# entire criminal proceedings of Complaint Case No.4859 of 2002 (Deep Chand v. Bhupendra & others)

- **Citation:** (2022) 1 ILRA 447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-10
- **Case number:** Criminal Appeal No. 423 of 1995
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/entire-criminal-proceedings-of-complaint-case-no-4859-of-2002-deep-chand-v-48036
- **Pages:** 20

## Headnote

G.A., Kapil Kumar Bhargava, Neeraj Kumar
Tiwari,
S.K.
Singh
Kalhans,
Shikha
Srivastava, Vijat Kr. Tiwari

Criminal Law - Indian Penal Code, 1860 -
Section 302/34 - Session Judge acquitted
three co-accused-convicted Appellant u/s
302/34 IPC-Ante -mortem injuries shows
injuries of laathi and danda have not been
found on the person of deceased as alleged
in the FIR-no attempt made by the
informant & ors. family member-to save the
deceased-cast doubt upon prosecution caseenmity
on
record-possibility
of
false
implication cannot be ruled out. All other coaccused acquitted giving benefit of doubtAppellant entitled for benefit of doubt.

Appeal allowed. (E-9)
448 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,844 of 68,342. This is a partial read: ask again with offset=39844 for what follows._

1 All. Lot Prasad Vs. State of U.P.
447
it appears that on consideration of the
allegations in the light of the statement
made on oath of the complainant that the
ingredients of the offence or offences are
disclosed and there is no material to show
that the complaint is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High
Court. When an information is lodged at
the police station and an offence is
registered, then the mala fides of the
informant
would
be
of
secondary
importance. It is the material collected
during the investigation and evidence led in
court which decides the fate of the accused
person. The allegations of mala fides
against
the
informant
are
of
no
consequence and cannot by themselves be
the basis for quashing the proceedings.
(See: Dhanalakshmi vs. R. Prasanna
Kumar (1990 Supp SCC 686), State of
Bihar v. P.P. Sharma (AIR 1996 SC 309),
Rupan Deol Bajaj v. Kanwar Pal Singh
Gill (1995 (6) SCC 194), State of Kerala v.
O.C. Kuttan (AIR 1999 SC 1044), State of
U.P. v. O.P. Sharma (1996 (7) SCC 705),
Rashmi Kumar v. Mahesh Kumar Bhada
(1997 (2) SCC 397), Satvinder Kaur v.
State (Govt. of NCT of Delhi) (AIR 1996 SC
2983) and Rajesh Bajaj v. State NCT of
Delhi."

22. In view of the above, and for the
reasons stated above, the Court is of the
considered opinion that the continuation of
the criminal proceedings against the
applicants is an abuse of process of the
Court and ends of justice requires that the
said proceedings be quashed.

23. Consequently, invoking the
inherent powers under Section 482 Cr.P.C.,
the
entire
criminal
proceedings
of
Complaint Case No.4859 of 2002 (Deep
Chand
Vs.
Bhupendra
&
others)
(Renumbered as 91 of 2007) under
Sections 506, 386 IPC, Police Station
Turkpatti, District Kushinagar pending
before the 2nd Additional Civil Judge (Jr.
Division)/ Judicial magistrate, Kasaya,
Kushinagar is hereby quashed.

24. The application stands allowed.
----------
(2022)01ILR A447
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.01.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.

Criminal Appeal No. 423 of 1995

Lot Prasad ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
I.B. Singh, Janardhan Singh

Counsel for the Respondent:
G.A., Kapil Kumar Bhargava, Neeraj Kumar
Tiwari,
S.K.
Singh
Kalhans,
Shikha
Srivastava, Vijat Kr. Tiwari

Criminal Law - Indian Penal Code, 1860 -
Section 302/34 - Session Judge acquitted
three co-accused-convicted Appellant u/s
302/34 IPC-Ante -mortem injuries shows
injuries of laathi and danda have not been
found on the person of deceased as alleged
in the FIR-no attempt made by the
informant & ors. family member-to save the
deceased-cast doubt upon prosecution caseenmity
on
record-possibility
of
false
implication cannot be ruled out. All other coaccused acquitted giving benefit of doubtAppellant entitled for benefit of doubt.

Appeal allowed. (E-9)
448 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ramesh Sinha, J.)

(A)
BACKGROUND/INTRODUCTION

(1) Four persons, namely, Sadhu
Prasad, Talluqdar, Lot Prasad (the
appellant), and Shital, were tried by the
Sessions Judge, Gonda in Sessions Trial No.
73 of 1992: State Vs. Sadhu Prasad and
others, arising out of Case Crime No. 145 of
1990, under Section 302/34 of the Indian
Penal Code, 1860 (hereinafter referred to as "
I.P.C. "), Police Station Wazirganj, District
Gonda.

