# Kalluwa v. State

- **Citation:** (2019) 1 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-16
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalluwa-v-state-44455
- **Pages:** 14

## Headnote

Sri
Ratan
Singh
(A.G.A.)
1 All. Kalluwa Vs. State
295
A. Section 302 I.P.C. - Appeal against
conviction.
-
Independent
witness-
inconsistency
and
contradiction
in
statement of witnesses.

If a person is not known to any witness and he
was seen for the first time at the time of
occurrence, identification of that person for
the first time in Court is very weak type of
evidence. (Para 44)

B.
Every
contradiction,
inconsistency
between
the
statement
of
witnesses,
normally, may not be treated material but
where accused/appellant and witness are
residents of same town and occurrence had
taken place in the night, neither name of
accused nor name of witness or description
of
weapon
was
mentioned
in
F.I.R,
important natural and independent witness
present at the time of occurrence were not
produced, no identification parade was
conducted.
The
contradiction
and
inconsistency found herein above are major
and important which have demolished the
castle of prosecution case. (Para 46)

Appeal is allowed. (E-2)

## Text

_Characters 0–39,823 of 47,542. This is a partial read: ask again with offset=39823 for what follows._

294 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, certificate to that effect by the
Laboratory that the seal of samples found
intact and the same tallied with specimen
seal, rules out any possibility of any
tampering therewith. The contraband was
recovered from the car the accused was
driving and the car was consigned to police
station also authenticate the conscious
possession of accused. The recovered
contraband was more than two hundred kg
negates the possibility of their being planted
by police. Both the recovery witnesses have
proved the recovery of contraband from the
car the accused was driving. There is no
evidence to show any bias or malice on the
part of investigating agency. There is no
merit in the argument with regards to
compliance of Sections 42, 50 and 57 of the
N.D.P.S. Act. The learned trial court has
appreciated the evidence on record in correct
legal and factual matrix.

34. Section 20 (C) of the Act
provides minimum sentence of ten years
which may be extended to twenty years
and a minimum fine of rupees one lac
extendable up to two lacs in case of
recovery of commercial quantity of
contraband. The learned trial court has
awarded
a
sentence
of
12
years
imprisonment and rupees one lac and
twenty five thousands fine. The recovered
contraband is ganja and in comparison to
other contraband like heroine, smack and
charas, it is very cheaper in cost and
easily
found
herb
with
hardly
international demand and its addiction is
not that serious and may not have vital
impact on individuals. While awarding
sentence, the learned trial court appears to
have become a little mechanical. The
recovered contraband was slightly above
the commercial quantity (20 kg. 300 gm.)
for which 10 years rigorous imprisonment
and one lac fine and in default 1 year
additional imprisonment will serve the
purpose
of
sentencing.
Accordingly,
awarded sentence is liable to be modified.

35. Thus, there appears to be no
perversity or illegality in the impugned
judgment. So far as conviction is
concerned, the same is upheld and the
awarded sentence is modified to mean 10
years rigorous imprisonment and one lac
fine and in default of fine, 1 year
additional imprisonment.

36. With the above modification in
sentence, the appeal is finally disposed off.

37. The convicted appellant Sanjeev
Kumar Singh, if on bail shall surrender
before the learned trial court forthwith to
undergo the remaining sentence.

38. The office is directed to transmit
back the lower court record along with a
copy of judgment for information and
compliance.
-------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

JAIL APPEAL No. 948 OF 2009

Kalluwa ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri V.S. Parmar

Counsel for the Opposite Party:
Sri
Ratan
Singh
(A.G.A.)
1 All. Kalluwa Vs. State
295
A. Section 302 I.P.C. - Appeal against
conviction.
-
Independent
witness-
inconsistency
and
contradiction
in
statement of witnesses.

If a person is not known to any witness and he
was seen for the first time at the time of
occurrence, identification of that person for
the first time in Court is very weak type of
evidence. (Para 44)

B.
Every
contradiction,
inconsistency
between
the
statement
of
witnesses,
normally, may not be treated material but
where accused/appellant and witness are
residents of same town and occurrence had
taken place in the night, neither name of
accused nor name of witness or description
of
weapon
was
mentioned
in
F.I.R,
important natural and independent witness
present at the time of occurrence were not
produced, no identification parade was
conducted.
The
contradiction
and
inconsistency found herein above are major
and important which have demolished the
castle of prosecution case. (Para 46)

Appeal is allowed. (E-2)

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This jail appeal under section 383
Code of Criminal Procedure, 1973 (Cr.P.C)
has been preferred by accused-appellant
Kalluwa (hereinafter referred as appellant)
through Superintendent of Sub-Jail, Mahoba
against the judgment and order dated
16.1.2009 passed by Additional Sessions
Judge, Court No.2, Mahoba, in S.T. No.116
of 2007 ( State vs. Kalluwa), whereby
appellant has been convicted under section
302 I.P.C and sentenced for imprisonment
for life and also with a fine of Rs.10,000/-

