# Kali Shanker & Ors v. State of U.P

- **Citation:** (2025) 11 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-10
- **Case number:** Criminal Appeal No. 853 of 1983
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kali-shanker-ors-v-state-of-u-p-52863
- **Pages:** 31

## Headnote

A.G.A.

Issue for Consideration
Matter pertains to determination of "which party
was aggressor and what was the immediate
cause of the trouble leading to unfortunate
death of three persons", effect of suppression of
injuries and death on the accused side,
correctness of conviction under Ss. 147, 148
and 302/149 IPC, appreciation of cross FIRs,
credibility of eyewitnesses, and entitlement of
accused to benefit of doubt.

Headnotes
Indian Penal Code, 1860 - Ss. 147, 149,
302 - Conviction for murder and rioting -
Criminal Trial - Cross FIRs - Suppression
of injuries on accused side - Effect -
Unlawful Assembly - Proof of common
object - Failure to establish - Murder -
Appreciation of ocular, medical and siteplan evidence - Right of Private Defence -
When attracted - Benefit of doubt -
Prosecution
suppressing
genesis
of
occurrence - Related witness - Evidentiary
value.

Held: The prosecution having "deliberately not
disclosed the death of Uma Kant and injury of
the
accused
Surya
Kumar"
and
having
"suppressed the genesis of the incident", failed
to establish "which party was aggressor and
what was the immediate cause of the trouble" -
the
"place
of
occurrence
is
not
clearly
established", and "no motive or immediate
cause has been shown for the gathering of all
the accused persons"- consequently Ss. 147,
148 and 149 IPC are not attracted, and "all
these circumstances show that the story in FIR
No. 321 of 1979 is correct whereas Case Crime
No. 321-A of 1979 is false"- prosecution case
suffers
from
material
contradictions,
concealment
of
injuries,
and
doubtful
investigation - therefore, the accused-appellants
are entitled to benefit of doubt and acquittal.
(Paras 41,42,43,45) (E-7)

Case Law Cited
State of Uttar Pradesh v. Lalla Singh and Others,
MANU/SC/0154/1977; Chuhar Singh v. State
of Haryana, MANU/SC/0102/1975; Nandalal
Versus State of Chhattisgarh, 2023 SCCOnline
SC 362; Lakshmi Singh v. State of Bihar,
(1976) 4 SCC 394; Ramesh Baburao Devaskar
vs State of Maharashtra, (2004) 13 SCC 501;
Parasuram versus State of MP, Criminal
Appeal No.524 of 2021.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973.

List of Keywords
Marpeet; Cross FIR; Aggressor; Enmity; Firearm
injuries; Blackening; Tattooing; Charring; Nonexplanation of injuries; Genesis of the incident;
benefit
of
doubt;
unlawful
assembly;
suppression of genesis right of private defence;
place of occurrence; shock and haemorrhage.

Case Arising From
CRIMINAL
APPELLATE
JURISDICTION:
Judgment and order dated 31.03.1983 passed
by the VIIIth Additional District & Sessions
Judge, Kanpur in Sessions Trial No. 53 of 1980
and Sessions Trial No. 480 of 1980, arising out
of Case Crime No. 321-A of 1979, Police Station
Sheoli, District Kanpur.

Appearances for Parties
Advs. for the Appellants:
Abhinav Dwivedi, Akhilesh Chandra Shukla,
Arjun Singh Yadav, Jyoti Verma, K.D. Tiwari,
Mayank Bhushan Nath Tripathi, Ram Chandra
Singh,
Ravi Sahu, Shailendra Kumar Awasthi, Sheel
Kumar Ojha,
Shyam Singh, Sunil Vashisth, Vijay Prakash
Pandey
Advs. for the Respondents:
A.G.A.

## Text

_Characters 0–39,991 of 107,426. This is a partial read: ask again with offset=39991 for what follows._

11 All. Kali Shanker & Ors. Vs. State of U.P.
45
eyewitness though the prosecution has
brought home the guilt of the accused.'"

(69) A Three Judges Bench of the
Hon'ble Supreme Court in the case of
Shatrughna Baban Meshram Vs. State of
Maharashtra; (2021) 1 SCC 596 has also
taken similar view in an identical case.

(70) In view of above, in a case based
on circumstantial evidence, in which,
offence is under Section 376 I.P.C. with
Section 302 I.P.C., though the death
penalty can be awarded in the 'rarest of
rare', but normally imprisonment for life
without any remission may be awarded,
unless death sentence is inevitable. Dealing
with the 'aggravating' and 'mitigating'
circumstances, Court may choose to give
primacy to life imprisonment over death
penalty after making an inquiry for
enabling the consideration of the facts
mentioned in the aforesaid cases.

(71) Adverting to the facts of the
present
case,
which
is
based
on
circumstantial evidence in regard to the
offences under Sections 376 and 302 I.P.C.
and the convict/appellant was aged about 27
years at the time of incident having a child
of 3-4 years and though the learned trial
Court has considered the circumstances in
detail but without any report of Probation
Officer,
Jail
Administration
and
Psychologist of evaluation and there is no
criminal history of the convict/appellant and
there is no evidence that offence was
committed with pre-meditated mind, this
Court is of the view that the death penalty is
liable to be commuted to life imprisonment
till the natural life of convict/appellant
without remission.

(72) In view of above, Criminal
Appeal No. 1626 of 2021 filed by the
convict/appellant is partly allowed. The
conviction of the convict/appellant for the
offences punishable under Section 302
I.P.C., 364 and 376 (Ka)(Kha) I.P.C. and
Section 6 of POCSO Act, 2012 is upheld
and the sentence awarded to him under
Section 364 I.P.C. is confirmed. However,
the
death
sentence
awarded
to
the
convict/appellant for the offences under
Section 302 I.P.C. and under Section
376(ka)(kha) I.P.C. read with Section 6
POCSO Act, 2012 are commuted to that of
life imprisonment for his natural life
without remission.

