# Govind & Ors v. State

- **Citation:** (2025) 9 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-11
- **Case number:** Criminal Appeal No. 1739 of 1983
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-ors-v-state-53880
- **Pages:** 18

## Headnote

A.G.A.

Issue for Consideration
The appeal challenges the trial court's conviction
of
the
accused
persons,
particularly
the
surviving appellant for charges of murder.
The case arose out of an incident where the
deceased and his brother and an injured witness
were attacked while taking a buffalo cart loaded
with sugarcane to a factory.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 147, 148, 302/149,
323/149-Re-appreciation of Evidence-the
court undertook thorough re-appreciation
of the evidence on record, including ocular
testimony and medical evidence-material
discrepancy between eyewitness accounts
and
medical
evidence
vitiates
the
Prosecution case, engendering reasonable
doubt
warranting
acquittal-appeal
allowed.
Held
 The court ruled that in murder prosecution u/s
302/149
IPC,
ocular
evidence
demands
independent
corroboration
from
medical,
circumstantial,
or
forensic
evidenceuncorroborated
or
inherently
improbable
testimony
cannot
sustain
convictionIrreconcilable ocular-medical discrepancies (e.g.
claimed
6.30
A.M.
post-meal
death
vs
postmortem empty stomach implying pre-dawn)
vitiate the prosecution, warranting acquittal as
per Moti Vs. State of U.P. judgment.(Para 41 to
53) (E-6)

Case law Cited
Moti Vs State of U.P. AIR, 2003 SC (1897)-
referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860

List of Keywords
circumstantial, or forensic evidence, ocular
evidence,
Re-appreciation
of
evidence,
sugarcane, acquittal.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 1739 of 1983
From
the
Judgment
and
Order
dated
11.09.2025 of the High Court of Judicature at
Allahabad.
Govind & Ors Vs. State

Appearances for Parties
Counsel for Appellant(s)
Anup Kumar Upadhyay, Priyansh Pt. Mohan
Chand
Counsel for Respondent(s)
A.G.A

## Text

_Characters 0–39,973 of 60,759. This is a partial read: ask again with offset=39973 for what follows._

9 All. Govind & Ors. Vs. State
145
(2025) 9 ILRA 145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1739 of 1983

Govind & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Anup Kumar Upadhyay, Priyansh, Pt.
Mohan Chand

Counsel for the Respondent:
A.G.A.

Issue for Consideration
The appeal challenges the trial court's conviction
of
the
accused
persons,
particularly
the
surviving appellant for charges of murder.
The case arose out of an incident where the
deceased and his brother and an injured witness
were attacked while taking a buffalo cart loaded
with sugarcane to a factory.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 147, 148, 302/149,
323/149-Re-appreciation of Evidence-the
court undertook thorough re-appreciation
of the evidence on record, including ocular
testimony and medical evidence-material
discrepancy between eyewitness accounts
and
medical
evidence
vitiates
the
Prosecution case, engendering reasonable
doubt
warranting
acquittal-appeal
allowed.
Held
 The court ruled that in murder prosecution u/s
302/149
IPC,
ocular
evidence
demands
independent
corroboration
from
medical,
circumstantial,
or
forensic
evidenceuncorroborated
or
inherently
improbable
testimony
cannot
sustain
convictionIrreconcilable ocular-medical discrepancies (e.g.
claimed
6.30
A.M.
post-meal
death
vs
postmortem empty stomach implying pre-dawn)
vitiate the prosecution, warranting acquittal as
per Moti Vs. State of U.P. judgment.(Para 41 to
53) (E-6)

Case law Cited
Moti Vs State of U.P. AIR, 2003 SC (1897)-
referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860

List of Keywords
circumstantial, or forensic evidence, ocular
evidence,
Re-appreciation
of
evidence,
sugarcane, acquittal.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 1739 of 1983
From
the
Judgment
and
Order
dated
11.09.2025 of the High Court of Judicature at
Allahabad.
Govind & Ors Vs. State

Appearances for Parties
Counsel for Appellant(s)
Anup Kumar Upadhyay, Priyansh Pt. Mohan
Chand
Counsel for Respondent(s)
A.G.A

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Priyansh, learned Amicus
Curiae for the appellant Karua and Sri Amit
Sinha, learned A.G.A. for the Staterespondent.

2. Instant Criminal Appeal has been
preferred against judgment and order dated
26.07.1983 passed by Leaned Additional
Session Judge Etah in S.T. 215 of 1982,
arising out of Case Crime No.238 of 1980,
146 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 147,148, 302/149, 323/149
IPC, Police Station Sahawar, Kasganj,
(then District Eath). Learned trial court, in
said trial convicted the appellants Govind,
Chhadami and Ram Dayal for charge under
Section 148 IPC and sentenced them to two
years rigorous imprisonment. Accused Om
Prakash and Karua were convicted of
charge
under
section
147
IPC
and
sentenced
to
one
year
rigorous
imprisonment. All the accused namely
Govind, Chhadami, Om Prakash, Karua
and Ram Dayal were further held guilty for
charge under Section 323/149 IPC and
sentenced
to
one
year
rigorous
imprisonment. All the accused persons
were further held guilty of main charge
under Section 302/149 IPC and sentenced
to imprisonment for life. One accused Ran
Singh had been acquitted of all charges for
want of evidence.

