# Krishna Kumar Pandey @ Babloo v. State of U.P

- **Citation:** (2020) 2 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Criminal Appeal No. 1668 of 2003
- **Bench:** Ritu Raj Awasthi, Virendra Kumar-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-pandey-babloo-v-state-of-u-p-45728
- **Pages:** 11

## Headnote

Govt. Advocate, Alok Singh, Arun Kr.
Tripathi,
Ashok
Kumar
Tripathi,
Padamkant Mishra, S.K. Upadhyaya

A. Criminal Law-Indian Penal Code -
Sections 302, 506 - read with Section 7 of
Criminal Law Amendment Act and Section
25/27 & 30 of Arms Act- Appeal against
conviction.

The analyzation of evidence available on
record, the impugned judgment and order by
trial court cannot be said to be perverse or
against the evidence available on record. It is
liable to be upheld and it is upheld accordingly.
(Para 56)

The Applicant has been released on 07.12.2019
from
Central
Jail
Naini,
Prayagraj
after
remission of his sentence on the basis of
Government Order. (Para 57)

We have perused the aforesaid government
order. The sentence of appellant has been
remitted by Hon'ble Governor of Uttar Pradesh
under Article 161 of the Constitution of India.
His
remaining
period
of
imprisonment/
sentence has been remitted. (Para 58)

Since, none is responding on behalf of
appellant, therefore, the present appeal has
been disposed of accordingly in absence of the
appellant's counsel. (Para 59)

Criminal Appeal disposed of. (E-2)

## Text

2 All. Krishna Kumar Pandey @ Babloo Vs. State of U.P.
759
mental agony of conviction for a long
time. Considering all these facts it would
be appropriate and proper that the accused
be sentenced with the period already
undergone and the amount of fine be
enhanced.

11. The accused-appellants are
sentenced to the period already undergone
by them in jail and an amount of fine of
Rs. 5000/- be imposed.

12. Accused-appellants are directed
to deposit the fine of Rs. 5000/- before
learned lower court within three months
from the date of passing of the judgement
out of which Rs. 4000/- shall be paid to the
injured, if he is alive and in case he is
dead, then it would be paid to his legal
heirs and in default of payment of fine
accused-appellants shall further undergo
15 days imprisonment.

13. Appeal is partly allowed in the
above terms.

14. Copy of this order be transmitted
to the concerned lower court forthwith for
compliance.
----------
(2020)02ILR A759

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.02.2020

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIRENDRA KUMAR-II, J.

Criminal Appeal No. 1668 of 2003

Krishna Kumar Pandey @ Babloo
 ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Rishad Murtaza, Md Altaf Mansoor, Salik
Ram Tiwari

Counsel for the Respondent:
Govt. Advocate, Alok Singh, Arun Kr.
Tripathi,
Ashok
Kumar
Tripathi,
Padamkant Mishra, S.K. Upadhyaya

A. Criminal Law-Indian Penal Code -
Sections 302, 506 - read with Section 7 of
Criminal Law Amendment Act and Section
25/27 & 30 of Arms Act- Appeal against
conviction.

The analyzation of evidence available on
record, the impugned judgment and order by
trial court cannot be said to be perverse or
against the evidence available on record. It is
liable to be upheld and it is upheld accordingly.
(Para 56)

The Applicant has been released on 07.12.2019
from
Central
Jail
Naini,
Prayagraj
after
remission of his sentence on the basis of
Government Order. (Para 57)

We have perused the aforesaid government
order. The sentence of appellant has been
remitted by Hon'ble Governor of Uttar Pradesh
under Article 161 of the Constitution of India.
His
remaining
period
of
imprisonment/
sentence has been remitted. (Para 58)

Since, none is responding on behalf of
appellant, therefore, the present appeal has
been disposed of accordingly in absence of the
appellant's counsel. (Para 59)

Criminal Appeal disposed of. (E-2)

(Delivered by Hon'ble Ritu Raj Awasthi,
J. & Hon'ble Virendra Kumar-II, J.)

1. The appellant, Krishna Kumar
Pandey @ Babloo, has preferred the
present criminal appeal, assailing the
impugned judgment and order dated
23.09.2003 delivered by the Court of
learned Additional Sessions Judge/ F.T.C.-
760 INDIAN LAW REPORTS ALLAHABAD SERIES
5, District Pratapgarh in Session Trial No.
238 of 2002, State Vs. Krishna Kumar
Pandey & another, arising out of Crime
No. 124 of 2001, Police Station Jethwara,
under Sections 302, 506 I.P.C. read with
Section 7 of Criminal Law Amendment
Act and Section 25/27 & 30 of Arms Act.

