# Karuna Shanker & Anr v. State of U.P

- **Citation:** (2023) 6 ILRA 722
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-30
- **Case number:** Criminal Appeal No. 267 of 1983
- **Bench:** Attau Rahman Masoodi, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karuna-shanker-anr-v-state-of-u-p-50349
- **Pages:** 13

## Headnote

Criminal Law - appeal against conviction -
Indian Penal Code, 1860 - Section 302/34
- murder - F.I.R. not an encyclopedia to
mention every fact about the incident -
When there is ample ocular evidence
corroborated by medical evidence , mere
non-recovery
of
weapon
from
the
appellant would not materially affect the
case of the prosecution - If the testimony
of an eye witness is otherwise found
trustworthy and reliable, the same cannot
be
disbelieved
and
rejected
merely
because certain insignificant, normal or
natural contradictions have appeared into
his testimony - where there is direct
evidence of the crime then motive looses
its importance.(Para - 20, 21, 23)

(B) Evidence Law - related witness -
testimony of the related witness cannot
be discarded merely on the ground that he
is a related witness - person whose close
relative is killed will never spare the real
culprit just to implicate the others falsely -
no proposition in law that relatives are to
be treated as untruthful witnesses.(Para -
24)
Broad day light murder - F.I.R. was lodged
promptly - incident proved by direct evidence of
P.W. 1 and P.W. 2 - supported by medical
evidence - inquest was conducted on same
night - statement of complainant recorded on
same day - statement of another witness
recorded on next day. (Para - 27)

HELD:-Eye
witnesses
proved
case
of
prosecution beyond all reasonable doubts. No
reason to doubt the testimony of eye witnesses.
Murder
of
deceased
was
committed
by
convicts/appellants in association with two
unknown miscreants. Trial Court rightly held
accused persons guilty. No ground or reason for
interference
in
the
conviction
and
sentence.(Para -27)

Criminal Appeal dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,826 of 42,981. This is a partial read: ask again with offset=39826 for what follows._

722 INDIAN LAW REPORTS ALLAHABAD SERIES
emergency, or if he decides that none of the
parties was then in such possession as is
referred to in section 145, or if he is unable
to satisfy himself as to which of them was
then in such possession of the subject of
dispute, he may attach the subject of
dispute until a competent Court has
determined the rights of the parties thereto
with regard to the person entitled to the
possession thereof: Provided that such
Magistrate may withdraw the attachment at
any time if he is satisfied that there is no
longer any likelihood of breach of the
peace with regard to the subject of dispute.

11. In present case, the Magistrate has
not issued any attachment order with regard
to property in dispute instead he has passed
an injunction order in favour of the first
party against second party, who are
petitioners before this Court and such type
of order is beyond purview of the powers
exercisable by Executive Magistrate in
proceeding under Section 145/146 Cr.P.C.
and therefore, the impugned order is not
sustainable under law and deserves to be
set aside, on this ground also. In a recent
Judgement in the case of Mohd. Abid vs
Ravi Naresh, arising out of Special Leave
to Appeal (Crl.) No(s).5444/2022, Hon'ble
Apex
Court
vide
judgement
dated
1.11.2022 held that it was an admitted fact
that the petitioners have already filed a suit
for injunction in which ex-parte ad- interim
injunction has been granted by the Civil
Court,
Faizabad,
Uttar
Pradesh
on
05.12.2020. Once the Civil Court is seized
of the matter, it goes without saying that
the proceedings under Section 145/146
Cr.P.C. cannot proceed and must come to
an end. The inter- se rights of the parties
regarding title or possession are eventually
to be determined by the Civil Court. In
present case also, according to the
pleadings of the parties, both sides have
filed civil suits for cancellation of sale
deed/injunction before civil court where the
question of right, title or interest of the
party are to be attached on the basis of
evidence adduced by the parties. Therefore,
the impugned order dated 28.2.2022 passed
by learned Up Zila Magistrate is not found
within the four corners of the law and
consequently it is set aside. Consequently,
the impugned order dated 6.10.2022 passed
by Revisional Court affirming order of
Magistrate is also set aside.

12. Accordingly, the petition stands
allowed.

13. The parties are relegated to avail
their remedies available before Civil Court,
in respect of their respective suits filed by
them. With a view to preserve the property
in dispute to enable the parties to avail the
remedy before the civil court, the parties
are directed to maintain status quo of the
disputed party for a period of three months
from today, which will automatically
stands vacated, thereafter.
----------
(2023) 6 ILRA 722
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 30.05.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 267 of 1983

Karuna Shanker & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajesh Tiwari

Counsel for the Opposite Party:
6 All. Karuna Shanker & Anr. Vs. State of U.P.
723
Ms. Smiti Sahay, A.G.A.

