# Banwari & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 59
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Criminal Appeal No. 298 of 1990
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banwari-ors-v-state-of-u-p-51922
- **Pages:** 22

## Headnote

Criminal Law-Indian Penal Code-1860Sections-147, 149 & 302 - Criminal appeal
against judgment and order of conviction of life
imprisonment- Trial Court has discounted the
various arguments relating to delayed F.I.R.,
discrepancies in the St.ments of the alleged two
eye witnesses, discrepancy in the recording of
the inquest report and the F.I.R., the discrepancy
in Medical and ocular evidence, the unnatural
behaviour of the witnesses, who are close
relatives of the deceased.

No blood was found in the grove of where the
dead body was lying, or at the place on the road
where the deceased was hit by gunshot fired by
accused- Reasonable suspicion about exact place
of occurrence of the incident-Presence of P.W.-1
and P.W.-2, at the place of occurrence to be
doubtful and their testimonies to be unreliableFalse implication of cannot be ruled out because
of a subsequently developed story of existence of
prior enmity between the parties- It is quite
unnatural that a person whose paternal cousin
was attacked in front of his own eyes would be
so meticulous and farsighted as to take a file
cover along with him to keep the plain piece of
paper so that it is not creased at all while
submitting his report at the Police Station-ResultImpugned judgment set aside.

Appeal allowed. (E-15)

List of Cases referred-;

## Text

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5 All. Banwari & Ors. Vs. State of U.P.
59
has never misused the liberty of bail or has
ever jumped the bail.

24. Under such circumstances, we
are of the view that the minimum possible
sentence be imposed upon him. We,
therefore, consider it appropriate to fine
him for Rs. 20,000/- which shall be
equally distributed between the surviving
heirs and legal representatives of Shyam
Singh.

25. Since the appellants no. 1 and 3
had died during the pendency of the appeal
vis-a-vis them stood abated.

26. For the hard work which has been
put in by the learned Amicus Curiae Ms.
Aarushi Khare, we quantify her fee as Rs.
30,000/- which shall be payable to her by
the Legal Services Authority forthwith.
The payment be got done under the
supervision of the Registrar General of
this court.
----------
(2024) 5 ILRA 59
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.05.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 298 of 1990

Banwari & Ors. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
R. Murtaza, Aishwarya Mishra, Alok Singh,
Altaf Mansoor, Ashok Kumar Singh, K
Jaiswal, Rishad Murtaza, Syed Ali Jafar Rizvi

Counsel for the Respondents:
Criminal Law-Indian Penal Code-1860Sections-147, 149 & 302 - Criminal appeal
against judgment and order of conviction of life
imprisonment- Trial Court has discounted the
various arguments relating to delayed F.I.R.,
discrepancies in the St.ments of the alleged two
eye witnesses, discrepancy in the recording of
the inquest report and the F.I.R., the discrepancy
in Medical and ocular evidence, the unnatural
behaviour of the witnesses, who are close
relatives of the deceased.

No blood was found in the grove of where the
dead body was lying, or at the place on the road
where the deceased was hit by gunshot fired by
accused- Reasonable suspicion about exact place
of occurrence of the incident-Presence of P.W.-1
and P.W.-2, at the place of occurrence to be
doubtful and their testimonies to be unreliableFalse implication of cannot be ruled out because
of a subsequently developed story of existence of
prior enmity between the parties- It is quite
unnatural that a person whose paternal cousin
was attacked in front of his own eyes would be
so meticulous and farsighted as to take a file
cover along with him to keep the plain piece of
paper so that it is not creased at all while
submitting his report at the Police Station-ResultImpugned judgment set aside.

Appeal allowed. (E-15)

List of Cases referred-;

1. Tulia Kali Vs St. of T N, (1972) 3 SCC 393

2. Dahari & ors.Vs St. of U P (2012) 10 SCC 256

3. Periyasamy Vs St., rep. by the Inspector of
Police, 2024 SCC OnLine SC 314

4. Darshan Singh Vs St. of Pun. (2024) 3 SCC
164

5. Md Jabbar Ali & ors. Vs St. of Assam 2022
SCC OnLine SC 1440

6. Mahendra Singh & ors. Vs St. of M. P. (2022)
7 SCC 157

7. Khema alias Khem Chandra & ors. Vs St. of
U.P., (2023) 10 SCC 451
60 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Ramashish Rai Vs Jagdish Singh, 2005 (10)
SCC 498

9. Vadivelu Thevar Vs St. of Madras, 1957 SCR
981

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

1. This Criminal Appeal arises out of
judgement and order dated 11.05.1990
passed by the IIIrd Additional Sessions
Judge, Sitapur in Sessions Trial No.663 of
1987 whereby the Appellant no.3 Mahesh
has been convicted under Sections 302 and
147 read with Section 149 of the I.P.C. and
sentenced to undergo life imprisonment, the
appellant no.4-Jagdish along with appellant
no.1- Banwari, appellant no.2-Moti Lal and
appellant no.5- Babu Ram have been
convicted under Section 148 read with
Section 149 and Section 302 I.P.C. with life
imprisonment.

