal were
corrected
recognized
by
the
witness
Ramdas. He prepared the proceedings of
identification directly, which is in his
handwriting and signed (Ext. Ka.38)

Similarly,
on
29.12.1980,
he
conducted the identification parade of
blood stained aungaucha (Ext.1) at his
office. The result of such identification was
that witnesses Gaya Prasad Singh, Upendra
Singh, Gajendra Singh and Devendra Singh
had correctly identified the said aungaucha.
He had prepared the proceedings in respect
of the identification, which is in his
handwritten and signature (Ext. 39)

In cross-examination, P.W.10 has
stated that at the time of identification of
goods, they did not get information who is
the accused in this case and who is his
lawyer, hence the accused was not
informed
about
the
identification
proceedings. Witness Gaya Prasad had
made one mistake in identifying the other
accused; witness Upendra Singh also made
nine mistakes in identifying other accused;
witness Dinesh Chandra made ten mistakes
in identifying ten accused. The statements
given by the witness to him were "MdSrh o
dRy djrs oDr ekSds ij ns[kk Fkk". Witness
Upendra was also given the same statement
to him.

(14) The evidence of Constable Shiv
Charan Mishra (P.W.11) shows that on
29.12.1980, he was posted as Court
Moharrir in the Court of Special Executive
Magistrate. On that date, he brought out a
sealed bundle good from Sadar Malkhana,
Unnao to the Court and after completion of
identification proceedings, he brought the
sealed bundle good from the Court and
lodged it to Sadar Malkhana. The goods
belonged to this case.

(15) The evidence of Head Constable
Annirudh Prasad (P.W.13) shows that on
21.10.1980, he was posted as Moharrir at
Sadar Malkhana. On the said date, two
sealed bundle of this case was deposited by
Constable CP 31 Jagdish Prasad in Sadar
Malkhana.
He
also
stated
that
on
29.12.1980, one sealed and stamped
318 INDIAN LAW REPORTS ALLAHABAD SERIES
bundle, in which bag and angaucha were
there, was brought by Constable Shiv
Charan Mishra (P.W.11) to the Court for
identification and after identification of the
aforesaid goods, Constable Shiv Charan
Mishra (P.W.11) deposited it in a sealed
condition in Sadar Malkhana.

(16) The evidence of Ram Baran
Verma (P.W.14) shows that in the year
1977,
he
was
doing
the
work
of
photography at Bighapur, where he has a
studio. On 08.10.1980, he took the negative
of Ext. 14, 15. 17, 18 and 19 and he also
brought it. He further stated that the same
has been filed by him in the Court, in
which Ext. 27, 28, 29, 30 and 31 were
mentioned. He further stated that for this
negative,
he
prepared
the
positive
photograph print (Ext. 14, 15, 17, 18 and
19) and gave it to the Inspector.

In cross-examination, P.W.14 has
stated that the bazar (market) of Bighapur
is closing once in a week i.e. on Monday.
On that day when he prepared the photo,
bazar (market) was also closing on
Monday. He clicked the photo of the dead
body at the tiraha of Usiya and also clicked
the photo of the bus at Bus Stand Bighapur.

(17) The evidence of P.W.15 Jora
Singh shows that on 29.11.1980, he was
posted as Station Officer at Police Station
Bighapur. He took the investigation of the
case
himself
after
transfer
of
the
Investigating Officer Sri Hari Shanker
(P.W.7.
After
completion
of
the
investigation,
the
appellants
and
the
acquitted accused were charge-sheeted vide
charge-sheet dated 11.01.1981 (Ext. Ka.
43).

In cross-examination, P.W.15 has
stated before the trial Court that he did not
send the blood stained items to Chemical
Examiner for examination. On asking the
reasons thereof, he stated that he was not
paying attention.