3. It appears that during the pendency
of present appeal, appellants Govind,
Chhadami, Om Prakash and Ram Dayal
died during the pendency of appeal and this
appeal qua them was directed to be abated
by order of this Court passed from time to
time on order sheet and present appeal has
been heard in respect of surviving appellant
accused Karua only.

4. The factual matrix of the case as
appearing from the material on record is
that the informant Het Ram son of Chokhey
Lodh lodged an FIR on the basis of written
report at P.S. concerned on 02.12.1980 at
09:05 AM. with allegation that on that day,
at around 06:30 AM the informant and his
sons Budh Singh and Liladhar were on way
to Nagariya Sugar Factory and sugarcane
was loaded in the buffalo cart. His son
Budh Singh was sitting on sugarcane and
his other son Liladhar was driving the cart.
The informant, the witnesses Basdev and
Pusey were following the vehicle on foot.
As soon as they reached near the Phooti
Ghata Pulia, situated after some distance
from Gangpur, his co-villagers Govind,
Chhadami, Ram Dayal, Om Prakash and
Karua emerged from western-side gunders
(Shrubs)
Ram
Dayal,
Govind
and
Chhadami were armed with country made
pistols, Karua and Om Prakash were
wielding lathis; Ram Dayal, Govind and
Chhadami asked Liladhar to stop the
vehicle and challenged him. Liladhar
stopped the vehicle, Om Prakash assaulted
Liladhar by lathi (club) and he fell down on
the earth. Thereafter, Govind, Chhadami,
Ram Dayal and Karua climbed the buffalocart and brought Budh Singh down.
Govind, Chhadami and Ram Dayal opened
fired at Budh Singh by their respective
country made pistols. Accused Karua had
assaulted Budh Singh by Lathi on climbing
the buffalo cart. Budh Singh died on the
spot having hit by fire arms. These people
are assisted by Ran Singh Ahir, R/o
Meerapurwa and Baboo Lodh R/o Chak,
P.S. Kasganj.

5. The written report Ext. Ka-1 was
scribed by one Natthu Ram, a co-villager.
Constable Moharir Ramesh Singh had
drawn chick FIR Ext. Ka-4 on the basis of
said written report and registered a case
against five named accused persons, while
GD Entry No.16 time 09:05 hours dated
02.12.1980. The extracts of said GD Entry
are proved on record as Ext. Ka-5. The
inquest was conducted on dead body of the
deceased Budh Singh on 02.12.1980
between 10:00 am to 11:30 am at the place
of incident by S.I. Hori Lal in presence of
Panch Witnesses. In inquest report Ext. Ka6 nine injuries are described on the person
of the deceased. The dead body was carried
to District Headquarter for postmortem by
Constable Suraj Singh and Virendra Singh
9 All. Govind & Ors. Vs. State
147
alongwith
eight
number
of
papers
including, photo nash, chalan nash, report
of CMO. The postmortem examination on
the person of the deceased was conducted
by the Dr. N.K. Agarwal on 03.12.1980 at
around 03:30 PM at Etah, in which as many
as six injuries were detected on the person
of the decreased, out of which three
injuries, in the opinion of doctor were
inflicted by fire arms and three injuries
were lacerated wound caused by some hard
and blunt object.

6. In the opinion of the author of
postmortem report, the cause of death was
due to shock and hemorrhage as a result of
antemortem injuries No.5 and 6. The
investigating officer recorded statements of
the informant and other witnesses on
commencement
of
investigation.
The
medico legal examination of injuries of the
injured Liladhar was conducted by doctor
S.D. Mishra (PW-3) on 02.12.1980 at
around 04:05 PM, and wherein five injuries
were detected on his person and one injury
was shown as complaint of pain in upper
part of head.

7.
S.I.
P.C.Chaturvedi
(PW-6)
recorded statement of the informant on the
date of lodging of FIR and conducted spot
inspection of the place where dead body
was lying. He directed S.I. Hori Lal Verma
to carryout inquest on the dead body which
was conducted in his presence.

8. The Investigating Officer also
prepared site plan of place of occurrence on
pointing out of the informant. He collected
blood stained and plain earth from the spot
and prepared an inventory, and he also took
into his possession two empty cartridges
which he got sealed and prepared its
inventory. He took into his possession the
buffalo-cart loaded with sugar-cane which
was lying on the spot and entrusted it to the
custody of Basdev, the uncle of the
deceased. The named accused persons,
after the lodging FIR became non traceable,
as they absconded to evade arrest. The
Investigating Officer effected proceedings
under
Section
82/83
Cr.P.C.
against
accused persons after getting the process
issued from the court. This fact emerged
from
statement
of
witnesses
during
investigation that a conspiracy was hatched
between named accused persons and one
Ran Singh, on the eve of the day of
incident dated 01.12.1980 in the chaupal of
accused Ram Dayal, Govind, Chhadami,
Om Prakash and Karua were present and
they made a plan to eliminate Budh Singh.

