# Gudda @ Rajman @ Raj Kumar @ Jhalla v. State of U.P

- **Citation:** (2023) 1 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Criminal Appeal No. 5070 of 2013
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gudda-rajman-raj-kumar-jhalla-v-state-of-u-p-49107
- **Pages:** 16

## Headnote

Criminal Law- Indian Evidence Act,
1872- Section 27- Recovery without
disclosure- No other evidence-Even if,
on face value, recovery of the axe and
other belongings on the pointing out of
the appellants/ accused is accepted,
even
then
on
that
strength,
appellants/
accused
cannot
be
convicted
for
want
of
substantial
evidence. Even if, it is accepted, that
after
their
arrest
they
had
made
discloser statement to the arresting
police officer yet in theevent of their
denial before the Court such disclosure
statement
cannot
be
relied
and
accepted. Merely, on the strength of
the discovery of the skelton, weapon
of offence axe with handle, clothes and
other belongings of the deceased at
the pointing out of Raju Kol, it cannot
be suggested that he had done any act
of concealment of the weapon of
offence and body etc.,and it is not
sufficient
to
infer
authorship
of
concealment by Raju Kol, who got
discovered assault weapon and dead
body of the deceased.

Settled law that merely on the basis of recovery of
alleged incriminating articles upon the pointing out
of the deceased where no disclosure has been
made and there is no other substantive evidence,
conviction cannot be secured.

Criminal Appeal Allowed. (E-3)

Case Law/ Judgements relied upon:-
1152 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,952 of 51,771. This is a partial read: ask again with offset=39952 for what follows._

1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1151
time. Income tax was deducted from the
salary
of
the
petitioner.
In
the
circumstances, the law declared in Prem
Singh (supra) entitles the petitioner to
pension and retiral dues.

In view thereof, the writ petition is
allowed. The impugned orders dated 7
March 2018 and 25 May 2012, passed by
the third respondent-District Magistrate,
Ballia
and
fourth
respondent-UpZiladhikari, Ballia, respectively, are set
aside and quashed. Petitioner is entitled to
pension. The arrears of pension shall be
confined to three years before the date of
order.
The
respondents
to
pay
the
admissible retiral benefits within three
months from the date of communication of
the order."

16. This Court is of the view that as
the controversy involved in the present case
has already been decided by this Court vide
order dated 18.09.2019 passed in Writ-A
No.10116 of 2018, the present writ petition
is allowed in the same terms. The petitioner
is entitled to pension. The respondents to
pay the admissible retiral benefits within
three
months
from
the
date
of
communication of the order.

17. No cost.
----------
(2023) 1 ILRA 1151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Appeal No. 5070 of 2013

Gudda @ Rajman @ Raj Kumar @ Jhalla
 ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri D.P. Singh, Sri Daya Nand Pandey, Sri
I.K. Chaturvedi, Sri Mukesh Singh, Sri
Neeraj Kumar Pandey, Sri P.K. Singh, Sri
Rajendra Prasad Tiwari, Sri Rajrshi Gupta,
Smt. Usha Srivastava, Sri Sushil Kumar
Dwivedi,
Sri
Rijvaan
Ahmad,
Ms.
Shambhavi Shukla

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act,
1872- Section 27- Recovery without
disclosure- No other evidence-Even if,
on face value, recovery of the axe and
other belongings on the pointing out of
the appellants/ accused is accepted,
even
then
on
that
strength,
appellants/
accused
cannot
be
convicted
for
want
of
substantial
evidence. Even if, it is accepted, that
after
their
arrest
they
had
made
discloser statement to the arresting
police officer yet in theevent of their
denial before the Court such disclosure
statement
cannot
be
relied
and
accepted. Merely, on the strength of
the discovery of the skelton, weapon
of offence axe with handle, clothes and
other belongings of the deceased at
the pointing out of Raju Kol, it cannot
be suggested that he had done any act
of concealment of the weapon of
offence and body etc.,and it is not
sufficient
to
infer
authorship
of
concealment by Raju Kol, who got
discovered assault weapon and dead
body of the deceased.

Settled law that merely on the basis of recovery of
alleged incriminating articles upon the pointing out
of the deceased where no disclosure has been
made and there is no other substantive evidence,
conviction cannot be secured.

Criminal Appeal Allowed. (E-3)

Case Law/ Judgements relied upon:-
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Mah.; 2022 Live Law (SC) 596

2. Hanumant Vs The St. of M. P., reported in
1975 AIR 1083

3. Jaharlal Das Vs St. Of Orissa, reported in
1991 AIR 1388
(Delivered by Hon'ble Syed Waiz Mian, J.)

1. This Appeal has been directed
against the impugned judgment and order
dated 18.10.2013, passed by Special Judge,
D.A. Act/Additional Sessions Judge, Court
No. 1 Chitrakoot, in connection with
Session Trial No. 147 of 2007, State vs.
Gudda @ Rajman @ Raj Kumar @ Jhalla
@ Guddu Kol and others, whereby, the
learned trial Court has convicted the
appellants/
accused
with
multiple
sentences, for offences under Sections-147,
148, 149, 364, 302, 201 I.P.C. and Section
14 of D.A. Act, Police Station-Raipura,
District-Chitrakoot.

