# Chandrapal & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Criminal Appeal No. 4116 of 2015
- **Bench:** Arvind Singh Sangwan, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrapal-ors-v-state-of-u-p-52079
- **Pages:** 27

## Headnote

Criminal Law-Indian Penal Code-1860Sections 147, 148, 149, 302 & 392-Criminal
appeal against order of conviction- PW-1
has taken a complete somersault with regard to
allegations in the FIR where a person was initially
cited as a witness and then citied as an accused/
principal conspirator the version given by PW-1
regarding presence of all other accused is not
reliable- the eye witness of the incident has not
mentioned about any white colour ambassador
car in which four accused persons had come- no
weapon of the offence including the licensed rifle
of deceased was recovered- neither there was
recovery of any weapon nor blood stained earth,
blood stained clothes of victim or PW-1 or his
father or the empty cartridges were never sent
for forensic science investigation, despite the fact
that the deceased was Inspector in UP Police.

Benefit of doubt would go to the accused as case
property like blood-stained earth, the clothes
worn by the deceased or the bullet recovered
from the spot or retrieved from the dead body or
the car were never sent to forensic science
examination and never produced before the trial
court, on the plea that everything has been
destroyed including the original case diaryResult-Order of conviction set aside.

Appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,971 of 96,188. This is a partial read: ask again with offset=39971 for what follows._

5 All. Chandrapal & Ors. Vs. State of U.P.
251

43. As no other point was raised from
either side, we find that the Trial Court has
passed the judgment in accordance with law
while awarding imprisonment for life to
both the accused under Section 302/34 of
IPC.

44. Therefore, finding no merits in the
present appeal, the same is dismissed. The
impugned judgment of conviction and order
of sentence are upheld. As noticed in the
order dated 18.12.2020 passed by the
Supreme Court in Criminal Appeal No. 886
of 2020 while remanding the case back to
this Court for fresh decision that appellantSubedar Singh has since been taken in
custody, the appellant-Subedar will undergo
the remaining part of the sentence.

45. Copy of this order along with
record be transmitted to the Trial Court
forthwith.
----------
(2024) 5 ILRA 251
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 4116 of 2015
With
Criminal Appeal No. 3950 of 2015
With
Criminal Appeal No. 4087 of 2015

Chandrapal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Amit Kumar Srivastava, Chandra Kant
Bharadwaj, J.S. Baghel, Sikander B. Kochar,
V.P. Srivastava
Counsel for the Respondent:
Govt. Advocate, Ajay Panday, Vijay Tripathi

Criminal Law-Indian Penal Code-1860Sections 147, 148, 149, 302 & 392-Criminal
appeal against order of conviction- PW-1
has taken a complete somersault with regard to
allegations in the FIR where a person was initially
cited as a witness and then citied as an accused/
principal conspirator the version given by PW-1
regarding presence of all other accused is not
reliable- the eye witness of the incident has not
mentioned about any white colour ambassador
car in which four accused persons had come- no
weapon of the offence including the licensed rifle
of deceased was recovered- neither there was
recovery of any weapon nor blood stained earth,
blood stained clothes of victim or PW-1 or his
father or the empty cartridges were never sent
for forensic science investigation, despite the fact
that the deceased was Inspector in UP Police.

Benefit of doubt would go to the accused as case
property like blood-stained earth, the clothes
worn by the deceased or the bullet recovered
from the spot or retrieved from the dead body or
the car were never sent to forensic science
examination and never produced before the trial
court, on the plea that everything has been
destroyed including the original case diaryResult-Order of conviction set aside.

Appeal allowed. (E-15)

List of Cases cited:

1. Javed Shaukat Ali Qureshi Vs St. of Guj.t,
(2023) 9 SCC 164

2. Vadivelu Thevar Vs St. of Madras, 1957 0 AIR
(SC) 614

3. Kaur Sain Vs St. of Pun., 1974 AIR (SC) 329

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. These appeals have been filed
challenging the judgment of conviction
dated 03.08.2015, passed by Special Court
(S.C./S.T. Act)/ Additional Sessions Judge,
252 INDIAN LAW REPORTS ALLAHABAD SERIES
Court No.13, Bulandshahar holding the
appellants Sanjay Dixit, Yogendra, Sanjay
Kumar Sahni @ Sanjeev Kumar guilty of
offence punishable under Sections 147, 148,
302/149
I.P.C.,
additionally
accused
Pramod Sharma and Chandra Pal were held
guilty of offence under Section 147, 302/149
I.P.C. and accused Veerpal and Harpal were
held guilty of offence under Sections 147,
148, 302/149, 392 I.P.C. whereas one of the
accused Mahendra Kumar Kaushik was
acquitted of the charge under Section 302
read with Section 120-B I.P.C. as well as the
order of sentence dated 04.08.2015 by
which the appellants were held guilty of
offence and awarded life imprisonment
under Section 302/149 I.P.C. along with a
fine of Rs. 10,000/- each and in the event of
non-payment of fine, to further undergo six
months additional simple imprisonment and
under Section 147 I.P.C., two years rigorous
imprisonment along with Rs. 1000/- each, in
default of payment of fine to further undergo
one month additional simple imprisonment.
Additional accused Sanjay Dixit, Yogendra,
Sanjay Kumar Sahni and Harpal were
sentenced
to
three
years
rigorous
imprisonment under Section 148 I.P.C. with
a fine of Rs. 1500/- each, in default of
payment of fine to further undergo 45 days
simple imprisonment. Accused Harpal was
additionally sentenced 10 years rigorous
imprisonment under Section 392 I.P.C.
along with a fine of Rs. 5,000/- and in
default of payment of fine to further undergo
three months simple imprisonment. It was
further directed that 50% of the fine
recovered will be paid to the dependent of
the deceased under Section 357 (1)(C) of
Cr.P.C.

