# Kunwar Pal & Anr v. State of U.P

- **Citation:** (2025) 1 ILRA 338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-29
- **Case number:** Criminal Appeal No. 1490 of 1984
- **Bench:** Siddhartha Varma, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunwar-pal-anr-v-state-of-u-p-52566
- **Pages:** 9

## Headnote

Law
-
Murder
-
The
prosecution had not been able to prove
the charges as were framed against the
appellants. The presence of the P.W.2, was
also very doubtful. The appellant No. 1 has
1 All. Kunwar Pal & Anr. Vs. State of U.P.
339
already died; the appellant No. 2 is acquitted of
the charges as were leveled against him. The
appellant No. 2 is on bail; he need not to
surrender. Sureties be discharged. (Para 17)

In the present case, it was very unnatural that
when the accused persons, i.e., Ramphal and
Kunwar Pal, had come searching for the
husband of the deceased, they had actually
killed the deceased and had let go the husband,
who had appeared on the scene without any fire
arm etc and had admittedly raised a hue and
cry. The case of the prosecution, Kunwar Pal
was
carrying
a
country-made
pistol
and
Ramphal was carrying a single-barrel gun, but
they spared the husband, whom they had come
searching for.

Another contradiction, which goes to the root of
the matter is that the husband was stating that
the other daughter was not sleeping with him,
whereas the P.W.2 had St.d that, in fact, she
was sleeping on the cot in between the P.W.1
and P.W.2. Normally, such a contradiction could
have been ignored, but when P.W.1 was a
lawyer and had a room to himself to sleep in, he
could not have ignored the presence of a fully
grown daughter in his room.

Hon'ble Court was convinced that P.W.2 and
P.W.3
were
got
up
witnesses,
as
they
throughout St.d that they were present on the
date of the incident, but very irresponsibly,
when they were required to give their St.ments
before the police, they had disappeared. This
shows that the P.W.2 and P.W.3 were in fact
not there on the spot but subsequently were
brought into the picture. It appears that in the
FIR the name of P.W.2 had not been mentioned
because P.W.1 was not confident that he would
appear on the scene and give his St.ment. It
was for a matter of fact that P.W.2 in fact
appeared only on 10.12.1982 and P.W. 3
appeared on 26.12.1982. In fact, the other
witness on whom the P.W.1 had confidence,
i.e., Jagat Veer etc., did not appear in the
witness box at all. (Para 16)

Appeal allowed. (E-4)

Present criminal appeal challenges the
judgment and order dated 23.04.1984,
passed by the IV Addl. Sessions Judge,
Moradabad, convicting and sentencing the
appellant no. 1 - Kunwar Pal for life
imprisonment u/s 302 I.P.C. and appellant
no. 2 Ramphal for life imprisonment u/s
302 r/w Section 34 of I.P.C.

## Text

338 INDIAN LAW REPORTS ALLAHABAD SERIES
and cited above, I do not see any
justification for the court in extending
benefit of Section 116 to the respondent.
The provisions as contained under Section
90 (1) (d) of the Registration Act as quoted
above
clearly
stipulates
only
such
certificates and documents which are issued
by the Government creating rights in
respect of Government land or any other
rights in respect of such lands and these
provisions cannot be interpreted to mean
any agreement entered between the private
party and the Government in respect of
private land. Any right in respect of
immovable property which is not creating
or conferring any assignment or right as
contemplated under Section 90(1) (d), is
required to be compulsorily registered
under the Registration Act, reading down
the relevant provisions of the Transfer of
Property Act with the provisions of the
Registration Act as discussed above.

19. In view of the above, therefore, the
notice issued by the landlord plaintiff
determining lease on 30.07.2009 was a
valid notice and since the notice has not
been disputed and the Act No. 13 of 1972
was not applicable, the suit deserves to be
decreed. Hence, the judgment and decree
passed by the trial Judge in SCC suit No.
16 of 2009 deserves to be set aside and suit
deserves to be decreed. Hence, the SCC
Suit No. 16 of 2009 is hereby decreed
directing the respondents to vacate the
premises in question.

20. At this stage, learned Standing
Counsel states that the State is running its
office from the demise premises, so some
reasonable time may be given to vacate the
premises.

