# Jawahar @ Babu Ram (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-17
- **Case number:** Criminal Appeal No. 4689 of 2009
- **Bench:** Naheed Ara Moonis, Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-babu-ram-in-jail-v-state-of-u-p-45732
- **Pages:** 26

## Headnote

Law-Indian
Penal
Code
Section 302 and Sections 25/27 of the Arms
Act,- Appeal against conviction.

Learned counsel appearing on behalf of the
appellant was unable to place before us as to
what in fact was the circumstances, which was
not put to the accused while recording his
statement under Section 313 Cr.P.C. (Para 104)

The statement of the accused under Section
313 Cr.P.C., all incriminating materials were not
put to the accused, has no leg to stand. (Para
105)

In the instant case, the accused appellant has
brutally assassinated his father initially by firing
a shot and thereafter hacking him to death.
The accused-appellant is also involved in the
commission of murder of his step mother for
which trial is pending in the court below. This is
a case of patricide where the accused-appellant
has not only committed the murder of an
innocent old and feeble person, but also slurred
the relation of father and son. (Para 106)

Criminal Appeal rejected. (E-2)

List of cases cited:
2 All. Jawahar @ Babu Ram Vs. State of U.P.
795

## Text

_Characters 0–39,918 of 86,323. This is a partial read: ask again with offset=39918 for what follows._

794 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution
evidence
of
P.W.
1
Shamshuddin
and
P.W.2
Aslam
is
inconsistent with P.W.4 Mohd. Rafique
regarding place of sitting of the witnesses,
place of the incident, seat of injury to the
deceased and persons sitting on the slab.
P.W.1 Shamshuddin, P.W.2 Aslam and
P.W.4 Mohd. Rafique are not eye
witnesses of the incident. Recovery of
knife on the pointing out of the appellant is
also not proved. The prosecution has
miserably failed to prove its case against
the appellant. The judgment and order
passed by the learned Trial Judge is,
therefore, not sustainable and is liable to
set aside.

The appeal is, therefore, allowed. The
impugned judgment and order mentioned
above convicting and sentencing the
appellant Laeeque @ Dharmanga is set
aside. He is acquitted of the charges under
Sections 302, 504 I.P.C. and 4/25 Arms
Act. The appellant is in jail. If he is not
wanted in any other case, he shall be
released forthwith provided he files his
personal bond and two sureties in
accordance with Section 437 (A) Cr.P.C.
to the satisfaction of the Court concerned.

Office is directed to communicate this
decision to the Court concerned forthwith
and send back the record.

Before concluding, this Court must
put on record its appreciation of the efforts
put in by Mr. Gaurav Sharma, learned
Amicus Curiae in providing valuable
assistance to the Court. It is, therefore,
directed that a sum of Rs. 15,000/- be paid
to Mr.Gaurav Sharma, learned Amicus
Curiae towards fees.

The above amount shall be paid to
Mr. Gaurav Sharma, learned Amicus
Curiae by the Registry of this Court within
15 days.
----------
(2020)02ILR A794
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Criminal Appeal No. 4689 of 2009

Jawahar @ Babu Ram
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri B.K. Tripathi, Sri Pradeep Kumar-VI, Sri
Tarkeshwar Prasad Tripathi

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Indian
Penal
Code
Section 302 and Sections 25/27 of the Arms
Act,- Appeal against conviction.

Learned counsel appearing on behalf of the
appellant was unable to place before us as to
what in fact was the circumstances, which was
not put to the accused while recording his
statement under Section 313 Cr.P.C. (Para 104)

The statement of the accused under Section
313 Cr.P.C., all incriminating materials were not
put to the accused, has no leg to stand. (Para
105)

In the instant case, the accused appellant has
brutally assassinated his father initially by firing
a shot and thereafter hacking him to death.
The accused-appellant is also involved in the
commission of murder of his step mother for
which trial is pending in the court below. This is
a case of patricide where the accused-appellant
has not only committed the murder of an
innocent old and feeble person, but also slurred
the relation of father and son. (Para 106)

Criminal Appeal rejected. (E-2)

List of cases cited:
2 All. Jawahar @ Babu Ram Vs. State of U.P.
795
1. Jai Ram and others Vs. St. of U.P., 2015(1)
JIC 589 (All),