2. Brief facts, as stated in First
Information Report (hereinafter referred to
as F.I.R) as well as in material available
on record of the prosecution case, are, that
on 12.6.2007 at about 3.40 a.m., P.W-1
Annu alias Daya Shanker, resident of
Mohalla
Jayandra
Nagar
Charkhari,
police station (P.S) Charkhari, District
Mahoba, submitted a written report
(Ex.ka-1) at P.S. Charkhari, District
Maboba alleging therein, that in the
intervening night of 12.6.2007 he and his
wife Smt. Vimla (P.W-2) were sleeping
inside his house and his mother Smt.
Brijrani (deceased) was sleeping on the
cot, on platform (Chabutara), situated out
side his house. At about 3.00 a.m, upon
hearing cry of his mother, he and his wife
came out from his house and saw that an
unknown person was running away, after
causing serious injury on the head of his
mother by a sharp edged weapon. He and
his wife ( P.W-2) saw and identified him
in the light of tube light and also can
identify him. When he came towards his
mother, he saw that his mother had died.
Her dead body was lying at the place of
occurrence.

3. On receipt of F.I.R (Ext.Ka-1),
P.W-5 Cons. Jairam Prajapati registered
the case and prepared chick report
(Ext.ka-3), on 12.6.2007 at 3.40 a.m, as
case crime No.1012 of 2007, under
Section 302 I.P.C against unknown
person and also made relevant entry of the
said information in general diary (Ext.ka4). Investigation was undertaken by P.W6, S.I. Gopal Krishna Gupta (I.O), who
was posted as officer in-charge P.S.
Charkhari,
District
Mahoba.
He
immediately rushed to the place of
occurrence and recorded statement of
P.W-1 Annu alias Dayashankar, inspected
the place of occurrence and prepared site
plan of the occurrence (Ext.ka-5). He
prepared inquest report (Ext.ka-6) and
necessary police papers i.e chalan nash,
296 INDIAN LAW REPORTS ALLAHABAD SERIES
request letter to C.M.S, letter to R.I, photo
nash (Ex.ka-7 to Ext.ka-10) and thereafter
sealed the dead body of the deceased, and
sent it to the District Hospital, Mahoba for
postmortem.

4. P.W-4, Dr. D.K. Sullerey,
conducted autopsy on corpus of deceased
Brijrani on 12.6.2017 at 4.00 p.m. and
found following anti mortem injury.

(1) Incised wound 18 cm x 2 cm
cavity deep with cutting of underlying
bones (Temporal and parietal left) and
laceration on left eye and brain matter
coming out at left side of face at base of
nose to left ear.

(2) Incised wound 13 cm x 1.5
cm with cutting underlying bone ( left
maxilla) at the left side of face.

(3) Incised wound 6 cm x 1.5
cm with cutting underlying bone (right
side of mandible) Teeth at right side of
face just lateral to right angle of mouth .

5. During investigation, I.O (P.W-6)
recorded statements of Rajju (P.W-3) and
appellant. He also took the sample of
blood stained and plain earth and piece of
blood stained bed sheet and prepared its
seizure
memo
(Ext.ka-11
and
Ext.ka.12).He arrested appellant, and on
his confessional statement and on his
pointing out, recovered weapon used in
the commission of offence, one spade
(Farsha) from the bushes, situated near
Pahadee of Khajor and prepared seizure
memo of recovery of weapon (Ext-ka-13)
and site plan of recovery of weapon
(Ext.ka-14). After recording the statement
of eye witnesses, witnesses of inquest
report, seizure memo and other police
officials i.e. Annu alias Daya Shankar
(P.W-1) Amar Singh Chauhan, Bhauu
alias Bhagwan, Maan Singh and Aswani
Kumar, Raj Bahadur, Shankar Singh,
Vimla Devi (P.W-2), Rajju (P.W-3),
Cons. Moharrir Jairam Prajapati, P.W-5,
Cons. Prakash Narayan, Home guard Ram
Swaroop, he submitted charge sheet
(Ex.Ka-15), under section 302 I.P.C
against appellant.

6. The cognizance of the offence
was taken by Chief Judicial Magistrate,
(C.J.M) Mahoba on 21.7.2007.

7. Since the offence was exclusively
triable by Court of Session, C.J.M
Mahoba,
after
providing
copies
of
relevant police of papers as required
under section 207 Cr.P.C, committed the
case to Court of Session Judge, Mahoba;
who framed the charges on 6.10.2007 as
under:-

**EkSa
lq/khj
dqekj
lDlsuk]
l=
u;k;k/kh'k] egksck ,rn~ +}kjk vki vfHk;qDr&dyqvk
iq= fgUnwir fo'odekZ ij fuEufyf[kr vkjksi
fojfpr djrk gwW %&

