# Devendra Kumar @ Jhunna & Ors v. State

- **Citation:** (2025) 3 ILRA 391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-21
- **Case number:** Criminal Appeal No. 2696 of 1981
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-jhunna-ors-v-state-53089
- **Pages:** 25

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 302-FIR lodged just after two hours of
the incident-evidence of injured witness is held
on high-pedestal- In prosecution version every
accused has been assigned specific weaponaccused persons were prompted by motive -
surviving
accused
had
formed
unlawful
assembly with co-accused-brutal assault- with
intention
to
kill
and
caused
fatal-died
instantaneously-no legal or factual error in the
392 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order - trial court has rightly
discarded the defense evidence.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,969 of 83,646. This is a partial read: ask again with offset=39969 for what follows._

3 All. Devendra Kumar @ Jhunna & Ors. Vs. State
391
depth
whereof
could
not
be
measured, just 3.5 cm above partition of
waist with blackening, tattooing and
charring. This is undoubtedly vital part of
the body. Had this injury been little closer
to heart or lungs or any other vital organ,
injuring the same it would have definitely
caused death, an offence of murder in open
Court.

41. Under these circumstances, nonproduction of any particular person as
witness is of no consequence.

42. We have gone through the
judgment relied on by learned counsel for the
appellant.

43. In view of the discussion made
hereinabove, we find that the judgments
relied on by learned counsel for the appellant
has no applicability in the facts and
circumstances of the present case.

44. We, therefore, find that the
present appeal is devoid of merits and is
accordingly dismissed. The conviction of
appellant Gendan Lal is confirmed.

45. In so far as the punishment
for life is concerned, we find that the
incident had taken place in broad day
light inside the running courtroom when
statements were being recorded with the
Presiding Officer on the Dias. We are of
the opinion that this is a fit case where
maximum punishment has been awarded
by the trial court and we, therefore,
affirm the punishment for life along with
other punishments, as awarded.

46. Since the appellant Gendan Lal
is on bail, his bail bonds are cancelled and the
sureties are discharged. He is directed to
surrender before the court concerned within
three weeks to undergo the punishments
awarded.
47. Lower court record be sent to
the concerned Court forthwith.

48. Let a copy of this order be
communicated
by
the
Registrar
(Compliance) to the Court concerned for
compliance and to proceed in accordance
with law in case the accused fails to
surrender.
----------
(2025) 3 ILRA 391
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2025 &
05.03.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2696 of 1981
And
Criminal Appeal No. 660 of 1984

Devendra Kumar @ Jhunna & Ors.
 ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Sri S.S. Tewari, Sri Ajay Kumar Pandey, Sri K.K.
Srivastava, Sri Roshan Khan, Sri Satish Trivedi

Counsel for the Respondent:
D.G.A., Sri Mayank Bhushan

Criminal Law - Indian Penal Code,1860 -
Section 302-FIR lodged just after two hours of
the incident-evidence of injured witness is held
on high-pedestal- In prosecution version every
accused has been assigned specific weaponaccused persons were prompted by motive -
surviving
accused
had
formed
unlawful
assembly with co-accused-brutal assault- with
intention
to
kill
and
caused
fatal-died
instantaneously-no legal or factual error in the
392 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order - trial court has rightly
discarded the defense evidence.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Satya Deo @ Bhoorey Vs St. of U.P. AIR 2020
(SC) 4526

2. Chandan Vs The St. (Delhi Admin) 2024 Live
Law (SC) 288

(Delivered by Hon'ble R.M.N. Mishra, J.)

1. Criminal Appeal No.2696 of 1981
has been preferred against the judgment
and order dated 19.11.1981 passed by VIIth
Additional
Sessions
Judge,
(Non-
Metropolitan Area) Kanpur Nagar in S.T.
No.75 of 1977 and S.T. No.304 of 1977,
and Criminal Appeal No.660 of 1984 arose
out
of
judgment
and
order
dated
18.01.1984 passed in S.T. No.75 of 1977,
in both the session trials. All the nine
appellants have been convicted for charge
under Section 147, 148, 302/149, 325/149
and 323/149 IPC, P.S. Derapur, Kanpur.

2. In S.T. No. 75 of 1977 appellant
Devendra Kumar alias Jhunna, Jia Lal alias
Dadu, Avdhesh and Smt. Ram Piari and in
S.T. No.304/1977 accused Ram Pratap,
Bhuneshwar, Bhanu Pratap alias Laluna,
Shiv Das and Krishna Kumar alias Chuttan
were sentenced to undergo imprisonment
for life for charge under Section 302/149
IPC. They were also found guilty for
charge under Section 325/149 Cr.P.C., for
which they were sentenced to one year's
rigorous imprisonment. They were further
sentenced
to
six
months
rigorous
imprisonment under Section 323/149 IPC.
Accused Devendra Kumar alias Jhunna,
Shiv Das, Krishan Kumar Chuttan were
sentenced
to
one
years
rigorous
imprisonment for charge under Section 147
IPC and accused Ram Pratap, Avdhesh,
Bhunesh,
Dadu
and
Lalauna
were
sentenced
to
one
years
rigorous
imprisonment under Section 148 IPC.