2. Mehraj Singh Vs. St. of U.P., 1994 SCC (5)
188,

3. St. of U.P. Vs. Naim Uddin and others,
2015(3) JIC 929 (All),

4. Mangu Khan and others Vs. St. of Raj., AIR
2005 SC 1912,

5. Baso Prasad and others Vs. St. of Bihar, AIR
2007 SC 1019,

6. Patti Pati Venkatah Vs. St. of A.P., 1985(4)
SCC 80,

7. St. of U.P. Vs. Hari Chand (2009) 13 SCC
542,

8. Arjun and others Vs. St. of Raj., 1994 Suppl
(1) SCR 616,

9. Hari Obula Reddy and others Vs. St. of A.P.,
(1981) 3 SCC 675,

10. Ramashish Rai Vs. Jagdish Singh, (2005)
10 SCC 498,

11. Shahid Khan Vs. St. of Raj., 2016(2) JIC
1(SC),

12. Mahavir Singh Vs. St. of M.P. (2017) 1 SCC (Cri)
45,

13. Brahm Swaroop and another Vs. St. of U.P.
(2011) 6 SCC 288,

14. St. of Punj. Vs. Hardam Singh, 2005 SCC (Cr)
834,

15. Ishwar Singh Vs. St. of U.P., 1976 CAR 381 (SC),

16. Pritam Nath and other Vs. St. of Punj., 2002 AAR
147 (SC)

17. Machindra Vs. Sajjan Galfa Rankhamb and
others, (2018)1 SCC (Cri) 381,

18. Jaskaran Singh Vs. St. of Punj., 1997 SCC (Cri)
651,
19. St. of Raj. Vs. Teja Ram, AIR 1999 SC
1776,

20. Galakonda Venkateshwara Rao Vs. St. of
A.P., AIR 2003, SC 2846,

21. Pala Singh Vs. St. of Punj., 1972 (2) SCC
640,

22. Rabindra Mahto and another Vs. St. of
Jharkhand, 2006 (10) SCC 432,

23. Tahir Vs. State of (Delhi) (1996) 3 SCC
338,

24. State Government of NCT of Delhi Vs. Sunil
and another, (2001) SCC 652,

25. Sukhjit Singh Vs. St. of Punj., (2015) 1 SCC
(Cri) 76,

26. Ranvir Yadav Vs. St. of Bihar, (2009)3 SCC
(Cri) 92,

27. Reena Hazarika Vs. St. of Assam, 2018(3)
JIC 752,

28. Wasim Khan Vs. St. of U.P., AIR 1956 SC
400,

29. Bhoor Singh and another Vs. St. of Punj.,
AIR 1974 SC 1256,

30. State (Delhi) Administration Vs. Dharampal
(2001) 10 SCC 372,

31. Santosh Kumar Singh Vs. St. through CBI,
(2010)9 SCC 747,

(Delivered by Hon'ble Naheed Ara
Moonis, J.)

1. This Criminal Appeal has been
filed against the judgement and order
dated 17.07.2009 passed by the learned
Additional Sessions Judge (Fast Track
) Court No. 3, Maharajganj in Session
Trial No. 158 of 2004 arising out of
Case Crime No. 115 of 2004, under
Section 302 IPC and Session Trial No.
796 INDIAN LAW REPORTS ALLAHABAD SERIES
159 of 2004 arising out of Case Crime
No. 121 of 2004, under Sections 25/27 of
Arms Act, police station Ghughli, district
Maharajganj whereby the learned Judge
convicted and sentenced the appellant to
life imprisonment and a fine of Rs. 5,000/-
under Section 302 IPC and five years
rigorous imprisonment and a fine of Rs.
1000/- under Sections 25/27 of the Arms
Act. In case of default, the appellant was
further directed to undergo rigorous
imprisonment for six months in both the
session trials. However, both the sentences
were directed to run concurrently.

2. The emanation of facts giving rise
to the case of the prosecution are that a
written report was handed over by the first
informant Hari Narayan, son of Maniraj
Chaudhary, village Harkhi Tola police
station Ghughli, district Maharajganj to the
effect
that
the
complainant
is
the
permanent resident of village Harkhi Tola
Nipaniya, police station Ghughli, district
Maharajganj. On the fateful day, i.e.
(01.9.2004) at about 6.00 AM, when his
Samdhi Lalman Chaudhary, son of Ram
Kishun (daughter's father-in-law), who
resided in the same village, was coming
back to his village from Harkhi Miner
situated in south-east after attending the
call of nature, Jawahar alias Baburam
(appellant) who is the son of the first wife
of Lalman Chaudhary shot at him at the
canal as he was inimical with his father
due to litigation in respect of family
property. After Lalman Chaudhary fell
down, his son (the appellant) hacked him
to death with a sharp edged weapon. On
hearing the sound of firing Mahendra
Gaud, Rakesh, Pauhari and several other
persons who were present at the spot
rushed towards and tried to chase the
accused to nab Jawahar alias Baburam, but
he managed to escape towards southern
side by taking shelter of paddy and sugarcane crops. It was further mentioned in the
report that dead body is lying at the spot.

3. On the basis of the aforesaid
report, which was scribed by Ram Suresh,
son of Ugai, village Sonevarsa, the FIR
was registered at 8.15 AM on the same
day as Case Crime No. 115 of 2004, under
Section 302 IPC, police station Ghughli,
district Maharajganj.

