# Kamlesh Tiwari & Ors v. State of U.P

- **Citation:** (2025) 11 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-24
- **Case number:** Criminal Appeal No. 2516 of 2022
- **Bench:** Siddhartha Varma, Madan Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-tiwari-ors-v-state-of-u-p-54895
- **Pages:** 19

## Headnote

G.A., Prateek Mishra, Saurabh Singh, Siddhartha
Baghel, Sumit Kumar Srivastava, Vibhu Rai

Issue for Consideration
Matter pertains to correctness and sustainability
of conviction under Ss. 147, 148, 149, 302, 307,
452, 506 IPC read with S. 7 of the Criminal Law
Amendment Act, primarily on the questions of
place of occurrence, credibility of eye-witnesses,
non-examination
of
material
witnesses,
inconsistency with site plan and investigation,
and benefit of doubt.

Headnotes
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
631
Criminal Trial - Appreciation of Evidence -
Place of Occurrence - FIR alleging incident
"inside the house" contradicted by site
plan and investigating officers - No blood
or
signs
of
firing
inside
house
-
Prosecution version not corroborated -
Witnesses - Credibility - Interested /
Unreliable Witness - P.W.-1 found "highly
unbelievable"
-
Conduct
unnatural
-
Absence in Panchayatnama witnesses -
Presence
at
scene
doubtful
-
NonExamination
of
Material
Witnesses
-
Named eye-witnesses not produced -
Adverse
inference
drawn
-
Weakens
prosecution case materially - Medical
Evidence - Contradiction with Ocular
Version - No blackening or tattooing -
Only
two
gunshot
injuries
despite
allegation
of
indiscriminate
firing
-
Prosecution story falsified
- Forensic
Evidence - Non-matching of Ballistics -
FSL report did not match recovered
firearms with bullet found in body - No
effort to match bullet with informant's
licensed revolver - Benefit of Doubt -
Acquittal - Prosecution failed to prove
case
beyond
reasonable
doubt
-
Conviction set aside - Appeal Against
Acquittal - Cross Case - Delay in medical
examination - Injuries unexplained - Two
possible
views
-
No
interference
warranted.

Held: The incident had occurred much away
from the house and never definitely inside the
house and that no tell tale signs of the incident
were to be found inside the house - P.W.-1
was a highly unbelievable eye-witness who in
all probability was not even there at the site -
non-production
of
named
eye-witnesses
including Vyasji Tiwari, Manju Tiwari and
Sadhna Tiwari rendered prosecution case
weak - medical and forensic evidence did not
support prosecution version and further
falsified the case - conviction dated 31.3.2022
is unsustainable - Criminal Appeal Nos. 2516
of 2022 and 2518 of 2022 allowed -
Appellants
acquitted
of
all
charges
-
prosecution in cross-case failed to prove
charges - Criminal Appeal U/S 372 Cr.P.C. No.
952 of 2022 dismissed - Government Appeal
No.
388
of
2022
dismissed.
(Paras
34,35,36,37,38,39,49,50,51) (E-7)
Case Law Cited
Syed Ibrahim vs. State of Andhra Pradesh
(2006) Crl LJ 4087; Pohlu vs. State of
Haryana (2006) Crl LJ 532; State of M.P. vs.
Mishrilal (dead) and others (2003) 9 SCC 426;
Takhaji
Hiraji
vs.
Thakore
Kubersing
Chamansing (2001) 6 SCC 145; Rizan and
another vs. State of Chattisgarh (2003) 2 SCC
661; Wassan Singh vs. State of Punjab (1996)
1 SCC 458; Partap vs. The State of U.P.
(

## Text

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630 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in the case of Sharad Birdhi Chand
Sarda vs State Of Maharashtra (Supra).
The
prosecution
has
successfully
established the guilt of the appellant for
causing murder of his wife Anita Pal,
beyond
a
reasonable
doubt.
The
possibility of any other person being
responsible for the death being ruled
out, it can be safely said that the
Prosecution has been able to prove the
charges against the appellant. This
Court has further noticed that the
appellant did not participate in the
panchayatnama also, which shows
the conduct of the appellant post-crime
is under suspicion and a relevant fact
under Section 8 of The Indian Evidence
Act;
Further,
there
has
been
no
explanation as to why despite the
prolonged absence of his wife, the
appellant did not make any substantive
effort to ascertain her whereabouts, nor
filed any complaint which reflects a
lack of due diligence on his part,
considering the pious duty inherent in a
marital relationship.

32. Ergo, due to the foregoing reasons,
we are of the view that no material
illegality has been committed by the
learned Trial Court in appreciating the
evidence against the appellant, nor it can be
said that any gross injustice has been
caused to the appellant by the impugned
judgment by misreading or ignoring any
material evidence.

33. We are, therefore, satisfied that the
conviction of the appellant by the Trial
Court does not warrant any interference
from this Court and as such sustain the
conviction and sentence of the appellant
under Section 302 of the Indian Penal
Code, with regard to the murder of his
wife, Anita Pal.

