# Goli @ Jata Shanker (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 1075
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-03
- **Case number:** Criminal Appeal No. 1405 of 1985
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/goli-jata-shanker-in-jail-v-state-of-u-p-44629
- **Pages:** 14

## Headnote

A. Evidence Law-Indian Evidence Act,
1872,
Section
302
I.P.C.
-
Dying
declaration - statement of the accused
was recorded under Section 313 Cr.P.C.-
FIR of the incident was lodged by the
deceased-
dying
declaration
of
the
deceased shows that it was the appellant
who had shot dead the deceased with his
licensee weapon - some dispute between
them on the date of the incident while the
deceased was irrigating his field- the
version given by the deceased while he
being injured and also in his dying
declaration, is fully corroborated by the
medical examination report as well as his
post mortem report - received firearm
injuries on his back and during the course
of medical treatment he died after two
days of the incident - finding recorded by
the
trial
Court
in
convicting
and
sentencing the appellant appears to be
correct and justified - conviction and
sentence of the appellant by the trial
Court - upheld. (Para 8,50,52,54)

Appeal dismissed (E-7)

## Text

_Characters 0–39,882 of 46,239. This is a partial read: ask again with offset=39882 for what follows._

3 All. Goli @ Jata Shanker Vs. State of U.P.
1075
evidence as gospel truth. When we take a
conspectus of the entire prosecution
evidence, in the light of the discussion
made above, we are of the considered
view that, firstly, the presence of PW2 at
the place and time of occurrence is highly
doubtful, and, secondly, his testimony is
not of such sterling quality that proves the
prosecution case against the accused
appellants
beyond
reasonable
doubt.
Under the circumstances, the benefit of
doubt
must
go
to
the
appellants.
Consequently, the judgment of conviction
dated 03.07.1993 and the order of
sentence dated 05.07.1993 is liable to be
set-aside and is hereby set aside. The
appellants are acquitted from the charges.
They are on bail and they need not to
surrender.

34. Thus, the appeal succeeds and is
allowed.

35. Let a copy of this judgment and
order be sent to the court below for
compliance.
----------

(2019)11ILR A1075

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 1405 of 1985

Goli @ Jata Shanker ...Appellant.(In Jail)
Versus
State of U.P. ...Opposite Party.

Counsel for the Appellant:
Sri S.P. Singh, Sri Rahul Pandey, Sri Rang
Nath Pandey, Sri Ravindra Tiwari.
Counsel for the Opposite Party:
A.G.A.

A. Evidence Law-Indian Evidence Act,
1872,
Section
302
I.P.C.
-
Dying
declaration - statement of the accused
was recorded under Section 313 Cr.P.C.-
FIR of the incident was lodged by the
deceased-
dying
declaration
of
the
deceased shows that it was the appellant
who had shot dead the deceased with his
licensee weapon - some dispute between
them on the date of the incident while the
deceased was irrigating his field- the
version given by the deceased while he
being injured and also in his dying
declaration, is fully corroborated by the
medical examination report as well as his
post mortem report - received firearm
injuries on his back and during the course
of medical treatment he died after two
days of the incident - finding recorded by
the
trial
Court
in
convicting
and
sentencing the appellant appears to be
correct and justified - conviction and
sentence of the appellant by the trial
Court - upheld. (Para 8,50,52,54)

Appeal dismissed (E-7)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has
been preferred against the judgment and
order dated 23.5.1985 passed by IInd
Additional Sessions Judge, Mirzapur in
S.T. No.59 of 1984 convicting and
sentencing
the
appellant
for
life
imprisonment under Section 302 I.P.C.

2. The prosecution case in brief is
that on 16.8.1983 at about 7 A.M.,the
complainant,
namely,
Kailash
Nath
Dubey (deceased) was irrigating his field
which was situated towards South of his
village Chabgehna for sowing paddy
seeds. At about 7.45 A.M., on the issue of
irrigation of the field, some altercation
took place between the complainant
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
Kailash Nath Dubey and one Shree Ram,
resident of village Nadhgehna. At about 8
A.M., the accused, namely, Kripa Shankar
and Goli alias Jata Shankar, both sons of
Shree Ram, came at the field of the
complainant Kailash Nath Dubey. The
accused Kripa Shankar was armed with
lathi and Goli alias Jata Shankar was
armed with a licensee gun. On the
exhortation of accused Kripa Shankar,
accused Goli alias Jata Shankar with an
intention to commit murder of the
complainant Kailash Nath Dubey fired a
shot at him from his gun which hit on the
back of the complainant. With the help of
his brothers, the complainant Kailash
Nath Dubey was immediately taken to the
District Hospital. The incident was
witnessed by Sheo Shankar Tiwari,
Radhey Shyam Yadav, Sheo Shankar
Tiwari son of Ram Narain and others. The
complainant Kailash Nath Dubey got an
FIR (Ext. Ka.3) of the incident written by
Shambhoo Nath Dubey and the said FIR
was lodged at the police station Padari on
16.8.1983 at 11 a.m.

