# Ghanshyam Chaudhary & Anr (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-28
- **Case number:** Criminal Appeal No.8204 of 2007
- **Bench:** Bachchoo Lal, Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghanshyam-chaudhary-anr-in-jail-v-state-of-u-p-46088
- **Pages:** 13

## Headnote

Criminal Law-Appeal against Conviction
U/S 302 IPC and Section 25 of Arms Act
Minor Contradiction- Minor discrepancies are
normal in the witness statements - Totality of
situation has to be considered.

Testimony of the witness corroborated by the
testimony of the medical officer who conducted
the autopsy.

Role of Motive - Motive plays no role in the
appreciation of evidence in criminal trial based
upon the ocular testimony - it plays vital role in
a case base on circumstantial evidence.

Learned trial court has rightly appreciated facts
and law placed before it.

Conviction upheld and appeal dismissed.
(E-2)

List of Cases cited: -

## Text

_Characters 0–39,912 of 44,467. This is a partial read: ask again with offset=39912 for what follows._

954 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant Vaibhav Jain of the charges under
Sections 120-B, 149 and 427 IPC.

184. In the result, Criminal Appeal No.
7957 of 2006 (Vaibhav Jain Vs. State of U.P.)
succeeds in part and is liable to be partly
allowed. It is, accordingly, partly allowed. The
conviction and sentence of above named
accused-appellant under Sections 120 B, 149,
201 and 427 I.P.C. are set aside. However, his
conviction under Sections 302 and 364 IPC is
maintained. Impugned judgement and order
passed by Court below shall stand modified to
that extent. Accused appellant Vaibhav Jain is
in jail. He shall remain in jail to serve out the
sentence awarded by Court below.

185. Criminal Appeal No. 7044 of 2006 (
Kaushal Kishore Jain Vs. State of U.P.),
Criminal Appeal No. 7672 of 2006 (Suresh Pal
Vs. State of U.P.) and Criminal Appeal No. 106
of 2007 (Rajendra Vohra Vs. State of U.P.),
succeed and are allowed. The impugned
judgment and order dated 09.11.2006 passed by
Special Judge (E. C. Act)/ Additional Sessions
Judge, Rampur in Sessions Trial No. 76 of
2005 (State Vs. accused-Vaibhav Jain and four
others) under Sections 364, 302, 201, 120B and
427 I.P.C., P.S.-Bilaspur, District-Rampur
arising out of Case Crime No. 315 of 2004
under Sections 302, 201, 427 I.P..C. P.S.-
Bilaspur, District-Rampur, in so far it relates to
accused appellants Kaushal Kishore Jain,
Suresh Pal and Rajendra Vohra, is set aside.
They are acquitted of the charges alleged
against them. Accused Appellants Kaushal
Kishore Jain and Rajendra Vohra are on bail.
Their bail bonds are canceled. Accused
appellant Suresh Pal is in jail. He shall be set
free forthwith, if not wanted in another case.
Copy of this judgement be sent to Court below
immediately for compliance.
----------
(2020)09ILR A954
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2020

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No.8204 of 2007

Ghanshyam Chaudhary & Anr
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Lav Srivastava, Sri Ganesh Shanker
Srivastava, Sri Govind Saran Hajela, Sri Jag
Narain Sharma, Sri N.K. Chaubey, Sri Nikhilesh
Kumar Chaudhary, Sri R.K. Singh, Sri R.R.
Singh, Sri V.P. Srivastava.

Counsel for the Opposite Parties:
Smt. Manju Thakur, A.G.A.

Criminal Law-Appeal against Conviction
U/S 302 IPC and Section 25 of Arms Act
Minor Contradiction- Minor discrepancies are
normal in the witness statements - Totality of
situation has to be considered.

Testimony of the witness corroborated by the
testimony of the medical officer who conducted
the autopsy.

Role of Motive - Motive plays no role in the
appreciation of evidence in criminal trial based
upon the ocular testimony - it plays vital role in
a case base on circumstantial evidence.

Learned trial court has rightly appreciated facts
and law placed before it.

Conviction upheld and appeal dismissed.
(E-2)

List of Cases cited: -

1. Kali Ram Vs St. of Himachal Pradesh, AIR (1)
1972
SCC
2773
9 All. Ghanshyam Chaudhary & Anr. Vs. State of U.P.
955
2. Vijayee Singh & ors Vs St. of U. P., AIR 1976
SC 966

3. Narbada Prasad Vs Chhaganlal, AIR 1969 SC
393

4. H.P. Thakore Vs St. of Gujrat, (1976) 4 SCC
640 (para 6)

5. Caetano Piedade Fernandes Vs Union
Territory of Goa, Daman & Dieu, (1977) 1 SCC
707

6. Thulia Kali Vs St. of T.N., (1972) 3 SCC 393

7. Chandra Bhal Vs St. of U.P., (1971)3 SCC 983
para 4

8. St. of U.P. Vs Akhlaq & anr., 2010 (71)
ACC 764 (Allahabad High Court, Lucknow
Bench).

9.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansing, (2001) 6 Scc 145, para 20