34.
Resultantly,
the
appeal
is
dismissed and the impugned judgment and
order dated 25.08.2017, passed by the
learned Trial Court in Sessions Trial No.
205 of 2015, arising out of Case Crime no.
124 of 2015, is upheld. Consequently, the
appellant shall undergo the sentence
awarded to him.
----------
(2025) 11 ILRA 630
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MADAN PAL SINGH, J.

Criminal Appeal No. 2516 of 2022
Alongwith
Criminal Appeal U/S 372 Cr.P.C. No.952 of 2022
Alongwith
Criminal Appeal No. 2518 of 2022
Alongwith
Governmentl Appeal No. 388 of 2022

Kamlesh Tiwari & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Akash Dwivedi, Atharva Dixit, Deepak Dubey,
Prabhat Tripathi, Raghuvansh Misra, Rahul
Misra, Rajiv Lochan Shukla, Sr. Advocate

Counsel for the Respondent:
G.A., Prateek Mishra, Saurabh Singh, Siddhartha
Baghel, Sumit Kumar Srivastava, Vibhu Rai

Issue for Consideration
Matter pertains to correctness and sustainability
of conviction under Ss. 147, 148, 149, 302, 307,
452, 506 IPC read with S. 7 of the Criminal Law
Amendment Act, primarily on the questions of
place of occurrence, credibility of eye-witnesses,
non-examination
of
material
witnesses,
inconsistency with site plan and investigation,
and benefit of doubt.

Headnotes
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
631
Criminal Trial - Appreciation of Evidence -
Place of Occurrence - FIR alleging incident
"inside the house" contradicted by site
plan and investigating officers - No blood
or
signs
of
firing
inside
house
-
Prosecution version not corroborated -
Witnesses - Credibility - Interested /
Unreliable Witness - P.W.-1 found "highly
unbelievable"
-
Conduct
unnatural
-
Absence in Panchayatnama witnesses -
Presence
at
scene
doubtful
-
NonExamination
of
Material
Witnesses
-
Named eye-witnesses not produced -
Adverse
inference
drawn
-
Weakens
prosecution case materially - Medical
Evidence - Contradiction with Ocular
Version - No blackening or tattooing -
Only
two
gunshot
injuries
despite
allegation
of
indiscriminate
firing
-
Prosecution story falsified
- Forensic
Evidence - Non-matching of Ballistics -
FSL report did not match recovered
firearms with bullet found in body - No
effort to match bullet with informant's
licensed revolver - Benefit of Doubt -
Acquittal - Prosecution failed to prove
case
beyond
reasonable
doubt
-
Conviction set aside - Appeal Against
Acquittal - Cross Case - Delay in medical
examination - Injuries unexplained - Two
possible
views
-
No
interference
warranted.

Held: The incident had occurred much away
from the house and never definitely inside the
house and that no tell tale signs of the incident
were to be found inside the house - P.W.-1
was a highly unbelievable eye-witness who in
all probability was not even there at the site -
non-production
of
named
eye-witnesses
including Vyasji Tiwari, Manju Tiwari and
Sadhna Tiwari rendered prosecution case
weak - medical and forensic evidence did not
support prosecution version and further
falsified the case - conviction dated 31.3.2022
is unsustainable - Criminal Appeal Nos. 2516
of 2022 and 2518 of 2022 allowed -
Appellants
acquitted
of
all
charges
-
prosecution in cross-case failed to prove
charges - Criminal Appeal U/S 372 Cr.P.C. No.
952 of 2022 dismissed - Government Appeal
No.
388
of
2022
dismissed.
(Paras
34,35,36,37,38,39,49,50,51) (E-7)
Case Law Cited
Syed Ibrahim vs. State of Andhra Pradesh
(2006) Crl LJ 4087; Pohlu vs. State of
Haryana (2006) Crl LJ 532; State of M.P. vs.
Mishrilal (dead) and others (2003) 9 SCC 426;
Takhaji
Hiraji
vs.
Thakore
Kubersing
Chamansing (2001) 6 SCC 145; Rizan and
another vs. State of Chattisgarh (2003) 2 SCC
661; Wassan Singh vs. State of Punjab (1996)
1 SCC 458; Partap vs. The State of U.P.
(1976) 2 SCC 798; State of Rajasthan vs.
Kishan Singh (2002) 10 SCC 160; Lakshmi
Singh & others vs. State of Bihar (1976) 4 SCC
349; Bhagwan Sahai & another vs. State of
Rajasthan (2016) 13 SCC 171;Tori Singh and
Another vs. State of Uttar Pradesh AIR 1962
SC 399; Maqbool alias Zubir alias Shahnawaz
and another vs. State of Andhra Pradesh AIR
2011 SC 184; Jagdish Narain and another vs.
State of U.P. 1996 AIR SC 3136; State of
Karnataka vs. K. Yarappa Reddy 1999 SCC 8
715; Har Shanker vs. State of U.P. 1996 SCC 9
40; State of Rajasthan vs. Arjun Singh and
others 2011 AIR SC 3380; State of Punjab vs.
Hakam Singh (2005) 7 SCC 408;Dhanaj Singh
alias Shera and others vs. State of Punjab
(2004) 3 SCC 654;V.K. Mishra and another vs.
State of Uttarakhand and another 2015 AIR SC
3043; Dayal Singh and others vs. State of
Uttaranchal 2012 AIR SC 3046; Brahm
Swaroop and another vs. State of Uttar Pradesh
2010 AIR SC 6704;Sucha Singh and another
vs. State of Punjab 2003 (7) SCC 643; State
of Himachal Pradesh vs. Jeet Singh AIR 1999
SC 1293; Bikau Pandey and others vs. State of
Bihar AIR 2004 SC 997; Amar Singh vs.
Balwinder Singh and others 2003 SCC (2)
518; Manjit Singh and another vs. State of
Punjab and another 2013 (12) SCC 746; Balu
Sudam Khalde & Anr. vs. State of Maharashtra
AIR 2023 SC 173; Johar and Ors. vs. Mangal
Prasad and Anr. AIR 2008 SC 1165