21.
Accordingly,
respondents
are
directed to vacate the premises in question
on or before 31.12.2025. Since it is a land
ad-measuring 4150 sq. feet is in possession
of the respondent and the ground floor of
the building is already let out at the rate of
Rs. 100 per sq. feet, respondents are
directed to pay Rs. 50,000/- per month and
in the event they fail to vacate the premises
in question on 31.12.2025, they shall be
paying damages at the rate of Rs. 50 per sq.
feet until they vacate the premises in
question.

22. Let decree be drawn accordingly.

23. It is clarified that this judgment
will not come in the way of the parties
seeking fresh agreement in respect of
premises in question, if they so desire.
----------
(2025) 1 ILRA 338
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Appeal No. 1490 of 1984

Kunwar Pal & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.S. Yadav, Arvind Yadav, B.N. Narain, J.S.
Tomar, K.D. Tiwari, Krishna Dutt Tiwari,
Noor Mohammad

Counsel for the Respondents:
A.G.A.

A.
Criminal
Law
-
Murder
-
The
prosecution had not been able to prove
the charges as were framed against the
appellants. The presence of the P.W.2, was
also very doubtful. The appellant No. 1 has
1 All. Kunwar Pal & Anr. Vs. State of U.P.
339
already died; the appellant No. 2 is acquitted of
the charges as were leveled against him. The
appellant No. 2 is on bail; he need not to
surrender. Sureties be discharged. (Para 17)

In the present case, it was very unnatural that
when the accused persons, i.e., Ramphal and
Kunwar Pal, had come searching for the
husband of the deceased, they had actually
killed the deceased and had let go the husband,
who had appeared on the scene without any fire
arm etc and had admittedly raised a hue and
cry. The case of the prosecution, Kunwar Pal
was
carrying
a
country-made
pistol
and
Ramphal was carrying a single-barrel gun, but
they spared the husband, whom they had come
searching for.

Another contradiction, which goes to the root of
the matter is that the husband was stating that
the other daughter was not sleeping with him,
whereas the P.W.2 had St.d that, in fact, she
was sleeping on the cot in between the P.W.1
and P.W.2. Normally, such a contradiction could
have been ignored, but when P.W.1 was a
lawyer and had a room to himself to sleep in, he
could not have ignored the presence of a fully
grown daughter in his room.

Hon'ble Court was convinced that P.W.2 and
P.W.3
were
got
up
witnesses,
as
they
throughout St.d that they were present on the
date of the incident, but very irresponsibly,
when they were required to give their St.ments
before the police, they had disappeared. This
shows that the P.W.2 and P.W.3 were in fact
not there on the spot but subsequently were
brought into the picture. It appears that in the
FIR the name of P.W.2 had not been mentioned
because P.W.1 was not confident that he would
appear on the scene and give his St.ment. It
was for a matter of fact that P.W.2 in fact
appeared only on 10.12.1982 and P.W. 3
appeared on 26.12.1982. In fact, the other
witness on whom the P.W.1 had confidence,
i.e., Jagat Veer etc., did not appear in the
witness box at all. (Para 16)

Appeal allowed. (E-4)

Present criminal appeal challenges the
judgment and order dated 23.04.1984,
passed by the IV Addl. Sessions Judge,
Moradabad, convicting and sentencing the
appellant no. 1 - Kunwar Pal for life
imprisonment u/s 302 I.P.C. and appellant
no. 2 Ramphal for life imprisonment u/s
302 r/w Section 34 of I.P.C.

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. The instant Criminal Appeal has
been filed against the judgment and order
dated 23.04.1984 passed by the IVth
Additional Sessions Judge, Moradabad in
Sessions Trial No. 260 of 1983 convicting
and sentencing the appellant no. 1 -
Kunwar Pal for life imprisonment under
Section 302 I.P.C. and appellant no. 2
Ramphal for life imprisonment under
Section 302 read with Section 34 of I.P.C.

2. When an incident had taken place in
the night of 28/29 November, 1982 at
around 1:30 a.m, the first information
report was lodged on 29.11.1982 at 8:00
a.m. The first informant, Badam Singh
informed the police about the murder of his
wife and he had alleged that the same was
committed by Kunwar Pal. The reason
which had been given was that the first
informant who was a lawyer appeared in
the case of Nanhu Vs. Kishaniya and
during the proceedings of said case,
Kishaniya had by means of a sale deed,
sold the property to Kunwar Pal son of one
Khem Karan. Kunwar Pal attempted to
forcibly take possession of the land and
when the first informant had opposed
possession being taken over forcibly,
Kunwar Pal had talked to the first
informant and had threatened him with dire
consequences.