2. Only two of the original five
appellants i.e. appellant nos.2 and 4, namely,
Moti Lal and Jagdish are alive as the
appellant nos.1, 3 & 5, namely, Banwari,
Mahesh, and Babu Ram died during the
pendency of the Appeal and the Appeal in
respect of them has already been abated.

3. The case of the prosecution as
mentioned in the prosecution story written
report Exhibit Ka-1 and the F.I.R. Exhibit
Ka-2 of the paper-book is that on
27.04.1987, the informant Damodar Prasad,
along with his uncle Vishwanath and cousin
brother, Shiv Kumar were returning home
after making a query from the Sawmill
regarding cutting of logs of wood. As soon
as all three reached Barhtara Taal around
6:30 P.M., the accused Jagdish son of Babu
Ram along with Banwari, son of Paragdeen,
Moti Lal son of Gokarna and Babu Ram son
of Banwari and Mahesh son of Gokaran
armed with deadly weapons appeared from
the sugarcane field of Raghubar and on the
exhortation of Jagdish, all of them attacked
Shiv Kumar. Jagdish fired from his gun,
Babu Ram attacked him on his neck with a
knife and then all of them dragged Shiv
Kumar to the sugarcane field of Raghubar.
The informant Damodar Prasad along with
his uncle Visvanath tried to shout for help
but no one came and Banwari, Moti Lal and
Mahesh tried to attack the informant and his
uncle and also threatened them for life in
case they reported the matter to the Police.
As a result of such threat, the informant
Damodar Prasad, along with his uncle ran to
their home in the village Benipur and did not
report the matter to the Police Station at
night out of fear. They returned in the
morning to search for Shiv Kumar and they
found his body in a grove south of Barhtara
Taal. The informant wrote out a written
report (Exhibit Ka-1) and had gone to the
Police Station to report the matter after
leaving members of his family Suraj Prasad
and Bhagwan Das and others near the dead
body.

4. On the basis of said written report
by Damodar Prasad, son of Suraj Prasad,
dated 28.04.1987, F.I.R., Exhibit Ka-2 was
registered as Case Crime No. 80 of 1987, on
the same day at 06:25 A.M. against the
accused for the offence under Sections
147/148/149 and 302 I.P.C. The Station
House Officer Phool Singh Bhadoria rushed
to the place of occurrence alongwith other
policemen. On reaching the spot, he
prepared the inquest report of the dead body
and sealed it and sent it for post-mortem
examination
after
completing
other
formalities and inspected the place of
occurrence and prepared a site plan with
index (Exhibit C-6). He then took the
5 All. Banwari & Ors. Vs. State of U.P.
61
statements of witnesses and prepared an
inquest report (Exhibit Ka-8). On receipt of
post-mortem report and completion of
investigation, charge sheet was prepared
against the accused persons and filed in
Court.

5. Separate charges were framed by
the IInd Additional Sessions Judge against
all the accused on 21.01.1988. The
prosecution
examined
six
witnesses,
Damodar Prasad as P.W.-1, Vishwanath as
P.W.-2, Head Constable Satendra Nath
Trivedi as P.W.-3, Constable Umakant
Yadav as P.W.-4, Phool Singh Bhadoria as
P.W.-5 and Dr. Gopal Swaroop, who
conducted the post-mortem, as P.W.-6.

6. The statements of the accused
under Section 313 of the Cr.P.C. were
thereafter recorded. They denied the
allegations and stated that they had been
falsely implicated due to family dispute and
long running enmity. The accused gave
documentary and oral evidence. In the
documents filed by them was a certified
copy of the statement of Banwari dated
02.11.1977, which was given in the court of
Vith Additional District and Sessions Judge,
Sitapur in Sessions Trial No. 359 of 1976
titled as State Vs Ramavtar and others,
under Sections 147, 148, 307/149, 324, 323
of the I.P.C. This case was decided on
11.03.1978. The statement of Banwari was
given in the said Sessions Trial against
Vishwanath,
Ramavtar,
Lalta
Prasad,
Madhuram and Brij Lal, who were the
accused and were being prosecuted for
causing injuries to one Ganeshi. Copy of the
judgement in Sessions Trial No. 188 of 1986
: State versus Jagdish son of Baburam;
decided on 14.08.1984 by the Sessions
Judge Sitapur was also filed, in which,
Jagdish was tried for offence punishable
under Section 302 of the I.P.C. for the
murder of his uncle Jagadamba on
28.12.1984. Jagadamba was the real brother
of Babu Ram. The accused Jagdish had been
acquitted.