List of Acts
Indian Penal Code (IPC), 1860; Code of Criminal
Procedure
(Cr.P.C.),
1973;
Criminal
Law
Amendment Act.

List of Keywords
place of occurrence; first information report;
indiscriminate firing; site plan
blood
stains; eye-witness; panchayatnama;
ballistic evidence; benefit of doubt
632 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal; cross-case

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Against
the judgment and order dated 31.3.2022 passed
by the Additional Sessions Judge, Court No. 11,
Allahabad, in Sessions Trial No. 620 of 2011 and
Sessions Trial No. 1045 of 2011, arising out of
Case Crime No. 209 of 2010, Police Station
Manda, District Allahabad.

Appearances for Parties
Advs. for the Appellant:
Akash Dwivedi, Atharva Dixit, Deepak Dubey,
Prabhat Tripathi, Raghuvansh Misra, Rahul
Misra, Rajiv Lochan Shukla, Sr. Advocate
Advs. for the Respondents:
G.A., Prateek Mishra, Saurabh Singh, Siddhartha
Baghel, Sumit Kumar Srivastava, Vibhu Rai

(Delivered by Hon'ble Siddhartha Varma, J
&
Hon'ble Madan Pal Singh, J.)

1. The criminal appeal No. 2516 of 2022
and Criminal Appeal No. 2518 of 2022 have
been filed against the judgement and order
dated 31.3.2022 passed by the Additional
Sessions Judge, Court No. 11, Allahabad, in
Sessions Trial No. 620 of 2011 (State vs.
Rakesh Tiwari and another and Session Trial
No. 1045 of 2011(State vs. Kunjan Lal
Tiwari and others) arising out of Case Crime
No. 209 of 2010 under Sections 147, 148,
149, 302, 307, 452, 506 of IPC and Section 7
of the Criminal Law Amendment Act, Police
Station - Manda, District - Allahabad.

2. Upon an incident having taken place
allegedly at 9:00am on 17.12.2010, a first
information report was lodged at 1:00pm
by the son of the deceased Vinay Kumar
Tiwari who had appeared in the case as
P.W.-1. The name of the deceased was
Daya Shankar Tiwari.

3. This made the investigating agency
i.e. the U.P. Police to go into action and a
panchayatnama was drawn vis-a-vis the
dead body on 17.12.2010 itself at around
3:00pm. Thereafter, on the next day i.e. on
18.12.2010, the post mortem of the dead
body was conducted at 12:30PM. The
police had collected from the site in
question, blood stained soil and plain soil
along with a muffler. Pieces of broken
glass were also recovered and a recovery
memo of those recovered articles was made
and the injured Vidhan Chandra Tiwari was
attended to and injury report which is
exhibited as Exhibit Ka3 was also prepared
on that very date. Also, the X-rays of the
injuries which were required to be taken
was done. After the conclusion of the
investigation, the Police submitted its
report
on
15.3.2011.
Thereafter,
the
Additional Sessions Judge, on 20.7.2011
framed charges against Rakesh Tiwari and
Kamlesh Tiwari. Thereafter, charges were
also framed against Nageshwar Tiwari,
Vedmani Tiwari and Kunjan Tiwari. For
proving the case, the prosecution produced
as many as 10 prosecution witnesses who
were as follows:-

1.Vinay Kumar Tiwari 2. Vidhan
Chandra Tiwari 3. Dr. Santosh Kumar 4.
Dr. S.P. Singh 5. Ram Jeevan 6. Anil
Kumar 7. Deep Kumar, 8. Dr. Mani Bhusan
Tiwari, 9. Awadhraj, and 10. Surendra
Kumar Sharma.