(2) Vide judgment and order dated
20.07.1995, the Sessions Judge, Gonda
acquitted accused Sadhu Prasad, Talluqdar
and Shital from the charge of murder levelled
against
them,
however,
convicted
the
accused/appellant Lot Prasad under Section
302/34 I.P.C. and sentenced him to undergo
life imprisonment. Against the aforesaid
order of conviction and sentence dated
20.07.1995, accused/appellant Lot Prasad
has filed the instant appeal before this
Hon'ble High Court.

(3) The instant appeal then came up for
hearing before a Division Bench comprising
Hon'ble Satyendra Singh Chauhan and
Hon'ble Virendra Kumar-II, J.J. (as they then
were). After hearing of the instant appeal,
vide separate judgment and order dated
09.08.2017,
Hon'ble
Satyendra
Singh
Chauhan, J (as he then was) was of the
opinion that appellant Lot Prasad was liable
to be acquitted from the charges levelled
against him under Section 302/34 I.P.C. by
giving him the benefit of doubt and, as such
allowed the criminal appeal, and set-aside the
judgment and order dated 20.07.1995 passed
by the Sessions Judge, Gonda and acquitted
him from the charges levelled against him,
whereas Hon'ble Virendra Kumar-II, J. (as he
then was) was of the opinion that the
appellant/Lot Prasad was rightly convicted
for the offence under Section 302 I.P.C.,
however, since co-accused persons were
acquitted by the trial Court for offence
punishable under Section 302 read with
Section 34 I.P.C., hence mention of Section
34 in the impugned judgment is not so
material and accordingly, dismissed the
instant appeal.

(4) In view of aforesaid difference of
opinion, the Division Bench has formulated
following points of difference vide separate
order dated 09.08.2017 and directed the
office to place the record of the instant
criminal appeal before Hon'ble the Chief
Justice under Chapter VIII Rule 3 of the
Allahabad High Court Rules for nomination
of Bench :-

"(1) Whether the witnesses were in
a position to identify the accused persons in
the moon light from the distance as indicated
by them in their statements.

(2) Whether the incident took place
at the alleged time in view of the fact that
pasty material was found in the stomach,
which could not have been possible at 5:30
a.m. in the morning.

(3) Whether the conduct of the
accused as contemplated under Section 8
of
the
Evidence
Act
requires
consideration.

(4) Whether the prosecution has
come out with true version of the
incident.

(5) Whether the enmity on
record was enough to implicate the
appellant in accordance with law.
1 All. Lot Prasad Vs. State of U.P.
449

(6) Whether the appellant could
have
committed
the
offence
single
handedly.

(7) Whether the injuries tally with
the manner of assault as alleged by the
prosecution.

(8)
Whether
the
case
was
improved after the postmortem report was
received.

(9) Whether the initial case setup
in the FIR was wholly changed in the
statement recorded under Section 161
Cr.P.C. and in the Court.

(10) Whether PW-1 and PW-4
have stated the correct facts and whether
there is contradiction in their statements."

(5) Subsequently, the aforesaid
Division Bench of this Court has recalled
the aforesaid points of consideration vide
order dated 30.01.2018 in the manner as
stated hereinbelow :-

"Heard learned counsel for the
appellant and learned AGA.

Attention of the Court has been
drawn towards Chapter VIII Rule 3 of the
Rules of the Court and Section 392 of
Cr.P.C.

We have gone through both the
provisions and we find that the portion of
the order dated 09.08.2017 by means of
which, points for consideration were
framed,
requires
to
be
recalled.
Accordingly, the said portion of the order
dated 09.08.2017, indicating the points for
consideration is recalled. The order passed
on merit will remain as it is.

In view of difference of
opinion between the members of the
Bench, let the papers of this appeal be
placed before Hon'ble the Chief Justice for
nomination of Bench."

(6) The record further shows that vide
order dated 06.03.2018, the Hon'ble the
Chief Justice nominated the instant appeal
to Hon'ble Vikram Nath, J. (as he then
was).
Thereafter,
on
appointment
of
Hon'ble Vikram Nath, J. as Chief Justice of
Gujrat High Court, Hon'ble the Chief
Justice, vide order dated 16.09.2019,
nominated the instant criminal appeal to
Hon'ble Rekha Dikshit, J. (as she then
was). After retirement of Hon'ble Rekha
Dikshit, J., Hon'ble the Acting Chief
Justice, vide order dated 19.08.2021,
nominated the instant appeal to me. In this
backdrop, the instant appeal has now been
placed before this Court under Section 392
of the Code of Criminal Procedure, 1973
(in short, "Cr.P.C.").

(7) As stated here-in-above, the
instant criminal appeal has been filed by
the accused/appellant, Lot Prasad, against
the judgment and order dated 20.07.1995
passed by the Sessions Judge, Gonda in
Sessions Trial No. 73 of 1992, convicting
him for the offence under Section 302 read
with Section 34 I.P.C. and sentencing him
to undergo a rigorous imprisonment for
life.

