# Jhande Yadav @ Jhundu @ Shiv Kumar v. State of U.P

- **Citation:** (2024) 9 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-20
- **Case number:** Criminal Appeal No. 1872 of 2015
- **Bench:** Rajiv Gupta, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jhande-yadav-jhundu-shiv-kumar-v-state-of-u-p-52579
- **Pages:** 27

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Appeal
against
conviction
and
Sentence
-
Evidence of one witnesses is based on
hearsay - Other witnesses, except one,
have been declared hostile - Effect -
Testimony of single witness, who is the
complainant - Reliability - Held, the
case as it rests on the testimony of a
single witness the same has to be
wholly reliable. The testimony of PW-1
Babu Yadav cannot be in any manner
said to be of sterling quality and he
cannot be treated to be a witness
wholly
reliable.
There
has
been
falsehood St.d by him, improvements in
his St.ment and also variations which
go to the root of the matter and in any
event he cannot be trusted as a wholly
reliable witness - High Court found sole
eye witness namely Babu Yadav (PW-1)
not a trustworthy witness and hence
set aside the conviction order. (Para 47
and 63)

B. Criminal Trial - Criminal Procedure
Code - Section 164 - Confession - Noncompliance of S. 164 - Effect - Duty of
Magistrate clarified - Bhukin's case
relied upon - A Magistrate recording a
confession
ought
to
question
the
accused
merely
with
a
view
to
discovering
whether
the
proposed
confession is voluntarily or on account
of any inducement or threat and the
Magistrate should not question the
prisoner so as to get answers from him
regarding the occurrence which would
be inculpatory. The prisoner should be
allowed to St. whatever he wants and
the confession should be recorded in
his own words. (Para 59)

Criminal Appeal allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,965 of 76,915. This is a partial read: ask again with offset=39965 for what follows._

208 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction dated 10th January,
2020, they are in judicial custody and
have undergone total period of
custody of about five years and six
months actual and more than six years
and six months with remission. All
the accused appellants have no
criminal history. All the accused -
appellants namely, Babli, Jaiprakash,
Vimla, Raju and Kamal, are acquitted
of the charges and they be released
forthwith from the judicial custody.

 51.

All
the
appeals
are
accordingly allowed.

 52. Record and proceedings be
sent back to the Trial Court
forthwith.

 53. Ms. Muskan Pandey, learned
Amicus Curiae be paid the requisite
fee by High Court Legal Services
Committee.
----------
(2024) 9 ILRA 208
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1872 of 2015
With other cases

Jhande Yadav @ Jhundu @ Shiv Kumar
 ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Adarsh Kumar, Ashutosh Pandey, Bansh
Narain Rai, Kaushlendra Singh, R.S. Tewari,
Rajesh Kumar Mishra, Tribhuwan Singh
Counsel for the Respondent:
G.A., Rakesh Dubey

A. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Appeal
against
conviction
and
Sentence
-
Evidence of one witnesses is based on
hearsay - Other witnesses, except one,
have been declared hostile - Effect -
Testimony of single witness, who is the
complainant - Reliability - Held, the
case as it rests on the testimony of a
single witness the same has to be
wholly reliable. The testimony of PW-1
Babu Yadav cannot be in any manner
said to be of sterling quality and he
cannot be treated to be a witness
wholly
reliable.
There
has
been
falsehood St.d by him, improvements in
his St.ment and also variations which
go to the root of the matter and in any
event he cannot be trusted as a wholly
reliable witness - High Court found sole
eye witness namely Babu Yadav (PW-1)
not a trustworthy witness and hence
set aside the conviction order. (Para 47
and 63)

B. Criminal Trial - Criminal Procedure
Code - Section 164 - Confession - Noncompliance of S. 164 - Effect - Duty of
Magistrate clarified - Bhukin's case
relied upon - A Magistrate recording a
confession
ought
to
question
the
accused
merely
with
a
view
to
discovering
whether
the
proposed
confession is voluntarily or on account
of any inducement or threat and the
Magistrate should not question the
prisoner so as to get answers from him
regarding the occurrence which would
be inculpatory. The prisoner should be
allowed to St. whatever he wants and
the confession should be recorded in
his own words. (Para 59)

Criminal Appeal allowed. (E-1)

List of Cases cited:

1. Vadivelu Thevar Vs St. of Madras; AIR 1957
SC 614
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
209
2. St. of Rajasthan Vs Bhola Singh; AIR 1994 SC
542

3. Lallu Manjhi Vs St. of Jharkhand ; (2003) 2
SCC 401

4. Bibin Kumar Mondal Vs St. of W.B.; (2010) 12
SCC 91

5.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansing; (2001) 6 SCC 145

6. Rajesh Yadav Vs St. of Uttar Pradesh; (2022)
12 SCC 200

7. Kashmira Singh Vs St. of M.P.; AIR 1952 SC
159

8. Kuthu Goala Vs St. of Assam; 1980 SCC
OnLine Gau 21 : 1981 Cri LJ 424

9. Bhukin Vs King Emperor; 1947 SCC OnLine
MP 81 : AIR 1948 Nag 344

10. Sarwan Singh Vs St. of Punj.; AIR 1957 SC
637

11. Kehar Singh Vs State (Delhi Admin.); AIR
1988 SC 1883

12. Mahabir Singh Vs St. of Har.; AIR 2001 SC
2503

(Delivered by Hon'ble Samit Gopal, J.)