3. It has been stated in the first
information report that in the night of
28/29.11.1982 while the first informant was
340 INDIAN LAW REPORTS ALLAHABAD SERIES
sleeping on the first floor of the double
storied house along with Chhoke Lal son of
Munna, the miscreants namely Kunwar Pal
and Ramphal had entered into the house
after removing the main door of the house
from its hinges at around 1:30 a.m. and had
shot at Ramwati, the wife of the first
informant, who was sleeping on the ground
floor along with a daughter of theirs named
Pinki who was aged about three months.
The sound of the knock woke him and
Chhoke Lal who was sleeping near him.
When they came down the stairs, they had
seen that Kunwar Pal, had a country made
pistol and Ramphal had a single-barrelled
gun in their hands. In the first information
report itself, it had been stated that
Ramphal who had a single-barrelled gun,
had asked the wife as to where her husband
was (wakeel Kahan Hai) and the wife when
she had refused to give the information,
then Ramphal had stated that if she did not
give the information, then she would be
shot dead. At that point of time, Kunwar
Pal who had a country made pistol shot at
the wife of the first informant. He has
stated in the first information report itself
that the entire incident was seen by him and
Chhoke Lal in the light of a lantern which
was lit in the Verandah. When they raised a
hue and cry, Kunwar Pal and Ramphal fled
from the place of occurance and people
from the neighbourhood carrying torches,
came to the place of the incident. It has
been stated that Har Narayan and Jagatvir
the neighbours who had come had seen the
two accused persons running away from
the house.

4. Upon the first information report
being lodged investigation had followed.
The police had collected evidence from the
place of incident along with the cot which
had blood on it. Also, the torch by which
Chhoke Lal and Har Narayan had seen the
incident had been taken into custody and all
these recovery memos were exhibited as
Exhibit Nos. Ka-10, Ka-11 and Ka-21.
Thereafter Panchayatnama was conducted
which commenced at 10:00 a.m. on
29.11.1982 and concluded at 1:00 p.m. on
the same day. The Panchayatnama was
followed by a postmortem which was
conducted on 13.11.1982 at around 3:30
p.m. Thereafter, upon the conclusion of the
investigation, the police submitted its
report and when the report was taken
cognizance of, the Court of Additional
Sessions Judge, Moradabad on 08.08.1983,
framed charges against Kunwar Pal under
Section 302 IPC and against Ramphal it
framed charges under Section 302 read
with Section 34 of the IPC. When the
accused persons denied the charges the trial
commenced.

5.
To
prove
the
case
of
the
prosecution, it produced as many as six
witnesses. Badam Singh who is the
husband of the deceased and also the first
informant was examined as P.W.-1. He has
stated that he recognized the two accused
persons, namely Kunwar Pal and Ramphal
who were present in the Court. He has
reiterated the case as had been stated in the
first information report that at the time of
the incident a case in the courts was going
on by the description of Nanhu Vs.
Kishaniya of the village Nadhaus and it
related to a land. He has further stated that
the accused Kunwar Pal had got executed a
Farzi sale deed in his favour from Kisaniya
and had wanted to get his name mutated
over the land in question and had also tired
to take illegal possession. He had also
thereafter got himself impleaded in the
case. Not only that, Kunwar Pal had
requested the first informant, who was a
lawyer, not to do pairvi in the case and
because of the fact that the first informant
1 All. Kunwar Pal & Anr. Vs. State of U.P.
341
had continued to do the pairvi in the case
the accused had committed the crime. On
the date, it has been stated that the first
informant along with Chhoke Lal was
sleeping in the room situate at the first floor
of the house. It has further been stated that
in the ground floor, the wife Ramwati with
her small child aged around three months
was sleeping and that when the main door
was removed from the hinges by the
miscreants, the first informant and Chhoke
Lal had come out their room where they
were asleep. When they came down they
found that two persons Kunwar Pal and
Ramphal who were carrying a country
made pistol and a single-barrel gun
respectively were standing next to the cot
of the wife of the first informant. It has
further been stated that within the hearing
of the P.W.-1 Kunwar Pal asked his wife
where the advocate (husband) was. The
P.W.-1 had thereafter stated that when his
wife had refused to give the information,
then Ramphal had said that if she did not
give the information, then she would be
shot dead. At that point of time, Kunwar
Pal fired upon her with his country made
pistol. Upon the incident having happened,
the P.W.-1 Chhoke Lal raised a hue and cry
and Jagatvir along with Har Narayan came
with their torches to the place of incident.
The first informant had stated that his wife
thereafter had died because of the firing
upon her.

