# Jagdamba & Ors v. State of U.P

- **Citation:** (2021) 5 ILRA 246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-13
- **Case number:** Criminal Appeal No. 40 of 1985
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdamba-ors-v-state-of-u-p-47063
- **Pages:** 21

## Headnote

Indian Evidence Act, 1872- Section 3-
Testimony of injured witnesses- Father
and mother of the deceased persons -
They are also the injured witnesses, and
their presence on the spot cannot be
doubted at all as the injury report of PW-1
corroborated the manner as deposed in
his statement and similarly the injury
report of PW-3 also corroborated with her
statement, and the injury report of the
aforesaid witnesses were duly proved by
Dr. Harish Chandra Srivastava (PW-10).
Where the witnesses are injured and their
injuries stand corroborated from the medical
evidence, then their testimony cannot be
discarded merely on the ground that they are
related witnesses.

Indian Evidence Act, 1872- Section 3- No
independent witness was produced- it
cannot be expected that the residents of
other villages must or could have seen the
occurrence. Settled law that merely not
producing independent witnesses, where their
presence was ordinarily not possible, would not
dent the case of the prosecution.

Indian Evidence Act, 1872- Section 3- The
oral testimony is corroborated with the
medical evidence and as far as the
participation of three accused in the crime
in
question
is
concerned,
is
fully
established. When the ocular evidence with
regard to the injuries of the deceased is
corroborated by the medical evidence, then the
same can be relied upon to secure the
conviction of the accused.

Indian Evidence Act, 1872- Section 8-
Enmity is a double edged weapon which
cuts both the sides, and in the present
case, the ocular evidence as well as the
medical evidence relied by the prosecution
are
corroborating
with
each
other,
therefore, there was established motive
for the crime in question. When enmity is
admitted then it can very well constitute the
motive for commission of the offence, as well
asbeing a ground for false implication.
Falsus in Uno, Falsus in Omnibus- The
maxim "falsus in uno, falsus in
omnibus" has no application in India
for the reason that some part of the
statement
of
witness
has
not
been
accepted in India, and even if, the major
portion of the evidence is found to be
deficient, in case residue is sufficient to
prove guilt of an accused, notwithstanding
acquittal of a number of other co-accused
persons, his conviction can be maintained,
and it is the duty of the court to separate
the grain from the the chaff.Since the
5 All. Jagdamba & Ors. Vs. State of U.P.
247
doctrine of "falsus in uno, falsus in omnibus" is
not applicable in India therefore the case of the
prosecution cannot be disbelieved on the
ground that the witnesses have not given a
truthful testimony with regard to to some of the
accused or a part of the prosecution version.

Code of Criminal Procedure, 1973- Section
157- The Special report in relation to the
said incident reached to the Bungalow of
District Magistrate on 19.12.1982 at 08:15
p.m.,
whereas
the
incident
was
of
19.12.1982
at
about
01:30
a.m.,
therefore, the learned trial court has
committed error in considering this fact,
but it is well settled that trial shall not be
affected due to delay in sending Special Report
of crime. It is settled law that mere delay in
sending the Special Report will not vitiate the
trial.

Indian Penal Code, 1860- Section 34-
Common Intention- Section 34 of I.P.C.
stipulates that the act must have been
done in furtherance of common intention.
It is not necessary that the prosecution
must prove that the action done by a
particular or a specified person. It can be
invoked where some of the co-accused
may be acquitted. Section 34 of the IPC
provides for joint liability of an offence
committed in consequence of a premeditated
concert and therefore some of the accused may
be convicted with the aid of Section 34 while
others may be acquitted. (Para 22(ii), (vii),
(viii),(x),(xi),(xii),(xiv),(xv), 24)

Criminal Appeal rejected. (E-2)

Judgements/case law relied upon:-

## Text

_Characters 0–39,785 of 70,961. This is a partial read: ask again with offset=39785 for what follows._

246 INDIAN LAW REPORTS ALLAHABAD SERIES
into the State's obligation relating to the
supply of quality food grains during this crisis
failing which the health hazard shall assume
unprecedented dimensions and may render
the nation helpless.

50. Let a copy of this order be sent to
the Chief Secretary, Government of U.P. as
well as to the Ministry of Civil Supplies,
Government of India for necessary action. A
copy of this order may be sent to the
Registrar General, Supreme Court of India,
New Delhi and be also placed before the
Registrar General of this Court to apprise the
concerned Benches of the request extended
hereinabove.
----------
(2021)05ILR A246
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 40 of 1985

Jagdamba & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
 G.K. Mehrotra, Arun Sinha, B.M. Sahai,
Mahendra Nath Rai, S.P.Tripathi

Counsel for the Opposite Party:
Govt. Advocate

Indian Evidence Act, 1872- Section 3-
Testimony of injured witnesses- Father
and mother of the deceased persons -
They are also the injured witnesses, and
their presence on the spot cannot be
doubted at all as the injury report of PW-1
corroborated the manner as deposed in
his statement and similarly the injury
report of PW-3 also corroborated with her
statement, and the injury report of the
aforesaid witnesses were duly proved by
Dr. Harish Chandra Srivastava (PW-10).
Where the witnesses are injured and their
injuries stand corroborated from the medical
evidence, then their testimony cannot be
discarded merely on the ground that they are
related witnesses.

Indian Evidence Act, 1872- Section 3- No
independent witness was produced- it
cannot be expected that the residents of
other villages must or could have seen the
occurrence. Settled law that merely not
producing independent witnesses, where their
presence was ordinarily not possible, would not
dent the case of the prosecution.