Criminal Law - appeal against conviction -
Indian Penal Code, 1860 - Section 302/34
- murder - F.I.R. not an encyclopedia to
mention every fact about the incident -
When there is ample ocular evidence
corroborated by medical evidence , mere
non-recovery
of
weapon
from
the
appellant would not materially affect the
case of the prosecution - If the testimony
of an eye witness is otherwise found
trustworthy and reliable, the same cannot
be
disbelieved
and
rejected
merely
because certain insignificant, normal or
natural contradictions have appeared into
his testimony - where there is direct
evidence of the crime then motive looses
its importance.(Para - 20, 21, 23)

(B) Evidence Law - related witness -
testimony of the related witness cannot
be discarded merely on the ground that he
is a related witness - person whose close
relative is killed will never spare the real
culprit just to implicate the others falsely -
no proposition in law that relatives are to
be treated as untruthful witnesses.(Para -
24)
Broad day light murder - F.I.R. was lodged
promptly - incident proved by direct evidence of
P.W. 1 and P.W. 2 - supported by medical
evidence - inquest was conducted on same
night - statement of complainant recorded on
same day - statement of another witness
recorded on next day. (Para - 27)

HELD:-Eye
witnesses
proved
case
of
prosecution beyond all reasonable doubts. No
reason to doubt the testimony of eye witnesses.
Murder
of
deceased
was
committed
by
convicts/appellants in association with two
unknown miscreants. Trial Court rightly held
accused persons guilty. No ground or reason for
interference
in
the
conviction
and
sentence.(Para -27)

Criminal Appeal dismissed. (E-7)

List of Cases cited:

1. Mekala Sivaiah Vs St. of A.P., (2022) 8 SCC
253

2. Kalua @ Koshal Kishore Vs St. of Raj., (2019)
16 SCC 683

3. Surinder Singh Vs St. (Union Territory of
Chandigarh), 2021 SCC Online SC 1135

4. Rahul Vs St. of Har., (2021) 11 SCC 149

(Delivered by Hon'ble Hon'ble Mrs. Saroj
Yadav, J.)

1. This criminal appeal has been filed
by the convicts/appellants namely Karuna
Shankar alias Pappu and Rajkishore alias
Kallu (herein after referred to as Karuna
Shankar and Rajkishore) against the
judgment and order dated 15.04.1983
passed in Sessions Trial No. 562 of 1982
by IVth Additional Sessions Judge, Unnao
wherein convicts/appellants were convicted
and sentenced under Section 302 read with
Section 34 of the Indian Penal Code, 1860
(in short I.P.C.) for life imprisonment.

2. The facts necessary for disposal of
this appeal are as under:-

A first information report (in
short F.I.R.) was registered as Case Crime
No.126 of 1982, under Section 302 read
with Section 34 of IPC at Police Station
Achalganj, District Unnao at about 7.30 pm
on 17.06.1982, on the basis of a written
report presented by the complainant namely
Ashok Kumar. It was stated in the written
report (Exhibit Ka-1) that about four years
ahead of the incident, some miscreants
committed loot in his house. After
sometime he came to know that the
incident of loot was got committed by
Rajkishore alias Kallu and Rajnarayan alias
Munna, resident of his own (complainant's)
village. For that reason, they developed
724 INDIAN LAW REPORTS ALLAHABAD SERIES
animosity and were not on talking terms. In
October 1981, one Vijay Bajpai, resident of
Village Badarka purchased one orchard and
some land consisting of 8-9 Bighas from
one Satyanarayan belonging to the family
of Rajkishore and that was being looked
after by Gaurishankar alias Badri Prasad,
father of the complainant. Rajkishore asked
many times, father of the complainant not
to look after the said land and also warned
him with dire consequences but he
(deceased) did not care. For that reason
Rajkishore became more inimical towards
him (deceased). Due to this enmity on the
day of incident i.e. 17.06.1982 when the
complainant, his father and maternal
brother Ram Kumar son of Baijnath,
resident
of
Mawaiya,
Police
Station
Chakeri, District Kanpur were coming back
to home from 'Anta Banthar' Market, at
about 5.30 pm they reached near the field
of Banshlal Dixit, then Karuna Shankar
armed with gun, Rajkishore armed with
Katta (country-made pistol) and their two
associates, one armed with Farsa (Spade)
and another with Kulhari (Axe) who were
hidden
there.
Rajkishore
asked
his
associates to kill the father of the
complainant so as to teach a lesson for
taking the land of others. On this, they
(complainant, his father and cousin) took
turn to run away. At the sametime
Rajkishore fired a shot with Katta (country
made pistol) on his father which hit him
(deceased) on right side of abdomen. On it
they all three i.e. complainant, father and
cousin ran shouting/crying. Hearing their
voice/cry, Sri Ram son of Lallaunu Lodh
and Pusu Raidas resident of Badarka, who
were present in their orchards came
running and they challenged Rajkishore
and his associates but they (complainant
and the people gathered there) did not go
nearby out of fear. Rajkishore and his
associates chased his father (deceased)
while running and in the orchard of Lallan
Dixit Karunashankar and Rajkishore fired
one shot each by gun and country made
pistol with which they were armed. His
father fell down, then their two associates
assaulted his father with 'Kulhari' (Axe)
and Farsa (Spade). Thereafter, all the four
miscreants ran to assault towards the
complainant and his cousin but could not
do so seeing many people coming after
hearing the sound of fires and cry of the
complainant side and they ran away
towards the village Supasi. Thereafter the
complainant and others reached near the
deceased in the orchard of Lallan Dixit and
complainant found his father dead. The
right hand of the deceased was cut apart
from wrist. He recognized the miscreants
Rajkishore and Karunashankar very well
but did not know the names of other two
miscreants. The dead body of the deceased
was lying at the spot.