2. Heard Sri Bankim Kulshrestha,
assisted by Sri Chandra Kant Bharadwaj,
learned counsel for the appellant No.2, Sri
Vivek Kumar Singh, learned counsel for
the appellant No.4, Sri Vijay Tripathi and
Sri Ajay Kumar Pandey, learned counsel
for the informant (in Criminal Appeal
No.4116 of 2015), Sri Kumar Parikshit,
learned counsel for the appellant (in
Criminal Appeal No.3950 of 2015), Sri
Brijesh Sahai, learned Senior Counsel
assisted by Sri Rahul Kumar, Sri Bhavya
Sahai, Sri Pawan Bhardwaj and Sri Abhey
Singh Yadav, learned counsel for the
appellant (in Criminal Appeal No.4087 of
2015) and learned A.G.A. for the Staterespondent.

3. It is worth noticing that separate
charges were framed under the aforesaid
sections against Chandrapal, Mahendra
Kumar Kaushik, Veerpal and Sanjay
Sahni,
Harpal
and
Yogendra
on
11.09.2009, whereas charges were framed
against Sanjay Dixit and Pramod Kumar
on 16.01.2006. It is also worth noticing
that
as
per
the
verification
report
submitted by the concerned C.J.M.
Chandrapal accused died on 10.07.2022
whereas Sanjay Sahni died on 01.01.2016.
The appeal of both these accused stands
abated. It is also worth noticing that
accused Chandrapal was granted bail on
30.10.2018, Sanjay Dixit and Harpal were
granted bail on 24.10.2016 and Pramod
Kumar was granted bail on 05.10.2016.
The third bail application of Yogendra
was dismissed on 27.04.2024 directing
that the main appeal be listed for final
arguments on 06.05.2024 and this is how
arguments in the main and connected
appeals have been heard.

4. With the assistance of learned
counsel for the parties, the entire evidence is
re-scrutinized and re-appreciated.

5. The facts as stated by the informant
in the FIR are as under:
5 All. Chandrapal & Ors. Vs. State of U.P.
253

"The brother of the informant
Devendra Prakash Gaur, son of Kanti
Prasad Gaur is serving in U.P. Police. He
was having enmity with Yogendra, Sanjay
Dixit and Veerpal etc. Previously they had
fired upon his brother in police station-
Naraura and FIR in this regard was
registered in Police Station- Naraura.
Today, at 09:45 AM, I along with my brother
Devendra Prakash Gaur, my father Kanti
Prasad Gaur and Mahendra Kumar
Kaushik, Inspector, U.P. Police, presently
resident of Naraura, in our car bearing no.
DMC0966 were going from Naraura to
Bulandshahar for some urgent work. When we
reached on the Dibai railway crossing the
gate was closed. In the meantime, on one
bullet motorcycle driven by Pramod Kumar
and Sanjay Dixit was sitting on the pillion seat
along with one white colour ambassador car
in which Yogendra, Veerpal, Harpal and
Sanjay came and got down. Sanjay as well as
Yogendra were carrying guns. Yogendra and
Sanjay Dixit fired on my brother with their
respective weapons. My brother was hit by the
bullet and he fell down. We picked him up and
made him lie down on the rear seat of the car,
thereafter these persons picked up rifle of my
brother which was lying in the car and then
Harpal and Veerpal one by one fired shot
upon him due to which my brother died at the
spot. Pramod Kumar who is resident of
Bhangiwara
Dibai
was
keeping
the
motorcycle engine on and Chandrapal was
keeping the car engine on. Both the vehicles
were not having number plate. They escaped
from the spot while taking away the rifle of my
brother. My brother is lying on the rear seat of
the car. Due to firing people got terrorised and
by closing their shops ran away. Please take
action.

Dated 09.10.1989."

