# Daya Ram Kurmi Alias Juraha Kurmi v. State Of U.P

- **Citation:** (2016) 8 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-16
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-ram-kurmi-alias-juraha-kurmi-v-state-of-u-p-44120
- **Pages:** 13

## Headnote

Juraha Kurmi against the judgment and order of conviction dated 09.04.2014 passed by Additional Sessions
Judge,convicting to appellant under Section 302 IPC is hereby set aside. Appellant is acquitted of all the
charges framed against him. Appellant is in jail. He shall be released forthwith unless and until he is wanted in
any other case.

The allegations that informant's brother Laxmi Bhurji son of Suraj Deen was returning home after taking bath
at tube-well of Ram Asrey Kurmi and had walked some paces on Pakka Road, when accused Daya Ram Kurmi
@ Juraha Kurmi resident of Jhuraha Khera alias Mampur, in company with one more person came out of
Bilayati Babul bushes, caught hold of him. When he raised alarm then the first informant and his wife Smt.
Somwati-who were going for marketing at Bindki-saw the incident. It was around 2.00 P.M., Daya Ram Kurmi
alias Juraha Kurmi and one more person possessing country made pistol in their hands, caught his brother and
Daya Ram Kurmi alias Juraha Kurmi with intention to kill fired on his brother and his companion also fired by
his country made gun. Alarm was raised by informant and his wife and a number of villagers arrived on the
spot. In the meanwhile, the assailants made their escape good by disappearing towards the eastern side of
'Babool' bushes. The informant's brother died on the spot. The dead body was lying on the road. Motive for
committing the offence was indicated in the first information report itself that there was some dispute with
regard to insisting on obtaining forceful possession of 1/3 share of Chheda Ram in the house built on the
leased land of the first informant and this was opposed by the deceased Laxmi Bhurji. Because of aforesaid
enmity, first informant's brother was killed by the accused persons. It has further been alleged in the first
information report that unknown person can be identified in case he appears before the first informant.

In this factual backdrop, it can hardly be believed that he saw the occurrence of firing which he claims to have
taken place before him. Since contents of the first information report were neither dictated by him nor were
read-over to him, whole first information report becomes handi work of third person. In such circumstances, it
would have been proper for the prosecution to have examined the scribe Krishna Kumar who could have
elaborated on point of dictation of written report by the first informant. In the absence of non examination of
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

the scribe, piecemeal testimony of Satya Narayan PW-1 on point of occurrence renders entire written report
dubious and not believable.
At this juncture, we may observe that it is cardinal principle of criminal jurisprudence that it is solemn duty of
the prosecution to prove its case and the charge on its own strength beyond reasonable doubt and in case
charge is not proved beyond doubt coupled with the circumstances of the case, then concerned accused
persons shall be entitled to benefit of doubt.

In the light of aforesaid observations on the factual as well as legal merit of the entire case, we are of firm
opinion that Government Appeal No.2915 of 2014 in form of leave to appeal is refused as it is devoid of merit
and without any force and is, accordingly, dismissed.

Held: Para-

Case Law discussed:

## Text

_Characters 0–39,959 of 41,347. This is a partial read: ask again with offset=39959 for what follows._

8 All. Daya Ram Kurmi Alias Juraha Kurmi Vs State Of U.P.
1047
(2016) 8 ILRA 1047
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1995 Of 2014

Daya Ram Kurmi Alias Juraha Kurmi ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Jainendra Kumar Mishra, Deepak Dubey, Jitendra Kumar Mishra

Counsel for the Respondent:
Govt. Advocate

The aforesaid Criminal Appeal No.1995 of 2014 has been preferred by the appellant, Daya Ram Kurmi @
Juraha Kurmi against the judgment and order of conviction dated 09.04.2014 passed by Additional Sessions
Judge,convicting to appellant under Section 302 IPC is hereby set aside. Appellant is acquitted of all the
charges framed against him. Appellant is in jail. He shall be released forthwith unless and until he is wanted in
any other case.

The allegations that informant's brother Laxmi Bhurji son of Suraj Deen was returning home after taking bath
at tube-well of Ram Asrey Kurmi and had walked some paces on Pakka Road, when accused Daya Ram Kurmi
@ Juraha Kurmi resident of Jhuraha Khera alias Mampur, in company with one more person came out of
Bilayati Babul bushes, caught hold of him. When he raised alarm then the first informant and his wife Smt.
Somwati-who were going for marketing at Bindki-saw the incident. It was around 2.00 P.M., Daya Ram Kurmi
alias Juraha Kurmi and one more person possessing country made pistol in their hands, caught his brother and
Daya Ram Kurmi alias Juraha Kurmi with intention to kill fired on his brother and his companion also fired by
his country made gun. Alarm was raised by informant and his wife and a number of villagers arrived on the
spot. In the meanwhile, the assailants made their escape good by disappearing towards the eastern side of
'Babool' bushes. The informant's brother died on the spot. The dead body was lying on the road. Motive for
committing the offence was indicated in the first information report itself that there was some dispute with
regard to insisting on obtaining forceful possession of 1/3 share of Chheda Ram in the house built on the
leased land of the first informant and this was opposed by the deceased Laxmi Bhurji. Because of aforesaid
enmity, first informant's brother was killed by the accused persons. It has further been alleged in the first
information report that unknown person can be identified in case he appears before the first informant.