2. It has also been directed that all
sentences shall run concurrently.

3. Heard Shri Rajrshi Gupta assisted
by Shri Rijvaan Ahmad, Ms. Shambhavi
Shukla, Shri D.P. Singh, learned counsels
for the appellants and Shri Om Prakash
Mishra, learned A.G.A. for the State and
perused the record.

4. Brief facts of the prosecution story
unfolds as under:

5. Informant Raghunandan Pathak,
along with Ram Khilawan, came to village
Hanumanganj, to purchase wheat. They
came at the gate of Kamla in Kol Basti. In
the village Hanumanganj, Daya Shankar
Kol met them; Shankar Kol was also
present, who made some conversation with
Raghunandan. After a while, informant's
brother, Rajjan Mishra, had also reached
there
and
seen
that
Shankar
Kol,
Raghunandan, had some talk with him,
Gudda Kol had also reached there and
Shankar Kol, Gudda Kol and Jiya Lal
caught the hand of his bother and took his
brother towards Jungle; at some distance,
15-20 people were spotted sitting in two
black four wheelers; Shankar Kol, Gudda
and Jiya Lal took his brother near the
persons who were sitting in two four
wheeler vehicles and leaving their vehicles
on spot, they all took his brother towards
Jungle and after some time, both vehicles
returned towards Lalta Road.

6. It is further alleged in the written
First Information Report, Exhibit Ka 3 that
on 22.05.2007 at around 10 p.m. Shankar
Kol, Gudda Kol and Jiya Lal had visited his
village and had forbidden to pluck Tendu
leaves.

7. It is also alleged in the written First
Information Report that on 23.05.2007 at
around 4 a.m. wife of Gopi, and Rajjan had
also went in the northern side of Jungle to
pluck Tendu leaves, where Shankar, Gudda
Kol and Jiya Lal were also present and all of
them had forbidden the aforementioned
women to pluck Tendu leaves. They had
returned to their village; since then his
brother Rajjan Mishra was missing. Shankar
Kol, Gudda Kol, Jiya Lal and their 15-20
associates to whom he had, no acquaintance,
kidnapped his brother with intention to kill
him, from village-Hanumanganj. He and
others made search of Rajjan Mishra, but
could not get any information. Since the next
day of the incident Raghunandan had also
gone to an undisclosed place.

8. On the basis of written First
Information Report, Exhibit Ka- 13, a
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1153
criminal case at Crime No. 46 of 2007
under Sections-147, 148, 149, 364, 302,
201 I.P.C. and 14 of D.A.A. Act, on
05.06.2007 at 13.30 p.m. was lodged
against accused Shankar Kol, Gudda Kol
and Jiya Lal and their 15-20 associates.
Substance of the First Information Report
was entered into G.D. No. 27 on
05.06.2007 at 1:30 p.m. and matter was
investigated.

9. During investigation, accused
Radhe
@
Subedar
was
arrested.
Investigating Officer took him on police
remand
for
48
hours
and
on
his
interrogation he stated that he can get
recovered the voter I.D. and Ration card of
Rajjan Mishra and the investigating officer,
along with police team on 15.05.2008,
accused Raju Kol, Sukhnandan, along with
public witnesses, Dharmendra Pandey and
Rajjan Mishra, went towards Giduraha
(Bandhak) Jungle, at Hanuman Chauk.
Accused Radhe @ Subdear Singh, took
them in the east of Hanuman Mandir,
Manikpur Range, near a deserted Kothri
and accused Radhe informed them that near
the roof of said Kothri in the heap of bricks
he had concealed the I.D. card and ration
card. Accused Radhe @ Subedar, entered
into the deserted Kothri and from heap of
bricks, lying near the roof, one polythene
packet got recovered and the same was
handed over to him. On opening this packet
one voter identity card bearing No. CYQ
1410752, having been issued by the Indian
Election Commission, in the name of
Rajendra S/o Ram Pratap, male age 37 (on
01.01.2001) and on the back of the identity
card House No. 144, Gram-Khandeha,
Police Station-Mau, District-Chitrakoot,
constituency No. 315, Manikpur, was
marked. This identity card was having been
issued on 14.10.2001, photo of Rajendra
was also pasted thereon. From the said
polythene packet, one ration card no. 45585
in the name of Rajednra Prasad Mishra, S/o
Ram Pratap Mishra, village Kandaila, Post
Singwa, Police Station-Manikpur, DistrictChitrakoot was also got recovered. In the
ration card name of three members of his
family were noted. Both the papers were
connected to Rajjan Mishra, therefore, both
these papers were taken in possession by
Investigating Officer and his team and
these two papers were put in a polythene
packet and the said packet was wrapped up
in a piece of cloth which was sealed on the
place of recovery in the presence of all the
witnesses and a memo of recovery of
aforesaid papers was written; after reading
over the same to the witnesses, it was got
signed by them.