4. Form the side of the defence, 5
defence witnesses were produced who were
as follows:-

1. Dr. Ankit Ram, 2. Ram Jeevan,
3. Dr. B.K. Singh, 4. Dr. S.K. Rai, 5.
Manoj Kumar Shukla.

5. The P.W.-1, Vinay Kumar Tiwari,
had on oath stated that the day when he
commenced
with
his
testimony,
the
incident had been 7 months old. He has
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
633
stated that on account of the fact that the
accused persons, namely, Kunjan Lal
Tiwari, Rakesh Tiwari, Kamlesh Tiwari,
Nageshwar Tiwari and Vedmani Tiwari
were inimical because of an election
rivalry, they had consciously with weapons
in their hands and with an intention to kill
entered the house of the first informant and
the deceased. He had stated that Kunjan Lal
Tiwari had directly addressed his father and
had questioned him as to why he had
opposed him in the election to the post of
Pradhan. While he was questioning the
father, Rakesh Kumar Tiwari another
accused with a firearm in his hand, fired on
the father of the P.W.-1. Similarly,
Kamlesh Tiwari who had also a firearm in
his hands with an intention to kill had fired.
The bullets fired by Rakesh Kumar Tiwari
had hit the chest of the father of the first
informant and the bullet fired by the
Kamlesh Tiwari had hit Vidhan Chandra
Tiwari on his hip. While this was
happening the elder brother of the first
informant, namely, Vyas Ji raised a hue and
cry and because of that the accused persons
fired
indiscriminately
on
the
first
informant's side. He has stated that Vyas Ji
and he himself hid themselves to save their
lives. He had also, upon a question being
asked as to whether he had seen the
assailants firing, stated that he himself had
seen the assailants firing and that they had
fired in the air. He had stated that before
this incident had occurred, the co-accused
had also warned the first informant that
their whole family would be done away
with. In this regard, the first informant had
also made a representation to the police at
Manda. He had stated that apart from
himself, Vyasji his brother, Sadhna Tiwari,
the wife of Vyasji, Manu Tiwari, the wife
of Vidhan Chandra Tiwari along with many
others of the village had witnessed the
incident.

6. Thereafter, the first informant had
stated that he had taken his injured father
and brother to the Swaroop Rani Hospital
at Allahabad where the doctors had
declared the father late Daya Shankar
Tiwari dead. The injured brother was
admitted in the hospital where his treatment
had immediately commenced. He has
stated that thereafter he had gone to the
Police Station - Manda to get the first
information report lodged. There, he had
stated that he had also got the copy of the
first information report and his statement
was also recorded by the police. He had
proved the first information report which
he had lodged. Thereafter as per his
statement, he came to the place of incident
at around 3:00pm. He has stated that he
himself and his brother Vyasji had not got
injured at all. He has again stated that he
had reached the police station at around
1:00pm and had stayed there for around 2
hours and that the signatures on the first
information report were his. Thereafter, he
had stated that he must have signed on the
first information report at around 1:20PM.
On the chick of the first information report,
he had stated that there were no signatures
of his. He had then stated that the jeep by
which he had taken the 2 injured to
Swaroop Rani Hospital, Allahabad, was
taken by him on rent of Rs. 1,500/-.

7. He had stated that after he had got
the statement recorded at the police station
his statement was never taken again. He
has, thereafter, stated that how and when
various persons had got elected on the post
of pradhan he did not know and thereafter
had stated ultimately that in the year 2010,
Kunjan Lal Tiwari had got elected. He had
stated that Vidhan Chandra Tiwari was his
elder brother and that in the election his
brother had got the second highest number
of vote which was 140.
634 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Upon a question being asked as to
whether he knew about the fact that Kunjan
Lal had got 1600 votes, he had stated that
he had no knowledge about that fact.
However, he knew that he had won the
election. He had stated that the grove which
was on the southern side of the house was
belonging to many owners and that it did
not belong to Ram Sanehi alone. He had
stated that he did not know that a portion of
the land belonging to Ram Sanehi and his
brother Ram Dayal was sold to the one of
accused. He had denied the fact that any
door had been opened one month prior to
the date of the incident on the southern of
his house and has stated that, in fact, the
door was in existence since 2005. He had
also stated that the cross - case in which the
informants were accused was also pending
in the same court. He had further stated that
when he had gone to get the first
information report lodged, he was aware of
the fact that Rakesh Tiwari had shot his
father dead. He has stated that he did not
remember if he had stated in the first
information report that Kunjan Lal upon
reaching the house of the informant had
stated that he had questioned as to why the
Daya Shanker Tiwari had opposed him in
the election. He had stated that while
Kunjan Lal was putting questions Rakesh
Kumar Tiwari had shot his father with an
intention to kill. However, upon being
shown the first information report, he had
stated that all these facts were not
mentioned in the first information report.
The mistake, he stated, had occurred
because he was very sad at that point of
time.

9. He had stated that his father had
been killed inside the house and that he had
fallen in the gallery of the house itself. He
had further stated that at the same place
where his father was attacked his brother
Vidhanchandra Tiwari was also attacked at.
He had stated that Vidhan Chandra Tiwari
had also fallen down at the place where he
was hit by the bullet and that lot of blood
had come out of their bodies which was
spread on the floor of the house. He had
stated that just as there was blood on the
clothes of his father and his brother there
was blood also on his clothes, but he had
stated that he had not gone to the police
station with the clothes which had blood on
it and that when he had reached the police
station there was no blood on his clothes.
He had stated that the jacket which he was
wearing had been removed by him as there
was blood on the jacket. He has stated that
the Investigating Officer (Darogaji) had
reached the place of incident at around 3 to
4 PM and that Daroga Ji was shown the
blood which had fallen on the floor of the
house. He had stated that Darogaji had
taken the sample of the blood which was
lying on the floor. He had stated that on the
northern side of the house there was the
main road which went from Allahabad to
Mirzapur. He has stated that the distance of
the road was around 40 feet. He had then
described his house and had stated that if
one enters the house from the northern side
then the other opening was on the southern
side and in between there was no gate etc.
The gallery which joined the northern and
southern ends was 5 feet in width and 80
feet in length. He had stated that in the
gallery if one started from the northern end
and reached around 74 steps towards the
southern end then one would reach the
place where the incident had occurred. He
had stated that when the firing had taken
place, many people from the village had
assembled.