4. After the registration of the case,
the criminal law set into motion and
investigation of the case was entrusted to
PW-17, SI Kushal Pal Singh, who copied
the FIR in the case diary and thereafter left
for the place of occurrence along with
PW-12, SI B.L. Chaudhary, Constable
Sushil Singh, Constable Brij Bhushan
Tiwari and Constable Kishun Dev Prasad
where Constable Adha Singh, Constable
Jagat Pati Mishra, Constable Uma Shanker
Yadav
and
Constable
Vishwanath
Chaurasia
were
already
present.
Complainant and other villagers also
reached at the spot where the cadaver of
deceased Lalman Chaudhary was lying.
The investigating officer after nominating
Kapil Dev Shukla, Pauhari, Kanhai,
Harakhman and Hari Shanker as witnesses
of inquest, conducted the inquest on the
cadaver
of
the
deceased
Lalman
Chaudhary between 9.30 AM to 11.15 AM
on 01.9.2004 in accordance with the
procedure prescribed and also prepared
papers in respect of inquest, photonash,
police paper, report of RI, letter to the
Chief Medical Officer and sample. He got
the dead body of the deceased sealed and
handed over to Constable Jagpat Mishra
and Constable Brij Bhushan Tiwari for the
post
mortem
examination.
The
investigating
officer
recorded
the
statement of the first informant Hari
2 All. Jawahar @ Babu Ram Vs. State of U.P.
797
Narayan and witnesses Mahendra Gaud
and Rakesh Gaud and inspected the spot
and prepared site plan on the pointing out
of the witnesses (Ext. Ka-14 ). He also
collected bloodstained and simple earth,
one pair sleeper and one steel pot (Lota)
and
prepared
memos
thereof.
The
investigating officer kept the bloodstained
and simple earth in two separate containers
and got it sealed. On 01.9.2004, the
investigating officer recovered the sleeper
of left foot of the accused from the paddy
field of Mahesh Chaudhary, which was
left while he was running away and
prepared
its
memo
(Ext.
Ka-15).
Thereafter, the investigating officer left for
village Harkhi Tola Nipania where he
recorded the statement of Ram Suresh,
scribe
of
the
FIR.
Thereafter,
the
investigating
officer
ensued
the
investigation and raided the house of the
accused, but he could not be arrested. On
03.9.2004, he again left for the arrest of
the accused, but his whereabouts could not
be known. On 04.9.2004, 06.9.2004,
07.9.2004 and 10.9.2004 he raided several
places,
but
accused
could
not
be
apprehended.
On
11.9.2004, on
the
information of the informer, accused was
arrested
from
Kaptanganj.
On
interrogation he confessed that due to
property dispute, he has committed the
murder of his father and narrated the
manner in which he committed the
murder. The accused got one country
made pistol 315 bore, one empty cartridge
315 bore, one live cartridge 315 bore and
one household knife with sharp edge,
which contained bloodstained, recovered,
in the presence of police personnel, which
were
kept
in
white
polythene
and
concealed under the ground after removing
shrubs and soil near an old well. The
accused also got his own sleeper of right
foot recovered. The recovered items were
sealed vide Exhibit Ka-17. A copy of the
memo was also handed over to the accused
duly signed by the witnesses. The
aforesaid items were sent to the Forensic
Science Laboratory, Lucknow on the order
of
the
Chief
Judicial
Magistrate,
Maharanganj.

5. After the recovery of country
made pistol, cartridges and knife, a case
was also registered against the accusedappellant as Case Crime No. 121 of 2004,
under Section 25/27 of the Arms Act,
police
station
Ghughli,
district
Maharajganj.

6. The investigating officer prepared
the site plan of the place from where
weapons of assault and other incriminating
articles were recovered on the pointing out
of the accused-appellant (Ext. Ka-18.) He
also recorded the statement of the accused
under Section 161 Cr.P.C. and also got the
statement of the accused under Section
164 Cr.P.C. recorded.

7. In the interregnum period, the
post-mortem of the deceased Lalman
Chaudhary was conducted on 02.9.2004 at
3.00 PM in the District Hospital by Dr.
H.S. Lal Sonkar, PW-14. The investigating
officer collected clinching and credible
evidence
and
after
completion
of
investigation, the investigating officer
submitted
charge
sheet
against
the
accused-appellant on 18.10.2004 under
Section 302 IPC (Ext. Ka-20).

8. The investigation of Case Crime
No. 121 of 2004, under Sections 25/27 of
the Arms Act was carried out by PW-16,
SI Jai Prakash Singh. On 17.9.2004, he
recorded the statement of SO Shri Kushal
Pal Singh Yadav, PW-17 and on his
pointing out he prepared site plan, which
798 INDIAN LAW REPORTS ALLAHABAD SERIES
he proved as Ext. Ka-7. Thereafter, he
recorded the statement of Nar Singh,
Deena, Harendra Shukla and Ram Adhar
Pandey.
On
20.9.2004,
he
sought
permission from the District Magistrate for
prosecution of the accused-appellant and
thereafter submitted charge sheet, which
he proved as Ext. Ka-8.

