# Devendra Kumar @ Jhunna & Ors v. State of U.P

- **Citation:** (2025) 1 ILRA 125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-21
- **Case number:** Criminal Appeal No. 2696 of 1981
- **Bench:** Siddharth Varma Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-jhunna-ors-v-state-of-u-p-52954
- **Pages:** 25

## Headnote

126 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Juvenile Justice (Care
And Protection Of Children) Act, 2000 -
Sections 2(k), 2(l), 7-A, 20 & 49 - Juvenile
Justice (Care and Protection of Children)
Rules, 2007 - Rules 12 & 98 - Applicability
of 2000 Act retrospectively - All persons
who were below the age of eighteen years
on the date of commission of the offence
even prior to 1-4-2001 would be treated
as juvenile. If the accused claiming plea of
juvenility, was less than 18 years of age,
on the date of commission of offence, he
is entitled to be treated as juvenile and
will be given benefit as per 2000 Act,
notwithstanding the fact that the accused
was not entitled to the benefit of being a
juvenile on the date of offence under
Juvenile Justice Act, 1986, as Act was
passed
after
commissioning
of
this
offence. In the instant case the Juvenile in
conflict of law, dealt with under the
provisions of Juvenile Justice (Care And
Protection Of Children) Act, 2000 inspite
of the fact that occurrence took place in
the year 1976 and during trial of the case
Juvenile Justice Act, 1986 was enacted
and commenced. (Para 83, 84)
B. Criminal Law - Indian Penal Code, 1860
- Sections 147, 148, 149 & 302 - Common
object - Unlawful assembly - Natural
witness - Eyewitness credibility - Minor
inconsistencies - In the instant case at
around 12:00 hours in the day, the
deceased,
who
was
the
brother
of
informant was going to his house to take
meal from his shop. Accused persons
armed with spears (Barchhai) , Tabbals,
lathis, all belonging to informant's village
waylaid the deceased and attacked him by
their weapons. Deceased raised an alarm,
the informant and wife of deceased
rushed to the spot. Accused persons also
gave beating to the informant and wife of
the
deceased.
In
the
meantime,
challenged the accused whereupon they
ran away towards east. Deceased died on
the spot. Motive was that the deceased
was a witness in the murder case and had
deposed against the one of accused. Held :
It was proved beyond reasonable doubt
that
surviving
accused
had
formed
unlawful assembly together with coaccused on the date and time of the
incident and in prosecution of common
objection of the assembly they brutally
assaulted
the
deceased
in
concerted
manner by their respective weapons with
intention to kill him and caused fatal
injuries
on
his
person,
which
was
sufficient to cause death and on account
of the injuries sustained in the incident he
died instantaneously. Only due to the fact
that no punctured would was found on the
person of the deceased, the presence of
accused persons who were said to be
armed with Barchhai cannot be doubted.
Also only due to fact that informant with
whom accused persons had strong enmity
was spared in the incident by causing
simple injuries and was not assaulted by
dangerous weapons, his presence cannot
be doubted as he stated in his evidence
that he and his sister-in-law were rescued
by witnesses. PW-5 Jagdish Narain has
testified in his evidence that the incident
occurred infront of the house and he had
seen the incident. This fact is stated in FIR
itself that house of Jagdish Narain lies in
front of the place of incident and on that
reason his presence on the spot is natural
as he is supposed to be a witness of the
spot and only on account of prior enmity
with some accused persons his evidence
cannot be brushed aside. From medical
evidence, the mode and manner of the
incident, and the injuries found on the
person of the deceased and injured
witnesses, stand proved, and the sworn
testimony of the witnesses of fact/eyewitnesses finds corroboration from the
medical evidence. Appeal Dismissed (Para
77, 78, 79, 81, 90)
Dismissed. (E-5)

## Text

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1 All. Devendra Kumar @ Jhunna & Ors. Vs. State of U.P.
125
that the testimony of injured witness P.W.-
1, becomes fairly doubtful on account of
the fact that he had not been able to give a
correct description of the place where the
incident had occurred. If the testimony of
P.W.-1 is seen, he had definitely not been
able to connect the place of incident with
the map as had been given in the site plan
which was exhibited as Exhibit - ka8 in the
paper book. We are also of the view that
the P.W.-1 who was an injured witness had
not informed the first informant Shiv
Charan Singh about the incident himself.
We find after having perused the injury
report and the statement of P.w.-2, Dr. S.K.
Das that the injuries were so grievous that
he could not have spoken aloud and narrate
the incident to the first informant Shiv
Charan Singh. In the instant case, we find
that, in fact, another alleged eye witness
Nawab Singh had stated that he had
narrated the entire incident to Shiv Charan
Singh and on the dictation of Shiv Charan
Singh, Om Pal Singh had scribed the first
information report and we are, thus, of the
view that the P.W.-1 was such a witness
who could not be absolutely relied upon for
the purpose of convicting the accused
persons. We further find that the appellants
no. 5 and 8 who were carrying lathies were
not armed in such a manner as would make
it evident that they had gone with a
premeditated mind to do away with the
deceased.