In this factual backdrop, it can hardly be believed that he saw the occurrence of firing which he claims to have
taken place before him. Since contents of the first information report were neither dictated by him nor were
read-over to him, whole first information report becomes handi work of third person. In such circumstances, it
would have been proper for the prosecution to have examined the scribe Krishna Kumar who could have
elaborated on point of dictation of written report by the first informant. In the absence of non examination of
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

the scribe, piecemeal testimony of Satya Narayan PW-1 on point of occurrence renders entire written report
dubious and not believable.
At this juncture, we may observe that it is cardinal principle of criminal jurisprudence that it is solemn duty of
the prosecution to prove its case and the charge on its own strength beyond reasonable doubt and in case
charge is not proved beyond doubt coupled with the circumstances of the case, then concerned accused
persons shall be entitled to benefit of doubt.

In the light of aforesaid observations on the factual as well as legal merit of the entire case, we are of firm
opinion that Government Appeal No.2915 of 2014 in form of leave to appeal is refused as it is devoid of merit
and without any force and is, accordingly, dismissed.

Held: Para-

Case Law discussed:

(Delivered by Hon'ble Bala Krishna Narayana, J.
&
Hon'ble Arvind Kumar Mishra-I, J.)

1. The arguments of these cases concluded on 16.08.2016. Following order was passed by
us on that date:

"Heard Sri Manish Tiwary and Sri A.K. Awasthi, learned counsel for the appellant,
learned AGA Sri Saghir Ahmad assisted by Sri J.K. Upadhya, Smt. Manjoo, learned brief holders
for the State in Criminal Appeal No.1995 of 2014.

Learned AGA Sri Saghir Ahmad assisted by Sri J.K. Upadhya, Smt. Manjoo,
learned brief holders for the State and Sri Bholeshwar, learned counsel for the accused-respondent
in Government Appeal No.2915 of 2014.

We will give reasons later but we make the operative order now.

The appeal is allowed. Impugned judgment and order dated 09.04.2014 passed by
Sri Pawan Pratap Singh (H.J.S.), Additional Sessions Judge, Court No.7, Fatehpur in S.T. No.222
of 2005 (State Vs. Daya Ram Kurmi and another) convicting to appellant under Section 302 IPC is
hereby set aside. Appellant is acquitted of all the charges framed against him. Appellant is in jail.
He shall be released forthwith unless and until he is wanted in any other case.

Government Appeal No.2915 of 2014 is dismissed
.
There shall be however no order as to cost"

2. Here are the reasons:-
8 All. Daya Ram Kurmi Alias Juraha Kurmi Vs State Of U.P.
1049
3. The aforesaid Criminal Appeal No.1995 of 2014 has been preferred by the appellant,
Daya Ram Kurmi @ Juraha Kurmi against the judgment and order of conviction dated 09.04.2014
passed by Additional Sessions Judge, Court No. 7, Fatehpur, in Sessions Trial No.222 of 2005,
State Vs. Daya Ram Kurmi and another, arising out of Case Crime No. 89 of 2004, under Section
302 I.P.C., Police Station Bindki, District Fatehpur, whereby he has been sentenced to life
imprisonment coupled with fine of Rs.5,000/- and in default of payment of fine, he will have to
suffer two months' additional rigorous imprisonment.

4. The aforesaid Government Appeal No. 2915 of 2014 has been preferred by the Stateappellant against the same judgment but pertains to order of acquittal dated 09.04.2014 passed by
Additional Sessions Judge, Court No. 7, Fatehpur, in Sessions Trial No.222 of 2005, State Vs. Daya
Ram Kurmi @ Juraha Kurmi and another, arising out of Case Crime No.89 of 2004 under Section
302 I.P.C., Police Station Bindki, District Fatehpur, whereby accused-respondent Puttan @
Pushpendra Kumar has been acquitted of charge for offence punishable under Section 302 I.P.C.

5. Since both the appeals referred to above, arise out of one judgment (S.T. No.222 of
2005) pertaining to one and the same incident involving common question of law, hence the same
are being heard together and decided by a common judgment.

6. Heard Shri Manish Tiwary, Sri A.K. Awasthi learned counsel for the appellant and
learned AGA Sri Saghir Ahmad assisted by Sri J.K. Updhyaya Smt. Manjoo Thakur, learned brief
holders for the State in Criminal Appeal No.1995 of 2014.