10. St. Of Punj. Vs Karnail Singh, (2003) 11 SCC
271, para 12

11. Krishna Mochi Vs St. of Bihar, (2002)6 SCC
81, para 32

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This criminal appeal, under Section
374(2) of Code of Criminal Procedure,
(hereinafter referred to as 'Cr.P.C.') has
been filed by Ghanshyam Chaudhary and
Vishwanath,
against
judgment
of
conviction and sentence dated 23.11.2007
made by Court of Additional District and
Session Judge, Fast Track Court No. 1,
Basti, in Sessions Trial No. 16 of 2005
(State Vs. Ghanshyam Chaudhary and
another) connected with Session Trial No.
151 of 2005 (State Vs. Ghanshyam
Chaudhary), arising out of Case Crime No.
678 of 2004 of P.S. Walterganj, District
Basti, for offence punishable under Section
302 IPC and Case Crime No. 495 of 2004,
under Section 25 of Arms Act, of Police
Station Sonha, District Basti, wherein, both
of
convict
appellants
Ghanshyam
Chaudhary and Vishwanath have been
convicted and sentenced with rigorous life
imprisonment and fine of Rs. 10,000/-,
each and in case of default in payment of
fine, they are to suffer further rigorous
imprisonment for each, and in connected
Sessions Trial No. 151 of 2005 (State Vs.
Ghanshyam
Chaudhary),
appellant
Ghanshyam Chaudhary, has been acquitted
for offence punishable under Sections
3/25/27 of Arms Act.

2. Sri Ganesh Shanker Srivastava and
Nikhilesh
Kumar
Chaudhary,
learned
counsel for the convict-appellants, argued
by pressing grounds of appeal, given in
memo of appeal that impugned judgment
and sentence is against the evidence on
record. Prosecution failed to prove its case
beyond reasonable doubt. Presence of
witnesses appears to be doubtful and they
have not seen the occurrence. They were
fabricated witnesses. None of the witnesses
were present at the time of incident.
Appellants have been named in the FIR
because of some ulterior motive and
suspicion. They are of no concern with
occurrence. There was no motive for them
to commit this offence. Hence, this appeal
with a prayer for allowing this appeal and
thereby quashing impugned judgment and
conviction made therein.

3. Smt. Manju Thakur, learned AGA,
argued that it was a murder, committed by
convict- appellants, by giving assault over
deceased, having eye witness account of
same, for which instant report was got
lodged. After investigation, charge-sheet
for offence punishable under Section 302
of
IPC,
against
both
of
appellants
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghanshyam Chaudhary and Vishwanath
and in connected session trial against
Ghanshyam
Chaudhary
for
offence
punishable under Section 25 of Arms Act
was submitted. Cognizance over it was
taken. Magistrate had committed file to
Court of Sessions, where, trial was held and
all material evidences along with material
exhibits were proved and exhibited. Then
after statements under Section 313 of
Cr.P.C. were got recorded and after hearing
of arguments of learned counsel for both
sides, impugned judgment of conviction, in
Session Trial No. 16 of 2005, was passed
against
both
of
convict-appellants
Ghanshyam Chaudhary and Vishwanath,
whereas, judgment of acquittal in Session
Trial No. 151 of 2005 was there. After
hearing over quantum of punishment,
impugned
sentence
of
rigorous
life
imprisonment with fine of Rs. 10000/-,
each and in default additional rigorous
imprisonment of six months was imposed.
This judgment of conviction and sentence
made therein, was in accordance with
evidence on record. No where trial Court
failed to appreciate facts and law or apply
appropriate proposition of law. Hence, this
appeal merits its dismissal.