3. Accused Smt. Ram Piyari was
sentenced to life imprisonment for charge
under Section 302/149 IPC, one year
simple imprisonment for charge under
Section
325/149
IPC,
six
months
imprisonment for charge under Section
323/149
IPC
and
one
year
simple
imprisonment for charge under Section 147
IPC. All the sentences were directed to run
concurrently.

4. Criminal Appeal No.660 of
1984 arose against the judgment and order
dated 18.01.1984 passed by Learned IVth
Additional Sessions Judge, Kanpur Dehat
in S.T. No.75A of 1977, whereby appellant
Rajmun was convicted of charge under
Sections
148,
302/149,
325/149
and
323/149 IPC. Accused Rajmun is sentenced
to life imprisonment for charge under
Section 302/149 IPC, one year rigorous
imprisonment for charge under Section 148
IPC, one year rigorous imprisonment for
charge under Section 325/149 IPC and six
months rigorous imprisonment for charge
under Section 323/149 IPC.

5. Both the criminal appeals have
arisen out of conviction of appellants for
the same offence having arisen out of Case
Crime No.118 of 1976, under Sections 147,
148, 302/149, 323/149 and 325/149 IPC,
PS. Derapur, Kanpur. As both the criminal
appeals have arisen out of same incident
and offence and all the appellants have
been implicated as co-accused during the
trial, both the appeals have been clubbed
together and are being decided by a
common judgment. The appellants were
released on bail by orders of these Criminal
3 All. Devendra Kumar @ Jhunna & Ors. Vs. State
393
Appeals on direction of this court in their
respective criminal appeals.

6. Heard Sri Ajay Kumar Pandey,
learned Amicus Curiae on behalf of the
appellants, Sri Rahul Asthana, learned
A.G.A. for the State and perused the
material available on record.

7. The brief facts of the case as
culled out from the case of prosecution are
that on 29.06.1976 at around 12:00 hours in
the day, when the deceased Sheo Narain
who was the brother of informant Lalaram
was going to his house to take meal from
his shop, the accused persons namely
Avdhesh, Ram Pratap, Bhuneshwar were
armed with spears (Barchhai) , Dadu,
Lalauna, Rajmun were carrying (Tabbals),
Shiv Das, Jhunna, Chuttan and Smt. Ram
Piari carrying lathis, all belonging to
informant's village waylaid the deceased
and
started
attacking
him
by
their
respective weapons. The deceased raised an
alarm, the informant and Smt. Vimla wife
of deceased rushed to the spot to rescue the
deceased. The accused persons also gave
beating to the informant and Smt. Vimla ,
wife of the deceased. In the meantime,
witnesses Jagdish Narain, Ram Chander,
Nanhey, Asharfi Lal, Mahadev challenged
the accused whereupon they ran away
towards east. The deceased died on the
spot. The informant Lala Ram and Smt.
Vimla had also sustained injuries. The
motive of the offence as stated by the
informant in FIR is that he was a witness in
the murder case of Ram Gopal of the
village who had deposed against accused
Ram Pratap and others in an earlier murder
case.
Ram
Pratap
and
others
were
convicted by court of sessions and were
sentenced to 20 years imprisonment. The
convicts were enlarged on bail by orders of
High Court in Appeal, by this reason
accused persons were harbouring grudge
against the informant and his family
members.

8. The written report Ext. Ka-3
was filed by Lala Ram PW-2 at the Police
Station, Derapur, six miles away from the
village Chilauli, where the murder was
committed at 2:15 pm. On its basis Chick
FIR Ext. Ka-22 was drawn by Head
Moharir Ram Raj Singh, PW-9. He also
made entry in the general diary at report
No.18 dated 29.06.1976 at 02:15 pm,
whereof copy is Ext. Ka-23. Injuries found
on the person of Lala Ram were also noted
in the general diary. The investigation of
the case was entrusted to S.I. Sri Ram
Singh, PW-8. He left for the scene of the
crime immediately. He prepared inquest
report Ext. Ka-5 on the dead body of the
deceased. Blood stained Dhoti Ext. 2 Shri
Ext.3, Baniyan Ext. Ka-4 found on the dead
body of Shiv Narain were taken into
custody and placed in a sealed cover and
Fard Ext. Ka-11 was prepared. He also took
into custody blood stained Lathi Ext-5 and
blade of Barchi Ext-6 found near the dead
body under fard Ext. Ka-12. The Lathi was
cut into three pieces and both the items
were placed under sealed covers. The
Investigating Officer thereupon searched
the houses of the accused Ram Pratap,
Bhunesh etc. but the accused were not
found. Memos of search Ext. Ka-13 to Ka17
were
prepared.
Thereafter,
the
Investigating Officer, prepared a diagram
of the dead body Ext. Ka-18, report for
postmortem examination Ext. Ka-19 and
Ka-20 respectively, and challan lash Ext.
Ka-21. The dead body was sealed in a
cloth-sheet and was entrusted to constables
Sri Subhan Ali and Ram Pal for being taken
to the Head Quarters for post mortem
examination. Sub Inspector Sri Mata
Prasad P.W.7, who had reached there after
394 INDIAN LAW REPORTS ALLAHABAD SERIES
the dead body had been sent and he had
taken over the investigation. He had also
collected in the presence of S.I. Sri Ram
Singh, blood stained earth Ext.7 and plain
earth Ext.8 from the scene of occurrence
and Fard Ext. Ka-8 was prepared in this
behalf. S.I. Sri Ram Singh returned to the
police station with the sealed bundles. S.I.
Sri Mata Prasad recorded the statements of
the witnesses
and prepared site-plan
Ext.Ka-7. He sent the injured Smt. Vimla
Devi
and
Lala
Ram
for
medical
examination with letters Ext. Ka-1/1 and
Ka-2/1.