;g fd fnukad 12-6-07 le;k djhc
3&00 cts izkr% 1⁄4jkr1⁄2 ?kVukLFky is'k njoktk oknh
1⁄4pcwrjs ij ckgj1⁄2 ogn eqgYyk T;sUnzuxj Fkkuk
pj[kkjh ftyk egksck esa vkius gR;k djus ds
vfHkizk; ls oknh dh ekW Jherh c`tjkuh ij Qjlk ds
okj ls pksVsa igqWpkdj Jherh c`tjkuh dh e`R;q dkfjr
dh A bl izdkj ls vkius Hkk0na0la0 dh /kkjk 302 ds
vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds
izlaKku esa gS A

,rn }kjk funsZf'kr fd;k tkrk gS fd
mDr vkjksi esa vkidk fopkj.k bl U;k;ky; }kjk
fd;k tk;sxkA

vkjksi vfHk;qDr dks i<+dj lquk;k o
le>k;k x;k] ftls mlus vLohdkj fd;k vkSj
fopkj.k dh ekax dhA**

I, Sri Sudhir Kumar Saxena,
Sessions Judge, Mahoba do hereby
charge on you Kalluwa s/o Hindopat
Vishwakarma as follows:-

That you in the intervening
night of 12.6.2007 at about 3.00 a.m. in
front of the house of informant (outside
1 All. Kalluwa Vs. State
297
his house at Chabutara) within the area
of Mohalla Jayant Nagar, P.S Charkhari,
District Mahoba with intention to commit
the murder of Smt. Brijrani, mother of the
informant by causing injury with Farsa
and
thereby
committed
an
offence
punishable under section 302 of the I.P.C
and within the cognizant of this Court.

And hereby directed that you be
tried by this court on the said charge.

The charge were read over and
explained to the accused- appellant who
pleaded not guilty and claimed to be tried.
 (Translated by Court)

8. In support of its case, prosecution
examined six witnesses, out of whom
P.W-1, Annu alias Daya Shankar, P.W-2,
Smt. Vimala wife of informant, P.W-3,
Rajju, brother-in-law (Dewar) of the
deceased are witnesses of fact whereas
P.W-4, Dr. D.K. Sullerey, P.W-5 cons.
130 Jairam Prajapati, P.W-6, Inspector
Gopal
Krishna
Gupta
are
formal
witnesses.

9. After conclusion of evidence, the
statement of appellant was recorded under
section 313 Cr.P.C., who stated that the
entire prosecution story is false and
concocted and claimed that he has falsely
been implicated in this case. Upon
opportunity given by Trial Court for
defence evidence, he had produced D.W1 Laadkunwar and D.W-2 Hindupat in his
defence.

10. Upon conclusion of trial and
after hearing learned counsel for both the
parties, Trial Court found appellant guilty
for the offence under section 302 I.P.C
and accordingly convicted and sentenced
him as above . Aggrieved by the aforesaid
impugned judgment and order, appellant
has preferred this appeal.

11. We have heard Sri V.S. Parmar,
learned counsel for the appellant and Sri
Ratan Singh, learned A.G.A for the State.

12. It has been argued by learned
counsel for the appellant that F.I.R is ante
timed; appellant is not named in the F.I.R;
no identification parade was held; there
was no source of light at the place of
occurrence; P.W-3 Rajju is not named in
the F.I.R; P.W-1 Annu alias Daya
Shankar has also not named any witness
who had seen the occurrence; P.W-2
Vimla and P.W-3 Rajju are the nearest
relative of P.W-1 Annu alias Daya
Shankar and are interested witness;
presence of P.W-3 Rajju at the place of
occurrence is highly doubtful; statement
of eye witnesses P.W-1 Annu alias Daya
Shanker, P.W- 2 Vimla and P.W-3 Rajju
are self contradictory and doubtful;
recovery of alleged weapon used in the
offence
is
also
doubtful;
even
if
prosecution case is found reliable, offence
under section 302 I.P.C is not made out
rather only offence under section 304
I.P.C may be made out in the fact and
circumstance of this case; and accusedappellant is innocent and has falsely been
implicated in the present case hence
impugned judgment and order is based on
surmises and conjuncture and liable to be
set aside.

13. Per contra, learned A.G.A has
submitted that presence of witnesses at the
place of occurrence is natural; their evidence
are trustworthy; accused-appellant had been
identified in the light available at the place of
occurrence; evidence of prosecution witnesses
cannot be thrown out only on the ground that
they are relatives of the deceased; the ocular
evidence is fully supported medical evidence;
F.I.R has been lodged without any delay;
prosecution has proved its case beyond
298 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable doubt against the accusedappellant; there is no illegality in the aforesaid
impugned judgement and order, hence appeal
is liable to be dismissed.

14. We have considered the
submission made by the learned counsel
for both parties and perused the record.

15. In the light of arguments
advanced by both the parties and evidence
available on record, it has to be
determined ''whether prosecution has
succeeded to establish the offence under
section 302 I.P.C against the appellant
beyond reasonable doubt.''

