# Kamlesh @ Ghora v. State of U.P

- **Citation:** (2022) 4 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-07
- **Case number:** Criminal Appeal No. 1104 of 2009
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-ghora-v-state-of-u-p-48385
- **Pages:** 26

## Headnote

A. Criminal Law - Indian Penal Code,1860
- Sections 302 & 34 - The appeal against
conviction can be disposed of on merits only
after hearing the appellants or his counsel and
when there is no representation for the
appellant, it is the duty of the appellate court to
appoint another counsel as Amicus Curiae to
defend the accused-appellant.

B. Criminal Law - Evidence Act, 1872 -
Section 118 - Evidence of the child witness
and his credibility depends upon the facts and
circumstances of each case. There is no rule of
practice, but as a prudence, the court always
finds it desirable to seek corroboration to
evidence of a child witness. The only precaution
which the court has to bear in mind while
assessing such evidence is that witness must be
a reliable one.

C. It is unreasonable to expect from a witness
to give picture perfect report of the incident and
minor discrepancies in their statements have to
be ignored.

D. In case of direct evidence and the ocular
testimony of the eye witness being found to be
trustworthy, reliable and cogent it will not be
necessary for the prosecution to prove the
motive for the crime.

Appeal dismissed. (E-11)

List of Cases cited:-

## Text

_Characters 0–39,885 of 90,758. This is a partial read: ask again with offset=39885 for what follows._

1122 INDIAN LAW REPORTS ALLAHABAD SERIES
Bachcha Pandey @ Subhas is on bail, he
shall taken into custody and sent to jail to
serve the sentence.

62. The copy of this judgment
alongwith the original record of the Court
below
be
transmitted
to
the
Court
concerned for necessary compliance. A
compliance report be sent to this Court
within one month. The office is directed to
keep the compliance report on record.
----------
(2022)04ILR A1122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.03.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1104 of 2009
Connected with
Criminal Appeal No. 1105 of 2009

Kamlesh @ Ghora ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
I.B. Singh, Krishna Kumar Singh, Nisar
Ahmad

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Indian Penal Code,1860
- Sections 302 & 34 - The appeal against
conviction can be disposed of on merits only
after hearing the appellants or his counsel and
when there is no representation for the
appellant, it is the duty of the appellate court to
appoint another counsel as Amicus Curiae to
defend the accused-appellant.

B. Criminal Law - Evidence Act, 1872 -
Section 118 - Evidence of the child witness
and his credibility depends upon the facts and
circumstances of each case. There is no rule of
practice, but as a prudence, the court always
finds it desirable to seek corroboration to
evidence of a child witness. The only precaution
which the court has to bear in mind while
assessing such evidence is that witness must be
a reliable one.

C. It is unreasonable to expect from a witness
to give picture perfect report of the incident and
minor discrepancies in their statements have to
be ignored.

D. In case of direct evidence and the ocular
testimony of the eye witness being found to be
trustworthy, reliable and cogent it will not be
necessary for the prosecution to prove the
motive for the crime.

Appeal dismissed. (E-11)

List of Cases cited:-

1. Mangat Singh Vs St. of Punj. : 2005 (11) SCC
185

2. Md. Sukur Ali Vs St. of Assam : (2011) 4 SCC
729

3. Shankar Vs St. of Mah. (Criminal Appeal No.
1106 of 2019 decided on 23.07.2019)

4. Alagupandi alias Alagupandian Vs St. of T.N.:
(2012) 10 SCC 451
(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Mrs. Saroj Yadav, J.)

1. At the outset, Shri Ishan Baghel
holding brief of Shri I.B. Singh, Senior
Advocate, for the appellants stated that
short term applications have been filed on
behalf of the appellants in both the appeals
which are pending and the same may be
disposed of by this Court. He submits that
both the appellants, who are sons of coaccused Mool Chandra, are in jail for the
last 17 years, hence he prays that they may
be released on parole/short term bail on the
ground that their father, Mool Chandra (co-
4 All. Kamlesh @ Ghora Vs. State of U.P.
1123
accused) has died on 07.01.2022 and there
is no one to take care of their family
members.

2. Taking into consideration the fact
that paper book is ready; matter is ripe for
hearing; the above-captioned appeals are
listed
for
final
hearing
today;
the
convicts/appellants are in jail for the last 17
years, we gave an option to Shri Ishan
Baghel, holding brief of Shri I.B. Singh,
learned Senior Advocate, to argue the
appeals finally, Shri Ishan Baghel, learned
Counsel showed reluctance and prays for
adjournment with a plea that he has no
power in the instant appeal.

3. It transpires from the order-sheet of
the case that the first application for bail
filed by the appellants was rejected by a
Co-ordinate
Bench
of
this
Court
comprising Hon'ble Shiva Kirti Singh,
Chief Justice and Hon'ble Devendra Kumar
Arora, J. (as they then were) vide order
dated 15.04.2013. After that, the aforesaid
appeals were listed on several dates but
adjourned either on the request of learned
Counsel for the appellants or on his out of
station slip.