1. These criminal appeals are
connected together as being of co-accused
persons which have been preferred against
the judgement and order dated 15.4.2015
passed by the Additional District and
Sessions Judge, Court No. 2, Kanpur Nagar
in Session Trial No. 07 of 2003 (State vs.
Indra Bahadur Singh and 8 others) whereby
the
accused-appellants
Lalli
Singh,
Virendra, Jhande Yadav @ Jhundu @ Shiv
Kumar, Chaloo Yadav @ Ram Chandra
Yadav, Ghanshyam Singh, Jay Karan
Singh, Jhallar Singh, Shivnath Yadav and
Indra Bahadur Singh have been convicted
and sentenced under Section 147 I.P.C. to
01 year rigorous imprisonment and a fine
of Rs.5,000/- each and in default of
payment of fine to 01 month additional
imprisonment, under Section 148 I.P.C. to
01 year rigorous imprisonment and a fine
of Rs.5,000/- each and in default of
payment of fine to 01 month additional
imprisonment, under Section 302 read with
149 I.P.C. to life imprisonment and a fine
of Rs.10,000/- each and in default of
payment of fine to 02 months additional
imprisonment. The sentences have been
ordered to run concurrently and benefit of
set off under Section 428 Cr.P.C. has been
ordered to be extended to the convicted
accused persons.

2. A First Information Report has
been lodged against Harnam Singh, Indra
Bahadur, Ghanshyam, Virendra, Lalli,
Jaikaran and Jhallar, all being residents of
village Sipai, Police Station Bindaki,
District Kanpur Nagar.

3. During investigation complicity of
Shiv Nath Yadav, Pappu Yadav, Chaloo
Yadav@Ram Chandra Yadav and Jhande
Yadav @ Jhundu @ Shiv Kumar came to
light and as such they were also made
accused in the present matter. The
investigation concluded and a charge sheet
no. 129 of 2001 dated 05.8.2001 was filed
against Lalli Singh, Jai Karan Singh,
Jhallar Singh, Pappu Yadav@ Karpuri and
Shiv Nath Yadav. Further Charge Sheet
No. 129A of 2001, dated 20.09.2001 was
submitted against Chaloo Yadav @ Ram
Chandra@Balbir and also against Jhande
Yadav @ Jhundu @ Shiv Kumar as an
absconder.

4. The accused Indra Bahadur Singh,
Ghanshyam Singh, Harnam Singh and
Virendra who were named in the F.I.R.
210 INDIAN LAW REPORTS ALLAHABAD SERIES
were exonerated by the Investigating
Agency.
They
were
subsequently
summoned under Section 319 Cr.P.C.

5. In so far as Harnam Singh, son of
Mani Singh is concerned, his trial stood
abated vide order dated 16.10.2007 of the
trial court. The trial of Pappu Yadav @
Karpuri also stood abated vide order dated
06.07.2013 of the trial court.

6. The prosecution case as per the
F.I.R. lodged on 10.07.2001 at 07:45 a.m.
by Babu son of Jagmohan of which Shyam
Sunder is the scribe, against 07 named
persons namely Harnam Singh, Indra
Bahadur, Ghanshyam, Virendra, Lalli,
Jaikaran and Jhallar is that around 02
months back Rs.50/- was to be taken from
Desi Darji by the persons of sanger group
and milk of Desi Darji used to be given to
Babu Yadav and then the said persons
demanded Rs.50/- of Desi Darji from him,
on which he refused giving money and
stated that he will only give it when Desi
Darji tells him to return, on which the said
persons scolded his son Narendra in Sidhi
Bazar. His son had beaten Dinesh@Topilal
the grandson of Harman Singh with kicks
and fists. Due to this reason Sangers
entered inside his house with lathi and
dandas and assaulted them. The village
persons intervened and got the matter
settled but the said persons regularly used
to extend death threats to them. Today on
09.07.2001 at mid-night his son Azad, like
regular days, was at the tube-well for
ensuring its safety wherein at about 11:00
p.m. Harnam Singh exhorted to murder him
and then stated that he would take care of
everything, after which his sons Indra
Bahadur, Ghanshyam with Virendra, Lalli,
Jai Karan, Jhallar and others armed with
Barchhi and country-made pistols started
moving ahead in which Virendra and Indra
Bahadur
were
carrying
country-made
pistols and Ghanshyam, Lalli, Jai Karan
and Jhallar were carrying Barchhi with
them. On suspicion, he and his brother
namely Babu son of Jagmohan and Raj
Bahadur son of Jagmohan proceeded from
the village and as soon as they reached the
tube-well and saw the said persons had
already committed murder. Both the
brothers have witnessed it and identified
the accused persons well. On their shouts
the accused persons while abusing ran
away. They were seen in the moon-light
and very well identified but due to fear he
could not come to the police station earlier
but now he has come to give an
information.