(B) FACTS

(8) Shorn off unnecessary details the
facts of the case are as under :-

The informant Jagdish (P.W.1)
son of Ram Tej, is the resident of
Niyamatpur. A civil case was going-on
450 INDIAN LAW REPORTS ALLAHABAD SERIES
between the informant Jagdish (P.W.1) and
co-villager Sadhu Prasad Pandey (accused)
in respect of a land, which was lying
barren. A day before yesterday from the
date of incident i.e. on 30.11.1990, the said
land was got ploughed by a tractor by the
brother of the informant, namely, Jai
Prakash (deceased), whereupon Sadhu
Prasad (accused) son of Ram Bihari,
resident of Niyamatpur stopped him from
ploughing the field and after threatening
him, went away from there.

(9) In the morning of 01.11.1990, at
about 5:30 a.m., accused Sadhu Prasad,
Talluqdar, accused/appellant Lot Prasad
son of Ram Bihari and Sheetal (accused)
son of Bachhu, resident of the same village,
armed with lathi and danda, came at the
door of the informant Jagdish (P.W.1) and
started assaulting the brother of informant,
namely, Jay Prakash (deceased) and while
assaulting him, he was dragged to the
groove. On hearing the alarm raised by the
brother of the informant Jay Prakash
(deceased), informant Jagdish (P.W.1) and
his brother Ambika and his family
members ran to save him, whereupon the
accused persons ran away. The informant
Jagdish (P.W.1) saw his brother Jay
Prakash (deceased) lying injured. He took
his brother Jay Prakash (deceased) to
Wazeerganj Hospital, however, on the way,
his brother Jay Prakash (deceased) died.
P.W.1 Jagdish (informant) has further
stated that apart from him, other persons of
the village, namely, Hira son of Aafat, Ram
Deen son of Shankar and other persons also
saw the accused persons assaulting his
brother Jay Prakash (deceased).

(10) The informant P.W.1-Jagdish
himself wrote down the F.I.R. (Ext. Ka.1),
put his signature thereron and along with it
reached to the Police Station Wazeerganj,
District Gonda at a distance of 9 Km. and
at about 12:15 p.m on the date of incident
i.e. on 01.11.1990 handed over the
handwritten report (Ext. Ka 1) to P.W.3H.C. Ram Narain Yadav.

(11) The evidence of P.W.3-H.C.
Ram
Narain
Yadav
shows
that
on
01.11.1990, he was posted as Head
Moharrir at Police Station Wazeerganj,
Gonda and at about 12:15 p.m., informant
Jagdish (P.W.1) had lodged the written
report of the case, on the basis of which, he
prepared a chik F.I.R. (Ext. Ka.3) and made
its entry in the general diary and registered
a case, bearing Case Crime No. 145 of
1990, under Section 302/34 I.P.C against
accused persons Sadhu Prasad, Taluqdar,
Lot Prasad and Shitla and the entry made in
the general diary is Exhibit Ka.4.

In
cross-examination,
P.W.3-H.C.
Ram Narain Yadav deposed before the trial
Court that police station Wazeerganj is
situated 2.7 kms away from Gonda in
Gonda-Faizabad State Highway and from
there, 24 hours conveyance is available and
truck, bus etc. are plying. He had sent
special report of the case at about 13:30
hours through Constable Mahendra Yadav
by making an entry of it in GD Report No.
23 and except this, he had not given any
work to Constable Mahendra Yadav.
However, Constable Mahendra Yadav did
not return on 01.11.1990 after serving the
special report.. He further deposed that he
could not say that Constable Mahendra
Yadav returned on 02.11.1990 at 18:05
hours by the GD Entry No. 33 because the
G.D. of 02.11.1990 was not with him. He
denied the suggestion that special report
was sent in the morning of 02.11.1990 and
to strengthen the case, he showed the
departure of Constable Mahendra Yadav on
01.11.1990. He further deposed that the
1 All. Lot Prasad Vs. State of U.P.
451
corpse of the deceased Jay Prakash was not
brought to the police station. He denied the
suggestion that the corpse of the deceased
Jay Prakash was lying, whole night at the
police station and also all the documents of
the case were belatedly prepared on
1/2.11.90 and the same was detained and
also the F.I.R. was also made ante-time.