4.
It
also
transpires
that
on
13.01.2022, when the above-captioned
appeals were listed for final hearing, this
Court gave an option to Ms. Reena Rajesh,
learned Counsel who was holding brief of
Sri I.B. Singh, Senior Advocate, to argue
the appeal finally, she showed reluctance
and stated that her Senior Counsel, Shri
I.B. Singh, who was out of station, would
argue the appeal and prayed that the matter
be listed in the next week for final hearing.
Appreciating the request of Ms. Reena
Rajesh, learned Counsel, this Court posted
the matter for final hearing on 20.01.2022.
On 20.01.2022, on the request of learned
Ms. Reena Rajesh, learned Counsel, the
case was again adjourned and the matter
was posted for 22.02.2022. On 22.02.2022,
Shri Ishan Baghel, learned Counsel holding
brief of Shri I.B. Singh had appeared and
prayed for adjournment in order to enable
him to prepare the case for final hearing.
Appreciating this request of Shri Ishan
Baghel, learned Counsel appearing on
behalf of the appellants, the matter was
posted for final hearing in the week
commencing 07.03.2022. After that, the
case has been listed for today i.e. on
07.03.2022.

5. Today, when the case was called
out, Shri Ishan Baghel, learned Counsel has
put in appearance on behalf of the
appellants and instead of arguing the appeal
finally, presses the short term bail/parole
and so far as arguing the appeal finally is
concerned, he states that he has no power
on behalf of the appellants to argue the
appeals finally.

6. It is noteworthy to mention here
that Ms. Reena Rajesh holding brief of Mr.
I.B. Singh, Senior Advocate, who is also
present with Mr. Ishan Baghel today, had
also appeared in the appeal on previous
occasion i.e. on 13.01.2022 and pressed the
short term/parole application on behalf of
the
appellants
and
further
sought
adjournment with a plea that the matter
would be argued by Sri I.B. Singh, Senior
Advocate, who was abroad at the time.

7. Considering the aforesaid, this
Court finds the conduct of Mr. Ishan
Baghel and Ms. Reena Rajesh, learned
Counsel appearing on behalf of the
appellants on different dates cannot be
appreciated by the Court as all the attempt
is being made to get the appellants
somehow short term bail/parole even
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
though the earlier bail applications of the
appellants have been rejected by the Coordinate Bench and final hearing of the
appeals has been avoided even knowing the
fact that the above-captioned appeals have
been listed today for final hearing.

8. At this juncture, it would be apt to
mention that the Apex Court in Mangat
Singh Vs. State of Punjab : 2005 (11)
SCC 185 has observed as under :-

"2. It is unfortunate that the
counsel had not appeared in the High
Court in a case of appeal of conviction
under Section 302 IPC. The question of
accountability of the advocate looms large
in a case of this nature. However, the High
Court could have appointed an amicus
curiae to assist the Court rather than
relying on the assistance of the learned
counsel for the State."

9. The Apex Court in Md. Sukur Ali
vs. State of Assam : (2011) 4 SCC 729 has
observed in para-7 as follows : -

"We are of the opinion that even
assuming that the counsel for the
accused does not appear because of the
counsel's negligence or deliberately, even
then the Court should not decide a
criminal case against the accused in the
absence of his counsel since an accused
in a criminal case should not suffer for
the fault of his counsel and in such a
situation the Court should appoint
another counsel as amicus curiae to
defend the accused. This is because liberty
of a person is the most important feature of
our
Constitution.
Article
21
which
guarantees protection of life and personal
liberty is the most important fundamental
right of the fundamental rights guaranteed
by the Constitution. Article 21 can be said
to be the 'heart and soul' of the fundamental
rights."

 (emphasis supplied)

10. The Apex Court in the case of
Shanker Vs. State of Maharashtra
(Criminal Appeal No. 1106 of 2019 arising
out of Special Leave Petition (Crl.) No.
7230 of 2018, decided on 23.07.2019) has
also reiterated the ratio laid down in
Mangat Singh Vs. State of Punjab
(supra) and has observed as under :-

"5.
When
the
accused
has
preferred the appeal against the conviction,
the appeal can be disposed of on merits
only after hearing the appellant or his
counsel. When there was no representation
for the appellant, in our considered view,
the High Court ought not to have disposed
of the case on merits. It was held in 2005
(11) SCC 185 titled Mangat Singh vs. State
of Punjab that where the advocate for the
appellant is absent on the date of hearing,
the Court shall either appoint an amicus
curiae and then decide the appeal. Once
the appeal against the conviction is
admitted, it is the duty of the Appellate
Court either to appoint an advocate as
amicus curiae or to nominate a counsel
through Legal Services Authority and
hear the matter on merits and then
dispose of the appeal. "

 (emphasis supplied)