(73) Other terms of the sentence
awarded to the convict/appellant including
fine awarded with default stipulation also
stands confirmed.

(74)
Consequently,
reference
in
Capital Case No. 4 of 2021 made by the
learned trial Court is not confirmed.

(75) Let a copy of this judgment and
the original record be transmitted to the
trial
Court
concerned
forthwith
for
necessary information and compliance.
----------
(2025) 11 ILRA 45
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 853 of 1983

Kali Shanker & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
46 INDIAN LAW REPORTS ALLAHABAD SERIES
Abhinav Dwivedi, Akhilesh Chandra Shukla,
Arjun Singh Yadav, Jyoti Verma, K.d.
Tiwari, Mayank Bhushan Nath Tripathi,
Ram Chandra Singh, Ravi Sahu, Shailendra
Kumar Awasthi, Sheel Kumar Ojha, Shyam
Singh, Sunil Vashisth, Vijay Prakash Pandey

Counsel for the Respondent:
A.G.A.

Issue for Consideration
Matter pertains to determination of "which party
was aggressor and what was the immediate
cause of the trouble leading to unfortunate
death of three persons", effect of suppression of
injuries and death on the accused side,
correctness of conviction under Ss. 147, 148
and 302/149 IPC, appreciation of cross FIRs,
credibility of eyewitnesses, and entitlement of
accused to benefit of doubt.

Headnotes
Indian Penal Code, 1860 - Ss. 147, 149,
302 - Conviction for murder and rioting -
Criminal Trial - Cross FIRs - Suppression
of injuries on accused side - Effect -
Unlawful Assembly - Proof of common
object - Failure to establish - Murder -
Appreciation of ocular, medical and siteplan evidence - Right of Private Defence -
When attracted - Benefit of doubt -
Prosecution
suppressing
genesis
of
occurrence - Related witness - Evidentiary
value.

Held: The prosecution having "deliberately not
disclosed the death of Uma Kant and injury of
the
accused
Surya
Kumar"
and
having
"suppressed the genesis of the incident", failed
to establish "which party was aggressor and
what was the immediate cause of the trouble" -
the
"place
of
occurrence
is
not
clearly
established", and "no motive or immediate
cause has been shown for the gathering of all
the accused persons"- consequently Ss. 147,
148 and 149 IPC are not attracted, and "all
these circumstances show that the story in FIR
No. 321 of 1979 is correct whereas Case Crime
No. 321-A of 1979 is false"- prosecution case
suffers
from
material
contradictions,
concealment
of
injuries,
and
doubtful
investigation - therefore, the accused-appellants
are entitled to benefit of doubt and acquittal.
(Paras 41,42,43,45) (E-7)

Case Law Cited
State of Uttar Pradesh v. Lalla Singh and Others,
MANU/SC/0154/1977; Chuhar Singh v. State
of Haryana, MANU/SC/0102/1975; Nandalal
Versus State of Chhattisgarh, 2023 SCCOnline
SC 362; Lakshmi Singh v. State of Bihar,
(1976) 4 SCC 394; Ramesh Baburao Devaskar
vs State of Maharashtra, (2004) 13 SCC 501;
Parasuram versus State of MP, Criminal
Appeal No.524 of 2021.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973.

List of Keywords
Marpeet; Cross FIR; Aggressor; Enmity; Firearm
injuries; Blackening; Tattooing; Charring; Nonexplanation of injuries; Genesis of the incident;
benefit
of
doubt;
unlawful
assembly;
suppression of genesis right of private defence;
place of occurrence; shock and haemorrhage.

Case Arising From
CRIMINAL
APPELLATE
JURISDICTION:
Judgment and order dated 31.03.1983 passed
by the VIIIth Additional District & Sessions
Judge, Kanpur in Sessions Trial No. 53 of 1980
and Sessions Trial No. 480 of 1980, arising out
of Case Crime No. 321-A of 1979, Police Station
Sheoli, District Kanpur.

Appearances for Parties
Advs. for the Appellants:
Abhinav Dwivedi, Akhilesh Chandra Shukla,
Arjun Singh Yadav, Jyoti Verma, K.D. Tiwari,
Mayank Bhushan Nath Tripathi, Ram Chandra
Singh,
Ravi Sahu, Shailendra Kumar Awasthi, Sheel
Kumar Ojha,
Shyam Singh, Sunil Vashisth, Vijay Prakash
Pandey
Advs. for the Respondents:
A.G.A.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)
11 All. Kali Shanker & Ors. Vs. State of U.P.
47

1. Heard Sri Akhilesh Chandra Shukla,
learned
counsel
for
appellant
no.4
(Rajendra), appellant no.5 (Bimal Kumar),
appellant no.7 (Surya Kumar), appellant
no.8 (Ashok Kumar), appellant no.9
(Bhaiyalal), appellant no.10 (Anant Ram)
and Sri Abhinav Dwivedi, learned counsel
for appellant no.11 (Pratap Narain) and Sri
Amit Sinha, learned A.G.A. for the State.