9. Head Moharrir Sri Ram Raj
Singh P.W.9 had made entry in the general
diary at report No.34 on 29.6.1976 at 10:15
Ρ.Μ. when S.I. Sri Ram Singh returned to
the Police Station with five sealed bundles.,
Copy of the general diary is Ext.Ka-24.
These bundles were sent to Chief Medical
Officer's Office through Constable Sri
Komal Singh for being forwarded to the
Chemical Examiner, Agra, on 22.7. 1976 as
per entry in the general diary, a report No.
11, copy of which is Ext.Ka-25. As per
affidavit Ext. Ka-28, filed by Sri Komal
Singh he had brought these bundles, with
seals intact on 22.7.1976. Sri Vikram
Singh, Clerk of the Office of Chief Medical
Officer, Kanpur, has filed affidavit Ext.Ka27 to the effect that he had received these
five bundles and had despatched the same
that very day to Chemical Examiner Agra.
According to the report of the Chemical
Examiner, Agra, Ext. Ka-29, blood-stained
earth, shirt, Dhoti, Baniyan, blade of Barchi
and pieces of Lathi were found stained with
blood. According to the report of the
Serologist Ext .Ka-30, the blood-stained
earth and Baniyan had human blood of
Group- "0" the blood was dis-integrated on
Barchi and Lathi.

10. The injured Smt. Vimla Devi
was examined by Dr. Surendra Singh (P.W.-
1) on 29.6. 1976 at 8 P.M. when he found
the following injuries on her person and
prepared injury report Ext. Ka-1.

1. Contusion 8 Cm. x 2
Cm. on back, below right scapula
region oblique in direction.
2. Contusion 7 Cm. x 2
Cm. on right hand just below the
right elbow joint.
3. Contusion 6 Cm. x 2
Cm. on right hand about 4 Cm.
above the right wrist joint on lateral
aspect.
4. Three contusions in area
of 9 Cm. x 5 Cm. on right fore arm
about 8 Cm. above the wrist joint
on the medial aspect.
5. Contusion 6 Cm. x 2
Cm. on right thigh about 8 Cm.
above the right knee joint.

Injuries Nos. 1,2,3 and 5
were found to be simple and injury
No.4 was kept under observation
for which Xray was advised. The
injuries in the doctor's opinion were
about half day old and could have
been caused by a blunt weapon
Like a Lathi.

11.

Dr.
R.Prakash
P.W.3,
Radiologist, had taken X-ray of the right
fore-arm of Smt. Vimla Devi on 29.6.76
and he found the lower 1/3rd right radius
fractured for which he had issued his report
Ext. Ka-4.

12. Dr. Surendra Singh P.W.1 had
also examined Lala Ram at 8.30 P.M. and
issued injury report Ext. Ka-2, Following
injuries were found on his persons :-
3 All. Devendra Kumar @ Jhunna & Ors. Vs. State
395
1. Contusion 6 Cm. x 2
Cm. on right side of back below
right scapular region oblique in
direction.
2. Contusion 8 Cm. X 1 1⁄2
cm on right upper hand about 7
Cm. below the shoulder joint on
lateral aspect.
3. Contusion 6 Cm. X 1 1⁄2
Cm. on right thigh about 10 Cm.
above the knee joint on lateral
aspect.

13. These injuries were also about
half day old according to his opinion and
might have been caused, at 12.00 Noon on
29.6.76. Injuries were simple and caused by
blunt object.

14. The dead body of the deceased
was sent through Constable Sri Subhan Ali
and Constable Ram Pal Singh to the
mortuary on 29.6.1976 duly sealed for
which Constable Sri Subhan Ali has filed
his affidavit Ext. Ka-26. He had also
identified the dead body before the Medical
Officer at the time of its post mortem
examination.

