# Jagdish & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-15
- **Case number:** Criminal Appeal No. 802 of 1982
- **Bench:** Siddhartha Varma, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-ors-v-state-of-u-p-51989
- **Pages:** 9

## Headnote

Criminal Law-Indian Penal Code-1860Sections-302, 307, 323 r/w 34 - Criminal
appeal against judgment and order of conviction-
PW-1 St.d that she got up because she had to
facilitate her two months' old child to defecate.
However, when the excreta was not present on
the spot and when the Investigating Officer did
not mention about the presence of any excreta in
the site plan, she came up with a story that the
excreta had flown away because of the heavy
rain- Testimony of PW-2 and PW-3 suggests that
the presence of accused-appellants are doubtful
at the place of incident. The PW-2 and PW-3 St.d
that they had been prevented by fourth accused
to reach at the place of incident does not inspire
confidence- First informant St.d that she and her
husband (deceased) were staying in her Myika,
that St.ment also is not very believable- No
person can be convicted on the basis of doubtImpugned judgment & order set aside.

Appeal allowed. (E-15)

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES
cross examination that he had taken a paper
and blue refill pen from his neighbour
Bhagwandas and a file cover from his own
home it is quite unnatural that a person
whose paternal cousin was attacked in front
of his own eyes by his other cousins, would
be so meticulous and farsighted as to take a
file cover along with him to keep the plain
piece of paper so that it is not creased at all
while submitting his report at the Police
Station.

81. We have also noticed that P.W.-
1 while writing the report did not mention
that all the accused were close relatives of
P.W.-1 and belonged to the extended family
of the deceased sharing a common ancestor.
P.W.-1 has mentioned in his written report
that the accused belonged to the same
village Benipur without mentioning their
relation with the deceased or with himself.
In the natural course of things if a person
knows the accused well, he would not only
mention their names but also the relation
with the deceased.

82. After having given our
thoughtful
consideration
to
the
rival
submissions in the light of testimonies of
alleged witnesses of fact, namely, P.W.-1,
Damodar Prasad and P.W.-2, Vishwanath,
we do agree that in this incident, the
deceased, Shiv Kumar had died, however,
for all the aforesaid reasons, we do not find
testimonies of witnesses of fact, P.W.-1,
Damodar Prasad and P.W.-2, Vishwanath,
who are related and interested witnesses, to
be fully reliable so as to base conviction of
surviving appellants on their testimonies
only.
Therefore,
we
hold
that
the
prosecution has failed to prove its case
beyond reasonable doubt and the trial court
committed an error in holding the surviving
appellants guilty of offences under Sections
148 and 302 read with Section 149 I.P.C.
83. In conclusion, we are of the
considered opinion that the present criminal
appeal deserves to be allowed and the same
is, accordingly, allowed. Consequently, the
impugned judgment and order dated
11.05.1990 is set aside. The surviving
accused-appellants, Moti Lal and Jagdish
are acquitted of charges under Sections 148
and 302 read with Section 149 I.P.C.

84. The surviving appellants No.2
and 4, Moti Lal and Jagdish are on bail.
Their bail bonds are hereby cancelled and
sureties are discharged.

85. The surviving appellants No.2
and 4, Moti Lal and Jagdish are directed to
file the personal bonds and two sureties
each in the like amount to the satisfaction
of the court concerned in compliance of
Section 437-A Cr.P.C. within six weeks
from today.

86. Let a copy of this judgment be
also sent to the trial court concerned along
with trial court record for its information and
necessary compliance forthwith.
----------
(2024) 5 ILRA 80
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 802 of 1982

Jagdish & Ors. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
 Sri Siddharth Shukla, Sri Arvind Kumar
Maurya, Sri Om Prakash Verma, Sri Vivek
5 All. Jagdish & Ors. Vs. State of U.P.
81
Prasad
Mathur,
Sri
Ganesh
Shankar
Srivastava

Counsel for the Respondents:
A.G.A.

