# Dhananjay @ Pappu v. State of U.P

- **Citation:** (2023) 3 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-02
- **Case number:** Criminal Appeal No. 630 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhananjay-pappu-v-state-of-u-p-49865
- **Pages:** 24

## Headnote

Criminal Law- Indian Penal Code-1860Sections 299,300,302 & 304(I)-AccusedAppellant inflicted serious injuries which
resulted into death of the victimsConviction
U/s
302
IPC-No
embellishment
in
the
prosecution
version-medical evidence adduced stood
fully proved- Human blood was found on
the Khukari and other incriminating
articles-Any variation or omission in the
examination,
cross
examination
or
examination in chief will not jettison the
entire prosecution version and absolve
the
guilt-
Death
caused
was
not
premeditated-Accused
though
had
knowledge and intention that his act
would cause bodily harm but did not
want to do away with the deceasedOffence not punishable u/s 302 of I.P.C.
but is culpable homicide not amounting
to murder, punishable U/s 304 (Part I)-
Criminal jurisprudence in our country is
reformative
and
corrective
and
not
retributive- Conviction of appellant is
converted into conviction u/s 304 (I)
I.P.C.

Appeal partly allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,970 of 78,629. This is a partial read: ask again with offset=39970 for what follows._

864 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted and the reference and the suit of
Md. Farooq was dismissed on 10.12.2003.

12. It is a matter of surprise that
without
moving
any
application
for
condonation of delay and without adopting
any due course of law, the application
under Section 151 CPC was moved and the
same
was
allowed
by
Civil
Judge
(S.D.)/Waqf Tribunal, Meerut, without any
cogent reason and without any basis. Under
Order 23 Rule 1 CPC there is provision for
withdrawal of suit which reads as such:

"As per Order 23, Rule 1(1) of the
CPC, a plaintiff may abandon his suit or
abandon a part of his claim at any time
after the institution of a suit. As soon as an
application is filed under this sub-rule, the
withdrawal of the suit is complete and such
withdrawal is not dependent on the court's
order."

13. In this case no permission was
taken to withdraw the reference with liberty
to institute it again in respect of the subject
matter, therefore, there was no occasion or
right to move an application under Section
151 CPC. The Waqf Tribunal, Meerut, has
hammered on the version of the application
of the applicant that when the revisionist
did not accept him to be tenant then
necessity to restore the case arisen. From
the perusal of the withdrawal application or
from the perusal of the order dated
10.12.2003, it is crystal clear that no such
condition was imposed by Mohd. Farooq or
by the Court. The withdrawal application
was moved without any coercion or undue
influence. It has not been alleged by
opposite
party
no.2
that
he
was
withdrawing the reference case on the
condition that he would be treated to be
tenant of the property in question. The
Court below has wrongly concluded that if
the reference is restored, the multiplicity of
the suit would decrease and the parties
would be saved from any trouble. As the
matter had already been settled and
finalized by way of withdrawal, there was
no occasion to entertain the application
under Section 151 CPC after a gap of about
11 years and restore the reference to its
original number.

14. Certainly it is abuse and misuse of
the power and illegal exercise of the inherent
power of the Court. More so such withdrawal
order is revisable but no such procedure had
been adopted by opposite party no.2 and by
adopting a short cut method and by adopting
illegal measure, the impugned order has been
obtained which is factually and legally
incorrect. Thus, the impugned order is liable
to be set-aside and the revision is liable be
allowed.

15. Accordingly, the revision is
allowed and the order dated 29.9.2014
passed by Waqf Tribunal/Civil Judge
(S.D.), Meerut, is hereby quashed.

16. Let a copy of this judgment be
sent to the Court below for necessary
compliance.
----------
(2023) 3 ILRA 864
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE MOHD. AZHAR HUSAIN IDRISI, J.

Criminal Appeal No. 630 of 2014

Dhananjay @ Pappu ...Appellant
Versus
State of U.P. ...Respondent
3 All. Dhananjay @ Pappu Vs. State of U.P.
865
Counsel for the Appellant:
Sri Ram Suphal Shukla, Sri A.K. Pandey, Sri
Chandan Sharma, Sri Sandeep Shukla, Sri
Umesh Narain Shukla, Sri Vinod Singh (A.C.)

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code-1860Sections 299,300,302 & 304(I)-AccusedAppellant inflicted serious injuries which
resulted into death of the victimsConviction
U/s
302
IPC-No
embellishment
in
the
prosecution
version-medical evidence adduced stood
fully proved- Human blood was found on
the Khukari and other incriminating
articles-Any variation or omission in the
examination,
cross
examination
or
examination in chief will not jettison the
entire prosecution version and absolve
the
guilt-
Death
caused
was
not
premeditated-Accused
though
had
knowledge and intention that his act
would cause bodily harm but did not
want to do away with the deceasedOffence not punishable u/s 302 of I.P.C.
but is culpable homicide not amounting
to murder, punishable U/s 304 (Part I)-
Criminal jurisprudence in our country is
reformative
and
corrective
and
not
retributive- Conviction of appellant is
converted into conviction u/s 304 (I)
I.P.C.