7. The accused also examined Lalta
Prasad as D.W.-1, who was the owner of the
sawmill and he stated that Vishwanath had
not come to his sawmill alongwith his son
Shiv Kumar at any time in the recent past for
cutting of wood logs.

8. The Trial Court considering the
evidence on record had convicted the
accused appellants and sentenced them as
aforesaid.

9. It has been argued by the learned
counsel for the surviving appellants that the
appellants have been deliberately and falsely
implicated because they belong to a
collateral line of the same family. Banwari
and Gokaran are real brothers. Babu Ram
is the son of Banwari and Jagdish is the
son of Babu Ram, the grandfather, son and
grandson have all been implicated.
Similarly, Motilal and Mahesh are the
sons of Gokaran. Thus, both sons of
Gokaran, son of Banwari have also been
implicated. One Jagdamba was the real
brother of Babu Ram and uncle of Jagdish.
Jagdish
was
earlier
implicated
in
murdering his uncle Jagdamba Prasad in
1984, but was acquitted.

10. It has been argued that the
motive for attacking Shiv Kumar as shown
by the prosecution, was that around two
months ago from the date of the murder,
Jagdish had threatened Shiv Kumar of dire
consequences over taking water from the
public tap, where Jagdish had gone to take a
bath and had an altercation with Shiv
Kumar. It has been argued that the accused/
appellant Jagdish had his own well in front
62 INDIAN LAW REPORTS ALLAHABAD SERIES
of his house, and there was no question of
Jagdish going to the public tap to take a bath.

11. Learned counsel for the
surviving appellants has submitted that the
finding of guilt recorded by the learned trial
court against the surviving appellants is
against the weight of evidence and,
therefore, the same is unsustainable. He has
taken us through the entire testimonies of
prosecution witnesses recorded before the
learned trial court and on the basis thereof,
he has submitted that a delayed first
information report was lodged in this case
after consultation in order to falsely
implicate the surviving appellants. The
delay in lodging the first information report
has not been sufficiently explained by the
prosecution.

12. He has also submitted that the
learned trial court has failed to appreciate
the
fact
that
the
contradictions/inconsistencies appearing in
the testimonies of prosecution witnesses of
fact are of such nature, which materially
affect the core of the prosecution story and
they being material in nature could not have
been ignored by the learned trial court.

13. His further submission is that by
not mentioning in the written report when
the deceased and prosecution witnesses
went to the sawmill for getting the wood
sawed, the prosecution has tried to conceal
the real genesis and true prosecution story
for false implication of the surviving
appellants.

14. His further submission is that
though the first information report is not an
encyclopedia, the failure of the first
informant to mention the fact of prior enmity
in the written report materially affects the
credibility of the content of the written
report, Ext. Ka-1.

15. He has also submitted that only
two witnesses of fact, namely, PW-1,
Damodar Prasad, and PW-2, Vishwanath,
have been examined by the prosecution in
support of its case. They are admittedly
related to the deceased, being cousin brother
and father, respectively. As they have
introduced a new story of pre-existing
enmity between the parties, the aforesaid
witnesses of fact also become interested
witnesses. Therefore, their testimonies,
before they could be relied upon by the
learned trial court, ought to have been
corroborated by the testimony of an
independent witness. In the absence of
corroboration of the testimonies of such
witnesses of fact, the finding of guilt
recorded by the learned trial court against
the surviving appellants is patently illegal
and unsustainable.

16.

He
has
concluded
his
submission by stating that the prosecution
witnesses, namely, PW-1, Damodar Prasad
and PW-2, Vishwanath, allegedly witnessed
this incident. Their conduct of not making
any efforts to save the deceased, who was
closely related to them, is quite unnatural.
Furthermore, they did not attempt to return
to the place of incident to save and ascertain
the whereabouts of the deceased in the
evening. They did not attempt to contact the
village chaukidar nor did they contact other
residents of their village. They went to the
place of occurrence on the next morning
only, i.e., on 28.04.1987. Such unnatural
conduct gives rise to the only conclusion
that neither the witnesses of fact, namely,
PW-1,
Damodar
Prasad
and
PW-2,
Vishwanath had seen the incident nor did
they know about such incident till the
5 All. Banwari & Ors. Vs. State of U.P.
63
morning of 28.04.1987 when the dead body
of the deceased was recovered.

17. In support of his aforesaid
submissions, learned counsel for the
surviving appellants has placed reliance on
the judgments of Hon'ble Supreme Court
rendered in the cases of Vadivelu Thevar
vs. State of Madras reported in AIR 1957
Supreme Court 614, Khem Chandra @
Khema and others vs. State of U.P.
reported
in
(2023)
10
SCC
451,
Mohammed Jabbar Ali and others vs.
State of Assam reported in 2022 SCC
Online Supreme Court 1440 and Maruti
Rama Naik vs. State of Maharashtra
reported in 2003 (10) SCC 670.