2. The learned trial court has
convicted the appellant, Krishna Kumar
Pandey @ Babloo for the offence
punishable under Section 302 I.P.C. to
serve out the imprisonment for life. Fine of
an amount of Rs.20,000/- has also been
imposed. He has also been convicted for
the offence punishable under Section
25/27 of Arms Act and convicted with
rigorous imprisonment for four years. He
has been acquitted for the offence
punishable under Section 506 I.P.C. and
Section 7 of Criminal Law Amendment
Act. All the sentence were directed to run
concurrently.

3. The co-accused Ramesh Chandra
Pandey, who is the father of appellant,
Krishna Kumar Pandey, has been acquitted
for the offence punishable under Section
30 of Arms Act.

4. It is mentioned in the grounds of
appeal that the investigation of this case is
biased and tainted. The F.I.R. is ante
timed.
No
independent
witness
has
supported the prosecution version. The
witnesses produced by the prosecution are
related, interested and partisan witnesses.
The prosecution has failed to establish its
case beyond reasonable doubt. There is no
motive for commission of crime. The
medical evidence has not supported the
prosecution
case.
There
are
major
inconsistencies and contradictions in oral
evidence adduced by the witnesses. The
trial court has committed illegality in
disbelieving the defence version. There is
no proper compliance of Section 313
Cr.P.C. The findings recorded by the trial
court are perverse and consequently the
impugned judgment and order delivered
by it is illegal, unjust and improper.

5. We have heard the learned A.G.A.

6. None is responding on behalf of
appellant.

7. We have also perused the oral as
well as documentary evidence available on
record of the trial court.

8. As per the prosecution version
narrated in the F.I.R. (Ex.Ka.-1), the
complainant, Umesh Chandra Pandey
lodged the F.I.R. on 07.09.2001. He went
on 07.09.2001 at the residence of his uncle
(Phupha), Shri Ram Kishore Tiwari, S/o
Shri Paras Nath Tiwari. His uncle was
having conversation with him and his
aunt(Bua). The deceased was sitting at his
shop of beetle. In the meanwhile, the
accused-appellant, Krishna Kumar Pandey
@ Babloo, S/o Ramesh Chandra Pandey
brought his scooter from inside of his
house and parked it outside his house. He
brought licensed gun of his father and shot
fire at 2:00 p.m. on 07.09.2001 in the
stomach of Ram Kishore Tiwari, the
deceased, who succumbed to gun shot
injuries sustained by him. The deceased,
Ram Kishore Tiwari was issue less and
accused-appellant, Krishna Kumar Pandey
@ Babloo wanted to obtain his property.
The accused-appellant, Krishna Kumar
Pandey @ Babloo threatened the deceased
by asking the deceased that transfer his
property in his favour otherwise he will
eliminate both his Phupha and Bua. He
lodged the F.I.R. after leaving the dead
body of his Phupha on the spot. The
2 All. Krishna Kumar Pandey @ Babloo Vs. State of U.P.
761
witness, Tribhuwan Nath Pandey, Girja
Shankar Pandey and Ram Narayan Pandey
as well as other residents of village saw
the accused, while he was fleeing away
from the place of occurrence.

9. On the basis of written report of
complainant, Crime No. 124 of 2001 was
registered at 2:10 p.m. for the offence
punishable under Sections 302, 506 I.PC.
read with section 7 Criminal Law
Amendment Act. On the basis of written
report submitted by the complainant, G.D.
of registration of crime was prepared for
the aforesaid offences.

10.

The
Investigating
Officer
inspected the place of occurrence and took
in possession the dead body of the
deceased. He prepared inquest report
(Ex.Ka.-2) on the same day at 14:30 hours
until 15:40 p.m. He collected plain and
blood stained soil from the place of
occurrence and prepared recovery memo
(Ex.Ka.-3) and some part of Baan of cot.
He sealed dead body of the deceased and
sent it to Sadar Hospital, Pratapgarh for
autopsy.

11.