10. He had stated further in his
testimony
which
was
recorded
on
30.7.2012 that at the time of incident he
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
635
was having a licenced revolver, the licence
of which he had got 6 to 7 months prior to
the date of incident and that the revolver
was in the house itself. The revolver was
purchased with an intention to get a private
job of a security guard etc. On 17.12.2010
that revolver was in his locker. However,
he had stated that when he had gone to get
the report lodged he had gone along with
the revolver. He had stated that at the place
of incident, pellets, wads, empty cartridges
etc. had fallen down but the accused
persons had taken them away along with
them. He had stated that empty cartridges
had numbered around 6 to 7. He had not
stated all these details in the FIR as it was
not required to give all the details in the
first information report. In fact, he had
stated that he had not even told the
Investigating Officer about the fact that the
accused - persons had taken away the
empty cartridges etc. He had stated that on
the date of incident, he had not seen any
injury on the bodies of Vedmani Tiwari,
Kamlesh Nath or Rakesh Nath. He had
stated that prior to the occurring of the
incident, no meeting or panchayat had
taken place. He had also denied the fact
that he had got lodged the first information
ante-timed. Further, in the testimony, he
had also given the description of the house
and also the description of neighbouring
buildings. When different accused persons
cross-examined
this
witness,
he
consistently replied to them in the same
manner as he had replied to the crossexamination in the beginning.

11. Thereafter, the testimony of P.W.-
2, the injured witness was got recorded and
he had stated in the examination in chief
the very same facts as were stated by the
P.W.-1. However, he states that when
Kunjanlal Tiwari and other co-accused
persons had reached the house of the first
informant then Rakesh had fired upon the
father of the injured eyewitness Vidhan
Chand Tiwari and thereafter he i.e. the
P.W.2 had tried to run away and at that
point of time Kamlesh had fired on him and
that the bullet had hit him on his hip and
when he had fallen down then Kunjanlal
had hit him on his face by his boot. This hit
had given him injury on his lips. He had,
thereafter, given the description as to how
other assailants had fired in the air. He had,
thereafter, again informed as to how he and
his father had reached the hospital. He has
also repeated the story with regard to the
threats he himself and his father had
received from the accused persons and
regarding those threat he had also informed
the police. He had then stated that the
information he had sent to the police on
11.12.2010 was by speed post. He had also
stated somewhat the same facts as were
stated by the P.W. 1 that the bullets were
fired on him around 70 feet south of the
northern door and he very specifically
states that when the bullets hit him he was
inside the house in the gallery and he has,
thereafter, stated that he had fallen down
and remained in that position for around 20
to 25 minutes and a lot of blood had oozed
out of his body. He had stated that he
thereafter went straight to the Swaroop
Rani Hospital which was around 22 kms.
from his village. He has, thereafter, in the
cross-examination done by the other
accused persons stated virtually the same
facts. However, when he answered to the
questions of Ved Mani Tiwari, he had
stated that the persons who had hit him
were at a distance of around 3 to 4 feet on
the southern side and his face was on the
southern side. He has stated that first his
father was hit by the bullets and, thereafter,
he was hit. He had stated that there was no
time to retaliate and therefore there was no
injury on the side of the accused persons.
636 INDIAN LAW REPORTS ALLAHABAD SERIES
He had stated that when the assailants
attacked him and his father they were
comfortably relaxing on the threshold of
the gallery and they were not prepared for
the attack. He has stated that when his
father was shot at and he had fallen down
the accused persons had not fired the
second time. He had thereafter stated that
the first information report was not got
lodged on his suggestions and he had never
even read the first information report. He
had stated that the accused persons were
led by Kunjanlal and he was also carrying a
pistol but he had never fired on them. He
had stated that Nageshwar and Kunjanlal
had fired on the brothers of the P.W.-2 but
none of the shots aimed at the brothers hit
the target. He had also stated that he was
not aware as to where the bullets which had
missed the target hit on the wall and the
roof. He had again reiterated that the
accused persons never got any injury.

12. P.W.-3 was Dr. Santosh Kumar of
the Tej Bahadur Sapru Hospital, Allahabad.
He was the doctor who had done the post
mortem on the body of the deceased and he
had very categorically stated that he had
not seen any blackening or tattooing around
the injury and, in fact, he has stated that the
bullets must have been fired from a
distance of around 14 to 15 feet.

13. P.W.-4, was Dr. S.P. Singh, who
had medically examined the injured i.e. the
P.W. 2 and had stated that the injury no. 1
in the face could have been received by the
injured when he fell down. With regard to
the injury no. 2 on the hip, he had stated
that it could be a self inflicted injury as
well.

14. P.W.-5 was the Head Constable,
Ram Sajivan who had proved the chick. He
had stated that after the chick was prepared
on 17.12.2012, the copy of it was sent only
on 20.12.2012.