2. The instant criminal appeal has been
preferred against the judgment and order
dated 31.03.1983, passed by the VIIIth
Additional District & Sessions Judge,
Kanpur, in Sessions Trial No. 53 of 1980
and Sessions Trial No. 480 of 1980,
whereby
the
accused-appellants
were
convicted under Sections 147, and 302/149
of the Indian Penal Code. The accused,
Shiv
Kumar,
Rajendra
Prasad,
Kali
Shanker, Bimal Kumar, Deo Narain, Pratap
Narain, Ashok Kumar, Bhaiyalal @ Raja,
Anant Ram, Shiv Narain and Surya Kumar
were convicted under Sections 302/149 IPC
and
sentenced
to
undergo
life
imprisonment. They were also convicted
under Section 147 IPC and sentenced to
one year rigorous imprisonment. Both the
sentences are directed to run concurrently.
Out of 11 convicted person, appellants,
Kali Shankar, Shiv kumar Shukla, Dev
Narayan and Shiv Narain died during
pendency of present appeal and appeal was
dismissed as abated qua these appellants.
Six accused/appellants Anant Ram, Bimal
Kumar, Rajendra Prasad, Pratap Narain,
Surya Kumar, Ashok Kumar and Bhaiyalal
are stated to be surviving.

3.
In
above
stated
consolidated
sessions trials, as many as twenty accused
were tried by the learned trial Court, out of
whom
eleven
accused
persons
were
convicted and sentenced and nine accused
persons, namely, Ram Kumar, Surendra
Kumar, Pramod Kumar, Bhoop Narain, Raj
Narain, Thakur Prasad, Jagdish, Gajendra
and Virendra Kumar were acquitted of all
charges on being given the benefit of
doubt. One named accused Umakant was
deceased in cross FIR.

4. These sessions trials have arisen out
of Case Crime No.321-A of 1979, under
Sections 147, 148, 149, 307 and 302 I.P.C.,
Police Station Sheoli, District Kanpur.

5. Factual matrix of the case, in brief,
is that the informant, Shiv Kumar Tiwari
s/o Shyam Sundra Tiwari r/o Village
Mavaiya, District Kanpur Dehat lodged an
FIR on the basis of written report at Police
Station Sheoli, District Kanpur Dehat on
09.12.1979 at 7:30 p.m. with averments
that his co-villagers, namely, Shiv Narayan
Shukla, Shiv Kumar, Kali Shanker etc. had
previously been convicted for the offence
under Section 307 I.P.C. for assaulting him,
his father, his brother and Kripa Shanker
(Gram
Pradhan).
These
persons
had
pricked up a quarrel with him and his
family members by making aggression at
his house situated at Mohalla Raipurwa,
District Kanpur City, in which, informant's
side had defended themselves. A litigation
was also ongoing amongst these persons
and the informant with regard to land
dispute. He resides in his house at
Mavaiyya, which was also vacated from
illegal possession of Shiv Kumar s/o Matru.
Shiv Kumar and others were bent upon
eliminating his family due to this enmity.
On 09.12.1979, at around 4:00 p.m., his
brother, Kripa Shanker had called Mahavir
Shukla through his son, Vasudev to get the
bail of one Jai Narayan. His brother was
standing at the Chabutra of Devi Ji in the
village and Mahabir also followed Vasudev
when they reached near the Chabutra of
Devi Ji in the village, suddenly, Kali
48 INDIAN LAW REPORTS ALLAHABAD SERIES
Shanker, Uma Kant @ Chhunna, Deo
Narayan, Shiv Kumar and others, who were
twenty one in number, emerged armed with
lathi, Ballam, Kanta, knife, bankaand
countrymade pistol and surrounded his
brother, Kripa Shanker. They started
abusing and beating him. Vasudev also
came there and he told them not to assault
his father and thereafter, he rushed to his
house and brought his gun in order to
defend his father, but Surya Kumar and
Shiv Narain caught hold of Vasudev and
tried to snatch the gun and in the process of
snatching of gun, which was loaded, fire
broke out. Kali Shanker snatched the gun
from Vasudev and all accused persons
attacked Vasudev and Kripa Shanker with
intention to kill them, lifted them and
brought them inside the house of Shiv
Kumar Shukla, where they assaulted. The
noise was emanating from the house of
Shiv Kumar that kill them, it is quite
possible that both the injured, namely
Vasudev and Kripa Shanker would have
been killed by accused persons. This
incident was witnesses by Beni Prasad,
Pooran, Daya Ram, Ram Sawaroop, Kishan
Prasad and others. The aforesaid accused
persons assaulted his brother and nephew
in a planned manner by gathering their
relatives from city and villages. They
attacked them by lathi, Ballam, Kanta,
knife and banka. This incident has created a
state of terror in the village. Girdhar, has
any how, fled away from the spot and
narrated
the
incident
to
him
and
information is being filed on the basis of
his utterances. As many as 21 accused
persons were named in the FIR.