Indian Evidence Act, 1872- Section 3- The
oral testimony is corroborated with the
medical evidence and as far as the
participation of three accused in the crime
in
question
is
concerned,
is
fully
established. When the ocular evidence with
regard to the injuries of the deceased is
corroborated by the medical evidence, then the
same can be relied upon to secure the
conviction of the accused.

Indian Evidence Act, 1872- Section 8-
Enmity is a double edged weapon which
cuts both the sides, and in the present
case, the ocular evidence as well as the
medical evidence relied by the prosecution
are
corroborating
with
each
other,
therefore, there was established motive
for the crime in question. When enmity is
admitted then it can very well constitute the
motive for commission of the offence, as well
asbeing a ground for false implication.
Falsus in Uno, Falsus in Omnibus- The
maxim "falsus in uno, falsus in
omnibus" has no application in India
for the reason that some part of the
statement
of
witness
has
not
been
accepted in India, and even if, the major
portion of the evidence is found to be
deficient, in case residue is sufficient to
prove guilt of an accused, notwithstanding
acquittal of a number of other co-accused
persons, his conviction can be maintained,
and it is the duty of the court to separate
the grain from the the chaff.Since the
5 All. Jagdamba & Ors. Vs. State of U.P.
247
doctrine of "falsus in uno, falsus in omnibus" is
not applicable in India therefore the case of the
prosecution cannot be disbelieved on the
ground that the witnesses have not given a
truthful testimony with regard to to some of the
accused or a part of the prosecution version.

Code of Criminal Procedure, 1973- Section
157- The Special report in relation to the
said incident reached to the Bungalow of
District Magistrate on 19.12.1982 at 08:15
p.m.,
whereas
the
incident
was
of
19.12.1982
at
about
01:30
a.m.,
therefore, the learned trial court has
committed error in considering this fact,
but it is well settled that trial shall not be
affected due to delay in sending Special Report
of crime. It is settled law that mere delay in
sending the Special Report will not vitiate the
trial.

Indian Penal Code, 1860- Section 34-
Common Intention- Section 34 of I.P.C.
stipulates that the act must have been
done in furtherance of common intention.
It is not necessary that the prosecution
must prove that the action done by a
particular or a specified person. It can be
invoked where some of the co-accused
may be acquitted. Section 34 of the IPC
provides for joint liability of an offence
committed in consequence of a premeditated
concert and therefore some of the accused may
be convicted with the aid of Section 34 while
others may be acquitted. (Para 22(ii), (vii),
(viii),(x),(xi),(xii),(xiv),(xv), 24)

Criminal Appeal rejected. (E-2)

Judgements/case law relied upon:-

1. Baleshwar Mahto & anr. Vs St. of Bih. & anr.
(2017) 3 SCC 152

2. Mahendran Vs St. of T.N (2019) 5 SCC 67

3. Jafel Biswas & anr. Vs St. of W.B (2019) 12
SCC 560.

4. Abdul Sayeed Vs St. of M.P. (2010) 10 SCC
259.
(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Shri Arun Sinha, learned
counsel for the appellants and Ms. Nand
Prabha Shukla, learned A.G.A. for the State
and perused the lower court record.

2. The present appeal has been filed
by the appellants namely Jagdamba,
Amerika Prasad, Chinta @ Chinta Ram
@ Chinta Prasad @ Sheo Shankar and
Bachhraj, under Section 374 (2) Cr.P.C.,
against the judgment and order dated
16/17.01.1985
passed
by
learned
Additional Sessions Judge-I, Gonda in
Sessions Trial No.174 of 1983 (State Vs.
Bhagwati and Others) arising out of Case
Crime No.135 of 1982, under Sections 147,
148, 149, 324, 323, 302 I.P.C., Police
Station Intiathoke, District Gonda, whereby
acquitting the co-accused persons namely
Bhagwati, Kalp Nath, Bharose @ Ram
Bharose, Suggu @ Sukhdeo, Ram Kewal,
Vishram and Girwar, and convicting the
appellants namely Jagdamba, Amerika
Prasad,
Chinta
and
Bachhraj,
under
Sections 302/34 and 324/34 I.P.C. and
sentenced them for life imprisonment with
a further sentence of two years of Rigorous
Imprisonment with a fine of Rs.500/-, in
default of payment of fine, additional six
months of rigorous imprisonment.

3. During pendency of the present
appeal,
the
appellant
No.1
namely
Jagdamba had died, as a result, the appeal
in
relation
to him
was
abated
on
02.04.2019.