11. Keeping in mind the aforesaid
ratio laid down by the Apex Court and also
considering the aforesaid facts, while
declining to grant short term bail/parole
to the appellants (C.M. Application No. 6
of 2022 in re: Criminal Appeal No. 1105
of 2009 and C.M. Application No. 8 of
2022 in re: Criminal Appeal No. 8 of
2022), the Court proceeds to hear the
above-captioned appeals filed on behalf of
4 All. Kamlesh @ Ghora Vs. State of U.P.
1125
the appellants finally by appointing Shri
Ishan Baghel as Amicus Curiae to argue the
above-captioned appeals on behalf of the
appellants
finally
because
as
stated
hereinabove, he is well acquainted and also
prepared with the case. Furthermore, Shri
Ishan Baghel does not state that he is not
well acquainted and also not prepared the
case to argue it finally but his objection was
only to the effect that he has no power in
the above-captioned appeals to finally
argue the matter. In these backgrounds
especially considering the fact that the
appellants are in jail for the last 17 years, in
the ends of justice, this Court proceed to
hear the appeals finally with the assistance
of Shri Ishan Baghel (Amicus Curiae) and
Shri Vishwas Shukla, learned Additional
Government Advocate for the State.

12. Three accused persons, Kamlesh
alias Ghora, Rajesh and Mool Chandra,
were tried in Sessions Trial No.765 of 2005
(State Vs. Kamlesh @ Ghoda & others),
arising out of Case Crime No.76 of 2005,
under Section 302 I.P.C., Police Station
Itaunja, District Lucknow, whereas accused
Kamlesh @ Ghora was also tried in
Sessions Trial No.766 of 2005 (State Vs.
Kamlesh @ Ghora), arising out of Case
Crime No.85 of 2005, under Section 3/25
of Arms Act, Police Station - Itaunja,
District
Lucknow,
by
the Additional
District & Sessions Judge, Court No.15,
Lucknow.

13. Both the aforesaid two Sessions
Trials were related to each other, hence the
learned Additional District & Sessions
Judge, Lucknow heard and decided the
aforesaid two Sessions Trials together and
vide common judgment and order dated
06.04.2009/09.04.2009,
the
learned
Additional District & Sessions Judge,
Lucknow, convicted and sentenced the
accused/appellants Kamlesh alias Ghora,
Rajesh and Mool Chandra in the manner
as stated hereinbelow :-

"Accused/appellants
Kamlesh
alias Ghora, Rajesh and Mool Chandra
:-

Under section 302 read with
Section 34 of the Indian Penal Code to
undergo life imprisonment and a fine of
Rs.10,000/-. In default of fine, to undergo
six
months
additional
rigorous
imprisonment.

Accused/appellant
Kamlesh
alias Ghora :-

Under Section 25 of Arms Act to
undergo three years rigorous imprisonment
and a fine of Rs.2000/-. In default of fine,
to
undergo
one
month
additional
imprisonment.

All the sentences were directed to
run concurrently."

14.
 Feeling
aggrieved
by
the
impugned judgment and order dated
06.04.2009/09.04.2009,
convict/appellant
Kamlesh
alias
Ghora
has
preferred
Criminal Appeal No. 1104 of 2009,
whereas
convict/appellant
Rajesh
has
preferred Criminal Appeal No. 1105 of
2009 and convict Mool Chandra has
preferred Criminal Appeal No. 1077 of
2009.

15. It is pertinent to mention here that
during pendency of the aforesaid appeals,
convict/co-accused Mool Chandra died,
hence his Criminal Appeal No. 1077 of
2009 filed before this Court stood abated
vide order dated 22.02.2022.

16. Since the above-captioned appeals
arise out of a common factual matrix and
impugned judgment, we are disposing them
of by a common judgment.
1126 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Shorn off unnecessary details the
facts of the case are as under :-

The informant-Radha Devi d/o Hira
Lal (P.W.1) lodged a written report (Ext. Ka.1)
dated 20.06.2005 at police station Itaunja,
Lucknow, alleging therein that she is the
resident of Village Dugauli, Police Station
Madhiyao, District Lucknow, current address
Village Gohona Khurd, Police Station Itaunja,
District Lucknow. After the death of her mother
about a year back, her father Hira Lal married to
another woman, who was the daughter of Mool
Chandra s/o Jhole, resident of Pipari, Police
Station Itaunja. After marriage, they were
residing at Village Gohana Khurd, Police
Station Itaunja.