7. The said F.I.R. was lodged as Case
Crime No. 149 of 2001, under Sections
147, 148, 149, 302/34 I.P.C., Police
Station- Bindaki, District Kanpur Nagar.

8. Investigation in the matter started
and blood stained earth and plain earth,
blood stained and plain ropes of cot were
taken by the police and sealed on
10.07.2001 and memo of it was prepared.
One pair of 'hawai chappal' of the
deceased was also taken by the police and a
recovery memo of the same was also
prepared on 10.07.2001. The inquest on the
body of the deceased was conducted on
10.07.2001.

9. Post mortem examination of the
deceased
Azad
was
conducted
on
11.07.2001
at
01:00
p.m.
by
Dr.
Somnath/P.W.-2. The following injuries
were found on his body: -

"1. Multiple punctured wound in
area 14cm X 13cm on the front and left
side of chest, size 1.5cm x 1.5 cm x chest
cavity deep, 12 in numbers, each wound
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
211
being 5cm in size. Margin sharp everted,
8cm below 8cm at notch, 6cm from Right
nipple at 9 o'clock position, 8cm below left
axilla.

2. Multiple punctured wound, 3
in numbers in area 16cm x 7cm x
abdominal cavity deep. Margin sharp
everted, 13cm above pubic symphysis 6cm
from umbilicus at 10 o'clock position.

3. Stab wound 3 in numbers in
area 9cm x 7cm x 2cm x trachea deep front
and right side neck, 7cm above sternal
notch. Cut at 3 side 6cm below chin,
margin sharp everted.

4. Stab wound 3cm x 2cm x bone
deep underlying maxilla cut, margin sharp
on the right side face 1cm below right eye.

5. Lacerated wound, 4cm x 1.5cm
on the right side forehead just above right
eyebrow."

Cause of death was opined as
haemorrhagic shock as a result of ante
mortem injuries.

10. Blood stained earth, plain earth,
blood stained ropes and plain ropes of cot
were sent to chemical analyst for analysis
who through his report dated 13.12.2001
opined that plain earth and blood stained
earth appears to be of the same nature and
plain rope of the cot and blood stained rope
of the cot also appear to be of the same
nature.

11. Investigation concluded and a
Charge Sheet No. 129 of 2001 was
submitted under Sections 147, 148, 149,
302/34 I.P.C. against Lalli Singh, Jaikaran
Singh, Jhallar, Pappu Yadav@Kapoore and
Shivnath Yadav.

12. Subsequently another Charge
Sheet No. 129A of 2001 dated 20.09.2001
was submitted under Sections 147, 148,
149,
302/34
I.P.C.
against
Chaloo
Yadav@Ram Chandra Yadav. In so far as
Jhande Yadav @ Jhandu@Shiv Kumar is
concerned, he was charge sheeted as an
absconder.

13. Vide order dated 09.07.2003 the
Additional Sessions Judge, Court No. 5,
Kanpur Nagar framed charges against Lalli
Singh, Jai Karan Singh, Jhallar Singh,
Pappu Yadav @ Karpuri, Shiv Nath Yadav,
Chaloo@ Ram Chandra Yadav and Jhande
Yadav under Sections 147 I.P.C., 148
I.P.C. and 302/149 I.P.C. The charges were
read to the accused and explained to them
who pleaded not guilty and claimed to be
tried.

14. Vide order dated 05.08.2004
passed by the Additional Sessions Judge,
Court No. 5, Kanpur Nagar, charges under
Sections 147 I.P.C., 148 I.P.C. and 302/149
I.P.C. were framed against Harnam Singh,
Indra Bahadur Singh, Ghanshyam Singh
and Virendra. The said accused also were
read and explained the charges, who
pleaded not guilty and claimed to be tried.

15. The prosecution in order to prove
its case produced the following witnesses:--

P.W.-1
 Babu Yadav (first informant)
P.W.-2
Dr. Shobh Nath
P.W.-3
Virendra Yadav
P.W.-4
Constable Chandra Prakash
P.W.-5
S.I. Dal Chandra (Investigating
Officer)
P.W.-6
Ram Asre
P.W.-7
Gautam Dhanuk
P.W.-8
Awadhesh Trivedi
P.W.-9
Virendra Singh@Neta son of
Purushottam

16. With regards to the documentary
evidence, the prosecution produced the
following documents to prove charges
against the accused, these are marked as
under:

Ex.
Written report.
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka-1
Ex.
Ka-2
Post Mortem Report
Ex.
Ka-2A
Death report of Harnam
Singh given by Gram
Pradhan.
Ex.
Ka-3
Chik F.I.R.
Ex.-
Ka-4
Report regarding
destruction of G.D.
Ex.
Ka-5
 Certified carbon copy of
G.D. of registration
 of case.
Ex.
Ka-6
 Panchayatnama
Ex.
Ka-7
Photograph of dead body
Ex.
Ka-8
Challan of dead body
Ex.
Ka-9
Letter of C.M.O.
Ex.
Ka-10
Sample of seal
Ex.
Ka-11
Recovery memo of plain
and blood stained earth
and plain and blood
stained rope of cot.
Ex.
Ka-12
Recovery memo of one
pair of Hawai Chappal
Ex.
Ka-13
and 15
Site plan
Ex.
Ka-14
Report of Forensic
Science Laboratory
Ex.
Ka15A
Charge Sheet against
Lalli Singh and others
Ex.Ka16
Memo of Attachment of
accused Chaloo
Yadav@Ram Chandra @
Balwan
Ex.
Ka-17
Memo of attachment of
accused Jhande@Jhandu
Yadav
Ex.
Ka-18
Charge Sheet against
Jhande Yadav and
Chaloo Yadav (as an
absconder)

17. The material exhibit produced
by the prosecution are as under:

Material
Ex.
-1
and 2
Slippers of deceased
Material
Ex.-3
Blood stained earth
Material
Ex.-4
Plain earth
Clothes of deceased
Material
Ex.-5

 18. The accused Jaikaran Singh,
Jhallar Singh were produced before
the Metropolitan Magistrate-IV,
Kanpur Nagar on 02.08.2001 and
their confessional statements under
Section 164 Cr.P.C. were recorded.
The accused Lalli Singh was
produced on 25.07.2001 before the
Metropolitan
Magistrate-IV,
Kanpur Nagar and his confessional
statement was also recorded under
Section 164 Cr.P.C.

 19. Amongst the prosecution
witnesses Birendra@ Neta and
Awadhesh Trivedi were produced
on
24.07.2001
before
the
Metropolitan
Magistrate-IV,
Kanpur Nagar and their statements
under Section 164 Cr.P.C. were
recorded. Further Gautam and
Shivram the alleged witnesses were
produced on 25.07.2001 before the
Metropolitan
Magistrate-IV,
Kanpur Nagar and their statements
under Section 164 Cr.P.C. were
recorded.

 20. Amongst the persons whose
statements were recorded under
Section
164
Cr.P.C.
Shivram
whose statement was recorded on
25.07.2001, was not produced in
the trial.

 21. Babu Singh Yadav P.W.-1
the first informant of the matter,
reiterated the version stated by him
in the F.I.R. and he states that the
deceased Azad is his son. The
incident is about 05 years and 04
months old. At about 11:30 p.m. he
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
213
was getting milk filled at the door
of his house. His son Narendra
used to bring milk from village
after getting it miltched which used
to be collected and then sold in the
market. He was getting the same
milk filled. The doors of his house
and the doors of the shop of the
accused Lalli are in front of each
other. Harnam Singh was telling
the other accused persons that they
would finish Azad today as he has
gone to sleep at tube-well. All the
accused persons had collected at
the shop of Lalli Singh. 2-3 months
ago
Dinesh
the
grandson
of
Harnam Singh who is also called
Topilal and his son Narendra had a
fight at Sidhi Bazar in which
Narendra had assaulted him with
kicks and fists. On the saying of
Harnam Singh all the accused
persons had entered into his house
and assaulted ladies, him and his
son with lathi and danda but the
people of village had intervened
and saved them. They had accepted
their fault and had apologized for it
by saying that they are not having
the status to fight with them since
they are only house of the caste in
the village, but his son Azad did
not extend apology. The accused
persons even before the present
incident used to threaten him of
murdering him. The said incident
was prior to the present incident. In
the night of the present incident
Harnam Singh told the other
accused persons to murder Azad
and after sometimes the accused
persons were not seen and then he
thought that they must have gone to
his tube-well. He and his son
Brijendra went to the tube-well.
They were carrying torches in their
hands and night was also bright.
Indra Bahadur Singh and Virendra
Singh threatened them by putting
country-made pistols on them and
told them that if they move forward
they will be murdered. Lalli, Jai
Karan, Jhallar and Ghanshyam
were assaulting his son Azad with
Barchhi. Jhande, Pappu Yadav,
Chaloo
and
Shiv
Nath
were
carrying lathis and were standing
nearby. When the accused persons
after assaulting Azad, moved away
towards 'nahar' then they picked
up Azad and saw him to be dead.
He states that report of the incident
was dictated by him to his cousin
brother Shyam Sunder at about
06:00 a.m. at that place and
whatever he had written he had
dictated to him, the same was read
to him, he had put his thumb
impression and then went to the
Police Station and lodged it. After
lodging of his report, S.H.O.
reached the place of occurrence.
The incident is of 09th and the
report was lodged on 10th. He does
not remember the month and the
year since he is illiterate. The
accused persons have murdered his
son Azad as there was a prior
incident
of
beating
between
Narendra and Dinesh.