6. On this Assistant Sub-Inspector,
Charan Singh registered chik FIR. After
registration of the FIR, the investigation was
carried out by Prahlad Singh, Inspector. He
visited
the
spot
and
conducted
the
Panchayatnama/Inquest
Report
of
the
deceased,
recorded
the
statement
of
Narendra Kumar and father of the deceased
Kanti Prasad Gaur. On the identification of
both of them he prepared the site plan.
Thereafter, dead body was recovered and
was sent for post mortem from Chief
Medical Officer. From the spot blood
stained earth along with empty cartridge of
a rifle were taken in possession by preparing
the separate memos which were written in
the handwriting of Assistant Sub-Inspector
P.N. Dixit and efforts for the search of the
accused
was
made.
On
10.10.1989,
statement of Yatendra Kumar Kaushik was
recorded and from the spot the statement of
the shopkeeper were also recorded. The post
mortem report was recovered which was
entered in the C.D. Some affidavits of
people were received on 18.11.1989, which
were sent to the Additional Superintendent
of Police. On 15.03.1990, he was transferred
to
other
Police
Station
and
further
investigation was carried out by Inspector,
Ravindra Kumar Singh who has also
recorded the statement of the witnesses and
subsequently submitted the charge-sheet
before the Court.

7. It is worth noticing that on the
direction
of
the
court
the
further
investigation was handed over to C.B.C.I.D.
and Inspector Satish Chandra Pachouri also
conducted the investigation and recorded the
statements of the parties.

8. Charges were framed on 11.09.2009
under Sections 147, 148, 120B, 302 read
with 149 and 395 read with 149 I.P.C. and
accused did not plead guilty and claimed
trial. In prosecution evidence, PW-1
Narendra Gaur, brother of the deceased
254 INDIAN LAW REPORTS ALLAHABAD SERIES
Devendra Gour appeared and stated on the
line of version given in the FIR. He has also
given the details of the firing done by the
accused persons. He has stated that his
brother was having enmity with Yogendra,
Sanjay Dixit, Chandrapal Singh, Harpal and
Veerpal etc. On 09.10.1989, he along with
his father Kanti Prasad Gaur and Mahendra
Kumar Kaushik and deceased Devendra
Prakash Gaur were travelling in Maruti Car
No.
DMC0966
from
Naraura
to
Bulandshahar at about 09:45 A.M. they
reached at Kaserkala railway crossing/ Dibai
railway crossing which was closed. They
stopped the car and his brother Devendra
Prakash Gaur got down from the car and
started eating tobacco. In the meantime, one
bullet motorcyle came from the backside which
was driven by Pramod Kumar and Sanjay Dixit
was pillion rider. Sanjay Dixit was carrying a
gun. One white colour ambassador car also
came from the backside in which Veerpal,
Yogendra, Harpal and Sanjay Sahni came.
Yogendra was carrying a gun, Sanjay Sahni
was carrying a country made pistol and
Chandrapal was driving the car. Sanjay Dixit
and Yogendra fired on his brother when he was
about to sit in the car. When Devendra Prakash
Gaur was hit by firearm, he and his father took
his brother on the back seat of car. His brother
Devendra's rifle lying in the car was picked by
Veerpal and firstly Veerpal and then Harpal,
one by one, from the same rifle fired on his
brother Devendra Prakash Gaur which hit him
and he died at the spot. The accused ran away
after firing and taking away rifle of deceased.
This witness further stated that about six
months prior to the incident, Sanjay Dixit,
Yogendra and Veerpal etc. had fired upon his
brother in Police Station- Naraura and in this
regard his brother has recorded a complaint in
the police station.