3. On the basis of written report,
Chik report (Ext. Ka.5) was prepared and
case was endorsed in G.D. as Crime
No.79/83, under Section 307 I.P.C.,
carbon copy of which is marked as Ext.
Ka.6.

4. The Investigation of the case was
conducted by S.H.O. Sri R.P. Bharti. The
Investigating
Officer
recorded
the
statements of witnesses and also made
spot inspection. He prepared the site plan
(Ext. Ka.17). He took blood stained and
plain soil from the place of occurrence,
kept it in two separate sealed tins and
prepared
the
recovery
memo
(Ext.
Ka.18).The Investigating Officer also
recovered empty cartridge, sealed it and
prepared the recovery memo (Ext. Ka.19)
in respect thereof. He also made a search
of the house of the accused persons but
could not recover the licensee gun as well
as accused also. He prepared recovery
memo
(Ext.
Ka.20)
of
the
same.
Subsequently, on 6.9.1983, Shree Ram,
father of the accused persons, handed
over his single barrel licensee gun bearing
No.32750/1970
along
with
three
cartridges of 12 bore at the police station
Padari. The Investigating Officer prepared
recovery memo (Ext. Ka.21) in this
regard. The medical examination of the
injuries of Kailash Nath Dubey was
conducted on 16.8.1983 at 9.20 A.M. at
District Hospital, Mirzapur. The injury
report of the Kailash Nath Dubey is
marked as (Ext. Ka.1). The condition of
the complainant Kailash Nath Dubey was
found serious at the District Hospital,
Mirzapur, hence, his dying declaration
(Ext. Ka.2) was recorded at the District
Hospital,
Mirzapur
by
the
Deputy
Collector/ Executive Magistrate Sri A.N.
Anand. Thereafter, the injured Kailash
Nath Dubey was taken to the Swaroop
Rani Hospital, Allahabad (here-in-after
referred to as 'S.R.N. Hospital') where he
died on 18.8.1983. The inquest report
(Ext. Ka.11) of the deceased Kailash Nath
Dubey was prepared at S.R.N. Hospital,
Allahabad on 18.8.1983 at 11.15 A.M. by
the police of Police Station Kotwali,
Allahabad. Photo-nash (Ext. Ka.12) was
prepared and dead body was sealed and
sample
of
seal
(Ext.
Ka.14)
was
preserved. The dead body of the deceased
Kailash Nath Dubey was sent for post
mortem through Constable Mohan Mishra
of Police Station Kotwali, Allahabad with
the letter (Ext. Ka.15) along with
necessary papers. The post mortem of the
dead body of the deceased Kailash Nath
Dubey was conducted by Dr. K.S. Tiwari
3 All. Goli @ Jata Shanker Vs. State of U.P.
1077
of Moti Lal Nehru Hospital, Allahabad,
which was marked as Ext. Ka.9. The plain
and blood stained soil was sent for
chemical examination. The report of
Chemical Examiner is marked as Ext.
Ka.23.

5. After completion of investigation,
the
Investigating
Officer
submitted
Charge Sheet (Ext. Ka.22) against both
the aforesaid accused persons for the
offence under Section 302 I.P.C.

6. The case was committed to the
Court of Sessions and the trial Court
framed charges against both the accused
for the offence under Section 302 I.P.C.
The charge was read over and explained
to the accused persons who pleaded not
guilty and claimed their trial.

7. The prosecution in support of its
case has examined PW1-Sheo Shankar,
PW2-Radhey Shyam, PW3-Dr. K.D.
Sharma, PW4-Shambhoo Nath Dubey,
PW5 Head Constable Surya Deo Pandey,
PW6-Constable
Rama
Shankar
on
affidavit, PW7-Constable Mohan Mishra
on affidavit, PW8-Dr. K.B. Tiwari, PW9S.I. Sri Ram Prakash Bajpai, PW10Executive Magistrate-Sri Aand Narain
Anand, PW11-Investigating Officer R.P.
Bharti & PW12 Constable Amresh Chand
Pandey.

8. The statements of the accused
was recorded under Section 313 Cr.P.C.
by
the
trial
Court
who
denied
involvement in the offence in question
and denied the prosecution case. The
accused declined to produce any oral
evidence and relied upon the injury report
(Ext. kha-1) and copy of G.D. at report
No.16 at 9.45 A.M. of P.S. Parari (Ext.
Kha-2).