9. The Investigating Officer submitted
chargesheet against five accused persons
after concluding the investigation namely
Govind, Chhadami, Ram Dayal, Karua and
Ran Singh for said charges, showing them
as
"absconded".
Subsequently,
the
attendance
of
accused
persons
was
procured and accused Om Prakash and
Karua
were
enlarged
on
bail
and
subsequently other accused were also
enlarged on bail during trial. The case was
committed to the court of session by
learned CJM. On 11.05.1982 learned trial
court framed charges against accused Om
Prakash,
Karua
under
Section
147,
323/149, 302/149 IPC. Learned trial court
framed
charges
under
Section
148,
323/149, 302/149 IPC against accused
Govind and Chhadami on 25.06.1982. The
accused Ram Dayal was charged with
Section 148, 323/149, 302/149 IPC on
01.02.1982
as
he
was
subsequently
summoned under Section 319 Cr.P.C.. His
case was initially separated due to his
absence and he was not committed to court
of session alongwith co-accused. The
accused persons were put on trial.
148 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In prosecution evidence, PW-1
Hethram the informant, PW-2 Liladhar
injured witness, PW-3 Dr. S.D. Misra, the
author of injury report of Liladhar, PW-5
Dr. N.K. Agarwal author of postmortem
report of deceased Budh Singh, PW-6 S.I.,
P.C. Chaturvedi, the Investigating Officer
were examined in support of prosecution
case.

11. So far as exhibits are concerned
PW-1 Hethram, the author of written report
proved as Ext. Ka-1. PW-3 Dr. S.D.
Mishra, proved injury report of Liladhar as
Ext. Ka-2, PW-5 Dr. N.K. Agarwal proved
postmortem report as Ext. Ka-3, PW-6 S.I.
P.C. Chaturvedi, the Investigating Officer
proved Chick FIR authored by Constable
Ramesh Chandra as Ka-4 and extracts of
G.D. entries of registration of case as Ext.
Ka-5, inquest report as Ext. Ka-6.,
Photonash, chalan nash and report RI as
Ext. Ka-7 to 9, site plan as Ext. Ka-10.
Recovery memo of blood stained and plain
earth and cartridges as Ext. Ka-11,
recovery memo and supurtiginama of
Buffalo-cart Ext. Ka-12 and chargesheet as
Ext. Ka-13. He also proved arrest warrant,
process under Section 82 and 83 issued by
the Court against accused persons who
have absconded after the incident as Ext.
Ka-14 to Ka-53.

11. Out of six witnesses examined by
prosecution to prove its case PW-1
Hethram, PW-2 Liladhar are produced as
eye witness and other witnesses are
medical and formal witnesses.

12. The prosecution has examined six
witnesses to prove its case. P.W.-1 Het
Ram is the de facto complainant. He has
stated that Liladhar is his son and Budh
Singh deceased was also his son. Pusey
was of his village who has now Ran away
from the village due to fear of the accused.
Accused Govind, and Chhadami are of his
village and Om Prakash, Karua and Ram
Dayal are intimate and friends of Govind
and Chhadami. Babu is the brother-in-law
of Govind and Chhadami. He, further,
stated his son Budh Singh was a Pahalwan
(wrestler) and a healthy strong man. The
field of Govind and Chhadami is adjoining
to the place where his (P.W.1)'s cattle
would be tied, Govind and Chhadami
claimed this place and asked PW-1 to
remove his cattle from that place, but Het
Ram and his sons insisted that it was their
land. Govind and Chhadami could not
occupy that piece of land due to Budh
Singh. There was altercation earlier in this
connection between his son Budh Singh
and Govind and Chhadami. A day prior to
the occurrence, Liladhar told him that
accused Govind, Chhadami, Ram Dayal,
Om Prakash, Karua, Ran Singh and Babu
were conspiring in the Chaupal of Ram
Dayal, to commit the murder of Budh
Singh. He did not pay any heed to this
things. On the day of occurrence, he was
going to Nagariya mill with his sugar cane
loaded in a bullock-cart. The cart was being
driven by Liladhar and Budh Singh was
sitting over the cane in the cart. He (PW-1)
along with Basdev and Pusey were
following the cart on the foot. When the
cart reached at Phooti Ghata Ki Puliya at
about
06:30
AM,
accused
Govind,
Chhadami, Ram Dayal, Om Praskash and
Karua came out from the "Jhund" of
Goondar. Govind, Chhadami and Ram
Dayal had Tamanchas, Karua and Om
Prakash had lathies. Govind and Chhadami
came ahead and asked Liladhar and Budh
Singh to stop the cart. They abused and
said "Aaj Nikal Paogey Tab Malum Paregi.
"Liladhar stopped the bullock cart. Govind,
Chhadami and Karua went over the cart.
Karua gave lathi blow to Budh Singh and
9 All. Govind & Ors. Vs. State
149
Om Prakash gave lathi blow to Liladhar.
Budh Singh was dragged down from the
cart and then Chhadami, Govind and Ram
Dayal fired at him with intention to kill
him. Budh Singh died on the spot. He,
Basdev and Pusey raised alarm and the
accused ran away. Subsequently, the
persons of the neighbouring places came
there. He got his report written by Natthu
of Gangpur. It is Ext. Ka-1. It was read
over to him and then he put his thumbimpression over it.