16. P.W. 1, Annu alias Daya
Shankar, Informant of the occurrence, has
stated that on 12.6.2007, his mother
Brijrani
was
sleeping
at
platform
(Chabutara), situated in front of his house,
whereas he and his wife Vimla Devi
(P.W-2) were sleeping inside his house.
At about 3.00 a.m, upon hearing cry of his
mother, he and his wife came out from
their house and saw that some unknown
person was assaulting at his mother, by
sharp edged spade (Farsa). He saw and
identified his face in the light of tube-light
at the time of occurrence but did not know
his name. He raised an alarm wherefrom
appellant run away towards Paharh
(mountain). He saw that his mother was
lying, with blood, at cot. He has further
stated that his uncle Rajju and another one
person Bhau alias Bhagwan Das were also
sleeping on platform situated in front of
his house. They had also chased the
appellant. According to him, after the
occurrence, he had lodged F.I.R (Ext-ka1); police had taken in custody blood
stained earth and pieces of bed sheet,
plain earth and prepared its recovery
memo, at the place of occurrence wherein
he had also put his signature; and police
had prepared inquest report of the corpse
of the deceased Brijrani, sealed the
corpse, and sent it for postmortem. This
witness has identified the appellant in
court room and said that he had caused
murder of his mother, to whom he had
seen at the place of occurrence. He has
further stated that while they were chasing
accused, Bhau alias Bhagwan Das thrown
a stick (danda) at him.

17. P-W-2, Vimla, daughter-in-law
of deceased, sleeping inside her house
with P-W-1, Annu alias Daya Shankar, at
the time of occurrence, has stated that
deceased Brijrani was sleeping out side
her house at platform (chabutara) whereas
her father-in-law's brother (Chachiya
Shasur) Rajju (P.W-3) was sleeping at
another platform in front of her house. It
was 3.00 a.m, at the time of occurrence.
She heard cry of her mother-in-law,
Brijrani (deceased). She and her husband
came out from their bed room and saw
that appellant Kalluwa was assaulting
deceased. When they raised alarm,
appellant fled away and her husband and
father-in-law Rajju (Chachiya Shasur)
had chased him. She had identified
appellant Kalluwa in the light of tube
light, who had assaulted twice to her
mother-in-law by spade.

18. P.W-3, Rajju, is the brother-inlaw (Dewar) of deceased Brijrani. He has
stated that it was 3.00 a.m, he was
sleeping at the platform in front of house
of one Virendra, situated across the road
whereas deceased Brijrani was sleeping at
the platform, situated in front of her
house; at the time of occurrence he heard
shriek and cry of deceased Brijrani; he
saw that appellant Kalluwa was assaulting
by spade on the deceased; his nephew
1 All. Kalluwa Vs. State
299
Annu alias Daya Shankar (P.W-1) and
nephew's wife Vimla( P.W-2) were also
raising alarm; he had also challenged and
chased the appellant but he fled away
toward Godari Pahadiya; at the time of
occurrence there was sufficient light of
tube light in which he had seen the
occurrence; after occurrence, he could not
disclose the name of accused Kalluwa as
he was afraid; he had disclosed his name
to the police ; after 2-4 days of the
occurrence, police was carrying appellant
kalluwa in a jeep, and he was present at
Pachraha
(five
roads
junction)
Akhthauha, Charkhari road with one
Shankar Singh. He has further stated that
police had told him that appellant was
willing to get spade (weapon use in the
offence) recovered, whereupon he also
followed
the
police
and
appellant-
Kalluwa had said that he would hand over
the spade whereby, he had caused the
murder. Police had taken away him also
by the jeep. Jeep was stopped beneath the
hill. Police had searched in person to each
other. After getting down from Jeep, the
appellant Kalluwa, leading police party,
searched the spade from bushes of palm
tree, and handed over the same to police,
and said that it was that spade whereby he
had caused the murder of deceased
Brijrani. He has further stated that police
had taken in his custody the alleged
recovered spade, sealed it, and prepared
memo of recovery, wherein he had also
put his signature. This witness identified
his signature on recovery memo before
the trial court.

19. P.W-4, Dr. D.K. Sullerey, who
had conducted autopsy of the dead body
of deceased, has stated that on 12.6.2007
he was posted at district Mahoba as
Emergency Medical Officer, and had
conducted autopsy of the dead body of the
deceased at 4.00 p.m. which was brought
before him in sealed condition by Cons.
84 Prakash Narayan Mishra, H.G-1742,
Ram Swaroop, P.S Charkhari
with
relevant police papers. (Anti mortem
injuries, found by this witness, have been
mentioned in para 4 of the judgement); in
the stomach of the deceased about 6 M.L
paste material was present; deceased was
at about 44 years; her body was average
built up; rigor mortis was present on her
body; the deceased had died due to
hemorrhage and shock caused by anti
mortem injury which would have been
caused half day before the autopsy and
post mortem report (Ext-ka-2) was
prepared at the time of autopsy.