The
Investigating
officer
recorded statements of witnesses. He
recovered license gun and three live
cartridges and one empty cartridge from
the
possession
of
accused-appellant,
Krishna Kumar Pandey @ Babloo. The
concerned
police
personnel
prepared
G.D.(Ex.Ka.-8)
at
23:50
hours
on
09.09.2002
regarding
recovery
of
aforesaid articles. He sent these articles to
the
Forensic
Science
Laboratory,
Mahanagar,
Lucknow
after
obtaining
permission from District Magistrate. He
submitted
charge
sheet
against
the
appellant as well as against the coaccused, his father. Postmortem report was
prepared (Ex.Ka.-5) by the concerned
doctor after autopsy of the deceased. G.D.
(Ex.Ka.-8A) No. 16 at 8:50 hours dated
10.01.2001 and G.D. (Ex.Ka.-9) were
prepared regarding submission of gun and
cartridges and plain and blood stained soil
and Baan of cot in forensic laboratory.

12. G.D. (Ex.Ka.-10) was prepared
regarding receipt of aforesaid articles by
Constable
Shaktidhar
Dubey.
The
aforesaid articles were sent to Forensic
Science Laboratory through letter (Ex.Ka.-
11) written by Circle Officer, Sadar,
Pratapgarh
to
Forensic
Science
Laboratory. Letter (Ex.Ka.-12) was written
by Circle officer to the District Magistrate,
District
Pratapgarh
for
obtaining
permission
for
comparison/
chemical
analysis of aforesaid articles. The District
Magistrate, Pratapgarh granted prosecution
sanction (Ex.Ka.-13) against the accusedappellant, Krishna Kumar Pandey @
Babloo and the co-accused Ramesh
Chandra Pandey.

13. Ex.Ka.-17 is the letter sent to
C.M.O. for autopsy was written by R.I.
The Investigating Officer prepared site
plan (Ex.Ka.-20). The Joint Director,
Forensic
Science
Laboratory,
Mahanagar, Lucknow forwarded his
report
(Ex.Ka.-21)
after
chemical
analysis and comparison of gun and
cartridges. A separate report (Ex.Ka.-22)
was forwarded by the Joint Director,
Forensic
Science
Laboratory,
Mahanagar, Lucknow to Circle Officer,
Sadar, Pratapgarh regarding chemical
analysis of clothes of the deceased, plain
and blood stained soil and Baan of cot.
Recovery
memo
(Ex.Ka.-4)
was
prepared regarding arrest and recovery
of aforesaid gun and cartridges from the
possession of accused persons.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

14.

The
concerned
Judicial
Magistrate committed this case to the court
of Sessions. The learned trial court of
Additional
Sessions
Judge/
F.T.C.-5,
Pratapgarh framed charges against the
accused-appellant, Krishna Kumar Pandey
@ Babloo on 05.12.2002 for the offence
punishable under Sections 302, 506 I.P.C.
and
Section
7
of
Criminal
Law
Amendment Act. A separate charge under
Section 25/27 of Arms Act was also
framed against the appellant.

15. The learned trial court has also
framed charge against co-accused Ramesh
Chandra Pandey on the same day for the
offence punishable under Section 30 of
Arms Act.

16. Both the accused persons pleaded
not guilty and claimed to be tried.

17. The prosecution has examined
P.W.1-Umesh
Chandra
Pandey
(complainant),
P.W.2-Rajendra
Prasad
Pandey; P.W.3-Tribhuwan Nath Pandey;
P.W.4-Smt. Shayama Devi, who is the
wife of the deceased Ram Kishore Tiwari
regarding facts and circumstances of the
occurrence. P.W.5-Arjun Prasad Pandey
has proved recovery memo (Ex.Ka.-2) of
plain and blood stained soil. P.W.6,
Constable Vijay Narayan Chaudhary has
proved arrest and recovery of gun and
cartridges from the possession of accusedappellant, Krishna Kumar Pandey @
Babloo. P.W.7, Dr. R. P. Chaubey has
proved postmortem report. P.W.8, Head
Constable Tarak Nath Jha Pandey has
proved Check F.I.R. (Ex.Ka.-6) and G.D.
(Ex.Ka.-7) of registration of crime. He
also prepared G.D. (Ex.Ka.-8) on the basis
of recovery memo (Ex.Ka.-4) regarding
arrest of the accused and recovery of gun
and cartridges. P.W.9-Constable Roshan
Nath Ojha proved this fact that he
submitted plain and blood stained soil and
pellets recovered from the dead body of
the
deceased
at
Forensic
Science
Laboratory. P.W.10, D. K. Upahdyay is
the Investigating Officer.

18. The learned trial court has
recorded detailed statements of both the
accused persons under Section 313 Cr.P.C.
in the form of question and answer.