Appeal partly allowed. (E-15)

List of Cases cited:

1. Shreekantiah Vs St. of Bombay, 1955 SCJ 233

2. Yunis alias Kariya VS St. of M P, AIR 2003 SC
539

3. Anil Yadav VS St. of Bihar, 1992 (1) Crimes
282

4. Thaman Kumar VS St. of Union Territory of
Chandigarh, AIR 2003 SC 3975

5. St. of Punjab VS Sucha Singh, AIR 2003 SC
1471

6. Nirmal Singh Vs St. of Bihar 2005 (41) ACC
302 (SC)

7. Hukum Singh Vs St. of Raj, 2000 (6) Supreme
Court 245 (SC)

8. Jagdish Vs St. of Har AIR 1998 SC 923

9. St. of Rajasthan Vs Hanuman AIR 2001 SC
282

10. R. Prakash Vs St. of Karn. 2004 (49) ACC
777 (SC)

11. Sandeep Vs St. of Har. 2001 CRLJ 1456

12. Sewak Singh Vs St. of MP 2002 (44) ACC 1
(SC)

13. Ambika Vs St., 2000 SCC (Criminal) 522

14. Surendra Narayan Vs St., AIR 1998 SC 198.

15. Baldeo Singh & anr. Vs St. of Pun., 1996 AIR
372, 1995 SCC (6) 596

16. Amrik Singh vs St. of Pun. & ors., 2000 CriLJ
4305

17. St. of U.P. Vs Harvansh sahay 1996(6) SCC
50

18. St. Of U. P. Vs Hari Mohan & ors., 2000 SCC
516

19. Ram Bali vs St. Of U. P., 2004, SCC 2329-C
Vol. - 02

20. Vijay Singh vs St. of Bihar, 2003 Scc 1093

21. Dhananjay Singh vs St. of Pun., 2004 SCC
CRI 851

22. Ram Bihari Yadav VS St. of Bihar & or.s ,
1998 (4) SCC 517)

23. Amar Singh VS Balwinder Singh & ors.,
(2003 (2) SCC 518)

24. Khema alias Khem Chandra vs St. of U.P.
criminal appeal no. 1200-1202 of 2022 arising
out of SLP (Criminal) No. 8624 Of 2019
866 INDIAN LAW REPORTS ALLAHABAD SERIES
25. Anil Phukan vs St. of Aasam 1993 Law Suit,
(229)

26. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

27. Tukaram & ors. Vs St. of Mah., (2011) 4
SCC 250

28. B.N. Kavatakar & anr. Vs St. of Karn. 1994
SUPP (1) SCC 304

29. Mohd. Giasuddin Vs St. of A.P., [AIR 1977
SC 1926]

30. Deo Narain Mandal Vs St. of U.P. [(2004) 7
SCC 257]

31. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

32. Jameel Vs St. of U.P. [(2010) 12 SCC 532]

33. Guru Basavraj vs St. of Karn., [(2012) 8 SCC 734]

34. Sumer Singh Vs Surajbhan Singh, [(2014) 7
SCC 323]

35. St. of Punjab Vs Bawa Singh, [(2015) 3 SCC
441]

36. Raj Bala Vs St. of Har., [(2016) 1 SCC 463]

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri Ram Suphal Shukla,
learned
counsel
for
the
appellants
assisted by Sri A.K. Pandey Advocate
and learned A.G.A. for the State.
Perused the entire material and evidence
on available on the record.

2. The accused are in jail since last
more than 15 years i.e. since 01.01.2007
their case has not been considered for
remission.

3. At the outset, it may be
mentioned that accused Dhananjay alias
Pappu and Deepak Kumar Thakur were
charge-sheeted under Section 302 I.P.C.
in Crime No.06 of 2007 and accused
Dhananjay alias Pappu was separately
charge-sheeted under Section 4/25 Arms
Act and in Crime No. 07 of 2007. As
described in the impugned judgement
dated 22.03.2013. The co-accused in
Crime No. 06 of 2007 Deepak Kumar
Thakur in the course of trial absconded.
Hence, vide order dated 21.11.2012,
passed by the learned Trial Judge, his
file was separated. Thus, only solitary
accused Dhananjay alias Pappu was tried
by the trial court.

4. The present appeal under Section
374(2) Cr.P.C. has been preferred on
behalf of accused/ appellant Dhananjay
alias Pappu challenging the judgment
and order dated 22.3.2013, passed by the
learned
Additional
Sessions
Judge
(Court No.1) Ghaziabad in (1)- Sessions
Trial No. 445 of 2007 (State vs.
Dhananjay & others), under Section 302
IPC whereby the accused Dhananjay was
convicted and awarded a sentence of
rigorous life imprisonment with fine of
Rs.25,000/- and in default of fine he has
to undergo two years' additional rigorous
imprisonment and (2)- in S.T. No. 446 of
2007 (State vs. Dhananjay alias Pappu),
wherein he was convicted and awarded
sentenced to undergo two years rigorous
imprisonment with fine of Rs. 1000/-
and in default to undergo rigorous
imprisonment
of
two
years
under
Sections 4/25 Arms Act, In default of
payment of fine, he has to undergo two
years additional rigorous imprisonment.
Both the sentences of imprisonment
were to run concurrently.