Criminal Law-Indian Penal Code-1860Sections-302, 307, 323 r/w 34 - Criminal
appeal against judgment and order of conviction-
PW-1 St.d that she got up because she had to
facilitate her two months' old child to defecate.
However, when the excreta was not present on
the spot and when the Investigating Officer did
not mention about the presence of any excreta in
the site plan, she came up with a story that the
excreta had flown away because of the heavy
rain- Testimony of PW-2 and PW-3 suggests that
the presence of accused-appellants are doubtful
at the place of incident. The PW-2 and PW-3 St.d
that they had been prevented by fourth accused
to reach at the place of incident does not inspire
confidence- First informant St.d that she and her
husband (deceased) were staying in her Myika,
that St.ment also is not very believable- No
person can be convicted on the basis of doubtImpugned judgment & order set aside.

Appeal allowed. (E-15)

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Upon an incident, having taken
place in the intervening night of 19th and
20th July 1980, a First Information Report
was lodged on 20.7.1980. Ram Jiyawan
Tripathi scribed the tehrir on the dictation of
the first informant, Radhika Devi. In the
F.I.R. it was stated that on the previous
night, while the first informant and her
husband Buchnoo Tiwari were sleeping in
the Veranda of their house in village Dulahi,
Police Station Khesraha, District Basti, after
having their dinner etc., at around 12 midnight because of the call of nature, the
younger daughter, who was sleeping with
the
first
informant,
woke
up.
The
complainant was trying to ease the child,
and at that moment, four persons reached the
place of the incident with country-made
pistols and lathies. When the first informant
asked them not to come near her and her
husband then, the assailant, Jagdish, son of
Ram Dulare, who was having country-made
pistol in this hand, fired on the husband of
the first informant. Thereafter, the first
informant,
caught
hold
of
Jagdish.
Thereupon, Jagdish exhorted his friends to
kill the husband of the first informant. Upon
this exhortation, Vishdhar alias Shridhar,
son of Shiv Moorat, fired a second shot at
the husband of the first informant and Ram
Achal,
son
of
Mitthoo,
who
also
accompanied
them,
pushed
the
first
informant aside. As a result, the first
informant fell. Also, Jagdish slapped her.
When all this was happening, the first
informant raised a hue and cry and,
therefore, Ram Jiyawan Tiwari, son of
Munnu Tripathi, Bhagwan Dutt son of
Mannar and a lot of persons of the village
with lanterns and torch came to the house of
the first informant. The crowd that had
collected at the house of the first informant
tried to chase the accused persons but they
ran away. However, because of the firearm
injuries, the husband of the first informant
died. She mentioned Jagdish and Ram
Achal's motives in the first information
report. Because of certain litigation with
regard to her land, the husband, i.e., the
deceased, who was doing pairvy in the
cases, was killed. She stated in the first
information report that the dead-body of her
husband was lying in the house itself and
while she had gone to lodge the first
information report, the injured daughter
Poonam was with her devar.

2. The lodging of the first
information report had set into motion the
investigating agencies and they recovered
the torches of the witnesses Bhagwan Dutt
Tiwari and Narad Tiwari and took them into
82 INDIAN LAW REPORTS ALLAHABAD SERIES
custody. Also, the mud where the blood was
found, was taken into custody. The lantern
and cot were also taken into custody. When
the search was made in the house of the
accused, no firearm etc. was recovered. The
injury report and post mortem report were
also prepared. Upon the charge-sheet having
been submitted, the Court of Additional
Sessions Judge, Basti, on 03.12.1980
framed charges against Jagdish, Ram Achal
and Vishdhar @ Sridhar under Sections 323,
302, 307 read with Section 34 of I.P.C. The
trial commenced when the accused persons
denied the charges and prayed for trial.