4. The prosecution case is that on
19.12.1982 at about 01:30 a.m., when Ram
Dularey (complainant) was sleeping along
with his wife Smt. Patiraji, son Chandrika
Prasad, daughters Kamla Devi & Madhuri
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Devi, relative Ram Gulam and son-in-law
Kamla Prasad in the thatcher (Chhappar)
lying west to his house, while his elder son
Shanti Prasad was sleeping in the Charni
(place used for keeping fodder) lying in
front of the house and his other son namely
Nanhey Prasad was sleeping in another
Marha lying to the east of the house, the
accused persons namely Jagdamba armed
with Pharsa, Girwar & Amerika armed with
Spears, Chinta & Bachha Raj armed with
Gandasa and rest of the accused persons
armed with lathi, arrived at the door of the
complainant and on the barking of dogs,
the complainant woke up and noticed the
presence of accused persons in the light of
torch and the lantern that was hanging onto
the branch of Jack Fruit (Kathal) tree in
front of the house; by that time, the accused
persons entered in the Charni where Shanti
Prasad was sleeping, and the accused
persons namely Chinta Ram, Jagdamba and
Bhulan @ Bachha Raj started inflicting
blows with their respective weapons on
Shanti Prasad while rest of the accused
persons
were
holding
him.
The
complainant raised alarm and he along with
his, wife Smt. Patiraji, son Chandrika
Prasad and relations rushed to save Shanti
Prasad. In the meantime, Nanhey Prasad
also woke up in his Marha and was sitting
on cot. After committing the murder of
Shanti Prasad, the accused persons had
rushed to Marha of Nanhey Prasad and
after entering therein, the accused persons
namely
Chinta
Ram,
Jagdamba
and
Bachhraj started inflicting blows with their
respective weapons on Nanhey Prasad
while other co-accused persons were
holding him. As the complainant and his
wife tried to save their son Nanhey Prasad,
the complainant was assaulted by accused
Jagdamba and Amerika, and his wife
Patiraji was assaulted by Amerika. On the
alarm raised by the complainant and his
relations, the inhabitants of nearby village
reached on the spot, and the accused
persons ran away toward east. The
deceased persons namely Shanti Prasad and
Nanhey Prasad died on the spot and in the
F.I.R., motive behind the incident was
attributed to long standing enmity between
the complainant and the accused persons.

5. The aforesaid written complaint
was furnished at Police Station Intiyathoke,
District
Gonda
by
Ram
Dularey
(complainant) on 19.12.1982 at 08:45 a.m.
and a case was registered against all the
accused persons as Case Crime No.135 of
1982, under Sections 147, 148, 149, 324,
323, 302 I.P.C., the chick F.I.R. was
prepared and the entry of lodging the F.I.R.
was made in the G.D. Inquest of the bodies
of the deceased namely Shanti Prasad and
Nanhe
Prasad
was
conducted
on
19.12.1982 at 01:00 p.m. and 03:00 p.m.
respectively. The injured persons namely
Ram Dularey and Smt. Patiraji were also
sent for medical examination and were
medically examined in the emergency wing
of District Hospital Gonda on 20.10.1982
between 01:40 p.m. to 03:00 p.m. The
Investigating Officer also took in his
possession the blood-stained clothes like
Kurta, Angochha and piece of blanket from
the charni where dead body of Shanti
Prasad was found and he also took in his
possession the blood-stained clothes of
Nanhe Prasad like woolen sweater and
dhoti from the thatcher (Chappar), where
he was lying dead, and also took in his
possession the blood-stained and simple
earth from the charni and thatcher. From
the place of incident, the Investigating
Officer had also took in his possession two
torches of witnesses namely Ram Gulam
and Kamla Prasad, torch of the complainant
and the lantern, and prepared memos but
these articles were given in the Supurdagi
5 All. Jagdamba & Ors. Vs. State of U.P.
249
of concerned persons. The dead bodies of
Shanti Prasad and Nanhey Prasad were sent
for postmortem along with the necessary
papers and the postmortem of the body of
Shanti Prasad was conducted at mortuary
on 20.12.1982 at 02:00 p.m., and the
postmortem of body of Nanhey Prasad was
conducted on 20.12.1982 at 03:00 p.m. The
Investigating Officer had also prepared the
site plan and sent the collected bloodstained clothes and earth for chemical
examination and serologist's report.

6. The Investigating Officer had also
recorded the statement of injured and other
witnesses and on the basis of the statements
of Ram Dularey (complainant/injured),
Smt. Patiraji (injured) and other witnesses
recorded under Section 161 Cr.P.C.,
documentary
evidence
including
the
postmortem report of the deceased which
shows the antemortem injury and the injury
report
of
the
injured
persons,
the
Investigating
Officer
came
to
the
conclusion that the deceased persons
namely Shanti Prasad and Nanhey Prasad
were killed by the accused persons and the
complainant as well as his wife Smt.
Patiraji were also assaulted by them,
therefore, the charge sheet under Sections
147, 148, 149, 324, 323, 302 I.P.C. was
filed against the accused persons and the
case was committed to the court of
Sessions. The case was registered as
Sessions Trial No.174 of 1983 and the
combined charge under Sections 302/149
I.P.C. was framed against all the accused
persons, separate charges under Sections
148, 324/149 I.P.C. were framed against
accused
Jagdamba,
Chinta,
Girwar,
Amerika and Bachhraj while another
separate charge under Sections 147 and
323/149
I.P.C.
were
framed
against
accused Ram Kewal, Vishram, Suggu,
Kalpnath, Bharosey and Bhagwati, but
the accused persons denied the respective
charges and requested for trial to prove
their case.

7. To prove its case, the prosecution
in all examined 11 witnesses namely PW-1
Ram Dularey (complainant and father of
the deceased as well as the injured/eye
witness), PW-2 Chandrika Prasad (son of
the complainant/eye witness), PW-3 Smt.
Patiraji (wife of the complainant/eye
witness), PW-4 Kamla Prasad (son-in-law
of the complainant/eye witness), PW-5
Asharfi Lal & PW-6 Ram Sanehi (both
witness of inquest report and memos), PW7 Head Constable Keshav Prasad Tewari,
PW-8 Constable Virendra Pratap, PW-9 Dr.
R.V. Pandey (conducted postmortems),
PW-10 Dr. Harish Chandra Srivastava
(examined injured persons) and PW-11
R.P. Singh (Investigating Officer).