5. In a nutshell, facts of the case, as
culled out from the record, are that a first
3 All. Dhananjay @ Pappu Vs. State of U.P.
867
information
report
was
lodged
on
01.01.2007 at about 19.45 P.M. under
Sections 307 and 302 IPC, at Police Station
Shahibabad,
District
Ghaziabad
with
respect to the incident occurred on the same
day at about 5.30 P.M., by the complainant
Salahuddin, against the accused Dhananjay
alias Pappu and Deepak, unfolding that his
sister's son Ummed Ali and his nephew
Shan Mohammad and Waseem had gone at
the Ram Manohar Lohiya Park for walking
amusement. At evening about 5.30 p.m.,
two unknown boys came across them and
demanded money from Ummed Ali but
Ummed Ali refused to oblige their demand
which caused great exasperation and
excitement to these boys, prompting them
to start exchanging abusing language and
ensued quarrelling with the victims. The
accused persons could not restrain their
anger and ire resulting one of the accused
taking out Khukri from his bag and
attacked upon Ummed Ali and Shan
Mohammad.
They
received
serious
injuries, as a result of which both the
injured fell down in the park. The second
boy caught hold of his other nephew. He
intimidated threat to his life stating "salon
ko jaan se maar do". He, with the help of
his nephew Wasim, caught the miscreants
and snatched Khukri. On being nailed, one
of
the
accused
divulged
his
name
Dhananjay alias Pappu and the other
unfolded his name Deepak Kumar Thakur.
In
the
meantime,
Satish
and
Arif
Chaudhary, also arrived at the place of
occurrence. Anyhow, he controlled both the
injured and dialed- 100 number. Police
personnel arrived at the spot. The injured
Ummed and Shan Mohammad were taken
to Ambey hospital through police Gypsy,
where the injured Ummed was declared
dead
and
the
other
injured
Shan
Mohammad
was
referred
to
G.T.B.
Hospital, Delhi for treatment, where he also
succumbed to injuries. Both the assailants
were taken to police Station Shahiabad
Ghaziabad alongwith Khurki which was
saturated
with
blood.
The
informant
Salahudin gave tehrir written by Munna
Khan at the police station.

6. On the basis of the abovestated
tehrir
(written
complaint)
a
first
information report was registered at the
Police
Station
Shahibabad,
District
Ghaziabad on 1.1.2007, as crime No.
06/2007 under Section 302, 307 I.P.C.
against Dhananjay and others and crime
No. 07/2007 under Section 4/25 Arms Act
against accused Dhananyay alias Pappu.
The particulars were entered into the
Kayami
G.D.
and
Chik
F.I.R.
The
investigation
was
entrusted
to
S.S.I.
Malkhan Singh.

7- On the investigation being put in
motion I.O. reached at the spot alongwith
other police personnel, recorded statement
of witnesses, prepared the site plan of the
place of occurrence, collected the bag and
cover of Khukari from the place of
occurrence and prepared the recovery
memos. The accused appellant and the coaccused were taken into police custody on
1.1.2007 and recorded their statements. The
blood-stained khukari was also taken into
possession by the investigating officer.
Against accused Dhananjay Kumar Singh
alias Pappu, case crime no. 7/2007 under
section 4/27 Arms Act was registered on
the same day. He also collected blood
stained and plain soil from the place of
occurrence and memo of the same were
prepared.

8. The inquest report of the deceased
Ummed was prepared in the presence of
witnesses and as per opinion of the
witnesses to ascertain cause of death,
868 INDIAN LAW REPORTS ALLAHABAD SERIES
postmortem
of
the
dead
body
was
proposed. After completing the necessary
formalities, The documents like request
letter to C.M.O. challan lash, photo lash,
sample of seal, with regard to the post
mortem, were prepared and dead body of
the deceased Ummed wrapped in sealed
cloth cover and was taken to the mortuary
for autopsy, accordingly. Dr. K.N. Tiwari
conducted the the post mortem of the
deceased Ummed.

9. The investigation officer (hereinafter
referred as I.O.) after collecting the credible
and clinching material and evidence showing
the complicity of the accuse appellant and the
co-accused submitted the charge sheet under
sections 302 IPC and separate charge sheet
against the accused Dhananjay alias Pappu
under Section 4/25 Arms Act, before the
learned Chief Judicial Magistrate, Ghaziabad,
who took the cognizance of both the cases.

10. Being exclusively triable by the
court of sessions, Chief Judicial Magistrate
Ghaziabad, committed them to the Sessions
Court on 9.4.2007. Later, the Sessions Judge
transferred it to the court of Sessions Judge
Ghaziabad (Court No. 1). for trial.

11. Learned Additional Sessions Judge,
framed, charges against the accused appellant
Dhananjay Kumar Singh alias Pappu and
Deepak Kumar Thakur under section 302
IPC and, against accused Dhananjay alias
Pappu and under Section 4/25 Arms Act
against the accused Dhananjay alias Pappu
separately. The charges were read over and
explained to the accused/ appellant. They
abjured the charges and pleaded "not guilty"
and "claimed to be tried".

12.