7. We have also heard learned AGA Sri Saghir Ahmad assisted by Sri J.K. Updhya, Smt.
Manjoo Thakur, learned brief holders on behalf of State-appellant and Sri Bholeshwar learned
counsel for the accused-respondent Puttan @ Pushpendra Kumar, in Govt. Appeal No.2915 of 2014
and perused the lower court record.

8. The factual sketch of the prosecution case as emanates from record and particularly from
perusal of the first information report appears to be; that the first informant Satya Narain Bhurji son
of Suraj Deen, resident of Paradan, Police Station Bindki District Fatehpur lodged a written report
at the aforesaid police station on 20.6.2004 at 4.30 P.M. regarding commission of offence of
murder of his brother, Laxmi Bhurji by the accused Daya Ram Kurmi alias Juraha Kurmi-presentappellant and Puttan alias Pushpendra Kumar accused-respondent in Govt. Appeal No.2915 of 2014
(in short referred to as "accused persons") with the allegations that informant's brother Laxmi
Bhurji son of Suraj Deen was returning home after taking bath at tube-well of Ram Asrey Kurmi
and had walked some paces on Pakka Road, when accused Daya Ram Kurmi @ Juraha Kurmi
resident of Jhuraha Khera alias Mampur, in company with one more person came out of Bilayati
Babul bushes, caught hold of him. When he raised alarm then the first informant and his wife Smt.
Somwati-who were going for marketing at Bindki-saw the incident. It was around 2.00 P.M., Daya
Ram Kurmi alias Juraha Kurmi and one more person possessing country made pistol in their hands,
caught his brother and Daya Ram Kurmi alias Juraha Kurmi with intention to kill fired on his
brother and his companion also fired by his country made gun. Alarm was raised by informant and
1050 INDIAN LAW REPORTS ALLAHABAD SERIES

his wife and a number of villagers arrived on the spot. In the meanwhile, the assailants made their
escape good by disappearing towards the eastern side of 'Babool' bushes. The informant's brother
died on the spot. The dead body was lying on the road. Motive for committing the offence was
indicated in the first information report itself that there was some dispute with regard to insisting on
obtaining forceful possession of 1/3 share of Chheda Ram in the house built on the leased land of
the first informant and this was opposed by the deceased Laxmi Bhurji. Because of aforesaid
enmity, first informant's brother was killed by the accused persons. It has further been alleged in the
first information report that unknown person can be identified in case he appears before the first
informant. The incident has been witnessed by a number of persons. Report be lodged and action be
taken. The scribe of written report is Krishna Kumar. This report is Ext. Ka. 1.

9. Contents of the aforesaid report were taken down in the check FIR at 4.30 P.M. on
20.6.2004 at Case Crime No.89 of 2004 under Section 302 I.P.C. Check FIR is Ext. Ka. 12 on
record. On the basis of entry so made in the aforesaid check FIR, a case was registered against the
accused persons at Case Crime No. 89 of 2004 under section 302 I.P.C. at the concerned police
station on 20.6.2004 at serial no. 32 of General Diary at 4.30 P.M.

10. Relevant to note that the defence admitted the aforesaid two papers check FIR and entry
no. 32 of the General Diary whereby the case was registered against the accused persons, therefore,
the formal proof of the same was dispensed with and both these papers were exhibited by the trial
court. Registration of the case vide entry no. 32 of General Diary dated 20.6.2004 is Ext. Ka. 13.

11. Thereafter, the investigation of the case followed soon after the registration of the case.
As per testimony of S.I. Subhash Chandra Shukla PW- 4, the case was registered in his presence on
20.6.2004. At that point of time, S.I. Subhash Chandra Shukla was In-charge Station House Officer
of Police Station Bindki. He, after doing the needful, proceeded to the place of occurrence and took
possession of the dead body of Laxmi Bhurji. He appointed witnesses for preparation of inquest
report and prepared inquest report Ext. Ka- 3 on 20.6.2004. The preparation of inquest commenced
at 04:30 P.M. and completed at 06.50 P.M. the very same day. In the opinion of inquest witnesses
and the Investigating Officer, it was thought proper to the send the dead body of Laxmi Bhurji for
post mortem examination in order to ascertain real cause of death. Therefore, relevant papers were
prepared viz.- letter to the Chief Medical Officer Fatehpur, Ext. Ka-4, letter to R.I. Ext. Ka-5,
Police Form-13 challan dead body Ext. Ka-6 and Photonash Ext. Ka. 7. Thereafter, post mortem
examination on the dead body of deceased Laxmi Bhurji was conducted by Dr. A.S. Khan PW-3 on
21.6.2004 at 4.15 P.M. The doctor found following four ante mortem injuries which are extracted
herein below:

1. Firearm wound of entry 2.5 cm x 2 cm x cavity deep on the back of right side of
chest 2 cm outer to the middle of chest. Blackening present in the area of 7 cm x 4 cm around the
wound.