10.

During
investigation
the
Investigating Officer also took Raju Kol in
police custody for 48 hours on 14.05.2008
and on his interrogation, he had informed
that they had killed Rajjan Mishra by
assaulting him with axe. On 15.05.2008,
the Investigating Officer with police
personnel and also with other co-accused
Sukhnandan and Radhe @ Subedar came to
their camp office situated at townManikpur. Investigating Officer with police
team along with above noted accused
proceeded from their office in the hope of
recovery of axe (weapon of offence); they
along with the co-accused, as well as,
public witnesses Dharmendra Pandey and
Rajal Mishra reached near Garhit Nala
(Channel) situated in the Jungle. Raju Kol
pointed out that in east-west side of the
channel he and co-accused Jiya Lal had
killed
the
deceased
Rajjan
Mishra
assaulting him with two axes and after
killing him they washed the blood stained
axes in the running water of the channel.
They thereafter concealed both the axes
beneath the stones in the bushes. Accused
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
Raju Kol, got recovered an axe from the
said place and handed over the axe to
Investigating Officer in the presence of
Police personnel and public witnesses. The
recovered weapon ''axe' was sealed in a
piece of cloth. Memo of recovery of axe,
Exhibit-Ka-3
was
prepared
by
the
Investigating Officer in the presence of the
witnesses and the same was also signed by
them.

11. During investigation, the officer
incharge
of
Police
Station-
Raipura,
District-Chitrakoot, in the presence of the
witnesses Pradhumn Lal Kol, Chunni Lal,
in connection with the incident, the
belongings of deceased Rajjan Mishra i.e.
(1) Saafi (Tericot cotton mix) green
checked colour, border black (2) a torn red
black yellow checked full slieve shirt (3)
one white sandow vest, (Amul gold, 85
c.m.) (4) Green Colour torn pant of Tericot
(5) one brown colour brief, were also
recovered.

12.

All
the
aforementioned
belongings of the deceased were blood
stained. One pair of white colour fibre
slippers was also taken in possession by the
police and all the belongings of the
deceased were put in a piece of cloth;
memo of recovery of the said articles was
prepared by Hari vansh Singh, Sub
Inspector, on the dictation of Sachindra
Prasad Shukla, incharge of the police
station.

13. During investigation accused
Radhe @ Subedar was again taken in
police custody on 13.05.2008 and on the
following date i.e. 14.05.2008, Station
House Officer, Rishikesh Yadav, with
police personnel came at Rampuriya under
the territorial jurisdiction of police Station
Manikpur,
District-Chitrakoot.
At
the
instance of accused Radhe @ Subedar, they
reached at the house of Shiv Poojan @
Dilli, who was not found at his house
however, in the presence of public
witnesses and Daya Ram, house of Shiv
Poojan @ Dilli, was got searched but no
contraband was found. Memo, exhibit Ka15 was accordingly prepared and the same
was got signed by Smt. Sunita w/o Shiv
Poojan @ Dilli and other witnesses.

14. Informant Ram Gopal Mishra, also
reached at the police station on 16.07.2007 and
presented an application paper no. 18- Ka, the
informant averred in the application that the
skeleton of his brother Rajjan Mishra was
lying in the bushes grown in the channel. In
the presence of informant, noted in application
no. 18 Ka; the Investigating Officer with
police force, along with the informant and
others, reached at the said place where
Skelton, clothes and slippers of the deceased
were lying. Investigating Officer Sachindra
Prasad Shukla, inspected the place and
prepared a site plan, paper no. 20 Ka, Exhibit
Ka11; people were present on the said place
had apprised him that these articles were the
belongings of Rajjan Mishra because on that
date deceased had worned them. In the front of
head of the skelton his hairs had disappeared.

15. Investigating Officer Sachindra
Prasad Shukla, in the presence of Panchan, an
inquest report of the skelton was prepared and
skelton, pair of slipper, blood stained Safi, full
sleeves checked shirt, one sandow west, one
torned green colour pant and one brown colour
brief, were took in the possession and memo
Exhibit Ka -12 and other necessary papers on
the spot were prepared by the Investigating
Officer, Sachindra Prasad Shukla.

16. During investigation, Gudda @
Rajman was arrested on 22.07.2007 who
disclosed to Investigating Officer that the
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1155
deceased was taken in Thick Jungle and
near Garhit Nala (Channel), Rajjan Mishra,
was done to death by the blows of axe.

17. During investigation, the present
case was transferred to A.T.S. Lucknow.
Investigating Officer, Abhay Kant Singh, took
up the remaining investigation on 29.07.2007,
he recorded the statements of accused and
witnesses and during investigation names of
accused Shankar Kol, V.M. Lal, Gotar @
Rajam @ Halla @ Raj Kumar @ Gudda Kol
came in the light. Statements of Santosh
Kumar
Vishwakarma,
Satyanarayan,
Abhilash,
Umesh
Dwivedi,
and
other
witnesses were also recorded. Investigating
Officer collected the incriminating evidence
for the offences under Section 147, 148, 149,
364, 302 and 201 I.P.C.

