# Krishna Kant & Ors v. State

- **Citation:** (2024) 7 ILRA 1114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-15
- **Case number:** Criminal Appeal No. 3103 of 1982
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kant-ors-v-state-52189
- **Pages:** 26

## Headnote

(A) Criminal Law - Conviction - The Code
of criminal procedure, 1973 - Section 374
(2) - Appeals from conviction, Indian
Penal Code, 1860 - Sections 147, 148,
307/149 and 302 r.w. 149 IPC - Plea of
private defence is not applicable if the
accused
exceeds
the
limits
of
selfdefence.(Para - 57)

(B)
Evidence
Law
-
evidence
of
eyewitness, if found truthful, cannot be
discarded simply because the witnesses
were relatives of the deceased - evidence
of
interested
witnesses
should
be
subjected to scrutiny and accepted with
caution - testimony of a reliable witness
must be of sterling quality on which
implicit
reliance
can
be
placed
for
convicting the appellants. (Para - 45, 46)

(C) Evidence Law - dying declaration -
dying declaration stood on the same
footing as any other evidence - truth sits
upon the lip of a dying man - merely
because a dying declaration does not
contain the details as to the occurrence, it
is not to be rejected - merely because the
dying declaration is a brief statement, it is
not to be discarded - shortness of the
statement itself guarantees truth. (Para -
52)

Appeal was initially preferred by
five
appellants -three expired during appeal's
pendency - abated - remaining appellants
for judicial scrutiny - Appellants formed
unlawful assembly with deadly weapons -
Murder and attempted murder committed in
execution
of
common
object
-
Dying
declaration
reliable
and
trustworthy
-
Private
defence
plea
rejected
-
Imprisonment and fine imposed.(Para - 1,
54,55)

HELD: - Prosecution proved its case beyond
reasonable doubt. Conviction under Sections
147, 148, 302/149, 307/149 IPC affirmed.
Sentence modified to include fine. Trial court
correctly held that the appellants formed an
unlawful
assembly
with
deadly
weapons,
committing murder and attempted murder in
execution of their common object. Appellants
guilty of murder, attempted murder, and
rioting.(Para -55, 59)

Criminal appeal dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,989 of 84,394. This is a partial read: ask again with offset=39989 for what follows._

1114 INDIAN LAW REPORTS ALLAHABAD SERIES
37. The trial court is also directed
to expedite the trial of the aforesaid case by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2024) 7 ILRA 1114
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3103 of 1982

Krishna Kant & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Jagdish Singh Sengar, Ajay Kumar Pandey,
Anubhav Trivedi, Kunwar Mayank Singh, Ram
Lakhan Deobanshi, Sheshadri Trivedi, Shyam
Sunder Mishra, Vipin Chandra Pandey

Counsel for the Respondent:
A.G.A

(A) Criminal Law - Conviction - The Code
of criminal procedure, 1973 - Section 374
(2) - Appeals from conviction, Indian
Penal Code, 1860 - Sections 147, 148,
307/149 and 302 r.w. 149 IPC - Plea of
private defence is not applicable if the
accused
exceeds
the
limits
of
selfdefence.(Para - 57)

(B)
Evidence
Law
-
evidence
of
eyewitness, if found truthful, cannot be
discarded simply because the witnesses
were relatives of the deceased - evidence
of
interested
witnesses
should
be
subjected to scrutiny and accepted with
caution - testimony of a reliable witness
must be of sterling quality on which
implicit
reliance
can
be
placed
for
convicting the appellants. (Para - 45, 46)

(C) Evidence Law - dying declaration -
dying declaration stood on the same
footing as any other evidence - truth sits
upon the lip of a dying man - merely
because a dying declaration does not
contain the details as to the occurrence, it
is not to be rejected - merely because the
dying declaration is a brief statement, it is
not to be discarded - shortness of the
statement itself guarantees truth. (Para -
52)

Appeal was initially preferred by
five
appellants -three expired during appeal's
pendency - abated - remaining appellants
for judicial scrutiny - Appellants formed
unlawful assembly with deadly weapons -
Murder and attempted murder committed in
execution
of
common
object
-
Dying
declaration
reliable
and
trustworthy
-
Private
defence
plea
rejected
-
Imprisonment and fine imposed.(Para - 1,
54,55)

HELD: - Prosecution proved its case beyond
reasonable doubt. Conviction under Sections
147, 148, 302/149, 307/149 IPC affirmed.
Sentence modified to include fine. Trial court
correctly held that the appellants formed an
unlawful
assembly
with
deadly
weapons,
committing murder and attempted murder in
execution of their common object. Appellants
guilty of murder, attempted murder, and
rioting.(Para -55, 59)

Criminal appeal dismissed. (E-7)

List of Cases cited:

1. Bhurey Singh Vs St. of U.P., 2008 (4) ALJ 772
Alld

2. Maharaj Singh Vs St. of U.P. (1994) 5 SCC
188

3. Mohd. Muslim Vs St. of U.P. 2023 live law
(SC) 489

4. Daleep Singh Vs St. of Punj. AIR 1953 SC 364
7 All. Krishna Kant & Ors. Vs. State
1115
5. Hari Obula Reddy Vs St. of A.P. (1981) 3 SCC
675

6. S. Sudershan Reddy & ors. Vs St. of A.P.
(2006) 10 SCC 163

7. Rai Sandeep Vs St. (NCT of Delhi), (2012) 8
SCC 21

8. Bhayani Luhana Radhabi Vs St. of Guj., 1977
CAR 49(SC)

9. Kusa & ors. Vs St. of orisha 1980 C.A.R. 66
(SC).

10. St. of Maha. Vs Krishnamurthy Laxmipati
Naidu (1980) Supp. SCC 455

11. Surajdeo Ojha Vs St. of Bihar 1980 Supp.
SCC 769

(Delivered by Hon'ble Rajiv Gupta, J. &
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. At the very outset, for the sake of
precision, it is pertinent to mention that, as
the record transpires, initially the present
appeal is preferred by five appellants. Out
of these appellant no. (1)- Krishna Kant,
(2)- Sheo Roop, (4) Anant Saran have
expired, during the pendency of the appeal
and as such, the appeal in relation to them,
stood abated, vide orders dated 9.4.2014,
1.3.2017 and 31.8.2022, passed by this
Court. Thus, the present appeal, in relation
to surviving appellant no. (3) Farnesh
Kumar Singh and no. (5) Ram Nath alias
Bhola Lodh, is before us, for judicial
scrutiny.