9. As the case was exclusively triable
by
the
Court
of
Sessions,
learned
Magistrate committed the case to the Court
of Sessions, where case was registered as
ST Nos. 158 of 2004 and 159 of 2004 and
the learned Sessions Judge, Maharajganj
vide order dated 22.11.2005 framed the
charges against the accused under Section
302 IPC in ST No. 158 of 2004 and under
Sections 25/27 of the Arms Act in ST No.
159 of 2004, which were read over and
explained to the accused. The accusedappellant abjured the charges by pleading
not guilty and claimed to be tried, hence
the prosecution was called upon to lead the
evidence.

10. To bring home the guilt of the
accused-appellant beyond the hilt, the
prosecution has examined as many as 18
witnesses, out of whom PW-1, Hari
Narayan is the first informant of the case,
PW-2, Rakesh, PW-3, Pauhari and PW 6
Mahendra are the witnesses of facts, PW4, Ram Raksha Singh and PW-7 Kapil
Dev Shukla are the witnesses of inquest
and recovery of bloodstained earth, PW-5,
Ram Suresh is the scribe of the FIR, PW8, Kanhaiya Singh and PW-10, Hari
Shanker are the witnesses of inquest, PW9, Ram Adhar Pandey, PW- 12, SSI B.L.
Chaudhary and PW-13, Surendra Shukla
and PW-18, Adya Singh are the witnesses
of recovery of weapon of assault, PW-11,
Constable-Muharrir R.S. Prasad prepared
chik FIR at case crime No. 115 of 2004,
under Section 302 IPC, PW-14, Dr. H.S.
Lal Sonkar conducted the post-mortem
examination on the cadaver of the
deceased, PW-15, Constable Chandra
Bhushan prepared chik FIR of case crime
No. 121 of 2004, under Sections 25/27 of
the Arms Act, PW-16, SI Jai Prakash is the
investigating officer of case crime No. 121
of 2004, under Section 25/27 of the Arms
Act, PW-17, SI Kushal Pal Singh, the
investigating officer of case crime No. 115
of 2004, under Section 302 IPC, PS
Ghughli, district Maharajganj.

11. PW-1, Hari Narayan is the first
informant of the case. He has deposed that
his daughter was married to another son of
the deceased. Accused Jawahar alias Babu
Ram is also the son of the deceased and
resides in his village. Deceased was killed
at 6.00 AM while he had gone to attend
the call of nature at Harkhi Miner. When
he was coming back, accused Jawahar
alias Babu Ram Chaudhary fired at him
and as soon as he fell down, accused
Jawahar Slashed his throat with the knife.
On hearing the fire of country made pistol,
several persons hailing to the same village
rushed to the spot. He (P.W-1) also rushed
to the spot while he was going to attend
nature's call and saw that accused slit the
neck of the deceased and ran away. He
tried to chase the accused, but in vain. He
further deposed that he Knew Jawahar
alias Baburam, who is standing in the
court. The report of the incident scribed by
PW-5, Ram Suresh, resident of Sonvarsa
and signed by him was handed over at the
police station, which he proved as Ext. Ka1. Ram Suresh had come to the village on
the date of incident. Deceased-Lalman had
purchased 3 acres and 70 decimal of land
in the name of his son Babu Ram alias
Jawahar and Janardan. Lalman had two
wives. Accused Jawahar and Janardan
2 All. Jawahar @ Babu Ram Vs. State of U.P.
799
were the son of Israrwati, the first wife of
the deceased. The name of his second wife
was Vimla, with whom were three
children namely Mahavir, Durgawati and
Kumari Sati. Deceased Lalman had given
one acre and 87 decimal of land in favour
of Mahavir whereas the rest of land was
sole in favour of Medhai alias Arjun. He
had also given some land to his daughter
Durgawati and Kumari Sati but accusedJawahar was demanding his share from the
ancestral land also, due to which accusedappellant Jawahar was angry with the
deceased-Lalman. He also deposed that
three years ago, Janardan, his wife
Rambha, Jawahar alias Babu Ram and his
wife, all the four persons had assaulted
Lalman and his second wife Vimla. Later
on, Vimla succumbed to the injury on the
way to hospital. In the murder case of
Vimla, deceased-Lalman was doing Pairvi,
due to which Jawahar was nurturing
animus and grudge, hence eliminated him.

12. In the lengthy cross-examination,
nothing has been come out contrary to the
examination-in-chief.

13. PW-2, Rakesh has deposed in his
examination-in-chief on oath that accusedJawahar and deceased-Lalman were son
and father. Lalman was murdered less than
2 years ago at about 6.00 AM in the
morning. Both of them resided in his
village. Deceased-Lalman was murdered
at the canal of Harkhi Tola. On hearing the
sound of fire, when he rushed to the spot,
several persons of the village were already
gathered at the spot. He saw that the
deceased fell down on receiving firearm
injuries. He did not see that Jawahar fired
at the deceased or hacked the deceased to
death. He further deposed that he did not
see the occurrence nor he chased the
accused Jawahar along with other person.
When he reached at the spot, he had seen
the dead body of the deceased Lalman. He
was already dead. At this stage, PW-2,
Rakesh was declared hostile and the
prosecution was permitted to crossexamine him. He denied that his statement
under Section 161 Cr.P.C. was never
recorded. He has not seen Jawahar
murdered Lalman with firearm weapon.
He reached at the spot firstly. Later on,
Hari Narayan (PW-1) reached at the spot
after half an hour. It was dark when
Lalman was decimated .