To
bring
charges
home,
prosecution examined, 8 witnesses as
under:-
Sl.No.
Name of witnesses
Pw. No.
1
Wasim
Pw- 1
2
Salahuddin
Pw- 2
3
Dr. Arvind Kumar
Pw- 3
4
Dr. K.N. Tiwari
Pw-4
5
Constable Som Pal
Singh
Pw- 5
6
Munna Khan
Pw- 6
7
Shamshad
Pw- 7
8
Malkhan Singh
Pw- 8

13. In Support of ocular version, following
documents were also filed and proved by
the prosecution-

S.L.
No.
Particulars
Ext. No.
Proved
By
1
Recovery
Memo Khukari
Ex. Ka- 1
 Pw- 1
2
Written Report
(Tahrir)
Ext. Ka- 2 Pw- 2
3
P.M.R.
Deceased
Shanu
Ext. Ka- 3 Pw- 3
4
P.M.R.
deceased
Ummed Ali
Ext. Ka-4 Pw-4
5
Inquest Report
deceased
Ummed
Ext. Ka- 5 Pw- 7
6
Panchayatnama
deceased
Shanu
Ext. Ka- 5 Pw- 7
7
Site Plan
Ext. Ka- 6 Pw- 8
8
Recovery
Memo
blood
stained
and
Ext. Ka- 7 Pw- 8
3 All. Dhananjay @ Pappu Vs. State of U.P.
869
plain soil
9
Recovery
Memo bag and
Khukari Cover
Ext.Ka-8
Pw-8
10
Charge
Sheet
u/s302
Ext.-Ka-9 Pw- 8
11
Supurdginama
Lash
Ext. Ka-10 Pw- 8
12
Photo Lash
Ext. Ka-11 Pw-8
13
Letter
of
request
for
P.M.
Ext. Ka-12 Pw-8
14
Sample Seal
Ext. Ka-13 Pw-8
15
Carban
Copy
G.D.
Ext. Ka-14 Pw- 8
16
Chick FIR
Ext. Ka-15 Pw-8
17
Charge
sheet
u/s 4/25 Arms
Act
Ext. Ka 14 Pw-8
18
Recovered
Khukri
Ext.- 1
Pw-2
19
Wrapping cloth Ext. Ka-&
Ka2
Pw-2

14.

After
the
conclusion
of
prosecution evidence, statements of the
accused
Dhananjay
alias
Pappu
was
recorded under Section 313 Cr.P.C. It was
stated by the accused that he had neither
demanded any money from Ummed
(deceased), nor inflicted any blow of
Khukari (knife) to the injured persons. A
false recovery has been shown from his
possession. The police in connivance and
inkling of prosecution witnesses, have
falsely implicated him in the present case.
It was specifically averred by accused that
the victims were roving in the park and
were ravishing and teasing to the teenage
girls, which was stiffly confronted by the
melee of said park. The woes and throes of
the public inflamed and the victims
resulting into ugly scene of thrashing and
beating
to
Ummed
Ali
and
Shan
Mohammad. On account of the injuries
inflicted upon them, they succumbed to
their injuries.

15. No defence evidence adduced by
accused

16. The prosecution in substantiation
of its case examined the P.W.1 Wasim,
who stated on oath that the instant incident
had occurred on 1st January 2007. He in
the company of his uncle Salauddin, cousin
brothers Shan Mohammad and Ummed Ali
went in the Park for amusement and picnic
at about 4.30 p.m. He and his uncle
Salauddin were following at a distance of
15 to 20 paces, to Ummed Ali and Shan
Mohammad, who were ahead to them. At
about 5.30 p.m. Dhananjay (appellant)
appeared and demanded money from
Ummed Ali (deceased). Ummed Ali
enquired reason for demanding the money
which caused great heat of passion and
excitement to the accused-appellant. As a
consequence
of
which
the
accused
appellant (Dhananjay) inflicted blow of
knife on the holding of Ummed Ali by the
Deepak (co-accused). The blow inflicted
penetrated dissecting the heart of Ummed
Ali. He and Shan Mohammad tried to save
Ummed Ali, but the appellant (Dhananjay)
attacked upon Shan Mohammad with knife,
which caused fatal injuries in stomach, leg
and thigh. He and Salauddin grasped to the
accused (Dhananjay), and Deepak, they
wrested the knife from him. On the shriek
and alarm, a number of persons roving in
the park and the guards gathered on the
spot. The accused persons were nailed by
the gathering, so they could not flee away
870 INDIAN LAW REPORTS ALLAHABAD SERIES
from the spot. He went outside and
informed police by dialing 100 number
from P.C.O. and the said information was
also communicated to the family members.
A number of persons including the relative
Iliyas and Munna Khan came from
residence. In the meantime police also
reached at the spot. The police took
Ummed and Shan Mohammad at the
hospital, in association with him and
others. The doctor attended the injured and
declared Ummed Ali dead. Thereafter the
report was lodged. Both the accused
persons were taken at the police station
Sahibabad
alongwith
Khukari
(knife).
Memo of recovery was reduced in writing
at the police station and the signature of the
witnesses were obtained. The witness
proved his signature on the memo of
recovery and proved it as Ext. Ka.-1.
Looking to the acuteness and perilous
situation injured Shan Mohammad was
referred from Ambey Hospital to G.T.B.
Hospital, Delhi, where he succumbed to
injuries in the night.