3. From the side of the prosecution
as many as ten witnesses were produced and
examined.

4. PW-1-Radhika Devi, the first
informant, proved the first information
report and gave her side of the story. She has
stated in her testimony that Buchnoo Tiwari
(deceased) was her husband. Vansh Gopal
was her father, and she was the only
daughter of her father. When she was one
and half years of age then her mother died.
She further stated that her father, Vansh
Gopal, had never remarried, and when she
grew up, her father married her. At the time
of marriage, he had given her ten bighas of
agricultural land and when Vansh Gopal
died, all the agricultural land and the
properties were inherited by her. She stated
that Vishdhar was Jagdish's brother-in-law
(sala), and Ram Achal was Jagdish's
agriculture labourer (someone who helped in
agriculture work). She stated that someone
had impersonated herself and sold her
properties to Jagdish and his brother
Keshav. Upon coming to know about this
execution of the sale-deed, Buchnoo Tiwari
and Jagdish became inimical. At the time of
the incident, civil cases were going on with
regard to the land in question. She stated that
she had four children; two sons and two
daughters. At the time of the incident, the
youngest daughter was one and half months
to two month old, the daughter Poonam,
who was older than the youngest daughter,
was 3 to 4 years old and the sons were older
than two daughters and were aged about 10
to 7 years. She had stated that her house in
the village was a hut with two rooms and one
Veranda. The house faced towards the East.
Also on the East was the sahan of the house.
The animals were tied on the Southern and
Eastern side of the house. On the date of the
incident, she states in her testimony,
Buchnoo Tiwari and she herself were lying
down on two separate cots. The youngest
daughter was sleeping with her and one who
was elder to her was sleeping with her
husband Buchnoo Tiwari and the two sons
were sleeping inside the house. She came for
sleeping in the Veranda because they had to
look after the animals. She had stated that,
like always, the lantern lit in the Veranda
and the cots were in the North-South
direction. After they had their food and
slept, the youngest daughter had a call of
nature, and she had risen to ease her. Then,
the accused persons, Jagdish, Vishdhar and
Ram Achal, reached the house. Along with
them was one more person she did not
recognize. Jagdish and Vishdhar had
country-made pistols, and Ram Achal had a
lathi. The fourth persons she could not
recognize was having a lathi with him. As
soon as Jagdish entered into the Veranda of
the house, he fired on the husband of the first
informant. The first informant immediately
left the child whom she was carrying and
caught hold of Jagdish. She recognized
Jagdish who was present in the Court.