In his cross-examination he
states that he and his brother Raj
Bahadur had gone at the place of
occurrence.
He
states
that
previously he had stated that he and
his son Brijendra had gone to the
tube-well but the same is incorrect.
His brother Raj Bahadur had gone
with him. Brijendra had reached
214 INDIAN LAW REPORTS ALLAHABAD SERIES
the place of occurrence after half an
hour of the incident. He states of
dictating the report to Shyam
Sunder. He states that he is an eye
witness of the incident. He states
that he has stated of 11 accused
persons in the matter but in the
F.I.R. name of only 07 accused
persons have been given since he
remembered their names only at the
relevant time. He states that he saw
Lalli, Jaikaran, Ghanshyam and
Jhallar assaulting his son Azad with
'Barchhi'. He does not remember
how many blows were given. In the
morning when all the people
collected, then the injuries on the
body were counted which were
found to be about 42 in number.
There was no firearm used on the
deceased. Virendra Singh and Indra
Bahadur Singh did not fire but they
had threatened him and his brother
Raj Bahadur with their countrymade pistols and assaulted them
with fists on their chest and
threatened them that if they moved
forward they will be murdered.
When his son Brijendra reached at
the place of occurrence, by that
time the accused persons had left
the place and had proceeded
towards the tube-well. He did not
see the incident. The accused Shiv
Nath, Jhande, Pappu and Chaloo
were armed with lathis and were
standing at that place but did not
assault anyone or did any act with
it. When he and his brother Raj
Bahadur reached the place of
occurrence at that time the accused
persons were assaulting Azad and
after their assault, when he went
near Azad he found him to be dead.
He then picked up Azad in his lap
and saw him, by that time the
accused persons had moved out
from that place. He states that after
he and his brother Raj Bahadur
were threatened with country-made
pistols by Virendra and Indra
Bahadur Singh, they did not try to
run away as no one would run
away at that time. They were not
having any fear but still the
accused did not assault them. They
were pushing them back and
stopped them to proceed further.
They used to proceed further and
then accused used to push them
back. This carried on for about 15
minutes. In the said 15-20 minutes
no accused assaulted him or Raj
Bahadur. He states that he went to
the Police Station along with
Rajendra, Shyam Sunder and his
brother Raj Bahadur. They went
there on bicycle. They reached the
police station at about 08.00 p.m.
on the next day of the incident. He
states that his statement under
Section 161 Cr.P.C. was recorded
on the day of incident. His brother
Raj Bahadur was present in his
house near the house of witnesses.
He went to some distance from his
house and then called his brother
and told him that they have to come
to the house. He called him from a
distance of about 10 steps from the
house of Raj Bahadur. The house
of Raj Bahadur is about 30 steps
away from his house. He states that
he did not see the accused going to
the place of occurrence. When he
reached the place of occurrence
then he saw the accused there. The
accused did not go to tube-well in
front of him. His tube-well is
situated at a distance of about 4-10
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
215
furlong south of village. His tubewell is in the field where there is an
orchard.
He
had
told
the
Investigating Officer that Virendra
and Indra Bahadur were stating to
them to not come forward and
pushed them back. This carried for
about
15-20
minutes.
If
the
investigating officer has not written
this in his statement, he cannot tell
the reason for it. He states to
suggestion that it is incorrect that
the accused persons are witnesses
against him in a case and due to
village enmity and political reasons
he is falsely implicating them.
Further he denies the suggestion
that he has not seen the incident
and on receiving information in the
morning he found the dead body of
his son Azad. He further states that
Raj Bahadur is his brother and it is
incorrect to state that he has not
taken name of the person going
with him but had stated that Brijesh
was going with him.

 22. P.W.-2 Dr. Somnath was
posted on postmortem duty on
11.07.2001 at V.H.M., Kanpur
Nagar. On that date he conducted
the postmortem examination of
Azad Yadav aged about 27 years.
The injuries as noted by the doctor
have already been mentioned above
and
as
such
are
not
being
mentioned
herein
as
being
repetitive.

In his cross-examination he
stated that there were 15 piercing
injuries in all. He further stated that
the injuries could have been caused
by a hasia or any pointed weapon if
it is used in a straight manner. He
further states that the incised
wounds could have been caused by
one weapon. They are likely to
have been caused by a knife. He
clarifies further after being recalled
that in the postmortem in column
of
date
he
has
incorrectly
mentioned 07.11.2001 in place of
11.07.2001 and further in the
column relating to the death he has
wrongly mentioned 09.11.2001 in
place of 09.07.2001.