(18) Going backward, the injuries of
Dinesh Chandra Shukla and Devi Deen
were
examined
on
07.10.1980
and
09.10.1980, at 1:30 p.m. and 03:30 p.m. at
District Hospital, Unnao and Primary
Health Centre, Bighapur by Dr. Vrij
Narayan Saxena (P.W.3) and Dr. Keshav
Gupta (P.W.12), respectively, who found
injuries on their person as enumerated
hereinafter :-

"Injuries of Dinesh Chandra Shukla

1. Incised wound 2 cm x 0.25 cm x .15
cm on the 1st past aspect of left forearm 5
cm above the medial epicondyle tailing
present on the above side, margins clear
cut.

2. Abrasion 2 cm x 2 cm on the lateral
aspect of Rt. knee joint.

Injuries of Devi Deen

1. Rounded firearm wound 8 cm
below Lt. tibia bone. 1 cm in diameter
muscle deep (probed). Feeling of Hard
Mass like a pallet 3 cm medial to wound
area all around the wound in swollen and
tender.

2. Rounded fire arm wound 11 cm
down and out from Lt. tibial tubercli
measuring 1 cm in diameter. Muscle deep
(probed). Blackening is present at the
mouth and wound while pressing the
wound slight pus and blood has come out."

(19) It is significant to mention here
that Dr. Vrij Narayan Saxena (P.W.3), who
examined the injured Dinesh Chandra
Shukla, has deposed before the trial Court
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
319
that on 07.10.1980, he was posted as
Emergency
Medical
Officer,
District
Hospital, Unnao and on the said date, he
conducted the medical examination of
injured
Dinesh
Chandra
Shukla.
On
examination of injured Dinesh Chandra
Shukla, he found two injuries on his
person. As per his opinion, injuries were
one day old; injury no.1 could be
attributable by sharp edged weapon and
injury no.2 by scrubbing; these injuries
could be attributable on 06.10.1980 at
05:30 p.m.; and the injury of knee could be
caused by falling rough paved road.

In cross-examination, P.W.3- Dr. Vrij
Narayan Saxena has deposed that none of
the these two injuries could be caused by
fire arm; and both the injuries are
superficial and could be self-inflicted.

(20) As stated hereinabove, the
injuries of Devi Deen was examined by Dr.
Keshav Gupta (P.W.12), who deposed
before the trial Court that on 09.10.1980,
he was posted as Medical Officer in
Primary Health Centre, Bighapur. On the
said date, at 03:30 p.m., he examined the
injured Devideen, who was brought by
Constable Sri Ram of Bighapur Police
Station. On the examination of injured Devi
Deen, he found two injuries on his person.
As per his opinion, injuries could be
attributable by any fire arm weapon;
duration of the injuries at the time of
examination was about three days old; he
advised x-ray for both the injuries; he
prepared the injury report (Ext. Ka. 42);
and all the injuries on his person could be
attributable on 06.10.1980 at 05:30 p.m.

In cross-examination, he had deposed
before the trial Court that on 06.10.1980,
he went to Bighapur. The hospital of
Bighapur is at a distance of 2 kms from the
police station.

(21) The autopsies on the dead bodies
of deceased persons, namely, (1) unknown
person, (2) Shiv Balak and (3) Ram Balak,
were conducted on 09.10.1980, 08.10.1980
and 13.10.1980 at 01:30 p.m., 04.00 p.m.
and 1:30 p.m., by Dr. Adarsh Sanghi (P.W.
4), Dr. J.N. Bajpai (P.W.5) and Dr. R.R.
Aacharya (P.W.16), who found on their
person ante-mortem injuries, enumerated
hereinafter :-

"Ante-mortem injuries of unknown
person

1. Gun shot wound of entry circular in
shape 11/2" x 11/2" x chest cavity deep. On
the upper part of the chest 11/2" below left
sterno clavicular joint margins inverted and
contused. Blackening and tattoing not
present.

2. Incised wound 2" x 1/2" x bone
deep on the right cheek, 1/2" away from
right alae of nose. The under lying
maxillary bone is cut.