3. After registration of the F.I.R.,
investigation started. The panchayatnama
of the body of the deceased was conducted
on the same day in the night. The body was
sent for post mortem examination. The post
mortem examination was conducted on the
cadaver of the deceased. Site plan of the
place of incident was prepared by the
Investigating Officer. The accused persons
surrendered before the concerned Court.

4. After completing the investigation
the
Investigating
Officer
found
the
involvement of both the convicts/appellants
in the crime and submitted charge-sheet
against them under Sections 302/34 IPC.
On the charge-sheet so submitted learned
Magistrate concerned took the cognizance
and committed the case to the Court of
Sessions for trial. The Court of Sessions
framed the charges under Sections 302/34
IPC against the convicts/appellants namely
6 All. Karuna Shanker & Anr. Vs. State of U.P.
725
Karunashankar and Rajkishore. Both the
convicts/appellants denied the charges and
claimed to be tried.

5. In order to prove its case the
prosecution
examined
the
following
witnesses:-

P.W.
1-
Ashok
Kumar
(complainant, an eye witness);

P.W. 2- Radhey Lal (an eye
witness);

P.W. 3- Dr. J.N. Bajpai, who
conducted post mortem examination of the
deceased;

P.W. 4- Sub-Inspector Hardeo
Singh, Investigating Officer;

P.W. 5- Head constable Amir
Singh, who registered the F.I.R.

Apart from above oral evidence
relevant documents have also been proved
by the prosecution, which are as under:-

Exhibit Ka 1- Written report;

Exhibit Ka 2- Post mortem
examination report;

Exhibit Ka 3- Inquest report;

Exhibit Ka 4- Police Form No. 379;

Exhibit Ka 5- Police Form No. 13;

Exhibit Ka 6- Letter to Reserved
Inspector, Police Lines, Unnao for getting
the post mortem conducted;

Exhibit Ka 7- Letter to Medical
Officer In-charge, Post mortem duty,
Unnao for getting the post mortem
conducted and sending the clothes of the
deceased found on the body in a sealed
bundle;

Exhibit Ka 8- Recovery memo
of empty cartridges recovered from the
place of occurrence;

Exhibit Ka 9- Recovery memo
of collection of blood soaked and plain soil
from the place of occurrence;

Exhibit Ka 10- Recovery memo
of shoes of the deceased recovered from
nearby spots to the place of occurrence;

Exhibit Ka 11- Site plan of the
place of occurrence;

Exhibit Ka 12- Charge sheet;

Exhibit Ka 13- Chik F.I.R.;

Exhibit
Ka-14-
Copy
of
concerned General Diary.

6. After completion of evidence of
prosecution,
statements
of
convicts/appellants under Section 313 of
the Code of Criminal Procedure 1973 (in
short Cr.P.C.) were recorded. Both the
convicts/appellants in their statements
admitted that Gauri Shankar (deceased)
was the father of the complainant (Ashok
Kumar) and also admitted that Rajkishore
and Rajnarayan were the real brothers but
denied that any dacoity was got committed
by them as stated by P.W. 1. Both the
convicts/appellants denied any enmity with
the complainant. They denied the incident
being committed by them as has been
alleged and stated by the witnesses. They
also denied the place of occurrence. Further
they stated that they have falsely been
implicated in the crime. They have stated
726 INDIAN LAW REPORTS ALLAHABAD SERIES
that both the eye witnesses are the man of
one Vijay Bajpai of Village Badarka and
they have deposed under the influence of
Vijay Bajpai. They further stated that they
had no reason to commit murder of Gauri
Shankar. It has also been stated by
convict/appellant Rajkishore that Vijay
Bajpai was the man of criminal character
and he was challaned under the Goonda
Act and he (accused Rajkishore) and his
father did Pairvi in that case, for that reason
Vijay Bajpai was inimical against him. He
further stated that he filed a suit against
Vijay Bajpai. Both the convicts/appellants
further stated that witnesses have deposed
falsely as they are the man of Vijay Bajpai.
The
accused
persons
filed
some
documentary evidence in support of their
contentions. No witness was produced in
defence by the convicts/appellants though
opportunity was given by the trial Court.