14. Thus for all the reasons which we
have stated, the criminal appeal is
allowed. The impugned judgement and
order dated 1.3.1984 passed by the Special
Judge, Ghaziabad, is set aside. Since the
appeal against the appellants no. 1 Iqbal
Singh, the appellant no. 2 Onkar Singh @
Rirku, the appellant no. 3 Rakam Singh,
the appellant no. 4 Madan Singh, the
appellant no. 6 Prakash and the appellant
no. 7 Ishwar has already abated, we
confine our judgment and order to the
appellant no. 5 Sansar Singh and the
appellant no. 8 Krishan Pal, who are being
acquitted of all the charges under which
they were tried.

15. The appellant no. 5 Sansar Singh
and the appellant no. 8 Krishan Pal are
acquitted of the charges levelled against
them. The appellants are already on bail
and they need not surrender. The sureties
and bail bonds are discharged.

16. For the hard work which has been
put in by the learned Amicus Curiae Mr.
Saurabh Sachan, we quantify his fee as Rs.
25,000/- which shall be payable to him by
the Legal Services Authority forthwith. The
payment be got done under the supervision
of the Registrar General of this court.
----------
(2025) 1 ILRA 125
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2025

BEFORE

THE HON'BLE SIDDHARTH VARMA
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 of U.P. ...Respondent

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

Counsel for the Respondent:
Dga, Mayank Bhushan
126 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Juvenile Justice (Care
And Protection Of Children) Act, 2000 -
Sections 2(k), 2(l), 7-A, 20 & 49 - Juvenile
Justice (Care and Protection of Children)
Rules, 2007 - Rules 12 & 98 - Applicability
of 2000 Act retrospectively - All persons
who were below the age of eighteen years
on the date of commission of the offence
even prior to 1-4-2001 would be treated
as juvenile. If the accused claiming plea of
juvenility, was less than 18 years of age,
on the date of commission of offence, he
is entitled to be treated as juvenile and
will be given benefit as per 2000 Act,
notwithstanding the fact that the accused
was not entitled to the benefit of being a
juvenile on the date of offence under
Juvenile Justice Act, 1986, as Act was
passed
after
commissioning
of
this
offence. In the instant case the Juvenile in
conflict of law, dealt with under the
provisions of Juvenile Justice (Care And
Protection Of Children) Act, 2000 inspite
of the fact that occurrence took place in
the year 1976 and during trial of the case
Juvenile Justice Act, 1986 was enacted
and commenced. (Para 83, 84)
B. Criminal Law - Indian Penal Code, 1860
- Sections 147, 148, 149 & 302 - Common
object - Unlawful assembly - Natural
witness - Eyewitness credibility - Minor
inconsistencies - In the instant case at
around 12:00 hours in the day, the
deceased,
who
was
the
brother
of
informant was going to his house to take
meal from his shop. Accused persons
armed with spears (Barchhai) , Tabbals,
lathis, all belonging to informant's village
waylaid the deceased and attacked him by
their weapons. Deceased raised an alarm,
the informant and wife of deceased
rushed to the spot. Accused persons also
gave beating to the informant and wife of
the
deceased.
In
the
meantime,
challenged the accused whereupon they
ran away towards east. Deceased died on
the spot. Motive was that the deceased
was a witness in the murder case and had
deposed against the one of accused. Held :
It was proved beyond reasonable doubt
that
surviving
accused
had
formed
unlawful assembly together with coaccused on the date and time of the
incident and in prosecution of common
objection of the assembly they brutally
assaulted
the
deceased
in
concerted
manner by their respective weapons with
intention to kill him and caused fatal
injuries
on
his
person,
which
was
sufficient to cause death and on account
of the injuries sustained in the incident he
died instantaneously. Only due to the fact
that no punctured would was found on the
person of the deceased, the presence of
accused persons who were said to be
armed with Barchhai cannot be doubted.
Also only due to fact that informant with
whom accused persons had strong enmity
was spared in the incident by causing
simple injuries and was not assaulted by
dangerous weapons, his presence cannot
be doubted as he stated in his evidence
that he and his sister-in-law were rescued
by witnesses. PW-5 Jagdish Narain has
testified in his evidence that the incident
occurred infront of the house and he had
seen the incident. This fact is stated in FIR
itself that house of Jagdish Narain lies in
front of the place of incident and on that
reason his presence on the spot is natural
as he is supposed to be a witness of the
spot and only on account of prior enmity
with some accused persons his evidence
cannot be brushed aside. From medical
evidence, the mode and manner of the
incident, and the injuries found on the
person of the deceased and injured
witnesses, stand proved, and the sworn
testimony of the witnesses of fact/eyewitnesses finds corroboration from the
medical evidence. Appeal Dismissed (Para
77, 78, 79, 81, 90)
Dismissed. (E-5)
(Delivered by Hon'ble Ram Manohar
Narayan 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-
1 All. Devendra Kumar @ Jhunna & Ors. Vs. State of U.P.
127
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
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,
128 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.,
1 All. Devendra Kumar @ Jhunna & Ors. Vs. State of U.P.
129
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 :-

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.
130 INDIAN LAW REPORTS ALLAHABAD SERIES

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 eyebrow.

(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.

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
1 All. Devendra Kumar @ Jhunna & Ors. Vs. State of U.P.
131
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
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
132 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
1 All. Devendra Kumar @ Jhunna & Ors. Vs. State of U.P.
133
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
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
134 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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
1 All. Devendra Kumar @ Jhunna & Ors. Vs. State of U.P.
135
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 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. Ka5. 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
136 INDIAN LAW REPORTS ALLAHABAD SERIES
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.