18.

During
investigation,
the
Investigating Officer, Abhay Kant Singh,
also recorded the statements of Smt.
Meena, Jamindar, and Jhadi @ Bhola @
Kamru and on the basis of evidence Section
14 of D.A. Act was also added.

19. During the course of investigation
statement of Aditya Nath Tiwari, and
additional statement of Santosh, Satya
Narayan, and accused were also recorded.

20. During investigation to ascertain
real cause of death the skelton of the
deceased,
inquest
report
and
other
necessary papers were forwarded to District
Mortuary through police constables.

21. Dr. R.K. Rao, had conducted the
autopsy over the skelton on 16.06.2007 at
3.30 p.m. and he prepared post mortem
report, in his writing, Exhibit-Ka1.

22. On medical examination of the
skelton Dr. R.K. Rao, could not ascertain
the cause of death of the deceased. He
could also not ascertain the nature of
weapon by which deceased was killed. He
also failed to note the approximate time of
the death of the deceased.

23. After due deliberations and
completion of investigation charge sheet
was filed before the competent Court of
criminal jurisdiction; since the matter was
under the jurisdiction of Sessions Court,
same has committed to it. In the District
and Sessions Court Criminal case was
registered as S.T. No. 148 of 2007.

24. Charges were framed, vide order
dated 27.11.2007, by the Special Court,
under Sections 147, 148, 364, 302, 201
read with Section 14 D.A. Act, against
accused Gudda Kol and 14 others.

25. Trial Court vide its order dated
13.08.2008 also has framed charges against
co-accused Subedar @ Radhe and Jiya Lal
under Sections 147, 148, 364, 302 read
with Sections 149, 201, 302, 364 I.P.C. and
also Section 14 D.A.Act.

26. All the accused absurd their guilt
and claimed complete innocence.

27. In order to prove the charges
against
the
accused,
the
prosecution
examined, P.W.-1 Anil Kumar Shukla,
P.W.-2 Jagdish Prasad, P.W.-3 Satya
Narayan,
P.W.-4
Santosh
Kumar
Vishwakarma, P.W.-5 Umesh Chandra
Dwivedi, P.W.-6-Jhari Lal, P.W.-7 Chunni
Lal, P.W.8-Dr. R.K. Rao, P.W.-9/C.W.9
Rajul, P.W.10 C.P. Narendra Singh, P.W.-
11 Babbu Ram, P.W.-12 Smt. Nirasha
Devi, P.W.-13 Smt. Sunita, P.W.-14
Shachindra Prasad Shukla, P.W.15-Ram
Gopal, P.W.-16 Smt. Meena Devi, P.W.17-
Abhay Kant Singh, P.W.-18-Rishikesh
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
Yadav, Police Inspector, posted in S.T.F.
on 30.01.2008, P.W. 19-|Ram Abhilash
P.W.-20 Aditya Tiwari, P.W.-21, Ram
Dayal
Tiwari,
P.W.-22
Dharmendra
Pandey, P.W.-23-Ram Sewak, and P.W.-
24-Constable Kamlesh Kumar.

28. Statements of the accused under
Section 313 Cr.P.C. were recorded in
which they have denied the charges and
evidence against them and they have said
that they have been falsely implicated due
to animosity.

29. Accused in their statements under
Section 313 Cr.P.C. have also stated that
they shall adduce evidence in their favour.
However, they have not examined any
witnesses.

30.

Learned
trial
Court
after
appreciating and analyzing the evidence of
the witnesses and other materials available
on record has convicted the appellants for
aforesaid offences and also awarded
punishment as mentioned in para no. 35
and 36 of the impugned judgment and
order.

31. By means of instant appeal,
appellants/accused
have
assailed
the
impugned judgment inter alia on the
grounds that the judgment and order is
illegal arbitrary and against the evidence on
record; there is no direct evidence against
the appellants; instant case rests upon
circumstantial evidence but the chain is
missing; dead body of the deceased was not
recovered; as per prosecution case the
skelton was recovered which was not of a
human being; D.N.A. test report was found
negative; recovery of axe, voter I.D. card,
Ration Card etc. were false and the
witnesses have turned hostile as they have
not supported the prosecution case. There is
also inordinate delay in lodging the First
Information Report; statement of P.W-15,
informant is categorical that he has not
moved any application to the higher
authority; he has not disclosed the name of
any accused to the police; he has also stated
that he has no fear of any one; his brother
was a man of criminal activities and also
was inimical to several persons; he was
also a member of a gang and an award of
3,000/-
was
imposed
upon
him;
appellants/accused
have
been
falsely
implicated at the behest of Daddu Prasad,
the then Minister of the ruling party as the
appellants were supporters of Samajwadi
Party. It is prayed that the impugned order
dated 18.10.2013, passed by the learned
trial Court in connection with trial No. 148
of 2007 State vs. Gudda @ Rajman @ Raj
Kumar @ Jhalla @ Guddu Kol and others
under Sections-147, 148, 149, 364, 302,
201 I.P.C. and 14 D.A. Act, Police StationRaipura, District-Chitrakoot, be set aside.