14. PW-3, Pauhari, in his evidence
has deposed that he knew the deceased.
Accused-Jawahar was the son of the
deceased. Lalman has been killed. On the
date of incident at about 6.00 AM, Lalman
was coming towards the village after
attending the call of nature from west to
east, whereas accused Jawahar was going
to west towards the canal Harkhi Miner.
When they crossed each other, at that
juncture accused Jawahar fired at the
deceased-Lalman. He saw the accused
firing at the deceased. He also heard the
sound of fire. On receiving the shot,
deceased fell down at the northern side
track of the canal. Thereafter accused
Jawahar had slit his throat. He rushed to
the spot and asked the accused as to what
is he doing. Thereupon accused Jawahar
ran away through paddy and sugar cane
field towards south of the canal. Effort was
made to apprehend the accused, but due to
fear and trepidation, they did not enter in
the
field
of
sugar
cane.
Deceased
succumbed to the injuries at the spot and
blood was found scattered. He further
deposed that two years prior to the
incident, there was dispute between
accused-Jawahar and deceased-Lalman in
respect of farming and litigation was going
on in the Court. In the fued, Lalman and
800 INDIAN LAW REPORTS ALLAHABAD SERIES
wife of deceased Vimla had sustained
injuries. Vimla had lost her life for which
a case is pending against the accusedJawahar. He also deposed that police
arrived at 9.00 AM at the place of incident.
He had divulged to the police that the
deceased died as Jawahar had fired at him
and slit his throat with sharp edged
weapon. Inquest of the deceased was
conducted in the presence of witnesses and
he also put his thumb impression on the
inquest and signed by other witnesses.
Thereafter the dead body of the accused
Lalman was sealed in his presence and
was sent to the mortuary for the autopsy.
He was interrogated by the police. PW-3
was put to lengthy cross-examination by
the defence to create doubt about his
presence at the time of incident.

15. PW-4, Ram Raksha Singh, in his
evidence, had deposed that on 01.9.2004
in his presence, the investigating officer
has collected bloodstained earth, simple
earth and recovered sleeper and one steel
water pot (Lota) from the place of
occurrence where deceased was killed,
memos whereof duly signed by him,
which he proved as Ext. Ka-2. In the
cross-examination,
he
showed
his
acquaintance with the complainant and the
family of the deceased.

16. PW-5, Ram Suresh has deposed
that he is the Gram Pradhan of village
Sonvarsa, district Maharajganj. A day
before the occurrence, he had come to his
in-laws house at village Harkhi tola
Nipaniya. He reached at the place where
the cadaver of Lalman was lying. On the
request of Hari Narayan, he has written the
report in respect of the incident on the
dictation of Hari Narayan, which was
signed by him. He had identified and
proved paper No. 4-Ka-2 as Ext. Ka.1. In
this cross-examination, he denied that
report was written after he was called upon
by the police and after inquest of the dead
body.

17. PW-6, Mahendra has deposed
that both accused Jawahar and deceasedLalman are known to him. Deceased was
killed prior to two years ago. On the date
of occurrence, at about 6.00 AM, while he
was going to attend the call of nature at
canal Harkhi Miner, he saw that accused
Jawahar was standing at the roadside
beside the machine of Ramagya and
deceased-Lalman was coming back after
attending the call of nature. Several
persons of the village were attending the
call of nature at the canal and some
persons were commuting. This witness has
further deposed that on hearing the sound
of fire, when he turned back and had seen
that deceased Lalman after being struck by
the bullet, fell down on the pavement of
canal and his son accused-Jawahar was
hacking his throat with a sharp edged
weapon. When this witness along with
Rakesh, Pauhari and several other persons
rushed to the spot, accused ran away. He
has also deposed that when he reached
near deceased-Lalman, he was dead.
Deceased has been killed due to the
enmity between the deceased and the
accused over the partition of 1/3rd of the
land. Prior to the present occurrence, the
accused-Jawahar along with his brother
has killed Vimla, wife of deceasedLalman.

18. PW-7, Kapil Dev Shukla is the
witness of inquest of the deceased Lalman
and recovery of bloodstained earth. He has
deposed that after the occurrence, police
reached at the spot. He has further deposed
that he along with Ram Raksha Singh and
several persons of the village have also
2 All. Jawahar @ Babu Ram Vs. State of U.P.
801
reached at the spot. Inquest was conducted
by the police in his presence. Ram Raksha
Singh and other persons were also present
there. During the inquest proceeding, on
being questioned by the investigating
officer as to how deceased died, he
divulged that he was killed by fire made
by country made pistol and thereafter by
hacking his neck. He proved his signature
at paper Nos. 6-Ka/1, 6-Ka/2 and 6-Ka/3.