17. In support of its stand, the
prosecution
has
examined,
Pw-
2
Salauddin. He deposed that the said
incident has occurred on 01.01.2007, on the
day of festival of Idu-zuha. At about 4.30
p.m. he in association with his sister's son
(Bhanja) Ummed Ali and nephew Shan
Mohammad and Mohd. Wasim (P.W.1),
had gone to Ram Manohar Lohiya Park for
recreation and amusement. On reaching
there, they started to fro wander in the said
park. He and Wasim were roving behind
Ummed Ali and Shan Mohammad with a
distance of 15-20 paces. At about 5.30 p.m.
the accused appellant Dhananjay and
Deepak came and demanded money from
Ummed Ali. The victim Ummed Ali
enquired from the accused appellant for
what purpose he was demanding the
money. At this accused/ appellant and coaccused Deepak were highly infuriated and
started to hurl abusive and vituperative
words denigrating his image. The coaccused Deepak had caught hold of
Ummed
Ali
and
accused/
appellant
Dhananjay inflicted blows, from behind
with Khukari (knife) which penetrated
across his heart. Shan Mohammad made
best efforts to save Ummed Ali, but
accused appellant/ Dhananjay attacked
upon the Shan Mohammad with his
Khukari (knife) causing serious injuries to
them. Looking to this incident, he and
Wasim ran towards the assailants and
caught hold of accused Dhanjay and coaccused Deepak and snatched Khukari
from the hand of appellant/ Dhananjay.
Looking to the episode and lamentation, a
number of persons roving in the park and
the Guards arrived at the place of
occurrence.
They
encircled
accused
persons. His nephew Wasim informed the
incident through P.C.O. to the police and
victim's family members. In a short span of
time, police and his relatives namely
Munna Bhai, Taj Mohammad, Abbas and
Iliyas came at the place of occurrence. He
and police personnel took to the injured at
the Ambe Hospital, Ghaziabad where
Ummed
Ali
was
declared
dead.
Subsequently thereto, on their narration, the
tehrir scribed by Munna Khan was given in
P.S. on while first information report was
lodged on the basis of tehrir and the
accused persons were taken into custody by
the police. The blood saturated Khukari
(knife) was also presented at the police
station Sahibabad. The witness proved the
tehrir, as Ext.Ka.2. Memo of the snatched
Khukari (knife), presented at police station
Shahibabad was prepared on which his
signatures were obtained. The witness
proved it as Ext. no.1. The said Khukari
was brought in the court in a sealed cover
3 All. Dhananjay @ Pappu Vs. State of U.P.
871
and was Ext. 8 to the witness, P.W.2
Salauddin, who identified the said Khukari,
averred that the said Khukari was used by
the accused appellant Dhananjay in causing
injuries
to
Ummed
Ali
and
Shan
Mohammad. The said Khukari (knife) and
the cloth covering it, were marked as
physical Ext. 1 and 2. The injured Shan
Mohammad was referred from Ambey
Hospital to G.T.B. Hospital, where in the
night at about 4.30 hour he succumbed to
injuries, inflicted upon his person.

18. In corroboration to ocular
evidence, the prosecution has examined
P.W.3 Dr. Arvind Kumar, who deposed
that on 2nd January, 2007 he was posted in
G.T.B.
Hospital,
Delhi,
as
Senior
Demonstrator. On the said date at about
11.30 A.M, the corpse of Shanu was
brought, wrapped in a white cloth under the
supervision of A.S.I. Hukam Chand at the
mortuary for autopsy. They identified the
body of the deceased Shan Mohammad. He
conducted the post-mortem examination of
the deceased on 2.1.2007 at about 11.35
A.M. and found the following facts:-

(i)- On general examination of the
body of the deceased Shan Mohammad, it
was found that there was reddish colour on
the back side. Mouth and eyes were closed.
In the right arm, a tato mark as "S" was
punched. The deceased was aged about 20
years, he was a person of average built.
Rigor mortis, was in developing phase,
present all over limbs.

(ii)- Ante-mortem Injuries- During
post-mortem
examination,
the
Doctor
following ante-mortem injuries on the
person of Shan Mohammad:-

(1)- Stitched incised stabbed wound,
penetrating 6cm x 0.3 in size in the lower
left side of the abdomen. Upper lateral
angle of wound cut is present over in size
the stomach was stitched, the wound was
cavity deep of the abdomen and going
upward back medially left flie fossa,
running parallel to left flic crest obliquely
placed. Abdomen was full with blood.
There was blood around intestine also. On
exposing
the
track
on
the
samall
peritoneum
cavity
containing
blood.
Multiple incised wounds were present.
Evidence of surgical repair present. Total
depth of the wound is 18.5. cm.

(2)- ''J' shaped stitched cut wound. On
opening the stitches, incised wound of size
15 cm x 0.2 cm x 6cm present over
posterior lateral aspect on left arm, muscle
deep are cut wound, is 15 cm above the
elbow joint.

(3)- Obliquely placed stitched wound
on left chest. On opening the stitches,
incised stitched wound of size 3 cm x 0.2
cm present. Upper lateral angle of wound is
acute. Wound is present over posterior
auxiliary line of left chest, 7 cm below
posterior auxiliary fold. Direction of wound
is backward, and downward. Medially
wound is subcutaneous and muscle deep
and by making exit wound is of size 1.5 cm
x 0.2 cm, in size, 4 cm below entry wound.

(4)- Incised wound 2 cm x 0.1 cm x
0.5 cm obliquely placed, present over the
right side of chin.