15. Dr. B.K. Jain P.W.-6 had
performed the post mortem examination on
the dead body of the deceased Shiv Narain
on 30.6.1976 at 4.30 P.M. He had found
that the deceased was about 40 years of
age. Death had taken place about one day
earlier. Rigor-mortis had passed off and
decomposition had just set in. He found the
following ante-mortem injuries on the dead
body;

(i) Incised wound 6.5 Cm.
x 4 Cm. x 4 Cm, brain cavity deep
on the front and middle of head 6
Cm. above the bridge of nose,
frontal bone cut under-neath. Brain
matter coming out of the wound.
(ii) Incised wound 3 Cm. x
1.5 Cm. x bone cut underneath on
the right side front of head 4 Cm.
above the right eye-brow.
(iii) Incised wound 2 Cm. x
1 Cm. x muscle deep on the right
side face just outer to right eye
brow.
(iv) Incised wound 3 Cm. x
1.5 Cm. x bone cut underneath on
the right side head 11 Cm. above
right ear.
(v) Incised wound 4 Cm. x
1.5 Cm. x bone cut underneath on
the right side head 4 Cm. above
right ear.
(vi) Incised wound 4 Cm. x
2 Cm. x bone cut underneath on the
right side head 3 Cm. behind injury
No. (v)
(vii) Incised wound 10 Cm.
x 6.5 Cm. x Occipital bone cut
underneath on the back of head
oblique 3 1/2 Cm. behind right ear.
(viii) Abraised contusion
13 Cm. x 6 Cm. on the back of left
Shoulder and outer side left arm.
(ix) Abraised contusion 6
Cm. x 4.5 Cm. on the back of left
elbow.
(x) Incised wound 2 Cm. x
1 Cm. x muscle deep on the front
of left leg in middle.
(xi) Abraised contusion 9
Cm. x 6 Cm. on the back of right
elbow.
(xii) Contusion 19 Cm. x 4
Cm. on the left side back oblique
(xiii) Contusion 21 Cm. x 5
Cm. on the right scapular region
and middle of back oblique.
(xiv) Contusion 12 Cm. x 6
Cm. on the left buttock.
396 INDIAN LAW REPORTS ALLAHABAD SERIES
16. On internal examination, the
Medical Officer had found that the frontal,
temporal and right parietal and occipital
bones were cut under injuries Nos. 1 to 7.
Brain was cut and was coming out.
Stomach was empty. Small intestines
contained a little digested food and large
intestines contained faecal matter. In the
opinion of the Doctor, cause of death was
shock and hemorrhage as a result of antemortem injuries. Dr. Jain had prepared and
proved post-mortem report Ext. Ka-6.

17.

After
completing
the
investigation, Sub Inspector Sri Mata
Prasad P.W.7 submitted the charge-sheet
Ext. Ka-9 against the accused Jia Lal alias
Dadu, Rajmun, Avdhesh, Devendra and
Smt. Ram Piari, on 28.8.1976. They were
committed to stand their trial in the
Sessions Court by the Chief Judicial
Magistrate, Kanpur Dehat, under his order
dated 26.3.1977. The police could not
apprehend the other accused inspite of
issue of proclamation under Section 81
Cr.P.C. and after issuing warrants of
attachment as also attachment of the
movable
properties
of
Ram
Pratap,
Bhunesh, Lalauna alias Bhanu Prakash and
of Shiv Das, on 5.9.1976 and consequently,
charge-sheet Ext. Ka-10 was submitted
against the accused Ram Pratap, Bhunesh,
Bhanu Prakash alias Lalauna, Krishan
Kumar alias Chhuttan, as absconders. They
were committed to stand their trial in the
Sessions Court by the Chief Judicial
Magistrate
under
his
order
dated
28.10.1977.

18. Both the Sessions cases were
consolidated and S.T. No.75/1977 was
made the leading case. All the accused
except
Rajmun
were
charged
under
Sections 147, 148, 302/149, 325/149 and
323/149 I.P.C. to which they pleaded not
guilty. During the trial, the accused Rajmun
jumped bail and his case had to be
separated from S.T. No.75 of 1977 under
order dated 22.7. 1980 vide S.T. No.75 A of
1977. The accused were tried for charge
under Sections 147, 325/149, 302/149,
323/149, 148 IPC.

19. In support of its case, the
prosecution has examined nine witnesses in
all. Of these, Dr. Surendra Singh P.W. 1,
Dr. R. Prakash, Radiologist, P.W.3 and
Dr.B.K.Jain P.W.6 are the medical Officers
and their evidence has already been
referred to above, while stating the
prosecution case. Sub-Inspector Sri Mata
Prasad P.W.7 and Sub-Inspector Sri Ram
Singh PW-8 are the Investigating Officers
and P.W.-9 Head Moharrir Sri Ram Raj
Singh is a formal witness who had prepared
check F.I.R. and made entries in the general
diary P.W-2 Sri Lala Ram, brother of the
deceased, PW-4 Smt. Vimla Devi wife of
the deceased and P.W.-5 Jagdish Prasad are
the eye-witnesses. The accused persons
also examined five witnesses in their
defence, including the accused Ram Pratap
who has been examined on his request.