13. He took the report to the Police
Station and handed over it there. In his
cross-examination, he has stated that Karua
and Om Prakash are residents of other
villages. Ran Singh is also resident of
Karua's village. Govind and Chhadami are
residents of his village.

14. He does not know the number of
plot where he ties his cattle. He never
obtained any sale-deed of the said land in
his favour. He added that "Jamindar Nay
Basaya
Tha."
He,
further,
stated
"Chakbandi Sey Pahiley Muljiman Govind,
Chhadami
Wa
Karua,
Govind
Wa
Chhadami
Kay
Hissey
Mian
Le
Gaya......... Pani Us Kuan Rahat Sey Ab
Bhi Hamarey Kheton Main Chalta Hai."
He stated that Govind and Chhadami
wanted to occupy forcibly the place where
his cattle are tied down and he does not
relish it. There used to be be altercation
between his sons and accused Govind and
Chhadami, but he never lodged my report.
He had stated before the I.O. that a day
prior
to
the
occurrence,
there
was
conspiracy at the 'Chaupal' of Ram Dayal.
He was confronted with his statement
under Section 161 Cr.P.C. On this point
where he has stated that "Merey Lerkey
Liladhar Ney Hame Kal Bataya Tha Ki
Yahe Sab Log Ram Dayal Ke Chabutree
Par Baith Kar Salah Kar Rahey They Ki
Budh Singh Ko Pahele Marado. "This
statement has been recorded on 12.12.1980.
On the day of occurrence, the Parchi of the
Sugar Mill was with Liladhar. The said
'Parchi' was not given and shown to the
S.I. because the cart was loaded with sugarcane. Budh Singh had taken some Nashta
(breakfast) before starting for the mill. He
had taken 1/2-1. 'Parantha' about 10
minutes prior to the occurrence. Hundredtwo hundred persons had assembled on the
spot and Siya Ram, Chowkidar of Gangpur
had also come there. He did not take the
Chaukidar along with him for lodging the
report. He had no talks with chaukidar and
persons assembled on the spot. He had
gone to the Police Station alone. He did not
talk to Liladhar before going to the Police
Station. When the cart was halted, Om
Prakash gave lathi blow to Liladhar first
and then the accused climbed on the cart.
He stated "Govind Aur Chhadami, Ram
Dayal Ne Budh Singh Par Kharey Hokar
Fire Kiye Thay Jo intino Ne Fire Kiye wah
Tino kay Fire Budh Singh kay lagey." . It is
wrong to suggest that he was not present on
the spot. It is also wrong that this
occurrence took place in the dark and the
accused did not commit this murder. Where
the cart halted Om Prakash gave lathi blow
to Liladhar and then these accused went
over the cart.

15. PW-2 Liladhar is son of the
complainant, and brother of deceased. He
was stated to be on the cart alongwith Budh
Singh. He has stated that a day prior to the
occurrence he was returning from the field.
When he reached near the 'Chaupal' of
Ram Dayal accused, he saw Ram Dayal,
Govind, Chhadami, Om Prakash and Karua
sitting there. They were planning to kill
Budh Singh. They were saying "Budh
Singh Ko Mar Do, Yahi Hi Tagra Padata
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Hai.". He stated "Ran Singh Wa Babu Us
Chaupal Par Us Samay Nahin Thay."

16. Regarding the incident on the date
of occurrence, he stated that he was driving
the bullock-cart loaded with sugar-cane.
Budh Singh was sitting over it. Het Ram,
Basdev and Pusey Ram were following the
bullock-cart on foot. It was about 06:30 am,
when the cart reached near the pullia of
Phooti Ghata, accused Om Prakash, Karua,
Govind, Chhadami, and Ram Dayal came
from the western Goonder. They asked him
to stop the cart and said "Aaj Malum Parh
Jayega Ki Aaj Nikal Paogey". He stopped
the cart. Govind, Chhadami and Karua
climbed over the bullock-cart. Om Prakash
gave him a lathi blow and he fell down.
Karua gave two -three lathi blows to Budh
Singh and brought him down and then
Govind, Chhadami and Ram Dayal fired at
Budh Singh who died on the spot. All the
accused ran away. In his cross examination
he stated that he had not become
unconscious after receiving the injuries. He
stated that "Khara Ho Gaya Tha. Kharey
Honey Ke Bad Phir Ek Aur Lathi, Om
Prakash Nay Mari Thi." The three accused
fired at Budh Singh and the shots of all the
three persons hit him. He had stated before
the I.O. that he fell down first after
receiving the lathi blow. He had also stated
that Karua had given 2-3 lathi blows to
Budh Singh. He cannot tell the reason as to
why the Investigating Officer has not
written these things in his statement. 100200 persons had reached there hearing the
alarm. The S.I. came on the spot at about
12:00 at noon. He remained there till the
arrival of the S.I.. He did not talk to the
persons
assembled
there
about
the
occurrence. His clothes were blood stained.
The S.I. had told him that he may wash his
clothes. The blood had fallen on the spot at
two places. He had the Parchi of Sugarcane in his possession. He has shown it to
the S.I. who had returned it. The dead-body
was taken from that place at about 01:00
PM and the S.I. had also gone in Jeep.
When he reached with the dead body at the
Police Station Etah, the S.I. had already
reached there. His father had not stayed
near the sugar-cane, but had gone with the
dead-body. The S.I. had given 'Parchi' for
hospital on the spot. The S.I. recorded his
statement after her returned from the
Hospital. It is wrong to state that he was
not driving the bullock-cart on the spot. It
is wrong that the occurrence did not take
place in the manner stated by him. He had
stated about the conspiracy for murder
having been made a day prior to the
occurrence. Nobody else except him saw
and heard the accused hatching this
conspiracy. He had narrated about this
conspiracy
to
his
father
after
the
occurrence.