3. Incised wound 3" x 1/2" x bone
deep over right cheek 1/2" interior to injury
no.2.

4. Circular lacerated wound 1/2" x
1/3" x muscle deep just above right elbow
joint.

5. Lacerated wound 1/2" x 1/3" x
muscle deep on right fore-arm back 2"
below elbow joint.

6. Gun shot wound of entry 11/2" x
11/4" x muscle deep on the anterior part of
left buttock 3" is below iliac crest. Margins
inverted and contused. No blackening or
tattoing.

7. Four gun shot wounds 1/2" x 1/3"
each into muscle deep on the anterior part
of the right buttock in an area of 31/2" x 2".
320 INDIAN LAW REPORTS ALLAHABAD SERIES
Margins
inverted
and
contused.
No
blackening or tattoing. "

"Ante-mortem
injuries
of
Shiv
Balak, son of Gaya Prasad Singh
(informant)

1. Multiple incised wounds in an area
of 6" x 6" x bone deep carsury lev on left
side of face, left side of nose, left side of
cheek and left side of chin. Margins
(illigble) clear cut.

2. Gun shot wounds of entry 1" x 1" x
chest cavity deep on the right side of chest
lower parts. 2" above part of stomach.

3. 4 Gun shot wounds of entry 1/2" x
1/3" x chest cavity deep on the right side of
the chest in an area of 3" x 11/2 ". 4" outer
of the injury no.2 and 11/2" from the right
nipple.

4. Gun shot wounds of entry 1" x 1"
into abdominal cavity deep on the left side
abdomen upper part. 9th below left arm pit
7th outer to unsclicus."

"Ante-mortem
injuries
of
Ram
Balak, son of Gaya Prasad Singh
(informant)

1. Incised wound 12.0 cm x 4.0 cm x
bone deep on (L) face from (L) ear to lower
jaw. Maxillary bones (L) mandible bone of
(L) skull cut.

2. Incised wound on (L) neck 3.0 x 1.0
cm x bone deep middle.

3. Incised injury 8.0 x 0.5 cm x muscle
deep on mid, upper abdomen.

4. Firearm wound of entry on (L)
shoulder region scapular region, oblique
2.0 x 1.5 cm direction from (L) to (R).
Scapular bone (L), back of IV & V rib (L)
broken found at (R) lung."

The cause of death spelt out in the
autopsy reports of the deceased persons
was shock and haemorrhage as a result of
ante-mortem injuries which they had
suffered.

(22) It is signification to mention here
that in their depositions in the trial Court,
Dr. Adarsh Sanghai (P.W.4), Dr. J.N. Bajpai
(P.W.5) and Dr. R.R. Aacharya (P.W.16)
have reiterated the said cause of death of
the deceased (1) unknown person, (2) Shiv
Balak and (3) Ram Balak, respectively.

(23) P.W.4-Adarsh Sanghai has
deposed before the trial Court that on
09.10.1980, he was posted for post-mortem
duty and on that date, at about 01:30 p.m.,
he conducted the post-mortem of the dead
body of an unknown person, which was
sent by S.O. Bighapur and brought it by
C.P.282 Ram Bilash Yadav in a sealed
condition and identified it by him. On
examination, he initially found that the age
of the deceased was about 30 years; it had
been almost three days old since he died;
the body physique was average; the
stiffness of the body after death had ended;
the decomposition of the body had begun;
the body was covered with mud; the insects
were crawling on the body; and blisters
were present on the whole body.

He further stated that on internal
examination, it was found that the brain
was decomposed; in the bone of pleura, one
bending, two pellete, about half litre blood
and fluid were found; both right and left
lungs were torn; heart was torn and empty;
the upper part of the sternum bone was
broken; about 50 grams of semi-digested
food was present in the stomach; small
intestine was empty; and faces were present
in the large intestine. He has further
deposed that he found five big pellet and
one piece of bending from the body of the
deceased, which was sealed and sent to S.P.
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
321
Unnao.