2. We have heard, Sri Sheshadri
Trivedi, learned Counsel appearing on
behalf of the appellant no.3 Farnesh Kumar
Singh, and Sri Sheo Roop Yadav, Advocate
holding brief of Sri Kunwar Mayank Singh,
learned counsel appearing on behalf of
appellant no.5 Ram Nath alias Bhola Lodh
and Sri Jitendra Kumar Jaiswal, learned
Additional
Government
Advocate,
representing the State, in extenso and have
been taken through the entire material on
record.

3. The instant criminal appeal has
been preferred invoking the powers of this
Court u/s 374(2) Cr.PC. assailing the
legality and validity of the judgment and
order dated 13.12.1982 passed by the then,
VIIth Additional Sessions Judge Fatehpur,
while deciding Sessions Trial No. 191 of
1978 (State v/s Krishna Kant and others)
and in sessions trial No. 136 of 1979 (State
versus Ram Nath alias Bhola Lodh),
whereby all the accused/ appellants were
convicted under Sections 147, 148, 307/149
and 302 read with 149 IPC, and were
sentenced for the offence (charge) under
Section 147 for 18 months R.1., for Section
148 two years R.I., under Section 302/149
life imprisonment and under Section
307/149 IPC to undergo seven years R.L.
All the sentences were directed to run
concurrently.

4. In a short conspectus, the
genesis of the prosecution case, as culled
out from FIR, and undisputed facts, is that
on 20.11.1977 at about 9.05 a.m., a report
purported to have been lodged by Sant
Kumar
Upadhyay
at
Police
Station
Kotwali, District- Fatehpur with regard to
an occurrence said to have happened on the
same day at about 8.30 a.m., divulging
therein that he had purchased half portion
of plot no. 2103 from one Prem Shanker
Shukla on 17.9.1977, through a registered
sale deed. In pursuance of the sale deed, he
had taken over possession of the purchased
plot. The said plot is situated in front of the
house of accused Krishna Kant Singh
Gautam, abutting public road, known as
Station Road, is running in between the
house of the accused Krishna Kant Gautam
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
and the plot no. 2103, of which the
complainant has become the owner. The
complainant commenced construction of
the boundary wall around the purchased
plot.
The
complainant
got
erected
boundary-wall in frontier portion of his plot
during deewali holidays and the rest of the
portion of the boundary was being erected
on the fateful day, i.e. on 20.11.1977. He
purchased bricks, cement etc. for the
purpose. The complainant, accompanied
with his uncle Nanku Prasad, cousin Ganga
Prasad and his kith and kin Durga Krishna
alias Babbu, and two masons with six
labourers reached on the plot at about 8.30
a.m. and started erecting the boundary wall.
At this accused persons namely Krishna
Kant. Sheo Roop Singh, Farnesh Kumar
Singh, Anant Saran and Ram Nath alias
Bhola Lodh, became highly infuriated and
enraged, came out from the house of
Krishna Kant Singh Gautam. Accutsed
Krinsha Kant, Sheo Roop Singh and
Farnesh Kumar Singh were equipped
with guns and two accused persons
namely Ram Nath alias Bhola Lodh and
Anant Kumar were armed with Lathi and
dandas. All the accused persons started to
demolish the boundary wall, erected by
the complainant. The accused persons do
not
want
complainant
to
raise
constructions over the plot, for they were
intending to purchase and grab the said
plot. The complainant and his family
members raised remonstration against
demolition of the boundary wall. At this
the accused persons lost their temper and
consciousness and started to hurl abusive
and vituperative words, undermining
their image. The accused persons could
not squeeze ire and irate and took ugly
turn. Accused appellant Farnesh Kumar
Singh shot at Nanku Prasad, which hit at
his chest, with the intention of killing, as
a result of which he fell down. Ganga
Prasad and Durga Krishna, who were
present on the spot rushed to help Nanku
Prasad. The other two accused persons
Krishna Kant Singh and Sheo Roop Singh
also shot from their respective guns at
Ganga Prasad and Durga Krishna, with
the intention of eliminating them, as a
result of which they sustained fatal gun
shot injuries. Looking to the uproarious
and horrendous scene and also having
regard to the lamentation and shrieks, a
number of the persons of the locality
inclusive of Sada Sheo Pandey, Raj
Narain Bajpayee, Babu Lal and Raj
Kujmar
gathered
at
the
place
of
occurrence and witnessed the incident.
The accused persons after unleashing an
inflow of terror by making indiscriminate
firing entered in the house of accused
Krishna
Kant
Singh
Gautam.
The
complainant was highly terrified and
afraid because of precarious and serious
conditions of injured persons. He brought
three injured in two Rickshaws at his
house and from there he took prompt step
of informing the said incident at the
police station concerned by taking them
to the police station.

5. The complainant gave a tehrir
(Ext. Ka-2) about the incident, at the police
station concerned, at about 9.05 a.m. on the
same day. On the basis of tehrir enteries
were made in chik FIR, Ext. Ka- 14, and in
kaimi G.D. Ext. Ka- 15 and Case Crime
No.
712
of
1977,
under
Sections
147/148/149/307
IPC
was
registered
against the accused Krishna Kant Singh
Gautam, Sheo Roop Singh, Farnesh Kumar
singh, Ram Nath alias Bhola Lodh and
Anant Kumar.

6. Injured Nanku Prasad as well as
other injured were immediately sent to the
hospital, in a precarious condition for
7 All. Krishna Kant & Ors. Vs. State
1117
medical examination and treatment, with
majrubi chitthi.