2. Firearm wound of entry 4 cm x 3 cm x cavity deep on the back of skull 10 cm
behind the left ear with underlying bone fractured.
8 All. Daya Ram Kurmi Alias Juraha Kurmi Vs State Of U.P.
1051
3. Fire arm wound of exit 1.5 cm x 1 cm x cavity deep 7 cm above the right nipple.

4. Abrasion 2 cm x 2 cm on the back of right elbow joint.

12. The duration from the time of death till conduction of post mortem examination was
described one day. The cause of death was due to shock and haemorrhage as a result of firearm
injuries. The post mortem examination report has been proved as Ext. Ka. 2 by Dr. A.S. Khan PW3.

13. We further gather from records that the Investigating Officer, besides, recording various
statement of a number of persons including witnesses, also prepared memo of simple and blood
stained soil on 20.6.2004 and has proved the same as Ext. Ka. 9. He also prepared recovery memo
of vest, 'Lota' and shoes of deceased which were lying on the spot on 20.6.2004. This recovery
memo is Ext. Ka. 10.

14. On 26.6.2004, the investigation of this case was taken over by another I.O. Brajraj
Singh, the then Incharge Inspector, Police Station Bindki. He recorded statement of the prosecution
witness Somwati and arrested the appellant Daya Ram Kurmi @ Juraha Kurmi on 5.7.2004. He
also recorded statement of another co-accused Puttan @ Pushpendra Kumar and several other
persons. After completing the investigation, he filed charge sheet against the appellant which is Ext.
Ka. 11 under the aforesaid section of I.P.C. at aforesaid crime number. Thereafter, the case was
committed to the court of Sessions from where, it was made over for trial to the concerned
Additional Sessions Judge, Court No. 7 Fatehpur.

15. The prosecution case was opened before the trial court by the public prosecutor by
describing the charge brought against the accused persons and also by stating the evidence by
which it proposed to prove the guilt. After hearing the accused and the prosecution, the trial court
found prima facie case for framing charge against accused persons under section 302 I.P.C.
Accordingly, the charge was framed and readover to the accused persons who denied the charge
and opted for trial.

16. Consequently, the prosecution was asked to adduce its testimony. The prosecution
produced five witnesses in all. Reference of the prosecution witnesses is being elaborated here for
sake of convenience:- Satya Narayan, first informant PW-1, brother of deceased Laxmi Bhurji, is
stated to be an eye witness of the incident. Similarly, PW-2 Jitendra is also an eye witness of the
incident and is son of Satya Narayan. He has also described about the incident. Dr. A.S. Khan PW3 has conducted the post mortem examination on the dead body of the deceased on 21.06.2004 and
he has proved the same as Ext. Ka-2. S.I. Subhash Chand Shukla PW-4 has detailed various steps
taken by him for completing the investigation. He has also proved the prosecution papers say Ext.
Ka-3 to Ka-10. Subsequently, the investigation was taken over from him on 26.6.2004 by Inspector
Brajraj Singh PW-5. He also took various steps for completing the investigation. He has filed
charge sheet Ext. Ka. 11 against the accused persons under section 302 I.P.C. at aforesaid crime
number.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Thereafter, the evidence for the prosecution was closed and the statement of the
accused persons was recorded under section 313 I.P.C. In their statement, the accused persons
termed their implication false and stated that they have been roped in, in this case on account of
enmity. The appellant in the aforesaid criminal appeal claimed himself to be an old person and has
not committed any offence. Though the accused persons wished to adduce evidence in defence but
did not lead any testimony as such. The trial court after hearing both the sides on merit passed the
aforesaid impugned judgment and order dated 09.04.2014 in Sessions Trial No.222 of 2005, State
Vs. Daya Ram Kurmi and another, arising out of Case Crime No. 89 of 2004, under Section 302
I.P.C., Police Station Bindki, District Fatehpur, whereby aforesaid appellant was convicted and
sentenced for commission of offence under Section 302 IPC while Puttan @ Pushpendra Kumar
respondent in aforesaid government appeal was acquitted under Section 302 IPC.

18. Consequently, these two appeals one against order of conviction and one against
acquittal order.

19. It has been vigorously argued on behalf of the accused persons that it is a case of blind
murder and no one has seen the occurrence. Testimony of so called eye witnesses does not inspire
confidence, for the reason that their presence on the spot, under the circumstance of the case, is
rendered doubtful. The very foundation of entire prosecution case-written report Ext. Ka-1 has not
been proved properly in the testimony of PW-1-Satya Narain- the first informant-who has
categorically affirmed that he merely impressed his thumb impression on the report and he was
unaware of the contents of this report.