(12) The investigation of the case was
conducted by P.W.5-S.I. Shri Mahendra
Nath Sharma, who, in his examination-inchief, has deposed before the trial Court
that he was posted as Station House
Officer, Wazeerganj between 01.11.1990 to
15.11.1990 and in his presence, the written
report of the case was lodged by P.W.1Jagdish on 01.11.1990 at about 12:15 p.m.
at police station. After lodging the case, he
started to conduct the investigation on the
date itself and on the very same day, he,
after taking police force, reached at the
place of occurrence at 13:50 hours and
prepared panchayatnama of the dead body
of the deceased Jai Prakash (Ext. Ka. 2) ,
which was lying beneath the trees of Aamla
and Imali situated nearby the groove of the
house of the deceased at Niyamatpur.
Thereafter, the deadbody of the deceased
Jai Prakash was sealed and prepared photo
lash (Ext. Ka.6), challan lash (Ext. Ka. 5),
letters to the authorities (Ex-Ka-7 to Ka-8)
and memo of recovery (Ext. Ka.9) for
conducting postmortem of the dead body
and handed over the dead body of the
deceased Jay Prakash and other documents
to Constable Ram Khelawan, with a
direction to deliver it to mortuary, doctor
and police line. Thereafter, he recorded the
statement of informant P.W.1-Jagdish and
on his pointing out, he inspected the place
of occurrence and prepared the site-plan
(Ext. Ka.10). He further deposed that blood
stained was found on the earth near the
dead body, from where he collected
blood stained earth and empty earth and
kept it in separate containers under
recovery memo (Ext. Ka. 11).

(13) P.W.5 S.I. Mahendra Nath
Sharma has further deposed that on the date
of incident i.e. on 01.11.1990, he also
searched the accused persons but he did not
get them. He stayed at the place of
occurrence in the night. On 02.11.1990, he
recorded the statements of family members
of the informant Jagish Prasad, namely,
Ambika, Poonam and other persons. He
also searched the accused persons but he
did not get them. He was staying at the
place of occurrence. On 03.11.1990, the
Circle Officer also came at the place of
occurrence and inspected the place of
occurrence. On 03.11.1990, he arrested
accused Taluqdar and took him to jail. On
04.11.1990, he recorded the statements of
other witnesses of the incident. He also
searched other accused persons but they
were all absconding from their respective
houses. On 07.11.1990, he came to know
that accused Shital had surrendered before
the Court. Similarly, he came to know that
accused/appellant
Lot
Prasad
had
surrendered before the Court on 12.11.1990
and accused Sadhu surrendered before the
Court on 15.11.1990. On 15.11.1990, after
completion of investigation, he submitted
charge-sheet (Ext. Ka. 12) against the
accused persons.

In cross-examination, P.W.5 S.I.
Mahendra Nath Shrama has deposed that
maximum witnesses of the case belong to
the house of deceased and on 01.11.1990,
when he reached on the spot, the witnesses
were in the village. On 01.11.1990, he did
not record the statement of other witnesses
except the informant
Jagdish Prasad
452 INDIAN LAW REPORTS ALLAHABAD SERIES
(P.W.1) because they were all in grief
because of the murder in their family. But
as without recording the statement of the
informant,
no
action
was
possible,
therefore, his statement was recorded
immediately after reaching there. He
denied the suggestion that on 01.11.1990,
he did not record the statement of any
witnesses and on 02.11.1990, after receipt
of post-mortem report, he wrote the
statement of the witnesses on its own.

(14) P.W.5 SI Mahendra Nath Sharma
has further deposed that he did not find any
means
to
transport
the
dead
body,
therefore, deadbody was sent from the spot
by loading on cot. He further deposed that
he could not tell that who else had gone
with the corpse other than Constable Ram
Khilawan. He had a Government Jeep at
the spot but as the dead body could not be
transported in it, therefore, he could not use
it for transporting the corpse. He further
deposed that he could not tell whether
Constable
Ram
Khilawan
took
the
deadbody from the cot to where and
whether he had used any conveyance to
take the deadbody to Gonda. There is no
entry in the case diary that the deadbody
was transported by cot from the spot. He
denied the suggestion that the deadbody of
the deceased was transported to mortuary
with undue delay and to hide this, it is said
that the deadbody of the deceased was
taken by cot from the spot. He further
stated that he did not write as to when the
deadbody reached the mortuary. He did not
record the statement of Constable Ram
Khilawan
during
investigation.
After
returning, Constable Ram Khilawan did not
give information that on account of some
unavoidable circumstances, the deadbody
of the deceased had reached the mortuary
with delay. He denied the suggestion that to
hide the delay in reaching the deadbody of
the deceased to the mortuary, he did not
record the statement of Ram Khilawan. He
denied the suggestion that on 01.11.1990,
the deadbody of the deceased was brought
from the village to police station Wajirganj
and the deadbody was lying at police
station in the night and it was sent from
police station to mortuary in the morning
and in the meantime, F.I.R. and other
documents were prepared. He further stated
that he did not record the statement of
people near the place of occurrence,
namely, Wayu, Dayaram and Mohan
Katiram. He further stated that he found the
mark of dragging of the deceased from the
door of the deceased to the place of
occurrence at the door of deceased but it
could not find at the grove. He did not
make any endorsement to this effect in the
case diary. He did not find any blood stain
at the passage of dragging. He did not find
the blood stain at the place where the dead
body was found.