5. Upon Jagdish having been
incapacitated as the first informant held him,
he exhorted Vishdhar to kill her husband,
and thereupon Vishdhar fired upon the
5 All. Jagdish & Ors. Vs. State of U.P.
83
husband of the first informant. When
Vishdhar fired, a few of the pellets also
injured the daughter of the first informant,
who was sleeping with the husband.
Because of the firing, the husband of the first
informant died. After that, Ram Achal
pushed aside the first informant, who fell
down on her back and Jagdish also slapped
her. As a result, she had certain scratches on
her back and was injured. After the incident,
the four accused ran away, realizing that the
villagers might reach the place of incident.
However, Bhagwan Dutt, who had reached
the house by the time the incident was over,
had tried to catch hold of the accused
persons. When the second shot had been
fired, Bhagwan Dutt, Ram Jiyawan and
Narad had reached the spot with lathis, etc.,
and they had seen the whole incident. Ram
Jiyawan, in fact, tied a piece of cloth on the
injury that had been caused to the husband
of the first informant. On the next day, i.e.
on the day after the incident had occurred,
the first information report was lodged by
the first informant. She had dictated the first
information report to Ram Jiyawan Tripathi,
a villager teacher. After he had written it
down, he had also read it out to the first
informant, and after she was satisfied with
the contents, she had put her thumb
impression on the FIR. PW-1 proved the
first information report and said that it was
the document, which was Exhibit-Ka-1.
After Ram Jiyawan had written the report,
he was taken by Balram to the Police
Station. Along with the first information
report, he had also taken the first informant
and her daughter -Poonam, who was injured,
to the Police Station. When the Inspector
had come to the house of the first informant,
he had found the dead body of her husband,
the lantern and the cot, and he had prepared
a recovery memo with regard to the lantern
and the cot. On the next day, the injury
report was prepared.
6. In her cross-examination, the
first informant stood firm to what she had
stated in her examination-in-chief. In the
examination-in-chief, she had stated that
Chhagur, Mannar and Munnu are of her
village and were all related. Narad and
Balram are the sons of Chhagur. She had
stated that Bhagwan Dutt (PW-2), who was
also a prosecution witness and an eyewitness, is the son of Mannar. She had stated
that Bhagwan Dutt and Ram Jiyawan are
related to each other. She had also stated that
they are not her relatives and that she was
the only child of her parents. She has
categorically stated that they are the
relatives of her husband. Upon being asked
whether her husband Buchnoo Tiwari,
Vanshraj, Munnu Tiwari, Mannar Tiwari,
Kalika Tiwari were accused in some case of
theft, etc., she said that she did not know
about that fact. She, in fact, denied of having
known any criminal case which was going
on against her husband and his father, Vansh
Raj. She also denied any criminal case visa-vis Ram Achal involving her husband.
Upon a question being asked that her actual
father was Ram Dev, she denied the fact and
insisted that Vansh Gopal was her father.
She stated on oath that her husband -
Buchnoo Tiwari was staying in her father's
house. The actual house of Buchnoo Tiwari
was in Village-Gothwa, which had, because
of it being dilapidated, fallen, and, therefore,
he was also staying in her house. In her
testimony, she said that the incident had
happened in the month of Ashadh (which is
equivalent to July-August). She had stated
that on the date of incident, it was drizzling
and that the clouds were there in the sky. The
night was dark, and it was raining, and
because of the fact that her elder daughter
was suffering from chicken pox, the first
informant had kept the lantern on, and also,
for the four previous nights, the lantern was
lit. She has stated that when Bhagwan Dutt
84 INDIAN LAW REPORTS ALLAHABAD SERIES
reached the house of the first informant, the
accused person had run away and that it was
raining heavily. Upon a question probably
being asked, as to where the excreta of the
young child was, she said that because of
there being heavy rains, the excreta had got
washed away. When the accused persons
had run away, she had held her husband and
wept. She was not aware as to whether the
blood had got stuck to her clothes as well.
She has stated that the Veranda had no plinth
and that Jagdish had fired while he was
getting down. Nobody had hit the first
appellant and the deceased with lathis. In the
Veranda no pellet, etc., was found, and the
pellets that had entered the chest of her
husband were lying there. Upon being asked
as to whether the her husband's father,
Vansh Raj, was under the observation of the
Police, she replied that she did not know
about that. She only stated that her case
about her property was decreed in the
Munsif's Court, and the appeal was pending.
Before the date when the appeal was to be
argued, the incident had occurred, and the
husband of the first informant was killed.
She has stated that the appeal was still
pending. She denied the fact that the
husband of the first informant had many
enemies and that any of those enemies might
have come and killed her husband.

7. The PW-2 Bhagwan Dutt
appeared in the witness box and gave his
statement and had categorically stated that
in the night of 19th and 20th July, 1980 he
was sleeping in his house and had woken up
to answered the call of nature. At mid-night,
he went out with his torch to check out if his
cattle were properly tethered and upon
finding that one particular animal was not
found at its place, he called out his brother
Kalika Tiwari and informed him about the
missing animal and also went out to search
for the animal. When he reached the house
of Deena Nath Pandey, then, he heard the
sound of the gunshot being fired from the
side of the house of Buchnoo Tiwari and
also heard the shouting of the wife of
Buchnoo
Tiwari
i.e.
Radhika
(first
informant). The witness, after that, stated
that he ran towards the house of Buchnoo
Tiwari and he also found that a lantern was
lit in the Vernadah of that house. In the light
of the torch and the lantern, he saw Radhika
was holding Jagdish and was shouting at the
top of her voice that Jagdish was holding a
country made pistol. He had also heard that
Jagdish had exhorted Vishdhar to kill
Buchnoo and thereupon, Vishdhar had fired
upon the Buchnoo Tiwari. He had also seen
the incident where Ram Achal had pushed
Radhika, and thereafter, Jagdish had slapped
Radhika. He also stated that he did not
recognize the fourth person. He has stated
that he, his brother and one Narad had tried
to catch hold the accused persons, but they
could not do so. Upon coming back to the
house of Buchnoo Tiwari, he found that
Buchnoo Tiwari was dead and that he was
covered with blood. He also found that the
daughter of Radhika, who was sleeping with
Buchnoo Tiwari, had also got injured.
Radhika, while weeping, narrated the whole
incident, and when the Police came to their
house, they had told the incident to the
Police. He had also stated that he had given
his torch to the Police, which was taken in
custody, and a recovery memo was
prepared. He has also mentioned about the
case which was going on between Radhika
and the accused persons. In his crossexamination, he had stood firm and had
answered the questions as were put to him.
He had stated that his house was a little away
from the house of the complainant but
because of his cattle had got freed from
where he had tethered them, he had chased
the cattle and, therefore, had reached near
the place of the incident. He also stated that
5 All. Jagdish & Ors. Vs. State of U.P.
85
when he was chasing his cattle, it was not
raining, and it was a dark night. The time
gap between the two fires was one to one
and one half minutes. He had stated that
when the fourth man, whom he did not
recognize, scolded him as to why he had
stopped around 16-17 steps away from the
place of incident. He had again categorically
stated that on the date of incident, it was
intermittently raining, but it was not raining
heavily.