7.

Learned
trial
Court
after
completion
of
evidence
heard
the
arguments of both sides. After analyzing
the evidences available on record, the trial
Court relied upon the evidence of witnesses
P.W. 1- Ashok Kumar (complainant) and
P.W. 2- Radhey supported by medical
evidence and other evidence and came to
the conclusion that the case of the
prosecution has been proved by the
witnesses P.W 1 and P.W. 2 though there
are contradiction in the evidence of P.W. 1
and P.W. 2 but of minor nature. What has
been written in the FIR and stated by the
P.W. 1 (complainant) has been supported
by the medical evidence of medical witness
P.W. 3, who conducted the post mortem
examination.
The
F.I.R.
was
lodged
promptly. It was a broad day light murder
as the same was committed at 5.30 pm in
the month of June. In day light incident can
be witnessed from a distance also. Learned
trial Court found the evidence of P.W. 1
and P.W. 2, witnesses of facts/eye
witnesses reliable. Three empty cartridges
were also recovered from the place of
occurrence. The shoes of the deceased were
recovered by the Investigating Officer from
the nearby places where the incident was
committed after chasing the deceased.
Hence learned trial Court came to the
conclusion that the prosecution has proved
its case beyond all reasonable doubts and
held the convicts/appellants guilty under
Section 302/34 IPC and sentenced them
with
imprisonment
for
life.
Being
aggrieved of this conviction and sentence
this criminal appeal has been preferred.

8. Heard Sri Rajesh Tiwari, learned
counsel for the convicts/appellants, Sri
Ashu Dubey, learned counsel for the
complainant and Ms. Smiti Sahay, learned
Additional Government Advocate for the
State respondent.

9.

Learned
counsel
for
the
convicts/appellants
submitted
that
impugned judgment and order is erroneous
and not sustainable in the eyes of law
because there was mention of two more
unknown persons in the FIR but those
unknown persons could not be traced by
the Investigating Officer. No weapon
allegedly used in the crime was recovered
by the Investigating Officer. Only eye
witness Ashok Kumar (P.W. 1) has been
examined before the Court below. Though
P.W. 2 has been presented as eye witness
but his name was not there in the FIR as an
eye witness. Hence his evidence cannot be
relied upon. His presence on the spot is
highly doubtful. He further submitted that
motive which has been alleged for
committing the crime is not sufficient
because the land was purchased by Vijay
Bajpai and not by the deceased. The
deceased was allegedly looking after the
6 All. Karuna Shanker & Anr. Vs. State of U.P.
727
land/orchard so purchased. The factum of
enmity due to dacoity has also not been
proved by the prosecution. He further
submitted that injury suffered by the
deceased on his right side of abdomen
could not have occurred as per the version
of witness that he turned on the other side.
Furthermore, after receiving injury in the
abdomen the deceased could not have run
the distance where he was finally killed. He
further submitted that P.W. 2 Radhey is a
servant
of
Vijay
Bajpai,
hence
his
testimony is not reliable as he is an
interested witness. He further submitted
that prosecution has failed to prove the case
against the convicts/appellants beyond all
reasonable doubt, therefore, impugned
judgment and order should be set aside.

10. Contrary to it, learned A.G.A.
appearing on behalf of the State respondent
as well as learned counsel for the
complainant submitted that in the present
case the incident occurred in a broad day
light i.e. at 5.30 pm in the month of June.
The F.I.R was lodged promptly i.e. at 7.30
pm on the same day. The inquest was
conducted without any delay. In the FIR
out of four miscreants two were named and
those are the convicts/appellants and two
were unknown whom the complainant did
not recognize as they were unknown
persons but he has written in the FIR that
he can recognize them if they are brought
before
him.
The
injuries
are
in
corroboration to what has been mentioned
in the FIR. It is further submitted that
recovery of weapon is not necessary for
convicting the accused if direct evidence is
there. Learned A.G.A. further submitted
that to prove the motive is also not
necessary if there is eye witness account of
the incident. She further submitted that it
differs from person to person and depends
upon the capacity, will power and courage
of the person how long he could run after
receiving injuries. Even Doctor has not
stated with certainty that he could have run
only 6-7 paces. Hence the arguments
advanced by the learned counsel for the
convicts/appellants have no force and the
appeal should be dismissed.

11. Considered the rival submissions
advanced by the learned counsel for the
parties and perused the original record as
well as record of the appeal.