20. P.W-5, Constable 130, Jai Ram
Prajapati has stated that on 12.6.2007 he
was posted at P.S. Charkhari as Cons.
Moharrir. On that date, on the written
information filed by Annu alias Daya
Shankar (P.W-1), he had lodged F.I.R
No.93 of 2007 as Case crime No. 1012 of
2007, under section 302 I.P.C, against
unknown person, prepared chik report
(Ext-ka-3) and entered information in
general diary( Ext-ka-4).

21. P.W-6, Gopal Krishna Gupta
(I.O) has stated that on 12.6.2007, he was
posted as Station House Officer at P.S.
Charkhari and undertaken investigation of
the case. He had inspected place of
occurrence on the pointing out of
Informant, Annu alias Daya Shankar
(P.W-1), and prepared site plan (Ext.ka5). The inquest was conducted under his
supervision by Devi Deen. Inquest report
(Ext.ka-6) and relevant papers, letter to
C.M.O, Chalan nass, letter to R.I., photo
nass (Ex.ka-7 to Ext.ka 10) were also
prepared. He had taken into his custody,
pieces of blood stained bed sheet,sample
of blood stained and plain earth and
300 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared recovery memo (Ext.ka 11 to
Ext.ka12).Appellant was arrested by him
on 13.6.2007. On his confessional and
disclosure statement, the weapon (spade)
used in the offence was recovered from
the bushes of palm tree situated at nearby
Godari Pahadi in the presence of
witnesses. According to him recovered
spade was sealed in the presence of the
witnesses and its recovery memo (Ext-ka3) was prepared and signed by him and by
witnesses. He has further stated that
during investigation he had recorded
statement of witnesses and also prepared
site plan (Ext-ka-14) of recovery of spade
and after investigation filed a charge sheet
(Ext-ka-15)
against
the
appellant
Kalluwa,
under
section
302
I.P.C.
According to him on 20.7.2007, the
recovered articles i.e blood stained earth,
pieces of bed ( bistar) and spade (material
Ext-1 to material Ext- 4) were sent to the
Forensic
Science
Laboratory
for
examination.

22. After conclusion of prosecution
evidence, statement of appellant was
recorded under section 313 Cr.P.C,
wherein he denied the occurrence and the
evidence produced by the prosecution and
has stated that he has been falsely
implicated by the police in this case.

23. The appellant was given
opportunity to lead evidence in his
defence. D.W-1 Ladkunwar and D.W-2
Hindupat were examined by him in his
defence. Both these witnesses are the
parents of appellant.

24. D-W-1 Ladkunwar, mother of
appellant, has stated that on the day of
occurrence at 6.00 a.m, police had taken
away his son from her house when both of
them were sleeping in front of her house.

25. D.W-2 Hindupat, father of
appellant, has stated that on the day of
occurrence he was sleeping at his house
with his family. Police had come and
taken away his son (appellant). He has
further stated that when he quarried to
police, it said that they were taking away
him for interrogation.

26. So far as the submission of
learned counsel for the appellant that the
prosecution witnesses P.W-1 Annu alias
Daya Shankar, P-W-2 Vimla and P.W-3
Rajju
are
interested
witnesses,
the
presence of P.W-3 Rajju at the place of
occurrence is highly doubtful and the
statements of all the above three witnesses
are self-contradictory is concerned, it is
settled principle of law that only on
account that prosecution witnesses are
relatives of the victim/ deceased, their
testimonies cannot be discarded. In such
case, their testimony is required to be
tested with due care and caution. It is also
to be required to see; whether presence of
the witnesses on the place of occurrence
is natural and their statements are
trustworthy or not.

27. As per F.I.R, occurrence was
happened at 3.00 a.m. i.e in the night. In
F.I.R none was named as accused. Even
the nature and description of arm or
weapon is also not mentioned therein. At
the time of occurrence P.W-1 Annu alias
Daya Shankar and P.W-2 Vimla were
sleeping inside their house, whereas
deceased was sleeping out side of her
house. At about 3.00 a.m, both P.W-1,
Annu alias Daya Shankar and P.W-2,
Vimla heard cry of deceased and came
out from their house.They saw that one
unknown person was running after
causing severe injury on the head of the
deceased by sharp edged weapon. As per
F.I.R, all these witnesses have neither
1 All. Kalluwa Vs. State
301
seen appellant at the time of causing
injury
to
deceased
nor
identified
appellant.Even they had not identified
weapon whereby injury was caused to the
deceased. In F.I.R, it has further been
mentioned that both these witnesses had
seen accused in the light of mercury tube
light and they can identify appellant. In
F.I.R, it has also not been mentioned
whether both these witnesses had chased
appellant or not. In this FI.R, presence of
any other witness except P.W-1 Annu
alias Daya Shankar and P.W-2 Vimla has
also not been mentioned.

