# Krishna Veer @ Pinkoo v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-29
- **Case number:** Criminal Appeal No. 487 of 2020
- **Bench:** Mahesh Chandra Tripathi, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-veer-pinkoo-v-state-of-u-p-anr-47769
- **Pages:** 16

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code, 1860-Section 302 - SC/ST Act,
1989 - Section 3(2)(v) -Challenge toConviction-murder-All
the
three
eye
witnesses (PW's 1,2,4) have become
hostile, PW-1 and 4 clearly denied the
presence on spot while PW2 stated that
he had not seen who fired shot-appellant
convicted while the co-accused acquitted
on the similar set of evidence, which is
illegal-no evidence regarding intentional
insult to the deceased, no offence is made
out under SC/ST Act-person who was the
cause of incident was not examinedmotive not proved-two shots were fired
but
only
one
empty
cartridge
was
recovered-deceased
was
sitting
on
Chabutra after having dinner while in post
morterm report, no solid material found
inside the intestine, this also makes the
prosecution case doubtful-Moreso, in the
present case, mandatory provision of
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
633
Section 313 CrPC was not complied withHence, Prosecution failed to prove its case
beyond reasonable doubt.(Para 1 to 34)

B. The examination of accused u/s 313
CrPC is not a mere formality. it prescribes
a procedural safeguard for an accused,
giving him an opportunity to explain the
facts and circumstances appearing against
him in the evidence and this opportunity is
valuable from the standpoint of the
accused. it imposes duty on the Court to
question the accused properly and fairly
so as to bring home to him to the exact
case he will have to meet and thereby, an
opportunity is given to him to explain any
such point.(Para 25)
The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,848 of 50,449. This is a partial read: ask again with offset=39848 for what follows._

632 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of reformation in order to bring
them in the social stream.

22. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

23. The accused is in custody for nine
years one month and seventeen days as on
date of the report sent by the Office which
would mean that the undergone period
would be 3507 days and the total sentence
including remission is twelve years three
months and eighteen days on 23.6.2022 and
we are in the month of October, 2022.
However, on the scanty evidence he is not
required to be confined anymore and the
sentence is upturned.

24. The facts that it was homicidal
death is the fact from record. The decision
cited by learned counsel for accused which
was not accepted by the Court below would
apply to the fact of this case also. He was
last seen by PW-1, 2, 4 and 5. Only on the
basis of last seen, he has been convicted for
commission of offence Section 304 of IPC
for life imprisonment which cannot be
sustained.

25. Rs.15,000/- as honorarium be paid
by Allahabad Legal Service Committee to
learned amicus curiae for his valuable
service.

26. Accordingly, the appeal is partly
allowed, as modified above.
----------
(2022) 10 ILRA 632
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 487 of 2020

Krishna Veer @ Pinkoo ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Durgesh Kumar Singh, Sri Anshu
Chaudhary

Counsel for the Respondents:
Sri A.N. Mulla, Sri G.P. Singh, Sri Narain
Mishra, A.G.A.'s

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code, 1860-Section 302 - SC/ST Act,
1989 - Section 3(2)(v) -Challenge toConviction-murder-All
the
three
eye
witnesses (PW's 1,2,4) have become
hostile, PW-1 and 4 clearly denied the
presence on spot while PW2 stated that
he had not seen who fired shot-appellant
convicted while the co-accused acquitted
on the similar set of evidence, which is
illegal-no evidence regarding intentional
insult to the deceased, no offence is made
out under SC/ST Act-person who was the
cause of incident was not examinedmotive not proved-two shots were fired
but
only
one
empty
cartridge
was
recovered-deceased
was
sitting
on
Chabutra after having dinner while in post
morterm report, no solid material found
inside the intestine, this also makes the
prosecution case doubtful-Moreso, in the
present case, mandatory provision of
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
633
Section 313 CrPC was not complied withHence, Prosecution failed to prove its case
beyond reasonable doubt.(Para 1 to 34)

B. The examination of accused u/s 313
CrPC is not a mere formality. it prescribes
a procedural safeguard for an accused,
giving him an opportunity to explain the
facts and circumstances appearing against
him in the evidence and this opportunity is
valuable from the standpoint of the
accused. it imposes duty on the Court to
question the accused properly and fairly
so as to bring home to him to the exact
case he will have to meet and thereby, an
opportunity is given to him to explain any
such point.(Para 25)
The appeal is allowed. (E-6)

List of Cases cited:

1. Veer Singh Verma Vs St. of U.P. CRLA NO.
154 of 2019,

2. Nar Singh Vs St. of Har. (2015) 1 SCC 496

3. Asharfi Vs St. of U.P. (2018) 1 SCC 742

4. Radha Mohan Singh @ Lal Saheb & ors. Vs
St. of U.P. (2006) 2 SCC 450

5. Krishna Govind Patil Vs St. of Mah. (1963)
AIR SC1413

(Delivered by Hon'ble Chandra Kumar Rai, J.)