17. PW-3 is Dr. S.D. Mishra. He
testified that on 02.12.1980 he was medical
officer Sahawar. On that day at 4-5 PM, he
examined the injuries of Liladhar son of
Heth Ram and noted the following injuries
in the injury report:-

1. Contusion 9 cm. x 3 cm.
obliquely on the back of left side of chest
caused by blunt weapon.

2. Contusion 3 cm. x 2 cm. on
back of right side of chest caused by blunt
weapon.

3. Contusion 8 cm. x 3 cm. at
the vertibral column caused by blunt
weapon.

4. Contusion 6 cm. x 11 cm. At
top of right shoulder caused by blunt
weapon.
9 All. Govind & Ors. Vs. State
151

5. Contused traumatic swelling
10 cm. X 3 cm. at the front and middle on
the left thigh caused by blunt weapon, and

6. complaint of pain in the upper
part of the head.

18. All the injuries were simple and
could be caused by some blunt weapon,
like lathi- danda. They were about 1⁄2 day
old and could possibly be caused on
02.12.1980 at 06:30 AM. He has proved
the injury report as Ext. Ka-2. In his crossexamination, he has stated that these
injuries cannot be self-inflicted. But, if a
person has endurance to bear such pain
then these injuries can be manufactured. It
is wrong to suggest that he has wrongly
noted down these injuries under the
pressure of the police. He has stated " In
Choton Main Se Kabhi Kabhi Khoon Nahi
Nikalta, Lalima 24 Ghante tak Rahetee
Hai, uskey Bad Lalima Ka Rang Badalna
Shuru Ho Jata Hai."

19. PW-4 in Constable G.P. Virendra
Singh. He has given his statement on
affidavit. He is a formal witness on
02.12.1980, he was posted at Shahawar and
on that date at about 11:30 pm. Sri Hori Lal
Verma S.I. handed over the sealed deadbody of Budh Singh to him for postmortem
alongwith all connected papers including
Panchayat nama etc. He, alongwith the
other constable Surat Singh brought the
sealed
dead-body
to
Etah
and
on
03.12.1980 presented it before the doctor
alongwith the connected papers. The sealed
dead-body remained intact till it was in his
possession.

20. P.W.-5 I Dr. N.K. Agarwal on
03.12.1980 he was Medical Officer District
Jail, Etah on that date, he conducted the
postmortem of the dead-body of Budh
Singh. He found following ante-mortem
injuries on the dead body :-

1. Lacerated would 3 cm x 1 cam
x scalp deep or on middle of head 15 cm
over bridge of nose.

2. Lacerated wound 12 cm x 0.5
cm on middle of fore-head 7 cam above
middle of nose.

3. Lacerated would 1 cm x 0.5 cm
x muscle deep on front and middle of chin.

4. Multiple fire-arm wounds of
entry in an area 4 cm x 4 cm each, 1⁄4 cm x
1⁄4 cm x muscle deep on left side front of
chest just below mid of left clavicle.

5. Fire arm would of entry 1.5 cm
x 1.5. cm x through on left side front of
chest 6 cm away and below left nipple in
the position of 7 O'clock. No blackening,
direction transversely right to left.

6. Fire Arm wound of exit, 15 cm
x 5 cm on left side of chest 8 cm below left
nipple at 4 O'clock position.

21. He also conducted the internal
examination of the dead-body and the
result in detail is mentioned in his postmortem Ext. Ka-3. In his opinion the cause
of death was due to shock and haemorrhage
as a result of ante-mortem injuries Nos. 5
and 6. Haematoma was present under
injury No.1 and 2. The death had taken
place about 1-1/4 day back. The antemortem injuries could be inflicted on
02.12.1980 at about 6:30 am. These injuries
were sufficient to cause death in ordinary
course. In his cross-examination he has
stated that the fire arm injuries could be
possible by three shots. The injuries of
blunt object could be caused by three
152 INDIAN LAW REPORTS ALLAHABAD SERIES
blows. The stomach was empty, which
demonstrates that the deceased had taken
food 5-6 hours prior to his death. 15 pellets
were recovered from wall under injury
No.4 and 14 pellets recovered from pleural
cavity. He has stated that left Vth rib was
fractured anteriorly.