6. The written report in connection
with Crime No.321A of 1979 was lodged
by P.W.-4 (Shiv Kumar Tiwari) by written
report Ex.Ka-2 authored by him on the
basis of eyewitness account of the incident
received
from
P.W.-4
Awadhesh
@
Girdhar (P.W.2). Another FIR, which
appears to be a cross version was lodged at
the instance of accused, Shiv Kumar
Shukla on same day at 7:00 p.m. prior to
lodging of present FIR against Vasudev
(deceased), Kripa Shanker (deceased),
Girdhar, Mahavir Shukla and Venkatesh
Narain, vide Case Crime No.321 of 1979,
under Sections 147, 148, 149 and 302
I.P.C. In his written report, the informant,
Shiv
Kumar
Shukla
stated
that
on
05.12.1979, an altercation took place
regarding the taking of water from his field.
During this incident, the accused assaulted
his son and wife. The informant received
this information in Kanpur through his
nephew, Pramod Kumar. Consequently, he
returned to his village, Mavaiyya, on
08.12.1979 along with his younger brother,
Ram Kumar. Upon arriving in the village,
he came to know that Mahavir Shukla and
Vasudev Tiwari had assaulted his wife and
son, as well as abused and threatened them.
On 09.12.1979, while he was explaining an
earlier incident to his sons along with his
brother, Ram Kumar, at around 4:00 p.m.,
Uma Kant Shukla came to his house along
with Surya Kumar Tripathi, Ashok Kumar
Tripathi, Vimal Kumar Shukla, and Annat
Ram Shukla to ask him about travelling to
Kanpur.
Shortly
thereafter,
Mahadev
Tiwari @ Daroga, his younger brother,
Girdhar, his father Kripa Shanker, Mahavir
Shukla, and Venkatesh Narayan Mishra @
Munnu arrived at his house armed with
weapons. Vasudev was carrying licensed
gun of his father, Kripa Shanker. Girdhar
and Mahavir Shukla were carrying countrymade pistols and Venkatesh Narayan
Mishra and Kripa Shanker were armed with
lathi. They barged into his house, abusing
him, and opened fire. The shot fired from
the gun of Vasudev hit Umakant Shukla.
Mahavir also fired shot, which hit Surya
11 All. Kali Shanker & Ors. Vs. State of U.P.
49
Kumar. Girdhar also opened fire, but his
shot missed. Kripa Shanker and Venkatesh
Narayan exhorted the co-accused that
nobody should be spared. The informant
and others present there raised an alarm,
whereupon
Mahavir,
Girdhar,
and
Venkatesh Narayan started fleeing from the
spot. During the course of fleeing, the
country-made pistol of Mahavir came into
his hand, and these three persons succeeded
in making their escape. On hearing the
noise of firing and commotion, about 100
people assembled at the place. A large
number of people assembled on seeing the
dead body of Umakant got infuriatede and
caught hold of Kripa Shanker and Vasudev
and started beating them. The members of
public apprehended them during the course
of the incident and locked them in his
house. He went to the police station and
lodged the FIR, leaving them at the place of
the incident. The escape of the accused
persons was witnessed by Nanha Kachi,
Thakur Prasad, Deo Narayan, and other covillagers. A case was registered at police
station vide GD entry No.29 time 19:00
hours on 09.12.1979 (Ext. Ka-11).

7. Both the FIRs were investigated by
the police. The FIR lodged at the instance
of Shiv Kumar Tiwari was registered as
Case Crime No. 321-A of 1979, in which
the police submitted a charge-sheet against
all
21
named
accused
persons
for
committing
the
murder
of
Vasudev
Narayan and Kripa Shanker Tiwari in
connection with Case Crime No. 321A of
1979, and a final report was submitted in
favour of accused with regard to Case
Crime No. 321 of 1979 lodged at the
instance of Shiv Kumar Shukla, an accused
in persent case.

8.
After
conclusion
of
the
investigation, the learned Chief Judicial
Magistrate committed the case to the Court
of Sessions for trial on 06.02.1980. The
learned VIIIth Additional Sessions Judge,
Kanpur, framed charges as follows:

(i) Under Section 147 I.P.C.
against Ram Kumar, Anant Ram, Jagdish,
Virendra Kumar, Bhoop Narain and Pratap
Narain.

(ii) Under Section 148 I.P.C.
against Kali Shanker, Deo Narain, Sheo
Kumar, Rajendra, Gajendra, Chhunni @
Surendra, Pramod, Bimal Kumar, Thakur
Prasad, Sheo Narain, Surya Kumar, Ashok
Kumar, Raj Narain and Bhaiyya Din.

(iii) Under Section 302 read with
Section 149 I.P.C. against all twenty
charge-sheeted accused persons.

9. The prosecution examined P.W.1,
Dr. A.N. Singh, who conducted the postmortem examination of Kripa Shankar
(deceased), P.W.2, Awadhesh Kumar @
Girdhar, P.W.3, Dr. C.T. Meerpuri, who
conducted the post-mortem examination of
Vasudev (deceased), P.W.4. Shiv Kumar
Tiwari, the informant of Case Crime No.
321A of 1979, P.W.5, Pooran, P.W.6,
Dharmeshwar Singh, Head Moharrir, who
authored the chik FIR of Case Crime No.
321 of 1979, P.W.7, Rajju Prasad, who
carried the injured Vasudev in serious
condition to the hospital from the place of
incident and P.W.8, Salik Ram, who
carried the deceased Kripa Shankar and
Vasudev from the police station to the postmortem house.

10. C.W.1, Ram Shanker Mishra
(Investigating
Officer),
submitted
the
charge-sheet in the present case and the
final report in Case Crime No. 321 of 1979.
He had also conducted the inquest of the
50 INDIAN LAW REPORTS ALLAHABAD SERIES
dead body of Uma Kant (deceased in a
cross case), C.W.2, Nandjeet Singh, who
conducted the inquest on the dead bodies of
Kripa Shanker and Vasudev and C.W.3,
Radehy Shyam (Constable), produced the
exhibits at the FSL, Agra, for chemical
examination.

11. After conclusion of prosecution
evidence, the statement of accused persons
were recorded under Section 313 Cr.P.C.,
wherein
the
circumstances
appearing
against them in prosecution evidence were
explained. The accused persons claimed in
their statement under Section 313 Cr.P.C.
that prosecution version in the present case
is concocted and false and that the actual
incident is as mentioned in the FIR lodged
at the instance of accused, Shiv Kumar
Shukla, in the cross case. They also stated
that the witnesses had deposed falsely
against them due to prior enmity. The
accused, Surya Kumar stated that Girdhar,
from the informant's side of this case, had
fired a shot at him, which got missed and
Mahavir hit Surya Kumar in his right hand
fire shot by Uma Kant, who was present,
died on the spot. Surya Kumar was also
named in the report filed by Shiv Kumar
Shukla.