28. P.W-1, Annu alias Daya Shankar,
in his statement has specifically stated that
when he came out from his house, he saw
that an unknown person was causing injury
to his mother by spade (farsa). He has
further stated, that at the time of occurrence,
he had identified accused by his face but he
did not know his name. He had seen
accused causing the occurrence in the light
of mercury tube light and when he shouted,
accused had fled away towards Pahadi
(hill). He has further stated that at the time
of occurrence his uncle Rajju (P.W-3) and
another person Bhau alias Bhagwandas
were sleeping on chabutara (platform) in
front of his house. According to him both
these persons had also chased the accused.
This witness has identified accused before
Trial Court and stated that appellant had
caused death of his mother. In crossexamination, this witness has stated that he
had chased accused whereas his wife (P.W2) began weeping by clinging with his
mother. He had chased 40-50 meters to the
accused but he did not know how many
people were chasing the accused. According
to him when he returned to his mother, it
was 3.05 p.m. He had neither lifted his
mother nor had asked any one to do so
because his mother had died. He had not
touched his mother. In cross examination,
he has further stated that he drives the
vehicle. He has further stated that he had
seen the occurrence when accused-appellant
was running after causing occurrence. At
that time mercury light was blowing on the
pole but he did not know whether it was
moon light or dark light. In cross
examination, he has also stated that he had
not seen the face of accused at that time
when he was fleeing. P.W-2, Vimla, in her
examination-in- chief has specifically stated
that when she and her husband ( P.W-1)
came out from their house, on hearing the
cry of her mother-in-law, saw that
appellant-Kalluwa, present in Court, was
attacking by spade to her mother-in-law.
She has further stated that her husband and
her cousin, father-in-law Rajju (P.W-3) had
chased the appellant- Kalluwa. In cross
examination she has further stated that she
did not know the name of the appellant. She
did not know as to which side the face of
the appellant was, at the time of occurrence.
According to her she was interrogated by
police after 5-6 days. She has specifically
stated in her cross examination that she did
not disclose to investigating officer that
accused-appellant Kalluwa had caused the
death of deceased because she did not know
name of appellant Kalluwa. She has further
stated that she did not know as to how many
persons named Kalluwa are residents of her
town. Thus, statements of these witnesses
are contradictory with fact mentioned in
F.I.R (Ex.ka-1), as to whether they saw
appellant at the time of causing injuries to
deceased or they saw appellant, when he
was running after occurrence, and also
contradictory to F.I.R whether appellant
was chased by any one or not.

29. P.W-3, Rajju, is brother in-law
(dewar) of the deceased. He is not named
in the F.I.R as an eye witness. According
302 INDIAN LAW REPORTS ALLAHABAD SERIES
to him, at the time of occurrence he was
lying and sleeping at the platform situated
in front of one Virendra, across the road,
whereas his sister-in-law (Bhabhi) was
sleeping, opposite side of the road at
platform situated in front of her house. At
about 3.00 p.m, he heard cry of deceased
Brijrani and saw that appellant was
causing
injury
to
his
sister-in-law
(Bhabhi), by spade. According to him, at
that time, his brother's son (bhatija) (P.W1) Annu alias Daya Shankar and his wife
Vimla (P.W-2) were also raising alarm.
They came near appellant and tried to
chase him but he fled away towards
Godari Pahadiya (hill). According to him,
he had identified the appellant in the light
of mercury lamp, emitting light on the
pole, situated nearby the place of
occurrence. In examination in-chief, he
has explained that he could not disclose
name of appellant Kalluwa as he had
become afraid at the time of occurrence,
but disclosed it to police. In cross
examination, he has specifically stated
that after the occurrence he had gone to
the police station with Annu alias Daya
Shankar (P.W-1). He had not gone with
Arvind Singh. P.W-1 Annu alias Daya
Shankar did the job of driving of vehicle
to Arvind Singh. He has further stated that
no body except him and Annu alias Daya
Shankar (P.W-1) had gone to police
station.
His
daughter-in-law
(Bahu)
remained at her house. He has further
stated that before reaching police station,
he had returned to his house and
thereafter Annu alias Daya Shanker
would have gone to police station but he
did not know whether he had lodged
report or not. He has stated that just after
one hour of the occurrence, police had
reached the place of occurrence and
recorded his statement. The statement was
also recorded after two days and police
had continuously interrogated him for five
days.

30. Admittedly, P.W-3 Rajju has not
been named in the F.I.R. His presence or
any role has also not been shown in the
F.I.R. P.W.-1, Annu @ Daya Shankar, in
his cross examination has also admitted
that he did not mentioned name of
witnesses in F.I.R for which he has not
given any explanation. P.W.3 Rajju has
stated that he has four brothers. All were
married and there is partition among
them. They reside in separate houses
situated at separate place. He resides
inside the town (basti) near the 'B' Park.