18. Sri Umesh Chandra Verma,
learned A.G.A. has argued that P.W.-1 is a
wholly reliable witness. He was young and
educated and he remembered everything
clearly. He has made a very fair admission
at the time of cross-examination regarding
long running enmity between the members
of the same family. He also admitted that the
appellants and the deceased had a common
ancestor. He has also argued that the
postmortem report corroborated the injuries
that have been mentioned in the F.I.R. and
the deceased was beaten up brutally and
body dragged away. It has also been noted
that insofar as the occurrence of the incident
is concerned, P.W.-1 and P.W.-2 have both
given a concerted clear and reliable version.
There may be certain discrepancies in the
statement of P.W.-2 as he is old and he was
the father of the victim and, thus,
emotionally disturbed. However, there were
no such discrepancies, which were so
material as to affect the veracity of the entire
statement made by P.W.-2. It has also been
stated that P.W.-1 and P.W.-2 had enough
time to fill up the lacunae in the story set up
by them in case they had cooked up the
story, as the F.I.R., according to the
appellants, was lodged with a delay of 12
hours. They had enough time to have
thought it over and over again and then got
the F.I.R. lodged. It has also been argued
that under Section 134 of the Evidence Act,
the quality of evidence given by a witness
has to be looked into and no particular
number of witnesses are required to prove a
fact. It has also been argued that medical
evidence has corroborated the injuries found
on the body of the deceased with statement
made by the eye-witnesses and it cannot be
said that P.W.-1 and P.W.-2 had fabricated a
false case only because of old enmity
running between the parties. With regard to
the motive, which is allegedly lacking in the
murder of the deceased, it has been argued
that the prosecution is not required to prove
an impossibility and it cannot possibly enter
the minds of the accused to know the exact
reason for the attack on the deceased. It was
not necessary for them to have dragged the
deceased from one sugarcane field to
another grove, which was 250 paces away
and only because the body was found at such
a distance from the original place of attack,
it cannot be said that the deceased was not
attacked near the sugarcane field of
Raghubar. It is possible that they had
dragged the body during the course of
brutally beating up Shiv Kumar.

19. Sri Rishad Murtaza, in
rejoinder, has submitted that the prosecution
must prove its case beyond reasonable doubt
and in this case, the appellants have been
convicted
without
looking
into
the
reasonable story put up by the defence
counsel. The reasonable doubt created in the
minds of the Court cannot be said to be
without reason. Suspicion howsoever grave
cannot take the place of proof. It has been
reiterated that it was a blind murder and the
entire story that has been cooked up by the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution is only because of old running
enmity between the accused and the
deceased's family as it has been admitted by
both prosecution witnesses that they trace
their pedigree to a common ancestor. Three
generations of all male relatives in the
collateral line have been implicated falsely.
Jagdish had a well of his own, where he
could have taken a bath and it is not
explained by the prosecution witnesses as to
why he would go to a public tap some 50
meters away from his house to take a bath,
where he would have had an altercation with
the deceased, which was also around two
months ago and then waited for such a long
time to murder him in revenge.

20. We have also gone through the
judgement of the Trial Court, wherein it has
discounted the various arguments relating to
delayed
F.I.R.,
discrepancies
in
the
statements of the alleged two eye witnesses,
discrepancy in the recording of the inquest
report and the F.I.R., the discrepancy in
Medical and ocular evidence, the unnatural
behaviour of the witnesses, who are close
relatives of the deceased, and has observed
that it was natural for the witnesses/relatives
of the deceased, not to have pursued the
assailants in the evening of 27.04.1987,
when the deceased was attacked in front of
their eyes as the assailants were armed and
they had threatened them.

21. The Trial Court has observed that
the Police Station was 6 km away and night
having fallen, it was not possible for the
prosecution witnesses to have shown courage
to search out the dead body of Shiv Kumar on
the same night. They had no arms with them.
It was natural for them to remain silent in the
night. The Trial Court has, therefore, rejected
the argument regarding F.I.R. being delayed
and the explanation for the same not being
given in a satisfactory manner.
22. The Trial Court has rejected the
argument regarding F.I.R. appearing to have
been
lodged
after
deliberation
and
consultation as in the inquest report in the
opinion of the Investigating Officer, it is
mentioned that a murder was committed by
some miscreants. The Trial Court has
observed that the Investigating Officer had
admitted
his
mistake
that
the
word
"Badmashon" should not have been written.