12. The accused persons examined
D.W.1, Dr. S.C. Prasad, Radiologist, who
proved the X-ray report of the accused,
Surya Kumar Tripathi, D.W.2, Dr. R.P.
Gupta, who proved the injury report of
Surya Kumar, D.W.3, Dr. D.K. Mathur,
who conducted post-mortem examination
of Uma Kant (deceased) in cross FIR and
D.W.4, Nanha, a witness of fact.

13. After the conclusion of the recording
of evidence, the learned trial court heard the
arguments of both sides and passed the
impugned judgment and order, whereby out
of the twenty accused persons, who were
charge-sheeted (one named accused, Uma
Kant, having died on the spot), eleven
accused persons are appellants before this
Court, and the trial court acquitted nine
accused persons, as stated above.

14.
Rama Shanker
Mishra
(SubInspector) started investigation. He went on
the spot. He took into possession blood
stained earth from house of Shiv Kumar
Shukla where Kripa Shanker and Vasudev
were found injured. He prepared a Fard,
which was signed by the witnesses in whose
presence, it was prepared, recorded the
statements of the witnesses, arrested some of
the accused and prepared site-plan. He sent
the blood stained earth to the Chemical
examiner on 12.01.1980.

15. The Panchayatnama of the deadbody of Kripa Shanker and Vasudev was
prepared by Nandiji Singh-S.I. The dead
bodies
were
sent
for
post
mortem
examination through constable and the post
mortem of the dead-body of Kripa Shanker
was conducted by Dr. A.N. Singh on
10.12.1979 at 3.30 P.M. He found the
following ante mortem injuries on a person of
Kripa Shanker:-

Injury No.1-Incised wound 3 cm
x 1/4 cm x muscle deep on the forehead
above the right eye brow.

Injury No.2-Lacerated wound
1/2 cm x 1/4 cm x skin deep on the right
upper eyelid.

Injury No.3-Incised wound 31/2
cm x 1/2 cm x fire cut right ear.

Injury No.4-Incised wound 2 cm
x 1 cm x bone deep below right ear with
lacerature under the temporal muscle.
11 All. Kali Shanker & Ors. Vs. State of U.P.
51

Injury No.5- Incised wound 1 cm
x 1/4 cm x muscle deep below chin.

Injury No.6-Incised wound 21/2
cm x 1 cm lower of the palm of the left
hand i.e. index finger metacarpal bone cut.

Injury No.7-Abrasion 1 cm x 1/2
cm on the back of right elbow.

Injury No.8-Abraded contusion
13 cm x 8 cm on the right shoulder top and
back with fracture of neck of right scapula.

Injury No.9-Contusion 12 cm x
16 cm on the right side of lower chest.

Injury No.10- Incised wound
11/2x 1/2 cm x bone deep on the middle of
front of right leg.

Injury No.11-Incised wound 21/2
cm x 1 cm x bone deep below injury No.10.

Injury No.12- Abraded contusion
9 cm x 1 cm on the outer of the right thigh
encircling it.

Injury No.13-Abrasion 11/2cm x
1/2 cm on below right petala.

Injury No.14-Abrasion 1 cm x 1
cm below left knee.

16. The cause of death was according
to him due to shock and haemorrhage as a
result of ante mortem injuries.

17. The post mortem of the dead-body
of Vasudev was conducted by Dr. C.T.
Meerapuri on 11.12.1979 at 11:30 a.m. and
he found the following ante mortem
injuries on his person.

Injury No-1 Incised wound 21/2
cm x 1 cm x scalp deep on right side
forehead, 3 cm above the outer part of right
eyebrow.

Injury No-2 Incised wound 31/2 x
11/2 cm x cavity legs deep over the back of
right ear.

Injury No-3 Abraded contusion 3
cm x 11/2 cm over right extend ear on front
side.

Injury No-4 Lacerated wound
11/2cm x 1/2 cm x scalp deep over right
parietal or temporal region temporal region
3 cm below right ear surrounded by
contused swelling 31/2 cm x 3 cm.

Injury No-5 Incised wound 11/2
cm x 1/2 cm x scalp deep or the occipital
region of head right side near mid-line.

Injury No-6 Lacerated wound
11/2 cm x 1/2 cm x scalp deep on left side
forehead upper part 4 cm above eyebrow.

Injury No-7 Stiched wound 11/2
cm x 3/4 cm x cavity deep over inner part
of left eye, margins of sound cut and
underlying eye ball also punctured.

Injury No-8 Incised wound 2 cm
x 1 cm x muscle deep over outer side left
eyebrow margins cut.

Injury No-9 Incised wound 3 cm
x 1/2 cm x scalp deep or left pavetel and
temporal region of head 5 cm below left
ear, directed down and out, wound oblique,

Injury No-10 Lacerated wound 2
cm x 1 cm scalp deep behind injury No.7.
52 INDIAN LAW REPORTS ALLAHABAD SERIES

Injury No-11 Lacerated wound 3
cm x 3/4 cm x bone deep over pavetal
region on the left side of mid -line.

Injury No-12 Abrasion 21/2 cm x
1 cm on right check.

Injury No-13 Incised wound 4
cm x 21/2 cm x bone deep over chin both
left on right side, under lying joint bone
partially cut.

Injury No-14 Contused swelling
in an area of 17 cm x 8 cm over right side
chest below nipple 5 cm in front and
auxiliary part with form abrasions of 1 cm
x 1/2 cm.

Injury No-15 Contusion 8 cm x 2
cm over abdomen both the sides above
umblicus.

Injury No-16 Contused swelling
6 cm x 3 cm on back and outer side of right
forearm upper part with two abrasions 11/2
cm x 1 cm and 2 cm x1 cm.