7. Since the condition of injured
Nanku Prasad was very precarious and
critical, his dying declaration was recorded
at the hospital by the Tehsildar B. C. Dixit
(P.W.-9) at 10.40 a.m. on 20.11.1977. It
was also certified by P.W.7 Dr. B. R.Bajpai
that the mental condition of injured Nanku
Prasad was fit to make statement and the
injured Nanku Prasad was conscious and
sensible during the period of recording of
his statement. The certificates given by him
on the dying declaration is marked as Ext.
Ka.-19 and Ext. Ka- 20. Injured Nanku
Prasad succumbed to injuries at 11.45 a.m.
on the same day i.e. 20.11.1977. On the
death of Nanku Prasad, the medical officer
posted at the hospital sent a written
information to the kotwali concerned. On
receiving information with respect to death
of Nanku Prasad, the case was converted in
to u/s 302 IPC and an entry to this effect
was made in the G.D. no. 28 at 12.15 p.m.
The initial investigation was entrusted to
Pw-10 S.I. Gadadhar Prasad Sharma.

8. Thus, investigating was set in to
motion I.O. PW- 10 Gadadhar Prasad
Sharma and raiding police personnel
arrested five accused persons who had been
present in the house of accused/appellant
Krishna Kant Gautam. He also recovered
one D.B.B.L. licensed Gun bearing no.
54891 along with 14 cartridges in one belt
and nine cartridges in another belt. I.O.
prepared the recovery memo, Ext. Ka-21 of
recovered incriminating articles. I.O. also
recorded the statement of all the accused
persons and sent them to the Kotwali, in the
vigil
and
supervision
of
S.I.
Dost
Mohammad. The accused persons were
brought at the Kotwali at about 11.30 a.m.
and a report to this effect was entered in
G.D. no.22. S.I. Gajadhar Prasad Sharma,
investigating officer in association with
police personnel inspected the place of
occurrence and prepared the site plan Ext.
Ka- 22 etc. He found some pieces of bricks
saturated with blood. He collected blood
stained and plain pieces of bricks and soil
from the place of occurrence. He kept these
articles in a sealed bundle and prepared a
memo of recovery Ext. Ka. 23. He also
recovered four small pellets and two
ticklies from the spot and prepared a memo
of recovery Ext. Ka.24. He also collected
five empty cartridges from the place of
occurrence,
which
from
their
smell
appeared to have been fired recently. He
took them into possession and put in a
sealed cover and prepared duly recovery
memo Ext. Ka- 25. He also found three
spades, three shallow-pan (taslas) (material
Ext. 5, 6 & 7) and five buckets, material
Exts. 8, 9, 10, 11 & 12. a lathi, material
Ext. 16, were also recovered from the spot
and recovery memo of the same, marked as
Ext. Ka.26 was also duly prepared. He also
collected five used cartridges near the place
of occurrence and prepared a duly memo of
recovery, Ext. Ka- 27 in this behalf also. He
kept all these articles at the police station
concerned on 21.11.77 at 6.35 a.m. duly
entered in G.D. No.6.

9. Subsequent to the conversion of
the case in to section 302 IPC, the
investigation was taken up by Om Prakash
Yadav, the Station House Officer. Inquest
of the corpse of deceased Nanku Prasad
was carried out on 20.11.1977 in the
hospital between 12.30 p.m. to 1.30 p.m. in
the presence of appointed witnesses and
inquest report Ext Ka-10 was duly prepared
by PW- 6 Guru Prasad.

10. The Station House Officer G.P.
Yadav took up requisite steps for the
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
autopsy of Nanku Prasad (deceased), He
prepared the Challani Report of corpse
photo lash, relevant papers in the prescribe
proforma which were duly marked as
Ext.Ka 28 and Ext.Ka- 29.

11. Dr. Som Sharma (P.W.3), who
was posted at District Hospital Fatehpur,
received the requisite papers in respect to
autopsy of deceased Nanku Prasad on
21.11.1977 and conducted the autopsy on
the same day at 11.00 am. and prepared
autopsy report Ext Ka-3.

12. During investigation cartridges
recovered from the accused and the empty
cartridges and pellets recovered from the
place of occurrence were sent to FSL, for
forensic examination to the Ballistic
Expert, Lucknow along with D.B.B.L Gun
no. 54891 recovered Krishna Kant Singh
Gautam. B. D. Rai (P.W.-11) Ballistic
Expert conducted the examination of these
articles. He was of the opinion that some of
the spent cartridges fired from some other
gun besides the gun of this accused. He
gave his report which was marked as Ext.
Ka-35A. The blood saturated cloths of
Nanku Prasad and also blood stained and
ordinary pieces of bricks recovered from
the place of occurrence were also sent for
chemical examination to the Examiner at
Agra and also government serologist. The
report of the chemical examiner confirmed
presence of human blood stains on the
bricks and clothes.

13. After collecting sufficient
materials and evidence, showing the
complicity
of
accused
persons
1.0.
submitted the charge-sheet Ext. Ka- 34
against all the five accused persons under
Section 147/148/149/307/302 IPC in the
court of CJM, Fatehpur, who took the
cognizance of the case. Finding the case
being exclusively triable by the court of
sessions, learned CJM committed it to the
court of Sessions vide his order dated
26.07.1978, where it was registered as S.T.
Nos. 191 of 1978 and 136 of 1979 and later
transferred it to the court of VII-Additional
Sessions Judge, Fatehpur for trial.

14. The learned trial Sessions
Judge framed charges against the accused/
appellants under sections 147, 148, 149,
307, 302 IPC. The accused appellants
abjured the charges. pleaded not guilty and
claimed to be tried.