8. PW-3 Ram Jiyawan Tripathi was
also an eye-witness and had virtually
repeated what the PW-2 had stated. He,
however, had stated that his house was
around 30 steps away from the house of PW2 and that the house of Bhagwan Dutt from
the house of the place of incident was at 200250 steps away.

9. PW-4 is the Police ConstableMannu Yadav and he was the person who
had taken the daughter of complainant for
medical examination.

10. PW-5-Raj Narayan Gupta, the X-ray
Technician had proved the x-ray report etc.

11. PW-6-Dr. B.P. Shukla had
conducted the post-mortem of the deceased
and had proved the postmortem.

12. PW-7-Dr. S.C. Tripathi, the
Radiologist, who had done x-ray of the elder
daughter of the deceased.

13. PW-8-Dr. U.K. Prasad had
examined the injuries of Poonam and
Radhika.

14. PW-9-Ashok Kumar Rai was
the Investigating Officer. He had stated in
his cross-examination that he was not aware
whether it had rained in the night of the
incident, but he stated that after he had
reached, it did rain. He had also proved the
recovery memo, etc.

15. PW-10-Shri Bakey Yadav
Constable stated that he was posted as a
constable at Police Station Khesaraha in
July, 1980 and had taken the dead-body for
postmortem.

16. After that, the accused's
statements under Section 313 of Cr.P.C.
were recorded.

17. Upon the completion of trial,
the Additional Sessions Judge-I, Basti
convicted the appellants Jagdish, Vishdhar
@ Sreedhar, and Ram Achal and found them
guilty under Sections 302 read with Section
34, 307 read with Section 34 and 323 read
with section 34 on 23.3.1982 aggrieved by
same the instant criminal appeal was filed.

18. During the pendency of the
criminal appeal, the appellant, Jagdish died
and thus, appeal abated qua him. Shri
Ganesh
Shankar
Srivastava,
learned
Advocate argued for Ram Achal, and the
appellant,
Vishdhar
@
Sreedhar,
is
represented by Shri Vivek Prasad Mathur,
Advocate and they, argued thus :

(i) There is no independent eyewitness to prove the allegations. PW-1 is the
wife, and PW-2 and PW-3 are relatives of
the deceased, therefore their testimony can't
be relied upon.

(ii) It has further been stated that
there are contradictions in the statements of
PW-1 and PW-2. PW-1 had given a reason
for getting up at mid-night and it was that
she had got up to facilitate the easing of her
younger child, who was to defecate. He
further submits that the actual excreta was
never found on the spot nor was it
86 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in the site plan, which was
prepared immediately after the incident, by
the Investigating Officer. To explain that the
excreta had got washed away, the PW-1 had
stated that it was raining heavily. While
opposite to this statement, learned counsel
for the appellants stated that PW-2, PW-3
and the Investigating Officer all had stated
that it was not raining heavily and that it was
only raining intermittently and that too after
large intervals and, therefore, the excreta
could not have got washed away.

(iii) Learned counsel submits that
the first informant had given a reason for
getting up in the night but the fact remained
that she was not there and had given a wrong
reason. When the excreta was not found, she
stated it had been washed away. But this fact
was not corroborated by the other witness,
who
had
stated
that
it
was
only
intermittently raining.