9. PW1-Sheo Shankar, son of
Sukhdev has deposed before the trial
Court that he had seen the chak in Mauja
Chabgehna of the deceased Kailash Nath
Dubey. On the eastern side of his chak
there is a nala, whereas on the wastern
side there is a lane of water. On the
eastern side of nala, he is also having a
chak, namely Nala Badhu, which falls in
mauja Baudri. This witness has also
deposed that at about 7.30 or 8.00 A.M.
he was at his agricultural field in mauja
Baudri. The place where he was in his
agricultural field, was at a distance of
100-150 paces of the chak of Kailash
Nath Dubey and Kailash Nath Dubey was
watering
his
field. While
he
was
ploughing his agricultural field, at that
time accused Kripa Shankar and Goli
alias Jata Shankar had come and started
abusing Kailash Nath Dubey. He did not
hear Kailash Nath Dubey abusing the
accused. The said two accused were
carrying something in their hands but
what were they carrying, he could not
notice the same. Kailash Nath Dubey was
empty handed. Father of the accused,
namely, Shree Ram was known to him.

10. He further deposed that when
quarrel took place between Kailash Nath
Dubey and accused persons, then Kailash
Nath Dubey ran away from his chak to his
house.This witness remained at his chak
and when he heard the the gunshot then
he started going towards the house of
Kailash Nath Dubey. When Kailash Nath
Dubey ran towards his house from the
chak, the accused had also followed him
towards his house and when the accused
chased him, he did not know what
weapon they were carrying in their hands.
Kailash Nath Dubey had fallen in his
orchard towards western side. When
Kailash Nath Dubey had fallen down, the
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
accused were at a distance of about 10-15
paces behind him. The accused had gone
towards north. When Kailash Nath Dubey
had fallen down, then other people rushed
and arrived there. Radhey had also rushed
from his chak and reached there. Radhey
was at a distance of about 2-21/2 bighas
from the place where Kailash Nath Dubey
had fallen down and his chak was
adjacent to the orchard of this witness.
Where Kailash Nath Dubey had fallen
down, the blood was also fallen there.
This witness had seen the injury of
gunshot at the back of Kailash Nath
Dubey. When the accused had fled away,
he did not chase them and also did not
notice that what weapons they were
carrying in their hands. In all, total three
shots were fired. When the first shot was
fired, this witness was at his field. The
first two shots fired, did not hit Kailash
Nath Dubey and the third one hit him but
he did not know from whose gunshot said
fire was made.

11. In his cross examination this
witness has stated that the Investigating
Officer had recorded his statement in the
hospital between 2.00 to 2.30 P.M. He
further stated that he had given statement
to the Investigating Officer that accused
Kripa Shankar and Goli alias Jata Shankar
were armed gun, the statement given by
him to the Investigating Officer was
correct one. He did not remember
whether he had given the statement to the
Investigating Officer that accused Kripa
Shankar had exhorted his brother Jata
Shankar to kill the deceased and if the
Investigating Officer has written the said
statement then it is a correct one. He
further stated that he also did not
remember whether he had given the
statement to the Investigating Officer that
the third shot fired by Jata Shankar hit
Kailash Nath Dubey at his back and if the
Investigating Officer has written the
statement, then it is correct. He stated that
since a year has elapsed, he has forgotten,
hence, he had earlier deposed that he did
not know that from whose gun Kailash
Nath Dubey was killed.

12. This witness has denied the
suggestion that because of being relative,
he has deposed that he had seen the
accused at the place of occurrence. He
further denied the suggestion that he had
not seen Jata Shankar receiving any injury
nor he is aware of the same. He denied
the suggestion that he is concealing the
same. He also did not know whether Jata
Shankar had made any report about the
incident or not. He had visited the
hospital on the day of incident but he did
not see whether Jata Shankar was
medically examined of his injuries or not.
He further denied the suggestion that on
the day, he had gone to his relative at
Basui. He stated that he has no relative at
Basui.

13. PW2-Radhey Shyam who is
neighbour of the deceased has deposed
before the trial Court that he knew the
accused Kripa Shankar and Goli alias Jata
Shankar who were present in the Court.
He further stated that at about 7.00-8.00
A.M. while he was at his field, accused
Kripa Shankar and Goli alias Jata Shankar
came to the deceased. Goli alias Jata
Shankar was armed with gun whereas
Kria Shankar was armed with lathi and
there was some hot altercation took place
between the accused and Kailash Nath
Dubey, on which Kailash Nath Dubey ran
away from there, accused also followed
him and the accused Goli alias Jata
Shankar fired and he saw him making the
3 All. Goli @ Jata Shanker Vs. State of U.P.
1079
first fire which did not hit any one and
because of fear he had ran away.
Thereafter, two fires were made but who
had made the said fires he could not see
as he had ran away and after five minutes
when he came back to his field he saw
that Kailash Nath Dubey had suffered
injuries and had fallen down. Sheo
Shankar Tiwari also arrived there and
blood was also fallen there. When he
reached to his field, he did not see the
accused running away from the place of
occurrence.