Injury No-17 Stiched wound 1
cm x 1/2 cm x 2 cm over inner side of left
elbow.

Injury No-18 Punctured wound
3/4 cm x 1/2 cm x 2 cm over back of left
hand near the root of little finger.

Injury No-19 Contused swelling
with multiple abrasion over the back of left
hand in an area of 7 cm x 6 сm.

Injury No-20 Lacerated wound 2
cm x 1/2 cm x skin deep with abrasion in
front of left leg.

Injury No-21 Abrasion 2 1/2 cm
x 1 cm over front of lower pert of left knee.

Injury No-22 Contusion 4 cm x 2
cm over front of chest middle lower part.

Injury No-23 Four abrasions
with contusion 6 cm x 2 cm over right side
wrist.

Injury No-24 Abraded contusion
2 cm x 1 cm on left side wrist.

Injury No-25 Brused swelling of
10 cm x 6m on left side beck middle part.

18. The cause of death was due to
shock and haemorrhage as a result of the
ante mortem injuries.

19.
The
sub-Inspector,
who
investigated the case, after investigation
submitted the Charge-sheet against the
accused, Kali Shanker and 14 other
accused. A separate charge-sheet was
submitted against the accused Gajendra,
Anant Ram, Virendra Kumar, Shiv Narain
and Surya Kumar. Both the cases emerging
from charge-sheets were consolidated and
Sessions Trial No.53/1980 was made the
leading case.

20. The accused pleaded not guilty tot
he charge. The defence version is that on
09.12.1979, while Shiv Kumar Shukla was
persuading his children not to indulge in
petty quarrel and thereafter at about 4:00
P.M., Surya Kumar, Ashok Kumar and
others came to his father to enquire about
their departure to Kanpur. Vasudev Tewari
alias Daroga, Girdhar, Kripa Shanker,
Mahavir and Venketesh Narain came there.
Vasudev alias Daroga was armed with
licensed gun of his father and Girdhar was
armed with pistol and rest had lathies.
Vasudev fired the gun, which hit Uma Kant
and he died on the spot. Mahavir also fired
a shot by his Pistol at Shiv Narain. Girdhar
11 All. Kali Shanker & Ors. Vs. State of U.P.
53
also fired, but it got missed. Kripa Shanker
and Venketesh Narain instigated each other
to kill them. The complainant and the
others grappled them to avoid further harm
to their persons. Hearing hue and cry, a
large number of villagers came there and
they were enraged seeing the dead-body of
Uma Kant. They assaulted Kripa Shanker
and
Vasudev. Mahavir,
Girdhar
and
Venketesh Narain ran away but the Pistol
of Mahavir was Snatched, the villagers
took the injured Kripa Shanker and
Vasudev into the house of Shiv-Kumar,
who had proceeded to the Police Station
and lodged a report. A case was registered
vide Case Crime No.321 of 1979 at 7:00
p.m. on 09.12.1979 and Sub-Inspector left
the
Police-Station
at
7.30
P.M.
immediately. He prepared Panchayatnama
of the dead-body of Uma Kant alias
Chhunna, Chalan Nash and Photo Nash and
sent the deadbody for postmortem through
two constables. He collected sample of
blood stained and simple earth from near
the dead body of Uma kant. The defence
case is that the accused had been falsely
implicated due to this report lodged at the
instance of accused side.

21. It is admitted that the two persons
on behalf of the informant's side Kripa
Shanker and Vasudev were killed and one
Uma Kant from the accused side was
killed. It is also admitted that the
occurrence had taken place on 09.12.1979
at about 4:00 P.M. According to the
prosecution, the accused having armed with
lathi, Kanta, Banka, Ballam, Knives and
pistol surrounded Kripa Shanker (Pradhan)
and murdered him and they also murdered
Vasudev, whose gun was being snatched by
the accused and it fired and hit Uma Kant
accidentally, whereas according to the
defence, Surya Kumar, Ashok Kumar had
come to the house of Shiv Kumar Shukla
and
Vasudev
Tewari,
Girdhar
Kripa
Shanker, Mahavir, Venketesh came there
and they beat Uma Kant and Murdered
him. After having caused the death of Uma
Kant, a large number of persons came and
they assaulted Kripa Shanker and Vasudev,
and so, it is admitted that Marpeet had
taken place on the day of occurrence. The
important point for determination in this
case is as to which party was aggressor and
what was the immediate cause of the
trouble leading to unfortunate death of
three persons. It appears that the relations
between the deceased Kripa Shanker,
Vasudev and the accused were inimical.
The litigations were going on since 1949
and both the parties were at daggers drawn.
It was contended on behalf of the accused
that there was a compromise in 1977 in a
case lodged at the instance of deceased
Vasudev
@
Daroga
under
Section
147/323/325 IPC against Kali Shanker and
four others in the year 1977 but the cross
version of the defence and the suggestions
made in the cross-examination of witnesses
of fact clearly show that it is admitted that
the relations between the deceased and the
accused were strained one. According to
the prosecution, 7 or 8 days before this
occurrence.

22.
D.W.1,
Dr.
H.C.
Prasad
(Radiologist), has proved the X-ray plate
and X-ray report of the right forearm and
elbow of the injured, Surya Kumar
Tripathi. He stated that on 09.12.1979, he
was posted at U.H.M. Hospital, Kanpur, as
Radiologist. He conducted the X-ray
examination of the right forearm and elbow
of Surya Kumar Tripathi. The X-ray plate
and report were prepared under his
supervision. The X-ray plate has been
marked as Exhibit Kha-7, and the X-ray
report has been marked as Exhibit Kha-11.
According to the X-ray report, multiple
54 INDIAN LAW REPORTS ALLAHABAD SERIES
radio-opaque shadows of different sizes,
having metallic density, were seen in parts
of the right forearm and right elbow. These
metallic shadows might have been caused
by pellets scattered by a firearm shot.