19. He has further deposed that the
investigating
officer
collected
bloodstained and simple earth from the
place of occurrence and kept in separate
containers. The investigating officer also
recovered one pair sleeper and one steel
pot and sealed them after keeping in
separate clothes and got his signature
thereon. The investigating officer also
recovered sleeper of left foot of the
accused and sealed it and got the same
signed by this witness. He proved his
signature at paper No. 13-Ka/1 and 13Ka/2.

20. PW-8- Kanhaiya Singh is the
witness of inquest. He has deposed that on
hearing about the killing of the deceased,
Lalman when he reached the place of
occurrence, police and several persons
were present there. Inquest on the body of
the deceased was conducted in his
presence. First informant Har Narayan and
Pauhari were also present at the time of
inquest. He has further deposed that he put
his signature on the inquest report.

21. PW-9 is the witness of recovery
of weapon of assault. He has deposed that
country made pistol and knife were
recovered by the police in his presence.
Accused-Jawahar got one country made
pistol, two cartridges, and a knife
recovered by digging the ground and
confessed his crime. The investigating
officer sealed country made pistol and
cartridges separately and prepared their
memos, on which his signature was
obtained. This witness proved Paper Nos.
4-Ka/3 and 4-Ka/4 of Case Crime No. 121
of 2004.

22. PW-10, Hari Shanker is the
witness of inquest. He has deposed that on
the date of incident, he had gone to see the
dead body of deceased, Lalman where
police and villagers were present. On
being questioned by the investigating
officer about the death, he told him that
deceased was killed and has not died a
natural death. The investigating officer got
the inquest report prepared and obtained
the signature of this witness.

23. PW-11, Constable-Muharrir Ram
Suranjan Prasad has deposed that on
01.9.2004, he was posted as ConstableMuharrir at the police station Ghughli,
district Maharajganj. On that date, on the
basis of the written report of Har Narayan,
he prepared chik FIR at case crime No.
115 of 2004, under Section 302 IPC,
police
Station
Ghughli,
district
Maharajganj, which he proved at Ext. Ka3.

24. PW-12, S.S.I. Bachchu Lal
Chaudhary was the witness of arrest of the
appellant and recovery of weapon of
assault. He has deposed that on 11.9.2004,
on the information of the informer that
accused will go via Khuta Maidan, he
along with Station House Officer Shri
Kushal Pal Singh and his companion
rushed to the spot and after keeping the
official jeep behind the bushes, they made
a siege and waited for the accused to
come. At about 12.30 noon, a person was
seen coming from the village Kudana and
802 INDIAN LAW REPORTS ALLAHABAD SERIES
was going towards Kaptanganj. On the
indication of the informer that he is the
accused Jawahar, he was apprehended. On
being interrogated, he disclosed his name
as
Jawahar
alias
Babu
Ram.
The
investigating officer SO Kushal Pal Singh
arrested him and told him the reasons for
his arrest and recorded the statement of the
accused. The accused confessed his crime
and agreed to get the weapon of the assault
recovered, which he has concealed in his
village Siwan. Thereafter the accused got
recovered one country made pistol 315
bore, one empty cartridge and one live
cartridge, one household sharp edged
knife, which contained bloodstains. He
further deposed that the investigating
officer got the aforesaid articles sealed and
prepared their memos which was duly
signed by him.

25. PW-13, Surendra Shukla is the
witness of recovery of weapon of assault.
In his evidence, he has deposed that on the
date of occurrence, at about 2.30 PM,
police of police station Ghughli brought
the accused-Lalman to the village. This
witness was told by the investigating
officer that accused Jawahar wants to get
the weapon with which he killed his father,
recovered and asked him to accompany
him. This witness has further deposed that
he along with police personnel, accused
and several persons of the village reached
at old well situated across the canal Harkhi
Miner. Near the well there were bushes
and trees. Near the well, some portion of
the land was dig from before on which
some grasses were lying. Accused took out
one plastic bag from there. The bag
contained one country made pistol, one
empty cartridge, one live cartridge, one
household knife having bloodstains on it.
The accused admitted that he had fired at
his father from the recovered country
made pistol and thereafter hacked his
father to death by the knife. The
investigating officer kept country made
pistol and cartridge in one cloth and knife
in another and sealed them and prepared
memos thereof, which was signed by this
witness.

26. PW-14, Dr. H.S. Lal has
conducted post-mortem on the body of the
deceased-Lalman. He has deposed that on
02.9.2004, he was posted as Senior
Dermatologist
at
District
Hospital,
Gorakhpur. On 02.9.2004 at about 3.00
PM, he
conducted
the
post-mortem
examination on the body of the deceased,
who was brought by Constable CP 568
Jagat Pal and Constable 062 Brij Bhushan
of police station Ghughli in a sealed
condition. Doctor H.S. Lal, found the
following ante-mortem injuries on the
body of the deceased:

"1. Incised wound 10 cm x 3 cm
bone deep on right side neck underline
muscle, vessels, trachea, oesophagus cut.