(5)- Incised wound of 2 cm x 0.1 cm x
0.8 cm present over dorsum of left hand,
3.5 cm over proximal to left knuckle of
little finger of left hand.

(6)- Stitched cut wound. On opening
the stitches, 6 cm x 0.2 cm x bone deep
present, over left side of skull, just behind
the parietal region (left) with undergoing
the fracture of upper bulb of left parietal
bone of size 3 cm x 0.1 cm.

(7)- Sapratomy made by the surgion
18 cm x 0.4 cm in the middle of abdomen
Injury no.1 is surgically incised. Injury no.
7 is surgically disclosed.
872 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) Internal Examination--

(iv)- The doctor found skull in
extravasutim blood present under surface
below injury no.6.

(v)- Skull, as mentioned in injury no.6,
rest normal. The brain was pale and
edematous.
empty
containing
blood.
Stomach empty walls congested. Small
intestine as mentioned in injury no.1. There
is a span of 8 hours between death and post
mortem.

(iv) Cause of death:-

(i)- In the opinion of doctor the cause
of death of the deceased Shan Mohammads
was due to cut of intestine blood vessels,
excessive bleeding which is possible due to
one edged weapon. Thus hemorrhage and
shock due to ante-mortem injuries to
abdominal vessel and other.

(ii)- Injury no.1 is sufficient to cause
death in ordinary course of nature.

19. The doctor P.W. 3 deposed that
the post mortem examination report was
prepared by him in his own hand-writing
and signature. He proved post-mortem
examination report as Ext. Ka. 3.

20.
 The prosecution has
also
examined P.W. 4 Dr. K.N. Tiwari. He
deposed that he was posted at M.M.G.
Hospital, Ghaziabad on 2.1.2007. On the
fateful day, he had conducted autopsy of
deceased Ummed Ali, whose dead body
was brought under the supervision of
constable Manoj Kumar and Constable
Sompal Singh, in a seal cover. The
aforesaid constables had identified to the
corpse.

21. Doctor found deceased, about 21
years old and his death occurred within half
to one day before the autopsy. He was
average built and rigor mortis was present
in all over limbs.

(v) Ante mortem injuries. During
post-mortem, Doctor found the following
Ante mortem injuries on the person of the
deceased, Ummed Ali:-

(1)- Stab wound with clean cut
margins 44cm x2 cm, on Lt. side of the
chest, 2 cm middle at level of, Lt. nipple
(transversely present). The wound was
chest cavity deep. (2)-
In
internal
examination, the doctor also found that
pericardium of the heart and left lung was
cut chest cavity deep was. About 1⁄2 litre
blood bleeded out.

(v) Cause of death:- In the opinion of
the doctor the death of the deceased caused
due to hemorrhage and shock, as a result of
ante-mortem injuries sustained by him.

22. The doctor stated that the postmortem examination report was prepared
by him in his own hand-writing and
signature. He proved the post mortem
examination report as Ext. Ka. 4. The
doctor endorsed that aforesaid injuries on
the person of Ummed had come on
1.1.2007 at about 5.30 p.m. by the incising
of some sharp edged weapon like knife.

23. In order to substantiate the
prosecution
version,
Constable
1103
Sompal was examined as P.W.5. He stated
on oath that on 1.1.2007 ,he was posted at
Police Station Sahibabad. He divulged that
on the fateful day, at about 11.00 p.m. the
inquest of deceased Ummed was prepared
before the witnesses. The corpse of Ummed
was given under our supervision after
completing
necessary
formalities
and
handing over the requisite papers by P.W. 8
S.I. Malkhan Singh, for carrying it to the
mortuary. After making necessary entries at
police line Ghaziabad and M.M.G.Hospital
Ghaziabad , the autopsy of Ummed was
conducted on 2.1.2007. The corpse of
Ummed (deceased) was under his vigil and
3 All. Dhananjay @ Pappu Vs. State of U.P.
873
watch, till it was taken inside the mortuary.
In the meantime, the said constables did not
allow to anybody to make access to the
corpse.

24. P.W.- 6 Munna Khan stated on
oath that on the date and at the time of
incident, he was present at his house. He
was informed that Ummed Ali and Shanu
had sustained serious injuries. They were
taken at Ambey Hosital. On receiving the
information, he reached at the hospital. On
reaching at the hospital, he came to known
that Ummed had been declared dead and
Shanu had been referred to G.T.B.
Hospital, Delhi. He had scribed the tehrir,
on the narration of Salauddin. He had
scribed whatever was uttered by Salauddin
and the same was read over to him.
Salauddin had put his signature on the said
document. He had proved the said report
affirming that it was scribed by him and the
same was already marked as Ext. Ka.2.

25. In order to authenticate the
charge, the prosecution has examined
Shamshad as P.W.-7, who stated on oath
that on 1.1.2007, inquest with respect to the
corpse of Ummed was conducted. After
carrying out the necessary formalities, the
corpse of Ummed was sent to mortuary. He
had put his signature on the inquest which
was duly identified by him. He proved the
said inquest report as Ext.Ka.-5.