4. Having heard learned counsels for
both sides and gone through record of trial
court
including
impugned
judgment,
prosecution version surfaced was that First
Information
Report
Ex.
Ka-2,
was
presented before Station Officer of Police
Station Walterganj, District Basti, by
informant Tilak Ram, son of Katai, r/o
Kakarhiya, P.S. Sonaha, District Basti, with
this contention that his sister, Indramati,
was married 15 years back with Ram
Pratap, r/o village Pachasi, P.S. Sonaha,
District Basti. Ram Pratap was Gram Sevak
and a Government servant, who died
issueless on 4.9.2004. Indramati was asked
by Village Secretary and Village Pradhan
Ghanshyam
Chaudhary
(devar
of
Indramati, who is convict-appellant No. 1),
at Block Development Office, Ram Nagar,
for getting copy of family register and
death certificate of Ram Pratap. Informant
took his sister Indramati to Block Office,
Ram Nagar, where Village Secretary and
Ghanshyam
Chaudhary
were
present.
Secretary asked for coming on Saturday for
getting those documents. This was in
presence of Ghanshyam Chaudhary. While
coming back to home, Indramati was being
followed by informant. Dhruvchandra and
Lalman, r/o Siyarapar and Walterganj,
respectively, were in company of informant
Tilak Ram. When they all reached at
Belhasa, Vishwanath, s/o Ram Kumar, r/o
village Sihara Khurd, P.S. Rudhauli, riding
on a Boxer Motorcycle of red color, having
pillion rider Ghanshyam Chaudhary, who is
brother-in-law of Vishwanath, came near
Indramati. Vishwanath gave exhortation for
killing
Indramati
and
Ghanshyam
Chaudhary did firearm shot by a tamancha,
thereby, killed Indramati on spot. It was
about 4:00 P.M. Both of them fled from
spot. This was a murder with a view to grab
entire property of Indramati. Her dead body
was lying on road and report was instantly
presented. On the basis of this report, FIR
of Case Crime No. 678 of 2004 was got
registered at P.S. Walterganj, through a
chick FIR Ex.Ka-3. This registration of
case crime number was got entered in
general diary entry Ex. Ka-4. Inquest
proceeding was got conducted and its
report Ex. Ka-5, was got prepared. Death,
owing to firearm shot injury was opined in
inquest
proceeding.
But
autopsy
examination was referred. For which,
relevant papers i.e. letter to Regional
Inspector, Basti Ex. Ka-7, Specimen seal
by which dead body was sealed Ex. Ka-8,
Photo dead body Ex. Ka-9, Police Form
No. 13 Ex. Ka-10, Site map Ex. Ka-11,
9 All. Ghanshyam Chaudhary & Anr. Vs. State of U.P.
957
recovery memo of recovery of broken
bangles of deceased lying on spot Ex. Ka12, recovery memo of taking of blood
stained and plain soil from spot Ex. Ka-14,
recovery memo of taking of slipper of
deceased lying on spot Ex. Ka-13, recovery
memo of taking empty cartridges lying on
spot Ex. Ka-15, were got prepared. Matter
was investigated, wherein, there was a
recovery of country made tamancha,
having a cartridge in its barrel and on the
basis of this recovery memo, Case Crime
No. 495 of 2004, under Section 3/25/27 of
Arms Act, at P.S. Sonha, Basti, was got
registered. As this country made tamancha
was confessed to be weapon of offence of
murder of case crime No. 678 of 2004 of
Police Station Walterganj, District Basti,
hence, it was connected with above offence
of murder. After investigation, a sanction
from
District
Magistrate,
Basti,
was
obtained and it is Ex. Ka-17, spot map of
recovery of firearm Ex.Ka-16 was got
prepared. Autopsy examination report Ex.
Ka-20, revealed death by antemortem
injury over person of deceased caused by
firearm weapon. Hence, charge-sheet Ex.
Ka-19 for offence of murder was filed.
Chick FIR of Case Crime No. 495 of 2004
Ex. Ka-21, General Diary Entry of this
registration of case crime number of Police
Station Sonaha Ex. Ka-22 along with
charge-sheet
for
this
offence
was
submitted.

5. As offence, punishable under
Section 302 of IPC, was exclusively triable
by Court of Sessions, hence, both of these
files were committed to Court of Sessions,
where, Court of Additional Sessions Judge,
Court No. 6, Basti, vide order dated
5.8.2005, levelled charge of offence of
murder punishable under Section 302 of
IPC against Ghanshyam Chaudhary and
offence of murder committed under joint
mensrea
with
Ghanshyam
Chaudhary
punishable under Section 302/34 IPC
against Vishwanath was levelled. Another
charge for offence punishable under
Section 3/25/27 of Arms Act against
Ghanshyam Chaudhary was levelled. All
these charges were read over and explained
to accused persons, who pleaded not guilty
and claimed for trial.

6. Prosecution examined informant as
PW-1 Tilak Ram, PW-2- Dhruv Chand,
PW-3 Lal Man, PW-4 Sri Prem Singh
Dubey, PW-5 Sri Shiv Pujan Chauhan,
PW-6 Sri Ram Saran Prasad, PW-7 Sri
Anjani Kumar Upadhayay, PW-8 Sri
Ganesh Singh, PW-9 Sri B.D. Srivastava,
PW-10 Sri Durga Prasad Singh, PW-11 Sri
Ashok Kumar Tiwari.

7. For having explanation of accused
persons
over
incriminating
evidences,
given by prosecution, both of convictappellants were asked questions under
Section 313 of Cr.P.C. on 30.8.2007,
wherein, a general reply of testimony of
prosecution witnesses were made that
testimony was incorrect and accused
persons have been falsely implicated. But
this fact was admitted to be true that
deceased Indramati, sister of informant
Tilak Ram, was married with Ram Pratap,
resident of Village Pachhasi, Police Station
Sohna, District
Basti,
and
she
was
issueless. Recovery of country made
tamancha of 0.315 bore and cartridges were
said to be planted one.

8. Defence witness No. 1 Smt. Geeta
and Defence Witness No. 2 Sri Mahendra
Kumar were examined.

9. After hearing arguments of learned
public prosecutor as well as learned
counsel for the defence, judgment of
958 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction for offence punishable under
302/34 of IPC for both of accused persons
Vishwanath and Ghanshyam Chaudhary
and judgment of acquittal for offence
punishable under Section 3/35/37 of Arms
Act was delivered. After hearing over
quantum of sentence, learned trial Court
awarded rigorous life imprisonment with
fine of Rs. 10,000/-, against each of convict
and in default of fine additional rigorous
imprisonment as above.