On 17.06.2005, her father had beaten
her second mother, upon which her second
mother had gone to her parental village Pipri.
On account of the said enmity, on 17.06.2005,
at 4.00 p.m., when her father along with her
(P.W.1) and her brother Rajneesh (P.W.2) had
come to village Pipri, which is adjacent to her
village, to take her second mother, an
altercation took place between Mool Chandra
(accused/convict) and her father on the issue of
leaving the house of her second mother, on
which her father got angry and left for home. In
the meanwhile, Kamlesh, Rajesh s/o Mool
Chandra
(convicts/appellants)
and
Mool
Chandra (accused/convict) surrounded her
father and Kamlesh (convict/appellant) fired
two shots upon her father by his gun and when
her
father
fell
down,
Mool
Chandra
(accused/convict)
and
Rajesh
(convict/appellant) assaulted her father with
banka, due to which her father died on spot.
The incident was witnessed by her (P.W.1), her
brother- Rajneesh (P.W.2), Babu Lal s/o Molhe
Ram (P.W.4) resident of Village Mohana Khurd
and other persons.

18. Thereafter, informant-Radha Devi
(P.W.1) got the FIR scribed by Mohd. Bilal,
who after scribing it read it over to her. She,
thereafter, affixed her signature on it. She
then proceeded to Police Station Itaunja and
lodged it.

19. The evidence of P.W.5- Molhey
Ram shows that on 20.06.2005, he was
posted as Head Constable at Police Station
Itaunja, Lucknow. On the said date,
informant Radha Devi (P.W.1) came along
with a written report at police station. On
the basis of the written report, he registered
an F.I.R. on the same date at 06:40 p.m. as
chik no. 59 of 2005, case crime no. 73 of
2005, under Section 302 I.P.C., Police
Station Itaunja, District Lucknow. He
proved the chik F.I.R. (Ext. Ka. 6). He also
proved the GD (Ext. Ka.7).

It appears that the trial Court has
provided opportunity to cross-examine
P.W.5-Molhey Ram but he was not crossexamined by the defense.

20. A perusal of the chik FIR shows
that the distance between the place of
incident and Police Station Itaunja was 6
kilometers. It is significant to mention that
a perusal of the chik FIR also shows that a
case
under
Section
302
I.P.C.
was
registered against appellants, Kamlesh,
Rajesh and Mool Chandra.

21. The investigation of the case was
conducted by P.W.7-S.I. Panna Lal Saroj,
who, in his examination-in-chief, had
deposed that on 20.06.2005, he was posted
as Sub-Inspector in police station Itaunja.
On the same day, on the basis of written
report lodged by informant-Radha Devi
(P.W.1), FIR was lodged as Case Crime
No.76 of 2005, under Section 302 I.P.C.
and he himself started the investigation. On
the same day, firstly he filled the form and
mentioned the hindi copy of FIR in G.D.
4 All. Kamlesh @ Ghora Vs. State of U.P.
1127
On pointing out of the informant Radha
Devi (P.W.1), the place of occurrence was
investigated by him. Site plan (Ext.Ka-9)
was prepared by him, which is in his
handwriting and signature. Secondly, on
21.06.2005, he recorded the statement of
the witnesses of Panchayatnama and memo
(fard) - Dr. Ajay Kumar, Dharmveer,
Ramesh, Kallu and others. After that he
recorded the statement of witness Babu Lal
(P.W.4) and Rajneesh (P.W.2). During the
inspection of place of occurrence, he
recovered blood stained banka (Ext. Ka.3)
and empty cartridge (Ext. Ka.5), collected
plain soil and blood stained soil (Ext. Ka.
4) under memo (fard) dated 20.06.2005. On
the same day, in his presence and on his
instruction, panchayatnama (Ext.Ka-2) was
prepared by S.I. Ayodhya Prasad Pathak on
which he made his signature. The challan
lash (Ext.Ka-10), photo lash (Ext. Ka-11)
and
specimen
seal
(Ext.Ka-12)
was
prepared by S.I. Ayodhya Prasad Pathak,
who accompanied him and the same was
signed by him. Letter to the C.M.O.
(Ext.Ka-13) was prepared and was signed
by him. On 23.06.2005, he prepared paper
(parcha) no.3 and also made search for
accused persons.

On
25.06.2005
the
accused
persons surrendered before the court
concerned and sent to jail and the details of
the same was mentioned in paper no.4. On
29.06.2005, statements of accused persons
were recorded in District Jail, after taking
permission from the court concerned,
which is mentioned in paper no.5. On
05.09.2005, paper no.6 was prepared in
which it was mentioned that accused
Kamlesh @ Ghora was taken on police
custody/remand with the permission of
court concerned and on his pointing out,
pistol used in commission of crime and
cartridge were recovered. On the place of
recovery, one pistol 12 bore, one live
cartridge were recovered and its memo
(Ext.Ka-14) was prepared, which was
written and signed by him. Thereafter, on
07.07.2005 paper no.7 was prepared in
which it was mentioned that docket of one
box each of blood stained soil and plain
soil and one bundle containing clothes of
the deceased was prepared and the same
was sent to Forensic Science Laboratory.
On 08.07.2005 paper no.8 was prepared in
which it was mentioned that copy of
panchayatnama and copy of post-mortem
report was made. On 20.07.2005, paper
no.9 was prepared which stated that
statement of scriber of FIR Moharrir
Mohley Ram (P.W.5) was recorded.