8. The prosecution has also relied on
35 documentary evidences i.e. Ext. Ka-1:
Written complaint of complainant; Ext. Ka2: Recovery memo and Supurdagi of two
torches; Ext. Ka-3: Inquest report of the
body of Shanti Prasad; Ext. Ka-4: Inquest
report of the body of Nanhey Prasad; Ext.
Ka-5: Recovery memo for taking into
possession of blood-stained clothes of
Shanti Prasad; Ext. Ka-6: Recovery memo
for taking into possession of blood-stained
clothes of Nanhey Prasad; Ext. Ka-7:
Recovery memo for taking into possession
of blood-stained and simple earth from
Charni where Shanti Prasad was lying
dead; Ext. Ka-8: Recovery memo for taking
into possession of blood-stained and simple
earth from Marha where Nanhey Prasad
was lying dead; Ext. Ka-9: Recovery memo
for taking into possession of Supurdagi of
one Lantern; Ext. Ka-10: Recovery memo
250 INDIAN LAW REPORTS ALLAHABAD SERIES
for taking into possession of Supurdagi of
one torch; Ext. Ka-11: Chick F.I.R. of Case
Crime in question; Ext. Ka-12: G.D of
lodging the F.I.R.; Exts. Ka-14 & Ka-15:
Postmortem reports of the deceased persons
namely Shanti Prasad and Nanhey Prasad
respectively;
Exts.
Ka-16
&
Ka-17:
Medical reports of the injured persons
namely Smt. Patiraji and Ram Dularey
respectively;
Exts.
Ka-18
to
Ka-27:
relevant papers sent along with the body of
deceased namely Shanti Prasad and Nanhey
Prasad; Ext. Ka-28: Site plan; Exts. Ka-29
to Ka-31: Memo of search of the houses of
accused persons; Ext. Ka-32: Charge sheet
filed by the Investigating Officer against
Bhagwati, Kalp Nath, Bharose @ Ram
Bharose, Suggu @ Sukhdeo; Ext. Ka-33:
Charge sheet filed by the Investigating
Officer against Jagdamba Prasad, Amerika
Prasad, Chinta Prasad @ Shiv Shankar,
Bachhraj and Girwar; Exts. Ka-34 & Ka35: Report of chemical analysis and
serologist.

9. After completion of the statement
of prosecution witnesses, the statement of
accused persons under Section 313 Cr.P.C.
was recorded and they denied all the
allegations. According to them, they have
been falsely implicated on account of
enmity. The accused Bachhraj, Chinta and
Vishram stated that they are brothers of
Ram Kewal, who had instituted some
complaint case against Ram Dularey
(complainant). The accused Suggu stated
that he is father of Ram Kewal, who had
instituted some complaint case against the
complainant, which was going on at the
time of occurrence and the complainant had
further been prosecuted in a theft case at
his instance. The accused Jagdamba stated
that his uncle namely Girwar Prasad had
given some land to his brother-in-law
namely Amerika, therefore, Ram Dularey
had felt ill about the same as he wanted to
take the land himself. The accused
Bhagwati stated that he is Sarpanch of
Nyaya Panchayat Dariapur and had decided
a criminal case against Ram Dularey,
which had been instituted by Girwar and
Kalpnath and had also been a witness in a
theft case against the complainant. The
accused Amerika stated that he had taken
some land from Girwar, as a result,
complainant was annoyed with Girwar. The
accused Girwar stated that he had given
some land to Amerika that is why, the
complainant was annoyed with him. The
accused Ram Bharose stated that as Girwar
had given some land to Amerika, the
complainant was annoyed. The accused
Kalpnath stated that he had prosecuted the
complainant for theft, in which the
complainant had been fined.

10. The accused persons in defence,
examined DW-1 Shri Mathura Prasad
Pandey, Petition Clerk of the office of
District Magistrate, Gonda and got proved,
a portion of statement under Section 161
Cr.P.C. of Ram Dularey (PW-1), a portion
of statement under Section 161 Cr.P.C. of
Chandrika Prasad (PW-2), a portion of
statement under Section 161 Cr.P.C. of
Smt. Patiraji (PW-3) and a portion of
statement under Section 161 Cr.P.C. of
Kamla Prasad (PW-4) as Ext. Kha-1, Ext.
Kha-2, Ext. Kha-3 and Ext. Kha-4
respectively; and also got proved copy of
chick F.I.R. of Case Crime No.135 of 1982,
under Sections 147, 148, 149, 324, 323,
302 I.P.C. (Ext. Kha-5); signature of the
District Magistrate over it (Ext. Kha-6);
filed copy of injunction application of Suit
No.159 of 1982 (Ram Dularey vs. Chunnu
& Others) in the court of Munsif, Gonda
(Ext. Kha-7); copy of the report of Process
Server in Suit No.159 of 1982 (Ext. Kha8); order of the court dated 27.03.1982 in
5 All. Jagdamba & Ors. Vs. State of U.P.
251
the said case (Ext. Kha-9); copy of the
chick F.I.R. of Case Crime No.228, under
Sections 379/411 I.P.C., P.S. Mankapur
(State vs. Deo Narain) along with the copy
of recovery of case property (Ext. Kha-10);
copy of the questionnaire in criminal case
under Section 107/116 Cr.P.C. (Ext. Kha11); copy of the revision petition in re:
Panchayat Revision No.6 of 1982 (Ram
Dularey vs. Girwar), Ext. Kha-12; copy of
the revision petition in Misc. Case No.14 of
1982 (Ram Dulare vs. Ram Kewal), Ext.
Kha-13; copy of the revision petition in
Misc. Case No.15 of 1982 (Ram Dularey &
Others vs. Kalpnath), Ext. Kha-14; copy of
the Kutumb register of village Dariapur
Mafi concerning House No.109 (Ext. Kha15); copy of the F.I.R. in Case Crime
No.42 of 1977, under Sections 147, 148,
149, 366, 511, 395, 397 I.P.C. lodged
against Ram Sabad & Others (Ext. Kha16); copy of charge sheet in Case Crime
No.42 of 1977 (Ext. Kha-17); copy of the
order dated 08.05.1981 of the Judicial
Magistrate, Gonda in Case No.293 of 1980,
under Sections 379/411, 225 I.P.C. (State
vs. Keshav Ram & Others), Ext. Kha-18;
copy of the statement of Nanhey in S.T.
No.155 of 1980, under Sections 302,
323/34 I.P.C. in the court of Additional
Sessions Judge-I, Gonda dated 04.12.1980
(Ext. Kha-19); copy of the charge sheet in
Case Crime No.66 of 1982, under Section
379 I.P.C. (Ext. Kha-20); photocopy of the
marksheet of B.A. Part I in the name of
Shiv Shanker Dayal Tewari (Ext. Kha-21);
photocopy of marksheet of B.A. Part II
(Ext. Kha-22); and copy of the judgment
dated 13.06.1964 passed by Shri K.B.
Srivastava in S.T. No.60 of 1964 (State vs.
Deep Narain & 3 others, Ext. Kha-23.