15. The prosecution, in order to
bring charges home, against accused/
appellants, examined following witnesses
in ocular evidence-

Sl.
no.
Name
of
witnesses
PW
Nos.
Remarks
i
ii
iii
Iv
1
Sant
Kumar
Upadhyay
P.W.-
1
Nephew
of
the deceased/
Complainant
of the case
2
Durga
Krishna
alias
Babbu
P.W.-
2
Cusion
of
deceased
(Eye
Witness)
3
Dr.
Som
Sharma
P.W.-
3
Conducted
Post Mortem
4
Sada Shiv
P.W.-
4
Witness
5
Dr.
T.N.
Bajpai
surgeon
P.W.-
5
Doctor-
Xrays
6
Guru
Prasad
P.W.-
6
Eye Witness
7
Dr.
B.R.
Bajpai
P.W.-
7
Doctor
8
Jagdish
Prasad
Tiwari
P.W.-
8
Constable
Moharrir
7 All. Krishna Kant & Ors. Vs. State
1119
9
B.C Dixit
P.W.-
9
Tehsildar / M
agistrate
10
S.I. G. P.
Sharma
P.W.-
10
I.O.
11
B.D. Rai
P.W.-
11
Ballistic
Expert
16. In order to substantiate the
charges leveled against the appellant,
prosecution
has
also
adduced
the
documentary evidence as under:-

Sl.
no
.
Particulars
of
Documents
Prove
d by
Ext
Nos.
i
ii
iii
iv
1
Sale Deed
P.W.-1 Ext.
Ka.-1
2
Tehrir
P.W.-1 Ext.
Ka.-2
3
FIR and Dying
Declearation
P.W.-1 Ext.
Kha.-
1
&Kha
-1
4
Post
Mortem
Report
P.W.-3 Ext.
Ka.-3
5
X-Ray
Reports
Durga Krishna
P.W.-5 Ext.
Ka.-4
to
Ka.-7
6
X-Ray Report of
Ganga Prasad
P.W.-5 Ext.
Ka.-8
to
Ka.-9
7
Inquest
P.W.-5 Ext.
Ka.-
10
8
Injury
Report
Nanku
P.W.-7 Ext.
Ka.-
11
9
Injury Report of
Ganga Parsad
P.W.-7 Ext.
Ka.-
12
10
Injury Report of P.W.-7 Ext.
Durga Krishna
Ka.-
13
11
Chik FIR
P.W.-8 Ext.
Ka.-
14
12
G.D. Reports
P.W.-8 Ext.
Ka.-
15 to
Ka-18
13
Dying
Deceleration
Certificate
P.W.-9 Ext.
Ka.-
19
14
Dying
Deceleration
P.W.-9 Ext.
Ka.-
20
i
ii
iii
Iv
15
Recovery Memo
Gun
and
Cartridges
P.W.-
10
Ext.
Ka.-
21
16
SitePlan
P.W.-
10
Ext.
Ka.-
22
17
Recovery Memo
Blood
Stained,
plain earth
P.W.-
10
Ext.
Ka.-
23
18
Recovery Memo
Of Pellet &Tiklis
P.W.-
10
Ext.
Ka.24
19
Recovery Memo
of Empties
P.W.-
10
Ext.
Ka.-
25
20
Recovery Memo
sand Spades etc.
P.W.-
10
Ext.
Ka.-
26
21
Recovery Memo
Empty Cartridge
P.W.-
10
Ext.
Ka.-
27
22
Challani Report
of Corpse
P.W.-
10
Ext.
Ka.-
28
23
The Picture of
Corpse Nanku
P.W.-
10
Ext.
Ka.-
29
24
Recovery Memo
Blood
Stained
P.W.-
10
Ext.
Ka.-
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
cloths
31
25
Recovery Memo
Pellet &Tiklis
P.W.-
10
Ext.
Ka.-
33
26
Charge sheet
P.W.-
10
Ext.
Ka.-
34
27
FSL Report
P.W.-
11
Ext.
Ka.35
,
Ka
35-A
28
Report
of
Chemical
Examiner
P.W.-
10
Ext.
Ka.-
37
29
Report
of
Chemical
Serologist
P.W.-
10
Ext.
Ka.-
38
30
Intekhab
Plot
No. 2104 banjar
land
------
Ext.
Ka.-
39
31
Intekhab
Plot
No.
2104
allottedto
smt.
kalpana
------
Ext.
Ka.-
40
32
Intekhab Plot No
2103
allottedPrem
shankar
------
Ext.
Ka.-
41
33
Bricks
PurchasedReceip
ts
P.W.-1 Ext. -I
to IV

17. Apart from the above, the
prosecution has also filed various revenue
documents
such
as
C.H.
akarpatra
Intekhab, and khasra pertaining to land in
dispute plot nos. 2103, 2104, 2105 (Ext.
Ka- 39 to Ext. Ka- 43).

18. Besides, prosecution has also
exhibited material objects, collected as
evidence during investigation, as follows-

Sl.
Exhibits
Proved Ext Nos.
No.
by
i
ii
iii
iv
1
03
Scuttle(Taslas)
P.W.-1
Ext 1 to
7
2
05 Buckets
P.W.-1
Ext.-
8,9.10.11
12
3
03
Spades
(Fabras)
P.W-1
Ext.-13,
14 &15
4
Lathi
P.W-1
Ext 16

19. After conclusion of the
prosecution evidence accused/ appellants
were afforded an opportunity under section
313 Cr.P.C. for offering explanation/
rebuttal of prosecution evidence/, charges
against them. The appellant Fanesh Kumar
Singh Gautam averred that they have been
falsely implicated in the present case due to
enmity, and personal grudge. He denied the
prosecution allegations and charges that
they had formed as unlawful assembly or
had killed Nanku or injured two other
persons namely Durga Krishna and Ganga
Prasad. He averred the defence version that
on
20.11.2017
complainant
and
the
deceased nanku Prasad, along with their
one relative Dr. Naval kishor and several
Other person, themselves had come to the
plot of the accused appellant Krishna Kant
Gautam and started remonstration of the
boundary wall which was constructed by
appellants. They have also stated that only
Krishna Kant Gautam had fired with his
licensed Gun in self defence of his
property, boundary wall and also to save
their life and lives of other family
members. They have lodged FIR against
the complainant side of the incident.
Present prosecution case is a counter blast /
cross case against complainant side, to
shield themselves against their cross case.
He
is
innocent. Accused
Appellants
Farnesh Kumar has made a long statement
narrating defence version. In his additional
7 All. Krishna Kant & Ors. Vs. State
1121
statement under Section 313 Cr.P.C. as
under:-