6. In the cross-examination, P.W.-1
remained consistent with his statements
made during the examination-in-chief and
had stated that he was a teacher before
becoming a practicing lawyer one and the
half years prior to the incident and that
Ramphal was still a teacher. He has stated
that the case of Kishaniya was going on
since 1982. He had also stated that wrongly
the police had recorded that the P.W.-1 was
doing pairavi on behalf of Kishaniya. He
had stated that with regard to the daughter,
who was his youngest daughter of three
months, he had not informed the police
during
investigation
whatsoever.
In
paragraph 13 of his cross-examination, the
P.W.-1 described the locations of the
various houses in his neighbourhood and
had also described as to where the houses
of Jagatvir and Har Narayan were situated
in his neighbourhood. Further, he had also
stated that Kunwar Pal lived in his
neighbourhood. He has further stated in
paragraph 15 that Kunwar Pal had been
visiting his house quite often. Other people
from the village also kept coming to see
them. He has stated that on the bed which
was there on which his wife and child were
sleeping, there was no blood. In the first
information report, he had not given any
position with regard to the lantern. He had
further stated that he had informed the
police about the position of the lantern but
if the position of the lantern had not been
given in the site plan, the P.W.-1 did not
know why. He had also stated that the first
information report was lodged in the
morning of 29.11.1982 and he did not go to
the police in the night as he was afraid to
go then. On 06.12.1983, in the cross
examination, he had stated that the police
had mentioned that the first informant had
stated that Ramphal had asked his wife as
to where the P.W.-1 was, and she had
refused to give the information. He had
stated that the police had wrongly recorded
his statement. He had stated that in fact it
was Kunwar Pal who had asked his wife
that as to where the first informant was.
When he was asked as to why the fact that
the main door had been removed from its
hinges, was not mentioned in the police
report, then he had stated that he had shown
the police the main door and had also
informed that it was removed by the
342 INDIAN LAW REPORTS ALLAHABAD SERIES
miscreants. If the police did not mention,
he did not know why. He has also stated
that the daughter who was sleeping besides
his wife had no blood on her. He has
categorically stated that the other daughter
was also sleeping with his wife and has
stated that wrongly he had stated that on
the date of incident the daughter was
sleeping with him on the first floor. He has
further stated that Chhoke Lal was sleeping
on the northern side and the third cot was
vacant. He has stated that despite the fact
that he had immediately reached the place
of incident after the shot was fired, no harm
was caused to him. He has thereafter stated
that there was some policy which he had
got
from
the
General
Finance
and
Investment Limited Company where his
wife was a field officer. He has also stated
that the money which was required to come
from that policy was not given to him as
the company was suspecting that the
murder had been got done to get the
money.

7. P.W.-2, Chhokey Lal, is another
eyewitness in the case. He has also narrated
the incident in a manner similar to the
manner in which the P.W.-1 had described.
He has stated that he was sleeping in the
first floor of the double storied house of the
first informant. However, he has not stated
that the main door was removed from the
house to allow the accused persons to enter
the house, but he has stated that when a
sound come because of the opening of the
door then he had come out of his sleep. He
has thereafter stated that in the room at the
first floor, P.W.-1 was sleeping and a child
was also there. He has thereafter stated that
both the P.W.-1 and he himself and had
started tracking the sound which had come
from the ground floor. He has further stated
that while Kunwar Pal had a country made
pistol, Ramphal had a single-barrel gun in
his hand. The P.W.-2 had also stated that he
had seen the incident in the light of the
lantern which was lit. He has stated that he
recognised the accused persons. He has
thereafter stated that in his village there
was one Karan Jatav who had got a case
lodged against him, and in that case,
whether Kunwar Pal was a witness, he had
no idea. He has thereafter stated that when
the P.W.1 had got lodged another case
against around 13 persons, then he was a
witness in that case. Upon being asked as to
whether he was a professional witness who
used to give evidence on taking money, he
denied the same. He has stated that P.W.1
had come to the village one to two days
prior to the date of the incident, and on that
date he had gone to sleep in his house.
Before that day he had never slept in the
house of P.W.1. The reason he gives for
sleeping at the house of the P.W.1 was that
they had arranged to go for bathing in the
Ganges in the morning, and then he has
stated that his house was only 100-150
steps away. He has thereafter stated that he
had told the police that it was Kunwar Pal
who had asked the deceased as to where
her husband was. He states that if the police
had recorded that Rampal had asked the
question about the husband of the deceased,
then he did not know the reason for that.
He has thereafter very categorically stated
that there were three beds in the room
where he was sleeping with P.W. 1. On one
bed the daughter of the P.W. 1 was
sleeping, while the P.W.-1 and he himself
were sleeping on the other beds. The
daughter was sleeping in between the two
cots where P.W.1 and P.W.2 were sleeping.
He has, in paragraph 9, stated that he did
not see any blood on the cot where the
deceased was sleeping. He has stated that
they had raised the hue and cry only after
the shot was fired. He has, thereafter,
denied the statement under Section 161 of
1 All. Kunwar Pal & Anr. Vs. State of U.P.
343
the Cr.P.C. which was recorded by the
police that the P.W.2 was in the house of
the P.W.1 because the P.W.1 had called
him for his own security and safety.