20. We may now refer to the
evidence of the eye-witnesses examined by
the prosecution.

21. Supporting the prosecution
case, Sri Lala Ram P.W.-2 brother of the
deceased, Sheo Narain, has deposed that
Ram Gopal of his village was murdered
and the accused Ram Pratap, Bhunesh,
Avdhesh, Dadu, Rajmun and others were
tried for that murder, for which he had
given evidence and these accused were
convicted and sentenced to 20 years'
rigorous imprisonment by the Sessions
Court. At the time of the murder of his
brother, these accused had been released on
3 All. Devendra Kumar @ Jhunna & Ors. Vs. State
397
bail by the Hon'ble High Court during the
pendency of their appeal. They bore enmity
against him and members of his family.

22. The witness further deposed
that about a year and eight months' back, at
about 12 noon, his brother Sheo Narain was
returning from his shop. He was also
following him. When his brother reached
infront of the house of Jagdish Narain on
the passage, the accused Ram Pratap,
Bhunesh,
Avdhesh,
carrying
Barchi
(spears), and the accused Dadu, Rajmun
Lalauna carrying Tabbals and the accused
Sheo Das, Jhunna, Chhuttan and Smt. Ram
Piari carrying Lathies, came there. He
could not notice from which side they had
come. The accused started attacking his
brother with Barchi, Tabbals and Lathies.
His brother raised an alarm. The witnesses
came running to rescue him. The wife of
his brother, Smt. Vimla Devi also came
there. Jagdish Narain, Nanhey, Asharfi Lal,
Mahadeo, Ram Chander had also come.
The accused attacked the witness and also
Smt. Vimla Devi with Lathies. On the
intervention of the witness, the accused ran
away towards the east. His brother died on
the spot. Smt. Vimla had also suffered
injuries. The witness further deposed that
he had prepared the report Ext. Ka-3 and
had gone to the police Station Derapur,
where it was filed. He identified the shirt,
Dhoti and Baniyan Exts. 1 to 3 as the
clothes worn by the deceased at the time of
the incident. He further deposed that at the
time of the incident, blood had fallen on the
ground where his brother had fallen down
after fatally hurt. He further deposed that a
Lathi and blade of Barchhi were found near
the dead body, which were stained with
blood. The witness also stated that the
accused Lalauna was a real brother of the
accused Ram Pratap, and Sheo Das accused
was the cousin of the accused Ram Pratap.
Jhunna and Chhuttan were also related to
Ram Pratap. All the other accused belongs
to the party of Ram Pratap and were his
supporters. Smt. Ram Piari was the mother
of the accused Dadu.

23. In his cross-examination, the
witness has stated that Jagdish Narain, who
was a prosecution witness in this case, was
informant of the earlier murder trial against
the accused Ram Pratap etc. and the
deceased Ram Gopal of the said murder
trial was the brother of Jagdish Narain. The
accused Ram Pratap was the Pradhan of the
village but he did not know if he was a
Principal in a School at Ladpur Pad. He
also stated that even before the murder of
his brother, the accused had tried to Gherao
them. He also claimed to have sent an
information to the Superintendent of Police
Kanpur, but the matter was not pursued
further. He admitted that Sri Kalika had
filed a complaint against him, his brother
u/s 307 I.P.C. Rajjan and the witness
Jagdish Narain, who claimed that it was a
false complaint and had been dismissed. He
admitted that in a case under Section 324
I.P.C. against Hirdaya Narain he had
appeared as a witness and the accused was
sentenced.

24. He further submitted that his
shop was about one furlong away from the
scene of occurrence on the road side. On
coming towards the village, in some
portions agricultural fields were lying on
both sides, there are khaliyans. The shop
was, however, in the abadi. He denied that
there were any bushes along the passage
from the shop to his house. The witnesses
further deposed that his brother was not an
eye witness in the murder of Ram Gopal,
brother of Jagdish Narain, but his brother
used to do pairvi in the case. He further
stated that his brother used to press him for
398 INDIAN LAW REPORTS ALLAHABAD SERIES
giving evidence and to state the truth. He
admitted that this fact was not mentioned
by him in the FIR, but he claimed that he
had told about it to the investigating officer.
However, his statement under Section 161
Cr.P.C. did not find any mention about it.
The witness could not give the date or
month of making the application to the
Superintendent of Police regarding the
attempts of the accused to Gherao them nor
to give the names of the witnesses of those
incidents. He admitted that no mention
about it was made by them in the FIR. He
did not remember if he had told about it to
the Investigating Officer, but he did not
give copy of the application to him. He also
testified that he and his brother had only
one house in village Chilauli and they live
jointly. The land was in the name of their
father at the time of incident. Although
their father died 3-4 years back, it was only
during the consolidation that their chaks
were separated after the murder of his
brother. He also admitted that he had
constructed a separate house in Rura and
the deceased had purchased land from
Babbu Shukla in his own name, but he
denied that he and his brother were living
separately since before the incident of this
case. He admitted that he had a ration card
in Rura also, while his brother had a ration
card in village Chilauli. They had a small
shop of betel and Cigarettes etc. He
admitted that he and his brother were
prosecuted by Sheo Datt Bajapi. It was a
false case and they had been acquitted. He
further stated that he had not noticed the
Lathi and the blade of Barchhai before
writing the report, but he noticed it when he
came out of his house after writing the
report. He did not think it necessary to add
it in the report before filing it. He claimed
that he had sustained injuries on his back
and on his waist. Although the hospital was
only 40 mts. away from the police Station,
yet he had not been sent for medical
examination immediately after the filing of
the report. He came with the investigating
officer and was medically examined latter
in the evening.