9. He further stated that in November
1988, the election of Chairman- Naraura
was held. His brother supported one Om
Veer Singh, and Mahendra Kumar Kaushik
and other accused were supporting Madan
Kumar Vashisht. Mahendra Kumar Kaushik
asked his brother Devendra to support the
Madan Kumar Vashisht but his brother did
not agree. In the election, Madan Kumar
Vashisht had won. After the election,
Kaushik, Sanjay and Veerpal etc. came to
their house and fired upon and Devendra
Prakash Gaur in this regard made a police to
report. The houses of Mahendra Kumar
Kaushik and Devendra Prakash Gaur were
abutting each other and later on his father
got compromised the matter between
Mahendra Kumar Kaushik and Devendra
Prakash Gaur but the accused were carrying
enmity
against
him.
This
witness
specifically stated that this murder was
committed by Mahendra Kumar Kaushik in
conspiracy with other accused. He exhibited
his complaint made to the police as Ex.Ka.1.
In cross-examination, this witness stated
that he did not remember the date of the
election. He further stated that regarding the
incident of firing in the police station, he
was not present there and came to know
after three days. He pleaded ignorance if any
arrest in this regard was made. However, his
brother did not suffer any injury. He further
stated that in 1992 one Banwari and his son
were murdered in Kesopur Sarla in which
PW-1, his father and nephew were
nominated as accused and went to jail. His
brother deceased Devendra Prakash Gaur
remained S.O. of Baghpat. However, he
pleaded ignorance that at that time the
infamous Maya Tyagi murder scandal took
place and he and his other police officials
faced a trial under Section 302 I.P.C.
However, he stated that his brother obtained
stay order from the High Court. He further
pleaded ignorance that the other police
officials were convicted by the court and
sentenced to life imprisonment. He further
5 All. Chandrapal & Ors. Vs. State of U.P.
255
stated that his brother has constructed a
house in Naraura and has purchased 100
Bigah of land after constructing the house.
He further pleaded ignorance that deceased
was having a share in the contract of lifting
sand in Naraura or that the deceased was
having a share in the liquor vends. He
further stated that he did not know, on the
date of incident where deceased Devendra
Prakash Gaur was posted. Regarding the
incident, he has stated that Sanjay Dixit and
Yogendra fired from the driver side whereas
Pramod Kumar kept the engine of motorcyle
on and Chandrapal was keeping the engine
of the car on. Veerpal took away the rifle of
the deceased from the left side and fired
from that side whereas Harpal fired from
same rifle from the side of driver. He further
stated that he did not remember if he has
mentioned in the complaint that his brother
got down from car to eat tobacco. He stated
that when Yogedra fired, his brother after
taking tobacco, was about to sit in the car
and when the fire hit, his body was outside
the car. He denied that he has made a
statement to the I.O. that after taking
tobacco, his brother did not sit in the car. He
stated that he did not remember when he and
his father picked up deceased and kept him
on the rear seat of the car and he was
bleeding. He stated that his clothes and his
father's clothes were blood stained but I.O.
did not take their clothes in possession. The
backside of the car was also blood stained
but he did not remember, if any, empty
cartridge fell inside the car or not. On the
rear seat, there were marks of the bullets.
This
witness
further
stated
that
on
11.10.1989,
he
has
taken
back
the
possession of car from the S.H.O. and
further stated that he did not remember if
any memo in this regard was prepared. He
further stated that he did not remember
whether the car was with him or sold out. He
further stated that Sanjay Sahni with the
country made pistol was covering him and
his father and none of the accused fired upon
them and only extended threat. He further
stated about the conspiracy hatched by
Mahendra Kumar Kaushik. He has informed
the I.O. in this regard but did not know why
this fact was not recorded. He further stated
that after 20-25 days of the incident, he has
moved an application for transfer of the case
to C.B.C.I.D. He further stated that in the
FIR, it is not mentioned that Veerpal has
taken away the rifle of his brother. It is also
not mentioned in the FIR that firstly Veerpal
by picking the rifle fired. He further stated
that he had given the car no. as DNC0966
but he does not know how the I.O. has
written the car no. in his statement as
DMC0966. On a specific question under
what authority he has taken the possession
of the car, this witness stated that being
younger brother of the deceased, he has
given an application for releasing the car. At
this stage of cross-examination, on the
request of the counsel of the accused, the
trial court tried to locate the application
given by PW-1- Narendra Kumar Gaur for
taking the car on Supurdginama/ release
deed but the same was not found in General
Diary.

10. This witness further stated that in
the Supurdginama/ release deed of the car is
Ex.Ka.14. This witness stated that the car
was given to him and on his application, he
has endorsed regarding the recovery of the
car. It was stated in Ex.Ka.14 that as and
when directed by the court, he will produce
the car and he has received a notice from the
court for producing the car. However, he
admitted that despite notice he could not
produce the car, as he does not know to
whom the children of the deceased have sold
the car. This witness further stated that he
has given an application on 27.05.2010 that
the car was destroyed in fire in the year 2008
256 INDIAN LAW REPORTS ALLAHABAD SERIES
and the application is at S.No. 128-B. On a
specific question as to whose name the car
was registered and witness stated that he has
no knowledge. Regarding the rifle of his
brother this witness further stated that the
license of the rifle was with his brother and
after the incident he has never seen the
license. He denied a suggestion that his
brother was not having any license or
licensed gun.

11. PW-2- Dr. P.K. Agarwal who
conducted the post mortem of the deceased
Devendra Prakash Gaur and reported the
following injuries:

"मृत्यु पूवव चोटों का दववरण

(1) आग्नेआस्त्र द्वारा गोली के घु ने व दनकलने का
घाव ाइज 16 X 14 े०मी० X मदस्तष्क तक गहरा िाये कान
के ऊपर दस्थत। ऊपर े नीचे की तरफ जाता ह आ। िोनों कान के पीछे
 े। घु ने वाली चोट के चारों तरफ कलौंच, झुल न मौजूि थे। उ के
दकनारे फटे ह ए व अन्िर को मुडे ह ऐ व दनकलने वाले घाव के दकनारे
बाहर आते ह ए फटे ह ए दबना कलौंच व झुल न के। इन िोनो के मध्य
की खाल हड्डी व मदस्तष्क फटा व टूटा पाया गया। हड्दडयों के टुकडे
मदस्तष्क का भाग इ चोट े बाहर आता ह आ। अन्िर व बाहर जाने
वाले भाग एक चोट के ही भाग है।

(2) आग्नेआस्त्र का प्रवेश व घु ने का घाव ाइज 3
X 3 े०मी० X केदवटी तक गहरा छाती पर ामने की ओर िोनो
दनपल के बीच मे। दकनारे अन्िर को मुडे व फटे ह ए। कादलका व
झुल न के दनशान के ाथ थी। यह चोट पीछे ऊपर कमर की तरफ
जाती ह ई ीधी दिशा में ऊपर के पीछे की ओर।

(3) आग्नेआस्त्र का बाहर दनकलने का घाव 5 X 4
1⁄2 े०मी० X गुहा तक गहरा ीधी तरफ कमर के ऊपरी दहस् े में
कन्धे की तरफ। दकनारे बाहर को मुडे व फटे ह ए। खून बाहर दनकलता
ह आ। दबना कादल व झुल न दलये।