14. In his cross-examination, this
witness has stated that he cannot tell that
whose shot hit the deceased Kailash Nath
Dubey.There was a dispute of water on
the said date. Water was going in the field
of Shree Ram but this witness could not
see that at the time of incident whether
water in the field of Shree Ram was less
or not. He had seen Shree Ram at that
time but there was no conversation
between him and Kailash Nath Dubey. He
did not see Shree Ram carrying gun at
any point of time but knew that there was
a licensee gun in his name. He further
stated that he did not see that on the said
date Goli alias Jata Shankar had received
any lathi injury. This witness had gone to
the hospital but he did not find Jata
Shankar in the hospital. He did not know
whether Jata Shankar had lodged any
report against Kailash Nath Dubey and
others or not. He further deposed that the
house of Kailash Nath Dubey is nearby to
him. Accused Kripa Shankar and Goli
alias Jata Shankar live in another Purba
and their Purba is towards north of the
field of Sheo Shankar.

15. He denied the suggestion that he
was not present at his field on the day of
incident and because of being a neighbour
he is falsely deposing. He stated that he
had gone to see Kailash Nath Dubey at
Allahabad.

16. PW3- Dr. K.D. Sharma in his
deposition before the trial Court has
stated that on 16.8.1983 he was posted as
Medical Officer In-charge of District
Hospital Mirzapur and on the said date at
about 9.30 a.m. he had medically
examined Kailash Nath Dubey and found
the following injuries on his person:

"1. Lacerated wound 12 cm. x 6
cm. x 2 cm. deep on left side of back 23
cm. below from shoulder blade, wound
bleeding profusely, blackening singing
and tatooing present.

2. Swelling diffuse 28 cm. x 15
cm. on the back crossing each vertibral
column, 23 cm. below root of neck.
Swelling communicates with injury no.1.

17. In the opinion of the doctor,
injury nos.1 & 2 were kept under
observation. X-ray was advised. Injury
no.1 was caused by firearm. Duration was
fresh. The injured was brought by his
uncle Chhavinath Dubey. This witness
has proved the medical examination
report
under
his
handwriting
and
signature which is marked as Ext. Ka.1

18. He has further stated that the
injuries caused to the injured could have
been caused at 8.00 A.M. in the morning.
The injured was admitted in the hospital
and at that time he was speaking.On the
said date, dying declaration of the
deceased Kailash Nath Dubey was
recorded by the Deputy Collector in his
presence, which was signed by the injured
as well as by the Deputy Collector after
writing the same in his presence and he
too had signed the same. When the said
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
dying declaration of the deceased was
being recorded he was mentally fit and
was speaking. This witness has proved his
signature as well as of Kailash Nath
Dubey and Deputy Collector P.A.M.
Anand, which is marked as Ext. Ka.2 and
has proved the same.

19. In his cross-examination, this
witness has stated that on 16.8.1983 at
about 1.30 p.m. in the afternoon he had
medically examined Goli alias Jata
Shankar and found the following injuries
on his person:

"1. Contusion 4 cm. x 2 cm. on
medial aspect of left leg 6 cm. above from
medial malleous. Colour reddish. Diffuse
swelling present around wound.

2. Contusion 1 cm. x 1 cm. on
medial aspect of right leg 4 cm. above
medial malleous. Colour reddish.

3. Contusion 4 cm. x 2 cm. on
back of right thigh 8 cm. above knee
crese. Colour reddish.

4. Complain of pain on back of
elbow.

5. Complain of pain on left side
of wrist.

6. Complain of pain on left
shoulder joint.

7. Complain of pain in right
testes.

Injuries no.1 to 3 are caused by
blunt hard object. Injuries no.7 kept
under observation. Rest of the injuries are
simple in nature. Duration within one
day."

20. This witness has further stated
that the injured Goli alias Jata Shankar
had complaint pain on his testicles which
was kept under observation and rest of the
injuries were simple in nature and the said
injuries could have been caused by lathi
and could have been caused within one
day as he stated that the said injuries
could also be caused on 16.8.1983 at 8
a.m. He has proved the injury report of
Goli alias Jata Shankar under his
handwriting and signatures as Ex. Kha.1

21. This witness has further deposed
that when the dying declaration of the
deceased was being recorded, no one was
present there and prior to it the family
members of the deceased and others who
were present there, were asked to go out
from there. When they had gone to record
the dying declaration of the deceased,
then the person, namely, Chhavinath who
had brought the deceased, was not present
there. He could not remember that how
much time it took to record the dying
declaration of the deceased. He further
stated that when he came to know that the
injured received fire injuries, whether he
sent the information about the same to the
police station or not he did not remember
and ordinarily in such cases information
is sent to the police station. The injuries
of the injured was written by him in
medico-legal register.

22. In the cross-examination by the
prosecution, this witness has stated that
Goli alias Jata Shankar himself had come
to him and on his person besides the
injury nos. 1 and 3 no other injuries were
found and the said injuries could be
caused due to impact of some blunt object
and
further
all
the
injuries
were
superficial in nature and they can be self
inflicted.The said injuries could be caused
2 hours prior to his medical examination.