(15) Going backwards, the postmortem on the dead body of deceased Jai
Prakash was conducted on 02.11.1990, at
4:05 p.m. by Dr. P.K. Srivastava (P.W. 6),
who, found on his person ante-mortem
injuries, enumerated hereinafter :--

"1. Contused swelling on the Rt
side of forehead extending upto Rt.
temporal region in an area of 11 cm x 8 cm
having few abrasions just above the Rt ear.

2. Contusion on the left upper lid
in an area of 41⁄2 cm x 2 1⁄2 cm.

3. Swelling with deformity on the
left forearm just above the left wrist,
Radius and ulna fractured on the left side.

4. Deep contusion present on the
left of the side
1 All. Lot Prasad Vs. State of U.P.
453

chest, lower part, in an area of 5
cm x 5 cm.

The cause of death spelt out in
the autopsy report of the deceased person
was shock and haemorrhage as a result of
ante-mortem
injuries
which
he
had
suffered.

(16) It is significant to mention that in
his deposition before the trial Court, Dr.
P.K. Srivastava (P.W. 6) has reiterated the
said cause of death and also stated therein
that on 02.11.1990, he was posted as
Medical Officer at District Hospital, Gonda
and on the date itself, at about 04:05 p.m.,
he conducted the post-mortem of the
deceased Jai Prakash. The body of the
deceased was sent by Station House
Officer, Police Station Wajirganj, district
Gonda, which was identified by C.P. 438
H.C.
Ram
Khilawan,
Police
Station
Wajirganj, District Gonda. He further
deposed that at that time, blood-soaked
fluid was flowing from the nose of the
deceased. On the internal examination of
the deceased, it was found that ribs 4, 5, 6
and 7 of the left side of the chest was
broken; pleura and left lung were torn; 1⁄2
litre of blood was present in thoracic
cavity; deep contusion was present on the
head; right side of temporal bone was
broken; the brain was torn and congested;
foods in the gross of six ounces of pulp was
in the stomach; some small pulp was
present in the small intestine; spleen and
kidney was pale; and galbladder was blank.
He also deposed that ante-mortem injuries
sustained by the deceased were sufficient in
the ordinary course to cause his death.
Injury No.4 could not be attributed to
mounting pressure upon chest of deceased
and hitting him by lathi and dumb. Injuries
no. 1, 2 and 3 could be attributable to lathi.
It is possible that the deceased died six
hours after taking food and the deceased
could have taken slight food. The deceased
could have died on 01.11.1990 at 09:10
a.m. It is not possible to tell the exact time
of death of the deceased.

In his cross-examination, Dr. P.K.
Srivastava (P.W. 6) has stated that he
received the document relating to the postmortem as well as copy of the F.I.R. on
02.11.1990 at 01:00 p.m. It is not necessary
to have weapon for causing the injury no.4.
He further states that injury no.4 could be
attributable by pressing knee. Except injury
no.2, all the remaining injuries are
dangerous to life. Injuries no. 2 and 4 could
be attributable by falling big wooden boat.
If the deceased have been transported after
the injuries, it is possible to oozing blood
from nose.

(17) The case was committed to the
Court of Sessions in the usual manner
where the appellant and other accused
persons were charged on counts mentioned
in paragraph 1. They pleaded not guilty to
the charges and claimed to be tried. Their
defence was of denial.

(18) During trial, in all, the
prosecution examined seven witnesses i.e.
informant Jagdish Prasad (P.W. 1), who is
the brother of the deceased and lodged
F.I.R. of the incident, P.W.2 Heera, who is
the independent witness, P.W.3-Constable
Ram Narain, who is the writer of the chik
F.I.R., P.W.4 Kamlesh alias Poonam, who
is the daughter of the informant and eyewitness,
P.W.5
S.I.
Mahendra
Nath
Sharma, who is the Investigating Officer of
the case, P.W.6 Dr. P.K. Srivastava, who
has conducted the post-mortem of the
deceased Jai Prakash and P.W.7 Constable
454 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Khilawan, who had taken the
deadbody of the deceased for post-mortam.
From the side of defence, five witnesses
were examined i.e. D.W.1 Aadalat, who is
the owner of the tractor, D.W.2 Shree and
D.W.3-Gayan Singh, who is the covillager, D.W.4- Lalit Prasad, who is the
Petition Clerk in the officer of District
Magistrate, Gonda and D.W.5 Jagnath, who
is the co-villager.