32. Informant-P.W.-15, Ram Gopal
has stated in his deposition that the
deceased Rajjan Mishra was his brother.
On 23.05.2007 at about 9 to 9.15, he was
abducted while he was in front of the house
of Kamla at Hanumanganj by Shankar Kol
and his two associates. One of the accused
Raghunandan had suggested him and his
brother
to
purchase
wheat
from
Hanumanganj, in pursuance thereof he and
Raghunandan departed from his house to
Hanumanganj; his brother had told him that
after having meal he would reach there; at
the time of abduction of the deceased he
(P.W.-15), Raghunandan Pathak had just
reached at the house of Kamla Pokhariya,
at Hanumanganj; they saw that three
miscreants Shankar and his two associates,
were sitting there; Raghunandan had some
conversation with all three miscreants; at
this stage his brother, deceased-Rajjan
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1157
Mishra also had reached there and all three
miscreants abducted him towards forest.
Thereafter, his brother did not return; his
report at the police station was not lodged;
police had lifted him from his house and
also kept him in the police station lock up
for five days.

33. On the request of prosecution,
P.W.15 Ram Gopal was declared hostile;
he has denied his statement under Section
161 Cr.P.C. and has also feigned ignorance
as to how it came to be recorded by the
Investigating Officer. He has further stated
that he did not disclose the name of the
accused to the investigating officer and
how such statement came to be recorded is
not known to him.

34. In cross examination-P.W.-15,
Ram Gopal, brother of the deceased has not
supported the allegations made in the First
Information Report and with regard to
accused Shakar Kol, he has contradicted in
his cross examination that he had not
disclosed his name to the investigating
officer.

35. P.W.-16, Smt. Meena, wife of the
deceased Rajjan Mishra has stated in her
examination in chief that when her husband
had gone to Hanumanganj to purchase
wheat, he was having Rs. 100/-, betel nut,
Batua and Kuraula. In the evening, her Jeth
and Raghunandan Pathak had come at her
house, but her husband did not return.

36. A day earlier her husband had
gone to Hanumanganj, three miscreants
came along with Raghunandan Pathak; she
had come to know that her husband has
been done to death. It is her belief that her
husband Rajjan Mishra was killed at the
instance of Dadua Gang, by Shankar Kol,
Jiya Lal Kol and Gudda Kol. No person
was coming forward to disclose the name
of the miscreants due to fear.

37. In the cross examination, P.W.-
16, has stated that on the date of
occurrence, Raghunandan and her Jeth
Ram Gopal had departed and on the same
day both had returned to their house, on
their way to Hanumanganj, miscreants had
met and her husband was caught and
abducted. After four to six days on her
visit to village Hanumanganj, wherein, she
was apprised that three miscreants had
abducted her husband and took him
towards the forest.

38. It is the case of the prosecution
that deceased had departed from his house
all alone and the statement of P.W.16 Smt.
Meena is based on hear-say which needs
corroboration but her Jeth, P.W.- 15, Ram
Gopal has not supported the allegations
made in the First Information Report, nor,
his statement under Section 161 Cr.P.C.,
therefore, her indirect evidence has not
been corroborated by her Jeth, P.W.-15Ram Gopal.

39. P.W.16, Smt. Meena Devi, has
also stated in her examination in chief that
on the date of occurrence her brother Ram
Abhilash and nephew Umesh had visited
her house and after taking meal they had
departed.

40. P.W.19 Ram Abhilash, has stated
in his examination in chief that on
23.05.2017, he had not visited the house
of her brother in law at village Kota
Kadaila and he knew that his brother-inlaw was killed but he has not witnessed
the incident. P.W.19 Ram Abhilash has
also been declared hostile and he has not
supported the prosecution case in his cross
examination also.
1158 INDIAN LAW REPORTS ALLAHABAD SERIES

41. P.W.-20, Aditya Tiwari has
deposed on 27.04.2013 stating that incident
had occurred 6-7 years earlier. He along
with his uncle Ram Lal Tiwari, Jimindar
and Jhari Kol from village Kota Kadaila
were going to their village through forest;
they had heard the sound of 1-2 fire arm
shots, but he has not seen the incident, nor,
he had seen as to who had murdered
deceased Rajjan Mishra.

42. P.W.-20, Aditya Tiwari has also
been declared hostile as he has not
supported the prosecution story, nor,
statement under Section 161 Cr.P.C.
attributed to him.

43. This witness has also admitted in
his cross examination that his house from
village Kota Kadaila is situated at the
distance of 15 Kilometers.

44. P.W.-21 Ram Dayal Tiwari, has
deposed on 27.04.2013, that the incident
had occurred 6-7 years before at 10 to
10.30 A.M. when he along with Jimindar,
Jhadi Kol and Aadil, were returning from
village Kota Kadaila to their house at Mau
Gurdari, they heard the sound of fire shots
and out of fear they had hidden themselves
but they did not see the incident.