25. PW-1 further stated that at the
time of incident, Jagdish Baba was 12-14
paces away from the scene of occurrence.
He and Nanhey who was also at the same
distance had asked the accused to refrain
from beating the deceased. The accused
had not tried to attack Jagdish. The marpeet
took place only for half a minute. The
Tabbal was about 4 finger wide and was of
the shape of Axe (Kulhari). All the Tabbals
were of the same shape. All the accused
had attacked from all the sides. The ballam
was of the size of 4-5 fingers. Smt. Vimla
Devi had wept after the incident, but she
had not taken the head of her husband in
her lap, neither she had embraced the dead
body. The clothes of Smt. Vimla Devi or of
the witness were not stained with the blood
of the deceased. Apart from the enmity on
account of his giving the evidence, the
accused bore enmity against them for other
reasons also. Ram Pratap had also filed a
case under Section 379 IPC in which they
were acquitted. They had three houses in
the Chulauli. One of the houses had been
sold. They have a house adjoining the
house of accused Dadu, and in the third
house had therein shop. At the time of
murder of Ram Gopal, his parents used to
live in Phatak Wala house and as they were
not keeping good-health, he used to stay
with them in that house. But ordinarily, he
lived in the house adjoining the the house
of the accused Dadu. In his cross
examination on behalf of accused Dadu the
witness has admitted that in the house of
Dadu, there were only two members
namely the accused Dadu and his mother
Smt. Ram Piari. Dadu had no enmity
3 All. Devendra Kumar @ Jhunna & Ors. Vs. State
399
against them, except his giving evidence
against him in the murder case of Ram
Gopal. He denied the suggestion that Dadu
and his brother had been implicated with a
view to get them punished and their houses
may have been usurped by the witnessed.

26. PW-4 Vimla Devi, who is wife
of the deceased Sheo Narain. She stated in
her evidence that the incident occurred four
years and four months back, at about noon,
she was present in her house and she was
trying to get her infant baby female child
aged about two and a half year sleep. When
she heard shrikes of her husband Sheo
Narain who was crying that he was being
killed come fast, she rushed out of the
house. She also heard shouts of accused
persons. When the witness and other
reached at the door of the house of Dadu,
accused Smt. Ram Piari and Jhunna who
were present in the court at the time of
evidence, started beating them. She saw the
accused Dadu alias Jiya Lal, Lalauna, Sheo
Das, Bhunesh, Aavdhesh, Ram Pratap,
Chhuttan, Jhunna and Smt. Ram Piari
alongwith Rajmon were attacking her
husband. Lalauna, Dadu and Rajmon had
Tabbals, while Bhunesh, Avdhesh and Ram
Pratap had Barchhai, the remaining accused
Lathies. She also deposed that her brotherin-law Lala Ram had come from the
western side. The accused Sheo Das and
Chhuttan had attacked Lala Ram. Her
husband was attacked infront of the door of
Jagdish Narain and Jagdish Narain and
Nanhey were present infront of the house of
Jagdish. 4-5 other accused persons who did
not belong to her village had also come. All
of them had raised hue and cry when the
accused ran towards the east. Her husband
had fallen down on the spot and had died
instantaneously. She had sustained injury on
her hand, on her upper leg, and on her back
and at some other places, which were caused
by Smt. Ram Piari and Jhunna. Her brother
in-law, Lala Ram had gone to file report at
the police station Derapur. The police
accompanied him from police station, her
brother-in-law had written report and took it
to police station. The Sub Inspector had
carried out inquest of the body and
transmitted the body from the spot.
Thereafter another Sub Inspector reached
there who recorded her statements of
witness and her brother-in-law. Her medico
legal examination was conducted at hospital
and a temporary posture was drawn on her
right hand, it was 09:00 hours in the night,
therefore she was sent back to her house
with a police personnel. The police took her
at Rousla Hospital next day in the morning;
but due to power cut X-ray of her hand
could not be carried out. She went thereafter
at the place where postmortem was being
done. She was sent to her parental place at
Shastri Nagar by her brother-in-law (Jeth) in
the company of a person. X-ray of her hand
was conducted thereafter on some date.
Accused bore enmity with her husband as it
was witness in the murder of his elder
brother Ram Gopal.