19. The accused-appellant, Krishna
Kumar Pandey @ Babloo has stated that
he has falsely been implicated in this
crime. He has denied that he shot fire on
07.09.2001 on the deceased, Ram Kishore
Tiwari in presence of P.W.1. He has
further stated that the complainant lodged
F.I.R. on the basis of concocted and false
facts. He was arrested by the police party
from Kanpur and not from the place
shown
by
the
police
party.
The
Investigating Officer prepared forged
documents which are ante timed and ante
dated and submitted charge sheet against
him. The witnesses have adduced false
evidence
against
him.
The
report
submitted
by
the
Forensic
Science
Laboratory is also forged.

20. The appellant has stated in
additional statement and answered to
question No. 19 & 20 that he has been
implicated in this case by hatching
conspiracy due to enmity. The witnesses
are interested and family members of the
deceased. He has also stated that the
deceased Ram Kishore Tiwari was a
criminal and he was expelled from his
earlier native place/ residence. He was
having old enmity with his in-laws and
family. The deceased was an informer of
police
personnel
of
Police
Station
Jaithwara. The deceased was used to sold
2 All. Krishna Kumar Pandey @ Babloo Vs. State of U.P.
763
Ganja, Bhang at his shop and he was
having his so many enemies and he was
murdered by unknown persons. He was
arrested on 08.09.2001 from Kanpur when
he was getting treatment at the house of
his uncle.

21.

The
co-accused,
Ramesh
Chandra Pandey has stated that on the date
of occurrence, i.e., 07.09.2001 at 2:00 p.m.
he was present in the court of Civil Judge,
Kunda on the post of Reader and he was
present and working in that court. He has
further stated that his gun, license and
cartridges were kept at his residence at
Kunda, which is at a distance of 40
kilometers from his native place. His son,
Krishna Kumar Pandey @ Babloo had not
fired from his gun.

22. The co-accused has answered
question No.6 and stated that police
personnel contacted him on 07.09.2001 at
5:30 p.m. in Kunda and asked him
regarding gun and license. They received
gun, cartridges and license from him and
brought it at police station Jethwara. He
has further stated that his son was getting
treatment at the house of his uncle at
Kanpur. The police personnel on the next
day brought him by a jeep at Kanpur and
arrested his son. His arrest was falsely
shown on another place on 10.09.2001.
Ramesh Chandra Pandey has also stated
that
he
was
residing
in
a
rented
accommodation at Kunda.

23. The accused persons produced
D.W.1-Moorat Singh, S/o Uttam Singh
and D.W.2-Yogesh Kumar Upadhyay,
Advocate, S/o Heera Lal Upadhyay as
defence witnesses.

24. The learned trial court has
appreciated and analyzed the evidence of
prosecution and accused persons and
delivered the impugned judgment and
order.

25. We have perused the impugned
judgment and order and record of trial
court.

26. We have perused the evidence of
P.W.1 and P.W.4, who are witnesses of
fact. All these witnesses have witnessed
the incident committed the appellant,
Krishna Kumar Pandey @ Babloo. P.W.2
and P.W.3 have proved inquest report of
the deceased.

27. The learned trial court has
found that place of occurrence is
situated at a distance of one kilometer
from police station Jethwara. The
complainant-P.W.1 has
lodged
the
F.I.R. at 2:10 p.m. immediately after
the incident occurred on 07.09.2001 at
2:00 p.m. P.W.1 has proved this fact
that he went to meet his Phupha, the
deceased. He was having conversation
with the deceased at his beetle shop in
presence of his Bua. The appellant,
Krishna Kumar Pandey @ Babloo
brought his scooter and started it twice
and then parked it in front of his house.
Then he brought licensed gun of his
father and shot fire on the stomach of
the deceased. The deceased succumbed
to firearm injury sustained by him. He
has corroborated the facts narrated by
him in Check F.I.R.

28. P.W.1 has further stated that the
deceased purchased land and constructed
his house at the place of his in-laws and he
was selling beetle in a small Gomti at the
point of time of occurrence. The house of
Krishna Kumar Pandey @ Babloo was
situated near the house of deceased and
764 INDIAN LAW REPORTS ALLAHABAD SERIES
another house was situated inside of the
village. He has proved topography of the
place of occurrence also.

29. A detailed cross-examination was
conducted on behalf of the accused
persons, but no material contradiction was
elicited from him. The learned trial court
has found that in this case prompt F.I.R.
was lodged by the complainant, P.W.1. He
has discarded the argument of learned
defence counsel that F.I.R. was lodged on
the dictation of Sub Inspector. No material
contradiction
was
elicited
regarding
presence of P.W.1 at the place of
occurrence on date and time of incident
committed by the appellant, Krishna
Kumar Pandey @ Babloo. The learned
trial court has considered the statement of
P.W.1 that the deceased was issue less and
the accused was interested to obtain
property of the deceased and he threatened
him also.