23. The Trial Court has further
observed that non-mention of motive in the
written report, Exhibit Ka-1 shows that the
prosecution witnesses had no idea in their
mind that the accused persons and specially
Jagdish would commit murder of Shiv Kumar
simply because of an incident of a quarrel over
taking of water from a public hand-pump.

24. The Trial Court disbelieved the
argument regarding false implication of
Banwari only because Banwari had given
evidence against Vishwanath P.W.-2 in another
case. The Court observed that Banwari had given
evidence against Vishwanath in favour of Ganesh
Paasi about ten years ago and there was a cross
case also. It was difficult to believe that
Vishwanath had been waiting to implicate the
accused Jagdish and Banwari for ten years. If he
had a grudge against Banwari, he would not have
implicated falsely the other accused persons.

25. The Trial Court has also
discounted
the
contradictions
in
the
evidence of Damodar Prasad and his uncle
Viswanath and found that there was no
material contradictions in the evidence of
these two witnesses led by the prosecution.
Both the witnesses had supported the story
of the prosecution with regard to material
facts on record.

26. The Trial Court has explained
the non-mentioning of the details of taking
5 All. Banwari & Ors. Vs. State of U.P.
65
the wood to the sawmill at Hargaon and then
going again to collect the same by saying
that Damodar Prasad had stated in his
evidence that he had not given the details in
the morning to avoid a lengthy written
report.

27. The Trial Court has also
discounted the discrepancies in ocular and
medical evidence as it has assumed that
once Shiv Kumar was fired upon and
attacked with a knife and dragged into the
field of Raghubar, Damodar Prasad and
Vishwanath had run away and, therefore,
did not see the other injuries inflicted upon
Shiv Kumar.

28. The Trial Court has disbelieved
the statement of Lalta Prasad D.W.-1 that
Vishwanath and Damodar had not come to
the sawmill to get their Wood logs cut either
on 27.04.1987 or at any time before that day
on the ground that Lalta Prasad had admitted
that his son and his uncle also sat at the
sawmill in his absence.

The Trial Court observed that
Lalta Prasad appeared to be an interested
person and gave evidence to defend the
accused because of his affinity with them.
He also knew Vishwanath very well, that is
why he had stated that Vishwanath had told
him on the very next day about the murder
of his son, Shiv Kumar. The Trial Court,
therefore, did not place any reliance on
evidence of the Defence Witness Lalta
Prasad.

29. We have gone through the
evidence of the P.W.-1 and 2, the alleged
eye witness and that of the S.H.O. Phool
Singh Bhadauria, the Investigating Officer,
and Dr. Gopal Swaroop who had conducted
the post-mortem.

30. Dr. Gopal Swaroop, who had
conducted the post-mortem on 29.04.1987
while being posted at District Hospital
Sitapur, had stated that the deceased was
around 25 years of age and his death had
taken place around two days ago. At the time
of post-mortem, green discolouration was
present on the dead body. The left side
parietal, occipital and temporal bones of the
skull were fractured into pieces, and the
glands were lacerated. Left pelvic girdle was
also fractured. Both the intestines were
lacerated.
The
following
antemortem
injuries were found on the body :-

1. Lacerated wound 3.5 cm x 1.5
cm bone deep over the chin.

2. Multiple abraded contusions in
an area of 17 cm x 17 cm side to side and
up and down from chin to forehead, all
over the face.

3. Lacerated wound 4. 5 cm x 1.5
cm bone deep over the back of the skull 9
cm above the transverse process of the
seventh cervical vertebra

4. Lacerated wound 2 cm x 0.5 cm
muscle deep over the back of the skull 1 cm
away and laterally to injury number three.

5. Incised wound 4 cm x 1 cm
bone deep over the back, on the back 3 cm
above the transverse process of the seventh
cervical vertebrae.

6. Multiple firearm wounds of
entry in an area of 5 cm x 5 cm cavity deep
margins
inverted.
Blackening
present
around the margins. Each measuring 0.5 cm
x 0.5 cm, just above the upper border of the
left pelvic bone.

7. Multiple abrasions in an area of
27 cm x 24 cm (up down and sign to side)
over the front of the chest and upper part of
the abdomen, 8 cm below the suprasternal
notch above and 7 cm above the umbilical
lower margins.
66 INDIAN LAW REPORTS ALLAHABAD SERIES

In the opinion of the Doctor, the
ante-mortem injuries were caused on
27.04.1987 at about 06:30 P.M. Injury no. 6
was caused by some firearm. Injury no.5
was caused by some sharp cutting weapon
like knife. Injury no.1, 3 and 4 by some blunt
object like lathi. Injury nos.2 and 7 were
caused by friction. The deceased had taken
his food about four hours prior to his death.
His death was caused due to ante-mortem
injuries.