20. Learned counsel has engaged our attention to certain parts of the cross examination (of
PW-1) when he is not sure about the real contents of the FIR. Thus PW-1 appears to be improving
on material points. His statement given in the trial court is contradictory to what he stated before
the Investigating Officer under section 161 Cr.P.C. The statement of both the witnesses of fact
namely PW-1 and PW-2 Satya Narayan and Jitendra, respectively, produced by the prosecution
contradicts each other in material particular. It is surprising that one more person was said to be
companion of the accused person Daya Ram Kurmi @ Juraha Kurmi at the time of commission of
crime. It was stated in the first information report that this person can be identified as and when he
appears before the first informant and this person is none other than next door neighbour i.e. to the
adjoining house of first informant and the deceased. How can first informant claim that another
unknown person can be identified by him as and when he appears before him when the said person
is his next door neighbour. This shows hollowness of the claim of first informant and exposes his
credibility as an eyewitness and first informant and thus creates doubt regarding his presence on the
spot.

21. The another eye witness named in the first information report is Somwati, who was not
produced in the trial court, for reasons best known to the prosecution. The evidence of PW-1 is
sketchy, partisan and highly interested one, for the reason that he being brother of the deceased was
inimical towards accused persons. PW-2 though claims to have passed his 8th class in 1994, did not
8 All. Daya Ram Kurmi Alias Juraha Kurmi Vs State Of U.P.
1053
write first information report, but it was written by scribe Krishna Kumar son of Ram Pyare. This
also creates doubt on the presence of PW-2 Jitendra on the spot. He is a chance witness.

22. Lot of emphasis has been made on the cross examination of PW-2 at page no. 28 of the
paper book to the effect that as soon as PW-2 arrived on the spot, his father Satya Narayan and
mother Somwati were not present on the spot. This specific piece of testimony is axiomatic and
truth in itself and carries element of truth on point of presence of this witness at the place of
occurrence and virtually proves fact that PW-2 was never present on the place of occurrence and he
only arrived on the spot after a long gap of time when the incident had already occurred.

23. Lastly, it has been argued by learned counsel that PW- 2 Jitendra is highly inimical
towards accused persons because he has been convicted in a case under section 307 I.P.C. for an
offence relating to attempt to commit murder of Daya Ram Kurmi @ Juraha Kurmi (accusedappellant). This fact has been specifically admitted by him that he has been convicted in a case
under section 307 I.P.C. for making an attempt on life of accused Daya Ram Kurmi @ Juraha
Kurmi as appearing on page no. 28 of the paper book. PW-2 is highly interested in ensuring
conviction for appellant.

24. Per contra learned A.G.A. while refuting aforesaid arguments submitted that it is
incorrect to say that the contents of first information report have not been proved because thumb
impression proved is that of PW-1 which invariably establishes the first information report lodged
at the instance of Satya Narayan. The vivid and lively description of manner of incident has been
proved by both the eye witnesses PW-1 and PW-2, respectively. Expectation of pictorial and
parallel description matching identical description of one witness with the other witness but it is
obvious that their respective testimony on the whole corroborates each other in material particulars,
especially the manner and style of occurrence which cannot be doubted.

25. Learned AGA has further added that the presence of the two eyewitnesses on the spot,
is natural and genuine. Their evidence is inspiring confidence and it is settled principle of criminal
jurisprudence that testimony which corroborates each other in material particulars is to be believed
and contradictions appearing in their testimony, if found to be of trivial nature, should be avoided.
The prosecution has proved its case beyond reasonable doubt.

26. While refuting the aforesaid specific contention of learned AGA, in support of leave to
appeal against the accused Puttan @ Pushpendra Kumar in Government Appeal No. 2915 of 2014,
Shri Bholeshwar, learned counsel for Puttan @ Pushpendra Kumar engaged our attention to several
points of testimony appearing in the deposition of the two eye witnesses and in the testimony of the
Investigating Officer and also to specific parts of judgment of the trial court dated 09.04.2014 and
tried to convince that the case of accused Puttan @ Pushpendra Kumar is highly doubtful and his
participation in the incident has not been established even in the least.

27. It is stated that the incident took place on 20.6.2004 but the name of the accused Puttan
@ Pushpendra Kumar surfaced in the statement of Satya Narayan and his wife Somwati on
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

21.10.2004 and investigation regarding unknown person was started by the Investigating Officer
only on 15.9.2004 after inordinate delay for which no plausible explanation has been given by the
prosecution. The aforesaid factual aspect of such belated investigation appears in examination in
chief of Braj Raj Singh PW-5. How and why both the eye witnesses kept mum for such a long time
has not been explained by the prosecution. The accused Puttan @ Pushpendra Kumar happens to be
the very neighbour of the first informant and deceased, and reference about him in the first
information report is clearly spelt as unknown person. It was done with deliberate intention to teach
a lesson to the accused Puttan @ Pushpendra Kumar, for the reason that first informant was nursing
grudge against him on account of several counts.