On 31.07.2005, paper no.10 was
prepared which stated that on receiving the
docket, copy of the pistol 12 bore and
empty cartridge, which were sent to the
Forensic Science Laboratory, Lucknow for
testing, the evidence was found, on the
basis of which charge sheet No.77 of 2005
(Ext.Ka-15), which is in his handwriting
and signature, was sent to court concerned.
On 23.10.2005, in S.C.D. -II, the details of
the report of Forensic Science Laboratory
was mentioned and the report, which was
received, was also annexed. The sealcovered goods (Ext.1), which were in the
cloth of ''markeen', were opened before the
court and seeing one pistol and three empty
cartridges and one live cartridge that came
out from inside, the witness said that it was
the same gun (Ext.2), a live cartridge
(Ext.3) and three empty cartridges (Ext.4, 5
& 6) which were recovered from accused
Kamlesh. Before the court, a sealed packet
was opened, on cloth Ext.7 was marked and
Ext.8 was marked on a carton received
from inside. A banka (in sealed condition)
(Ext.10) was also received from inside and
after seeing this, the witness said that it was
the same weapon, used in the commission
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
of crime, and recovered from the place of
occurrence. The containers of blood stained
soil and plain soil were found sealed
separately, on the clothes of which Ext.11
and Ext.12 were marked; on two containers
Ext.13 and Ext.14 were marked; and Ext.15
and Ext.16 were marked on plain soil and
blood stained soil respectively; Ext.17 was
marked on sealed bundle containing clothes
of the deceased; and Ext.18 was marked on
clothes.

In
his
cross-examination,
he
deposed that to take accused persons in
police custody, he went along with S.I.
Ayodhya Prasad Pathak, Constable Phool
Singh Yadav and Constable Om Prakash
from police station. He firstly said that he
did not remember the time of departure
from police station, but soon after he stated
that at 8.30 p.m. they left for jail from
police station. He did not remember the
exact time when the accused were taken
into custody. The fact that on which time
the accused Kamlesh was taken into
custody from jail was not mentioned in the
case diary. At that time, he was not aware
from where the gun used in the commission
of crime, was to be recovered. After taking
the custody, he went to village Pipri via
Itaunja on asking of accused Kamlesh. He
mentioned the said fact in the case diary.
The time of reaching at Village Pipri was
not mentioned in the case diary. The
population of village Pipri was about 500600. He did not remember under which Sub
Inspector's area Pipri village falls. He tried
himself to take witnesses but due to fear
and ill-will no-one was ready. None of the
witness disclosed name and address and
left. In the case diary he did not mention
the name of the witnesses but he wrote that
no-one was ready to give evidence because
of ill-will. Sealed bundle which contained
country made pistol did not bear any
signature and on it "Crime No.85/2005 and
Crime No.76/2005" was written in his
handwriting, which was the crime number
punishable under Section 3/25 of Arms Act
in the case of State Vs. Kamlesh. The word
"and" was written between both the crime
numbers by him. Under the aforesaid
expression,
the
details
of
Crime
No.85/2005 and Crime No.76/2005 were
written by him. The aforesaid were written
by him at the place of recovery. He did not
put any handwritten slip on the country
made pistol. Likewise he did not put any
handwritten slip over the cartridges. He
further deposed that when recovered
articles,
recovered
weapons,
recovery
memo are sent to police station and the
case is registered, only then crime number
of case of recovered weapon is determined.
After the recovery made in this case, he
reached police station at 17:15 hour and
thereafter the case was registered and crime
number was determined. The accused
persons were lodged in police station. He
finished the paper work of that day after
reaching the police station, but did not
mention any time. He denied the suggestion
that on pointing out of accused, no country
made pistol was recovered. The expression
written with blue pen on the bundle
containing banka is in his handwriting. He
denied the suggestion that banka was not
sealed at the place of occurrence. It is
wrong to say that forged paper work was
done at the police station.