(iv) Learned counsel for the
appellants has further argued that the PW-2
stated that he was carrying a torch when he
approached the deceased's house. He
submits that when the lantern was lit, then
the torch ought not to have been lit. By
lighting the torch, the witness would have
exposed themselves to the accused persons.

(v) Learned counsel for the
appellants further stated that the first
informant's motive was also not very
convincing. Motive can always be a double
edged weapon. The first informant was
aware that a civil case was pending between
herself and the accused person and,
therefore, she could have easily implicated
the accused persons. Learned counsel for the
appellants further stated that as per the
statement of PW-2, he was directed/ordered
by the fourth person, who was present and
whose name none of them could tell, to stay
away and, therefore, he had stopped around
16-17 steps away from the place of incident
and, therefore, all the narrations which he
was giving in his testimony was a cookedup narration as it was all taken from the first
information report and statements of PW-1.
Nothing was original of his and, therefore, it
can easily be said that PW-2, in fact, never
reached the spot and had only to help the
PW-1, become a witness in the case and
stated all wrong facts.

(vi) Learned counsel for the
appellants subsequently stated that the
pellets which were found could not be
connected with any firearm. He, in fact,
submits that no firearm was ever recovered.
Learned counsel for the appellants states
that the appellant no.3 Jagdish was, in fact,
not at the spot and lived far away from the
place of incident.

(vii) Learned counsel for the
appellants states that the first informant was
close to the dead-body of the deceased and
had held him tightly, but no bloodstain came
on the clothes of the first informant,
meaning thereby that all the story which she
had narrated was a concocted one. Learned
counsel for the appellants thereafter stated
that as per the ages given under Section 313
of Cr.P.C., the appellants no.2 and 3 namely
Vishdhar and Ram Achal, are alive and had
crossed 60 years of age, and they were now
very elderly persons and that even if they
were convicted, their sentences be reduced.
Learned counsel for the appellants further
submits that the incident was of the year
1980, and the appellants who were alive had
already undergone the trauma of being an
accused for a fairly long period, i.e. almost
44 years.
 (viii) Learned counsel for the
appellants further states that Balram Tiwari,
who could have been a relevant witness and
who had taken the tehrir to the Police
Station along with the child, was not brought
in the witness box as a witness. He submits
that even Narad Tiwari, who was present at
the spot and was an eye-witness, was not
5 All. Jagdish & Ors. Vs. State of U.P.
87
produced as a witness and, therefore,
submits there were major lacuna in the case
of the prosecution.

(ix) Learned counsel for the
appellant has stated that there was every
possibility that Radhika Devi had done away
with the deceased and was implicating the
accused. He submits that a fake Radhika
Devi had replaced the real Radhika Devi,
and she had stated in her examination-inchief that she, along with the deceased, was
staying in her Maika. learned counsel states
that this fact was wrong as, in fact, all the
witnesses, namely PW-2 and PW-3, were
related to the deceased. The impersonated
Radhika now wanted to make use of the
decrees which were in favour of the real
Radhika, by killing the deceased.

19. Smt. Archana Singh, learned
A.G.A., however, has opposed the appeal
and has submitted that PW-1, who was the
wife of the deceased, was an eye-witness
whose testimony could not be disbelieved.
She had lost her husband and well
recognized the accused persons. The fact
could not be disbelieved where she stated in
the first information report and her
statement before the Court that she
recognized the accused persons. Learned
A.G.A. further submitted that even if there
were small discrepancies in the evidence of
the other prosecution witnesses, then that
could not jeopardize the prosecution's case.
Learned A.G.A. states that under no
circumstances, the place of incident, the
medical evidence, the source of light, the
time of the incident, etc., be questioned.

20. Learned counsel for the
appellants had tried to convince the Court
that the PW-1, i.e. the first informant, was
not an eye witness but had concocted the
entire story. Picking up threads from the
statement of the PW-1, they have argued
that PW-1 had stated that the deceased was
staying with her parents in village, but she
has produced the PW-2 & PW-3, who were
related to the deceased (husband). We find
that none of the witnesses, who had
appeared in the witness box, were relating to
PW-1, the first informant.