12. The evidence available on record
as well as perusal of the impugned
judgment shows that there is no dispute
regarding day of occurrence and date and
time of lodging the F.I.R. The F.I.R. of the
case was lodged against two named persons
(appellants/convicts) and two unknown
persons alleging that the complainant, his
father and his maternal brother were
coming back to home from 'Anta Banthar'
market, at about 5.30 pm they reached near
the field of Vanshlal Dixit, then Karuna
Shankar armed with gun and Rajkishore
armed with Katta (country made pistol) and
their two associates were armed with Farsa
(spade) and another with Kulhari (axe) all
of sudden came there. Appellant Rajkishore
exhorted his associates to kill the father of
the complainant so as to teach him a lesson
for taking the lands of others. Thereupon
they (complainant, his father and cousin)
took a turn to run away. At the sametime
Rajkishore fired a shot with Katta (country
made pistol) on his father which hit him
(deceased) on the right side of abdomen.
On it they all three i.e. complainant, father
and cousin ran crying. Hearing their
voice/cry, Sri Ram son of Lallaunu Lodh
and Pusu Raidas resident of Badarka, who
were present in their orchards came
running and they challenged Rajkishore
and his associates but they (complainant
728 INDIAN LAW REPORTS ALLAHABAD SERIES
and the people gathered there) did not go
nearby out of fear. Rajkishore and his
associates chased his father (deceased)
while running and in the orchard of Lallan
Dixit Karunashankar and Rajkishore fired
one shot each by gun and country made
pistol with which they were armed. His
father fell down, then their two associates
assaulted his father with 'Kulhari' (Axe)
and Farsa (Spade). Thereafter, all the four
miscreants ran to assault towards the
complainant and his cousin but could not
do so seeing many people coming after
hearing the sound of fires and cry of the
complainant side and they ran away
towards the village Supasi. Thereafter the
complainant and others reached near the
deceased in the orchard of Lallan Dixit and
complainant found his father dead.

13. The complainant Ashok Kumar
has been examined as P.W. 1. He in his
examination-in-chief has stated that his
father Gauri Shankar was killed. He was
also known as Badri Prasad. About 4-5
years ahead of the murder of his father,
some loot was committed in his house.
After some time it was revealed that loot
was got committed by Ramnarayan alias
Munna and Rajkishore alias Kallu. He
identified Rajkishore in the Court. He
further stated that Ramnarayan is real elder
brother of Rajkishore. Karunashankar, who
is present in the Court has friendship with
Rajkishore. When it came to the knowledge
of the complainant side that in the loot
committed in the house of complainant was
got
committed
by
Rajkishore
then
Rajkishore developed animosity towards
him. Before the murder of father of the
complainant one person Vijay resident of
Badarka purchased 8-9 Bighas of land from
one Satyanarayan belonging to the family
of Rajkishore. The land so purchased was
looked
after
by
the
father
of
the
complainant. Rajkishore asked his father
not to look after the said land otherwise he
(deceased)
will
have
to
face
dire
consequences
but
the
father
of
the
complainant did not yield. For this reason,
they (appellant Rajkishore and family)
became more inimical.

14. The incident took place on
17.06.1982. On that day he (complainant),
his father and his son of maternal uncle
Ram Kumar went to the market of Anta
Banthar. They started back from the market
at about 2.30 pm. They reached near the
field of Vanshlal Dixit of Badarka . At
about 5.30 pm his father was ahead and
they (he and his cousin) were behind them
by 8.-10 paces. In the way Rajkishore,
Karunashankar and two unknown persons
came
out,
who
were
hidden
there.
Karunashankar armed with gun, Rajkishore
armed with Katta (country-made pistol) and
two unknown persons, one armed with
Farsa (Spade) and other with 'Kulhari'
(Axe). Rajkishore challenged his father and
asked his associates to kill him so as to
teach a lesson for taking the property of
others. His father took a turn to run away
but at the same time Rajkishore fired a shot
at his father, which hit him on right side of
the abdomen. On this his father took turn
on the left side and ran towards north but
the miscreants chased his father and
surrounded him in the orchard of Lallan
Dixit. Rajkishore and Karunashankar fired
one shot each on his father with country
made pistol and gun respectively. His
father fell down then both unknown
miscreants assaulted his father with 'Farsa'
(spade) and 'Kulhari' (Axe). When the
miscreants chased his father then the
complainant and his cousin ran crying.
Near the orchard of Maithali Sharan,
Radhey and Pusu resident of Village
Badarka met them and they all witnessed
6 All. Karuna Shanker & Anr. Vs. State of U.P.
729
the incident but did not go near out of fear.
Upon their cry many people of village
Badarka reached there and accused persons
and their associates ran away towards the
Village Supasi. He further stated that after
running away of the accused persons the
complainant and others went near his father
and found him dead. The blood was oozing
from his wounds. He asked the persons
present at the spot to take care of the deadbody and he went to his home and narrated
the incident to his mother and wrote the
report. This witness proved the written
report Ext. Ka-1 in his hand-writing. He
further stated that he went along with
Chowkidar to the Police Station to lodge
the report. He handed over the written
report to Head Moharrir in the Police
Station and he (head moharrir) prepared the
chik FIR and gave to him. Thereafter the
Investigating
Officer
recorded
his
statement.