23. D.W.2, Dr. P.P. Gupta, proved the
injury report of Surya Kumar Tripathi in
the cross-case lodged at the instance of
Shiv Kumar Shukla in Case Crime No.
321-A of 1979. He deposed in his evidence
that he had conducted the medico-legal
examination of Surya Kumar Tripathi
(accused) at 6:55 p.m., and at the time of
examination, the following injuries were
found on his person: -

(i) Lacerated gunshot wound size
35 cm x 10 cm x bone deep on the right
forearm, with blackening, tattooing, and
charring present. X-ray was advised.

(ii) Lacerated wound size 5 cm x
2 cm x bone deep on the right forearm, 1
cm above the wrist (gunshot wound), with
blackening, tattooing, and charring present.
He also deposed that the injured was
admitted to the hospital and kept under
observation. An X-ray of the right forearm,
both AP and lateral X-ray was advised. The
injury was caused by a gunshot and, at the
time of examination, it was fresh. The
injury report was produced before him,
which was prepared in his handwriting and
signed by him. It also bears the thumb
impression of the injured. He proved the
injury report by producing the accidental
injury register from the hospital, wherein
the injuries were noted. Exhibit Kha-12
was marked on the said injury report of
injured, Surya Kumar Tripathi. In the
opinion of the doctor, these injuries might
have been caused on 09.12.1979 at around
4:00 p.m. These injuries could have been
caused by a country-made pistol or
gunshot. He was unable to give any opinion
regarding the distance from which the shots
were fired. The injuries were not on a vital
part, but they could not have been selfinflicted because its magnitude was large.
There is no record that the matter was
referred to the police.

24. D.W.3, Dr. K.N. Mathur, who
conducted
the
post-mortem
of
the
deceased, Uma Kant, in Case Crime No.
321 of 1979, also proved the post-mortem
report of the deceased, Uma Kant, by his
evidence as Exhibit Kha-13. He deposed
that
he
conducted
the
post-mortem
examination of Uma Kant on 10.12.1979.
The approximate time of death was about
one day prior to the examination. Rigor
mortis was present in both the lower and
upper limbs. Twelve firearm injuries were
found on the person of the deceased, as
described in the post-mortem report. The
cause of death was shock and haemorrhage
as a result of ante-mortem injuries Nos.1
and 6. The injuries were caused by firearm.
These injuries were found in an area 10 cm
x 12 cm and were inflicted from a distance
of 6 to 10 feet. The probable time of
injuries was between 4:00 p.m. and 5:00
p.m. on 09.12.1979.

25. D.W.3, Dr. K.N. Mathur, in his
cross-examination, deposed that he was not
a ballistic expert and, therefore, could not
state with certainty the distance from which
the shots were fired.

26. D.W.1, D.W.2, and D.W.3, who
are medical experts, were produced on
behalf of the defence to support its version
and to prove the post-mortem examination
report of Uma Kant (accused in the present
case) and deceased in the cross-case, as
well as the injury and X-ray report of the
injured, Surya Kumar Tripathi, who is an
11 All. Kali Shanker & Ors. Vs. State of U.P.
55
accused in the present case. The postmortem report of Uma Kant and the X-ray
report of Surya Kumar Tripathi reveal that
Uma Kant died at the time of the incident
due to firearm injuries, while Surya Kumar
Tripathi sustained firearm injuries on nonvital parts of body.

27. P.W.1, Dr. N. Singh, is the author
of the post-mortem examination report of
Kripa Shanker, which is marked as Ext.
Ka-1, as described above.