8. P.W. 3, is Har Narayan, and he is a
witness who had seen the two accused
running away from the house of P.W.1. In
his cross-examination, he has stated that the
police had recorded the statement twenty
days after the incident. He was not
available after the incident had occurred,
and he had gone to his sasural after the
cremation, etc., was done of the deceased
Ramwati.

9. P.W. 4 is the doctor who has very
categorically stated that the entry wound
was a close-range wound and there was
blackening and tattooing around the injury.

10. P.W.5 is the investigating officer,
Manveer Singh, who has, in his crossexamination, very categorically stated that
Chokhey Lal, Har Narayan, and Jagatveer,
after the incident had occurred, were not to
be found in the village. Ramphal was
arrested on 2.12.1982, and Kunwar Pal was
arrested after the proceeding was initiated
under Sections 82 and 83 of the Cr.P.C. He
has categorically stated that the statement
of
Chokhey
Lal
was
recorded
on
10.12.1982, which was after 12 days of the
incident, and that the statement of Jagatveer
was recorded on 26.12.1982 after a period
of 28 days. Even though he had seen the
lantern, inadvertently he had not mentioned
about it in the site plan. In his cross
examination, he had stated that he had
shown the houses of the witnesses in the
site plan. He has stated that he had not
found the other child of the first informant
in the house. He has thereafter stated that
he was told by the complainant/first
informant that he was infact doing pairavi
on behalf of Kunwar Pal. He has also stated
that the door, which had been taken off
from its hinges, was not taken into custody
by him. He has stated that it was wrong to
say that it had not been taken away from
the hinges and therefore he had not
mentioned about the door in the police
report. He had further stated that he has
been told by the P.W.1, that it was infact
Ramphal, who began with asking where her
husband was. He has thereafter stated that
Chokhey informed him that he was there
with the P.W.1. as P.W.1 had said that
there was danger to his life from Kunwar
Pal.

11. P.W.6 is Doongar Singh, who had
stitched the dead body and had taken it for
the postmortem.

12. Thereafter, the two accused had
got their statements recorded under Section
313 of the Cr.P.C.

13. When the fourth Additional
District and Sessions Judge on 23.04.1984
had convicted the two accused and had
directed them for the imprisonment for life
on account of their being convicted under
Section 302 and under Section 302 read
with Section 34 of the Cr.P.C., the instant
criminal appeal was filed. During the
pendency of the appeal, the appellant
Kunwar Pal had died, and thereafter the
appeal had been dismissed as abated vis-àvis Kunwar Pal.

14. Learned counsel for the appellant,
Sri Noor Mohammad, had argued that the
appellant, Ramphal, was innocent, and he
had made the following submissions:-

(i) Learned counsel for the
appellant states that the case brought forth
by the prosecution that upon seeing that the
344 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W. 1 was helping the adversary of
Kunwar Pal, the appellants had gone to the
house of the P.W.1 to kill his wife, did not
appear very plausible. The accused, when
they have a grudge against the P.W. 1,
would have actually killed him and would
not have run away when the P.W.-1 came
to his wife. He submits that for no reason
the deceased Ramwati had been killed.
Learned counsel for the appellant submits
that, in fact, there was some other reason
for which Ramwati had been killed and the
accused who had been known to the first
informant were named in the FIR and were
falsely implicated. Learned counsel for the
appellant states that to kill the wife and let
the husband go, who was standing there
like a lame duck, was absolutely against
human nature, and therefore the only
conclusion that could be drawn was that the
appellants were being falsely implicated by
the first informant.