(19) I would first like to deal with the
evidence of informant Jagdish Prasad (P.W.
1).
P.W.1
Jagdish
Prasad,
in
his
examination-in-chief, has narrated the facts
enumerated in the F.I.R. and further stated
that deceased Jai Prakash was his younger
brother. Ram Lagan Pandey was the elder
brother of his father, who died on
16.06.1978. Ram Lagan Pandey did not
marry. In village Niyamatpur, Ram Lagan
Pandey was having the land of 01 acre 78
dismil, which was situated 15-20 paces of
eastern side of his house. After the death of
Ram Lagan Pandey, his father Ram Tej has
filed a mutation case for mutation of the
land belonging to late Ram Lagan Pandey
in his favour in the year 1978, against
which accused Sadhu Prasad has filed a
caveat to the effect that he had purchased
the land from Ram Lagan. On this caveat,
the mutation case of his father was rejected
by the Tehsildar and mutation of the
aforesaid land was made in favour of
Sadhoo (accused), against which, his father
had filed an appeal before the S.D.M.,
Lucknow and at the time of murder of Jai
Prakash (deceased), the said appeal was
going on. He further deposed that his father
Ram Tej had also filed/claimed in respect
of mutation of Sadhu (accused) before the
Munsif in the year 1978 but as Sadhu
(accused) was not present before the
Munsif, hence the said case was decreed ex
parte. After 4-5 months, Sadhu (accused)
and others filed recall application, which
was rejected in the year 1979. In the
meantime, his father Ram Tej died.
Thereafter, he and his brothers had filed
applications for substitution in the appeal
as well as in Munsifi, which was allowed.
Thereafter, Sadhu (accused) and others had
raised objection that the case would not be
maintainable before the Munsif but the
Munsif did not pay any heed to the
objection, however, the revision or appeal
filed by Sadhu (accused) was allowed,
against which, he and others went to High
Court, where the litigation was going on.

(20) P.W.1-Jagdish has further
deposed that his brother Jai Prakash, prior
to two days ago from the date of murder,
ploughed the land in dispute by tractor and
at that time, Sadhu (accused) and Lot
Prasad (accused) came and asked his
brother Jai Prakash not to plough the land
in dispute and told him that forcefully
farming the land is not a good thing. On
this objection, the amount of land that was
left to be ploughed was not ploughed and
the tractor was taken away by the owner of
the tractor. He further stated that accused
Shital was the witness of the said mutation
which was stated to be made through Ram
Lagan Pandey by Sadhu (accused). He
further deposed before the trial Court that
on 01.11.1990, at about 5:30 a.m., he was
sleeping inside his house. His brother Jai
Prakash (deceased) was sleeping in the
thatch in front of his house. On hearing the
noise, he got from his sleep and he
recognized the voice of Jai Prakash and
came outside the house and saw that four
accused Sadhu, Taluqdar, Lot Prasad (the
appellant) and Sheetal were assaulting his
brother Jai Prakash (deceased) with fists,
lathi and danda and further by assaulting
him, they dragged his brother Jai Prakash
(deceased) towards East-South direction.
1 All. Lot Prasad Vs. State of U.P.
455
He further deposed that where they brought
his brother, was the barren groove. On his
hue and cry and on gathering of witnesses,
the accused slammed his brother Jai
Prakash under a tree and accused Lot
Prasad climbed on the chest of Jai Prakash
(deceased) and assaulted him with fists and
lathi. He further deposed that Shital
(accused) gave a lathi blow upon Jai
Prakash on his wrist and other two accused
were standing there and when persons
gathered there, then, accused fled away
from the scene of occurrence assuming that
Jai Prakash had died. Thereafter, he went
nearer to Jai Prakash and saw that blood
was oozing out from his nose and mouth,
which was on earth and wrist of the
deceased was broken. He also stated that on
hearing hue and cry, apart from him, the
wife of the deceased Shakuntla Devi, his
wife Gangotri Devi, his daughters Poonam,
his mother and his brother Ambika also
came out from the house. He stated that
Ambika had now died. In addition to him,
other villagers, namely, Hari, Ramdin, Ram
Sahaj, Ram Ujagar and others also came
there. He further stated that the place where
his brother was murdered by slamming was
5-10 steps away from his house. He stated
that after seeing his brother Jai Prakash in
injured condition, he was taken away by
him on charpai (bed) to Wazirganj Hospital
and while they were taking away Jai
Prakash and had reached one kilometre in
South direction from his house, his brother
succumbed to injuries near the village
Niyamatpur. He also stated that after the
death of his brother Jai Prakash, they had
taken the body of the deceased Jai Prakash
to his house and after leaving the deadbody
of Jai Prakash at his house, he went to
lodge
the
report
at
Police
Station
Wazirganj, where he submitted the written
report (Ext. Ka.1). He further stated that he
had given the written report and copy of
the chik report was taken by him. He
further stated that at the police station, he
also met the Inspector, who took him at his
house by Jeep. At his house, the Inspector
saw the deadbody of his brother and
prepared pachayatnama in the presence of
witnesses. He also got the Inspector
inspected the place of occurrence.