27. The witness stated in her crossexamination that in her knowledge the
accused had no other enmity except that her
husband's brother had given evidence
against the accused Ram Pratap etc. in the
murder case of Ram Gopal. She also stated
that her husband used to look after his
cultivation and had set up a shop on the road
side. Her husband and Lala Ram live jointly
in the same house and would jointly
cultivate the land. The shop on the road side
also belonged to both the brothers. Her
parents-in-law were living in Phatak Wala
House, but food was cooked only in their
house situated near the scene of occurrence.
Sometime, her husband also slept at the
shop.
400 INDIAN LAW REPORTS ALLAHABAD SERIES
28. PW-4 further stated that she
and Lala Ram were not beaten infront of
the house of Jagdish. She could not
remember if she had told the Investigating
Officer about their beaten infront of the
house of Jagdish Narain, though her
version before the Investigating Officer is
that witness Lala Ram and she herself were
beaten infront of the house of Jagdish
Narain. When Lala Ram came to rescue the
deceased, four or five persons came from
the western side and Lal Ram went back
four or five paces. He again advanced,
thereupon the accused ran away. When
Lala Ram had turned back, his face was
towards west and he had gone upto the
house of Bane and Chhotey which adjoined
each other.

29. PW-4 further stated that
Barchhi was not pointed, but was flat
(chapti) and was 4-5 fingers long and one
or two fingers in width. The Tabbal was 4-5
finders wide and 2-3 finders deep. The
marpeet took place for half a minute after
he reached the scene of occurrence. She
had not embraced her husband's dead body
but had wept sitting by its side. Her clothes
were not stained with his blood.

30. She next stated that that her
husband had gone to the shop after
answering the call of nature in the morning
at 07:30 am alongwith Lala Ram. The shop
was being filled with earth. She had stated
on her own that her husband had gone to
the shop without eating anything. She had
sent her daughters aged about 10 and 8
years at the shop to convey that food was
ready at 11:30 am. Lala Ram's wife had
gone to her parents' house those days. Shiv
Das and Chhuttan had beaten Lala Ram,
when he was coming from the side of the
shop. She did not remember if she had told
it to the Investigating Officer, but it does
not appear in her statement under Section
161 Cr.P.C. that Lala Ram was beaten by
Shiv Das and Chhuttan.

31. The witness denied defence
suggestion that her husband was attacked
while he was going to answer the call of
nature or was returning after easing himself
in the darkness. She also denied defence
suggestion that she deposed falsely on
being tutored by her brother-in-law. She
clarified that she had herself witnessed the
incident. She is blessed of 5 children and
she cannot tell a lie, her children are infront
of her. Smt. Ram Piari was healthy at that
time, but now she has become old. She also
denied the suggestion that she got her
injuries manufactured falsely. There was
bright sunlight in days of incident. The
relationship between the witness and her
brother-in-law and husband were cordial.
Lathi and Pola were lying near the dead
body of her husband which was lying
towards north. He was lying on a site of
culvert, his legs were eastwards and head
was westwards.

32. PW-5 Jagdish Narain, the last
eyewitness had deposed that he was sitting
infront of his house. Nanhey Tewari was
sitting with him. He deposed that at about
mid-day, the deceased was coming from
west and was proceeding towards his house
and had reached infront of the house of
witness, when the accused persons came
out of the house of accused Dadu,
alongwith
Rajmun
and
attacked
the
deceased with their arms. The witness
attributed the same weapons to the accused
persons which are shown in the statements
of other eye-witnesses. PW2 Lala Ram and
PW4 -Vimla Devi.

33. According to the witness when
the deceased had raised alarm, his wife
3 All. Devendra Kumar @ Jhunna & Ors. Vs. State
401
Smt. Vimla Devi came out of the house
when she reached near the house of
accused Dadu she was attacked by Smt.
Ram Piari. Lala Ram was coming behind
the deceased. He challenged the accused
whereupon, he was attacked by Shiv Das
and Chhuttan near the door of Chhotey.
Mahadeo, Asharfi, Ram Chander had also
come from the west side. These persons as
well as the witness Nanhey asked the
accused persons to refrain from killing.
Shiv Narain alias Rajjan pleaded to leave
him, whereupon the accused persons ran
away towards east. Shiv Narain had died on
the spot. He had also stated that Nanhey,
Mahadev, Asharfi and Ram Chander have
colluded with the accused and they intend
that
the
accused
be
acquitted.
The
informant Lala Ram came back at around
03:30 pm alongwith police, the witness
acknowledged his signature on inquest
report, which is marked as Ext. Ka-5. He
also stated that the Sub Inspector visited the
spot after inquest who recorded his
statements.
In
cross-examination
the
witness has stated that he was an eyewitness and informant in the murder of his
brother Ram Gopal. Raj Narain is not an
eye-witness in that case and Nanhey a
witness in the present case is real brother of
Raj Narayan. Ram Swaroop was a witness
in murder case of Ram Gopal, he had given
eye-witness account in the murder case of
his brother Ram Gopal. He was also
informant
in
the
case
Ram
Pratap,
Bhunesh, Avdhesh, Jia Lal alias Dadu,
beside Rajmon, Rameshwar and Jagannath
(in all seven persons) were tried for murder
of his brother. Five were sentenced to life
imprisonment and two were sentenced to
two year's rigorous imprisonment. He
admitted that he and his brother Ram Gopal
were tried for having caused hurt to one
Chunnu in which Prem Narain father of
Ram Pratap accused had given evidence
and they were sentenced to six months'
rigorous imprisonment. The witnesses
admitted that the litigation had taken place
20 years back, over the house presently
occupied by Dadu between Dadu's father
Munni Lal and Har Prasad, cousin of
witness in which Har Prasad had lost. The
witness denied that he wanted to usurp
Dadu's house and added that there was no
one in his family except the witness
himself.