26. Further in substantiation of
charge, the prosecution had examined S.I.
Malkhan Singh as P.W.-8. He stated on
oath that he was posted at police station
Sahibabad on 1.1.2007. On the same the
FIR was registered at the police station
Sahibabad. The investigation was entrusted
to him. During investigation, he visited the
place of occurrence, prepared site plan,
recorded statement of the witnesses. He had
prepared the memo of recovery of Khukari
(knife) and had also recorded the statement
of Dhananjay (appellant) and co-accused
Deepak and the other witnesses H.M.
Devendra
Singh
Dhaman.
Thereafter
proceeded to Ambey Hospital and on
2.1.2007, he visited to G.T.B. Hospital at
Delhi, where he had seen to injured Shan
Mohammad. The injured Shan Mohammad
was not in a position to utter any thing. He
had recorded the statement of Salahuddin,
Wasim, Salim, Arif Chaudhary, Munna
Khan etc. He prepared the site plan in his
own handwriting and signature. He proved
the sight plan as Ext. Ka.6. He had taken
blood stained and plain cement earth from
the place of occurrence and the same was
exhibited as Ext.- 7. He took a bag in
possession from the place of occurrence in
which the cover of the Khukari was kept
and a fard (memo) was prepared him in his
writing and signature by him. He proved it
as Ext. Ka.-8. He had received the inquest
report and post mortem report of Ummed
(deceased) on 4.1.2007, he copied the chick
and carban copy of G.D. and proved them
as Ext. Ka- 14 and Ka- 15 statement of
witnesses of inquest namely Abbsas, Taj
Mohammad, Mohd. Ansar , Mohd. Farookh
and Shamshad Ali, Firoz and Julfikar who
had
identified
the
corpse
of
Shan
Mohammad. He had also recorded the
statement of A.S.I. Hukum Singh on
12.3.2007, who had got the Panchnama
prepared and was marked as Ext.Ka.9. The
Panchnama of Ummed Ali was prepared by
S.I. Malkhan Singh at the police station
before him. He verified the writing and
signature
of
S.I.Malkhan
Singh. S.I.
Malkhan Singh had put his signature on the
inquest report Ka.6 and other requisite
papers. Challan Lash, Photo Lash ,letter of
Chief Medical Officer, specimen of seal,
the writing of S.I. Malkhan Singh and
signature were duly verified. The papers
874 INDIAN LAW REPORTS ALLAHABAD SERIES
were duly proved as Ext. Ka.10, Ka.11,
Ka.12 and Ka.13. He had also conducted
the investigation of Sessions Trial No. 446
of 2007 under sections 25/4 Arms. The fard
of Khukari was prepared by Devendra
Singh Head Moharrir (H.M.) at the time of
initiation of proceedings and was exhibited
Ka.1. Chik F.I.R of the case was written by
Head Constable Devendra Singh which was
entered in the G.D.No.42 . The said chik
FIR was prepared on 1.1.2007 at 19.45
p.m. The chik FIR was duly proved and
marked as Ext. ka 15. The witness stated
that after due investigation he submitted
charge-sheet against accused Dhananjay
and Deepak, under Section 302 I.P.C. and
against Dhananjay alias Pappu a separate
charge-sheet was submitted under Section
4/25 Arms Act. He stated that both the
charge-sheet were prepared by him and in
his own writing and signature. He proved
both charge-sheet Ext. Ka- 9 and Ext. Ka-
14.