1. Heard Sri Durgesh Kumar Singh
and Sri Anshu Chaudhary for the appellant
and Sri A.N. Mulla / Sri G.P. Singh / Sri
Shri Narain Mishra, learned A.G.A's for the
State.

2. This appeal has been preferred
against the judgment and order dated
17.12.2019 passed by the Special Judge
(S.C./S.T.) Act, Mathura in Sessions Trial
No.239/2003 (State vs. Krishna Veer and
Others), arising out of Case Crime
No.130/2001, under Section 302 I.P.C. and
3(2)(v) of the S.C./S.T. Act, Police StationBaldev, District Mathura, convicting and
sentencing the accused-appellant under
Section 302 IPC for life imprisonment and
fine of Rs.30,000/-, in default of payment
of fine, they have to further undergo
imprisonment of one year and under
Section 3(2)(v) of S.C./S.T. Act, rigorous
life imprisonment and fine of Rs.30,000/-,
in default of payment of fine, they have to
further undergo imprisonment of one year,
both the sentences will run concurrently.

3. The prosecution case as per the
First Information Report lodged by Ram
Khilari (P.W.-1) is that applicant is resident
of Laxmi Nagar, Police Station Jamunapar,
District Mathura. On 5.6.2001, applicant
had come to his brother's village -
Darghata, Police Station Baldeo, District
Mathura who lives in his in-law's house.
On 5.6.2001, applicant's brother and sisterin-law Smt. Sukhdevi were sitting on the
platform outside the house after taking
food. One Krishna Veer @ Pinkoo son of
Maharaj Singh Jaat, resident of village
Darghata, Police Station Baldeo, District
Mathura came to the house of Vimla Devi,
wife of late Devjeet who is neighbour of
applicant's brother Mohan Lal, at about
9.30 P.M., with a bad intention, then Vimla
Devi raised a noise, the applicant's brother
Mohan Lal saw Krishna Veer is coming out
from her house, he interrupted him then
Krishna Veer told to applicant's brother
"sale dhar", you sit silent otherwise I will
kill you. There was exchange of talk
between them then Maharaj Singh, son of
Deep Chandra Jatt who is father of Krishna
Veer came running with country-made
pistol in his hand and started abusing him
and
commented
on
his
caste
then
applicant's brother told that why you are
abusing me, in between Maharaj Singh
fired shot upon applicant's brother Mohan
634 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal from country-made pistol which passed
from his side then Maharaj Singh told his
son Krishna Veer @ Pinkoo to fire shot
upon him then Krishna Veer took out his
country-made pistol from his side and fired
shot upon applicant's brother which hit his
chest and Mohan Lal died on spot. Bengali
son of Katila and Atar Singh son of Shiv
Lal witnessed the incident. Dead body of
applicant's brother is lying on the spot.
Legal action be taken by writing a report.

4. On the basis of written report,
Case Crime No. 130/2001 under Sections
302 IPC and section 3(2)(v) SC/ST Act
was
registered
against
accused
Krishnaveer Singh and Maharaj Singh on
5.06.2001 at 10:45 PM and investigation
of the case was handed over to station
Officer who went to the place of incident.
Panchnama of the dead body was
conducted and after completing the
formalities, dead body was sent for
postmortem, the spot map of the place of
incident
was
prepared,
one
empty
cartridge was recovered by the police
from the place of incident, the memo was
accordingly
prepared.
Investigation
Officer submitted charge-sheet against
accused Krishanveer Singh under section320 IPC and section 3(2)(v) SC/ST Act.
No charge-sheet has been sent against
Maharaj Singh. Charges were framed
against accused Krishanveer Singh under
section-320 IPC and section 3(2)(v)
SC/ST Act to which he denied and
claimed trial.

5. The prosecution in order to prove
its case, produced as many as 9 witnesses
whose particulars are as follows:

P.W.1 Ram Khilari son of Shri
Ram (First informant and alleged eye-
witness)

P.W.2 Atar Singh son of Shiv
Lal (alleged eye-witness)

P.W.3 Dr. Subhash Chandra
Chief Medical Officer

P.W.4 Sukh Devi wife of late
Mohanlal (allege eye-witness)

P.W.5 Veer Singh son of Khazan
singh (I.O. of Case Crime No.130/2001)

P.W.6 Gauri Shankar son of
Hari Singh (witness of inquest)

P.W.7 Jhinguria son of Puran
Singh (witness of inquest)

P.W.8 S.I. Mahendra Giri

P.W.9 C.I.S. Jagmohan Shukla
son of late Awadh Narain Shukla (IO of
Case Crime No- 130/01)

6. In support of the occular testimony
of
the
witnesses,
prosecution
filed
following documentary evidence:

1. FIR dated 5.6.2001 (Ex Ka-1)

2. Chik (Ex Ka-4)

3. Site plan (Ex Ka-3)

4. Panchnama dated 5.6.2001
(Ex Ka-6)

5. Postmortem report dated
6.6.2001 (Ex Ka-2)

6. G.D.No. 35 (Ex Ka)

7. Recovery Memo of Empty
Cartridge (Ex Ka-7)
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
635

8. Photo Lash (Ex Ka-9)

9. Letter to CMO (Ex Ka -11)

10.
Charge-sheet
dated
15.4.2021 (Ex Ka-8)

7. The accused - appellants in their
statements recorded under Section 313
Cr.P.C denied the prosecution case and
disputed the veracity of the evidence
adduced by the prosecution.