23. PW4-Shambhoo Nath who is
scribe of the FIR and real brother of the
deceased has deposed before the trial
3 All. Goli @ Jata Shanker Vs. State of U.P.
1081
Court that he knows that accused Goli
alias Jata Shankar and Kripa Shankar who
are present in the Court. He further stated
that deceased Kailash Nath Dubey was
his real elder brother. On 16.8.1983, he
received firearm injury. It was about 8.008.15 A.M. in the morning, he was in his
agricultural
field. The place
where
Kailash Nath Dubey received gun shot
injuries, it is towards western side orchard
of Sheo Shankar Tiwari and his field is
also towards the western side of the said
orchard. He further stated that when he
was at his field at about 8.00-8.15 A.M.
he heard the gunshot and he after hearing
the same started running towards the
direction from where he heard the shot
being fired. When he was at a distance of
40 yard from the said orchard, he saw the
two accused who are present in Court
along with his brother and they were
running and he saw that accused Goli
alias Jata Shankar was armed with gun
whereas accused Kripa Shankar was
armed with lathi. He saw that accused
Goli alias Jata Shankar had fired shot at
the back of his brother and was running
towards his house, along him accused
Kripa Shankar also fled away. The place
where his brother received gunshot he
reached there and found his brother fallen
on the ground. Sheo Shankar, Radhey
Shyam, Chhavinath, father of this witness
Faujdar and some labourers had also
arrived there. From there he got his
brother taken to the hospital at Mirzapur
on a cot and on the way a tractor was
arranged and the deceased was taken to
Sadar Hospital from village Basuhi by a
tractor. In the hospital besides the said
witness, Chhavi Nath (uncle) Faujdar
(father) and Sheo Shankar and Radhey
etc. had also arrived. They reached the
hospital at 9 A.M. in the morning where
his brother was medically examined and
copy of the medical examination report of
his brother was being provided to him and
the doctor had asked him to lodge an FIR
and in the hospital he got a report written on
the dictation of his brother Kailash Nath
Dubey which was read over to him and after
hearing the same he signed the report. The
said written report is in his hand writing and
signature along with the signature of his
brother which is marked as Ex. Ka.3. He
states that he had submitted the said report
along with medical examination report at
police station Padari at 11 A.M. where the
FIR was registered and Sub inspector
recorded his statement under Section 161
Cr.P.C. at police station and from there he
reached the hospital at about 1.00 P.M. When
he returned to the hospital, he saw that a
vehicle was being called for taking his
brother to Allahabad and while his brother
was about to be taken to Allahabad, within
10 minutes the Sub Inspector of Police
Station Padari had reached to the hospital
and recorded the statement of his brother
Kailash Nath Dubey under Section 161
Cr.P.C. and thereafter he took his brother
Kailash Nath Dubey to Allahabad where he
was admitted in S.R.N. Hospital and on
18.8.1983 his brother died at S.R.N.
Hospital, Allahabad and on the said date
panchayatnama of the dead body of the
deceased was conducted, he also signed the
panchayatnama as one of the panch witness.
The last rites of the deceased Kailash Nath
Dubey was performed in Allahabad and
thereafter on return, on 26.8.1983 a written
report regarding the death of the deceased
Kailash Nath Dubey was given by him in his
handwriting and signature, which is marked
as Ext.Ka.4.

24. In his cross examination, this
witness has stated that he is posted as
Amin in the Tehsil Sadar Mirzapur. His
agricultural field is being taken care of by
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
his uncle Chhavinath along with his father
and also sometimes by him as well as by his
brother too. He further stated that elder
brother of his father, namely, Ram Nath lives
in his in-laws' house and did not perform
agricultural work and the said Ram Nath has
given his agricultural field in favour of his
brothers. On 16.8.1983 Kailash Nath Dubey
had gone to the field from his house for
watering his field at about 7 a.m. while the
Faujdar and Chhavinath remained at the
house and had not gone to the field. He further
stated PW1 Sheo Shankar 's house is at a
distance of about one bigha from his house
and the house of Radhey Shyam is also near
to his house. There was no enmity between
him and the accused prior to the incident. For
taking water from the canal jointly, there is
always litigation took place between the landowners (Kashtkar). In the field of deceased
Kailash Nath Dubey and accused, water used
to come from one canal for which there were
two lanes. Father of the accused Shree Ram is
having a licensee gun. He did not know
whether on the day of incident there was
some dispute between the Shree Ram and
Kailash Nath Dubey as this witness was at a
distance. He further stated that the deceased
Kailash Nath Dubey himself had told him that
there was dispute between him and Shree
Ram in morning at about 7.45 A.M. The time
by which the dispute had taken place, has
been told by the deceased and at that time
Faujdar and Chhavinath were not with him at
the field on which the Kailash Nath Dubey
was present. The house of the said witness is
towards north from the field where the
deceased Kailash Nath Dubey was present
and his field is also straightway towards north
which falls near the orchard of Sheo Shankar.