21. Further, we find that PW-1 had
given a fake story that gave a reason for her
to wake-up in the mid-night. She stated that
she got up because she had to facilitate her
two months' old child to defecate. However,
when the excreta was not present on the spot
and when the Investigating Officer did not
mention about the presence of any excreta in
the site plan, she came up with a story that
the excreta had flown away because of the
heavy rain. About the heavy rain that PW-1
mentioned, we find that there are actual
contradictions in the statements of the PW2 and PW-3. They do not, in fact, mention a
heavy rain, the Investigating Officer, had
only mentioned intermittent rainfall.

22. The testimony of PW-2 and
PW-3 suggests that the presence of accusedappellants are doubtful at the place of
incident. The PW-2 and PW-3 stated that
they had been prevented by fourth accused
to reach at the place of incident does not
inspire confidence and thus, are disbelieved.

23. We also find that the PW-2 and
PW-3 were the relatives of the deceased and,
therefore, when the first informant Radhika
stated that she and her husband (deceased)
were staying in her Myika, that statement
also is not very believable. Therefore, doubt
has definitely been created in our minds, and
no person can be convicted on the basis of
doubt.

24. Under such circumstances, for
all the reasons stated above, the appeal,
88 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, stands allowed. The judgment and
order 23.3.1982 is set aside. The appellants
before us, are acquitted of the charges
levelled against them in the instant case. The
appellant No.1 has already been died. The
appellant nos. 2 and 3, Ram Achal and
Vishdhar @ Sridhar were granted bail on
29.03.1982, therefore, their bail bonds as
well as the sureties are discharged.
----------
(2024) 5 ILRA 88
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2474 of 2018
WITH
Criminal Appeal No. 2258 of 2018
WITH
Criminal Appeal No. 2326 of 2018
WITH
Criminal Appeal No.1982 of 2018
WITH
Criminal Appeal No. 1993 of 2018

Ratan Pahalwan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Prashant Kumar Singh, Ambrish Kumar
Kashyap, Arun Kumar Shukla, Ashok Kumar
Tripathi, Saurabh Sachan

Counsel for the Respondent:
G.A., Dharmendra Pratap Singh, J.P. Singh

Criminal Law-Indian Penal Code-1860Sections-148, 149 &302 -The Arms Act1959- Sections 4/25-Criminal appeal against
judgment and order of conviction for life
imprisonment-the testimony of the witness of the
PW-1 who is the mother is not at all believable.
She has changed stands very frequently. She has
introduced so many things like the peepal tree
and Shiv Sewak at her convenience and the
peepal tree is not to be found even in the siteplan. In fact the Investigating Officer who was
PW-10 St.s that the PW-1 had never told him
about the peepal tree. It appears strange that the
site-plan was prepared at the telling of the PW1; that would mean that in fact the site-plan was
also prepared not at the spot but somewhere
else-Despite the fact that she mentioned that she
did not know the addresses of the assailants
before the Court, in the FIR she had mentioned
the addresses and the parentage of all the
accused persons-The mother of the deceased
had St.d that the deceased had died on the spot
and was lying dead but despite that the police
had taken the dead to the Hallet Hospital. which
raises a big question mark to the fact as to
whether the deceased was found at the spot
where, it is alleged, he was killed. The
panchayatnama ought to have taken place at the
place where the deceased lay dead-The ballistic
report from the forensic lab was also never
received and taken into account by the
prosecution-Result Impugned order quashed.

Appeal allowed. (E-15)

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Vinod Diwakar, J.)

1. These appeals have been filed
against the judgment and order dated
22.3.2018 passed by the Additional District
& Sessions Judge, Court No.12, Kanpur
Nagar convicting the appellants-Ratan
Pahalwan, Mahesh @ Maheshiya, Mewalal,
Ram Kumar Mallah, Suresh @ Mandir and
Vikas Maurya for life imprisonment under
section 302 read with section 149 IPC. A
fine of Rs.50,000/- had also been imposed
on each of the convict and in the event of
non-depositing of fine, they had to undergo
additional imprisonment of 180 days. Also,
the accused Ratan Pahalwan, Ram Kumar
Mallah and Vikas Maurya, under section
4/25 of the Arms Act, were sentenced for
one year rigorous imprisonment and a fine