In
his
cross-examination,
he
deposed that in front of his police station, a
concrete road goes towards Amaniganj. The
scriber of the present FIR is Mohd. Bilal r/o
Amaniganj. Amaniganj comes under Police
Station Itaunja. He did not mention the
name of Mohd. Bilal in the list of witnesses
in charge sheet. He did not record the
statement of Mohd. Bilal and he did not
write the reason in case diary that Mohd.
Bilal
was
not
examined
during
4 All. Kamlesh @ Ghora Vs. State of U.P.
1129
investigation. The fact that Mohd. Bilal was
searched and he could not be found was
also not mentioned in the case diary. Where
the incident was allegedly occurred, there is
an orchard of mango trees. Kalmi mango
trees were also in the garden and who was
looking after orchard, it is not mentioned in
the case diary. He did not write timing of
his reaching at the place of occurrence in
the case diary and the fact of tracing those
people is not even written in the case diary,
but he mentioned the timing of recording
the statement of informant in case diary. He
did not mention the timing of recording the
statement of witness Rajneesh in the case
diary. He did not mention his duration of
time at the place of occurrence in the case
diary. He did not mention in how much
time he completed the first paper in the
case diary. Likewise, he did not mention
about the timing of completion of any
paper in case diary. The date is also not
there under the endorsement made by the
C.O. on the first paper. Likewise, there is
no date on any of the papers below the
order of the C.O. He further deposed that
during investigation it did not come to his
knowledge that the deceased had done
many marriages and with regard to said
fact, during investigation, he did not record
any statement or got any information. On
the day of incident, he did not go to police
station and he remained in the area in
search of accused persons. He did not point
out any particular place where he made
search. It is wrong to say that he did not
recover any weapon of assault on the
pointing out of accused Kamlesh and on
return, he made a forged recovery.
Informant Radha Devi did not inform him
about the fact that she along with his father
and brother left from their house. It is
wrong to say that he did all the
investigation of the case, sitting at the
police station.

22. P.W.8-Guru Sahai Bhargav,
Constable, in his deposition, stated that on
05.07.2005 he was posted as Constable
Clerk at Police Station Itaunja. He proved
the FIR of case under Section 3/25 of Arms
Act as Ext.Ka-16.

In his cross-examination he stated
that it is wrong to say that no recovery was
made from the accused nor any specimen
seal was prepared and the same has been
prepared in a forged manner while sitting at
Police Station.

23. P.W.9 Head Constable Ajay Pratap
Singh, Police Station Manpur, District
Sitapur, in his deposition, stated that on
05.07.2005, he was posted as Head
Moharrir at Police Station Itaunja, District
Lucknow. At 17.15 hour. S.H.O. Panna Lal
Saroj (P.W.7) along with other police force
brought accused Kamlesh @ Ghora s/o
Mool Chandra r/o Pipri, Police Station
Itaunja Lucknow along with recovered
articles used in the commission of crime,
i.e., one country made pistol 12 bore and a
cartridge in a seal covered state and
submitted at Police Station. An entry was
made in Rojnamcha as Case Crime No.85
of 2005, under Section 3/25 of Arms Act at
Rapat No.37. G.D. entry of the same was
made by him being Head Moharrir. The
carbon copy of the entry G.D. was prepared
in the same process alongwith the original,
which is paper no.1/14. That was written in
his handwriting over which Ext.Ka-17 was
marked.

In
his
cross-examination,
he
stated that he did not go to jail. He only
made entry in G.D. He did not bring the
G.D. in original. The recovery was not
made before him. The recovery was made
by S.O. and he only made entry of the
same. He also made entry of one pistol 12
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
bore and a live cartridge. Empty cartridge
was not recovered before him. He did not
remember that before this G.D. entry,
which and at what time G.D. entry was
made and he also did not remember at what
time and which G.D. entry was made
subsequent to the G.D. entry of this case. It
is wrong to say that the FIR is anti-timed.

24. P.W. 10 - Shri Ram, S.H.O.
Fakharpur,
District
Bahraich,
in
his
deposition, stated that on 05.07.2005 he
was posted as Sub-Inspector, Police Station
Itaunja,
District
Lucknow.
He
was
entrusted with the investigation of Case
Crime No.85 of 2005, under Section 3/25
of Arms Act. On 03.09.2005 after obtaining
the necessary permission from District
Magistrate
and
finding
the
offence
established, he dispatched the Charge Sheet
No.89 of 2005.

In
his
cross-examination
he
deposed that there is no witness of
recovery. No time was mentioned in the
case diary with regard to taking the
statement of witnesses - Panna Lal Saroj
(P.W.7), Om Prakah Pathak & others. The
time of inspection of the place of
occurrence has also not been mentioned in
the C.D. It is wrong to say that
investigation has been carried out in the
Police Station.

25. The postmortem of the body of
deceased Heera Lal was conducted on
21.06.2005 at 10:50 a.m. at Ram Manohar
Lohiya Hospital, Lucknow by Dr. Anil
Kumar Srivastava, Senior Cardiologist
(P.W.6), who, found the following antemortem injuries on his person :-

"(i) Multiple incised wound in
area 12 cm x 10 cm, present over front and
both side of face. Size ranging from 2 cm x
2.5 cm x muscle deep to 3 cm x 1 cm x bone
deep.

(ii) Incised wound - 3 cm x 1 cm x
bone deep present on right side of forehead
just above right eye brow, underlying
frontal bone cut.

(iii) I W - 1.5 cm x 1 cm x bone
deep present over chin underlying bone
mandible cut.

(iv) I W- 12 cm x 6 cm x vertebrae
deep present on front and both side neck
just above the thyroid cartilage underlying
soft tissue minor and margin vessles
layering pharynx and larynx found cut
underneath the injury 2nd and 3rd centre
vertebrae found cut above outer spinal
chord.