25. This witness further deposed
that in the FIR he had written the fact
which the deceased had dictated to him.
He did not remember whether the fact
regarding firing of three shots had been
written by him in the FIR or not and after
seeing the FIR (Ext. Ka.3), he stated that
the fact regarding three fire being shot is
not written. In the FIR (Ex. Ka.3), it is
also not written that the accused had shot
dead Kailash Nath Dubey in the orchard
of Sheo Shankar, as Kailash Nath Dubey
had not dictated the same, the information
which he himself was having, had not
been written in the FIR. In the FIR, he
had not written his name as an eye
witness. This witness had not shown the
filed to the Investigating Officer where he
was present at the time of incident. He is
also not aware of the fact that accused
Goli alias Jata Shankar had lodged an FIR
against Chhavinath, Ram Nath and
Faujdar and deceased on 16.8.1983 at
9.45 A.M. at the concerned police station
and when he reached at police station
Padari, he did not find accused Goli alias
Jata Shankar at there. The police had also
not informed him whether Goli alias Jata
Shankar had lodged a report or not. The
Investigating Officer did not asked this
witness as to how Goli alias Jata Shankar
received injuries.

26. This witness denied the
suggestion that he had not seen the
incident and further denied the suggestion
that he was not present at the time of
incident in the village. He also denied the
suggestion that Kailash Nath Dubey was
beating Goli alias Jata Shankar with lathi,
then the father of Jata Shankar in order to
save Jata Shankar had fired shot with his
gun. The father of Goli alias Jata Shankar
is aged about 50 to 55 years and he
denied that father of Goli alias Jata
Shankar is aged about 70 years.

27. PW5-Head Constable Surya Dev
Pandey has deposed before the trial Court
3 All. Goli @ Jata Shanker Vs. State of U.P.
1083
that on 16.8.1983 he was posted as H.M.
at police station Padri, District Mirzapur.
At about 11 a.m. in the morning on the
written report of Kailash Nath Dubey, he
prepared the chik report in his hand
writing and signature and proved the
same as Ex. Ka.5. He endorsed the chik
FIR in G.D. No.19 dated 16.8.1983 at 11
A.M. The original G.D. was before him,
which was under his handwriting and
signature, carbon copy of which is Ex.
Ka.6.

28. The case property of the present
case was submitted by the Station Officer
at the police station on 17.8.1983 which
was endorsed in G.D.No.19 at 19.30 hrs.
in sealed condition. The original G.D. is
before him and the same was in the hand
writing of Ram Prasad Bhartiya, the then
S.O. and proved the same, carbon copy of
which is Ex. Ka.7.

29. This witness further stated that
on 26.8.1983 on the written report of
Shambhoo Nath Dubey, the aforesaid case
was converted under Section 302 I.P.C.,
reference
of
which
was
made
in
G.D.No.25 at 18.30 hrs. on 26.8.1983.
The original G.D. was before him, which
was in his hand writing and carbon copy
of which is Ext. Ka.8. On 6.9.1983 Shree
Ram had deposited his licensee gun along
with three cartridges at the police station
and the gun along with one cartridge was
sent to the expert.

30. On cross-examination, this
witness has stated that on 16.8.1983 at
9.45 A.M., Goli alias Jata Shankar had
lodged an FIR under Section 323 I.P.C.
against Faujdar, Chhavinath, Ram Nath
and Kailash Nath and on the basis of
which a N.C.R. was registered under
Sections 323, 504, 506 I.P.C. as Case
No.188. He stated that he has not brought
the original NCR register. On the said
date the the case is registered at
G.D.No.16. The said G.D. is before him
which in his handwriting and signature
and he proved the same, carbon copy of
which is Ext. Ka.2. The injuries of Goli
alias Jata Shankar was also endorsed in
the G.D.

31. PW6-Constable Ram Shankar
Mishra has filed an affidavit which was
treated to be his statement, stating therein
that the in the month of October, 1983 he
was pasted as Constable at police station
Padari. The case property sealed in two
boxes, were taken by him for chemical
analysis to Vidhi Vigyan Prayogshala,
Agra and he submitted the same in sealed
condition.

32. PW7- Constable Mohan Mishra
also filed an affidavit and the same was
treated to be his statement, in which he
stated that on 18.8.1983 at 11.15 A.M. he
took dead body of the deceased Kailash
Nath Dubey in sealed condition, which
was handed over to him by Ram Prakash
Bajpai and doctor had conducted the post
mortem of the dead body.