चोट िं० 2 व 3 एक िू रे े मबदन्धत थी।

(4) आग्नेयास्त्र अन्िर जाने वाला घाव 1 X 1
 े०मी० X गुहा तक गहरा चोट िं०-2 े 6 े०मी० नीचे। कादल
व झुल न दहत दकनारे अन्िर को मुडे व फटे ह ए, जो पीछे कमर की
ओर बािंये तरफ जाते ह ए थे।

(5) आग्नेयास्त्र का Exit घाव ाइज 5 े० X 4
1⁄2 े०मी० X गुहा तक गहरा बािंयी तरफ कमर पर ऊपर स्केपुलर
रीजन मे कन्धे की तरफ जाता ह आ। दकनारे बाहर को दनकले ह ये। खून
झलकता ह आ। चोट िंख्या-4 व 5 एक िू रे े िंबिंदधत थी।

(6) आग्नेयास्त्र घाव दनकलना व घु ना एक ीध में
12 X 6 X मािं पेशी तक गहरा, िािंयी ऊपर भुजा पर कादलख व
झुल न इन्री पर था। इन्री अन्िर को व exit बाहर को दनकला ह आ।

(7) आग्नेयास्त्र की चोट exit & entry 5 X 3
X मािं पेशी तक गहरा भी जााँघ पर बाहर े अन्िर को आती थी।
इन्री पर जलन झुल न थी।

(8) आग्नेयास्त्र 2 X 1 X म ल डीप बािंयी ह ली
गिवन पर नीचे की तरफ। कादलख व झुल न दहत। एक बडी धातु
की गोल गोली इ चोट के नीचे े प्राप्त ह ई।

(9) कई आग्नेयास्त्र के छरो के घाव खाल पर 8 X
6 े०मी० एररया में बािंयी जािंघ पर प्रत्येक 2 X 2 े०मी० े 3
X 3 ेंटीमीटर तक थे।"

12. This witness stated that one big size
mettled bullet, which was recovered from
the neck of the deceased, was kept in the
sealed packet along with a pellets of the
bullet recovered from the right thigh and
were sealed and were given to the constable
who had come for the post mortem. In crossexamination this witness stated that the
injury no.1 can be received if the person
firing is having his hand over the head of the
injured. However, he could not give any
specific opinion in this regard if the
deceased was in a lying position and is fired
from the side of the head, he can sustain such
injury. Regarding injury no.1, he stated that
an entry and exit wound are in similarity.
Regarding injury no.2, he stated that the
same can be sustained if the person firing is
having his hand below the body of the
injured. He further stated that if the injured
is in lying situation and if the bullet is fired
from the side of his feet, this injury can be
sustained. The injury has directions up
moves. Regarding injury no.5, the direction
is from upper side to lower side with an
entry wound. He further stated that he did
not know whether any sample seal was
given to him along with dead body as he
5 All. Chandrapal & Ors. Vs. State of U.P.
257
could not find the sample seal in the file. He
denied the suggestion that the report was
later on changed. He further stated that he
did not mention in the post mortem report
that any gun powder smell was emitting
from the wound. With regard to the nature
of the weapon used this witness stated that
only a ballistic expert can tell about the
weapon used for injury no. 1. He cannot tell
the nature of the weapon regarding injury
no.2. He further stated that regarding injury
no. 9 there is no symptom of fire arm injury.
This witness stated that he has not seen 306
bore rifle therefore, he cannot say any that
any bullet injury was received from 306 bore
rifle.

13. S.I. Charan Singh (PW-3) stated
that he was posted as Computer Clerk in
Police Station-Dibai and on the complaint of
Narendra Kumar Gaur, he prepared Chik
F.I.R. No. 292 of 1989. This witness proved
the Chik F.I.R. (Ex.Ka-3) and entry the in
GD No. 22 dated 9.10.1989 as Ex.Ka-4. The
report of record keeper for sending a copy to
office of Superintendent of Police was
Ex.Ka-5. This witness stated that at the time
when the informant came for lodging the
F.I.R.,
Inspector
M.K.
Kaushik
was
accompanying
him.
In
further
cross
examination, he stated that in the G.D. for
registration of F.I.R., there is no mention of
sending S.R. (Special Report). He further
stated that in Ex.Ka-3 addressed to C.O.
Anoopshahr bears his signature but there is
no date though there is a date on the
endorsement
by
the
Chief
Judicial
Magistrate, Bulandshahr dated 16.10.1989.