22. PW-6 is S.O. P.C. Chaturvedi the
Investigating Officer. In December, 1980,
he was posted as S.O.. Sahawar, District
Etah. He has stated that on 02.12.1980 this
case was registered in his presence at his
police station at 09:05 am. Het Ram had
brought his written report Ext. Ka-1 and on
its
basis
constable
Ramesh
Chandra
prepared the chick FIR which he has also
signed. It is Ext. Ka-4. The same constable
clerk made its entry on GD Report No.16
of the same date and its true copy is Ext.
Ka-5.

23. He investigated this case. He
recorded the statement of Het Ram at the
police station, the same day. He reached the
spot. The same day he recorded the
statements of Basdev and Pusey etc. S.I.
Horilal Verma prepared the panchayat
nama of the dead-body, challan-lash and
report for post-mortem etc. under his
direction in his presence. They are Exts.
Ka-6 to Ka-9. Panchayat nama has been
signed by him also. The dead-body was
sealed and handed over to constable Surat
Singh and Virendra Singh alongwith
necessary papers for taking it to Eath for
post-mortem. On the pointing out of the
complainant he prepared site-plan which is
Ext. Ka-10. Place marked as 'A" is the
place where blood was found and at place
"B" he found two Khokha cartridges. He
took the blood stained and plain earth in
possession and sealed them separately. He
sealed the two Khokha cartridges also and
prepared their recovery memos. It is Ext.
Ka-11 one bullock-cart loaded with sugarcane was standing at place "B" marked in
the site-plan. He took it in possession and
gave it in the supurdgi of Basdeo and
prepared the Supurdgi- nama Ext. Ka-12.
Exts.1 to 4 are the blood stained and plain
earth ad Khokha of the cartridges. He
searched the accused persons, but they
could not be apprehended. On 28.02.1981
after completing the investigation, he
submitted charge-sheet Ext. Ka-13. Before
submitting the charge-sheet, he obtained
warrant and process under Sections 82 and
83 Cr.P.C. against the accused. They are
Exts. Ka-14 to Ka-19. On the back of these
warrants, there are the reports of S.I.
Virendra Singh. The reports are Exts. Ka20 to Ka-25. Proclamations issued are Exts.
26 to Ka-31. Seven reports of their back are
Exts.32 to Ka-37. Exts Ka-38 to Ka-43 are
the orders for attachments and Exts Ka-44
to Ka-49 are the reports behind them. Fard
attachments of the accused are Exts. Ka-50
to Ka-53. All these attachments were made
by S.I. Sri Lokendra Pal Singh. Their
rep;orts are also written by him. He is
familiar with his handwriting. In his crossexamination he has stated that after
registration of the case at about 12 in the
noon till 12 O'clock in the night one report
of Gamblint Act case was entered at 07:40
pm, then he said that case property under
Section 13 Gambling Act was deposited
and at that time report of gambling was not
entered. He had sent Liladhar for medical
examination from the place of occurrence.

24. His 'Rawangi' from the police
station is entered on 03.12.1980 at 06:10
am. Till his Rawangi, no report of any
cognizable offence was lodged. The special
report of this case was sent through Special
Messenger. He had reached the spot in
Jeep. He has not written about the injuries
of Liladhar in G.D. at it is not necessary.
9 All. Govind & Ors. Vs. State
153
He has not noted down the time of
recording the statement of complainant in
the case diary. His statement was recorded
at the police station when he had come to
lodge the report, hence the time has not
been written. In the case diary, he has not
written the time of going for investigation.
Similarly the time for reaching on the spot
is also not written. The time is written in
the Panchayatnama. The time is given of
beginning of writing of panchayat-nama.
During the investigation he did not record
the statement of Chaukidar of village
Gangpur. He did not record the statement
of the constable who took the dead-body
for post-mortem. He did not deem it
necessary to send the blood stained earth
for examination to Chemical Examiner.
The blood was found at one place. He did
not take the chothes of Liladhar in his
possession. He stated "Lash Kay Uttar
Purab Ko Karib Aath Kadam Par Khokhey
Parey They. He has stated that he does not
show this place specifically in the site-plan
Ext. Ka-10. In his site-plan, he has not
shown the witnesses being present behind
the bullock-cart. He has also not shown the
place where Liladhar was beaten. He has
not written in the case diary that Liladhar
had the Parchi of sugar-cane. He had no
knowledge that Liladhar had it. He had
seen the place regarding which there was
dispute between the accused and the
complainant, but he did not prepare its siteplan. It is wrong to suggest that there report
was lodged anti-time and under his
evidence. It is also wrong that Liladhar had
no injuries and he got them written by the
doctor. P.W. Hetram has not stated before
him that the remaining accused are friends
of Govind and Chhadami. Het Ram had
stated before him that "Merey Larkey
Liladhar Nay Mujhey Kal Bataya Tha Ki
Inhi Sab Log Ram Dayal Kay Chabutra
Par Salah Kar Rahey They." Liladhar had
not stated before him " Karua Ney Budh
Singh Ko 2-3 Lathi Mari." He had stated
that "Lathi Meri Thi". Liladhar had stated
that 'Om Prakash Merey Upar Lathi Chori
Thi". He had not stated that he fell down. It
is wrong to suggest that he has written
fictitious things in the case diary.