" मैं सन् 1964 से फतेिपुर कचेिरी मे
िक ित करत ि ाँ और 1965 से मेर हनजी मक न
मोिल्ि गौतम नगर शिर फतेिपुर मे िै। मेरे मक न क
सदर दरि ज पूरब तरफ िै और पूरब की ओर िी
बर मद िै। बर मद से उत्तर हमि ि आ कमर िै।
बर मदे के ब द मेर सिन िै, जो ब उधरी से हघर ि आ
िै। सिन मे आम-ज मुन के पे़ि ख़िे िै। मेरे उस मक न
की ब उधरी के पूरब तरफ हमिी ि ई स़िक िै, जो सन्
1976 में बनी िै। उसके पििे केिि र स्त थ । स़िक
के पूरब तरफ मेरे खेत नां० 2105 ि 2109 िै। उनक
रक्ब िमशः 2 हबस्ि ि 14 हबस्ि िै। मेरे प्ि ट नां.
2105 के पूरब प्ि ट नां. 2103 िै हजसक रक्ब
11 हबस्ि िै। नां. 2103 के पूरब प्ि ट नां. 2111 िै
हजस पर आब दी िै। प्ि ट नां. 2103 के दहक्षण नां.
2110 ि मेर प्ि ट नां 2109 िै। उन दोनो प्ि ट नां.
2103 से हमिे ि ए प्ि टों पर अब आब दी िै।
2103 प्ि ट नां. के उत्तर प्ि ट नां. 2102 िै जो
कहब्रस्त न िै। नां. 2103 के पहिम मेर प्ि ट नां.
2105 ि प्ि ट नां. 2104 िै। यि नां. प्ि ट 2104
ग्र म सम ज क िै, जो मेरे खेत के अधदर िै और उसक
मौके पर कोई demarcation निी िै। उन 2104
पर िी मैं कैहबज ि ाँ। स़िक के पूरब जो मेर खेत िै,
उसमे प्ि ट नां. 2105 ि 2109 क जुज़ हिस्स
श हमि िै। हजसके च रों तरफ घटन के बि त पििे मैनें
ब उधरी की पक्की नींि डिि ई थी।
घटन के करीब 10 हदन पििे सधत कुम र
अपने बि त से िहथय रबधद स हथयों को िेकर मेरे प्ि ट
नां. 2105 पर कब्ज करने की कोहशश की, परधतु कुछ
िकीिों के अः ज ने से और समझौत करि ने से
सधत कुम र कब्ज करने मे उस हदन सफि निी ि ए
और कब्ज निीं कर प ए। उसके दो तीन हदन ब द मैनें
प्ि ट नां. 2105 ि िे खेत में पूिी और उत्तरी ब उधरी
को उांच करि हदय जो करीब 5/ 5-1/2 फीट उांची
थी। उस खेत में मेरे कमरे की नींि िी मैनें जब नींि
डिि ई थी तब की बनी िै। उसके अि ि करीब 15
स ि पुर ने आम-ज मुन ि केिे के पे़ि थे तथ थ िे
बने ि ए थे। केिे के पेड इस समय मौके पर निी िै।
सबूत क केस हद. 20.11.77 पूणुतय
असत्य ि गित िै और मिज ि स केस से बचने के
हिये, पुहिस से स ठ ग ांठ करने के ब द बन य िै।
सिी केस यि िै हक 20.11.77 को
करीब 8.30 बजे हदन में अपने पररि र, अनधत शरण
ि नौकर िोि उफु र मन थ के स थ अपने घर के
उत्तरी-पूिी कमरें में च य प नी कर रि थ हक उत्तर की
तरफ से निि हकशोर के घर की ओर से सधत कुम र
उप ध्य य, ननकू ि नििहकशोर तथ 10 अधय िोग,
अनज न सूरत हशन ख्त, बधदूक, तमांच , ररि ल्िर हिये
ि ए आए और मेरे प्ि ट नां. 2105 के खेत की पूिी
ब उधरी हगर ने िगे। ब उधरी हगर ने की आि ज सुनकर
मैं ब िर सिन में आय तो देख हक उपरोक्त सब िोग
मेरी बन ई ि ई ब उधरी को हगर रिे िै। मैनें मन हकय ,
उपरोक्त िोग निीं म ने और ग िी गिौज करने िगे। मेरे
स थ के और िोग िी सिन में आ गए। मैनें िी उन
िोगोंःां को ग िी दी और ब उधरी हगर ने से रोक ।
उनके न म नने पर मैनें ििक र और मन हकय हक
अब ब उऩ्ड्री हगर ओगे तो ठीक निी िोग । इस पर ननकू
ने िम िोगों की ओर फ यर हकय जो िम रे और ननकू
के बीच में खडे ि ए पे़ि में िग । ननकू के स थ ि िे
िोगों ने िी फ यर करन शुरू हकय । फ यर के क रण
िम िोग दौ़ि कर अपने मक न के उत्तरी- पूिी कमरे में
घुस गए। इस पर िी ननकू आहद बर बर आगे बढ़ते रिे
और ििक रते रिे और फ यर करते रिे। अपनी तथ
अपने पररि र की ज न न बचते देखकर, क्योहक मुझे
हिश् स िो गय थ हक यि िोग फ यर करते ि ए आगे
बढ़ रिे िै और िम िोगों को हजधद निीं छो़िगे, मैने
िी सुरक्ष ि आत्मरक्ष िेतु अपनी ि ईसेंसी बधदूक से
तीन च र फ यर हकये। उस पर िी ननकू आहद बर बर
ििक रते रिे, फ यर करते रिे और मेर घर घेःेरे रिे।
इन िोगों के फ यर से छरे मेरे मक न के दरि जो,
खम्बों, दीि र, जांगिो तथ खडे ि ए सिन के पे़िो पर
िगे। िम िोगों के आ़ि में ि कमरे में िोने की िजि से
चोट निी आई।
थो़िी देर ब द पुहिस आ गई। पुहिस की
जीप देखकर चुटििों को छो़िकर, सधत कुम र िगैर
सिी िोग मौके से ि ग गये। पुहिस ने मौके पर सधत
कुम र की तरफ से ननकू ि अधय दो स थी घ यिों को
पक़ि हिय । पुहिस ने सधत कुम र आहद की फ यररांग से
मेरे मक न पर जो हनश न त अः ए थे, उनको देख ।
मैनें ररपोटु के हिये कि , तो उधिोनें कि हक हिख कर
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
थ ने में दो। पुहिस को मैनें ििी पर हबि सीि अपनी
ि ईसेंसी बधदूक और क रतूस के दो पट्टे दे हदये। चूांहक
ननकू की ि ित बि त ज्य द खर ब थी इसहिये िम
िोगों को ि चुटििों को जीप पर बैठ कर सीध
अस्पत ि िे गये और िि ां ननकू ि अधय दो घ यिों
को छो़ि और उसके ब द िम िोगों को कोति िी िे
गये। कोति िी िेज कर मैनें अपनी ररपोटु द हखि की।
इसके क फी देर ब द सधत कुम र ि नििहकशोर अपने
हबर दरी के नेत ओां और बि त से िकीिों को िेकर
कोति िी आये। िि ां इधसपेक्टर ओम प्रक श य दि से
अिग कमरें में ब त की और उसके ब द पुहिस ि िों
से िम िोगों के न म म िूम करके, सि ि ि मशहिरे से
िम िोगों के हखि फ ररपोटु हिखि ई।
सधत कुम र cross case में मुहल्जम िै।
ननकू उनके च च िै। ननकू के ि़िके को निि हकशोर
(मुहल्जम ि स केस) की बिन हिि िी िै। सद हशि
प ांडे गि ि निि हकशोर क ख स मेिी िै और बरिांि
ग ांि क रिने ि ि िै।