14. Prahlad Singh (PW-4), Sub
Inspector (Retd.) stated that on 9.10.1989,
he was posted in Police Station-Dibai,
District- Bulandshahr and the case was
registered in his presence by C.C. Charan
Singh and he along with other police
officials had gone to the place of occurrence.
At the spot, he recorded statement of
Narendra Kumar and his father-Kanti Prasad
Gaur and prepared Naksha Nazri (Ex.Ka-6).
The Panchayatnama/Inquest Report (Ex.Ka7) was prepared by Sub Inspector P.N. Dixit
and other documents regarding the recovery
of dead body, letter to C.M.O., photographs
etc. were also prepared by Sub Inspector
P.N. Dixit which are Ex.Ka-8 to Ex.Ka.-11.
The bloodstained earth and one empty
cartridge of rifle were taken by the police
vide separate memos which are Ex.Ka-12
and Ex.Ka-13. This witness identified the
signature of S.I. P.N. Dixit on the same. He
further stated that on 10.10.1989, statement
of one Yatendra Kumar Kaushik was
recorded
and
statements
of
some
shopkeepers of nearby area of the place of
incident was recorded in the C.D. On
18.11.1989, affidavits of some persons were
received which were sent to Superintendent
of Police and their details were mentioned in
the C.D. He conducted investigation till
15.3.1990 when he was transferred. In cross
examination, this witness stated that it is
correct that in the C.D., there is no mention
that Special Report was sent on the date of
incident. He further stated that he did not
remember on which date copy of the F.I.R.
was sent to the concerned Court. He further
stated as under :

"This is correct that at the time of
incident, Mahendra Kumar Kaushik was
with Devendra Prakash Gaur. This is also
correct that Mahendra Kumar Kaushik in
his statement told him that at the time of
incident, brother of deceased, Narendra
Kumar Gaur, and his father were not
present at the place of occurrence."

15. He stated that he did not remember
if Narendra Kumar Gaur when came to the
police station, he was wearing bloodstained
258 INDIAN LAW REPORTS ALLAHABAD SERIES
clothes or not. He further stated that, this is
correct if clothes worn by Narendra Kumar
Gaur were bloodstained, he would have
taken them in possession. This witness
stated that Narendra Kumar Gaur had made
a wrong statement that his clothes were
bloodstained
and
were
taken
by
Investigating Officer (PW-4). This witness
further stated as under :

"When I reached at the place of
occurrence, the dead body of the deceased
was lying inside the vehicle. I have
inspected the vehicle thoroughly but I do
not remember if on the seat or roof of the
vehicle, there was bloodstain or not. I do
not remember if there was any mark of
bullets on the body of the vehicle or the seat
etc. I do not remember if any smell of gun
powder was emitting from the vehicle. It is
correct that make of the car is not
mentioned in the C.D. The detail of place
of occurrence was inadvertently not
mentioned in the C.D. It is correct that no
empty cartridges or pellet was found inside
the vehicle. I did not find any evidence that
the deceased-Devendra Prakash Gaur was
murdered inside the car, therefore, I did
not get photography of the car from outside
or inside. I did not even get the inspection
of the vehicle done from ballistic expert."

16. This witness denied a suggestion
that photography and inspection by ballistic
Expert was not done because the car was not
present at the place of occurrence. This
witness further stated as under :

"Narendra Gaur had given an
application dated 11.10.1989 to me for
taking
Car
No.
DMC0966
on
Supurdginama. I have rightly recorded in
C.D. that Maruti Car No. DMC0966 of
deceased Devendra Prakash Gaur is
parked in premises of Police Station and
informant has given an application for
taking the same on Supurdgi, as the vehicle
is not connected with the commission of
offence of murder, therefore, as per Rules,
the vehicle be released in favour of the
informant on Supurdgi."

17. This witness further stated that
Supurdginama/ release deed (Ex.Ka-14)
was prepared on his direction. He further
stated that he has not taken in possession any
document relating to ownership of the car
and has not seen the registration certificate
to verify whether it is in the name of
deceased-Devendra Prakash Gaur or any
other family member.

18. This witness further stated as under
:

"It is correct that I had no legal
right to hand over the case property to
anyone on Supurdginama as this right lies
only with the concerned Court. He further
self stated that I had committed a mistake.
It is correct that while giving car to
Narendra Kumar Gaur on Supurdginama
I have not taken any surety bond. I do not
know at present this vehicle is with whom.
It is correct that due to releasing the vehicle
on Supurdginama in favour of Narendra
Kumar Gaur, against the provisions of law,
an important evidence is destroyed."

19. He denied that in collusion with
Narendra Kumar Gaur, he prepared the
Supurdginama to show the presence of the
car at the spot and further denied that he has
planted the empty cartridge and, therefore,
no ballistic expert opinion was taken. This
witness further stated as under :

" This is correct that I recorded
statement of Mahendra Kumar Kaushik on
10.10.1989. Mahendra Kumar Kaushik
5 All. Chandrapal & Ors. Vs. State of U.P.
259
stated that in the car, apart from him,
Yogendra, Jeevan Singh and Pankaj
Chaudhary were there. However, I did not
try to investigate regarding Chaudhary and
even did not try to search for him. In C.D.
No.2, I have recorded a conclusion that
people knew about known criminal history
of deceased-Devendra Prakash Gaur and,
therefore, no person came forward to make
statements.
Till
now,
as
per
the
investigation at the spot, only two persons
came on a bullet motorcycle and after
firing on Devendra Prakash Gaur, they
had gone towards Khokha. However, this is
not verified at the spot and further deep
investigation is going on. Devendra
Prakash Gaur was a known person of
criminal history. I do not know at the time
of incident, he was posted in which police
station. I did not know that he was under
suspension for the last three years prior to
the incident or not. I do not know how
many
cases
were
pending
against
Devendra Prakash Gaur and how many
were pending in the Court. I do not know
that he had taken stay from the High Court
in Maya Tyagi Scandal Case and the other
accused
were
sentenced
to
life
imprisonment. I do not know that two
accused Sub Inspectors in Maya Taygi
Scandal Case were murdered and relatives
of Pankaj Chaudhary were named in the
said case or not."