11. After hearing the counsel for the
prosecution, counsels for the accused
persons and going through the material
available on record, the judgment in
question was passed by the court below
which is under challenge in the present
appeal.

12. Learned counsel for the appellants
has submitted that the appellants except
Amerika Prasad, belong to the same family
tree to which informant belongs, and the
appellant Amerika Prasad is the brother-inlaw of the appellant Jagdamba in whose
favour a sale deed was executed by Girwar,
therefore, the informant was annoyed. He
further submitted that no such incident was
taken place, in the manner, as alleged by
the informant, his family members and his
relatives, but the correct facts are that some
incident of dacoity was taken place, in
which
the
sons
of
Ram
Dularey
(informant/PW-1) received injuries, as a
result, they had died and in the said
incident, informant and his wife namely
Smt. Patiraji had also received injuries, but
only on account of enmity, the appellants
and other family members were falsely
implicated. He further submitted that Ram
Dularey (complainant and the father of the
deceased
persons/PW-1)
has
deposed
before the trial court that his son Shanti
Prasad was sleeping in the Charni and
Nanhe Prasad was sleeping in Marha while
he along with his son Chandrika Prasad,
wife Patiraji and relatives Kamla Prasad
and Ram Gulam was sleeping in another
Marha in front of his house with torches
and lantern hanging onto branch of Jack
Fruit tree in front of the door. The accused
persons arrived there in the fateful night at
about 01:30 a.m. and the complainant woke
up at the barking of the dogs. In the
meantime, accused persons among whom,
Jagdamba armed with pharsa, Chinta
Prasad & Bachhraj armed with Gandasa,
252 INDIAN LAW REPORTS ALLAHABAD SERIES
Amerika & Girwar armed with spears and
rest armed with lathis, entered in the
Charni, and Chinta Prasad, Jagdamba and
Bhulan @ Bachhraj started inflicting
injuries with their respective weapons on
Shanti Prasad while rest were holding him.
He further submitted that the aforesaid
incident is not possible and it is highly
probable that he saw the said incident in the
torch, and thereafter, the informant and
others raised alarm, then Nanhey Prasad,
who was sleeping in other Marha, had
woke up and sat on cot. At the same time,
the accused persons rushed to the Marha of
Nanhey Prasad, and after entering into
Marha, Chinta Prasad, Jagdamba and
Bachhraj started inflicting injuries on him
while rest were holding him. When the
informant and his wife tried to intervene to
save life of his son Nanhey Prasad, then
Jagdamba and Amerika caused spear
injuries to informant and America also
caused injuries to the wife of informant.

13. Learned counsel for the appellants
has submitted that Smt. Pati Raji (PW-3)
has also reiterated the same version as
given by Ram Dularey (PW-1) and stated
that Amerika caused injuries to her when
she tried to save her son Nanhey Prasad. He
further submitted that PW-1 & PW-3 are
father and mother of the deceased persons
respectively and they are relative and
injured witnesses. He further submitted that
the learned court below has committed
error in considering the evidence of PW-1
and PW-3 and again submitted that due to
enmity, the false implication have been
made by the informant and his family
members. He further submitted that as per
prosecution, Ram Dularey (PW-1), who
was having inimical relation with accused
persons, has raised alarm, but in place of
causing any such injury to him, the accused
persons caused injuries, first to Shanti
Prasad and then to Nanhey Prasad, and the
accused persons did not cause any such
injury at the beginning to Ram Dulare
(PW-1), Chinta Prasad (PW-2) and Smt.
Patiraji (PW-3). The prosecution story that
the PW-1 & PW-3 received injuries when
they tried to save his son Nanhey Prasad,
which is highly improbable.