2. Gun shot wound of entry 1 cm
x 1 cm bone deep on the left side back
upper
part.
Metallic
shaped
shot
recovered from surface of lower end of
scapula left side . Direction- back to
forward, margins inverted, blackening
around the wound."

27. In the opinion of the doctor,
the cause of death was due to shock
and haemorrhage as a result of antemortem injuries.

28. Doctor further opined that
death was caused about one and a half
day ago. The death might have been
caused at about 6.00 AM on 01.9.2004.
He proved the post-mortem report as
Ext. Ka 4.
2 All. Jawahar @ Babu Ram Vs. State of U.P.
803

29. In his cross-examination, PW-14,
Dr. H.S. Lal, has further deposed that the
large intestine contained faecal matter and
gases and stomach contained 3 oz. of
fluids. Bladder was empty. It was possible
that he had urinated before his death.
Looking to the large intestine, it transpired
that he did not attend the call of nature. In
September generally lower limb rigor
mortis passes off between 36 and 48 hours.
Doctor further opined that rigor mortis had
passed off. Looking to the condition of the
body, doctor further stated that the death
might have been caused between 12.00
night of 31.8.2004 and 3.00 AM of
01.9.2004.

30. In respect of gun shot wound, Dr. Lal
has deposed that he found gun shot wound on
the back side of upper part, which had only
entry wound and no exit was there. He also
recovered one metallic shaped bullet. He
further deposed that only expert can ascertain
whether it was bullet or not. It was of 'D'
shaped. Blackening was present near the
wound, which suggested that injury was
caused from 1-1⁄2 to 6 feet. Charring and
Tattooing were not present around the wound.

31. PW-15, Constable Chandra Bhushan
has deposed that on 11.9.2004, he was posted
as Constable at the police station Ghughli,
district Maharajgnj. On that date on the basis
of recovery of weapon of assault, he prepared
chik FIR against accused Jawahar alias
Baburam at case crime No. 121 of 2004, under
Sections 25/27 of the Arms Act, which he
proved as Ext. Ka-5. Three sealed bundle of
country made pistol, cartridge and knife were
kept in Malkhana and accused-Jawahar was
kept in lock up. The papers were prepared by
him exhibited as Ka-6.

32. PW-16, SI Jai Prakash Singh was the
investigating officer of Case Crime No. 121 of
2004, under Sections 25/27 of the Arms Act,
PS Ghughli, district Maharajganj and PW-17
SI Kushal Pal Singh Yadav was the
investigating officer of Case Crime No. 115 of
2004, under Section 302 IPC, police station
Ghughli, district Maharajganj, and their
evidences have already been discussed above.

33. PW-18, Constable C.P. 78 Ram
Adya Singh was the witness of recovery of
weapon of assault. He has deposed that on
11.9.2004 he was posted as Constable at
Police Station Ghughli and was the
companion (Hamrah) of the Station House
Officer. When accused was arrested, he
confessed his guilt and agreed to get the
weapon of assault recovered. This witness
further deposed that he along with the
SHO and other police personnel reached at
village Harkhi, from where through the
pavement, he reached to an old well
situated at Harkhi Tota Nipaniya. At about
2.30 PM, accused took out one plastic bag,
which was hid under the earth. The bag
contained one country made pistol 315
bore, cartridges and one knife having
bloodstains on it. Accused also got
recovered his one sleeper of right hand.
The investigating officer after keeping
country made pistol and cartridges in one
cloth and knife and the sleeper in separate
cloth, got them sealed and prepared
memos thereof, which this witness has
proved as Ext. Ka-17.

34. After the closure of the
prosecution evidence, the statement of the
accused was recorded under Section 313
Cr.P.C., in which he denied the charges
levelled against him. He further stated that
investigating officer has not conducted the
investigation in right perspective and false
charge sheet has been submitted against
him. He also stated that he has been roped
in the present case due to enmity and that
804 INDIAN LAW REPORTS ALLAHABAD SERIES
nothing has been recovered at his instance.
To a specific question by the Court that
country made pistol, one live cartridge and
a knife were recovered on his pointing out,
which
were
used
by
him
in
the
commission of crime, the accused has only
stated that nothing has been recovered at
his instance.

35. Learned Additional Sessions
Judge, Court No. 3, Maharajganj after
hearing thelearned counsel for the parties
and assessing, evaluating and scrutinizing
the evidence on record, convicted and
sentenced
the
accused-appellant
as
indicated herein above.

36. Hence, this appeal.

37. Heard Shri Tarkeshwar Prasad
Tripahi and Shri B.K. Tripathi, learned
counsel for the appellant and Shri Ajit
Ray,
learned
Additional
Government
Advocate for the State and perused the
record of the case.

38. Learned counsel for the appellant
has made the following submissions:

1. The first information report
has been lodged ante timed.

2. The incident took place in the
night as suggested by Dr. H.S. Lal Sonker
in his cross-examination and no one has
seen the incident and the appellant has
been falsely implicated in this case due to
enmity.