45. P.W.-21 Ram Dayal Tiwari, has
also been declared hostile and he has not
supported his statement under Section 161
Cr.P.C. nor, the prosecution story.

46. P.W.-22 Dharmendra Pandey,
deposed in his examination in chief that on
13.05.2008 police had taken Raju Kol,
Radhy and Jiya Lal in their custody but he
had not accompanied the police.

47. P.W.-1 Anil Kumar Shukla, stated
in his testimony that Raghunandan Pathak
and Jagdish were known to him. He and
Jagdish, while sitting in their house, in the
morning, were talking to each other, in the
meantime, Raghunandan Pathak, came and
said to him that he wants to speak to him in
isolation to which he said that since Jagdish
is his friend, therefore, he can speak in his
presence, whereupon, Raghunandan Pathak
had told him that in the murder of Rajjan
Mishra, police were implicating him; he
requested him, since police were familiar to
him, therefore, to save him; he had asked
Raghunandan Pahtak about the incident to
which he had told him that Rajjan Mishra,
has been murdered.

48. P.W. 19 Ram Abhilash, P.W. 20
Aditya Tiwari, P.W.-21 Ram Dayal Tiwari,
P.W. 22 Dharmendra Pandey, in their
testimonies have not whispered against the
appellants/accused, nor, have supported the
allegations against them. On the contrary,
they have denied prosecution story and also
their statements recorded under Section 161
Cr.P.C., by the investigating officer, during
investigation.

49. P.W.-1, Anil Kumar Shukla has
not stated in his statement that accused
Raghunandan Pathak had confessed to have
killed the deceased or participated in the
alleged incident.

50. P.W.-2 Jagdish Prasad, in his
examination in chief has stated that
appellant/accused
Ankaj
Kumar,
Ramashankar Singh and Surajpal, were
known to him but rest of the accused were
not known to him. He also knew Anil
Kumar Shukla but he does not know the
accused Raghunandan nor he has ever seen
him. He further stated that he also does not
know the deceased Rajjan Mishra. This
witness has also denied the statement
recorded under Section 161 Cr.P.C. and has
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1159
expressed his ignorance as to how his
statement came to be recorded by the
investigating officer.

51. P.W. 3-Satya Narayan has stated
that he does not know all the accused who
were present in the Court during his
deposition. He has also stated that Phool
Chandra was also not known to him. He
refuted his statement recorded under
Section 161 Cr.P.C. and deposed his
ignorance as to how his statement came to
be recorded by the Investigating Officer.

52.

P.W.-4
Santosh
Kumar
Vishwakarma has also stated in his
examination in chief that Rajjan Mishra,
the deceased, Balkumar, Veer Singh,
Radhe @ Subedar, Sotu Patel, Munna
Singh,
Kuldeep,
Ramshankar
Patel,
Mahesh Kumar Narayan, Sharban Patel,
Ramlal Patel, Surajbhan Patel, Girja
Shankar, Munshi and Raju Kol were not
known to him. On 23.05.2007 he had not
seen Rajjan Mishra surrounded and was
being abducted. On the contrary, he has
stated that on the said date he was not
present in his village as he was present in
Ahmedabad.

53. P.W.-5 Umesh Chandra Dwivedi,
has also stated in his examination that he
knew Rajjan Mishra and he has heard about
his murder but he does not know the killers.
This witness has also denied his statement
under Section 161 Cr.P.C.

54. P.W.-6-Jhadi Lal has also stated
in his examination in chief that he knew
Rajjan Mishra who was native of his
village but he does not know as to how he
came to be killed.

55. P.W.-7 Chunni Lal has stated in
his examination in chief that he knew
Rajjan Mishra, who was native of his
village but he does not know as to how he
came to be killed.

56. P.W.-7 Chunni Lal has stated in
his examination in chief that since deceased
Rajjan Mishra was a native of his village,
therefore, he was known to him. In rest of
his deposition he has not supported the
prosecution case.

57. P.Ws.-2 to 7 have been declared
hostile and also were put to cross
examination on behalf of the prosecution
but the sequence of denial of prosecution
story has also continued in their cross
examinations and thus they have not given
any evidence in their respective statements
in support of the prosecution story.

58. P.W.-11 Babbu Ram has stated in
his examination in chief that deceased
Rajjan Mishra was his brother; he was
abducted on 23.05.2007 but he does not
know the date of his killing. Further he has
stated that his brother was killed by dacoit
Dadua @ Shiv Kumar who was known to
him. Dadua @ Shiv Kumar was killed in
police encounter.

59. P.W.-12 Nirasha Devi, has stated
in her examination in chief that on
21.02.2009, she had gone in the jungle to
pluck beetle leaves; since Shankar Kol used
to visit her village, hence, he was known to
her but he had not met her, nor, he had
forbidden her from plucking beetle leaves.

60. P.W.-13 Sunita has stated in her
examination
in
chief,
recorded
on
21.02.2009 in the Court that about 4-8
months earlier, while she was plucking
beetle leaves in the forest, Shankar Kol and
his two associates had not prevented her
from doing so. She has also expressed her
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
ignorance about the character of deceased
Rajjan Mishra.