10. This appeal by both of convictappellants Ghanshyam Chaudhary and
Vishwanath is against this judgement of
conviction and sentence awarded for
offence of murder. No appeal either by
State or by informant-complainant is
against judgment of acquittal, passed in
Session Trial No. 151 of 2005.

11. Learned counsel for the appellants
has vehemently argued that place of
occurrence is not in consonance with case
of prosecution. The spot, where deceased
sustained firearm injury was a place having
shrubs of Behya (a wide growing shrubs)
and dead body was lying there at, whereas
prosecution case proves spot other than it.
Indramati- deceased was wife of Ram
Pratap, who is real brother of Ghanshyam
Chaudhary, who was a Gram Sevak- a
Government Servant, having no issue and
informant Tilak Ram was being very often
fed by them. Deceased persuaded Tilak
Ram for return of her money. Tilak Ram
managed
for
murder
of
Indramati.
Ghanshyam Chaudhary and his brother-inlaw Vishwanath were got falsely implicated
for this murder. The landed property was
mutated in the name of Indramati, after
death of her husband Ram Pratap and after
her death, it was not to be diverted to
accused persons. Hence, there had been no
motive for this murder. This dead body was
recovered from a place, having distance of
about 5 kms. from the house of informant
Tilak Ram. Whereas, accused persons were of
remote places. Documentary evidence of
extract of khatauni paper list marked as 81
(kha), having entry of Gata No. 39, 40, 41 of
Village Chuthana and 85 (kha) with a copy of
complaint No. 1185 of 2005 (Mahendra Pratap
Vs. Tilak Ram Chaudhary) and order have
been filed. Certified copies of statements of
witnesses Jairam and Akriti, recorded therein,
have been filed. Meaning thereby, murder of
deceased Indramati by firearm shot and her
inquest proceeding as well as autopsy
examination has not been disputed by defence.
Rather it has been argued before trial Court as
well as before this appellate Court that it was a
murder of Indramati by and under conspiracy
of Tilak Ram and these appellants have been
falsely implicated.

12. In Kali Ram Vs. State of
Himachal Pradesh, AIR (1) 1972 SCC
2773, Court has propounded that in
criminal case onus is upon prosecution to
prove different ingredients of offence and
unless it discharges that onus it cannot
succeed to prove its case. Prosecution has
to prove its case beyond all reasonable
doubt; whereas accused is required to prove
only till establishing preponderance of
probabilities as has been propounded by
Apex Court in Vijayee Singh and others
Vs State of U. P., AIR 1976 SC 966.

13. In appeal, the burden is on
appellant to prove how judgment under
appeal is wrong? Appellant must show
where assessment has gone wrong, as has
been propounded in Narbada Prasad Vs.
Chhaganlal, AIR 1969 SC 393.

14. Judgment of Hon'ble Apex Court
by Hon'ble Mr. Justice V. R. Krishna Iyer
in H.P. Thakore Vs. State of Gujrat,
9 All. Ghanshyam Chaudhary & Anr. Vs. State of U.P.
959
(1976) 4 SCC 640 (para 6) has propounded
that while the murder is the tragedy, the
discovery of the murderer beyond doubt is
the judicial function. Hence, in this trial,
this judicial function has been performed
by learned Trial Court and it is being reassessed by this Appellate court. Because
as per verdict of Hon'ble Apex Court in
Caetano Piedade Fernandes vs Union
Territory of Goa, Daman And Dieu,
(1977) 1 SCC 707 Para 4 this has been
propounded that "Appellate Court has the
same
power
as
the
trial
court
of
appreciating evidence and coming to its
own conclusion on question of fact."