31. PW-6 S.I. Gopal Krishna Gupta,
Investigating Officer of the case, has
stated that P.W-3 Rajju did reside two
kilometers away from the place of
occurrence. Neither P.W-3 Rajju nor any
witness of the prosecution has shown any
justification as to why P.W-3, Rajju was
lying and present at the platform, situated
in front of one Virendra's house in the
night, at the time of occurrence. The
prosecution has also not produced any
justification as to why the name of Rajju
(P.W-3) and his role of chasing at the
time of occurrence was not mentioned in
F.I.R. of occurrence. In addition to it, this
witness (P.W-3) once said that he had
gone to police station with P.W-1 Annu
alias Daya Shankar but again retracted to
his statement and said that he had not
gone
to
police
station.
In
such
circumstances evidence of this witness
(P.W-3) becomes doubtful.

32. In addition to above, from perusal
of the site plan (Ex-ka 5) of the place of
occurrence, it is clear that the house of one
Virendra,
Bhagwan,
Virendra
son
of
Mulayam Singh and Gorey Lal are situated
1 All. Kalluwa Vs. State
303
just nearby the place of occurrence. PW-1
Annu
alias
Daya
Shankar,
in
his
examination-in-chief, has stated that in front
of his house, his uncle Rajju (P.W-3) and one
Bhau alias Bhagwan were lying. In cross
examination he has also stated that the house
of Bhagwan Dass is situated near the place of
occurrence. P.W-3 Rajju has also, in cross
examination, has stated that the house of
Bhagwan Dass is situated in front of place of
occurrence, the house of Govind Thakur is
also situated near the house of Bhagwan
Dass just 20-25 fit away from the place of
occurrence. He has further stated that one
Virendra Rajpoot, resides beside to one Devi
Deen. He has further stated that the house of
Vishwanath is also situated beside to the
house of Devi Deen. P.W-1 Annu alias Daya
Shankar has stated, in cross examination, that
at the time of chasing accused Bhau alias
Bhagwan Dass had assaulted on accused by
throwing a stick. P.W-6, S.I, Gopal Krishna
Gupta (I.O.) admitting this fact has also
stated the fact that accused was attacked by
Bhagwan Dass is true. P.W-3 in cross
examination has stated that he knows
Bhagwan Dass, who is uncle of appelant
whereas P.W-1 said at one place that he did
not know the uncle of Kalluwa but in
response to question put by Trial Court he
said that house of Bhagwan Dass is situated
in front of place of occurrence. The
prosecution has neither produced Bhau alias
Bhagwan Dass nor any independent person,
as witness, who resides nearly the place of
occurrence. In such situation, the presence of
P.W-3 Rajju, who is not resident to nearby
place of occurrence and his statement, being
relative of Informant, becomes doubtful.

33. From the perusal of F.I.R it
transpires that no one has witnessed the
occurrence and accused causing injury to
the deceased. Nature and description of
weapon has also not been mentioned in
F.I.R ( Ext-ka.1). In F.I.R it has been
mentioned as follows:-

" ,d vKkr O;fDr ekrk th ds flj
ij rst /kkj okys gfFk;kj ls flj es xEHkhj izgkj
djds Hkkx jgk Fkk " One unknown person by
causing injury on the head of his mother
by sharp edged weapon was running.
(English translation by Court)

34. Non mentioning the name of any
person as accused, non mentioning the
direction where accused was running and
also non mentioning the name of weapon
or its details in F.I.R shows that none had
seen the occurrence. After occurrence,
when they saw dead body of deceased and
inspected the injuries, on the basis of
nature of injures, P.W-1 Annu alias Daya
Shankar and other witnesses learnt that
injuries were caused by any sharp edged
weapon and thereafter on the basis of
surmises and conjecture, F.I.R was lodged
against unknown person. Thus, non
mentioning name of weapon, name of
accused/appellant and direction of his
running after causing occurrence, in F.I.R,
has also created prosecution case very
doubtful.

35. It is also pertinent to ascertain, at this
juncture, whether F.I.R was lodged promptly or
it was anti timed. According to P.W-1 Annu
alias Daya Shankar, occurrence was happened
at 3.00 a.m. on 12.6.2007. From perusal of the
statement of P.W-1, Annu alias Daya Shankar,
P.W-2 Vimla and P.W-3 Rajju, it appears that
after hearing the alarm, raised by the deceased
Brijrani both P.W-1 Annu alias Daya Shanker
and P.W-2, Vimla came out from their house
and saw that unknown accused was causing
injury to the deceased. The accused was chased
up to 40-50 meters by P.W-1, P.W-3 and so
many people, present nearby the place of
occurrence and when they could not succeeded
304 INDIAN LAW REPORTS ALLAHABAD SERIES
to catch the appellant Kalluwa they returned
back to the place of occurrence. Thereafter
P.W-1 Annu alias Daya Shnkar had gone to
lodge F.I.R.