15. P.W.-6 Sub Inspector, Arvind
Kumar, who was posted at Police Station -
Muththiganj had proven the post mortem.

16. P.W.-7 Sub Inspector Deep Kumar
who was posted at the relevant point of time
at the police station Manda, District -
Allahabad had stated in his examination-inchief that on 17.12.2010 while he was posted
at Manda Police Station, Allahabad then he
had received the first information report after
getting
lodged
for
the
purpose
of
investigation. On the same day, he had
recorded the statement of Vinay Kumar
Tiwari and on the pointing of the first
informant, he inspected the site and had
prepared the site map in his own hand. For
the purposes of investigation, various pieces
of evidence which were found at the spot like
the mud, blood stained soil, muffler and
broken spectacles were recovered. On the
recovery memos along with his signature, the
signature of Ashok Kumar Singh was also
present. Further, he had stated that on
19.12.2010 out of the accused persons two of
them namely, Kunjan Lal Tiwari and
Nageshwar Tiwari were arrested. He had also
stated that the injured, after getting his
preliminary treatment at the SRN Hospital,
came to get his statement recorded. However,
because he was finding it difficult to speak he
could not get his statement recorded. He has
also mentioned as to how when the other coaccused were not getting arrested he had
made efforts to get them arrested. He had
stated that the pellet which was taken out
from the injury of Vidhan Chandra was taken
into custody and was kept in the Malkhana.

17. Upon his cross-examination by the
accused Kunjan Lal Tiwari, the PW-7 had
stated that he had been in Manda Thana for
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
637
5-6 months more after the incident and
during the period he had been in the Thana,
the election for pradhani had taken place.
In the Nahawai Gram Sabha Kunjan Lal
Tiwari was the candidate for Pradhan and
that against him many other candidates
contested
the
election.
One
of
the
contestants who had opposed Kunjan Lal
Tiwari was Vidhan Chandra and that there
was absolutely no dispute between Kunjan
Lal Tiwari and Vidhan Chandra. There was
no complaint of any booth capturing etc.
also. He had stated that the case was
registered in the Thana in his presence. The
informant had given the complaint in the
Thana at around 01:00 PM. He had further
stated that before the first information
report was lodged he had no information of
the occurrence. The place of incident was
around 5-6 kilometre away from the Thana
in the North. He had stated that he had not
seen that there was any blood on the
clothes of the first informant. The first
informant was not carrying any revolver.
He had further stated that if the informant
had kept the revolver under his clothes etc.
then he did not know about that. Thereafter,
he had stated that he had gone to the place
of incident in between 01:00 to 02:00 PM.
He had stated that he was aware of the fact
that first the case is registered and
thereafter it is entered in the G.D. The first
information
report
was
lodged
and
registered in about 35-40 minutes. When he
had reached the place of incident a lot of
people had collected over there. Then he
had stated that around 10-15 people were
there. He had stated that he did not question
any one who was present. Thereafter, he
had stated that he had left for his
Moharram durty. About, the incident, he
had stated that, he had informed all the
higher police officials. On the next date, he
had stated that he had arrested Kunjan Lal
Tiwari and Nageshwar in the night at
around 11:00 PM. He had stated that it was
wrong to say that Kunjan Lal Tiwari was
coming back after getting himself some
treatment and at that point of time he had
arrested him. After the arrest, Kunjan Lal
Tiwari was at the Thana. The statement of
the injured Vidhan Chandra was recorded
on 25.12.2010. Prior to that he was not in a
position to get his statement recorded. This
was primarily because the doctor had
recommended that he be not permitted to
speak. PW-7 did not know the name of the
doctor. He had stated very categorically
that he was under no pressure to get a false
statement recorded against Kunjan Lal
Tiwari. He had stated that at the place of
incident he had not found any empty
cartridges etc. He had further stated that he
had not stated in the G.D. as to what time
he had reached the place of incident. He
further had stated that the first informant
had a revolver/pistol license. He had stated
that he had never got any firearm of the
first informant inspected and also his
revolver was not taken by the police and
sent to the Forensic Science Laboratory.
For not sending the revolver to the Forensic
Science Laboratory, no reason could be
given. He had further stated that he did not
remember
if
Daya
Shanker,
Vidhan
Chandra, Vinay Kumar, Dilip Kumar and
Devendra Kumar were made accused by
Vedmani Tiwari under Section 307 of
I.P.C. He had stated that if any case
whatsoever was registered in his Thana
then the same was investigated into by his
subordinate on his orders. He had then
stated that when he was at the Thana he
was aware of the fact that against the first
informant Vinay Kumar etc. case under
Section 307 of I.P.C. had been got
registered. After having come to know that
a case had been registered against Vinay
Kumar under Section 307 of I.P.C., he had
stated that he had not moved any
638 INDIAN LAW REPORTS ALLAHABAD SERIES
application to suspend the firearm license
of Vinay Kumar.