31. We have gone through the
evidence of P.W.-1 and find that his written
report at the P.S. Hargaon and his statement
recorded under Section 161 Cr.P.C. did not
contain any details. During evidence of
P.W.-1, he had stated that Jagdish was a
criminal and he was the son of Baburam
who in turn was the son of Banwari. Jagdish
had killed his paternal uncle Jagdamba
Prasad in 1984 but he was acquitted during
trial. Before the murder, around one month
ago Shiv Kumar had an argument with
Jagdish on a public tap at around 11:00 AM
and he had witnessed the said incident. Shiv
Kumar was filling his bucket of water from
the public tap when Jagdish came and told
him that he wanted to take a bath and that
Shiv Kumar should fill his bucket after
Jagdish had taken his bath. An argument
took place and Jagdish had threatened to
seek revenge from Shiv Kumar. P.W.-1
stated that he alongwith his paternal uncle
Vishwanath and his paternal cousin Shiv
Kumar had gone to Hargaon to the sawmill
of Lalta Prasad to get the logs of wood cut at
around 09:00 A.M. and they returned home
because some other person's wood was
being cut at the time. They returned to the
sawmill at around 03:00 P.M., but at that
time, there was no electricity and the wood
logs could not be cut. They waited for
around one hour and then they started from
the sawmill for their home at around 06:00
P.M. and at around 06:30 P.M., when they
reached near Barhatara talab, the accused
came out of the sugarcane field of Raghubar
and attacked Shiv Kumar on the exhortation
of Jagdish.

32. P.W.-1 also admitted that he
had written a report and signed the same
before submitting it at Police Station
Hargaon at around 06:00 A.M. The SubInspector had taken the statement of
Damodar at the Police Station. In his
evidence before the trial court, Damodar
gave in detail his pedigree and his relation to
the accused appellants and admitted that
they had a common ancestor, but all of them
had been living in separate houses for a long
time.

P.W.1 also stated that Shiv Kumar
used to work at a Halwai shop, but he had
left the same two months before he was
murdered. He used to go early in the morning
to Hargaon on a cycle to Bedhab Halwai shop
and returned in the evening. Damodar Prasad
admitted that the public tap was around 20 to
25 metres South of his house. His house was
around 150 to 200 paces away from Jagdish's
house. Jagdish had his own well around 10 to
15 paces in front of his house. The well had a
concrete slab to facilitate washing and taking
a bath adjacent to it.

33. P.W.1 also admitted that he had
not stated in the F.I.R. about the incident of
quarrel between Jagdish and Shiv Kumar at
the public tap that occurred around one
month ago before the murder because he
was too emotionally disturbed at the time of
writing the report, which he submitted at the
Police Station at around 06:00 A.M., on
28.04.1987.

34. P.W.1 was put a specific query
as to since when he was emotionally
5 All. Banwari & Ors. Vs. State of U.P.
67
disturbed and he gave a reply that from the
very time of the incident around sunset the
previous evening. By the time they had
reached home night had fallen and they had
told their family members and other
villagers about the incident. The village
Chowkidar lived in another village Vijaypur
which was 2 to 3 furlongs from their village
and there was a big pond in between. If one
wanted to avoid the pond, the distance
between Vijaipur and their village would be
around five furlongs and the road to Vijaipur
was running in front of the house of Banwari
and Banwari had threatened them with dire
consequences. (One furlong is about 200
meters and even if longer route would have
been taken by the P.W.1, he would not have
had to cover more than 1 kilometer to inform
the village Chowkidar).

35. This Court has noticed that
P.W.1 had said that the villagers as well as
their family members did not report the
matter to the Police Station at night because
of fear of the accused attacking them also.
On the one hand, P.W.1 said that he had
written in the report that he had not reported
the incident at night out of fear and that he
did not inform the Chowkidar on the next
morning because he was flustered and
disturbed about the incident that had
occurred the previous night. They started
looking for Shiv Kumar much before sunrise
the next day along with 10 to 15 people from
the village. On the other hand, P.W.1 also
said he had no knowledge that the village
chowkidar had to be informed, therefore, he,
did not think of informing the village
Chowkidar. When they had gone to search
for Shiv Kumar, they were carrying Lathis
and Kanta with them. When they found the
body of Shiv Kumar, sunrise had not taken
place, but because of dawn, they could see
clearly though they did not take any source
of light with them. Vishwanath, Suraj
Prasad and Bhagwan Das had stayed with
the body of Shiv Kumar, whereas he along
with his other uncle Hari Shankar had gone
to the Police Station Hargaon for lodging the
report. He had walked on foot to the Police
Station, which took him about half an hour.
He also stated that the police station was
around 3 K.M. and that he could normally
walk 5 to 6 K.M. in an hour.