मैनें अः र जी नां. 2105, दो हबस्ि ि
2109 चौदि हबस्ि तथ 3005, रक्ब डेढ़ हबस्ि
क बैन म रहजस्री शुद ब बू दय ि, हशि दय ि से
सन् 1968 में कर य थ । बैन म की त रीख से उक्त
आर हजय त पर मेर कब्ज िै। ब बू ि ि, हशिदय ि
को यि आर जी चक बधदी में हमिी थी। उसके पििे
इशत क ख ां ि मसूद ख ां के न म यि उपरोक्त नम्बर न
थे। सधत कुम र से इन आर हजयत से कोई मतिब गरज
निी थ । प्िॉट नां. 2103 क कोई हिस्स स़िक से
हमि ि ई निी िै, बहल्क एक खेत ब द िै। सरक री
क गज त में िी मेरे न म क द हखि ख ररज 1968 के
ब द िो गय िै और खसर खतौनी में मेर न म दजु िै।
आर जी नां. 2103 पर खसर खतौनी य सरक री
क गज में सधत कुम र क न म आज तक निी िै।
प्रेमशांकर हजनसे खरीदन किते िै िि िी फजी व्यहक्त थे
और किी फतेिपुर में देखे निी गये। प्रेम शांकर के न म
की आर जी ि स केस के मुहल्जम निि हकशोर ने
अपने हिकमत अमिी से कई िोगों को बेचिी िै।
आर जी नां. 2102 को िी गल्त चौिद्दी हदख कर
निि हकशोर ने बेच हिय िै, हजसक दीि नी में
मुकदम चि रि िै।

निि हकशोर असरद र ि पैसे ि िे आदमी
िै और घटन के पििे म्यूहनसपि बोडु के मेम्बर रि
चुके िैं। उनक पुहिस से घटन के बि त पििे से मेि
जोि थ ।"
Accused Farnesh Kumar
has further stated that the copies of
revenue papers Ext. Ka- 39 to Ka-
43, furnished to him by the
prosecution,
are
not
correct.
However, he refused to make any
comment on these papers.

20. Accused/ appellant Ram Nath
alias Bhola Lodh has stated that on the day
of incident complainant Sant Kumar etc.
equipped
with
gun
and
revolvers
remonstrated the boundary-wall, made by
Krishna Kant, regarding which they have
lodged cross FIR. He also expressed his
ignorance about the revenue papers Ext.
Ka- 39 to Ka- 43 filed by the prosecution.

21. The accused / appellants did
not adduced any oral evidence. However
they adduced some judgment, copy of the
GD, Intekhabat and Khsras etc. to depict
ownership on some plot of land in the form
of documentary evidence, to substantiate
their defence.

22. The learned trial court, after
examining the entire material on record,
testimony of the prosecution witnesses and
also evaluating the oral and documentary
evidence, came to the conclusion that there
is a complete chain of evidence showing
the complicity of the accused appellant in
the commission of said crime and the
prosecution has proved its case beyond
reasonable doubts, pointing the guilts
against the accused persons and convicted,
accused/ appellant Farnesh Kumar and
Ram Nath alias Bhola Lodh under Sections
147, 148, 307/149 I.P.C, and 302/149 IPC
and sentenced them for the charge u/s 147
for 18 months R.I., for charge u/s 148 2
years R.I., u/s 302/149 I.P.C. R.I. for life
7 All. Krishna Kant & Ors. Vs. State
1123
and for charge u/s 307/149 for seven years
R.I. All the sentences were directed to run
concurrently. Ld. counsel for the appellants
assailed the conviction and sentence passed
in impugned judgement dated 13.12.1982,
on various grounds and advanced several
arguments in this behalf. Let us test,
examine,
scrutinize
and
analyze
the
contentions advanced by the learned
counsels for the parties, on the touchstone
of the evidence adduced, undisputed facts
and circumstances of the case.