18. In the cross-examination by the
accused Kamlesh, the PW-7 had stated that
the date noted by the Magistrate about the
information was 20.12.2010. He had very
categorically stated that in Exhibit Ka-12 at
place 'A' where the deceased was hit by
the bullet his blood was lying and he had
then stated that the place 'A'was around
60 steps South of the house of the
complainant-informant.
He
had
very
categorically stated that at only one place,
blood was found and that was marked by
'A'. He had then stated that there was no
mention of the fact that from where exactly
the muffler and the broken spectacle was
found. He had stated that on 17.12.2010 at
01:00 PM he had come to know that Daya
Shanker Tiwari had died and that his deadbody was lying in the S.R.N. Hospital. He
had stated that he had not made any efforts
to send anyone to the hospital and to get the
panchayatnama prepared. He had stated
that it was wrong to say that he had got the
panchayatnama prepared by the police
chauki of the S.R.N. Hospital. He had
stated that the copy of the panchayatnama
and the postmortem report were received
by him on 20.12.2010. He had then stated
that he had left the Thana on 17.12.2010 at
01:00 PM for the investigation. Thereafter,
at 11:50 PM he had stated that he had
returned to the police station. He had then
stated that the G.D. was sent to the C.O.
Office on the next date of its filling. He had
stated categorically that on the clothes of
Vinay Kumar Tiwari, he had not found any
blood and therefore he had not kept the
clothes of the first informant Vinay Kumar
in his custody. He had also categorically
stated that he had not taken any sample
from inside the house and also he had never
examined the revolver of Vinay Kumar
Tiwari, the first informant. He reiterates
that the statement of Vidhan Chandra
Tiwari was recorded only on 25.12.2010.

19. PW-8 Dr. Mani Bhushan Tiwari,
had stated that on 17.12.2010, he was
present in the SRN Hospital in radiology
department as a student and that the x-ray
of Vidhan Chand Tiwari was done under
his supervision. The left hip and the thigh
were x-rayed and in it a substance of
metallic density was seen. The x-ray is on
the record as Paper No. 93B. In the crossexamination, he had stated that he was in
fact a student in the SRN Hospital and that
he had not known the injured from before.
He also had stated, looking at the x-ray, he
could not tell as to how old the injury was.

20. PW-9 is Awadh Raj, Prabhari
Nirikshak. He had stated that on 27.1.2011,
he was working as Thanaha Adhyaksh in
Kheeri, District Allahabad, and while he
was posted there, he was given the work of
investigation by the DIG. He had stated
that he had taken Kunjan Lal Tiwari and
Nageshwar Tiwari on a 14 days remand.
Further he had stated that on 3.2.2011
during the investigation, the witnesses
Vyasji Tiwari, Smt. Sandhya, and other
witnesses of the Panchayatnama Jagdish
and Deva Nandan. Ram Sagar and
Rajendra Tiwari had got their statements
recorded before him. The accused Rakesh
Tiwari and Kamlesh Tiwari were searched
for but they were not found. On 9.2.2011,
again statements of Kunjan Lal and
Nageshwar were got recorded. On the same
date, the statement of Vidhan Chandra and
Vinay Kumar i.e. of the witnesses were
recorded. On 11.2.2011, Kamlesh Tiwari
and Ved Mani Tiwari were arrested. The
accused Rakesh Tiwari was being searched
for, but he was not found. In his crossexamination, he had stated that he did not
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
639
remember much about the dates when the
statements of the accused were recorded.

21. PW-10 is one Surendra Kumar
Sharma who had stated that on 7.3.2011, he
was posted at the Thana Kheeri at
Allahabad and because of the transfer of
the earlier investigating officer Avadh Raj,
the investigation was given to him. On
12.3.2011, he had also got recorded the
statements of Ramji Kesharvani, Sabbir
Ali, Baiju Harijan. On 15.3.2011 from the
National Arms Store Shaukat Ali Marg
Allahabad, he had gone to get the pistol of
the accused Rakesh Nath Tiwari, however,
the shop was closed.

22. On 18.5.2011 the Arm which was
found at the shop was taken into custody.
On 26.6.2011, the ADM had given the
orders that the firearm of Rakesh Nath
Tiwari be given to the Investigating Officer
and 4.7.2011 the firearm was taken from
the National Arms House and kept in
sealed cover. On 7.8.2011, the revolver of
Kamlesh was taken from Keshavs Arms
house, Gopiganj, Bhadohi and both the
firearms were sent to the police station
Manda and Munshi Daya Shankar Police
Station Manda was directed to send the two
firearms along with bullet which was taken
out from the dead body of the deceased for
FSL examination. He had stated that on
various dates reminders were sent to the
FSL Lucknow to send the FSL reports. In
the cross-examination, he had stated that on
12.3.2011 he jotted down a conclusion that
with regard to a certain dispute of land
between Daya Shankar Tiwari and Ved
Mani Tiwari and that with regard to it, a
Panchayat
was
in
progress
on
on
17.12.2010. In the Panchayat a lot many
people who were definitely more than 50
were
present.
During
the
Panchayat
because of the election enmity, Vichan
Chandra Tiwari and his brother, etc.
became very angry with Rakesh Tiwari,
Kamlesh Tiwari and Ved Mani Tiwari. He
had stated in his cross-examination that
during the verbal altercation, there was an
exchange of fire and that Rakesh Tiwari
and Kamlesh Tiwari with their licensed
pistol fired to protect themselves and he
had stated very categorically that the entire
incident had taken place in the Khervari
bagh (mango grove). He had stated that he
had also examined the cross case, which
was State vs. Vidhan Chandra and others,
and in that case also a site map was
prepared. He had also stated that during the
investigation, it was also revealed that
Vinay Tiwari from his licensed pistol had
also fired, however, he had not taken the
revolver of Vinay Tiwari into the custody.
Reason for not taking the revolver of Vinay
Tiwari, however, was not known to the
P.W.-10.