15. Informant- PW1 Tilak Ram, in his
examination in chief, has categorically
stated that he is an eyewitness account of
this occurrence of murder of his sister
Indramati,
committed
by
Ghanshyam
Chaudhary and Vishwanath. He, along with
Dhruv and Lalman, was on his way to his
village from Saltauva and his sister
Indramati was also on the same way at
about eight Kattha (about 40 Ft.) distance
from him, when this occurrence, near
Belhasa minor canal bridge, took place.
Indramati was given firearm shot by
Ghanshyam Chaudhary, who is younger
brother of her pre-deceased husband and
she died on spot. Dead body was lying on
spot and it was about 4.00 P.M. of
06.10.2004. He immediately rushed to
Police Station, where he gave information
by written report, paper no. 3A/3 and the
same is under his signature on record. This
has been exhibited as Exhibit Ka 1.
Regarding this registration of case crime
number, at above time and place at police
station concerned, is the same, being not
under signature of this witness, no question
in cross-examination has been asked by
learned counsel for defence. This portion of
his evidence is fully intact having no
embellishment or contradiction. This has
further been corroborated by statement of
Scribe of Chick F.I.R., PW5 Constable 308
Shiv
Poojan
Chauhn,
who,
in
his
examination in chief, has categorically
stated that he on 06.10.2004 while being
posted as constable clerk at Police Station
Walterganj,
District
Basti,
has
got
registered FIR No. 71 of 2004 of Case
Crime No. 678 of 2004, u/s 302 I.P.C. at
P.S. Walgerganj, against Village Pradhan
Ghanshyam, resident of Village Pachasi,
P.S.
Saunaha,
District
Basti,
and
Vishwanath, son of Rajkumar, resident of
Village Sihari, P.S. Rudhauli, District
Basti, on the basis of written report
submitted by informant Tilak Ram, son of
Kataee, resident of Village Kakraiya, P.S.
Sonaha, District Basti. Chick FIR is on
record as paper no. 3A/2 and the same is
before this witness, having been under his
handwriting and signature, which has been
verified by him and on the basis of this
testimony, it has been exhibited as Exhibit
Ka3. This registration of case crime
number, as above, for offence, as above,
against accused, as above, was entered in
General Diary entry of Police Station
concerned at Report No. 34 at 17.30 hours
on 06.10.2004. This G.D. entry was made
by way of putting carbon beneath it and the
same, original G.D., was with this witness
at the time of recording of his statement
before Court. This is true copy of original
G.D. entry, prepared under one and
common process, having his handwriting
and signature, and this has been proved and
exhibited as Exhibit Ka4.

16. In cross-examination, not a single
question has been asked about this Exhibit
Ka 3 and Ka4, for not being under
handwriting and signature of this witness or
not prepared at above given time and date
or informant Tilak Ram was not present
960 INDIAN LAW REPORTS ALLAHABAD SERIES
with above written report Exhibit Ka1 i.e.
no cross-examination over those facts is
there and this is unrebutted evidence.
Hence, on the basis of Exhibit Ka1- written
report, Exhibit Ka2- Chick FIR and Exhibit
Ka3- G.D. entry as well as oral testimonies
of PW1 and PW5, it is proved that F.I.R.
for occurrence of 4.00 P.M. of 06.10.2004
of offence of murder of deceased Indramati
by firearm shot given at above place near
Minor Canal of village Belhasa was got
registered at P.S. Walterganj at 17.30 hours
of the same day i.e. the report was within
one and half hour i.e. a very prompt report
having sequence of occurrence, mode of
occurrence, weapon of occurrence, name of
accused, who committed this offence, and
witnesses, who witnessed this occurrence,
is there and thus lodging of prompt F.I.R.
has been proved beyond any doubt.

17. Hon'ble Apex Court by Hon'ble
Mr. Justice H. R. Khanna in Thulia Kali
Vs. State of T.N., (1972) 3 SCC 393 at para
12 has propounded:

"The first information report in a
criminal case is an extremely vital and valuable
piece of evidence for the purpose of
corroborating the oral evidence adduced in the
trial. The object of insisting upon prompt
lodging of the report to the police in respect of
commission of an offence is to obtain early
information regarding the circumstances in
which the crime was committed, the names of
the actual culprits and the part played by them
as well as, the names of eye witnesses present at
there scene of occurrence. Delay in lodging the
first information report quite often results in
embellishment, which is a Creature of after
thought."

18. In the present case, it is a prompt
F.I.R. having all those essential ingredients
given in above precedent.

19. Though Hon'ble Apex Court
regarding appreciation of evidence of F.I.R.
in a criminal administration of justice has
propounded in Chandra Bhal Vs. State of
U.P., (1971)3 SCC 983 para 4:-

"No doubt the first information
report being an early record and the first
version of the alleged criminal activity
conveyed to the police officer with the
object of putting the police in motion in
order to investigate, is an important and
valuable document. But it has also to be
remembered that it is not a substantive
piece of evidence and it can only be used
for the purpose of corroborating or
contradicting its maker. The statute does
not provide that it must be made by an
eyewitness to the commission of the alleged
offence or that it must give full and precise
details. It is, therefore, not intended to be
treated as the last word of the prosecution
in the matter. It merely marks the
beginning of the investigation into the
reported offence and its value must
accordingly depend on the circumstances
of each case including the nature of the
crime, the position of the informant and the
opportunity he had of witnessing the whole
or part of the commission of the alleged
offence."