28. The trial court has adopted appreciable view regarding the circumstances and testimony
of the prosecution witnesses and after correct appraisal of facts and law, has recorded just finding
of acquittal against the accused Puttan @ Pushpendra Kumar which finding cannot be said to be not
based on material on record. The abysmal silence of the first informant, while lodging FIR
regarding non-mention of name of Puttan @ Pushpendra Kumar by itself is sufficient to render his
implication false in this case. His complicity surfaced in the statement of first informant recorded at
an ordinately delayed stage on 21.10.2004 i.e. after four months of the incident.

29. We have been further persuaded on behalf of the State-appellant (in Govt. Appeal
No.2915 of 2014) to believe that the testimony against accused Puttan @ Pushpendra Kumar is
clinching and consistent. However, the trial court without any rhyme or reason over looking the
vital facts and circumstances of the case, acting on assumption and presumption unnecessarily
recorded finding of acquittal which is erroneous and perverse. Both the eyewitnesses of occurrence
namely PW-1 and PW-2 Satya Narayan and Jitendra have categorically stated about participation of
accused Puttan @ Pushpendra Kumar in the incident in company with co-accused Daya Ram
Kurmi @ Juraha Kurmi but the learned Trial Court, without heeding to the correct and actual facts
and testimony, recorded finding of acquittal in favour of accused Puttan @ Pushpendra Kumar
which is liable to be set aside, and he be convicted for offence under section 302 I.P.C.

30. We have also considered the above rival submissions and scrutinized the record of the
case.

31. Core consideration in both the aforesaid appeals relates to fact whether the prosecution
has been able to prove its charge against appellant Daya Ram Kurmi @ Juraha Kurmi and Puttan @
Pushpendra Kumar beyond reasonable doubt and testimony of the two eye witnesses namely PW-1
and PW-2 Satya Narayan and Jitendra, respectively, is clinching and inspiring confidence?

32. Further, whether finding of acquittal recorded against the aforesaid accused Puttan @
Pushpendra Kumar is perverse on the ground that it is not based on material on record and the view
so taken by the trial court is not possible under the facts and circumstances of this case?

33. In so far as death of deceased Laxmi Bhurji is concerned, that is admitted to both the
parties. Only question that engages our attention is confined to the fact whether the occurrence as
8 All. Daya Ram Kurmi Alias Juraha Kurmi Vs State Of U.P.
1055
stated to have taken place on 20.6.2004 at about 2.00 P.M. was outcome of act of present accusedappellant Daya Ram Kurmi @ Juraha Kurmi and accused-respondent Puttan @ Pushpendra ( in
Govt. Appeal).

34. From perusal of the first information report, we gather that in this report, name of
accused Daya Ram Kurmi @ Juraha Kurmi has been specifically described that he in company with
one unknown person shot dead informant's brother Laxmi Bhurji at 2.00 P.M. on the spot. The
doctor witness PW-3 has noted four ante mortem injuries on the dead body of Laxmi Bhurji. Two
fire arm wound of entry and one fire arm exit wound have been noted on examination. Injury No.1
is in shape of firearm wound of entry 2.5 cm x 2 cm x cavity deep on the back of right side of chest
2 cm outer to the middle of chest. Blackening present in the area of 7 cm x 4 cm around the wound.
Injury No.2 has been stated to be firearm wound of entry 4 cm x 3 cm x cavity deep on the back of
skull 10 cm behind the left ear with underlying bone fractured. Injury No.3 is firearm wound of exit
1.5 cm x 1 cm x cavity deep 7 cm above the right nipple. In this way, injuries No. 1 and 3 may be
treated result of one shot causing entry wound and exit wound, respectively. Injury no.4 is Abrasion
in measurement of 2 cm x 2 cm on the back of right elbow joint. This may be caused, in the opinion
of doctor, by fall of deceased on the ground. This post mortem examination report has been proved
by PW-3 as Ext. Ka. 2. Autopsy was done on 21.6.2004 at 4.15 P.M. and duration from the time of
death (of the deceased) till conduction of post mortem examination was described one day.
Naturally, the doctor has opined cause of death due to shock and haemorrhage as a result of
aforesaid ante mortem injuries. He has stated that these injuries were sufficient in ordinary course
of nature to cause death. The death of the deceased might have taken place on 20.6.2004 around
2.00 P.M.