23. The prosecution had examined
P.W.1
Sant Kumar
Upadhya
is
the
complainant, who had lodged the first
information report. He had made his
attempt to corroborate the prosecution
version in the toe of first information
report. In his statement it has come out that
he had been a practicing lawyer at District
Fatehpur for the last five to six years to the
happening of said occurrence. He had been
residing in a Mohalla Piranpur in District
Fatehpur. The said village was situated at a
distance of 50 kilometres from District
Fatehpur. His father had died about 30
years back to the said occurrence. His real
uncle Nanku Prasad (since deceased) was
head of the family. It was also averred by
him that Injured Ganga Prasad was his
cousin and Durga Krishna alias Babbu was
brother of wife of his cousin Jamuna
Prasad. Whenever they used to come to
Fatehpur, they were staying with him. On
the fateful day of occurrence they were
staying in his house. It was also stated by
him that accused Krishna kant Singh
Gautam used to have his seat in the
Collectorate Kutchery at a distance of
about 20 to 22 paces. He was well familiar
with all the accused persons much earlier to
the said incident. It was also stated by him
that he had purchased half portion of plot
no. 2103 by means of registered sale deed,
Ext. Ka- 1 dated 17.9.77, from Prem
Shanker Gupta. Since this land was situated
in front of the house of Krishna Kant
Gautam, he was in possession over it. After
purchasing the said land, the complainant
took over the possession of the said land.
On account of purchasing of the said land,
Krishna Kant Gautam used to nurture
animus and grudge against him. When
initially the complainant went to get the
boundary wall erected on the said land,
Krishna Kant Gautam unfolded that he had
not done good, as he wanted to purchase it
(plot no.2103). A public path of Nagar
Palika Fatehpur towards west was carved
out abutting to the said plot. The house of
Krishna Kant Gautam is situated towards
west, back to the said path. P.W.1 Sant
Kumar Upadhyay had started to get his
boundary wall constructed in a half portion
of said plot 8 to 10 days prior to the said
occurrence. He had purchased the bricks
for constructing the boundary wall on the
said land from the brick kiln of Babu Lal
Rastogi. He further stated that the incident
occurred on 20.11.1977. On 20.11.1977 at
about 8.00 a.m. he in association with his
uncle Nanku Prasad (since deceased), his
cousin brothers Ganga Prasad and Durga
Krishna alias Babbu, had reached at the
said plot with the object of getting the
boundary wall erected at upside. The
accused persons appeared there armed with
lathi, pistols and guns. They first began to
pull down the boundary wall built by the
complainant
and
subsequent
thereto
developed an uproarious and terrified scene
hurling vituperative and hurtful words. The
complainant and his associates tried to
pacify the ire and anger of accused persons
but the accused persons took ugly turn and
Farnesh Kumar fired at Nanku Prasad from
his gun which hit to his chest as a result of
which he rolled down on the ground.
Thereafter Krishna Kant Singh and Sheo
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
Roop Singh fired towards Ganga Prasad
and Durga Krishna who also sustained
injuries and stumbled down. The accused
persons created horrific and dreadful scene
while fleeing away from the place of
occurrence and entering in the house of
Krishna Kant Singh (accused). The witness
had supported the prosecution case. Since
the condition of injured Nanku Prasad was
deteriorating rapidly on account of gun shot
injury and the condition of other two
injured who had also sustained gun shot
injuries was also worsening, they were
taken at the police station concerned and
the first information report was lodged
immediately. The statement of Nanku
Prasad was recorded at the police station by
the Station Officer and all the three injured
were sent to the hospital for treatment. The
statement of the complainant was also
recorded at the police station concerned.
The injured Nanku Prasad succumbed to
injuries in the noon on the fateful day of
occurrence. The complainant was put to a
number
of
question
during
cross
examination but nothing could be elicited
belying the prosecution version.

24. In order to corroborate the
prosecution case, P.W.2 Durga Krishna
alias Babbu who is an eye witness of the
incident, had supported the story in toto. It
was averred by him that other injured
Ganga Prasad is the real brother of Jamuna
Prasad, to whom his sister was married. He
had deposed that he had come at the house
of the complainant in the evening, earlier to
the date of incident and was stayed there at
night. He had come to Fatehpur in
association
with
Ganga
Prasad
for
purchasing she-buffalo. He went to visit the
place of occurrence next morning along
with complainant, when the incident
occurred. It is averred unfolded by him that
accused persons began to pull down the
boundary wall of the complainant. Three
accused persons who were equipped with
fire
arms
opened
firing
from
their
respective guns targetting to Nanku Prasad
and other persons. The injured Nanku
prasad, had sustained fatal gun shot injuries
in the said incident caused by accused
persons. He stated that he had sustained
injuries in the said incident and was taken
to the police station and subsequent thereto
hospital for treatment. The P.W.2 Durga
Krishna alias Babbu had fully supported to
the prosecution version and nothing could
be elicited to discredit his version from his
testimony.

25. At this stage it seems pertinent
to discuss the medical evidence on record.
On receiving majrubi chitthi from the P.S.
concerned injured were brought to the
District Hospital. P.W.7 Dr. B.R.Bajpai,
who was posted as Medical Officer there,
on
20.11.1977
had
medico
legally
examined the three injured persons on the
letter handed over to him by the police
personnel.