33. PW8-Dr. S.K.Tiwari, Senior
Radiologist has stated that on 18.8.1983 he as
posted as Senior Radiologist at Moti Lal
Nehru Hospital and had conducted the post
mortem of the dead body of the deceased
Kailash Nath Dubey which was handed over
to him in a sealed condition by Constable
No.808 Mohan Mishra of Police Station
Kotwali, District Allahabad and identified the
same and he found the following injuries on
the dead body of the the deceased:

"1. Gun shot wound of entry 9
cm. x 3 cm. back of chest collar medially,
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
irregular margins present, blackening
present around the margins, 7 cm. below
inferior
angle
of
scapula
directed
medially forwards.

2 Stitched wound 12 cm. long
right paramidian with 7 stitches, 2 cm.
from midline, 3 cm. above umbilicus.

3. Diffused swelling around
right arm and forearm with number of
wounds mark of injury of injection pricks
marks present. On.......fossa.

34. In the opinion of the doctor, the
deceased died on 18.8.1983 at 6.20 A.M.
at S.R.N. Hospital, Allahabad and he has
proved the post mortem report as Ex.
Ka.5.This witness denied the suggestion
that because of negligence of the doctor,
the deceased died.

35. PW9-Ram Prakash Bajpai has
deposed before the trial Court that on
18.8.1983 he was posted as Chauki In-charge,
Suraj Kund which fell under the police station
Kotwali, District Allahabad and area of
S.R.N. Hospital comes under the police
station Suraj Kund. He further stated that on
18.8.1983 he conducted the inquest on the
dead body of the deceased Kailash Nath
Dubey in S.R.N. Hospital, which was
conducted by him on the information of the
hospital and proved the same as Ext. Ka.10.
The panchayatnama was endorsed in G.D.
No.15 dated 18.8.1983 at 8.45 A.M. which
was written in the handwriting of Suresh
Chand. Constable Moharrir and he has proved
the panchayatnama in his handwriting and
signature and proved the same as Ext. Ka.11.
He also prepared the photo-nash ( Ex. Ka.12),
chalan-nash (Ex. Ka.13), sample of seal
mohar (Ex. Ka.14), report regarding post
mortem (Ex. Ka.15) in his handwriting
and signature.

36. In cross-examination, this
witness has stated that he received
information
regarding
death of
the
deceased at 8.45 a.m. but as per the memo
prepared by doctor, the deceased died at
6.20
a.m.
He
did
not
have
any
conversation with the said doctor.

37. PW10-Anand Narayan Anand,
Deputy Collector, Mirzapur has stated
before the trial Court that on 16.8.1983 he
was posted as Deputy Collector/Executive
Magistrate, Mirzapur and on the said date
he had recorded the dying declaration of
the
deceased
in
District
Hospital,
Mirzapur at 12.45 p.m. in the afternoon
and he recorded the statement whatever
the deceased had stated to him. He further
stated that at the time of recording the
statement of the deceased, the doctor of
District Hospital was also present, who
had signed the same after he had taken the
statement of the deceased. After recording
the statement of Kailash Nath Dubey
(deceased), the same was read over to
him,
who
after
listening
and
understanding the same, signed it and he
also signed on the same. The said dyingdeclaration of the deceased Kailash Nath
Dubey was before him and he proved the
same to be under his signature as well as
signatures of the deceased Kailash Nath
Dubey and doctor which was marked as
Ex. Ka.2. At the time of recording the
said dying-declaration besides him and
doctor, none was present there and
Kailash Nath Dubey was in conscious
state of mind when he was recording his
statement.

38. In cross-examination, this
witness has stated that when he reached
the hospital for recording the statement of
the deceased Kailash Nath Dubey, some
persons were present there and he asked
3 All. Goli @ Jata Shanker Vs. State of U.P.
1085
them to go out. He stated that at the time
of recording the statement of Kailash
Nath Dubey, he had not written that the
injured was in a conscious state of mind.
In the dying-declaration, he has also not
written that prior to recording the
statement of Kailash Nath Dubey he had
asked the persons sitting near the injured
to go out.