35. Now we may come to the meritorial aspect of the occurrence as described by the two
eye witnesses of the incident. PW-1 Satya Narayan has stated that on the date of occurrence, he was
coming from Bindki side along with his wife Somwati when his brother Laxmi Bhurji was
returning after taking bath from tube-well. When he reached on Pakka road, accused persons Puttan
@ Pushpendra Kumar and Daya Ram Kurmi @ Juraha Kurmi who laid in ambush behind bush
appeared on the scene. Daya Ram Kurmi @ Juraha Kurmi fired from his country made pistol on
Laxmi Bhurji who fell down and then Puttan @ Pushpendra Kumar fired on him. His son Jitendra
also arrived on the spot and he also witnessed the incident. Alarm was raised by them whereupon
the assailants fled away from the scene and disappeared behind bushes and a number of villagers
arrived on the spot. Thereafter, the report was lodged by the first informant after it was written by
scribe Krishna Kumar.

36. Similar is version of PW-2 Jitendra regarding the fact of occurrence. However, he
differs from PW-1 on certain factual aspects. He testified that his father Satya Narayan and mother
Somwati were going to Bindki from home and they saw the incident. At this stage, we may take
note of the contents of first information report wherein presence of first informant and Somwati
alone has been ascribed. There is no mention of presence of PW-2 Jitendra on the spot at the time
of occurrence.
1056 INDIAN LAW REPORTS ALLAHABAD SERIES

37. Obviously, Jitendra PW-2 who is son of first informant, is a literate person and has
passed 8th class examination in the year 1994. Therefore, non mention of his name in the first
information is sufficient fact for drawing conclusion that in all eventuality, Jitendra PW-2 was not
present on the spot because his presence could not have gone unnoticed by the first informant while
he had already named his wife to be present on the scene of occurrence in the contents of the FIR
and who accompanied him and saw the incident. How Jitendra's name was left out is beyond
comprehension of a man of ordinary prudence.

38. It is obvious that first informant's wife Somwati has not been produced as witness in the
trial court. Now we may further draw some positive conclusion from testimony of PW-1 Satya
Narayan, in so far as the description of manner of the incident is concerned. On page 17 of paperbook, it is reflected that this witness PW-1 has stated that his son Jitendra also arrived on the spot
and he dictated the first information report to Krishna Kumar. However, in examination in chief, he
has stated that this report was not read over and explained to him and only thumb impression was
obtained on it. This piece of testimony regarding non-disclosure of contents of written report to the
first informant by the scribe Krishna Kumar, might have been treated as an isolated piece of
testimony in form of aberration, but in his cross examination, the fact was exposed particularly on
page 22 of paper-book when this witness has been confronted with query that though he has stated
that he got the report written but he has also stated that he did not dictate the report. The person
who wrote the report was not his relative. He again said that after the report was written, it was not
read over to him. Thereafter when he has been queried regarding veracity of his statement
previously given before the trial court, then he has expressed doubt about his testimony on
particular fact as to whether he dictated the report or he did not dictate the report. This cannot be
said by him with certainty. He further stated that he did not receive any paper from the police
station when he lodged his report.

39. Further, he has stated that he knew that the name of Puttan @ Pushpendra Kumar has
figured in the first information report lodged at the police station. This piece of testimony so
emerging in the cross examination virtually throws out the entire prosecution case, for specific
reason that this witness is uttering blatant lie and is not aware about the contents of the first
information report and he is not sure whether he himself dictated the contents so recorded in the
written report Ext. Ka-1 or he did not dictate the contents of first information report. Non-mention
of name of Puttan @ Pushpendra Kumar though he appears to be residing in his neighbour-hood is
a fact which throws doubt on credibility of this witness.

40. Obviously, the first informant appears to be highly interested, partisan and chance
witness. It is settled law of criminal jurisprudence that the testimony of relative witness is to be read
with caution and circumspection and in case it is found tainted with bias and with motive to be
interested in conviction of the accused-appellant, the same should be discarded by the Court. Non
mentioning of the name of Puttan @ Pushpendra Kumar in the first information report, instead
mentioning of some unknown person who can be identified by the first informant, as and when, he
appears before him is high degree concoction.
8 All. Daya Ram Kurmi Alias Juraha Kurmi Vs State Of U.P.
1057
41. We gather from the record that son of first informant Jitendra PW-2 has been convicted
in a case under section 307 IPC for an attempt to commit murder of accused-appellant Daya Ram
Kurmi @ Juraha Kurmi. Once foundation of first information report is rendered dubious coupled
with attendant facts and circumstances of the case then the entire edifice of prosecution case falls
on the ground. In this case, the prosecution witnesses being relative and interested witnesses whose
credibility is eroded on the point of their presence on the spot, therefore, the prosecution could not
establish contents of the first information report. The first informant has tried to improve his
testimony before the trial court, when he filed an affidavit and that affidavit was discovered to be
not properly prepared whereby the name of Puttan @ Pushpendra Kumar was sought to be brought
into light. He went on improving that after the occurrence, he was mentally perturbed and he could
not mention the name of the assailants but he is stating truth on that moment (when he filed
affidavit). His statement given to the Investigating Officer involves participation of three persons in
the incident and he has been confronted for that statement by the defence. He could not assign any
satisfactory reason for the same. On Page 25 of the paper-book, he has stated that when he saw his
brother for the first time, he saw him lying on the ground with head downward.