36. From perusal of Ext-ka-3, Chik
F.I.R, it appears that F.I.R. was lodged at
3.40 a.m i.e just after 40 minutes of the
occurrence. The place of occurrence from
the police station had been shown one and
half kilometer. P.W-1, Annu alias Daya
Shankar, has not stated, in his statement at
what time had he proceeded for police
station. Although P.W-3 Rajju has stated
that he had gone to police station with
P.W-1 Annu alias Daya Shankar but again
he stated that he had returned back and
P.W-1 Annu alias Daya Shnker had gone
to police station who would have lodged
F.I.R. P.W-1 Annu alias Daya Shnkar, in
his cross examination has specifically
stated that he had reached police station at
3.15 a.m. and lodged F.I.R. at 3.16 a.m. In
the facts and circumstances of this case
where occurrence has taken place at 3.00
a.m. and P.W-1 Annu alias Daya Shankar
and other witnesses had chased the
accused 40-50 meters and returned
thereafter to the place of occurrence,
statement of P.W-1 Annu alias Daya
Shankar that he had reached police station
at 3.15 a.m. and F.I.R. was lodged at 3.16
a.m, is not reliable. It shows that F.I.R
was not lodged on 12.6.2007 at 3.40 a.m.
rather it was lodged at any other time
thereafter and in the chik F.I.R time of
lodging F.I.R. was shown at 3.40 a.m.

37. It is also pertinent to mention at
this juncture that the inquest proceeding
(Panchayatnama) of the deceased was
conducted on 12.6.2007 from 6.00 a.m to
8.30 a.m. P.W-1 Annu alias Daya Shnkar
(informant)
is
also
one
of
the
member/witness of the inquest proceeding
who had put his signature on the inquest
report (Ext-ka-6). In this report also
neither
the
name
of
accused
nor
description
of
weapon
has
been
mentioned. It appears that till the
completion of inquest proceeding, P.W-1
Annu alias Daya Shnkar did not know as
to which type of weapon was used in the
offence.

38. So far as the presence of light at
the place of occurrence is concerned, in
the F.I.R it has been mentioned that P.W1 Annu alias Daya Shnkar and his wife
P.W-2 Vimla had seen the occurrence and
identified accused in the light of mercury
lamp . P.W-1 Annu alias Daya Shnkar in
his cross examination has stated that he
had seen accused in the mercury lamp
light when he was fleeing from the place
of occurrence. He did not know whether it
was moon light or dark light at the place
of occurrence. P.W-2 Vimla has also
stated that she had seen the occurrence in
Mercury lamp emitting light. Although
P.W-1 Annu alias Daya Shankar has not
stated and specified the place where
mercury light was installed/ situated,
P.W-2
Vimla
has,
in
her
cross
examination, has stated that mercury lamp
was emitting light from other side of the
road, where her mother-in- law (deceased)
was sleeping. From the perusal of Ex-ka5, site plan, it appears that the pole, where
mercury lamp emitting light, was situated
other side of the road at the distance of 15
steps away. Thus, it is clear that there was
no light at the place of occurrence, and if
any light was present, it was at the other
side of the road.

39. According to prosecution case
both witness (P.W-1 and P.W-2) came out
from their house and saw appellant
causing injury to deceased. In site plan
1 All. Kalluwa Vs. State
305
(Ex.ka-5), house of P.W-1 Annu alias
Daya Shankar has been shown towards
eastern side of place of occurrence
whereas pole where mercury light was
emitting, was western to the place of
occurrence. It means that if front of
appellant Kalluwa was towards house of
P.W-1 Annu alias Daya Shanker, mercury
lamp emitting light, as shown in site plan
was situated on the back side of appellant.
Thus, the possibility of light on the face
of appellant is doubtful. P.W-1 Annu alias
Daya Shankar, in his cross examination,
has specifically stated that he did not
know any (Dishayen) of place of
occurrence, hence he could not disclose as
to which side the mercury lamp was
situated . He had denied to disclose as to
which side his mother's head and legs
were lying at the time of occurrence and
also could not disclose, which side his
mother was present at the time of
occurrence.

40. P.W-2 Vimla has also stated in
her cross examination that she did not
know as to which side the face of
appellant- Kalluwa was present at the
time of occurrence. In F.I.R. no special
character
of
appellant
has
been
mentioned. According to P.W-1 Annu
alias Daya Shankar and P.W-2 Vimla,
they had not seen the appellant, prior to
occurrence. They have also not stated any
special character of body, physique or
face of appellant. Thus, from the
statements of these witnesses, it is clear,
that there is contradiction in their
statements regarding their opportunity to
see and identify the appellant/accused
causing injury to deceased at the time of
occurrence, that either these witnesses
were not present at the time of occurrence
or concealing the true fact regarding the
presence of other witnesses at the place of
occurrence. In such situation statements
of these witnesses that they had identified
appellant in the light of mercury lamp is
not reliable and trustworthy.

41. It is also pertinent to note that
P.W-3 Rajju in his cross examination has
stated that he was also interrogated
continuously
5-6
days
after
the
occurrence. This witness has accepted his
presence nearby the place of occurrence
but his interrogation for 5-6 days creates
doubt in the prosecution case. In addition
to it, P.W-6 (I.O.) has not stated in his
examination in chief that when and how
the name of appellant Kalluwa came into
the light during investigation. He has
stated in his examination that accused was
arrested on 13.6.2007 and confessed his
guilt.