20. This witness further stated as under
:

"This is correct that on the basis
of the statements of the people at the
place of occurrence and of Narendra
Kumar Gaur and Kanti Prasad Gaur, I
came to a conclusion that the presence of
ambassador car at the spot was not
verified. It is correct that till the time the
investigation was with me, I did not find
any believable evidence that ambassador
car came at the spot and by firing upon
Devendra Prakash Gaur, his rifle was
taken away."

21. This witness further stated in
cross examination as under :

"This is correct that statements
of people around the place of occurrence
namely,
Ram
Kishor,
Veer
Singh,
Sheodan, Nawab Harpal, Balvir Singh,
Agwan Singh, Om Prakash and Munne
Khan were recorded and none of them
told me the number of Maruti Car. The
incident
reported
in
the
First
Information Report was not fully proved.
None of the above named had supported
this statement that in the ambassador car
Veer Pal etc. came with a rifle and had
committed murder of Devendra Prakash
Gaur and had snatched his rifle. These
persons did not support presence of
Narendra Gaur and Kanti Prasad at the
time of incident, at the place of
occurrence. Mahendra Kausik was an
eye-witness. After recording statement of
Mahendra Kaushik, I did not record
statement of Narendra Gaur as to how he
was present at the stop at the time of
incident. I have mentioned in the Case
Diary and attached all the affidavits of
people given to me during investigation. I
did not record their statements in the C.D."

22. This witness further stated that it is
correct that after recording of the case, the
G.D. report was not sent along with
documents for the post mortem. In the
Panchayatnama regarding departure from
the police station there is no mention of G.D.
Number and there is overwriting of Section
147, 148, 149 & 302 I.P.C.. However, he
denied that till the time the Inquest report
was prepared, the F.I.R. was not registered
260 INDIAN LAW REPORTS ALLAHABAD SERIES
and, therefore, the sections 147, 148, 149 &
302 I.P.C. were added later on.

23. Sub Inspector Uday Singh (PW-5)
stated that he had prepared Ex.Ka-14 for
handing over Maruti Car No. DMC 0966
belonging to deceased-Devendra Prakash
Gaur in favour of his brother Narendra
Kumar Gaur son of Kanti Prasad Gaur. This
witness admitted in cross examination that
on record, there is no such order issued by
the then Inspector directing him to release
the case on Supurdgi in favour of Narendra
Kumar Gaur.

24. S.H.O. Ravindra Kumar Singh
(PW-6), Police Station - Dibai stated that he
has submitted report of recovery of the
articles before the Court. The report was
prepared by Head Moharir Vinod and is
Ex.Ka.15. In cross examination, this witness
stated that on 27.5.2010 while giving Ex.Ka15 in the Court, no recovered articles of
Case No. 292 of 1989 were in custody of the
police station. In custody register, at
S.No.69 dated 14.8.1999, there is an
endorsement that entire case property is
destroyed. He further stated that the empty
cartridge cannot be destroyed.

25. R.K. Sharma (Retired Inspector)
(PW-7) stated that he received the further
investigation
from
Inspector
Mahesh
Chandra Gautam and stated about arrest of
accused persons and submitting of the
challan report (Ex-Ka-16). He also stated
about recording of statement of InspectorPrahlad Singh and other police officials
which are recorded in the C.D. In the cross
examination, he stated that on an application
given by Harish Kumar Sahni, the
Investigating Officer investigation was
further transferred to C.B.C.I.D. In the
application, Harish Kumar Sahni has
mentioned that deceased Devendra Prakash
Gaur was an accused in an infamous Maya
Tyagi scandal case and he is an accused of
rape and murder in many police station. This
witness stated that he had not inspected the
car in which deceased was travelling nor the
same was sent for ballistic inspection. This
witness further stated as under:

" It is correct that before my
investigation, statement of the people
nearby the place of incident, namely,
Shami Ullah, Shankar lal, Amarpal
Kumar, Chandra Dutt, Banvari and
Mahaveer were recorded and none of
them have stated that at the time of
incident, Veer Pal was present and his
name was not found in the incident. It is
also correct that the above named
witnesses did not inform the car number
as well as the presence of Narendra
Kumar Gaur and Kanti Prasad Gaur at
the place of occurrence at the time of
incident. It is correct that Narendra
Kumar Gaur and Kanti Prasad Gaur are
resident of village Kesopur Sathla and
Devendra Prakash Gaur used to reside in
Naraura there is distance of 60-70 km.
Narendra Kumar Gaur and Kanti Prasad
Gaur have no property or business in
Naraura."