(21) P.W.1-Jagdish, in his crossexamination, has deposed before the trial
Court that Ram Lagan was not his real
uncle but he was the cousin of his father.
Saliq had two sons, namely, Jag Prasad and
Prithi. The son of Jag Prasad was Ram
Lagan Pandey, whereas the son of Prithi
was his father Ram Tej. The father of
accused is Bariyu, however, he did not
know the name of the father of Bariyu. He
stated that he is a Panchayat Adhikari and
during the day when the incident happened,
he was posted in Belsar Block, which is
situated of a distance of 17 Kms. from
Gonda Headquarter to the road of GondaTarabganj road. He denied the suggestion
that the death of Ram Lagan Pandey was
wrongly entered as 16.06.1978 by exerting
pressure upon the Panchayat Adhikari of
Wazirganj. He also deposed that the eye
sight of his brother Ambika was weak and
was
suffering
from
night-blindness,
however, he listened the sound very well.
In the morning and the night of the date of
the incident, Jai Prakash (deceased) and
Ambika were sleeping outside the house in
a thatch. When he came out from his house
on listening the noise, there was no
daylight but there was moonlight and the
light was enough. When his eye fell on Jay
Prakash (deceased), he saw that the accused
persons by holding hands of him were
brought him. At that time, he was at the
distance of 20-25 paces. He further stated
456 INDIAN LAW REPORTS ALLAHABAD SERIES
that accused had brought his brother Jay
Prakash (deceased) by pushing and beating
him but his brother Jay Prakash (deceased)
was not brought by dragging. He further
deposed that in the report (Ext. Ka.1), he
wrote that his brother was brought by the
accused persons by dragging, which means
that he was brought by pushing. He further
stated that to drag and hold the cksjk is
called dragging. If any person has been
brought forcefully, it is called dragging. He
further deposed that when the accused
persons brought his brother towards grove,
then, he has no courage to immediately go
behind them but he stood in his door and
tried to gather people together by making
noise by running a little bit by hiding
himself. After 3-4 minutes when Hari and
other persons were gathered there, then, he
went towards the direction of accused
persons. He and other persons of his village
went towards accused by empty handed
and no lathi and danda was in their hands.
When they reached near to Jai Prakash, he
was lying on the ground and he saw the
accused persons were running from there.
He also stated that the place where Jai
Prakash was brought by the accused
persons, was seen from his door from
where he raised alarm when accused
persons brought his brother. He further
stated that he had not written in the Ext.
Ka. 1 separately that any accused climbed
on the chest of Jai Prakash and pressed. He
had also not written in the report that
accused Shital assaulted with danda and
hand of Jai Prakash was broken. He denied
that he had not seen the incident and also
the murder of his brother Jai Prakash was
came in the knowledge of him on
01.11.1990 in the afternoon. He further
stated that he brought his brother in injured
state by keeping him on cot for Wazirganj
Hospital from the place of occurrence but
he did not remember as to whether any
bedsheet or bed was laid on the cot or not.
When Jai Prakash was put on the cot, then,
blood from his nose and mouth was
stopped and Jai Prakash died when they
reached Virahmatpur. He also stated that
when they brought Jai Prakash by putting
him on cot for Wazirganj, none of the
villager were found by them. He also stated
that
he
brought
Jai
Prakash
from
Niyamatpur at about 06:00 A.M. and
reached at Virahmatpur at 7:00-7:15 a.m.
He further stated that the deadbody of the
Jai Prakash was brought from Virahmatpur
to Niyamatpur because his relatives would
see him as if they brought the deadbody of
Jai Prakash to Police Station, it was sent for
post-mortem and it was not given to him.

(22) P.W.1, in his cross-examination,
has further stated that at the time when Jai
Prakash was brought from Niyamatpur,
they were five persons. Because his brother
was no more, therefore, on account of
sorrow, they did not think that one of the
person would go to lodge the report. He
further deposed that they returned on
bringing the deadbody of his brother at
Niyamatpur at 07:30 p.m. and thereafter, 45 minute, he stayed at Niyamatpur and
thereafter, he proceeded for police station.
In the meanwhile, he wrote the report for
giving it to the police. He went from
Niyamatpur to police station by foot. The
distance from Niyamatpur to police station
is 8-9 kms. and he did not go with the
paved road because he apprehended that
accused persons would not met him in the
way of paved road and he went through
village by foot. On account of fear, he went
along by hiding himself and he did not
carry any weapon for his safety. About four
hours was taken by him to reach Police
Station Wazirganj because he used to stop
from place to place and look ahead that as
to whether the accused or his companion
1 All. Lot Prasad Vs. State of U.P.
457
was there in the way or not. On account of
fear, he did not think appropriate to take
anyone along with him because peoples
told that if he consume the time, then, the
accused would falsely implicate him in the
murder. He reached at the police station at
about 10:15 and at that time, Inspector was
not present there. However, when the
report was lodged and copy of the chik FIR
was given to him, then, the Inspector
reached at the police station and met him.
At 10:15 a.m., the Inspector talked to him
and thereafter, Inspector brought him
through Jeep at the place of occurrence. He
further stated that the Inspector did not
record his statement at the police station.
He had reached at Niyamapur at about one
hour or forty-five minutes because the
Inspector, in the way, stopped in some
places and made enquiry from the peoples
in respect of this murder. They were
reaching at Niyamatpur at about 02:00 p.m.