On opening eechymosis present
underneath all the injuries mentioned
above. Margins of all above injuries are
sharp and clean cut and well defined
tailing present (IW).

(v) FIRE ARM WOUND OF
ENTRY- 2 cm x 3 cm abdominal cavity deep
present outer aspect of Right side of
abdomen 18 cm above right illiac crest.
MARGINS- INVERTED AND IRREGULAR
BLACKENING, TATOOING, BURNING,
CHARRING present around the wound in
area 6 cm x 5 cm."

As per the opinion of Dr. Anil
Kumar Srivastava (P.W.6), the casuse of
death was shock and haemorrhage as a
result of ante-mortem injuries.

26. It is significant to mention here
that Dr. Anil Kumar Srivastava (P.W.6), in
his examination-in-chief, had reiterated the
aforesaid cause of death of the deceased
and deposed that on 21.06.2005, he was
posted at Ram Manohar Lohiya Hospital,
Gomti Nagar, Lucknow and on that day, his
duty was in post-mortem room. He
conducted the post-mortem examination of
deceased -Hira Lal aged about 35 years,
4 All. Kamlesh @ Ghora Vs. State of U.P.
1131
who was brought by Constable 1725 Ram
Kumar Tiwari, Police Station Itaunja whose
post mortem number was 1682 of 2005. At
the time of post mortem, rigor mortis was
present in the whole body; the deceased
was of average height; and both eyes were
closed. In his opinion, all the injuries could
have been possibly caused on 20.06.2005 at
4.00 p.m. The postmortem report (Ext. Ka8) is in his handwriting and signature. In
the opinion of the doctor, the reason of
death was shock and hemorrhage due to
ante mortem injuries, which was caused by
fire arm injuries and the injuries were
caused by sharp edged weapon.

In
his
cross-examination,
he
stated that there is only one injury of fire
arm. 29 pellets were found from the body.
By observing the rigor mortis, it is deduced
how much time has passed since death.
There may be a difference of 12 hours on
either side in the time of death. It is not
possible to tell the exact time. The death
could have happened even before 36 hours.
He further deposed that 90 ml. liquid
substance was found in the stomach of the
deceased. After two and half hours of
having a meal, the food goes beyond the
stomach. The deceased must have had food
about two and half hours ago ahead of
death. He could not tell, from how far does
the blackening, charring and tattooing in a
fire arm injury would occur. Ballistic expert
can tell. There was no contusion or
abrasion on the body of deceased.

27. The case was committed to the
Court of Sessions by Chief Judicial
Magistrate, Lucknow on 24.11.2005. The
trial Court had framed charges against the
convict/appellants, namely, Kamlesh @
Ghora, Rajesh and accused/convict Mool
Chandra for the offences punishable under
Sections 302 I.P.C.; the trial court has also
framed charges against convict/appellant
Kamlesh @ Ghora for offence under
Section 3/25 of Arms Act. They pleaded not
guilty to the charges and claimed to be
tried. Their defence was of denial.

28. During trial, the prosecution
examined ten witnesses in all, namely,
P.W.1-Radha Devi, who is the informant
and daughter of deceased-Hira Lal, P.W.2
Rajneesh, who is son of deceased-Hira Lal,
P.W.3-Dharmveer, who is the witness of
Panchayatnama, P.W.4 Babu Lal, who is
the
independent
witness,P.W.5-Mohley
Ram, who is the scribe of FIR, P.W.6 Dr.
Anil Kumar Srivastava, who conducted the
post-mortem of deceased, P.W.7 S.I. Panna
Lal Saroj, who is the Investigating Officer
of the case, P.W.8 - Guru Sahai Bhargav,
who proved the FIR, P.W.9 -H.C. Ajay
Pratap Singh, and P.W.10 Shriram, who
conducted the investigation of the case
lodged against appellant/convict Kamlesh
alias Ghora for the offence under Section
25 of the Arms Act.

29. It is pertinent to mention that
excepting Radha Devi (P.W. 1) and
Rajneesh (P.W.2), the other two witnesses,
namely, P.W.3-Dharamveer and P.W.4Babu Lal have turned hostile and when
confronted with those portions of their
statements under Section 161 Cr. P.C. they
had denied any such statement made by
them. The informant Radha Devi (P.W.1)
and his brother Rajneesh (P.W.2), however,
stood firm as a rock of Gibraltar.