30. The learned trial court has
also analyzed the evidence of P.W.4Smt. Shyama Devi, who is the wife of
the deceased, Ram Kishore Tiwari.
P.W.4 has disclosed this fact that the
appellant, Krishna Kumar Pandey @
Babloo sent a letter before the incident
and he also threatened the deceased
one year ago that both P.W.4 and the
deceased should transfer their house in
his favour, otherwise he will eliminate
them.

31. P.W.4 has further stated that
she brought the letter sent by the
appellant, Krishna Kumar Pandey @
Babloo at the police station. He was
scolded by the police personnel and
released at this point of time. The
deceased, Ram Kishore Tiwari made
complaint against the appellant at the
police station. P.W.3-Tribhuwan Nath
Pandey also corroborated these facts stated
by P.W.4.

32. Therefore, the learned trial court
has recorded finding that the appellant,
Krishna Kumar Pandey @ Babloo was
having old enmity with the deceased and
transfer of property of the deceased and
P.W.4 was the motive for committing
incident of this case. The prosecution was
able to prove presence of P.W.1 and P.W.4
at the point of time of incident of this
crime.

33. The learned trial court has also
considered
the
argument
of
learned
defence counsel that no independent
witness was produced by the prosecution
to prove the facts of the incident. The
learned trial court has quoted expositions
of law propounded by Hon'ble Apex court
regarding non production of independent
witness and regarding production of
related and interested witness.

34. The learned trial court has found
that the accused-appellant, Krishna Kumar
Pandey @ Babloo was known to witness,
P.W.1(complainant),
P.W.3-Tribhuwan
Nath Pandey and P.W.4-Smt. Shyama
Devi from prior to the incident. The
accused was residing near the house of the
deceased, therefore, there was no case of
mistaken identity. The learned trial court
has also evaluated the evidence of P.W.1Umesh Chandra Pandey and P.W.3Tribhuwan Nath Pandey regarding facts
and circumstances, in which, the appellant,
Krishna Kumar Pandey @ Babloo fled
away from the place of occurrence.

35. The learned trial court has
analyzed and evaluated the evidence of
P.W.10-Investigating
Officer,
Shri
2 All. Krishna Kumar Pandey @ Babloo Vs. State of U.P.
765
Dhirendra
Kumar
Upadhyay
and
omissions made by him, but no material
contradictions were elicited during his
cross-examination regarding the fact that
investigation conducted by him was biased
and tainted as argued by the learned
defence counsel.

36. P.W.10-Shri Dhirendra Kumar
Upadhyay has proved recovery memo of
plain and blood stained soil and arrest of
accused-appellant, Krishna Kumar Pandey
@ Babloo and recovery of gun and
cartridges from his possession. He has also
proved this fact that these articles were
compared and chemically analyzed at
Forensic Science Laboratory.

37. The learned trial court has also
considered the defence version stated by
the appellant, Krishna Kumar Pandey @
Babloo and co-accused, Ramesh Chandra
Pandey that he was getting treatment at the
house of his uncle, Suresh Chandra
Pandey at Kanpur and he was arrested in
the facts and circumstances as stated by
the co-accused Ramesh Chandra Pandey.
But Suresh Chandra Pandey was not
produced as defence witness regarding the
fact
that
accused-appellant,
Krishna
Kumar Pandey @ Babloo was arrested
from his house. The learned trial court has
considered this fact that no telegram was
sent by Suresh Chandra Pandey when the
appellant, Krishna Kumar Pandey @
Babloo was allegedly arrested from his
house by the police party of P.W.10 in
presence of co-accused Ramesh Chandra
Pandey.

38. The learned trial court has also
considered this argument of learned
defence counsel that gun and cartridges
were recovered on 09.09.2001, but they
were kept until 23.10.2001 by P.W.10 in
his possession. The learned trial court has
found that these articles, plain and blood
stained soil and pellets recovered from the
dead body of the deceased Ram Kishore
Tiwari and his clothes were sent on
23.10.2001 by the Circle Officer, Sadar to
Forensic Science Laboratory through his
letter (Ex.Ka.-11). The omissions made by
the Circle Officer was a mere irregularity
and no tampering was made at his hands.