39. PW11-A.P.Bhartiya has stated
before the trial Court that on 16.8.1983 he
was posted as Station Officer at Police
Station Padari, District Mirzapur. He
further stated that on 16.8.1983, the FIR
was registered under Section 307 I.P.C.
against two accused persons in his
presence which was registered as case
crime No.89 of 1983. He recorded the
statement of Shambhoo Nath Dubey at
police station and thereafter he proceeded
towards the place of occurrence. The
injured had gone to the hospital. He had
recorded the statement of the the
informant Kailash Nath Dubey at District
Hospital Mirzapur and at that time the
informant
was
speaking
and
was
conscious. He further stated he had
written whatever was told to him by
Kailash Nath Dubey, which is marked as
Ext. Ka.16. The said statement was taken
by
him
at
1.10
P.M.
in
the
afternoon.Thereafter, he had taken the
statement of Radhey Shyam Yadav and
Sheo Shankar at 1.30 P.M. in the hospital.
Thereafter he reached at 2.3.0 P.M. at the
place of occurrence.He inspected the
place of occurrence at the instance of
Sheo Shankar. He prepared the site plan
of the place of occurrence and proved the
same as Ext. Ka.17. The place where he
had recovered the empty cartridge, he
marked the same by alphabet 'F'. He
prepared the recovery memo of blood
stained soil and plain soil and proved the
same as Ext. Ka.18. The blood stained
soil and plain soil were kept in two boxes,
he prepared the recovery memo and got
the same signed by the witnesses. He
further stated that he made search of the
house of the accused but he did not find
gun at there. The accused were also
searched but they could not be traced out.
On 19.8.1983 the accused surrendered in
the Court and then he recorded their
statements. On 26.8.1983 on the written
report of Shambhoo Nath Dubey, the case
was converted under Section 302 I.P.C.
On 6.9.1983 Shree Ram Mishra brought
his gun at police station and had
deposited the same, for which he prepared
recovery memo under his handwriting
and signature and proved the same as Ext.
Ka.21.

40. On 22.9.1983 he had sent the
gun to the Ballistic Expert. The blood
stained soil and plain soil was sent for
examination to Vidhi Vigyan Prayogshala
for chemical analysis. He recorded the
statement of Sub Inspector Bajpai who
conducted the panchayatnama of the dead
body of the deceased at Allahabad and
also of the Constables.After completing
the investigation, he submitted the charge
sheet against the accused on 23.10.1983
and proved the same as Ext. Ka.22.

41. In his cross-examination, this
witness has stated that he did not call any
witness while he was recording the
statement of the injured Kailash Nath
Dubey. He did not find the accused in the
field.

42. PW12-Constable 824 Amresh
Chandra Pandey has filed an affidavit
which was treated to be his statement in
which he stated that on 16.8.1983 he was
posted as Constable at police station
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
Padari, District Mirzapur and he had gone
with the Station Officer R.P. Bhartiya
who was Investigating Officer along with
the Constable Janardan Rai of village
Nadighana, police station Padari. He
proved the material Ex.1 & material Ex. 2
of the blood stained and plain soil which
was collected in two separate boxes from
the field of Sheo Shankar Tiwari. This
witness further stated that from the place
of occurrence, an empty cartridge was
also recovered by the Investigating
Officer, for which recovery memo was
prepared and he deposited the case
property in sealed condition at police
station Padari, District Mirzapur.

43. Heard Sri Rang Nath Pandey,
learned counsel for the appellant, Mrs.
Archana Singh, learned AGA for the State
and perused the lower court record.

44. It is contended by learned
counsel for the appellant that the
appellant is innocent and has been falsely
implicated in the present case. He further
submitted that as per the allegations made
in the FIR, the appellant is said to have
fired shot at the deceased which hit him
on his back and he died after two days of
the incident on 18.8.1983 at S.R.N.
Hospital at 6.20 A.M. and on 26.8.1983
the case was converted under Section 302
I.P.C. as the same was initially lodged
under Section 307 I.P.C. while the
deceased was alive and he received
injuries in the incident. He has drawn the
attention of this Court towards the
evidence of PW1-Sheo Shankar who is
relative of the deceased and PW2-Radhey
Shyam who happens to be a neighbour of
the deceased and on the basis of their
evidence he argued that none of the said
witnesses have deposed that the appellant
was seen by them shooting at the
deceased. He further submitted that so far
as PW4-Shambhoo Nath Dubey who is
scribe of the FIR and real brother of the
deceased, he during the course of his
evidence before the trial Court, has
deposed that he had seen the appellant
shooting at the deceased, but from the
FIR it is evident that he was not present at
the place of occurrence and the incident
was only witnessed by Sheo Shankar and
Radhey
Shyam
PW1
and
PW2
respectively and one of the witness,
namely Sheo Shankar Tiwari son of Ram
Narain was neither produced by the
prosecution nor examined by the trial
Court.

45. It was further argued by learned
counsel for the appellant that the
appellant Goli alias Jata Shankar also
received injuries in the incident as there
was sudden fight between the parties and
the injuries of the appellant were
examined by PW3-Dr. K.D. Sharma who
had also examined the deceased while he
was injured. He submitted that the
accused appellant has also received
serious injuries at the hands of the
complainant party and the injuries which
have been received by him though have
been opined by the doctor to be simple in
nature but the said injuries could not be
self inflicted one. Moreover, the injuries
sustained by the appellant has not been
explained by the prosecution.

46. He further argued that the
licensee weapon belonging to the father
of the appellant was stated to be used in
the incident, was recovered and sent to
Ballistic Expert report, but no report was
received as the same is not on record.

47. Thus, on the basis of the
aforesaid arguments, learned counsel for
3 All. Goli @ Jata Shanker Vs.