36. P.W.1 stated that he had taken
paper and pen from Bhagwan Das, who
resided in the village Benipur, and he had
taken a file cover from his own house along
with him to the Police Station. He had no
idea whether Shiv Kumar was dead or alive
when he started from home, therefore, he did
not write the report at home but wrote it on
his way to the Police Station. The
handwritten report was shown to P.W.-1
who admitted that it was in his handwriting.
Two Sub-Inspectors and a Constable had
accompanied him on cycles to the place of
occurrence. He had not written in the report
that they could not find the dead body in
Raghubar's field, but had found it to the
south of the road with the help of blood trail
on the way and signs of dragging although
he had stated such facts while giving his oral
statement to the Sub-Inspector at the Police
Station and he did not know as to why the
same had not been written in his statement
recorded under Section 161 Cr.P.C. at the
Police Station in the report. He had only
stated that while searching they had found
the body of Shiv Kumar to the south of
Bartara talaab in his written report to keep it
brief.

37. P.W.1 stated that the Subinspector had stayed on the spot for around
two hours after reaching around 08:00 A.M.
The sealed body was taken to the District
hospital at around 10:00 A.M. after inquest
report was prepared in his presence. The
68 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of Vishwanath, his paternal uncle,
was also taken by the Sub-Inspector in his
presence.

38. It was stated by P.W.-1 that at
the time when Jagdish exhorted the other
accused to kill the enemy, Shiv Kumar
turned and ran towards the south of the road,
but Jagdish fired upon him from around two
and a half arms length. Shiv Kumar was hit
in his back, but P.W.-1 did not see exactly
where he was hit as at the moment he was
hit he fell down. Baburam then attacked
Shiv Kumar with his knife on the neck. It
was not clear from the distance as to whether
he was stabbed more than once with the
knife.

After being shot and being
attacked by the knife Shiv Kumar was
dragged by the assailants into the sugarcane
field and they could not see what happened
thereafter, he may have been attacked by
knife more than once or even by lathi but
they could not see.

39. P.W.-1 also stated that he lived
in a separate house from Vishwanath and his
son, Shiv Kumar. He had accompanied
Vishwanath and his son in taking 2 to 3
wooden logs to Hargaon sawmill in a
bullock cart, which they had borrowed from
the nephew of Vishwanath and Hari
Shankar. It took them around one and half
hours to reach the sawmill from the village.
The wood logs were big and needed more
than two persons to be transported. The
wood logs were not weighed at the sawmill.
There were two or three or four wood logs,
but not six, that were taken by them. Each of
such wood logs would be around one quintal
in weight.

40. P.W.1 stated that he had not
written about transporting the wooden logs
to the sawmill by bullock cart in the morning
as he thought that all applications / written
reports need to be brief. P.W.-1 stated that
neither he nor Vishwanath nor Shiv Kumar
had gone out to work as labourers on that
day, because they knew that they had to get
the wooden logs cut at the sawmill and to
take them back home. They eventually had
gone to the sawmill some one month later
where the wooden logs were already cut and
they took them back to their village without
giving the sixty rupees cutting charges to the
sawmill owner because he had not returned
the leftover wood which could have been
used for other purposes.

41. The P.W.-1 further stated in his
evidence that he did not mention this fact in
the written report because he did not think it
was necessary to mention each and every
fact that was witnessed by him in his report.
He had seen the accused appearing on the
road from Raghubar's sugarcane field and
they were around 25 paces away from them.
P.W.-1 also stated that he had shown the
spot where Shiv Kumar was attacked by the
accused to the Sub-inspector and also the
place where he had fallen down and also the
place where Shiv Kumar's body was found
later on during the spot inspection by the
Police.

42. The P.W.-2, Vishwanath stated
that Shiv Kumar was his son and Damodar
Prasad was his nephew. He also stated that
he had gone along with Shiv Kumar and
Damodar to Hargoan to get some six, seven
or eight wooden logs cut at the sawmill of
Lalta Prasad in the morning. Total weight of
the logs would be around twenty quintals.
There was no electricity, and therefore, the
logs could not be cut. They were returning
home at around 6 P.M. and as they reached
Barhtara Taal the accused appeared from the
sugarcane field of Raghubar and attacked
5 All. Banwari & Ors. Vs. State of U.P.
69
Shiv Kumar. He alongwith Damodar had
shouted for help, but because the place was
lonely, nobody came to help. Banwari, Moti
and Mahesh threatened them with their
weapons. As a result, they had run away to
the village where they had sought help from
other villagers, but nobody was ready
because night had fallen. He had not
approached the Police Station at night out of
fear of the accused.

43. P.W.2 stated that they had gone
to search for Shiv Kumar's body at dawn
and when he was not found in the sugarcane
field of Raghubar, they traced the blood
drops towards the south of the road and
found Shiv Kumar's body in the grove of
Hardayal. Suraj Prasad, Bhagwan Das, and
he himself waited near the body, while,
Damodar and Hari Shankar went to the
Police Station to get the report lodged.