 23. P.W.-3 Virendra is the son of
the first informant Babu and elder
brother of the deceased Azad. His
testimony is on the basis of hearsay
evidence.
He
states
that
the
incident is of 09.07.2001 at about
11 pm. He was at his house.
Around 03 months ago his brother
Narendra had a fight on Sidhi Itara.
The fight was with Topilal @
Dinesh the grandson of Harinam
with regards to the fact that he was
taking milk of Desi Darji and his
father had a due of Rs. 50/- on him.
Topilal had demanded the money at
Sidhi Itara Bazar. His brother
Narendra said if Desi Darji tells
him to give money then he would
give him. Narendra was beaten by
Topilal after which Narendra also
beat him. He states that on
09.07.2001 at about 8 pm when he
and other persons were filling milk
then all the accused came in his
house and entered inside and
started assaulting everyone. They
apologized to them but his brother
did not. His brother had brought
milk from Sone Gadaria. Lalli
Singh caught hold of the hand of
his brother and said that whoever
has named him as Azad, he would
216 INDIAN LAW REPORTS ALLAHABAD SERIES
be finished. His father was sitting
outside
the
house
and
after
sometime all the accused persons
were seen going towards his field
on
which
his
father
became
suspicious and his father took his
uncle Bahadur with him and went
towards the field where they saw
all the accused persons assaulting.
When his father came back home
then he told them that Azad has
been murdered. In the morning his
father lodged a report at Police
Station Bidhnoo. Due to the said
enmity
his
brother
has
been
murdered.

In his cross-examination he
states that his brother Azad had
gone to the tube-well at about 9
pm. He did not see the accused
going to the tube-well. His father
saw them going. He saw the
accused coming to his house in the
evening but after that did not see
them going anywhere. When his
father and uncle Bahadur went he
was sleeping. He states that he was
at the house and sleeping. His
father came to the house at about
12 midnight and woke him up and
told him about the incident. He
lives in a separate house from his
father but the same is also besides
the house. His father told him that
the accused persons have murdered
Azad and told him about their
names. As there was no facility of
conveyance, report could not be
lodged on the same day. On the
next morning he went with his
father for getting a report lodged
along with uncle Shyam Bahadur.
He states that he did not tell the
Investigating Officer that in the
morning when his father and uncle
came home then they told him that
Azad has been murdered. He states
that he had told the Investigating
Officer that there is a suspicion that
the persons who had come in the
evening have murdered his brother.
He went at the place of occurrence
later. He is not an eye-witness of
the incident. He states that when
his father told him of the incident
in the night he did not tell to
anyone in the village. People
gathered in the morning. He did not
see his father and uncle going
towards the field. The incident has
been witnessed by Ghanshaym and
his brother Vishram Singh. He
states that it is incorrect that he is
giving evidence against the accused
since they are witnesses against
them.
He
further
denies
the
suggestion that his father and uncle
went to the place of occurrence at
11 p.m. and came back in the
morning. He states that he did not
give the statement to the Investigating
Officer that his father and uncle when
came back in the morning then told
him that Azad has been murdered.
The said fact was told to him in the
night. He had told the Investigating
Officer about the names of the
persons involved in the incident three
months back. He had told the name of
Topilal but did not tell the name of
anyone else. He told the Investigating
Officer that the persons who had
fought three months back have been
murdered. He is giving evidence on
the basis of information given to him
by his father and uncle.

 24. P.W.-4 Chandra Prakash is
the Head Constable who lodged the
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
217
first information report, prepared
its chik and also prepared the
corresponding GD of it. He states
that the original GD of the same
has been weeded out, a report of
which has been given by the
Record
Keeper,
Police
Office
which has been filed by him and
marked as Exb: Ka-4. He proves
the said documents and also proves
the writing of Constable Kaushal
Kishore.

 25. P.W.-5 Dalchandra is the
Investigating Officer of the matter.
He states that after lodging of the
first information report he took up
the
investigation
himself
and
proceeded
to
the
place
of
occurrence. He investigated the
spot. The inquest on the body of
the deceased was conducted and
the relevant papers were prepared
after which the dead body was
sealed and sent for postmortem
examination. The plain earth blood
stained earth, plain rope of cot and
blood stained cot rope were taken
into custody and a memo of the
same was prepared. A pair of hawai
chappal of the deceased was also
taken into possession and a memo
of the same was prepared. In the
presence of the informant he
investigated the place of occurrence
and prepared the site plan. He then
recorded the statement of witnesses
of inquest and that of other
witnesses. He then raided the house
of the accused. The material as
collected
from
the
place
of
occurrence was sent by him to the
Forensic Science Lab and a report
of the examination was received
which is on record. On 16.07.2001
accused
Harnaam
Singh
was
arrested by him and his statement
was recorded. On 22.07.2001 the
accused Lalli Singh and Pappu
were arrested and their statements
were recorded. Both the accused
gave their confessional statements
under Section 164 Cr.P.C. for
which they were sent to the court
concerned and their statements
were recorded. He then states to
have conducted an inspection of the
place of occurrence on the basis of
pointing out of the accused and
their confessional statement and
prepared the site plan of it which is
Exb:
Ka-15.
On
23.07.2001
accused Lalli Singh, witness Ram
Asrey, Neta @ Virendra, Shivram,
Gautam, Awdhesh and Pramod
Pandey were interrogated and their
statements
under
Section
164
Cr.P.C. were recorded. He states of
filing of two charge-sheets which
are
dated
05.08.2021
and
20.09.2021. The details of the
charge-sheets
have
also
been
mentioned above.