14. Learned counsel for the appellants
has submitted that as per the prosecution
case, the nearby villagers also reached on
the place of incident, but no such
independent witnesses were produced by
the prosecution. He further submitted that
as per the prosecution case, the F.I.R. was
lodged on the written complaint of Ram
Dularey (PW-1) on 19.12.1982 at about
08:45 a.m. and chick report was prepared
against the accused persons. Thereafter, the
injured persons namely Ram Dularey (PW1) and Smt. Patiraji (PW-2) were sent for
medico-legal
examination
and
their
medico-legal report reveals that they were
medically examined in the emergency wing
of District Hospital Gonda on 20.12.1982
between 01:40 p.m. to 03:00 p.m., which is
highly improbable as the injured persons
were medically examined after a long
period and it is obligatory on the part of the
prosecution to explain the delay for
medical examination but he fails to do so,
therefore, the prosecution story is doubtful.
He further submitted that as per the
prosecution case, the accused persons
armed with lathi had not assaulted anyone,
which is also highly improbable.

15. Learned counsel for the appellants
has submitted that the appellant Amerika
has neither assaulted Shanti Prasad nor
Nanhey Prasad (deceased persons) and
learned court below has wrongly convicted
him under Section 302/34 I.P.C., and he
can only be convicted under Section 324
5 All. Jagdamba & Ors. Vs. State of U.P.
253
I.P.C. for causing injuries to the injured
persons, and the accused persons, those
were armed with lathis, were acquitted by
the trial court. He further submitted that
accused Chinta Prasad was 18 years old at
the time of incident and though he was
armed with spear, he did not assault either
of the persons, who died or had been
injured, therefore, his conviction is also
wrong.

16. Learned counsel for the appellants
has submitted that it appears from the
prosecution case that the F.I.R. is ante
timed as the injured persons, on whose
complaint the impugned F.I.R. was lodged,
were medically examined on 20.12.1982
from 02:00 p.m. to 03:00 p.m., and as per
DW-1
Shri
Mathura
Prasad
Pandey,
Petition Clerk of the office of District
Magistrate,
Gonda,
special
report
in
relation to the said incident reached to the
Bungalow
of
District
Magistrate
on
19.12.1982 at 08:15 p.m. He further
submitted that as the incident was of
19.12.1982 at about 01:30 a.m., therefore,
the learned trial court has committed error
in considering all these facts and convicted
the appellants.

17. Learned A.G.A. has opposed the
arguments of learned counsel for the
appellants and submitted that the incident
was taken place on 19.12.1982 at about
01:30 a.m. and the F.I.R. in question was
lodged on the same very day at about 08:45
a.m., on the written complaint of the
injured Ram Dularey (PW-1), who proved
the written complaint (Ext. Ka-1) and on
his complaint, chick F.I.R. was prepared
(Ext. Ka-11) and it was duly proved by
PW-7 Head Constable Keshav Prasad
Tewari along with the G.D. Entry of the
incident, and the inquest of the body of the
deceased persons were conducted by
PW-11 R.P. Singh (Investigating Officer)
and body was sent for postmortem and the
postmortem was conducted by PW-9 Dr.
R.V.
Pandey,
who
supported
the
prosecution version and categorically stated
that all the injuries, found on the body of
the deceased persons, are to be caused by
sharp edged weapon like Gandasa and
Pharsa and the doctor has opined that the
death of Shanti Prasad and Nanhey Prasad
has been caused due to shock and
hemorrhage and coma as a result of antemortem head injuries.

The ante-mortem injuries of
deceased Shanti Prasad are as under:-

1. Incised wound 12 cm x 2 cm x
bone deep (bone out) left side head across
left ear middle (left ear pinna out).

2. Incised wound 18 cm x 2 cm x
brain cavity deep left side head, 1.5 cm
above injury No.1.

3. Incised wound 20 cm x 2.2. cm
x brain cavity deep left side head- 2 cm
above injury No.2.

4. Incised wound 10 cm x 1 cm x
brain cavity deep- left side head, 2 cm
above injury No.3.

5. Incised wound 8 cm x 1 cm x
bone deep (bone partially cut) 6 cm above
left eye brow.

6. Incised wound 5 cm x 0.5 cm x
muscle deep, top of right shoulder.

7. Incised wound 3 cm x 0.1 cm x
skin deep, dorsum and root of right index
finger.
254 INDIAN LAW REPORTS ALLAHABAD SERIES

The ante-mortem injuries of
deceased Nanhey Prasad are as under:-

1. Incised wound 6 cm x 1.5 cm x
2 cm- left side neck underneath skin, soft
tissues, muscles, vessels cut.

2. Incised wound 0.9 cm x 1 cm x
bone deep- left side head below left ear-
left ear pinna partially cut.

3. Incised wound 10 cm x 1 cm x
brain cavity deep, back of left side head 0.5
cm behind left ear.

4. Incised wound 9.5 cm x 1 cm x
brain cavity deep back of left side head 9
cm behind left ear.

5. Incised wound 18 cm x 2 cm x
brain cavity deep- left side head crossing
injury No.4, 2 cm above left ear.

6. Incised wound 10 cm x 4 cm x
muscle deep on outer part left shoulder.

18.
Learned
A.G.A.
has
also
submitted
that
Dr.
Harish
Chandra
Srivastava (PW-10) was produced before
the court below, who conducted the
medical examination of the injured persons
namely Ram Dularey (complainant/PW-1)
and Smt. Patiraji (PW-3), and he deposed
before the court below that the injuries of
Ram Dularey can be caused by sharp
cutting object and were of serious nature,
and the injuries of Smt. Patiraji can be
caused by sharp cutting object.