25. In their statement under Section
313 Cr.P.C. accused denied the prosecution
allegation and the evidence adduced against
them. They stated that they have been
falsely implicated in the case due to
enmity. The other accused have denied to
be intimate with Govind and Chhadami.
Govind and Chhadami have admitted that
they are real brothers and Babu is their
brother-in-law (Bahanoi). Rest they have
denied. The accused have not produced any
oral defence. They have filed the following
documents:-

i. Khatauni extract of village
Lakhimpur Gopal Singh, Tehsil Kasganj,
Etah of 1383 Fasli to show the mutation
order dated 17.02.1977.

ii. Photostat copy of sale-deed
dated 30.04.1983 executed by Ant Ram in
favour of Ram Dayal and Roshan Lal son
of Gopisingh and Maya Devi wife of Ram
Dayal.

26. Learned counsel for the surviving
appellant Karua submitted that there is no
allegation
against
accused
appellant
regarding causing of any form injury to the
injured Liladhar. The witnesses have stated
that appellant Karua was armed with Lathi
and he gave lathi blow to deceased.
However, the evidence with regard to
causing of lathi blow to the deceased by the
appellant Karua is not flawless. There is
difference in the statement of witnesses of
PW-1 and PW-2 with regard to manner and
154 INDIAN LAW REPORTS ALLAHABAD SERIES
mode of commission of crime and there is
no consistency in their statement with
regard to sequence of events which led to
death of the deceased. PW-1 informant
Hetram has stated that he was told by his
son Liladhar that prior to date of the
incident the accused persons had assembled
in the Chaupal of Ram Dayal heard that
they were planning the murder of Budh
Singh, but this fact is not stated in FIR.
Thus, the story of hatching of conspiracy of
murder amongst accused persons, one day
prior to the incident has been developed
only to give a colour to prosecution
version, and it does not inspire confidence.
Had there been any conspiracy prior to
commission of murder amongst accused
persons as stated by PW1- and PW-2, they
would have been alarmed and must have
taken some steps to secure the life of the
deceased from any murderous assault. PW1 and PW-2 have no where stated in their
statement under Section 161 Cr.P.C. that
Karua had caused three lathi blows on the
deceased, but PW-2 has stated in his
evidence before the court that he had seen
that Karua had caused three lathi blows,
while he was sitting on sugar-cane buffalocart. This statement has been developed
only to correspond this with postmortem
report of the deceased, in which three
lacerated wounds have been recorded on
his person.

27. In postmortem report, cause of
death has been shown as ante-mortem
firearm injuries. PW-1 Hetram has also
developed his version from FIR and
statement under Section 161 Cr.P.C. during
trial where he has stated that Karua had
dragged the deceased from Bullalo-cart and
brought him down.

28. PW-1 has stated in his examination
in chief that Karua had given lathi blow to
the deceased while riding the Buffalo-cart,
but this statement is product of a leading
question posed by prosecution counsel, in
reply to that question "whether any one had
given lathi blow to Budh Singh". He next
submitted that the injuries of Liladhar are
of
simple
in
nature
and
can
be
manufactured or manipulated to falsely
implicated the accused/appellant for a
serious charge like murder.

29. PW-1 has stated in his evidence
that Karua and Om Prakash are resident of
other village and accused Ran Singh (since
acquitted by trial court) is also a resident of
the village of Karua. He has clarified that
Govind, Chhadami and Ram Dayal are his
co-villagers. Karua and Ran Singh are
Yadav by caste. PW-1 has stated in his
cross-examination that he had scribed this
fact that as soon as the cart stopped, three
persons climbed thereon and assaulted
Liladhar. He had not given such statement
to Darogaji. In fact PW-1 was not present
on the spot, there are several contradictions
in the statement of PW-1 from his previous
statement recorded under Section 161
Cr.P.C. and that contained in written
statement Ext. Ka-1, which form basis of
FIR. He has also held in cross-examination
that three accused persons had fired one
shot each at the deceased to make his
statement correspond with fire arm injuries
shown in postmortem report.

30. Appellant Karua has not been
assigned any motive to commit the offence
or to share common object of committing
murder of the deceased. He had nothing to
do with the deceased or injured Liladhar
(PW-2).

31. He next submitted there there is
inconsistency
in
sequence
of
events
narrated by PW-1 and PW-2 interse which
9 All. Govind & Ors. Vs. State
155
creates
a
doubt
in
truthfulness
of
prosecution version. It is quite unnatural
that
Liladhar
had
over
heard
the
conversation of accused Ram Dayal,
Chhadami, Govind as well as Om Prakash
who were engaged in consultation of
committing murder of Budh Singh at the
Chaupal of accused Ram Dayal, as
deceased was physically strong.

32. PW-1 has stated that deceased was
a wrestler, accused persons used to object
regarding tethering of cattle by the witness
as said land was adjacent to the agricultural
plot of Govind and Chhadami. Due to
physical strength of deceased Budh Singh
they could not succeed to grab the portion
of the land of the witness.