In his cross-examination he
states that the place from where he
collected the blood stained earth,
the plain rope of cot, blood stained
rope of cot and one pair of chappals
is shown in the site plan dated
10.07.2001 which is Exb: Ka-13. It
is the place where the tube-well of
the informant is situated. On
22.07.2001 he states to have
prepared another site plan which is
of the place of murder of the
deceased Azad. The place where
murder was committed is the field
of Monau Kumar. He did not get
any blood stained earth at the said
218 INDIAN LAW REPORTS ALLAHABAD SERIES
place. The place where the body
was thrown after murder is situated
at about 92 steps away. He states
that he interrogated the informant
Babu in a question answer form
and in the first question he asked
about Shiv Nath Yadav and Pappu
Yadav etc. coming out of his house
in the evening and having a fight
there on which he stated that Shiv
Nath Yadav, Chalu Yadav and
Lalli Yadav had come. On asking
the names of the accused he stated
that he has named all since he has
enmity with them. He further states
that during investigation he finds
the name of Harnaam Singh, Indra
Bahadur Singh, Ghanshaym Singh
and Virendra Singh to be false and
as such did not charge-sheet them.

In his cross-examination he
states that Jhande Singh, Pappu,
Shivnath, Ramchandra @ Chalu
were not stated to have participated
in the incident and to have been
present
therein.
He
states
of
recording the statement of Virendra
on 14.07.2001. He states that the
statement of Lalli Singh and Jai
Karan Singh was recorded under
Section 164 Cr.P.C. by the IVth
Metropolitan Magistrate. He states
that he and the Metropolitan
Magistrate were of the same batch
and for one year worked in the
police department. He denies the
suggestion that on his saying
without the accused giving their
confessional
statement
the
Magistrate concerned has written
their statements in his chambers in
the presence of the said witnesses
as they were known to each other
and then the accused were made to
sign on it and the accused persons
have not given any statement
before the Magistrate concerned.

 26. P.W.-6 Ram Aasrey is a
resident of the same village as that
of the first informant. He states that
in the night at about 12 midnight he
and Neta @ Virendra were going
for making a call to Unnao where
his relatives live. At the side of the
road beneath a mango tree some
people were talking on which he
flashed his torch and saw 07 people
namely Shiv Nath Yadav, Pappu,
Jhande, Chahlu, Lalli, Jai Karan,
Jhallar. They were conversing that
if anyone tells about this murder
then they will also let him meet the
same fate. Due to fear he and the
other person came back. In the
morning they came to know in the
village that Azad Yadav has been
murdered in the night. On hearing
about it he reached the place of
occurrence where he saw the
mother of the deceased crying and
saying that Shiv Nath Yadav,
Pappu,
Jhande,
Chahlu
have
murdered her son. He gave his
statement
to
the
Investigating
Officer and also in the Court. Shiv
Nath Singh was carrying a barchi
in his hand, Jhande and Chahlu
were also carrying barchi and
Pappu
was
carrying
a
torch.
Whatever he had heard the accused
talking, he told the father of Azad
about it.

 In his cross-examination he states
that he had seen the accused
persons about four fields away
from the tube-well of Azad. He told
the father of Azad about the
incident of the night at his door. He
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
219
did not give torch which he was
carrying
to
the
Investigating
Officer
and
neither
did
the
Investigating Officer see it. He
even did not ask for it from him.
He did not show the tree where the
accused
were
talking
to
the
Investigating
Officer
as
the
Investigating Officer told him that
he has seen it. He states that he did
not see the incident and cannot tell
as to who committed the incident.
He states to have given his
statement
under
Section
164
Cr.P.C. on the saying of the
Investigating Officer. He had given
the same statement under Section
164 Cr.P.C. as to what he had
given to the Investigating Officer.
He denies the suggestion that since
he has enmity with the accused he
is giving a false evidence.

 27. P.W.-7 Gautam Dhanuk is a
resident of the same village as that
of the first informant / P.W.-1 and
his house is situated near the house
of the informant. He states that on
the day of incident at about 8-9 pm
he heard shouts and abuses at the
house of Babu Yadav. On hearing
the same he went there. The lantern
was burning at the place. He saw
people fighting there but there were
no talks with regards to Azad. The
said witness was declared as hostile
by the trial court.

In his cross-examination he
states that he did not see Jhande
Yadav, Chalu Yadav, Shiv Nath
Yadav and Pappu Yadav at the
door of Babu Yadav abusing. Lalli
Yadav was also not present there.
His statement was recorded by the
Investigating Officer. He had told
him about the incident of abusing.
He had told him that they were
saying that Azad had not returned
the money and insults them and
they would see him. He states that
on the next date he came to know
that Azad has been murdered but
he did not see it himself. He denies
his statement as produced before
him under Section 164 Cr.P.C. and
states that he did not give any such
statement.

 28. P.W.-8 Awdhesh Trivedi is
also a resident of the same village
as that of the first informant / P.W.-
1. He states that accused Pappu
Yadav has died. He further states
that on 15.07.2001 at about 5 pm
accused Jhande, Shiv Nath, Chalu
and Pappu did not come to him and
neither did they talk of anything
about the murder of Azad with him
and also did not tell him about
collectively murdering with Jhallar,
Lalli Singh and Jai Karan. The said
persons did not ask for any help
from
him.
This
witness
was
declared hostile.