The injuries of Ram Dularey
(PW-1) are as under:-

1. Incised wound 3 cm x 1/2 cm x
skin deep, margin clean cut transverse over
back of left ear.

2. Incised wound 6 cm x 1 cm x
bone deep over lateral aspect of left wrist
joint.

3. Incised wound 2 cm x 1/5 cm x
skin deep over tip or right index finger.

4. Incised wound 2 cm x 3/2 cm x
bone deep over middle finger.

5. Incised wound 3 cm x 1/2 cm x
bone deep over fourth finger right hand
dorsal aspect.

The injuries of Smt. Patiraji
(PW-3) are as under:-

1. Contusion 7 cm x 3 cm over
front of right upper arm, 6 cm above elbow
joint.

2. Punctured wound 2 cm x 1 cm
x bone deep (5/2 cm) over left upper arm,
14 cm below.

19.
Learned
A.G.A.
has
also
submitted that it is undisputed that the
accused persons and the deceased as well
as injured persons belong to the same
family tree, and are closely associated to
each other and are inimical to each other,
therefore, motive cannot be denied. She
also submitted that testimony of the injured
witnesses,
even
if
they
are
related
witnesses, cannot be discredited merely on
the ground that they are related witnesses.
She also submitted that the manner of
assault as deposed by the injured witnesses
namely Ram Dularey (PW-1) and Smt.
Patiraji (PW-3), and other eye witnesses
namely Chandrika Prasad (PW-2) and
Kamla Prasad (PW-4), are corroborating
with the injuries found on the body of the
deceased persons as well as the injured
persons. She also relied on the judgment of
5 All. Jagdamba & Ors. Vs. State of U.P.
255
Hon'ble Supreme Court in the case of
Baleshwar Mahto and Another Vs. State
of Bihar and Another reported in (2017) 3
SCC 152. She also submitted that the F.I.R.
cannot be said ante timed as PW-1 Ram
Dularey (complainant) as well as PW-11
R.P. Singh (Investigating Officer) were
cross-examined by the defence counsels in
the trial, but they failed to ask any question
to support the accused version, and the
inquest of the body of the deceased persons
namely Shanti Prasad and Nanhey Prasad
were conducted on 19.12.1982 at 01:05
p.m. and 01:20 p.m. respectively in which
description
of
the
crime
scene
is
mentioned.

20.
Learned
A.G.A.
has
also
submitted that the injured persons were
medically examined. She also submitted
that Special report in relation to the
incident was sent on the same day to the
office of District Magistrate, Gonda, it was
received in the office of District Magistrate,
Gonda in the evening at 08:15 p.m., even
then the prosecution story cannot be
discredited as the prosecution story is
corroborating with the ocular injured
witnesses, other witness and with the
antemortem injuries of Shanti Prasad and
Nanhey Prasad as well as with the injury
reports of the injured persons namely Ram
Dularey (PW-1) and Smt. Patiraji (PW-3),
and the learned trial court has rightly
considered the evidence of the prosecution
and convicted the appellants. She also
submitted that on the basis of facts, seven
persons out of eleven accused persons were
acquitted by the trial court, which do not
help the present appellants, therefore, the
present appeal is liable to be rejected. She
also relied on the judgments of Hon'ble
Supreme Court in the case of Mahendran
Vs. State of Tamil Nadu reported in
(2019) 5 SCC 67 and Jafel Biswas and
Others Vs. State of West Bengal reported
in (2019) 12 SCC 560.

21.
Learned
A.G.A.
has
also
submitted
that
though
the
appellant
Amerika Prasad has neither assaulted
Shanti Prasad nor Nanhey Prasad and only
caused injuries to the injured persons, the
learned trial court has rightly convicted him
under Section 302/34 I.P.C. and the learned
trial trial court acquitted the other accused
persons
after
considering
facts
and
circumstances of the case. She also
submitted that though the accused Chinta
had not assaulted either of the deceased
persons, his common intention to commit
offence cannot be denied with and the
learned trial court has rightly convicted
him. She also relied on the judgment of
Hon'ble Supreme Court in the case of
Abdul Sayeed vs. State of M.P. reported in
(2010) 10 Supreme Court Cases 259.

22. Considering the arguments of the
learned counsel for the appellants and the
learned A.G.A. and going through the trial
court record, we deal the arguments of
learned counsel for the appellants as
under:-

(i) The prosecution had produced
four witnesses of the fact before the trial
court i.e. PW-1 Ram Dularey (eye
witness/injured/complainant),
PW-2
Chandrika Prasad (eye witness), PW-3
namely Smt. Patiraji (injured/eye witness)
and PW-4 Kamla Prasad and it is
undisputed that the aforesaid witnesses are
relatives of the deceased.