39. The learned trial court has also
discarded
the
arguments
of
learned
defence counsel regarding the fact that
P.W.10 had not prepared site plan of the
place, from where, the appellant, Krishna
Kumar Pandey @ Babloo was arrested and
gun and cartridges were recovered from
his possession. Likewise, this fact was also
considered that P.W.4, widow of the
deceased covered the body of the deceased
during incident, but her clothes were not
soaked with the blood. The learned trial
court has also considered this fact that
P.W.1 has stated that the accusedappellant fired shot from gun from blank
point
range,
but
the
postmortem
report(Ex.Ka.-5) has not disclosed ante
mortem injury of such nature.

40. The learned trial court has
perused the post mortem report (Ex.Ka.-5)
and observed that lacerated wound of size
3.0 c.m. x 2.5 c.m. was found by Dr. R. P.
Chaubey (P.W.7). P.W.7 has proved this
fact that margins of firearm injury were
inverted and blackening was present all
around the wound. Small intestine was
lacerated, liquid was coming out from
small intestine. P.W.7 has opined that
death of the deceased was caused by
hemorrhage due to ante mortem firearm
injury. No material contradiction was
elicited during cross-examination of the
doctor (P.W.7).
766 INDIAN LAW REPORTS ALLAHABAD SERIES

41. The learned trial court has found
evidence
of
P.W.1-complainant
and
P.W.4, the widow of the deceased,
trustworthy,
cogent,
reliable
and
acceptable. P.W.7 has recovered wading
and rubber material from the dead body of
the deceased, which might have decreased
force of fired shot, therefore, there was no
occasion of presence of exit wound, as
P.W.7 has found wading and rubber
material from the abdominal cavity. The
cavity was filled with two liters of blood.

42. The Joint Director, Forensic
Science
Laboratory
has
sent
report
(Ex.Ka.-21) and opined that gun powder
and lead was present in the barrel of 12
bore gun No. 2307 and empty cartridge
sent for chemical examination was fired
from this gun, which was recovered from
the possession of the accused-appellant,
Krishna Kumar Pandey @ Babloo. T.C.1
and T.C.2 cartridges were fired at Forensic
Science Laboratory and mark of firing pin
was found same, both on empty cartridge
sent by police station Jethwara and T.C.1
and T.C.2.

43. The sealed wading and rubber
material was sent to Forensic Science
Laboratory, which is mentioned in report
(Ex.Ka.-22), where plain and blood stained
soil as well as blood stained Baan of cot
and
clothes
of
the
deceased
were
chemically examined. Human blood was
found on Baan of cot, dhoti, and wading
and rubber material found in abdominal
cavity of the deceased. Blood was found
disintegrated on the blood stained soil,
underwear of the deceased and watch.

44. These circumstances, as stated by
P.W.7 that he had not found any exit
wound or pellets in the abdominal cavity
are not material. The learned trial court has
recorded finding that the deceased, Ram
Kishore Tiwari, sustained ante mortem
firearm injury and he succumbed to this
injury sustained by him.

45. As far as, this fact is mentioned
in G.D.(Ex.Ka.-8A) that pellets were
sealed in an envelop, it may be possible
that the concerned police personnel
mentioned wading and rubber material as
pellets, which is the omission of the
concerned
police
personnel.
P.W.9,
Roshan Nath Ojha has stated accordingly
on the basis of fact mentioned in
G.D.(Ex.Ka.-8A). The accused-appellant
is not benefited with this fact stated by
P.W.9 or by his omission to mention
wading
and
rubber
material
in
G.D.(Ex.Ka.-8A).

46. The witnesses, P.W.6-Constable
Vijay Narayan Chaudhary and P.W.10, the
Investigating officer, Dhirendra Kumar
Upadhyay, have proved arrest of accusedappellant, Krishna Kumar Pandey @
Babloo
and
recovery
of
gun,
live
cartridges and empty cartridge from his
possession, which were sent to Forensic
Science Laboratory.

47. The learned trial court has also
evaluated evidence of P.W.7-Dr. R. P.
Chaubey and P.W.4-Smt. Shyama Devi
regarding meal taken by the deceased and
semi digested liquid food found in
stomach. The learned trial court has
observed that P.W.4 is an uneducated lady
and she has disclosed time of taking food
by the deceased on the basis of her
memory and assumptions. Dr. R. P.
Chaubey (P.W.7) has stated that the
deceased took his food two hours prior to
the incident as opined by him. The learned
trial court has discarded the argument of
the learned defence counsel in this regard
2 All. Krishna Kumar Pandey @ Babloo Vs. State of U.P.
767
that there is any contradiction in medical
and ocular evidence.