8. P.W.1 Ram Khilari has stated in his
examination-in-chief
took
place
on
12.05.2008 as follows:-

Accused persons Krishnaveer and
Maharaj Singh belong to Jaat caste and
they are residents of Dagheta Police station
Baldev. His brother Mohanlal's in-laws
home is situated at Dagheta. He has been
visiting there before the occurrence of this
incident that is why he was acquainted with
the accused persons. His brother was
residing at village Dagheta. He had gone to
his brother's in-laws home at Dagheta on
05/06/01. His brother Mohanlal, sister-inlaw Sukhdevi and he were sitting on the
raised platform after taking food. His
brother's in-laws' neighbour Vimla came in
the house of Late Devjeet at 9.30 pm and
Krishnaveer had also come with her and
entered in the house of Vimla with malafide
intention. Vimla shouted. His brother
Mohanlal saw Krishnaveer coming out of
Vimla's
house.
His
brother
objected
Krishnaveer, then Krishnaveer said, "Saale,
shut your mouth otherwise I will kill you."
Verbal fight occurred between them.
Krishnaveer's father Maharaj Singh came
carrying country-made pistol uttering caste
based word to Mohanlal, Maharaj Singh
opened fire at him with intent to kill him.
But this fire passed by the side of
Mohanlal. Then Maharaj Singh asked his
son
Krishnaveer
to
kill
him.
Then
Krishnaveer took out country-made pistol
from his side and opened fire at Mohanlal
with intent to kill him which hit on his
chest due to which he succumbed on the
spot. Atar Singh Bangali belongs to that
village came on the spot and saw the
incident. It was moonlight in which he had
seen the incident. He got the report of this
case written by Atar Singh. Atar Singh read
over to him and he heard the report.

In the cross examination P.W.1
has stated as follows:- There was no enmity
between his brother Mohanlal and accused
Krishnaveer and there was no friendship
between them. Krishnaveer belongs to Jaat
caste and he belong to Jatav caste. Colony
of Jatav is separate and colony of Jaat is
also separate. He and his brother Mohan
Lal had taken meal containing a dish of
potato and brinjal, and chapatis at around
8:00 o' clock. The platform (chabutra),
where they were sitting, is adjacent to the
home in the east. He further stated that he
is acquainted with Vimla for many years.
Vimla's house is 8-10 steps away from his
brother's house to the west. No house falls
in-between them, rather there is a vacant
land which belongs to them. When Vimla
raised alarm, Atar Singh Bengali and his
sister-in-law
(elder
brother's
wife)
Sukhdevi had also arrived there. He fruther
stated that Vimla must be around 35-40
years old.

In the examination in chief took
place on 15.04.20017 P.W.1 has stated as
follows:-

He lives in Lakshmi Nagar, PS
Jamuna Nagar, Mathura. His elder brother
Mohan Lal would reside with his in-laws at
Village Dagheta, PS Baldev where Mohan
636 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal was shot dead on the night of
05.06.2001.
He
had
got
the
report/complaint of this incident being ext.
ka-1 written through Atar Singh, a resident
of Dagheta against the accused persons
Krishnaveer and Maharaj Singh and had
submitted the same at PS Baldev. He got to
know about the said incident on an
information sent by his sister-in-law
(bhabhi)
in
Lakshmi
Nagar.
He
immediately left the village. He reached PS
Baldev where many persons from the
village were present. Atar Singh was also
there. Atar Singh had prepared this
report/complaint as stated by the villagers.
He had made his signature on the
report/complaint. He had directly reached
to his brother's in-laws' place Dagheta after
making
his
signature
on
the
report/complaint. The situation there was
sorrowful. He found his sister-in-law
disturbed there. They could not speak with
each other. He had heard from the villagers
that it was a murder case and there was a
rumour in the village that the accused
persons Krishnaveer and Maharaj Singh
were involved in this incident. He was not
present in Village Dagheta at the time of
the incident. He was in Lakshmi Nagar.
Earlier he had given his statement on the
basis of that very information. Consequent
to this, the witness was declared hostile on
request by ADGC and opportunity was
granted for cross-examination.