15. P.W. 2-Radhey Lal is another eye
witness, whose name does not figure in the
F.I.R. as witness but he came to depose as
an eye witness of the incident. He in his
examination in chief has stated that he
knew Gauri Shankar (deceased) before the
incident. The incident took place about six
months ahead at 5-5.30 pm. At the time of
incident he was in the orchard of Lallan
Dixit. He reached in the orchard of Lallan
Dixit from the orchard of Maithali Sharan.
At that time, he was plucking mangoes in
the orchard of Maithali Sharan along with
Pusu. Pusu is resident of his village. He
heard the sound of fire and cry when he
was in the field of Maithali Sharan. On this
he reached in the orchard of Lallan Dixit
and saw four persons were chasing Gauri
Shankar among whom Rajkishore and
Karunashankar and two other unknown
persons were there. Karunashankar was
armed with gun, Rajkishore was armed
with Katta (country-made pistol) and out of
two other unknown persons, one armed
with 'Kulhari' (Axe) and another with
'Farsa' (spade). All the four persons
surrounded Gauri Shankar in the orchard of
Lallan
Dixit.
After
surrounding
him
Rajkishore and Karunashankar fired upon
Gauri Shankar. After being fired Gauri
Shankar
fell
down.
Thereafter
two
unknown persons assaulted him with
Kulhari and Farsa. At the place where he
(P.W. 2) was standing at the same place
Ashok and one of his relative were also
standing. Pusu was also standing near him.
All these persons witnessed the incident.
After hearing the cry and noise other
people of village Mawaiya and Badarka
came there then accused persons ran away
towards the village Supasi. When the
accused persons ran away then they saw
Gauri Shankar and found him dead. He
further stated that blood came out on the
spot from the injury of Gauri Shankar. He
remained at the spot for 5-7 minutes
thereafter went to his home. On the next
day of incident the Investigating Officer
recorded his statement.

16. P.W. 3 is Dr. J.N. Bajpai,
Radiologist, who conducted the post
mortem examination on the cadaver of the
deceased. He has stated before the Court
that on 18.06.1982 he conducted the post
mortem examination of the deceased Gauri
Shankar, whose body was identified by
Constable Police 523 Ram Swaroop of
Police
Station
Achalganj.
He
found
following ante mortem injuries on the body
of the deceased:-

(i) Gun shot wound of entry
1/2" X 1/2" X abdominal cavity deep, on
the left side of abdomen 2" below right
costral margin, blackening and tattooing
was present.
730 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Multiple gun shot of entry
1/5" X 1/5" each spread in an area 5" X
3" on the middle of chest.

(iii) Incised wound 3-1/2" X 1"
X bone deep on the front of right fore
arm lower part, front of right wrist and
front of right hand. Both radius and ulna
bones were cut out on their lower part.

(iv) Incised wound 3-1/2" X
1/2" X bone deep on the right side of
back of head 1" above and behind right
ear.

(v) Incised wound 4" X 1" X
bone deep in the back of neck upper
part.

(vi) Incised wound 2-1/2" X
1/5" X muscle deep on the front of right
arm.

(vii) Incised wound 2-1/4" X
1/5" X skin deep on the outer middle
part of right arm.

(viii) Incised wound 2-1/2" X 2"
X bone deep on the lower part of right
fore arm along with amputation of right
hand at the wrist joint. The bones of the
wrist joint were cut.

(ix) Incised wound 3/4" X1/3"
X bone deep on the back of right hand.

(x) Multiple gun shot wound of
entry 1/3" X 1/3" each spread in an area
11" X 8" on the right side of abdomen.

According to the Doctor (P.W. 3),
death of the deceased might have occurred
on 17.06.1982 at about 5.30 pm. Gun shot
injuries might have occurred with gun and
pistol. There is little possibility that incised
wound would have come with Axe and
Spade but might have come with a small
axe. He further stated that injury no. 8
would have occurred with spade. He
proved post mortem report Exhibit Ka-2 as
prepared by him and written in his handwriting and signed by him at the time of
post mortem examination.