(23) P.W.2-Hira, who is the resident
of the deceased Jai Prakash and informant,
deposed before the trial Court that Jai
Prakash was his village and he known to
him. The murder took place in the grove
situated outskirt of the village and near to
the house of Jagdish. The murder took
place at about 05:00-05:30 a.m. His house
is situated about 60 paces in the western
direction from the house of Jagdish. Alarm
was raised and thereafter, he and other
persons reached there by running. He saw
that Jai Prakash was lying in the groove in
a unconscious and injured state. He did not
see anyone to assault Jai Prakash. He was
known to accused Sadhu, Taluqdar, Lot
and Shital and they were neither present
there nor he saw them running.

(24) P.W.2-Hari was declared, at this
stage, hostile by the prosecution and the trial
Court permitted the learned D.G.C.
(Criminal) to cross-examine him. In his
cross-examination, P.W.2-Hari has stated that
the Inspector had not made any enquiry in
respect of the incident. The trial Court has
recorded that on scribing the statement
recorded by the Inspector under Section 161
Cr.P.C., P.W.2-Hari stated that he had not
given such statement and further he did not
tell as to how the Inspector had written this.
He further deposed that when Jagdish was
brought to Wazirganj, Jai Prakash was alive
and he was also along with him and while
reaching Varahmatpur, Jai Prakash died.
Thereafter, they brought him to Niyamatpur.
He also deposed that when he reached at the
place of occurrence, the wife of Jagdish, his
daughter, mother of Jagdish and Jagdish were
present there. He further stated that he did not
know as to whether prior to two days ago, Jai
Prakash ploughed the land in dispute by
tractor or not. He also stated that on account
of attack, blood was oozing from the nose
and mouth of Jai Prakash and wrist of the
hand was broken. After the incident, accused
persons had not seen in the village but they
were coming in the interregnum period. He
further stated that it is wrong to say that on
account of fear or pressure of the accused, he
has not stated the correct facts against the
accused.

(25) P.W.2-Hari, in cross-examination
made on behalf of the accused, has further
stated that when alarm was raised in the
morning and when other persons known,
then, he also known the incident. When the
alarm was raised, light was not proper but
person from 10-15 steps could be recognized.
The blood was oozing from the injuries of Jai
Prakash and when Jai Prakash was laid on the
cot, blood was also oozing from him. He also
deposed that they were brought the deadbody
of the deceased from Viramatpur.
458 INDIAN LAW REPORTS ALLAHABAD SERIES

(26) P.W.4-Kamlesh alias Poonam,
who is the daughter of the informant
Jagdish and niece of the deceased Jai
Prakash, has deposed that in the month of
November, 1990, at 05:30 p.m., she was
not married and she was residing with her
father Jagdish. On the date of the incident,
when he was sleeping, and on listening the
noise of her uncle Ambika Prasad coming
outside her house, she woke up and came
outside the house along with her family
members and saw that accused persons
Sadhu, Lot, Talluq and Shital brought Jai
Prakash by holding, pushing and dragging
towards West-South direction in the grove
and slammed him beneath the mango tree
planted in eastern direction of the grove
and assaulted him with lathi and knife of
lathi. Accused Lot Prasad, while climbing
upon the chest of Jai Prakash, pressed his
neck and also assaulted him. Apart from
her, her other family members, her mother
Gangotri Devi, her father Jagdish Prasad,
her aunt Sakuntala wife of Jai Prakash and
her grand-mother were also coming out
from the house on the alarm. All the family
members, while raising alarm, ran in order
to save Jai Prakash and then, accused
Sadhu and others ran towards Southern
direction. Thereafter, they reached near to
Jai Prakash and saw that Jai Prakash was
breathing lightly; slight blood was oozing
out from his nose and he was moaning.
Thereafter, the death of Jai Prakash was
caused after half an hour. She further stated
that at the time of the incident, accused
persons were carrying lathi and two
persons were carrying danda.

In
cross-examination,
P.W.4Kamlesh alias Poonam has stated that they
were three sisters and she is elder daughter.
Her
marriage
was
solemnized
on
24.05.1994 and other two sisters are
unmarried and younger to him. She
deposed that Jai Prakash and Ambika used
to sleep outside the house and on the said
date also, they were sleeping outside the
house. Because of winter season, other
family members were sleeping inside the
house. The door was closed inside the
house. Her father Jagdish told him that look
whose alarm was coming, then, she listened
that the noise was of Ambika and when
they came outside the house, there was no
daylight but there was moonlight. The
moon was in the sky but he could not say
as to whether moon was full or half but
light was enough. She further stated that
when they came outside the house, accused
persons brought Jai Prakash about 20 steps
far from them. They were not stopping
there on account of fear but on raising
alarm, they ran towards accused persons.
Her father did not carry any lathi or
weapon.