28. P.W.2, Awadhesh Kumar @
Girdhar, who is the brother of Vasudev and
son of Kripa Shanker and examined as an
eyewitness, stated that in the incident, his
father, Kripa Shanker, and elder brother,
Vasudev,
were
killed.
The
incident
occurred one year and nine months prior to
his examination before the court. He is
acquainted with the accused persons and
also knew Dhuna @ Uma Kant, who has
since died. The accused, Jagdish, Shiv
Narayan, and Kali Shanker, belong to the
same family. Surya Kumar and Ashok
Kumar are nephews of Shiv Narayan. Dev
Narayan, Pratap Narayan, Bhoop Narayan,
and Raj Narayan belong to the same
family. Rajendra Prasad, Jitendra Prasad,
Surendra @ Dhooni, and Virendra Kumar
are sons of Shiv Kumar. Shiv Kumar is
relative of Raj Narayan, and Raj Narayan is
the real brother of Shiv Kumar. Ram
Kumar is the real brother of Shiv Kumar
Shukla, while Pramod Kumar is the
nephew of Shiv Kumar. Dhuna @ Uma
Kant belongs to the family of Shiv
Narayan. Except for Thakur Prasad and
Annat Ram, all the accused persons are
relatives.
The
incident
occurred
on
09.12.1978 at 4:30 hours. Kripa Shanker
and the informant were present at his house
at that time. His father was Gram Pradhan.
The witness and the deceased were residing
in the same house. Kripa Shanker had
asked Vasudev to bring Mahavir Shukla.
He had called his son, Vasudev, to bring
Mahavir Shukla in connection with the bail
of one Jai Narayan. Kripa Shanker also
followed Vasudev as he reached near the
Chabutra of Devi Ji, which is about 50-60
paces north of his house. The deceased,
Uma Kant, and other accused persons
reached there, armed with lathi, balam,
kanta, knife and other weapons. The
accused surrounded Kripa Shanker and
started beating him. Kripa Shanker tried to
escape towards the west, but the accused
accosted and caught him after 20-25 paces.
Vasudev came out and tried to save his
father. At that time, Uma Kant, Suraya
Kumar, and Shiv Narayan caught Vasudev
and tried to snatch his gun, which had been
brought from the house to protect his
father. In the struggle, the gun accidentally
discharged, hitting Uma Kant. Kali Charan
snatched the gun and fled. Afterwards, Dev
Narayan, Anant Ram, Shiv Narayan, and
Rajendra Prasad lifted Vasudev, while
Ashok Kumar, Vimal Kumar, Pratap
Narayan, and Bhaiya Lal lifted Kripa
Shanker and took them inside the house of
Shiv Kumar Shukla. Beni Prasad, Pooran,
Daya Ram, Ram Swaroop, Kishan Prasad,
and others reached the spot. None of them
could enter the house of Shiv Kumar. The
voices of Vasudev and Kripa Shanker were
heard from inside who were shouting that
they were being killed and that there was
no one to save them. When the accused
persons took his brother inside the house,
he rushed towards the house and then went
to
the
Shivali
Police
Station.
The
informant, Shiv Kumar Tiwari, who is the
elder brother of his father met him at the
bus stop at Shivali. He narrated the incident
to Shiv Kumar, who wrote the report at the
bus stop. The witness also signed the
report, which is marked as Ex.Ka-2.
56 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter, they went to the police station
with the written report and handed it over
to the Sub-Inspector. Shiv Kumar Tiwari
sent him to Kanpur to bring back Gopal
Tiwari, who is the brother of Shiv Kumar
Tiwari. He reached the village at about
1:00 A.M., where he came to know that
both his brother and father had died. There
was litigation regarding land between his
father and the accused persons. A suit for
vacation of a house had also been instituted
by his father against Shiv Narayan and
others. Shiv Kumar, Shiv Narayan, and
others had assaulted his father, for which a
case
under
Section 302
I.P.C.
was
registered,
and
some
persons
were
convicted. Shiv Kumar Tiwari possessed a
house at Naya Purwa, Kanpur. He had filed
a suit against Shiv Kumar, son of Matru,
for vacating the house situated at Mavaiya.
Shiv Kumar, son of Matru, is his real
brother-in-law. Prior to this incident, Shiv
Kumar, son of Matru, had lodged a case
under Section 435 I.P.C. against his brother
Vasudev, in which Vasudev was acquitted.
The accused persons were bearing enmity
against the witness side.

29. In his cross-examination, P.W.2,
Awadhesh Kumar @ Girdhar, stated that
Lalta, who is the brother of Ram Gopal, is a
witness in a case. His uncle, Shiv Kumar,
has been working as a munshi (clerk) in the
Kanpur District Court for the last 25-30
years. The witness further stated that Lalta
is also the brother of Kripa Shanker by
relation. They met the Sub-Inspector at the
police station, but he did not interrogate
them. No one from the village accompanied
them to the police station. He had told the
villagers that Shiv Kumar (P.W.4) met him
in Shivali. Shiv Kumar was in the village
on that day because it was Sunday. He left
the village at 3:00 p.m. and went to
Kanpur. Shivali is about four kilometers
away from the village, and this distance can
be covered either on foot or by bicycle. His
uncle, Shiv Kumar, does not have a house
in Shivali. He could not find any vehicle
and therefore met him at the bus stop.
When he reached the police station, Shiv
Kumar Shukla was not there. He did not
know on that day that Shiv Kumar had
lodged a report against him and others. He
reached Shivali at 9 P.M. and visited the
police station. The dead bodies of his father
and brother were lying there. He stayed at
the
police
station
till
morning
and
thereafter returned to the village. He was
not arrested at the police station. He could
not say whether the police were present in
the village in the morning or not, as he had
not seen them. The Sub-Inspector recorded
his statement after 8-10 days. The Chabutra
of Devi Ji is situated at the house of Ram
Sanehi Nai. The house of Ram Sanehi Nai
faces east towards the north. About 7-8
days prior to this incident, the wife and
brother of Shiv Kumar Shukla had a fight
(marpeet) with Mahavir. The enmity
between the parties was old, as there was
no recent dispute. This altercation took
place on account of the arrest of Jail
Narayan and the initiation of his bail
proceedings. The accused persons attacked
his father with a kanta, banka, lathi, balam,
and knife after surrounding him near the
Chabutra of Devi Ji.

30. P.W.3, Dr. C.T. Meerpuri, who is
the author of the post-mortem examination
report of Vasudev, stated that Injury Nos.
1, 2, 5, 8, 9, and 13 of the deceased were
caused by sharp-edged weapons such as
Kanta, Banka, knife, etc. Injury Nos. 7, 17,
and 18 were caused by some pointed
cutting weapons like spear and knife. The
remaining injuries were caused by some
blunt objects such as lathi and sticks, or
due to fracture against a rough surface. In
11 All. Kali Shanker & Ors. Vs. State of U.P.
57
the internal examination, clotted blood was
found in the skull and scalp. Brain
membranes were lacerated, and clotted
blood was present on the left side of the
upper frontal region. The base of the skull
was fractured. Clotted blood was also
present in the chest. The 4th and 5th ribs on
the left side were fractured. The stomach
was full of semi-digested food, and the
small and large intestines were filled with
gases. In his opinion, apart from bone,
injury No.13 did not cut any bone inside
the wound.

31. P.W.4, Shiv Kumar Tiwari, who is
first informant has supported the FIR
version lodged at his instance and proved
the written report Ext.Ka-2, which bears his
signature as well as signature of P.W.2 as
the scribe got the written report prepared at
Shivali bus stop at around 4:00 P.M.