(ii) Learned counsel for the
appellant has further drawn the attention of
the court to the statement of P.W.1,
wherein he had stated that it was, in fact,
Ramphal who had asked his wife to tell as
to
where
her
husband
was,
but
subsequently in his cross-examination he
had mentioned that it was not Ramphal
who had asked so but it was Kunwar Pal
who had asked this question. He also drew
the attention of the court to the first
information report wherein it had been very
categorically mentioned that Ramphal was
the person who had asked as to where the
husband of the deceased was. He submits
that the role of exhortation, which had been
given to Ramphal in the first information
report, was also done away with in the
subsequent statement that was given by
P.W. 1 when he states that Ramphal had, in
fact, not even asked about the husband of
the deceased. Learned counsel for the
appellant further stated that even P.W.2 had
mentioned in so many words that it was
Kunwar Pal who had asked as to where the
husband of the deceased was and it was not
Ramphal who had asked, where her
husband was. At page 25 of the paper book,
the following words as uttered by P.W.-1
become important:-

"eSus njksxk th dks ;g c;ku ugh
fn;k Fkk fd ^^jkeQy us esjh choh ls iwNk fd
odhy dgka gS rks mlus crkus ls budkj dj
fn;k** vxj jkeQy okyh ckr fy[kh gks rks eSa
ugh dg ldrk fd dSls fy[kh gSA dqaoj iky esjh
choh ls iwN jgk Fkk fd odhy dgka gS ;g ckr
eSus jiV esa Hkh fy[kh vkSj njksxk th dks Hkh crkbZ
FkhA**

Learned counsel for the appellant
states that since the P.W. 1 was not there
and he had got the FIR lodged in a huff, the
statement was being improved when he
was giving the statement in the court.

(iii) Learned counsel for the
appellant has stated that if the statement of
P.W. 2 is seen, it also becomes evident that,
in fact, P.W. 2 was not there on the spot.
He has made a statement which is very
different from the statement of P.W. 1. The
P.W.1 in his statement in chief and in his
cross-examination had stated that the other
daughter was not sleeping on the third bed
that was there in the first floor room where
the informant and the P.W.2 were sleeping.
In fact, he had stated that the third bed was
lying vacant, but the P.W.2, had given an
entirely different statement in chief and had
also stated so in his cross-examination, that
the other child was sleeping on the third
cot, which was in between the cot of the
first informant and the P.W.2. He therefore
states that the entire case was based on
wrong facts that the P.W.1 and P.W.2 had
heard from someone else and they were
absolutely contradictory to each other.

Learned counsel for the appellant
states that the P.W.2 and P.W.3 appeared to
be very close to the P.W.1. P.W.2 had
1 All. Kunwar Pal & Anr. Vs. State of U.P.
345
stated that he was sleeping in the same
house where the incident had occurred, and
P.W.3 had taken the trouble in the night to
reach the spot after the incident had
occurred on the night of 28/29.11.1982. If
that was the case, then they should have
stayed back to give the statement to the
police, but in fact both the witnesses had
appeared before the police on 10.12.1982
and 26.12.1982, respectively, to give their
statements before the police. The P.W.2
had given his statement before the police
that he was sleeping in the house of the first
informant because the latter had some
danger to his life from Kunwarpal, but in
the statement, which he had made before
the court, he had taken a volte-face and had
stated that in fact he was in the house of the
P.W.1 because they had arranged to go for
a bath in the ganges in the morning.

IV. Learned counsel for the
appellant states that even no source of light
was mentioned in the place of the incident.
He submits that the lantern, as had been
mentioned by P.W. 1, was not shown by
the police in the site plan. P.W.2, despite
the fact that he had stated that he was there,
learned counsel for the appellant has stated
that in fact P.W.2 was not there on the spot
at all. He has mentioned that there was no
blood on the cot, but in fact there was
blood present, as per the police report, and
it had also been recovered by the police,
and a memo of it was also prepared.

15. Learned AGA Sri Rahul Asthana
has, however, supported the judgement and
order dated 23.04.1984 and opposed the
appeal. He has submitted that the incident
had been witnessed by two eyewitnesses,
and there was very little reason to
disbelieve the two eyewitnesses. He has
also stated that the injury, etc., as was
reported in the FIR and had been stated in
the court by the prosecution witnesses No.
1 & 2, matched with the injuries as were
there in the post-mortem report. He further
states that if there were some minor
contradictions, then they had to be ignored.