17. P.W. 4 is the Investigating
Officer. He has stated in his examination in
chief that even on 17.06.1982, he was
posted at Police Station Achalganj as SubInspector. On that day, investigation of this
case was handed over to him. He recorded
the statement of the complainant at the
Police Station, thereafter went to the spot.
The body of the deceased was lying in the
orchard of Lallan Dixit. He took the dead
body in his possession and prepared inquest
after nominating Panches. He prepared
Panchayatnama, Khaka Lash and Challan
lash (Exhibit Ka3 to Ka 5) in his own hand
writing and signed them. Thereafter dead
body got sealed and sent for post mortem
examination. He wrote letter to Reserved
Inspector (R.I.) (Exhibit Ka-6) and to
Medical Officer (Exhibit Ka-7). He also
inspected the place of incident on the same
day. He recovered three empty cartridges
from the spot, collected blood soaked and
plain soil from the spot and prepared the
recovery memos (Exhibit Ka-8 and Ka-9).
He also recovered shoes of the deceased
from the nearby places to the spot, which
fell down while running and prepared the
recovery memo (Exhibit Ka-7) He further
deposed that he prepared the site plan
(Exhibit Ka-11) and site plan so prepared is
correct.
Thereafter
he
recorded
the
statement of Panches and other witnesses
of recovery memos. He has further
submitted that on 18.06.1982, he recorded
the statement of witnesses namely Ram
Kumar, Radhey Lal and others. He made
search for the accused persons but he could
6 All. Karuna Shanker & Anr. Vs. State of U.P.
731
not find them. The accused persons
surrendered in the Court where he recorded
the statement of accused persons in
'Hawalat'
(police
lock-up).
After
investigation he submitted the charge sheet
(Exhibit
Ka-12)
against
the
accused
persons on 31.07.1982.

18. P.W. 5 is Head Constable Amir
Singh, who has proved Chik FIR (Exhibit
Ka-13) and relevant General Diary (GD)
(Exhibit Ka-14). He registered the FIR and
wrote Chik FIR and handed over the
investigation to Sub-Inspector Hardeo
Singh.

19. Both the eye witnesses i.e. P.W. 1
and P.W. 2 have been cross-examined at
length by the defence side but nothing
material could be brought out in their cross
examination as to make their statements
unreliable. Both the eye witnesses have
proved the incident giving narration step by
step. P.W. 1-complainant has proved what
he has written in the first information report
about the incident. P.W. 2 has also proved
what was witnessed by him when the
incident was being committed by the
accused
persons.
Though
some
contradictions are there in the statements of
P.W. 1 and P.W. 2 but these contradictions
are of minor nature and may occur.

20.

Learned
counsel
for
the
convicts/appellants argued that name of
P.W. 2-Radhey Lal was not there in the
F.I.R. Had he witnessed the incident the
complainant had mentioned the name of
Radhey Lal in the F.I.R., hence he could
not be relied upon. This arguments
advanced by the defence was not tenable
because the statement of witness Radhey
Lal was recorded on the next day of
incident by the Investigating Officer. The
Investigating Officer P.W. 4 has stated in
his statement about it. Non mentioning of
name of the P.W. 2 in the FIR in such
circumstances is immaterial. Merely non
mentioning of the name of P.W. 2 in the
FIR did not make his testimony unreliable.
Further it is settled law that F.I.R. is not an
encyclopedia to mention every fact about
the incident. The evidence of both eye
witnesses P.W. 1 and P.W. 2 proves the
incident and their narration of facts is very
well being supported by the medical
evidence given by the Doctor P.W. 3. Ante
mortem injuries found on the body of the
deceased corroborates the facts what has
been stated in the F.I.R. and also proved by
P.W. 1 and P.W. 2. There is no reason to
doubt the testimony of P.W. 1 and P.W. 2.

21.

Learned
counsel
for
the
convicts/appellants
argued
that
two
unknown persons could not be traced and
identified by the Investigating Officer, as
such,
the
incident
narrated
by
the
complainant could not be believed. This
argument advanced by the learned counsel
for the convicts/appellants is baseless
because it is up to the Investigating Officer
to trace them but if they remained untraced,
it cannot be presumed that whole incident
is false. He further argued that no weapon
used in the crime was recovered by the
Investigating Officer neither fire arm nor
'Farsa' (Spade) or Kulhari (Axe), as such,
the incident could not be deemed proved.
This argument of the appellants' counsel
also not tenable because to prove the case
of prosecution recovery of weapon is not
always necessary specially if eye witness
account is there. In the present matter, two
witnesses have proved the incident who
witnessed the incident. Mere non recovery
of weapon cannot demolish the case of
prosecution. Recently in Mekala Sivaiah
Versus State of Andhra Pradesh (2022) 8
732 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court Cases 253, Hon'ble Apex
Court in this regard as held as follows:-

"When there is ample ocular
evidence
corroborated
by
medical
evidence, mere non-recovery of weapon
from the appellant would not materially
affect the case of the prosecution.

iii. If the testimony of an eye
witness is otherwise found trustworthy and
reliable, the same cannot be disbelieved
and rejected merely because certain
insignificant,
normal
or
natural
contradictions have appeared into his
testimony.

22. In Kalua alias Koshal Kishore
Versus State of Rajasthan (2019) 16
Supreme Court Cases 683 also Hon'ble
Apex Court held that "Non recovery of
weapon would not materially affect the
prosecution case."

23.