26. He further stated that he has
recorded the statement of Mahendra Kumar
Kaushik. He further stated that regarding the
rifle used in the commission of murder, he
has not made any investigation and the wife
of deceased or any other family members,
despite asking for providing original
documents or license, could not provide the
same.

27. Amar Pal Singh, Constable ( PW8) stated that he had worked with Inspector
Satish Chandra Pachauri who had died in a
road accident. He has prepared two
5 All. Chandrapal & Ors. Vs. State of U.P.
261
documents
which
are
Ex.Ka.17
and
Ex.Ka18 and he identified his handwriting.

28. It is worth noticing that the
statement of PW-7- Constable Jograj Singh
was recorded for the second time (i.e. this
PW-7 number was given to two witnesses)
in which he has stated that he has brought
the register for the year 1988-90 at S.No. 69,
the details of the recovery is entered which
are one packet of blood stained earth, plain
earth, one packet of empty cartridge and one
car bearing no. DMC0966 which was
handed over to the brother of the deceased
by the I.O. There is entry of post mortem
report of the clothes of the deceased and
bullets received from the body of the
deceased. These articles were deposited in
P.S.- Dibai. On 02.05.2013, it is entered that
the entire case property is destroyed. This
report is signed by one H.M.- Usman Ali
and verified by S.H.O.- Ambika Prasad. He
had identified their signatures and the copy
of which is Ex.Ka.21. The entry of burning
and destroying of the case property is at
S.No. 69 copy of which is Ex.Ka.22. He
stated that the case property was not
destroyed under the order of any court or
higher police officer. Regarding the Car
DMC0966 which was given to Narendra
Kumar Gaur on Spurdginama was never
called back from him and he was not asked
to produce it in the court. He denied the
suggestion
that
the
entry
regarding
destroying
of
the
case
property
is
manipulated in order to create fake
evidence.

29. Thereafter, the statement of
accused under Section 313 Cr.P.C. was
recorded separately in which all the
incriminating evidence was put to them.

30. Accused Sanjay Dixit stated that he
has been falsely implicated due to political
rivalry in village-Naraura and denied all the
evidence. Similarly, accused- Harpal denied
all the questions put to him and also stated
that he has been falsely implicated on
account of political rivalry in Naraura.
Accused Pramod Kumar and Sanjay Dixit,
Yogendra and Chandrapal also made similar
statements.

31.

Accused-Mahendra
Kumar
Kaushik who was acquitted by the Trial
Court, in his statement under Section 313
Cr.P.C. stated that at the time of incident, he
was
posted
in
the
police
vigilance
department and his children were residing in
Naraura and due to party faction, he is
falsely implicated.

32. In defence Yogendra produced
three witnesses. Bhagwan Singh (DW-1)
stated that about 20 years ago Devendra
Pratap Gaur was murdered near Kaserkala
Railway crossing when the railway gate was
closed. Two unknown persons did firing. He
was having a medical store and had seen
from inside the door that unknown persons
came on the motorcycle and ran away. This
witness stated that the S.H.O. got his
signature on the memo Ex.Ka.7. He stated
that he informed the S.H.O. that two
unknown persons fired upon the deceased.
He signed on 09.10.1989 and later on came
to know that the deceased is a police officer
who was involved in Maya Tyagi scandal
case. Till the time police arrived at the spot,
there was no family member of the
deceased. In cross-examination by public
prosecutor, he denied that Yogendra was a
history-sheeter and under his influence he
has given the statement. He further stated
that he did not know him previously.

33. DW-2 Balraj Singh stated that on
09.10.1989, he had a shop near the railway
crossing in Kaserkala. On that day, at about
262 INDIAN LAW REPORTS ALLAHABAD SERIES
09:10 AM, one suspended S.H.O. was
murdered. He was sitting in his shop and
person who fired were unknown. This
witness was asked to identify unknown
Yogendra that he was at the spot. The
witness stated that this person was not at the
spot and he had seen him for the first time.
The crowd gathered at the spot and police
came after half an hour then he came to
know that the deceased is one Gaur. This
witness stated that on that day it was Navami
Day and there was a fair due to which there
was huge crowd. He had signed memo on
09.10.1989
i.e.
Ex.Ka-7.
In
crossexamination, he denied the suggestion that
he came to give statement on the asking of
Yogendra.

34. DW-3- Yogendra Kumar Kumar
stated that he along with deceased Devendra
Prakash Gaur
and Mahendra Kumar
Kaushik started from Naraura. He had to go
to Shikarpur and the others have to go
further. Around 9:45 the car was near
Kaserkala
railway
crossing,
Devendra
Prakash Gaur got down from the car to eat
tobacco and he got down to buy cigarette.
When Devendra Prakash Gaur was about to
sit in the car, two unknown persons came
and fired upon Devendra Prakash Gour and
he died at the spot. At that time, his brother
Narendra Kumar Gaur and his father Kanti
Prasad Gaur were not there. This witness
was asked to identify Yogendra and on
seeing him, he stated that he was not there
who fired on the deceased.