16. Having heard the learned counsel
for the appellant, Sri Noor Mohd. assisted
by Sri Irshad Mohd. and the learned AGA
Sri Rahul Asthana, we find that the first
informant had stated in the first information
report that the appellant No. 2 Ramphal had
infact questioned the deceased as to where
her husband was but subsequently on page
25 of the paper book he had taken a volte
face and had stated that it was infact
Kunwar Pal who had asked the statement.
This probably the P.W.1 was doing as the
P.W.2 in his statement before the police
had stated that it was Kunwar Pal who had
put this question to the deceased. We find
that the P.W.2 Chokhey had also stood firm
with his statement that it was Kunwar Pal
who had put this question to the deceased.
We therefore find that, in fact, Ramphal,
though has been shown to be present was
not infact there and therefore his role of
exhortation goes. Kunwar Pal, who is now
dead, could have gone to kill the deceased.
We are also convinced by the argument of
the learned counsel for the appellant that it
was very unnatural that when the accused
persons, i.e., Ramphal and Kunwar Pal, had
come searching for the husband of the
deceased, they had actually killed the
deceased and had let go the husband, who
had appeared on the scene without any fire
arm etc and had admittedly raised a hue
and cry. In the instant case, we find that as
per the case of the prosecution, Kunwar Pal
was carrying a country-made pistol and
Ramphal was carrying a single-barrel gun,
but they spared the husband, whom they
had
come
searching
for.
Another
contradiction, which goes to the root of the
matter is that the husband was stating that
346 INDIAN LAW REPORTS ALLAHABAD SERIES
the other daughter was not sleeping with
him, whereas the P.W.2 had stated that, in
fact, she was sleeping on the cot in between
the P.W.1 and P.W.2. Normally, such a
contradiction could have been ignored, but
when P.W.1 was a lawyer and had a room
to himself to sleep in, he could not have
ignored the presence of a fully grown
daughter in his room. We are also
convinced that P.W.2 and P.W.3 were got
up witnesses, as they throughout stated that
they were present on the date of the
incident, but very irresponsibly, when they
were required to give their statements
before the police, they had disappeared.
This shows that the P.W.2 and P.W.3 were
in fact not there on the spot but
subsequently were brought into the picture.
It appears that in the FIR the name of
P.W.2 had not been mentioned because
P.W.1 was not confident that he would
appear on the scene and give his statement.
It was for a matter of fact that P.W.2 in fact
appeared only on 10.12.1982 and P.W. 3
appeared on 26.12.1982. In fact, the other
witness
on
whom
the
P.W.1
had
confidence, i.e., Jagat Veer etc., did not
appear in the witness box at all.

17. Under such circumstances, for all
the reasons we have given we are of the
view that the prosecution had not been able
to prove the charges as were framed against
the appellants. Also, we are of the view that
the presence of the P.W.2, was also very
doubtful. The appellant No. 1 has already
died; the appellant No. 2 is acquitted of the
charges as were leveled against him. The
appellant No. 2 is on bail; he need not to
surrender. Sureties be discharged.

18.
The
appeal
stands
allowed;
judgment and order dated 23.04.1984 are
set aside.
----------
(2025) 1 ILRA 346
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 10939 of 2024

Vishu ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Atul Kumar

Counsel for the Respondents:
G.A.

A. Criminal Law - The Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 14-A(2) -
Appeal to the High Court against order
refusing bail - Right to default bail - Code
of Criminal Procedure, 1973 - Section
167(2)(a)(i)
-
No
Magistrate
shall
authorise the detention of the accused
person in custody for a total period
exceeding
ninety
days,
where
the
investigation
relates
to
an
offence
punishable with death, imprisonment for
life or imprisonment for a term of not less
than ten years; and, on the expiry of the
said period of ninety days, the accused
person shall be released on bail if he is
prepared to and does furnish bail. Held: If
on either the 61st day or the 91st day, an
accused makes an application for being
released on bail in default of charge-sheet
having been filed, the court has no option
but to release the accused on bail.
However, once the charge-sheet is filed
within the stipulated period, the right of
the accused to statutory bail came to an
end and the accused would be entitled to
pray for regular bail on merits. Once the
charge-sheet is filed, the right to statutory
bail under proviso to Section 167(2)(a)
Cr.P.C. ceases and does not revive only