In the cross examination P.W.1
has stated as follows:-

In connection with this incident,
his statement had been recorded in the
court earlier as well. It is correct that in the
said
statement,
he
had
stated
that
Krishnaveer and Maharaj Singh had shot
Mohan Lal due to which Mohan Lal had
died. Volunteered to state today that he had
given his statement in line with the case
diary at the instance of the police. It is
wrong to say that on 05.06.2001 at 9:30
pm, he had witnessed the murder of Mohan
Lal by the aforesaid Krishnaveer and
Maharaj Singh of Dagheta by way of
shooting him with a country made pistol
while his brother Mohan Lal was sitting on
a platform in the village within PS Baldev.
It is also wrong to suggest that he was
present in village Dagheta at the time of the
incident and had given his previous
statement on the basis of witnessing the
entire incident. He is Jatav by caste.
Accused persons are Jat by caste. It is also
wrong to say that he has, in collusion with
the accused persons or out of fear, today
retracted his earlier statement to save them
in this case. No police officer had recorded
his statement in connection with this
incident. The witness, on hearing his
statement u/s 161 Cr.P.C., stated, "I did not
give such a statement to the police. I cannot
tell any reason as to how they recorded my
statement."

9. P.W.2 Atar Singh has stated in his
examination in chief took place on
11.01.2011 as follows:-

That on 05.06.2001, he drafted
the complaint in this case at the instance of
Ram Khiladi, s/o Shri Shriram Jatav, r/o
Lakshmi Nagar Bagheecha, Jamunapar,
which is available on the record and is
before him. It is in his handwriting bearing
his signature and marked as ext. ka-1. He
further submitted that he has made his
signature on the Panchnama 'Paper No. 04
Aa/10'. The Panchnama is related to the
deceased Mohan Lal. The deceased
Mohan Lal died from bullet injury, but
who fired the bullet, it was not seen. On
being shown the affidavit (Paper No.
4A/50) submitted by him, the witness said
that the photograph affixed on it was his,
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
637
but whose signature it was, he could not
recognise.

In the cross Examination P.W.2 has
stated as follows:-

That he did not give any affidavit
to CBCID on his own free will. He cannot
state if he had given his photos for the card or
any other purpose. He can't state who has
signed the affidavit. He hasn't seen any
occurrence.

10. P.W.3 Dr. Subhash Chandra in his
examination-in-chief
took
place
on
02.05.2012 has stated as follows:-

That on 6.6.2001, he was posted
as Orthopaedist in the District Hospital,
Mathura. On the said date, at 3:40 p.m., He
had conducted the post-mortem on the body
of Mohan Lal s/o Shri Ram, aged about 50
years, resident of Village - Dagheta, PS -
Baldev, District - Mathura. The dead body
was brought by Constable - 1090 Vimlesh
and Constable - 1174 Munesh, PS - Baldev
in a sealed condition along with 08 police
papers. He had perused the police papers.
The deceased was average build. The effect
of rigor mortis from the neck of the
deceased had passed after death, but its
effect was present in the hands and feet.

He had found the following antemortem injury on the body -

The firearm wound of entry, 2 cm x
1.5 cm x chest cavity deep, 100 cm below the
nipple at 6 O'clock position. There was
blackening, tattooing and scorching on the
wound.

The direction of the wound was
from left to right and upwards.

On internal examination, the
ninth rib bone on the left side of the chest
was found to be broken. The right lung and
its membrane were found to be ruptured. A
metal bullet was recovered from the right
chest cavity. The heart and its membranes
were ruptured. There was about two litres
of blood in the chest cavity. There was
about 100 grams of fluid inside the
stomach. Fluid and gas were present in the
small intestine. Faecal matter and gas were
present in the large intestine. The deceased
died due to haemorrhage and shock. The
death of the deceased occurred about 3/4
(18 hours) - 1 day before the post-mortem
examination. He had prepared post-mortem
report at the time of post-mortem of the
deceased ''Paper No. 4A/20', which is in his
writing and signature.

In the cross examination P.W.3
has stated as follows:-

That it is possible that the
deceased might have been hit with firing
from a distance of 01 to 03 feet. The barrel
of the firearm was to the left of the
deceased at the time of the occurrence. He
was saying this on the basis of the direction
of injury. The barrel of the firearm must
have been slightly upward at the time of the
occurrence. There was no solid food in the
stomach of the deceased. 100 grams of
fluid was present in the stomach. It usually
takes about 04 hours for the solids to pass
from the stomach to the small intestine.
The deceased must have eaten something
about 04 hours before the occurrence.
For this reason, some digested fluid was
found in the small intestine. The said liquid
cannot be alcohol. It can be water, tea, cold
drink.