27. The prosecution witnesses, so
examined, were also duly cross examined
by the defence.

28. P.W.-1 Wasim during his cross
examination, averred that at the time of
incident, Salauddin, Ummed and Shan
Mohammad were present with him in
Lohiya Park. Dhananjay demanded money
from the Ummed and Ummed loudly said
"kaise paise." Ummed was accompanied by
Shanu, he thought that they are talking
something generally. He authenticated the
demand
of
money
by
the
accused
Dhananjay from Ummed on the basis of
loud voice of both. He had also seen
Deepak. He could not properly understand
the dispute, because of clamour in the park.
He also proved that Dhananjay had taken
out the knife (Khukri) and Deepak caught
Ummed. He gave a blow of knife to
Ummed from his back, which penetrated
across his heart. The knife was visible from
outside. Deepak had caught Ummed Ali
from right side. Shan Mohammad was
trying to pacify them. The accused persons
caught hold of Shanu and inflicted him
injuries. Shanu tried to flee away, but
approximately about 15 to 20 paces fell
down on the pakka kharanja. Waseem was
not present when the blow of knife was
inflicted on Ummed. He emphasized his
presence when Shanu was injured with
knife. Shanu had run away, after getting
separated from the clutches of accused
persons. He along with Salauddin (P.W.2)
had caught the accused persons. On the
shriek and scream, a number of persons
gathered including the Guards of the park.
On the direction of his uncle Salauddin he
had given telephonic call to his family
members and police personnel. The said
call was received by his mother, on mobile
no.9871212230. Ummed is the son of his
father's sister. The accused persons were
also caught by the Guard and other persons
in the park. The time consumed in
inflicting injuries to the victims, was hardly
two minutes. The victims were taken to the
Ambey Hospital. Saleem and Munna and
other persons of the locality came at the
Hospital. He and Salauddin had gone
together therein Hospital in one vehicle and
the remaining persons came in another
vehicle. Ummed Ali was inflicted only one
knife blow and Shan Mohammad was
inflicted a number of knife blows. The
victim Shan Mohammad was inflicted in
hands, legs and stomach. When Ummed
was inflicted he could not reach there at the
exact spot. Shan Mohammad was alive and
was referred to G.T.B. Hospital. He stayed
there Ambey Hospital at about half an
hour. Shan Mohammad was taken from
Ambey Hospital to G.T.B. Hospital by
Ambulance.
The
time
consumed
in
3 All. Dhananjay @ Pappu Vs. State of U.P.
875
reaching to G.T.B. Hospital, was about half
an hour. Shan Mohammad took his last
breath in G.T.B. Hospital at about 1 to 2
''O' clock on the same night. Dhananjay had
never given to Ummed any money. He
showed his ignorance as to whether he had
demanded money from anyone else also on
the date of occurrence. A number of
persons were moving in the park belonging
to different casts. The women and girls
were also moving in the park. He disowned
that Ummed and Shan Mohammad had
teased or molested to any girl or women
which was opposed by the assailants. He
gainsaid that no outsiders had attacked
upon the victims from the gathering. He
also denied that he had taken into custody
to the assailants from gathering. He was not
knowing to the assailants from earlier and
did not have any animosity with them. He
had heard the voice of Dhananjay who had
spoken loudly. Thereafter Deepak had
caught
Ummed
and
Dhananjay
had
inflicted the knife blows. He could not
ascertain as to whether the assailants had
come with the motive of killing to victims
as the incident had occurred at the spur of
moment. He perceived that in case the
victims would have given money to the
assailants, they would not have lost their
lives. The accused appellant (Dhananjay)
had hung the bag on his shoulder at the
time of demand of money. The accused
appellant (Dhananjay) was caught on the
spot after executing the occurrence. The
bag containing the knife was also at the
place of occurrence. He had not seen the
bag putting in the shrubs to anyone. He
could not ascertain as to whether the bag
was present there or not at the moment of
recovery. He was cross examined that
earlier he had disclosed that assailants had
thrown the bag in the bushes in his
presence. Both the accused were trying to
flee away. The accused appellant was
having the bag of Khukari in his hand at the
time of executing the crime. The accused
appellant Dhanjay had thrown the bag in
the shrub after executing the offence. The
accused appellant Dhananjay was earlier
caught by his uncle Salauddin and
thereafter he caught him. The accused
appellant Dhananjay also tried to attack
upon Salauddin. He had caught him from
behind and snatched the Khukari.

29- The prosecution witness no. 2
Salauddin was cross examined during trial.
He averred that he, in association with
Wasim (P.W.1), Ummed (deceased) and
Shan Mohammad deceased) had proceeded
from his house at about 4.30 p.m. on
1.1.2007. Salauddin and Wasim were
riding in one motor cycle. Mohammad
Ummed & Shan Mohammad were riding
on Hero Splendor motor cycle. The motor
cycle driving by Wasim (P.W.1) was
belonging to Irfan. The time consumed
from his house to the park was about 15 to
20 minutes. The heated exchange of words
between assailants and the victims ensued
after half an hour. The P.W.2 Salauddin
and the victims were following at minor
distance to each other. He disclosed that the
distance of the victims from him was about
20 to 25 paces. The accused appellant
demanded money from Ummed but he
could not confirm the exact amount of
money, which was demanded. On refusal to
Ummed to pay the money to the accused
appellant
caused
infuriation
and
exasperation to the accused persons hurling
abusive words. Ultimately fisticuffs were
started and the accused appellant stabbed
Khukari upon Ummed. There was not huge
gathering in the park. He had heard the
voice of demand of money as well as
refusal to pay the money. When the
accused appellant Dhananjay had pierced
Khukari, he was at a distance of 15 paces.
876 INDIAN LAW REPORTS ALLAHABAD SERIES
The Khukari was put inside a bag covered
by chain. Black cover was put on the
Khukari. He had never seen to the
assailants in the company of victims. He
had for the first time seen the assailants. To
his
best
knowledge,
there
was
no
transaction between the assailants and the
victims. The incident had taken place on
account of refusal to pay the money to the
assailants. When he had caught to the
accused appellant Dhananjay, the accused
appellant had already inflicted 7 to 8
injuries to him. Ummed was injured with
Khukari
from
behind
the
left
side
Dhananjay was stabbing the Khukari all
around, which caused great nervousness to
him therefore, he could not muster courage
to hold him. The time of incident was
confirmed about 5 to 5.15 p.m. There was
little fog but the sight was visible. The
information of the incident was given by
Wasim (P.W.1) from P.C.O. at about 5.30
p.m at the police station and also to the
members of the family. The distance of the
police station was about two kilometers.
The family members and the police
personnel reached at the same moment.

30. The investigating officer had
recorded the statement of P.W.2 Salauddin
on the next day. The investigating officer
had not apprised him about his statement.
The victims were taken by the police
personnel at the Ambey Hospital in
association with the family members of the
injured.

31. The Khukari was handed over by
the P.W.2 Salauddin to the police officer, at
the police station. The bag in which
Khukari was kept was also taken by the
police personnel in their possession.

32. The police team has visited the
spot inspection in the presence of P.W.2
Salauddin. The bag was of cream colour
having its height about one feet. At the
time of spot inspection, none was present
there except Salauddin (P.W.2). The
guard deputed at the park had also come
equipped with guns. The guard had come
after execution of the occurrence. He
proved his presence at the crucial
juncture of incident.