30. The informant-Smt. Radha Devi,
who is the daughter of deceased, was
examined
as
P.W.1.
She,
in
her
examination-in-chief, deposed that the
incident took place on 20.06.2005 at 4.00
p.m. She stated that after a year of death of
her first mother, her father got married
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
again to one Seema d/o Mool Chandra
(convict/accused) r/o Village Pipri. She has
a brother; her father lived along with her
second mother; and brother in a house
constructed in Gohna Khurd. Two-three
days before the incident, a scuffle took
place between her father and her second
mother and her father slapped her mother.
Being annoyed of that, her second mother
had gone to her parents' place at Pipri. She
further deposed that she along with her
father (deceased) and brother Rajneesh
(P.W.2) had gone to Pipri to bring her
second mother back. On the day of
incident, a quarrel took place amongst her
father, Mool Chandra (convict/ accused),
Kamlesh and Rajesh (convict/appellants),
on which her father became angry and took
the informant (P.W.1) and her brother
(P.W.2) and left their house. There is
mango orchard of Munna Maurya near
Mool Chandra's house. When they were
going,
Kamlesh,
Rajesh
(convicts/appellants) and Mool Chandra
(convict/accused) surrounded her father
(deceased).

P.W.1 had further deposed that
Kamlesh (convict/appellant) fired two shots
upon her father Hira Lal. Having sustained
injuries, her father fell down on the ground.
The injury was of gunshot. He sustained
the bullet near his waist and blood was
oozing out. Thereafter, Mool Chandra
(convict/accused) caught hold her father
and Rajesh (convict/appellant) slit his
throat with banka. At that time, she
(informant P.W.1) and her brother Rajneesh
(P.W.2) and one other person Babu Lal
(P.W.4) were present at the place of
incident. She (P.W.1) and her brother
(P.W.2) ran towards Police station, but
before reaching police station, they met a
person and they narrated the incident to
him, who wrote a report on a paper. The
said person read over the report on which
the witness made her signatures and took
the paper to police station and submitted
there. This witness has proved the report
and recognized her signatures on that. She
further deposed that her father died on spot
and Inspector inquired from her about the
incident. He took her to the place of
occurrence where the body of her father
was lying. She identified the accused
persons before the court and stated that
they were the accused who committed
murder of her father. She identified the
convict/appellant Kamlesh and stated that
he was the person who shot at her father
with country made pistol. On seeing
accused Mool Chandra in witness box, she
stated that this accused was holding her
father at the time of incident. On seeing
accused/appellant Rajesh in witness box,
she stated that it was the person who slit the
throat of her father.

In her cross-examination, P.W.1
stated that village Gohna Khurd is
surrounded by forest on the southern side
which is 1/2 km away from residential area
and her house is there in forest under the
trees. Her house is made of mud walls and
thatch and its width is 2x4 hands wide and
length 7x8 hands. Other rooms of some
other persons are also there, but she does
not know the exact number of rooms.
About one month ahead of the date of
incident her father was living there. Other
people were living in other rooms. She is
familiar with their faces but she does not
know their names. The thatched house was
built by her father. Her father was not
having any land there. She was not aware
about the occupation of her father. Earlier
her father was residing in a pakka house at
Dudholi, which has one room and a
verandah, with her mother. About two years
ago, she used to live with her mother. After
the death of her mother she started living
4 All. Kamlesh @ Ghora Vs. State of U.P.
1133
with her father. She was not residing with
her grand-father (nana) at Sidhauli. Her
grand-father (nana) and maternal uncle
(mama) are alive. She went to her grandfather's (nana) place. She did not live in
Dudoli with her father, after the death of
her mother.

P.W.1 further deposed that she
never went inside the village Gohna Khurd,
however, she knew one or two persons of
Gohna Khurd. She does not remember their
names but can identify by their faces. She
does not know Babu Singh r/o- Village
Gohna. She does not know village Pradhan
Lala of village Gohna. She knows village
Pipari but she is not aware about the
distance between her house and village
Pipari. She went to village Pipari about one
month ago. She went to village Pipari one
month ahead of the incident, also she went
to village and on the day of incident. On
the day of incident, she went to village
Pipari from her house via the way which
goes through fields of village Gohna. Her
father along with her brother (Rajneesh)
went to vilage Pipari. At that time no body
was left her house. She went to village
Pipari at about 10-11 a.m. and directly
reached there within half an hour. On the
way she saw many persons working in their
fields but she could not tell their names.
Nobody asked her father where he was
going. They went directly to the house of
Mool Chandra. The daughter of Mool
Chandra is her new mother and her name is
Seema and they met her at the house. She
could not tell how many houses are there at
village Pipari. She could not tell about the
house of Mool Chandra whether it was a
Katcha house or Pakka house but a thatch
was there on the front.

She further stated that her mother
died at Dudoli and after that she lived with
her father continuously till he died. It is
wrong to say that her father got his third
marriage performed at village Mosaud. It is
wrong to say that her second mother r/o-
village Mosaud is alive and her father got
his third marriage performed at village Jutti
and her third mother is alive. It is wrong to
say that her father got his fourth marriage
performed at village Parsau. She is not
aware that her father got his marriage
performed with Seema in writing or not. It
is wrong to say that his father got the
aforesaid marriages registered at Registrar
Office. It is wrong that her father was
involved in a quarrel with the persons of
village Parsau regarding jewellery. It is
wrong to say that about 15 days ahead of
the day of incident miscreants attacked at
their house situated in Gohna.