11. P.W. 4 Sukh Devi wife of Late
Mohan Lal in her examination-in-chief
638 INDIAN LAW REPORTS ALLAHABAD SERIES
took place on 21.03.2013 has stated as
follows:-

That the incident took place on
05.06.2001 around 9.30 p.m. She was sitting
on the raised-platform of her house with her
husband Mohan Lal and her brother-in-law
Ram Khiladi and were talking. Just then
they heard some hue and cry from the house
of her maternal aunt Vimla Devi. Krishna
Veer @ Pinku S/o Maharaj Singh, Caste: Jat
came outside. Her husband tried to stop
Krishnaveer, Krishnaveer shouted, "You
bastard, sit quietly or else I will kill you."
During this hot exchange, Krishnaveer's
father Maharaj came running, holding a
katta country made pistol in his hand and
started abusing. When her husband forbade
Maharaj from abusing, he with the country
made pistol in his hand, shot at her husband
which narrowly passes beside his hand.
Then Maharaj Singh exhorted his son
Krishnaveer, ".the bastard Chamra, or else
he will create problem again." Then Krishna
Veer took out the country made pistol from
his pocket and shot at her husband.
Immediately after receiving the gunshot, her
husband fell down on the raised-platform
and died. The gunshot hit her husband in his
chest. My brother-in-law Ram Khiladi and
others reached the spot. She did not reach
the spot (then stated that) she was present at
the spot. She further stated that it is around
16 years back. It was 9-10 pm. Her husband
Mohan Lal had been murdered by firing
bullet shots. Her brother-in-law had lodged
the report against Krishnaveer and Maharaj
of her village. A woman namely Vimla of
her
locality
had
altercation
against
Krishnaveer. When she returned from
Nauhare after giving fodder to her cattle, her
husband was lying dead on the chabutara.
She had not seen Krishnaveer and Maharaj
present in the court firing bullet shots to her
husband.

In her cross examination P.W.4
stated as follows:-

That no Police Officer had
recorded her statement in regard to this
incident. When the witness was read over
her statement u/s 161 Cr.P.C., she stated
that she can't tell the reason how the S.I.
had recorded it. She had given her
statement in this court earlier too. She
stated that earlier too, she had given the
same statement that she was not present at
the spot. It is wrong to state that she had
seen accused persons Krishnaveer and
Maharaj present in the court firing bullet
shots at her husband at the spot. The
accused persons are the native of her
village. They are Jat by caste, she is Jatav.
It is wrong to state that today she is giving
false statement in collusion with or under
pressure or fear of the accused persons. Her
brother-in-law is working in post office.
His posting is at Sahawan. After the death
of her husband, someone from the village
had called her brother-in-law Ram Khiladi
for lodging the report. Mostly there are
persons of Jat caste. When her brother-inlaw came, then he would have lodged the
report. She had been unconscious since
evening. Earlier, the statements she had
given was given on behest of the people of
the village.

12. P.W.5 Veer Singh C.O. in his
examination-in-chief
took
place
on
28.03.2018 has stated as follows:-

That on 6.6.01 he was posted as
C.O. at PS Baldev Circle Jamunapar. On
the aforesaid date on being commanded by
the then Senior Superintendent of Police,
the investigation of C.No. 130/01 was
handed over to him. After taking over the
investigation, firstly the copy (parcha no. 1)
of written report was prepared by him.
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
639
Thereafter the statement of HM 74CP
Mahendra Giri was recorded by him.
Further the statement of informant Ram
Khiladi
s/o
Shri
Ram
Jatav
r/o
Lakshminagar PS Jamunapar was recorded.
After recording the aforesaid statements,
the scene of occurrence was inspected at
the instance of informant. The site map was
prepared on the spot. In the original file of
site map, paper number 4A/3 is enclosed
marked as Ex Ka-3. After the inspection of
scene of occurrence, the statements of
witnesses Horilal s/o Kashiram, Kishan
Swaroop s/o Nekram were recorded as
hearsay evidence in C.D. (parcha 1). On
6.6.01 as he was transferred from the
aforesaid circle, the investigation of the
said case was conducted by the then S.P.
Dwivedi.

In his cross examination P.W.5
stated as follows:-

That he went on the spot during
daytime. He do not remember time. He did
not see the house of Vimla, nor did he
record her statement. He did not arrest any
accused. He did not raid. He issued parcha
1 during investigation. Thereafter he was
transferred. It is right that there was no
electricity pole or bulb on the spot, thus
there was no source of light. Therefore he
did not get it written.He cannot tell
according to map whether there was any
source of light. He did not see (sic) on the
spot. Many people were visiting the place.
When he went on the spot, nobody told
because there was no eye witness. He is not
acquainted
with
Maharaj
Singh
and
Krishnaveer. Ram Khiladi gave statement
with reference to report. He did not make
any other statement. He did inquire Ram
Khiladi about Ram Khiladi's report. He did
not inquire anyone. It is wrong to state that
he recorded the statements at the police
station on the basis of FIR. It is also wrong
to state that he did not meet Ram Khiladi. It
is also wrong to state that harm was caused
during raid at house. It is also wrong that
inquiry was made in that regard.

13. P.W.6 Gain Shanker in his
examination-in-chief
took
place
on
12.07.2018 has stated as follows:-

That
the
relative
of
Jagna
belonging to their village died. The police
initiated proceeding in this regard. The
police conducted inquest of deceased
Mohan Lal in village 16-17 years before.
Mohan Lal died at night. Next day the
police carried away the dead body for
inquest. His signature was obtained. The
police asked five elderly people to make
signatures on inquest report. He does not
know
that
what
proceedings
were
conducted by the police. Inquest report
is paper number 4A/9 to 11 on file. It
bears his signature. He does not know
that how Mohan Lal was killed.