34. He further stated that he was
sitting in the Dehri of his house and
Nanhey was sitting 4-5 steps away on the
Chabutra since about an hour before the
incident. Many people were passing on the
way. He claimed that 1 and 1/2 or 2 hours
before the murder, the accused had gone
into Dadu's house in separate manner and
were carrying their arms. He had inquired
from the accused as to why they were
going with the arms. He had not suspected
anything wrong. He further stated that
although he had become afraid of the
accused but had not told any other villager
or Nanhey about the assembly of the
accused. He had seen Shiv Narain coming
at a distance 10-15 paces but he did not call
and warn him. He remained in his Dehri
thinking that he will go inside the house if
there was any danger to him. When the
accused started attacking Shiv Narain, he
only asked the accused to refrain from
doing so and made no other attempt to save
his life. Smt. Vimla Devi was beaten, 7-8
steps away from her husband infront of the
door of Dadu. The blade of Barchhi was
about 4 fingers' long and 3 fingers wide.
The Tabbal was of five fingers, circular like
an Axe.

35. He further deposed that
deceased was a Mahajan while the witness
is a Brahmin. The deceased had some land
402 INDIAN LAW REPORTS ALLAHABAD SERIES
and did its cultivation himself. The
deceased had no mango tree to keep watch
over the crop during the night. His fields
were situated on two or three sides of the
village, some where 6 to 8 furlongs away.

36. The witness also stated that
Lala Ram's brother Chunni had died in his
childhood and one Savitri had filed
objection
before
the
Consolidation
Authorities which were dismissed, he
added that right since the murder of Ram
Gopal the accused Ram Pratap was creating
trouble. He admitted that he was a witness
of the sale deed in respect of Phatak Wala
House executed by Lala Ram, and he had
given evidence in the proceedings under
Section 145 Cr.P.C., in which the accused
Ram Pratap was arrayed as opposite
parties. He also admitted that he had
opposed accused Ram Pratap in the
election.

37. PW-6 Dr. B.K. Jain has stated
that injuries Nos. 2,4,5,6 and 7 could be
caused by a heavy sharp cutting weapon
which includes a Tabbal and injury Nos. 3
and 10 could be caused by a sharp edged
weapon whose sharp edge was of about 2
cm. Ballam and Barchhi are included in
such instruments. In his opinion, the
injuries Nos. 8, 9, and 14 could be caused
by
a
blunt
weapon
like
a
Lathi.
Instantaneous death was possible from
these injuries and the injuries could have
been caused on 29.06.1976 at about 12:00
noon.

38. Dr. B.K. Jain PW-6 has stated
in his cross-examination that the time of
death given by him, on the basis of rigormortis and de-composition. He stated that
rigor-mortis passed off in upper limbs
between 18 to 36 hours de-composition sets
in after the rigor-mortis passes off. He has
estimated the time having regard to the fact
that it was the month of June and to the
climate of Kanpur. He had not mentioned
in the report as to in which part of the body,
decomposition had started. He admitted
that he had not found any punctured or
penetrating wound and that Barchhi and
Ballam were weapons of piercing. He ruled
out that the death could have taken place 36
hours earlier. Injuries Nos. 1, 2,4,5,6, and 7
had been caused. He agreed with the
observation of Modi that shape and size of
a wound generally corresponds to the
weapon used in inflecting the injuries. He
also stated the injuries Nos. 11, 12, 13 and
14 and 8 were on the back side of the body
and could be caused by a fall on rough and
hard surface.

39. Sub-Inspector Sri Mata Prasad
PW-7 has stated that he has not shown in
the site-plan or in the case diary the place
from
where
the
witnesses
saw
the
occurrence. He had also not shown
separately the places where Lala Ram and
Smt. Vimla Devi were attacked. He
admitted
that
an
application
dated
02.07.1976 moved by Sri Rajeshwar Prasad
Dixit, uncle of Ram Pratap, accused had
been sent to him for inquiry and affidavits
were also filed by Ram Adhar and Sheetal
Prasad. He had learnt in the course of
investigation that Sheo Das accused was a
dealer of Sugar and the statement of supply
Inspector was also recorded by him. The
witness also proved in his examination by
the Court in the course of his crossexamination, the proclamation issued by
the Chief Judicial Magistrate under Section
82 Cr.P.C. against the accused Ram Pratap,
Bhunesh and Lalauna on 09.07.1976,
marked Ext. C-1/1 to C-1/3. He also
deposed that the he had made attachment of
the property of these accused under Fard
Ext. C-2 on 05.09.1981. Warrants issued
3 All. Devendra Kumar @ Jhunna & Ors. Vs.