(i) The doctor examined
injured Nanku Prasad, at about
9.15 a.m. He found following
injuries on his person-
One gun shot wound of
entry 1/10" x 1/10" x chest cavity
deep on the left side of the chest
upper part, 4" above nipple at 11
'O' clock position. Margins are
inverted
and
lacerated.
No
blackening and tattooing present
(bleeding).
The injury was kept under
observation. Doctor has opined that
the injury was caused by some firearm. The duration of injury was
found to be fresh. He prepared the
injury report, in his hand-writing
7 All. Krishna Kant & Ors. Vs. State
1125
and signature and proved it as Ext.
Ka- 11.
(ii)- During the course of
medical examination of injured
Ganga Prasad, at 10.15 a.m. the
doctor found the following injuries
on his person-
(i)- One gunshot wound of
entry 1/10" x 1/10" x muscle deep
on the middle of left temporal
region (bleeding).
(ii)- One gunshot wound of
entry 1/10" x 1/10" x muscle deep
on the middle of left eye brow
echymosis
around
the
wound
(bleeding).
(iii)- One gunshot wound
of entry 1/10" x 1/10" x muscle
deep on the right side chin
(bleeding).
(iv)- One gunshot wound of
entry 1/10" x 1/10" x muscle deep
on the right side chest upper part
21/2"away from nipple at 1 O'clock
position (Bleeding)

Doctor has averred that
margins
of
all
wounds
were
inverted
and
lacerated.
No
blackening and tattooing around
these wounds were found. He kept
injury no.1 and 4 under observation
and found the rest injuries to be
simple. All injuries were caused by
some fire arm and the duration was
fresh. He proved the injury report
as Ext. Ka- 12.
(iii)-
Pw-7
Dr.
B.R.
Bajpayee, also examined injured
Durga Krishna alias Babbu on
21.11.1977 at about 9.45 a.m. and
found following injuries on his
body-
(i)-
Multiple
gunshot
wound of entry in an area of 6'' x 5''
on the right side head 2" above ear
each measuring 1/10" x 1/10" x
muscle deep.
(ii)- Two One gunshot
wound
of
entry
1.50"
each
measuring 1/10" x 1/10" x musele
deep.
(iii)- Three gunshot wounds
of entry in an area of 3" x 1" on the
right side of chest upper part, each
measuring 1/10 " x 1/10" x muscle
deep.
(iv)- Three gunshot wound
of entry in an area of 4'' x 1'' on the
inner aspect of right arm, each
measuring 1/10" x 1/10" x muscle
deep.
(v)- Three gunshot wound
of entry in an area of 3''x1.5'' on the
inner aspect of right arm each
measuring 1/10" x 1/10" x muscle
deep.
(vi)-
Multiple
gunshot
wound of entry in an area of 12'' x
4'' prime prime on the right outer
aspect of left arm and forearm each
measuring 1 /10'' x 1 /10'' x muscle
deep.
(vii)- One gunshot wound
of entry 1/10" x 1/10" x muscle
deep on the front and upper part of
left side abdomen.
According to the Doctor
B.R. Bajpayi injury no. 1, 3, 8 & 7
under observation and found the
rest to have been simple. According
to doctor, all the injuries were
caused by some fire-arm. The
injuries were fresh in duration. The
margins
of
the
injuries
were
inverted
and
lacerated.
No
blackening
and
tattooing
was
present around all these wounds.
He also prepared and proved the
injury report, Ext. ka- 13. The
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
doctor had deposed that the injuries
sustained by the injured were
gunshot wounds. He opined that
these injuries could be caused by
the gunshot pellets.

26. In his cross-examination doctor
PW- 7 has deposed that Tehsildar B.C.
Dixit recorded dying declaration of injured
Nanku on 20.11.1977 at 10.40 A.M. in his
presence. At that time Nanku was in a fit
mental state and he remained fully
conscious while his dying declaration was
recorded. He further stated that he gave
certificate in his own hand-writing and
signature about mental fitness of the
injured. The witness proved it as Ext. Ka-
20.

27. PW- 3 Dr. Som Sharma has
stated on oath that on 21.11.1977, he was
posted as Medical Officer District Hospital
Fatehpur. He had conducted the autopsy of
the corpse Nanku Prasad on 21.11.1977.
The corpse of Nanku Prasad was received
on 20.11.1977 at 3.50 p.m. The requisite
papers were received on 21.11.1977 at
10.00 a.m. In the course of postmortem, the
doctor noticed the following facts:-

Ante-mortem
injuries:-
Doctor found the following ante
mortem injuries on the person of
the deceased Nanku Prasad-
(i) - One gun shot wound of
entry 1/10" x 1/10" x chest cavity
deep on the left side of the chest
upper part 4" above nipple at 11 'O'
clock
position.
Margins
are
inverted
and
lacerated.
No
blackening and tattooing present
(bleeding).
The doctor also noticed that
one small size gun shot 1/10" x
1/10" recovered from the body of
Nanku Prasad (deceased) lying in
the
posterior
pericardium
On
internal
examination he found
pericardium perforated and a big
hematoma
present
above
the
pericardium. He also found the
aorta
perforated
through
and
through and about 1'1/2 lb. of blood
present in thoracio cavity.
Cause
of death:- The
doctor opined that the death of the
deceased Nanku Prasad has been
caused
due
to
shock
and
hemorrhage, as a result of injury
found on the chest. He prepared the
post mortem report and proved it as
Ext.Ka.3.

28. Since Durga Krishna and
Ganga Prasad had also sustained injuries,
their X-rays were also done by Dr. T. N.
Bajpayi
(P.W.5)
on
21.11.1977.
The
aforesaid doctor took X-ray-photo graph of
the abdomen, chest, skull, left arm elbow
and forearm of Durga Krishna. In the X-ray
of
abdomen
he
found
multiple
homogeneous
radio
opaque
shadows
ranging 1⁄2 cm in diameter in the right
pelvic region. One shadow of same
diameter was present concerning to 11th rib
of left side. He prepared the X-ray report
exhibit Ka.-4 to Ka.- 9 for the same. In the
X-ray of chest three homogeneous radio
opaque shadows seen 0.5 cm in diameter
concerning to medical end of right clavicle
and twp near first rib of right side. He
prepared the X-ray report Ext. Ka-6 of the
same. The X-ray of left arm elbow and
forearm,
showed
multiple
circular
homogeneous radio opaque shadow seen
scattered in parietal and also in relation to
mandible of right side. He prepared the Xray report Ext., Ka.6 of the same. The Xray of left arm elbow and forearm showed
multiple
circular
homogeneous
radio
7 All. Krishna Kant & Ors. Vs.