14.

P.W.7
Jheeguria
in
his
examination-in-chief
took
place
on
12.07.2018 has stated as follows:-

That Around 17-18 years before
Mohan Lal, the son-in-law of Jagna
belonging to his village died during night.
Next day the police came on information.
He came after the police. The police
conducted inquest of the dead body. The
police asked him to make his signature on
document and he did it in accordance with
the instructions of the police. The inquest
report is paper number 4A/9 to 11 in file. It
bears his signature. He does not know
that how Mohan Lal died. He does not
know that who is being prosecuted for
killing Mohan Lal. When he came, the
640 INDIAN LAW REPORTS ALLAHABAD SERIES
police had sealed(sic). He did not see the
dead body of Mohan Lal.

15. P.W.8 Mahendra Giri S.I. in his
examination-in-chief
took
place
on
04.10.2018 has stated as follows:-

That On 5.6.2001 he was posted
as HM at PS Baldev. On the said date at
10.45 pm informant Ram Khiladi s/o Shri
Ram
Jatav
r/o
Lakshminagar
PS-
Jamunapar District- Mathura came with a
report. Informant's report was registered by
him as C.C.No. 130/2001 under Section
302 IPC and 3(1) X and 3(2)5 SC/ST Act
and investigation was handed over to CO
Refinery. Paper number 3A/1 is there on
file marked as Ex Ka-4. It is in his
handwriting and signature. He entered it in
GD number 35 at 22.45 hours. The carbon
copy (paper 4A/5) of original GD is present
on file. The original is destroyed. He has
brought a certificate in this regard. It bears
his signature. He certifies it. It was marked
as Ex Ka-5. The inquest of deceased
Mohan Lal was conducted by Shri Ram Pal
Singh after appointing Pyare Lal, Atar
Singh, Gauri Shankar, Bhagwan Singh,
Jheeguriya as panchas. Ram Pal Singh was
posted with him at police station Baldev.
He identifies Ram Pal Singh's signature.
Inquest report is 4A/9 and 4A/10. It was
marked as Ex Ka-6.

In his cross examination P.W.8
has stated as follows:-

That
after
receiving
the
information of receiving the SR, C.O.
refinery, S.O. Baldev and others had come,
but he does not remember as to when the
above officers had come on 06.06.2001,
nor does he knows when the dead body was
picked up from the spot in order to seal and
stamp it on the next day. He did not go to
the place of occurrence. He does not have
any information as to the spot. He knows
that the murder-case of Maharaj Singh's
brother and Krishnaveer's uncle pre-dates
his tenure; whose case was pending.

16. P.W.9 Jag Mohan Shukla in his
examination-in-chief
took
place
on
03.07.2019 has stated as follows:-

Parcha no.-IX was prepared by
him. On that day, He was posted as CIS 1st
at Criminal Investigation Branch, Lucknow.
On that day, he received investigation of
C.No.-130/01, u/s-302IPC & 3 (2) V
SC/ST, Act from previous investigating
officer namley Shri Sanjay Kumar Yadav
wherein
receiving
the
concerned
documents related to the investigation,
investigation
was
initiated.
Having
prepared C.D. No.-X on 05.09.2002,
statements of complainant Ram Khilari,
Smt. Shukhadevi w/o Mohan Lal, Atar
Singh, Bengali and Smt. Vimla Devi were
recorded and after verifying the affidavits
given by previous investigating officer,
made it the part of his investigating and
inspected the place of occurrence at the
instance of complainant which has been
marked as Ext. ka-03. Parcha no.-XI was
prepared on 06.09.2002 wherein statements
of witnesses of the inquest report namely
Pyare Lal, Gauri Shanker, Jhingariya,
Bhagwan
Singh
and
statements
of
witnesses namely Girij Singh, Ramveer
Singh, Vijendra Singh, Karan Singh, Chote
Lal, Ajay Pal, Ramji Lal were recorded and
other
persons
of
the
village
were
interrogated and statements of witness Ram
Khilari and Shukha Devi were again
recorded
and
statements
of
Smt.
Shakunkala, Pipendra, Ramveer Singh and
Deep Chand, Maharaj Singh and Smt.
Sheela Devi and Krishnaveer Singh, who
were present on the spot, were recorded.
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
641
Statements of Dr. Shubash Chand, Medical
Officer, who conducted the postmortem of
deceased Mohan Lal, was recorded in
which Medical Officer stated that no injury
was found on deceased except a bullet
injury on deceased chest. C.D. No.-XII was
prepared on 07.09.02 wherein preparing the
aforesaid parcha and perusing the parchas
of the proceeding done by the previous
investigator, investigator of the local police
Shri Veer Singh and SP Dwivedi, C.O.,
prepared parch-1 & parch no.-II 06.06.01
respectively which were inspected. The
proceeding done by previous investigator,
which includes site-plan, etc., and recovery
memo of one empty cartridge which is
paper no.4A/06 was prepared by S.I.
Rampal in S.I. Rampal's handwriting and
signature and the same is before him.