20. First informant, PW1- Tilak Ram,
is admittedly real brother of deceased. It is
further admitted fact of defence, in reply to
question no. 1 of statement recorded u/s
313 Cr.P.C., that Ram Pratap, who was a
Gram Sewak, a Government servant, was
real elder brother of accused- Ghanshyam
Chaudhary, died on 04.09.2004. He was
issueless and this accused Ghanshyam
Chaudhary was Village Pradhan. As per
defence case, Indramati was dependent
upon her brother and she had gone to her
parental village Kakarahiya. There was
9 All. Ghanshyam Chaudhary & Anr. Vs. State of U.P.
961
previous
close
relation
in
between
informant and his brother-in-law Ram
Pratap, wherein money share was also
there. Hence the circumstance, admitted, as
above, reveals that Indramati was taking
assistance of her brother. As per informant-
PW1, he along with his sister Indramati had
gone to Block Development Office Saltaua
for having copy of Kutumb Register as well
as death certificate of Ram Pratap and this
was asked to be given by Village Secretary
Dashshala. When this informant along with
his sister (deceased Indramati) went Block
Office, accused Ghanshyam Chaudhary,
who was Village Pradhan, was present at
Block Office near Village Secretary and it
was asked by Village Secretary in presence
of Ghanshyam Chaudhary for coming on
next Saturday for taking those documents.
Then on this information, the informant and
his sister proceeded for their village
Kakarahiya. But in town Saltauva at the
eastern end Dhruv and Lalman met to the
informant. As they were of village where
informant's sister was married, hence, they
all became in the company, because they
were going towards one and same side.
When they were accompanying each other,
this Indramati was moving ahead 4-5
Kattha (about 40 to 45 Ft.) and this
occurrence
took
place.
Accused-
Ghanshyam,
who
was
at
Block
Development
Office,
Saltauva,
being
pillion
rider
on
red
colour
Boxer
motorcycle being driven by Vishwanath,
his brother-in-law, came near Indramati
and upon exhortation of Vishwanath,
Ghanshyam Chaudhary gave firearm shot
over Indramati, resulting her instant death.
It was about 4.00 P.M. After this, informant
proceeded for Police Station and got this
report lodged. He came back at spot before
police
rushed.
Then
after
inquest
proceeding was conducted. Dead body was
sealed intact and it was sent for autopsy
examination. Statement of informant was
got recorded by Investigating Officer. This
testimony of informant- PW1 is with no
exaggeration or embellishment or in
contradiction with his previous statement
made in the F.I.R. Rather it was in full
corroboration in examination-in-chief as
well as in cross-examination of the same.
This witness is with no contradiction or
exaggeration. His testimony is further
corroborated by testimony of PW6- S.I.
Ram Saran Prasad, who in his examinationin-chief has categorically stated that while
being posted as S.I. Police at P.S.
Walgerganj on 6.10.2004, Case Crime No.
678 of 2004, u/s 302 I.P.C. against
Ghanshyam and Vishwanath was got
registered in his presence and he was
deputed with investigation of the same. He
made entry in his paper number of case
diary, wherein copy of chick FIR and G.D.
entry was entered then after he proceeded
for spot, where he got inquest report
prepared. The same, in his handwriting and
signature, is on record as Paper no. 3A/18.
It has been proved and exhibited as Exhibit
Ka5. Dead body was sealed on spot by
preparing specimen seal of the same.
Requisite papers, for autopsy examination
of dead body, including letter to Regional
Inspector of Police, letter to C.M.O., photo
of dead body and challan of dead body
were prepared under his own handwriting
and signature and the same are on record as
Paper No. 3A/9 to 3A/11, 3A/16 and
3A/17. They have been exhibited as Exhibit
Ka6, Ka7, Ka8, Ka9, Ka10, respectively.
Spot was visited, upon pointing out of the
informant, at the same time. Statement of
informant was recorded u/s 161 Cr.P.C.
Spot map, under his handwriting and
signature, is on record as paper no. 3A/20,
which has been proved and exhibited as
Exhibit Ka11. There were broken bangles
of deceased lying on spot. Her slipper was
962 INDIAN LAW REPORTS ALLAHABAD SERIES
lying there at. These articles were taken in
possession and recovery memos for those
were got prepared under handwriting and
signature of this witness. Blood stained soil
as well as plain soil were taken from spot.
This recovery memo was prepared under
his dictation by S.I. Keshav Prasad Dubey
in his handwriting, having signature of this
witness too. These recovery memos have
been proved and exhibited as Exhibit Ka12,
Ka13 and Ka14. An empty cartridge as
well as a bullet of cartridge were lying
there at. These too were taken into
possession, of which recovery memo was
prepared by S.I. Keshav Prasad Dubey,
under his dictation, and the same is Exhibit
Ka15 on record. In cross-examination, he
has specifically stated that the dead body
was lying on road in area of Village
Belhasa. A suggestive leading question has
been put to this witness by learned counsel
for defence that this witness visited spot but
did not perform inquest proceeding. Rather
dead body was taken to Police Station
Walterganj, where inquest was conducted.
This has been vehemently answered in
negative by specific assertion that inquest
proceeding was performed at spot and dead
body was sealed, papers were prepared then
after it was handed over to Police
Constable for carrying it to mortuary for
autopsy examination. Learned counsel for
defence has argued that dead body was
taken to Regional Police Line on the next
day at about 10.00 A.M. and dead body
was kept at Police Station Walterganj for
whole night. This question has been
answered in negative by this witness as
well as Constable Clerk and it has
specifically been said that the dead body
was handed over to Constable concerned
then after this witness is not aware of the
same. Though, informant, in his crossexamination, has stated that it became night
and it was told that the dead body will be
taken in morning, hence, it was taken to
mortuary in the morning. It is a plausible
circumstance. Once dead body was sealed
and it was handed over for carrying to
mortuary then nothing matters as to when it
was taken, particularly when murder on
above date, time and place is not disputed
or the witness, who had conducted autopsy
examination has proved that the dead body
was fully intact and sealed. Hence no
question of any tampering ever arisen. Hair
splitting cross-examination regarding site
map, Exhibit Ka11, and taking of dead
body, covering dead body by a bed-sheet
etc. etc. has been vehemently argued by
learned counsel for appellant, but the same
is of no avail. Because time and again it has
been propounded by Hon'ble Apex Court as
well as this court that hair splitting
examination is not to be said for throwing
case of prosecution. Minor embellishment
and trivial discrepancies are usual in
witness statement. Inspite of hair splitting
on any point, totality of situation ought to
have been recognized. Leela Ram Vs. State
of Haryana, 2000 SCC (Cri) 222.