In his cross-examination he
states that he came to know that
Azad has been murdered. He states
that the Investigating Officer did
not enquire anything from him
about the murder. He denies that
any such statement under Section
164 Cr.P.C. was recorded in Court
on
25.07.2001.
On
being
confronted with the said statement
he states that he did not sign on the
said pages before the Magistrate
but the Investigating Officer got
him signed on the papers. He
220 INDIAN LAW REPORTS ALLAHABAD SERIES
completely denies of recording of
any such statement under Section
164 Cr.P.C.

 29. P.W.-9 Virendra @ Neta is
also a resident of the same village
as that of the first informant / P.W.-
1. He states that on 09.07.2001 he
was not present in his village. On
the said night Azad was murdered.
He did not hear the accused
persons talking and conspiring for
the murder of Azad. He did not see
them. He was declared hostile by
the trial court.

In his cross-examination he
states that he is illiterate. On
showing
his
statement
under
Section 164 Cr.P.C., he states that
he does not know as to who has
affixed his thumb impression on it.
He denies giving any statement
before the Magistrate.

 30. Shiv Shankar Verma was
produced as C.W.-1 who testifies
regarding death of the accused
Harnaam Singh. He is a police
personnel who at the time of the
incident was posted at the Police
Station Bidhnoo. He states that a
report was called for regarding the
death of Harnaam Singh and after
taking a certificate from the Village
Pradhan a report was sent to the
court about it. In the said report it
was
mentioned
that
accused
Harnaam Singh Sengar has died on
29.05.2007.

 31. Pramod Kumar Pandey
C.W.-2 is a resident of the same
village as that of the first informant
/ P.W.-1. He states that he knows
the deceased. He states that he does
not know when the present incident
took place. He further states that he
does not know anything about
murder of Azad and as to who
committed the same. He was
declared hostile by the trial court.

In his cross-examination he
states that he was not enquired by
the
Investigating
Officer.
His
statement
under
Section
164
Cr.P.C. was shown to him to which
he states that he did not give any
such statement. He states that he
does not know as to when and how
the
Investigating
Officer
has
recorded the same. To a suggestion
that he has colluded with the
accused, he denies the same.

 32. The accused in their
statements
under
Section
313
Cr.P.C.
denied
the
entire
prosecution case and stated of
being falsely implicated in the
matter due to enmity. They state
that the witnesses are giving
testimony against them due to
village party bandi.

 33. The accused namely Lalli
Singh, Jai Karan Singh and Jhallar
whose statements under Section
164 Cr.P.C. have been recorded
have denied the entire investigation
and also stated of false implication.

 34. The trial court thus after
recording of the evidence has
convicted the accused persons as
stated above.

 35. Heard Shri Bimla Prasad,
Shri Ashutosh Pandey, Shri Rajesh
9 All. Jhande Yadav @ Jhundu @ Shiv Kumar Vs. State of U.P.
221
Mishra,
Shri
Mritunjay
Datt
Tiwari, Shri Awadh Bihari Pandey,
learned counsels for the respective
accused-appellants, Shri Rakesh
Dubey, learned counsel for the
complainant/first
informant
and
Shri
Jitendra
Kumar
Jaiswal,
learned A.G.A. for the State in all
the criminal appeals and perused
the record and also the trial court
records.

 36. Learned counsels for the
appellants submitted as under:

i) The appellants have been
falsely implicated in the present
case.

ii)
The
implication
of
Shivnath Yadav, Babu Yadav,
Chaloo Yadav @ Ram Chandra @
Balwan and Jhande Yadav @
Jhandu @ Shiv Kumar in the
present matter is an afterthought as
the same has seen the light of the
day during investigation. They are
not named in the First Information
Report.

iii)
The
accused
Indra
Bahadur Singh, Ghanshyam Singh,
Harnam Singh and Virendra Singh
were exonerated by the police as
they were found to be falsely
implicated who were later on
summoned
under
Section
319
Cr.P.C.
vide
order
dated
06.01.2004 of the court concerned.
Their implication thus in the
present matter is also false as the
Investigating Agency did not find
them involved in the matter.

iv) PW-1 Babu Yadav the
first informant and father of the
deceased Azad Yadav is a totally
non reliable witness. He did not see
the occurrence. He although states
to have followed the accused
persons with his brother Raj
Bahadur but in his statement in
Court he initially states that he
went to the place of occurrence
with his son Virendra but later on
states that he called Raj Bahadur
and went with him. His movement
and the person accompanying him
is in variance.

v) There is an inordinate
delay in lodging of the FIR
inasmuch as the incident is stated
to have taken place on 09.07.2001
at about 11:00 pm but the FIR was
lodged on 10.07.2001 at 07:45 am
by PW-1 Babu Yadav wherein the
distance
from
the
place
of
occurrence and the police station is
only 12 kilometres.

vi) The conduct of PW-1 is
totally an unnatural conduct.