In his cross examination P.W.9
has stated as follows:-

That No lamp-post or light has
been mentioned in the site-plan Ext. ka-03
enclosed with the file. It is correct that the
incident took place at 9:30 pm. Only one
empty cartridge was found on the spot and no
mark of any other fire was found. It is correct
that Maharaj Singh and Krishna Singh are
father and son. It is that during his inquiry the
witnesses namely Atar Singh, Bengali and
Smt. Vimla mentioned in the FIR did not
support the occurrence of the incident, nor
did they claim to be eye-witnesses. It has also
been stated that prior to him, no investigating
officer has recorded any statement regarding
this incident. He recorded the statement of
witness Atar Singh, who stated in his
statement "Jaswant Singh repeatedly gave
advise to Ram Khilari that if Maharaj Sigh is
named then he will not be able to follow the
case and this case will be strong. On being
asked, he stated that Jaswant Singh and
others are accused of the murder-case of
Maharaj Singh's brother namely Sultan
Singh, at this time (he) is on bail". It is correct
that Jaswant Singh is of criminal-nature. Smt.
Vimla stated in her statement to him that
Krishnaveer Singh did not come to her
home on the fateful day, nor did she raise
any noise.

17. The learned Sessions Judge SC/ST
Act Mathura after hearing the parties and
perusal of the record, acquitted accused
Maharaj Singh under Sections 302 IPC and
section 3(2)(v) SC/ST Act but convicted
accused Krishanveer Singh under section-302
IPC and section 3(2)(v) SC/ST Act, hence
this appeal.

18. Learned counsel for the appellant
submits as follows:-

(i) The first argument is that all the
three alleged eye-witnesses (P.W.'s 1, 2 & 4)
have become hostile. He further submitted
that P.W.-2 has become hostile on first
instance while P.W.'s 1 & 4 have become
hostile subsequently at the stage of 319
Cr.P.C., as such, it cannot be said that
prosecution has proved his case beyond
reasonable doubt.

(ii) The second argument is that on
the similar set of evidence, appellant has been
convicted and another accused Maharaj
Singh has been acquitted which is illegal.

(iii) The third argument is that
court below has failed to give an opportunity
to offer an explanation of subsequent
statement of P.W.'s 1 & 4 which were
recorded on 15.4.2017 and 4.2.2017 which is
violation of Section 313 Cr.P.C.

(iv) The fourth argument is that
appellant cannot be convicted under
642 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 3(2)(v) of the S.C./S.T. Act as there
was no evidence regarding intentional
insult to the deceased.

(v) The fifth argument is that
Smt. Vimla Devi who was the cause of
the alleged incident, has not been
examined and the statement of P.W.-9 S.I.
Jagmohan
Shukla
in
his
crossexamination stated that Smt. Vimla Devi
in her statement stated before him that
Krishna Veer has not come to her house
on the date of incident and she has not
made any noise on that day, accordingly,
motive was not proved.

(vi) The sixth argument is that
two shots were fired as per prosecution
case but only one empty cartridge was
recovered as per recovery memo.

(vii) The seventh argument is
that prosecution version appears to be
false as according to prosecution version,
deceased and first informant were sitting
on Chabutra outside the house of
deceased after taking dinner at 8 P.M. but
in postmortem report, no solid food was
found inside the intestine rather 100 mt.
Liquid was found inside the body of the
deceased.

(viii) The last argument is that
D.W.-1 has stated about false implication
of accused-appellant at the suggestion of
Jaswant Singh who was involved in the
murder of brother of Maharaj Singh but
courts below has not considered the same
while passing impugned judgment.

19.
Learned
counsel
for
the
appellant
placed
reliance
upon
the
following judgments:

(i) Notes published in Indian
Law
Institute
on
inseparable
and
indivisible evidence against all accused
(on the point of argument no.ii)

(ii) Veer Singh Verma vs.
State of Uttar Pradesh, Criminal
Appeal No.(s) 154 of 2019, judgment
dated
28.1.2019
(on
the
point
of
argument no.ii)

(iii) (2015) 1 SCC 496, Nar
Singh vs. State of Haryana (on the
point of argument no.iii).

(iv) (2018) 1 SCC 742, Asharfi
vs. State of Uttar Pradesh (on the point of
argument no.iv).

20. Learned A.G.A. on the other hand
supported the impugned judgment and
order of conviction by contending that
prosecution case is fully proved from the
evidence of P.W.'s- 1 to 9 in spite of the fact
that eye-witnesses, P.W.-1, P.W.-2 & P.W.-4
have been declared hostile. He placed
reliance upon 2006 (2) SCC 450, Radha
Mohan Singh @ Lal Saheb and Others
vs. State of U.P., on the point of hostility
of witnesses and submitted that appeal filed
by appellant is liable to be dismissed.