48. The learned trial court has
specifically mentioned in the impugned
judgment that P.W.2-Rajendra Prasad
Pandey, P.W.3-Tribhuwan Nath Pandey
and P.W.5-Arjun Prasad Pandey are not
the eye witness of the incident committed
by the accused-appellant, Krishna Kumar
Pandey @ Babloo. They might have stated
to have seen the incident corroborating
version of the prosecution, if they were so
interested being Khandani of the deceased.

49. The learned trial court has
cautiously appreciated and analyzed the
evidence
of
eye
witnesses,
P.W.1complainant and P.W.4-widow of the
deceased, and also found that no material
contradiction was elicited during their
cross-examination. P.W.2-Rajendra Prasad
Pandey is the witness of inquest report.
Likewise, P.W.3-Tribhuwan Nath Pandey
reached, when the appellant, Krishna
Kumar Pandey @ Babloo was leaving the
place of occurrence, while gun was
hanging over on his shoulder and he was
sitting on his scooter. He only heard noise
of fire and reached at the place of
occurrence and saw that Ram Kishore
Tiwari sustained firearm injury. He has
stated regarding threat given by the
accused-appellant to the deceased one year
ago. P.W.5-Arjun Prasad Pandey is the
witness of recovery of blood stained and
plain soil from the place of occurrence, of
which, recovery memo (Ex.Ka.-2) was
prepared by the Investigating Officer.

50. The learned trial court has
discarded the defence evidence adduced
by D.W.2-Yogesh Kumar Upadhyay,
Advocate, by recording the finding that
there was no occasion for the co-accused,
Ramesh Chandra Pandey to bring gun with
him at the court of Civil Judge (Junior
Division), Kunda, where, co-accused,
Ramesh Chandra Pandey was employed as
Reader of that court. The learned trial
court has discarded the evidence of D.W.2
in correct perspectives, because he has
stated that he is a legal practitioner at
Kunda and returned back home daily at
5:30 to 6:00 p.m. He has accepted that no
other employee or advocate was present
while police personnel arrested the coaccused, Ramesh Chandra Pandey in the
facts and circumstances stated by him.

51. On the other hand, the learned
trial court has considered the recovery
memo of gun, license, three live cartridges
and one empty cartridge and evaluated the
evidence of P.W.1, P.W.4, P.W.6 and
P.W.7. The learned trial court has
specifically recorded the finding that the
co-accused, Ramesh Chandra Pandey was
not arrested on 07.09.2001 at Kunda and
gun, license and cartridges were not
recovered from him, but these articles
were recovered at the bridge of Bakulahi
river in vicinity of Gulab Katra, where
accused-appellant, Krishna Kumar Pandey
@ Babloo was in possession of these
articles and he was arrested from that
place.

52. The learned trial court has
acquitted the co-accused, Ramesh Chandra
Pandey on the basis of deficit evidence
available against him being licensee of gun
recovered from possession of his son,
Krishna Kumar Pandey @ Babloo.

53. As far as evidence of D.W.1 is
concerned,
the
co-accused,
Ramesh
Chandra Pandey, who is father of the
appellant, Krishna Kumar Pandey @
Babloo, has stated in his statement
768 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded under Section 313 Cr.P.C. that
his son, Krishna Kumar Pandey @ Babloo
was arrested from the house of his uncle,
where he was getting treatment, whereas,
D.W.1-Moorat Singh, S/o Uttam Singh,
has stated that Krishna Kumar Pandey @
Babloo was arrested by the police party
while he was seeing cricket match in the
ground of his school at 5:30 evening on
08.09.2001.

54. D.W.1 has accepted in his crossexamination that he never saw the house
of Suresh Chandra Pandey, who is brother
of co-accused, Ramesh Chandra Pandey
and uncle of the appellant, Krishna Kumar
Pandey
@
Babloo.
The
facts
and
circumstances of arrest and recovery of
gun and cartridges has been proved by the
prosecution by means of evidence of
P.W.6 and P.W.10 beyond reasonable
doubt. Therefore, the evidence adduced by
D.W.1 is not acceptable and rightly
discarded by the learned trial court in
correct perspectives. The recovery of gun
and cartridges was made on 09.09.2001
from the possession of the appellant,
Krishna Kumar Pandey @ Babloo by the
police party of P.W.6 and P.W.10.

55. The learned trial court has also
recorded finding that there was no old
enmity of the complainant, deceased or
P.W.4, his widow with Krishna Kumar
Pandey @ Babloo, the appellant, and the
co-accused, Ramesh Chandra Pandey or
with the witnesses, Tribhuwan Nath
Pandey and Rajendra Prasad Pandey, on
the basis of which, appellant was allegedly
implicated in this crime.