61. It is manifested from the
testimonies of P.W.-2 to P.W.-7 and P.W.-
11 to 13 that neither they have supported
the prosecution story nor their statements
recorded under Section 161 Cr.P.C.,
therefore, these witnesses P.W.-1 to P.W.-7
have been declared hostile but in their cross
examinations too there is no iota of
evidence against the appellants/accused.

62. P.W.-1 Anil Kumar Shukla has
also denied his affidavit, paper no. 83
Ka/17, however, he has identified his photo
thereon but he has stated in his testimony
that he had told the investigating officer
that he did not know who had killed Rajjan
Mishra.

63. P.W.-2 Jagdish, has also denied
paper no. 83 Ka 10 and 11 83 Ka 10-13,
however, he has admitted signature on this
piece of paper but, he has stated that he did
not appear before the police officers to
submit his affidavit.

64.

P.W.
4,
Santosh
Kumar
Vishwakarma, has also stated in his cross
examination that STF personnel had got his
signature on plain papers and he had not
stated anything with regard to the incident.

65. P.W.-6 Jhadi Lal, has also stated
in his cross examination that affidavit
83/Ka/22 on the record was not having
been sworn by him. S.T.F. personnel had
got his signatures on blank papers,
therefore, there is no evidence on record to
show the involvement of the appellants/
accused in the incident.

66. It is also the case of the
prosecution that the voter identity card,
ration card, one pair slipper, blood stained
clothes of the deceased were recovered on
13.05.2008 and 16.07.2008 in the presence
of public witnesses, Dharmendra Pandey,
Rajal Mishra. They have not supported the
alleged
recovery
of
aforementioned
belongings of the deceased.

67. P.W.-22 Dharmendra Pandey, has
stated in his examination in chief that on
13.05.2008 police had not taken him into
their custody, nor, he was taken to jungle.
He did not see whether voter identity card
and ration card were recovered at the
instance of the accused. Further, he has
stated that he was not shown Voter I.D.
card and ration card.

68. Weapon of the offence is also
stated to have been recovered by the police
party in connection with the instant case on
15.05.2008 at the instance of the Raju Kol
@ Raghunandan. It is also the case of
prosecution that accused Raju Kol @
Raghunandan had also made disclosure
statement with regard to the weapon of
crime and also stated that he had killed the
deceased by the recovered blood stained
axe.

69.

Accused
Raju
Kol
@
Raghunandan, in his statement under
Section
313
Cr.P.C
has denied his
admission and disclosure statement before
the police. P.W.-22 Dharmendra Pandey
has denied the recovery of blood stained
axe at the instance of accused Raju Kol.
Further, he has stated that recovery memo
paper no. 34 Ka-3 (Exhibit-Ka-3) was not
having been signed by him. On the
contrary, his signature by the police was
taken on piece of plain paper.

70. It is specifically denied that no
writing, in his presence was made on the
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1161
said paper, therefore, witness P.W.-22 has
also not supported the recovery of weapon
of crime i.e. blood stained axe and has also
denied the recovery of other belongings of
the deceased in his presence.

71. P.W. 9 Rajul, has stated in his
examination in chief that he had visited
police station-Manikpur on 15.05.2008,
with regard to his missing vehicle. At the
police station his signature was taken on
plain paper and due to fear of the police he
had signed the paper. Further, he has
deposed that neither the axe, nor Voter I.D.
Card or ration card was recovered in his
presence, nor he has any knowledge of its
recovery.

72. P.W.-9, Rajul, like P.W.22
Dharmendra Pandey, was declared hostile
but both these witnesses have not only
denied the statements under Section 161
Cr.P.C. but also expressed their ignorance
about the papers 134Ka/2 and 134 Ka/3 as
to how they came to be written.

73. It is evident from the above
analysis that the incident came to be
registered on the basis of written First
Information Report, paper no. 5Ka/Exhibit
Ka-13. In this connection P.W.-15 Ram
Gopal, who happens to be elder brother of
the deceased has stated in his examination
in chief that the case, at the police station
was not registered as per his account of the
incident, but the police, at the police
station, had given him a written draft of the
First Information Report and he was asked
to sign the same and as such he had signed
the written First Information Report, paper
no. 5 Ka.

74. P.W. 15, Ram Gopal was also
been declared hostile and he has stated in
his examination against the police, at
whose instance, he had signed the draft
First Information Report, has not made any
complaint to any higher police officer
against them. As such P.W.- 15 Ram Gopal
has also not supported the allegations in the
First Information Report. It is also evident
that any of the public witnesses who were
examined before the trial Court has not
adduced
evidence
against
the
appellants/accused. Moreover, the recovery
of the belongings of the deceased and
weapon of the crime has also been denied
by all the aforestated witnesses and since
they have not supported the prosecution
case, therefore, they were declared hostile
on behalf of the prosecution, but in their
cross examination, they have further denied
their
statements
recorded
by
the
investigating officer under Section 161
Cr.P.C.