23. Upon the conclusion of the
recording
of
the
statements
of
the
witnesses, the five accused got their
statements recorded under section 313
Cr.P.C. Thereafter, the statements of
defence witnesses, Dr Ankit Raja, Dr. Ram
Jeevan, Dr. B.K. Singh, Dr S.K. Rai and Dr
Manoj Kumar Shukla were also recorded.

24. Upon the conclusion of the trial,
the Additional District Judge, Court No. 11,
Allahabad,
convicted
Rakesh
Tiwari,
Kamlesh tiwari, Nageshwar Tiwari, and
Ved Mani Tiwari under Sections 147, 148,
149, 302, 307, 452, 506 IPC read with
Section 7 of the Criminal Law Amendment
Act. Kunjan Lal Tiwari had died during the
pendency of the trial.

25. The convicted persons, namely
Kamlesh Tiwari, Nageshwar Tiwari, and
Ved Mani Tiwari filed a criminal appeal
640 INDIAN LAW REPORTS ALLAHABAD SERIES
being Criminal Appeal No. 2516 of 2022,
while Rakesh Tiwari filed against the
judgment and order dated 31.3.2022 an
appeal, which was numbered as Criminal
Appeal No. 2518 of 2022

26. The counsel for the appellants Sri
Manish Tiwari, learned Senior Counsel,
assisted by Sri Rajeev Lochan Shukla, Sri
Atharva Dixit, Ms. Shriyanshi Upadhyay,
Sri Shashank Pandey and Sri Raghuvansh
Mishra, Advocates essentially confined
their
arguments
to
the
following
submissions:-

I.
Learned
counsel
for
the
appellants submitted that the prosecution
had miserably failed to fix the place of
occurrence. There was no tell tale sign of
firing inside the house. No blood or blood
stain was found by the P.W.-7 the first
investigating officer and he had thus
categorically contradicted the version of
P.W. 1 and 2 in respect of place of
occurrence.
Learned
counsel
for
the
appellants relied upon the judgments in
Syed Ibrahim vs. State of Andhra
Pradesh reported in 2006 Crl LJ 4087,
Pohlu vs. State of Haryana reported in
2006 Crl LJ 532 and State of M.P. vs.
Mishrilal (dead) and others reported in
2003 (9) SCC 426. The relevant portion of
paragraph no. 9 of the judgement is being
reproduced herein under:

"9. ....But in the spot map (Ext. P3) the position shown is contrary and the
house of PW 8 was omitted from this map.
The testimony of Ramnarayan (PW 8) is
inconsistent with Ext. P-3 spot map. This
apart, the learned trial Judge made a spot
inspection on 11-3-1991 under Section 310
CrPC. However, the trial Judge did not
choose to record the memo of inspection. The
judgment was delivered on 16-3-1991. What
had prompted the learned trial Judge to have
recourse to spot inspection was not spelled
out because no memorandum of inspection
was prepared. But it is clearly suggestive of
deficiency of evidence with regard to place of
occurrence. In such a situation, it was
incumbent on the part of the learned trial
Judge, to have recorded the memo of
inspection for proper appreciation of the
inspection. Undoubtedly, the mandatory
provision has not been followed by the trial
court."

Learned counsel for the appellants
stated that, in fact, the investigating officer
had categorically stated that no blood stains
were found inside the house or in the gallery
of the house where the prosecution alleged
the incident had taken place. The site plan of
the Investigating Officer completely belies
the prosecution story as set up by the P.W.- 1
and 2.

II. Further, the learned counsel
for the appellants stated that the first
information report had stated that the
incident had taken place inside the house
of the first informant and the alleged
incident was witnessed by the elder
brother of the P.W.-1, namely, Vyasji
Tiwari, sisters-in-law of P.W.-1 Sadhna
Tiwari and Manju Tiwari and several
other persons. They were considered as
eye-witnesses and their statements were
also recorded under Section 161 Cr.P.C.
However, the said witnesses were never
produced during the trial and thus very
relevant eye-witnesses have been kept
back. Learned counsel for the appellants
stated that this cast a very serious doubt
on the veracity of the prosecution case.
An adverse inference had to be drawn.
He relied upon the judgment reported in
2001 (6) SCC 145 : Takhaji Hiraji vs.
Thakore Kubersing Chamansing.
11 All. Kamlesh Tiwari & Ors. Vs. State of U.P.
641

III. The next argument raised by
the learned counsel for the appellants is that
the P.W.-1 stated that at the time when he
reached the police station for lodging the
first information report, he was armed with
his licensed revolver. However during the
cross examination, no explanation was
given as to on what point of time he could
lay his hand on his licensed revolver. The
fact that P.W. -1 was carrying the revolver
and that it was used was never investigated
by the police.