3. The statement of the first
informant under Section 161 Cr.P.C. was
recorded belatedly.

4.
All
the
witnesses
are
interested and partisan and no independent
witness has been examined.

5. Conduct of Mahavir, who is
also the son of the deceased in not coming
to the place of occurrence and fleeing
away, who returned after 16 days of the
occurrence, which belies the prosecution
story.

6. The weapons of assault were
not placed before the doctor to derive his
opinion as to whether the injuries were
caused by the said weapons.

7.
The
recovery
memo
of
weapons
does
not
contain
the
signature/thump
impression
of
the
appellant.

8. At the time of obtaining
sanction
of
the
District
Magistrate,
weapons were not produced before him.

9. There was no mention in the
GD as to when first information report was
sent to the Court concerned.

10. In the FIR sharp edged
weapon has been mentioned, whereas only
domestic knife was allegedly recovered at
the instance of the appellant.

11. The witnesses of recovery of
weapons, i.e. country made pistol, live
cartridge and knife are not reliable as they
are police official.

12.
While
recording
the
statement
of
the
accused,
all
the
incriminating circumstances were not put
to the accused.

39. On the other hand, learned
Additional
Government
Advocate
contended that prosecution was successful
in bringing home the guilt of the appellant
to the hilt. The statements of PWs 1, 3 and
6 are consistent throughout the trial.
Learned Additional Government Advocate
further submits that presence of faecal
matter in the intestines was only a
probability stated by the doctor and its
quantity cannot be measured, which
cannot negate the ocular testimony.
Learned Additional Government Advocate
also contended that the appellant was
2 All. Jawahar @ Babu Ram Vs. State of U.P.
805
depressed with the act of his father and
had earlier committed the murder of his
step mother about which a case was also
pending before the court below and after
being released on bail, he committed the
murder of his father.

40. The first contention of learned
counsel for the appellant is that the first
information report is ante-timed. In support of
his contention, learned counsel for the
appellant has relied upon the decision of this
Court in Jai Ram and others Vs. State of
U.P., 2015(1) JIC 589 (All). To buttress his
submission, learned counsel for the appellant
has contended that the first information report
has been lodged after the inquest proceedings
and with due deliberation.

41. As per prosecution case, the
occurrence in question took place at 6.00 AM
and the first information report has been
promptly lodged at 8.15 AM. The distance of
the police station is 16 kms. PW-1, Hari
Narayan, the first informant of the case has
stated that after the incident, he got the report
scribed by PW-5, Ram Suresh and handed
over the same at the police station. In his crossexamination, PW-1, Ram Narayan has
deposed that he reached the police station at
about 7.15 AM and handed over the written
report at the police station and left for the place
of occurrence. When he reached the place of
occurrence at about 8.15 AM, the investigating
officer was present. The inquest on the cadaver
was completed at about 9.15 AM. PW-11,
who prepared the chik FIR, in his cross
examination has stated that he wrote the FIR at
8.15 AM on 01.9.2004 on the basis of written
report submitted by the first informant Hari
Narayan.

42. In Jai Ram and others Vs. State of
U.P (Supra) relied upon by the learned
counsel for the appellant, the incident in
question took place at about 1.00 AM (in the
night intervening 29/30.10.1979 and the FIR of
the incident was lodged at 2.55 AM on
30.10.1979. The contents of the FIR was that
aaj beeti raat mein, which goes to suggest that
this word was usually used if the FIR was
lodged in the morning rather than if it was
lodged in the night of the incident itself.
Moreover, the post-mortem on the body of the
deceased was conducted after 48 hours on
31.10.1979 at 1.00 PM. In the aforesaid fact,
the Court held that the FIR was ante-timed. In
the present case the incident in question took
place at 6.00 AM and the FIR was promptly
lodged at 8.15 AM, the distance of police
station was 16 kms. Therefore, contention of
the learned counsel for the appellant that the
FIR was ante-timed or doctored one is contrary
to the documents on record. We are of the
view that it was lodged at the time and date as
disclosed by the prosecution.

43. Hon'ble Supreme Court in
Mehraj Singh Vs. State of U.P., 1994
SCC (5) 188 held thus:

"FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the
trial. The object of insisting upon prompt
lodging of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any
used,
as
also
the
names
of
the
eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which
is a creature of an afterthought. On
account of delay, the FIR not only gets
bereft of the advantage of spontaneity,
danger also creeps in of the introduction
of a coloured version or exaggerated
story. With a view to determine whether
806 INDIAN LAW REPORTS ALLAHABAD SERIES
the FlR was lodged at the time it is alleged
to have been recorded, the courts
generally look for certain external checks.
One of the checks is the receipt of the copy
of the FIR, called a special report in a
murder case, by the local Magistrate. If
this report is received by the Magistrate
late it can give rise to an inference that the
FIR was not lodged at the time it is alleged
to have been recorded, unless, of course
the prosecution can offer a satisfactory
explanation for the delay in dispatching or
receipt of the copy of the FIR by the local
Magistrate.