21. With respect to the 1st and 2nd
argument of appellant, it is relevant to
mention here that P.W.-1, first informant is
the real younger brother of deceased and
P.W.-4 is the wife of deceased who had
supported the prosecution case in their
examination-in-chief
and
crossexamination took place in the year 2008 to
2014 but in their subsequent statement,
took place in the year 2017, due to
application filed by prosecution under
Section 319 Cr.P.C., P.W.-1 and P.W.-4 had
clearly denied their presence on spot, as
such, they have been declared hostile. So
far as P.W.-2 is concerned, he was declared
10 All. Krishna Veer @ Pinkoo Vs. State of U.P. & Anr.
643
hostile at the first instance as he has stated
that he had not seen who fired shot, as
such, eye-witness account failed to prove
the prosecution case. The argument of the
learned A.G.A on this point on the basis of
judgment of the Apex Court in Radha
Mohan Singh (supra) to the effect that
since P.W.-1 & P.W.-4 had supported the
prosecution case in their examination-inchief as well as in cross-examination took
place at earlier occasion, as such, entire
statement of P.W.'s- 1 & 4 will be seen in
spite of the fact that P.W.'s 1 & 4 have been
declared hostile.

22. Since P.W.'s- 1 & 4 have been
examined in the year 2017 on the basis of
the application of the prosecution itself to
summon Maharai Singh under Section 319
Cr.P.C. and P.W.'s- 1 & 4 have denied their
presence on spot, accordingly, Maharaj
Singh was acquitted on the basis of entire
evidence, as such, the conviction of
appellant on the same evidence will be
illegal.

23. The Apex Court in the case of
Krishna Govind Patil vs. State of
Maharashtra, AIR 1963 Supreme Court
1413 has held that where, 3 out of the 4
accused charged for an offence under
Section 302 IPC read with Section 34,
giving them the benefit of doubt in view of
the fact that their identity was not
established but convicting the 4th accused
under Section 302 read with Section 34 IPC
on the ground that he had committed the
offence along with one or other of the
acquitted accused, the conviction of the 4th
accused clearly wrong.

Notes of Indian Law Institute as
well as the judgment of the Apex Court in
Veer Singh Verma (supra) as cited by
counsel for the appellant at Sl. No. (i) &
(iii) are on the same points.

24. Accordingly, the argument nos. 1
& 2 advanced by counsel for the appellant
is accepted and it is held that prosecution
has failed to prove his case beyond
reasonable doubt.

25. The 3rd argument of appellant and
case law cited by him in the case of Nar
Singh (supra) that courts below has failed
to give an opportunity to offer an
explanation of the subsequent statement of
prosecution
witnesses
has
also
got
substance, paragraph nos. 9, 10, 11 & 34 of
Nar Singh (supra) are as follows:

9. The power to examine the
accused is provided in Section 313
Cr.P.C. which reads as under:-

"313. Power to examine the
accused.- (1) In every inquiry or trial, for
the purpose of enabling the accused
personally to explain any circumstances
appearing in the evidence against him,
the Court-

(a) may at any stage, without
previously warning the accused put such
questions to him as the Court considers
necessary;

(b) shall, after the witnesses for
the prosecution have been examined and
before he is called on for his defence,
question him generally on the case:

Provided that in a summonscase, where the Court has dispensed with
the personal attendance of the accused, it
may also dispense with his examination
under clause (b).
644 INDIAN LAW REPORTS ALLAHABAD SERIES

(2).
No
oath
shall
be
administered to the accused when he is
examined under sub- section (1).

(3). The accused shall not
render himself liable to punishment by
refusing to answer such questions, or by
giving false answers to them.

(4). The answers given by the
accused may be taken into consideration
in such inquiry or trial, and put in
evidence for or against him in any other
inquiry into, or trial for, any other
offence which such answers may tend to
show he has committed.

(5). The Court may take help of
Prosecutor and Defence Counsel in
preparing relevant questions which are
to be put to the accused and the Court
may permit filing of written statement
by the accused as sufficient compliance
of this section."

10. There are two kinds of
examination under Section 313 Cr.P.C.
The first under Section 313 (1) (a)
Cr.P.C. relates to any stage of the inquiry
or trial; while the second under Section
313 (1) (b) Cr.P.C. takes place after the
prosecution witnesses are examined and
before the accused is called upon to enter
upon
his
defence.
The
former
is
particular and optional; but the latter is
general and mandatory. In Usha K. Pillai
v. Raj K. Srinivas & Ors., (1993) 3 SCC
208, this Court held that the Court is
empowered by Section 313 (1) clause (a)
to question the accused at any stage of
the inquiry or trial; while Section 313(1)
clause (b) obligates the Court to question
the accused before he enters his defence
on
any
circumstance
appearing
in
prosecution evidence against him.

11. The object of Section 313
(1)(b) Cr.P.C. is to bring the substance
of accusation to the accused to enable
the accused to explain each and every
circumstance appearing in the evidence
against him.