21. Testimonies of PW1 and PW6
have
been
further
corroborated
by
testimony of Medical Officer, who had
conducted autopsy examination. PW9- Dr.
Vishnu Deepak Srivastava, Senior Skin
Specialist, District Hospital, Basti, has
categorically stated in his examination-inchief, that while being posted as Senior
Dermatologist at District Hospital, Basti,
on 7.10.2004, he was deputed on postmortem duty and dead body of deceased
Indramati, aged about 35 years, wife of
Ram
Pratap,
resident
of
Village
Kakarahiya, P.S. Sonaha, District Basti,
brought under sealed intact position, having
been sealed by S.O. Waltergang, Basti,
through CP 281 Rajendra Kumar Singh and
CP 70 Jai Prakash Singh, was examined
9 All. Ghanshyam Chaudhary & Anr. Vs. State of U.P.
963
upon identification by those constables at
3.10 P.M. of 7.10.2004. Deceased was of
average body built. Eyes were closed,
mouth was semi closed, rigor mortis was
present
in
all
limbs.
There
were
antemortem injuries:- Injury No. 1- wound
of entry of firearm shot 3x 2.5 cm x right
side chest cavity deep over back- right side
at the place of 6th rib joint with spinal
chord at 2 cm distance having blackening
and palming mark in 3x 5 cm area, all
around injury, having inverted margin.
Injury No. 2:- corresponding wound of exit
firearm shape 4.5x 3 cm x chest cavity deep
with everted margin, present in mid line
sternum area. In internal examination 6th
vertebra was fractured and portion of 6th
rib, which adjoins 6th vertebra was
fractured and missing. Right pleura and
right lung were congested and lacerated.
Clot of 500 Ml blood was there in right
chest cavity. Cardiac membrane was
lacerated.
Right
Atrium
was
having
through and through laceration. Blood clot
was present in pericardium. Semi digested
meal to the tune of about 200 Mg was in
stomach. This was a death owing to those
ante-mortem firearm injuries. Documents,
which were accompanying the sealed dead
body, were got signed by this Medical
Officer and they were returned back in an
envelope. Autopsy examination report,
under his handwriting and signature, was
prepared at the time of examination. The
same is on record as paper no. 3A/12,
which has been proved and exhibited as
Exhibit Ka19. In cross-examination no
question
with
any
inconsistency
or
exaggeration is there. Rather it is in full
tune with examination-in-chief. More so,
death by firearm shot is not disputed by
learned counsel for defence either in its
case taken as defence before trial court or
in statement recorded u/s 313 Cr.P.C. or
before this Appellate Court. Hence, it is a
culpable homicide by giving firearm shot
having one wound of entry and one wound
of exit, resulting laceration over vital part,
fracture of rib and vertebra, resulting death,
amounting to murder of deceased, which
has been fully proved by prosecution.

22. Motive has been vehemently
argued by learned counsel for appellant.
Whereas Hon'ble Apex Court as well as
this court has at many times, propounded
that motive plays no role in appreciation of
evidence in a criminal trial based upon
ocular testimony. It plays vital role in a
case based on circumstantial evidence.
State of U.P. Vs. Akhlaq and another,
2010 (71) ACC 764 (Allahabad High
Court, Lucknow Bench). This trial is not
based on circumstantial evidence. Rather it
is based on ocular testimony of informant
and two of witnesses, who were present on
spot and were witness of occurrence, whose
names were there in prompt F.I.R. (Exhibit
Ka1).

23. PW2 is Dhruv Chandra, who in
his examination-in-chief, has given the case
of
prosecution,
fully
intact
and
in
corroboration of testimony of PW1, written
as above. Lengthy cross-examination of
this witness is there. But there is neither
any contradiction nor embellishment. A
suggestive question has been given that
assailants went towards the same side from
which side they have come on spot and this
has been answered in negative by this
witness. This suggestive question itself
reveals presence of this witness at the time
of assailants' assault and this is not being
disputed. Time of occurrence, sequence of
occurrence,
names
of
assailants,
circumstances under which this witness
was
capable
to
identify
assailants,
perceived sequence of occurrence have
been fully narrated by this witness in his
964 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief and there is no
variance in cross-examination.