75. P.W.-15 Ram Gopal/ informant
has stated in his examination in chief that
inquest of the Skelton was conducted in his
presence. In view of scattered clothes, he
had identified the Skelton of deceased. He
has further stated that his brother deceased
Rajjan Mishra, was a criminal and he was
associated with Dasyu gang but was not its
active member. Due to enmity of the
deceased with the miscreants of the area, he
was killed. As such, the brother of the
deceased, P.W.-15 Ram Gopal has shifted
the killing of his brother from the
appellants/accused to the miscreants of the
area who were inimical to the deceased.

76. P.W.-16, Smt. Meena W/o
deceased Rajjan Mishra, has stated in her
examination in chief that after two months
of the incident in the by-lane of Garihan
hill, Skelton of her husband was found and
near the Skelton, shirt, vest, and slipper and
other belongings of the deceased were
recovered and in view of the belongings
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
she had identified Skelton being that of her
husband.

77. P.W.8-Dr. R.K. Rao, has stated in
his examination in chief that on 16.07.2007
at 3.30 p.m. he had conducted autopsy over
the skelton of the deceased. On the basis
skull, liver, Scapula, spine bone, humerus,
wrist, he could not come to any conclusion
about the cause of death of the deceased; he
had recommended for Forensic Science
Examination of the skeleton, by Forensic
Science Laboratory. He has also stated that
on the basis of the skull, identification of
the deceased was not possible.

78. P.W.-8 Dr. R.K. Rao, in his cross
examination stated that from the study of
the post mortem during autopsy, it was
difficult to specify the age of the deceased
and it was also not possible to say with
certainty that the skeleton was of a male or
female; it could have been established only
by D.N.A. test, but D.N.A. report is
negative. However, Smt. Meena, P.W.-16
has identified the skelton as being that of
her husband on the basis of the head of
deceased
and
his
other
belongings
recovered. We have no reasonable ground
to disbelieve her.

79. P.W. 8-Dr. R.K. Rao, has also
stated in his examination in chief that he
was not in a position to opine as to how the
deceased came to be killed. He also stated
that he was unable to say by which weapon
the deceased was killed. Further, he has
deposed that he cannot express his opinion
about the time of death.

80. Therefore, P.W.-8, Dr. R.K. Rao,
would not ascertain the cause of death of
the deceased nor it could be established, by
his deposition, the weapon used in killing
the deceased, and also it could not be
ascertained as to how many days before the
autopsy, he was killed.

81. P.W.10- C.P. Narendra Singh
Sengar, has proved First Information
Report Chik No. 4K/5, Exhibit Ka-4, and
he has proved the copy of the G.D. No. 17
as Exhibit-Ka5. Initially a criminal case at
Crime No. 46 of 2007 had been registered
under Section 307 I.P.C. but on the basis of
paper No. 18-Ka, it was altered to Sections
147, 148, 149, 364, 302 and 201 I.P.C. and
in this connection P.W.10 Narendra Singh
Sengar, has made entry to this effect in the
G.D. No. 11 on 23.07.2007 at 8.00 a.m.. He
has also proved the said G.D. as Exhibit
Ka-7 and further he has also proved paper
no. 135 Ka/ 2, G.D. No. 20 dated
15.05.2008 at 13.30 by his secondary
evidence because the entry in the said G.D.
was having been made by constable 240
Amar Nath.

82. P.W.14, S.O. Shri Sachindra
Prasad
Shukla,
has
stated
in
his
examination in chief that initially he had
conducted the investigation and at the
instance of the informant he had sketched
the map of the spot, which is paper no. 15Ka, Exhibit-Ka-10. During investigation he
had also recorded the statements of the
witnesses and had recovered the skeleton
and other belongings of the deceased in the
presence of public witnesses.

83. During investigation, P.W.-14,
Shri Sachindra Prasad Shukla, has also
stated that on 16.07.2007, he had appointed
Panchan
Ram
Gopal,
Durga
Prasad,
Kaushal Kishor, Dinesh Chandra Tiwari,
Pradhumn Lal Kol, including, Chuuni Lal
and others as Panchan and at his direction
S.I. Harbansh Singh had prepared the
inquest report of the skeleton of the
deceased and also belonging of the
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1163
deceased were taken into custody; these
were sealed and brought to the police
station and were kept in the record room,
thereafter, the investigation was transferred
to C.D.F.D.

84. P.W.-18, Inspector Rishikesh
Yadav, has stated in his examination in
chief that on 30.01.2008, he was posted as
Inspector in S.T.F.

85. P.W.-23, Ram Sewak, has stated
in his examination in chief that on
16.07.2007 he was posted as Home guard
at Police Station- Mau, Chitrokoot. On
16.07.2007 Constable Kamlesh Yadav was
also accompanying him. S.P. Shukla had
prepared inquest report and inquest report
along with other necessary papers and also
with skeleton he and constable Kamlesh
Yadav took the same to mortuary for post
mortem of the deceased.

86. P.W.