42. Similarly, Jitendra PW-2 has stated in his cross examination in the last two lines on
page 28 of paper-book that when he reached on the spot, his father Satya Narayan and mother
Somwati were not present on the spot. He too has been confronted with the statement recorded
under section 161 Cr.P.C. wherein he has also stated involvement of three persons in the incident
whereupon he has denied such statement having been given by him and he could not assign any
reason for the same. This specific piece of testimony emerging in the statement of both the
aforesaid witnesses of fact generates genuine and reasonable doubt regarding presence of these two
witnesses on the spot. It is obvious that the presence of Jitendra PW-2 is highly doubtful and
presence of first informant on the spot can be placed a little after the incident had taken place,
because he arrived on the spot and saw his brother first, then he saw him lying on the ground.

43. In this factual backdrop, it can hardly be believed that he saw the occurrence of firing
which he claims to have taken place before him. Since contents of the first information report were
neither dictated by him nor were read-over to him, whole first information report becomes handi
work of third person. In such circumstances, it would have been proper for the prosecution to have
examined the scribe Krishna Kumar who could have elaborated on point of dictation of written
report by the first informant. In the absence of non examination of the scribe, piecemeal testimony
of Satya Narayan PW-1 on point of occurrence renders entire written report dubious and not
believable.

44. At this juncture, we may observe that it is cardinal principle of criminal jurisprudence
that it is solemn duty of the prosecution to prove its case and the charge on its own strength beyond
reasonable doubt and in case charge is not proved beyond doubt coupled with the circumstances of
the case, then concerned accused persons shall be entitled to benefit of doubt. In this case, the
learned trial court, though rightly acquitted accused Puttan @ Pushpendra Kumar but took
parochial and partial view of the incident and misread the testimony of PW-1 and PW-2 on the
1058 INDIAN LAW REPORTS ALLAHABAD SERIES

point of occurrence and failed to appreciate the fact that the presence of prosecution witnesses as
alleged on the spot, is highly doubtful.

45. The trial court has also failed to take note of fact that the contents of first information
report were not sayings of first informant Satya Narayan PW-1. The first information report did not
figure name of Puttan @ Pushpendra Kumar though he happens to be neighbour of first informant.
PW-2 Jitendra has himself admitted in his cross examination that when he reached on the spot, he
could not find (presence of) his father and mother namely Satya Narayan PW-1 and Somwati on the
spot. The first informant Satya Narayan has stated that when he saw his brother for the first time, he
was lying on the ground. These particular aspects of this case are substantial in nature and are
sufficient to throw doubt on the veracity of the prosecution case. Certainly, the view taken by the
trial court, while convicting the accused Daya Ram Kurmi @ Juraha Kurmi that he committed
crime, is erroneous and perverse and is not sustainable in law. In so far as acquittal of accusedrespondent Puttan @ Pushpendra Kumar is concerned, it can be specifically observed by us that the
finding of acquittal is profusely supported by material on record and the view so taken by the trial
court is justified which needs no interference by us at this stage.

46. These are the reasons upon which we set aside the impugned judgment and order of
conviction dated 09.04.2014 passed by Additional Sessions Judge, Court No.7, Fatehpur, in
Sessions Trial No.222 of 2005 arising out of Case Crime No. 89 of 2004, under Section 302 I.P.C.,
Police Station Bindki, District Fatehpur.

47. However, we direct that appellant will ensure compliance of provisions of Section 437
A Cr.P.C. by appearing before the concerned trial court at the earliest.

48. In the light of aforesaid observations on the factual as well as legal merit of the entire
case, we are of firm opinion that Government Appeal No.2915 of 2014 in form of leave to appeal is
refused as it is devoid of merit and without any force and is, accordingly, dismissed.

49. However, we provide that he will have to furnish bonds under Section 437A Cr.P.C.
before the concerned trial court at the earliest.

50. Let a copy of this order be certified to the concerned trial court for information and
necessary follow up action.
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8 All. Sukhdev Vs State Of U.P. & Ors.
1059
(2016) 8 ILRA 1059
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.08.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Revision No.- 2408 Of 2016

Sukhdev ...Revisionist
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Prakash Narayan Dwivedi

Counsel for the Opposite Parties:
G.A

The revisionist has moved application under Section 156(3) CrPC for investigation and prosecution of opposite
parties for offences under Section 420 ,406, 504, 506 IPC and 3(1)(vi) and 3(1)(x) of the Scheduled Castes or
Schedule Tribes (Prevention and Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act).