(ii) As the learned counsel for the
appellants has submitted that on account of
enmity, the appellants and other accused
256 INDIAN LAW REPORTS ALLAHABAD SERIES
persons were implicated and the incident
was not taken place in the manner as
claimed by the prosecution, and the
aforesaid witnesses are entrusted and
relative
witnesses,
therefore,
there
testimonies are not reliable, it is evident
that Ram Dularey (PW-1) in his testimony
has stated the fact that how his sons namely
Shanti Prasad and Nanhey Prasad were
sleeping in Charni and Marha respectively
while he along with his son Chandrika
Prasad, wife Smt. Patiraji and relatives
Kamla Prasad & Ram Gulam were sleeping
in another Marha in front of his house, and
the lantern was hanging with a branch of
Jack Fruit (Katahal) tree in front of the
door and they were having torches, and
how the accused persons i.e. appellants
along with other accused persons arrived
there in the night of 19.12.1982 at about
01:30 a.m., whereafter on the barking of
the dogs, the complainant woke up, in the
meantime, accused persons among whom,
Jagdamba armed with Pharsa, Chinta
Prasad & Bachhraj armed with Gandasa,
Amerika & Girwar armed with spears and
rest of the persons armed with lathis,
entered into the Charni where Shanti
Prasad was sleeping and Chinta Prasad,
Jagdamba, Bhullan @ Bachhraj started
inflicting injuries with their respective
weapons on Shanti Prasad while rest were
holding him, and on at this moment, the
complainant raised alarm on which, he
along with his son Chandrika Prasad, wife
Smt. Patiraji and his relatives Kamla Prasad
and Ram Gulam rushed to the seen, and
after murdering Shanti Prasad, the accused
persons rushed to the other Marha in which
Nanhey Prasad was sleeping, who had
woke up and sat on the cot on the alarm
raised by these witnesses, entered into
Marha and the accused persons namely
Chinta Prasad, Jagdamba and Bachhraj
again started inflicting injuries on him
while rest were holding him; as Ram
Dulare (complainant) and his wife Patiraji
tried to intervene to save their son Nanhey
Prasad, Jagdamba and Amerika caused
spear injuries to the complainant and
Amerika Prasad also caused injuries to his
wife Patiraji; both the sons of complainant
died on the spot and the accused persons
disappeared when the inhabitants of nearby
villages started reaching on the place of
incident on hearing the alarm; and PW-2
Smt. Patiraji has also narrated the same
version of the prosecution story as deposed
by PW-1 Ram Dularey which does not
need to be narrated again, and she also
stated particularly that the accused Amerika
had caused injuries to her when she tried to
intervene to save her son Nanhey Prasad.

(iii) Ram Dularey (PW-1) and
Smt. Patiraji (PW-3) are father and mother
of the deceased persons respectively and in
all probabilities, they must be there on the
door and themselves have reached the
scene when their own sons were being
murdered and they are also the injured
witnesses, and their presence on the spot
cannot be doubted at all as the injury report
of PW-1 Ram Dularey (Ext. Ka-17)
corroborated the manner as deposed in his
statement and similarly the injury report of
PW-3 Smt. Patiraji (Ext. Ka-16) also
corroborated with her statement, and the
injury report of the aforesaid witnesses
were duly proved by Dr. Harish Chandra
Srivastava
(PW-10),
therefore,
the
statement of the learned counsel for the
appellants that the testimonies of PW-1 and
PW-3 are not reliable is not acceptable.

(iv) PW-2 Chandrika Prasad has
supported the prosecution story as stated by
PW-1 and PW-3, and PW-2 & PW-4 have
also supported the prosecution case as
stated by PW-1 & PW-3 and stated that
5 All. Jagdamba & Ors. Vs. State of U.P.
257
they were sleeping in the Marha along with
the PW-1, PW-3 and others, and they had
woke up at the barking of the dog and had
seen the occurrence; PW-2 Chandrika
Prasad had also stated that his relations
namely Kamla Prasad and Ram Gulam had
come in the preceding evening from the
date of incident at about 05:00 p.m. as on
the next date mundan ceremony of son of
Shanti Prasad was to take place; PW-4
Kamla Prasad also gave the same version
and narrated the prosecution story with the
fact that his relative namely Ram Gulam
had also come there in the preceding
evening on the invitation and had seen the
occurrence; presence of Chandrika Prasad
(PW-2) on the spot cannot be doubted
because he must have remained there at his
door and must have reached the scene when
his two brothers were being murdered.

(v) With regard to the presence of
Kamla Prasad (PW-4) on the place of
incident, it has been submitted by the
learned counsel for the appellants that his
statement under Section 161 Cr.P.C. was
recorded by the Investigating Officer on
18.01.1983 after about a month of the
incident, therefore, his testimony should
not to be accepted, but he failed to
contradict his deposition stated before the
trial court, therefore, this court is unable to
accept the submissions of the learned
counsel for the appellants as the learned
trial court considering his testimony has
observed that reasonable explanation has
been offered by the Investigating Officer
giving out the details as to how he was
busy in the investigation;

(vi) The arguments of learned
counsel
for
the
appellants
that
the
credibility
of
entrusted
and
relative
witnesses
i.e.
Ram
Dularey
(PW-1),
Chandrika Prasad (PW-2), Smt. Patiraji
(PW-3) and Kamla Prasad (PW-4) are
doubtful is not acceptable to this Court and
the
learned
trial
court
has
rightly
considered the deposition of the injured
witnesses namely Ram Dularey and Smt.
Patiraji as well as other witnesses of fact
namely Chandrika Prasad and Kamla
Prasad.

(vii) The arguments advanced by
the learned counsel for the appellants that
no any independent witness was produced
when the prosecution case is that at the
time of incident, villagers of the nearby
village reached on the spot, but as the
witnesses disclosed that the accused
persons fled away from the spot when the
persons of nearby villages reached on the
spot, therefore, the arguments of the
learned counsel for the appellants has no
force and this point was rightly considered
by the trial court for the reason that the
witnesses are illiterate, living in the village
and their testimony cannot be read in
isolation, and the village in which the
occurrence took place is a hamlet of few
house only i.e.