24. PW3 is Lalmani Chaudhary, who
has repeated the same prosecution story, in
his examination-in-chief, that Ghanshyam
and
Vishwanath
came
on
a
Boxer
motorcycle
from
Saltaua
side
when
Indramati was on her way to Kakrahiya
near
minor
canal
of
Belhasa
when
exhortation was made by Vishwanath and
firearm shot was given by Ghanshyam,
Village Pradhan, resulting her death on
spot. Though, in cross-examination, some
contradictions and omissions have been
tried to be established by learned counsel
for defence, but the same are of no material
in nature. The material fact is fully intact in
his cross-examination, resulting him a fully
reliable and trustworthy witness.

25. PW11 is a formal witness, who
has concluded investigation. This witness
PW11- Ashok Kumar Tiwari, S.S.I., in his
statement-in-chief, has said that while
being posted as Station Officer, P.S.
Walterganj,
on
6.10.2004,
he
took
investigation of Case Crime No. 678 of
204, u/s 302 I.P.C. and after recording
statements of Anjani Kumar Upadhyay, the
then S.O., Sonaha, S.I. Vinod Kumar
Baranwal, S.I. Raj Kumar, S.I. Anand
Kumar Gupta, statement of Prem Shanker
Dubey, Constable Yugul Kishore Mishra
and Rajendra Yadav, got copied report of
Forensic Science Laboratory of 24.12.2004,
submitted charge-sheet for offence of
murder
against
Vishwanath
and
Ghanshyam Chaudhary, under his own
handwriting and signature, which is paper
No. 3A/1, proved and exhibited as Exhibit
Ka22.

26. Certain embellishment and
exaggeration of prosecution witnesses
regarding motive has been put to this
witness and he has admitted the same to be
an addition. On over all appreciation of
those testimonies, it is apparently clear that
those alleged addition of embellishment are
not going to impeach testimonies of those
witnesses. Rather they makes witnesses
more natural and probable.

27. PW4- Prem Shanker Dubey,
PW7- Anajani Kumar Upadhyay, PW8-
S.I. Ganesh Singh, are witnesses of
recovery of firearm, registration of above
case crime of Arms Act, informant, who
recovered above firearm and investigation
of above Case Crime number of Arms Act.
But trial court has delivered judgment of
acquittal for above connected Sessions
Trial of Arms Act and there is no appeal
either by State or by victim against this
judgment of acquittal. Hence appreciation
of those evidence of those witnesses, for
whom there is judgment of acquittal, is not
needed by this court. Though, alleged
Tamancha and its specification of its fire
pin, over empty cartridge found on spot and
test
cartridges,
in
Forensic
Science
Laboratory were having same characters
and similarities, which were there over
empty cartridge recovered from spot and
bullet found on spot, which was projectile
of above empty fired cartridges. Hence it
was fully proved by prosecution that
Tamancha, proved as Material Exhibit, was
the same Tamancha of which empty
cartridge recovered from spot, was fired
and it was given in Forensic Science
Laboratory
reports
dated
27.4.2005,
24.2.2005 and 8.4.2005. But as there is no
appeal against this judgment of acquittal,
hence need not to be discussed in it.

28. Learned counsel for appellant has
vehemently opposed spot map, whereas
spot map, Exhibit Ka11, was fully proved
9 All. Ghanshyam Chaudhary & Anr. Vs. State of U.P.
965
by its maker, first investigating officer-
PW6- Ram Saran Prasad, and articles
recovered from spot with recovery memos
Exhibit Ka12, Ka13, Ka14 and Ka15 were
with full report of Forensic Science
Laboratory dated 27.4.2005, 24.2.2005 and
8.4.2005, which were tendered by learned
Public
Prosecutor
and
admissible
in
evidence because of being report of
Forensic
Science
Laboratory.
Which
reveals that they were blood stained soil,
recovered from spot, was with human
blood like the other articles of deceased,
recovered from spot. Physical structure of
plain soil and blood stained soil were one
and common. Hence place of occurrence
was the same, where dead body was
recovered and from where these articles
were taken. Hence spot map was with no
material variance. No cogent and specific
reply or explanation explained. A general
denial over prosecution evidence and
exhibited proof has been given by accused
persons before trial court while examined
u/s 313 Cr.P.C.

29. Two witnesses, examined in
defence,
were
of
those
facts
that
Ghanshyam Chaudhary was apprehended
from his home and on the basis of this
testimony of defence witness, the judgment
of acquittal for offence of Arms Act is
there. Hence these two defence witnesses
DW1- Geeta Dev and DW2- Mahendra
Kumar were concerned with facts relating
to arrest and alleged recovery of Tamancha
from Ghanshyam Chaudhary, wherein there
is a judgment of acquittal.

30. So far as, offence of murder is
concerned, these witnesses are of no
detrimental to prosecution.

31. Learned counsel for appellant has
vehemently argued as pleaded in memo of
appeal that prosecution failed to prove its
case beyond reasonable doubt.

32.