44. P.W.-2 also stated about the
argument that had taken place near the
public tap between Jagdish and Shiv Kumar
in which he has intervened and taken Shiv
Kumar back home. At that time Jagdish had
threatened Shiv Kumar of taking revenge.
He also stated that the wooden logs were
eventually taken back about ten days after
the incident and that he had not given the
charges for cutting of wood at the sawmill
because the sawmill owner had sold some of
his wood for which a quarrel had taken
place.

45. P.W.2 stated that he had not
mentioned to the Sub-inspector in his
statement under Section 161 of the Cr.P.C.
about wooden logs not being cut at the
sawmill and about them returning home on
foot at around 06:00 P.M. P.W.-2 stated
during his cross-examination that he did not
remember as to what he had told the SubInspector at the time because he was too
flustered and disturbed sitting next to the
dead body of his son. He did not remember
whether he had told the Sub-Inspector about
taking the wood in the morning to Hargaon
and then going again at around 03:00 P.M.
in the afternoon to collect the cut wood. He
also stated that he had gone to Hargaon in
the morning and stayed there for about one
hour. When they had gone again in the
afternoon, they had stayed there for around
two hours. P.W.-2 also stated that they had
not taken the bullock cart for carrying the
wood home as they had told the sawmill's
owner not to cut the wood in their absence.
If the wood had been cut, they would have
hired a cart at Hargaon. The wood was not
cut because there was no electricity. He had
not tried to take the wood to any other
sawmill in Hargoan, because he was familiar
with the sawmill's owner, Lalta Prasad. Shiv
Kumar used to work at sweet shop of
Bedhab Halwai in Hargaon, but he had left
the job around two months prior to the dated
of incident. While he was working in the
Halwai Shop, Shiv Kumar used to commute
daily from home to Hargaon, either on his
cycle or on foot.

46. P.W.-2 denied the suggestion
that Shiv Kumar was working in the Halwai
shop at Hargaon on the day he was
murdered, and when he did not return home,
they started searching for him in the
morning and after finding the dead body
they had cooked up the story of taking
wooden logs to Hargaon day before. P.W.-2
denied any suggestion of enmity with the
family of the accused or of any proceeding
initiated under section 107/116, Cr.P.C.
some ten to twelve years ago, but admitted
that a case under Section 307 I.P.C. had been
instituted, some nine years ago where
Banwari had given evidence in favour of
Ganesh Pasi and against Vishwanath and his
brother Ramavtar. He denied having
70 INDIAN LAW REPORTS ALLAHABAD SERIES
previous enmity with the accused but stated
that after his son Shiv Kumar was killed by
them enmity has resulted.

47. Vishwanath also expressed
ignorance about the names of owners of
fields lying on either side of the chak road
except for Raghubar's sugarcane field. Later
on when the dead body of Shiv Kumar was
discovered, he also came to know that the
grove belonged to Hardayal. The SubInspector had taken his statement in the
morning at around 08:00 A.M. when he was
sitting near the dead body of his son. He did
not remember as to whether he was made to
put his thumb impression on the inquest
report, as he was not in his right mind, when
the statement was taken, he did not know
what was written in the report. He did not
know also as to why the police had written
"Badmaashon" instead of "Mulziman" in
the inquest report. P.W.-2 stated that at the
time of the attack Shiv Kumar was some
twenty paces ahead of him. He was followed
by Damodar and Vishwanath was trailing
behind them. His son was fired upon from a
distance of around two arms length while he
was walking towards the village on the east.
After receiving gunshot injury, he fell upon
his face to the south of the chak road. Both
P.W.-1 and P.W.-2 had rushed to save him,
but they could not save him because the
accused were carrying arms and had
threatened them. They remained on the spot
where Shiv Kumar was attacked for around
15 minutes and they saw Shiv Kumar being
dragged into the sugarcane field of
Raghubar. They ran away to their village
Benipur in order to save their lives. P.W.-2
also stated that they witnessed the beating up
of Shiv Kumar with Lathis as they had stood
there for around 15 minutes. After Shiv
Kumar was dragged into the sugarcane field,
they could not see him because it was dark.
P.W.-2 also stated that Shiv Kumar had
received only one gun shot injury and was
stabbed only once at that time.

48. In his statement of P.W.-5, the
Investigating
Officer,
Phool
Singh
Bhadauria has clearly stated that after
recording statement under Section 161 of
the Cr.P.C. of Vishwanath, and some 5 to 6
other villagers, efforts were made to arrest
the accused. Banwari Lal was arrested from
his house in the early morning hours on
03.05.1987 alongwith his licensed rifle.
Moti Lal was arrested on 05.05.1987.