56. On the basis of above mentioned
discussions, appreciation and analyzation
of evidence available on record, the
impugned judgment and order dated
23.09.2003 cannot be said to be perverse
or against the evidence available on
record. It is liable to be upheld and it is
upheld accordingly.

57. Learned A.G.A. has pointed out
that Senior Jail Superintendent, Central
Jail Naini, Prayagraj vide its letter dated
29.01.2020 has informed him that the
appellant, Krishna Kumar Pandey @
Babloo was detained in Central Jail Naini,
Prayagraj, after transfer from District Jail,
Pratapgarh on 25.12.2003. He has been
released on 07.12.2019 from Central Jail
Naini, Prayagraj after remission of his
sentence on the basis of Government
Order of Jail Administration & Reforms,
Anubhag-2, Uttar Pradesh Government
vide
order
No.
159/22-2-201917(202)/2019 dated 05.02.2019.

58. We have perused the aforesaid
government order. The sentence of
appellant, Krishna Kumar Pandey @
Babloo has been remitted by Hon'ble
Governor of Uttar Pradesh under Article
161 of the Constitution of India. The
appellant has served out sentence of 21
years, 11 months and 11 days with
remission and 17 years, 04 months and
17
days
without
remission.
His
remaining
period
of
imprisonment/
sentence
has
been
remitted.
The
appellant
has
been
released
on
07.02.2019
on
furnishing
P.B.
of
Rs.50,000/- to maintain lawful conduct,
peace and law and order.

59. Since, none is responding on
behalf of appellant, therefore, the present
appeal has been disposed of accordingly
in absence of the appellant's counsel.

60. It is pertinent to mention here
that the Government of U.P. has not
2 All. Shah Mohammad & Anr. Vs. State of U.P.
769
preferred any appeal assailing the acquittal
of co-accused, Ramesh Chandra Pandey.

61. Copy of judgment be sent to the
concerned trial court and the Senior
Superintendent,
Central
Jail
Naini,
Prayagraj for information and further
necessary action.

62. The record of trial court be sent
back for compliance.
----------
(2020)02ILR A769

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE PRINTIKER DIWAKER, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 3307 of 2017

Shah Mohammad & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri M.P. Yadav

Counsel for the Opposite Party:
A.G.A., Sri J.K. Upadhyaya

A.
Criminal
Law-Indian
Penal
Code
Section 304-B, 326, 498-A and under
Section 3/4 of Dowry Prohibition Act,- Appeal
against conviction.

We have no hesitation to hold that the dying
declaration was recorded in accordance with
law and there is no infirmity in the same.
Further there is no inconsistency in the dying
declaration and the same inspire confidence of
this Court. (Para 28)

it very clear as to the manner in which the
deceased was burnt by the appellants. It has
come in the dying declaration that the entire
act has been done at his instance and at his
dictates, and he did not make any effort to
save his wife. As already stated that apart from
the dying declaration recorded by the Executive
Magistrate, oral dying declaration was also
made by the deceased before PW-1 and,
therefore, role assigned to the appellants has
been duly proved by the prosecution. (Para 29)

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. St. of Guj. v. Jayrajbhai Punjabhai Varu,
(2016) 14 SCC 151,

2. Gaffar Badshaha Pathan v. St. of Mah.,
(2004) 10 SCC 589,

3. P. Mani v St. of Tamilnadu, 2006 (3) SCC
161,

4. Lakhan v. St. of MP, (2010) 8 SCC 514,

5. Shudhakar v. St. of MP, (2012) 7 SCC 569,

6. Ramakant Mishra v. St. of UP, (2015) 8
SCC 299,

7. Hari Om Vs. St. of Har. & Another, 2014
(10 SCC 57,7

8. Hem Chand Vs. St. of Har. 1994 (6) SCC
727,

9. Amar Singh Vs. St. of Raj.; 2010 (9) SCC
64,

10. Shanti Vs. St. of Har., 1991 (1) SCC 371,

11. Sanjay Kumar Singh Vs. St. of Delhi1;
2011 (11) SCC 733,

12. Donthula Ravindranath alias Ravinder
Rao Vs. St. of A.P. (2014) 3 SCC 196,

13. Ranjit Singh Vs. St. of Punjab; (2013) 12
SCC 333,

14. Sunil Dutt Sharma Vs. State (Govt of NCT
of Delhi); (2014) 4 SCC 375,