Learned
counsel
for
the
convicts/appellants also argued that the
motive for commission of murder though
alleged but has not been proved and the
motive is not sufficient for committing the
murder of the deceased by the accused
persons. This argument put-forth by the
learned counsel for the convicts/appellants
has no force because where there is direct
evidence of the crime then motive looses its
importance.
Though
generally
there
remains a motive for commission of a
crime but that motive remains hidden in the
mind of the miscreants. In the present
matter the incident has been proved by
direct evidence of P.W. 1 and P.W. 2
supported by medical evidence of P.W. 3.
In Surinder Singh Versus State (Union
Territory of Chandigarh) 2021 SCC
Online SC 1135, Hon'ble Apex Court in
this regard has held as under:-

"We are thus of the considered
opinion that whilst motive is infallibly a
crucial factor, and is a substantial aid for
evincing the commission of an offence but
the absence thereof is, however, not such
a quintessential component which can be
construed as fatal to the case of the
prosecution, especially when all other
factors point towards the guilt of the
accused and testaments of eyewitnesses to
the occurrence of a malfeasance are on
record."

24.

Learned
counsel
for
the
convicts/appellants further argued that
P.W. 1 is a related witness being the son of
the deceased, so his testimony could not be
relied upon. This argument of the learned
counsel for the appellants did not carry
weight because it is well settled law that
the testimony of the related witness cannot
be discarded merely on the ground that he
is a related witness. A person whose close
relative is killed will never spare the real
culprit just to implicate the others falsely.
In Rahul Versus State of Haryana (2021)
11 Supreme Court Cases 149, Hon'ble
Apex Court has held as under:-

" While rejecting the plea that
the witnesses were in close relation to the
deceased, in the case of Ram Chander &
Ors. v. State of Haryana this Court has
held as under:

"33. The submission of the
learned counsel for the appellants that
since Guddi (PW 9) was in close relation
with the deceased persons, she should not
be believed for want of evidence of any
indeperndent witness, deserves to be
rejected in the light of the law laid down

by this Court in Dalbir Kaur v.
State of Punjab (1976) 4 SCC 158 and
6 All. Karuna Shanker & Anr. Vs. State of U.P.
733
Harbans Kaur v. State of Haryana (2005)
9 SCC 195, which lays down the following
proposition (Harbans Kaur case, SCC
p.198, para 7).

"7. There is no proposition in
law that relatives are to be treated as
untruthful witnesses. On the contrary,
reason has to be shown when a plea of
partiality is raised to show that the
witnesses have reason to shield the actual
culprit and falsely implicate the accused."
" While rejecting the plea that the
witnesses were in close relation to the
deceased, in the case of Ram Chander &
Ors. v. State of Haryana this Court has
held as under:

"33. The submission of the
learned counsel for the appellants that
since Guddi (PW 9) was in close relation
with the deceased persons, she should not
be believed for want of evidence of any
indeperndent witness, deserves to be
rejected in the light of the law laid down

by this Court in Dalbir Kaur v.
State of Punjab (1976) 4 SCC 158 and
Harbans Kaur v. State of Haryana (2005)
9 SCC 195, which lays down the following
proposition (Harbans Kaur case, SCC
p.198, para 7).

25.

Learned
counsel
for
the
convicts/appellants further argued that the
presence of the P.W. 2 on the spot is not
reliable because at the time of incident he
has no reason to be there but this argument
is also of no help to the accused appellants
because
the
P.W.
2
in
his
crossexamination has stated that he was there as
he was plucking mangoes in the orchard of
Maithali Sharan from whom he purchased
the crop of mangoes, hence his presence at
the spot cannot be deemed doubtful.

26. Learned counsel for the accused
appellants also argued that the deceased
could not have run after receiving fire arm
injury which was shot at him initially, to
cover a distance of 60-65 paces as he was
finally allegedly killed in the orchard of
Vanshlal Dixit. Learned counsel for the
accused appellants further referred the
statement of P.W. 3 (Doctor) wherein he
has stated that after getting the injury of
fire arm wound the deceased could not
have run more than 6-7 paces. This
argument of the learned counsel for the
accused appellants also does not carry
weight because it differs from person to
person depending upon strength, will
power and courage of a particular person
that how one reacts after receiving the
injuries. Even Doctor P.W. 3 has stated that
he cannot say so with certainty.

27. From the above discussion it is
established that in the present matter the
incident occurred in a broad day light i.e.
5.30 pm in the month of June. The F.I.R.
was lodged promptly at 7.30 pm. The
inquest was conducted on the same night.
The statement of the complainant was
recorded on the same day. The statement of
another witness Radhey Lal was recorded
on the next day by the Investigating Officer
as has been stated by the Investigating
Officer. Eye witnesses have proved the
case
of
the prosecution beyond
all
reasonable doubts. There is no reason to
doubt the testimony of eye witnesses.
Hence it is well established from the
evidence on record that murder of the
deceased
was
committed
by
the
convicts/appellants namely Karuna Shankar
and Rajkishore in association with two
unknown miscreants. Hence the trial Court
has rightly held the accused persons guilty
and sentenced them accordingly with
imprisonment for life.