33. This is also not natural that the
accused persons out of whom three
persons were armed with firearms had
spared PW-1 the father of the deceased
without causing even slight injury to
them and only one accused Om Prakash
has caused slight injuries on his son
Liladhar by lathi blow.

34. He also stated that one accused
Ran Singh who was charged under Section
120B IPC has been acquitted by learned
trial court on two counts firstly an accused
cannot be charged under Section 120B IPC
all alone, for an offence under Section 120B IPC the charge has to be framed against
all the accused persons who are alleged to
have been involved in hatching conspiracy
and secondly, there was no evidence on
record to prove the charge of criminal
conspiracy against him. Even Liladhar who
is
sole
witness
of
conspiracy
has
categorically stated that Ran Singh and
Babu were not present in the Chaupal of
Ram Dayal, where other accused persons
were hatching conspiracy.

35. He lastly submitted that there is
medical
inconsistency
in
the
case.
According to eye-witness accounts three
accused persons Govind, Chhadami and
Ram Dayal allegedly fired at Budh Singh
and according to witnesses their shot hit
him, but in medical evidence the doctor
PW-5 found one wound of exit which is
injury No.6 and other injuries such as
injury Nos.4 and 5 which are firearm
injuries of entry. The doctor has opined that
these three injuries could be result of only
two shots. Learned counsel also drew
attention of the Court towards postmortem
examination of the deceased, in which it is
stated that on internal examination stomach
was found empty, small intestine was half
full, large intestine was also half full. This
state of contents of stomach and intestine of
the evidence makes it evident that deceased
had not taken any foodstuff prior to the
incident, inasmuch as he had not eased
himself prior to death on that day. Whereas
PW-1 has stated that the deceased has taken
one or half paratha before leaving the home
for sugarcane factory. He has stated that
Budh Singh had taken some break-fast
before departure, thus the eye-witness
account is not consistent with Medical
evidence on this score also, as it is well
settled that stomach gets empty after 5-6
hours of taking meal. This supports defence
version that the deceased was killed on the
way by some unknown miscreants in the
darkness of late night and not in the light of
morning as stated by witnesses. Learned
counsel also submits that in fact, none of
the witnesses had seen the occurrence of
killing of the deceased, otherwise their
evidence would be consistent with medical
evidence.

36. With above submissions, learned
counsel for the appellant prayed for
acquittal of surviving appellant Karua and
156 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that the prosecution has failed to
prove its case beyond reasonable doubt.

37.
Per
contra,
learned
A.G.A.
submitted that the contention raised by
learned counsel for the appellant are by and
enlarge taken by defence before trial court
also, but same has been duly addressed by
the learned trial court while recording
conviction of the accused persons including
surviving appellant Karua for charge under
Sections 147,148, 323/149 and 302/149
IPC and proper sentence has been passed
against accused appellants after proof of
charges. The case is based on eye-witness
account of PW-1 and PW-2, which is duly
corroborated by medical evidence. There is
no occasion to disbelieve evidence of
injured witnesses PW-2 Liladhar who is
brother of the deceased and his presence on
the spot was quite natural, as father and two
sons were off to Nagariya sugar-mill for
crushing the sugar-cane loaded on a
buffalo-cart. PW-2 Liladhar was driving
the buffalo-cart and deceased was sitting on
sugar-cane, their father PW-1 Hetram was
following the buffalo-cart on foot from
behind alongwith his brother Basdev and
witness Puse. PW-1 and PW-2 both have
testified that parchi (slip) of sugarcane was
with PW-2 Liladhar and same could not be
given to S.O. as it was required to be
produced at factory gate for cane crushing.

38.
There
is
no
medical
inconsistency
between
eye-witness
account of witnesses and injuries shown
in postmortem report of the deceased.
The contents of stomach are not decisive
to ascertain time of death.

39. Learned A.G.A. lastly submitted
that the impugned judgment is based on
due
appreciation
of
evidence
and
application
of
law.
The
impugned
judgment
and
order
requires
no
interference in the present appeal.

40. We have gone through the entire
record and re-appreciated the evidence
on record in the light of submissions
made by learned counsels for the parties
in instant appeal and also passed the
impugned judgment under challenge.

41. According to testimony of PW-1
and PW-2 PW-1 was accompanied by his
brother Basdev and Pusey at the time of
incident, as they were walking behind
Buffalo-cart, on which deceased were
sitting. Pusey had filed an application
alongwith affidavit on 03.11.1982 before
the trial court wherein he has stated that
it is wrong to say that he had witnessed
the incident. He came to the spot on
hearing the news of killing of Budh
Singh alongwith his father Het Ram and
Basdev and other persons, he found
Liladhar in injured condition on the spot
and Budh Singh was lying dead.

42. With above affidavit statement,
he has expressed his disinclination to
testify as a witness in the case, whereas
according to prosecution version he
escaped due to fear of accused persons
to avoid to appear as a witness in the
case. Basdev and Pusey are named
witnesses of chargesheet. Surviving
accused Karua has stated his age as 25
years at the time of his statement under
Section 313 Cr.P.C. in the year 1983
which depicts that at present he would
be of 68 years of age.