# Lavkush v. State of U.P

- **Citation:** (2024) 12 ILRA 372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-20
- **Case number:** Criminal Appeal No. 602 of 2019
- **Bench:** Manoj Kumar Gupta, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lavkush-v-state-of-u-p-51214
- **Pages:** 30

## Headnote

Criminal Law - Criminal Law - Criminal
Procedure Code, 1973 - Sections 145,
157, 161, 161(1), 162, 162(1), 162(2),
164, 172(2), 173(2), 207 & 313 - Indian
Penal Code,1860 - Sections 34, 120-B &
302 - Arms Act, 1959- Section 25 -
Evidence Act, 1872- Sections 27, 32,
145, 155(3) & 165 - Appeals - against
conviction & sentence - offence of murder -
FIR - informant lodged alleged that his
brother (accused person) was a vagabond &
drunkard having illicit relationship with wife of
his neighbour and when his mother used to
dissuade him from having relationship with
neighbour accused brother shot his mother
dead - investigation - recovery - chargesheet against accused person and neighbour
- Session trail - neighbour was acquitted but
accused were conviction & sentenced -
Appeals - Evaluation of evidences - court
finds that, - (i) PW-3 (informant) was not an
eye witness and evidence of eye witnesses
i.e. PW-1 & PW-2 are not reliable as there are
improvements in their St.ments amount to
contradiction, (ii) ocular evidence is not
supported by the medical evidence as such
court not satisfied with the truthfulness of the
ocular evidence, (iii) prosecution failed to
bring on record, the report of the ballistic
expert to whom the recovered Tamancha and
cartridge were sent for examination, as such
there is no evidence to connect the weapon
allegedly used by the accused with the pallets
recovered from the body of the deceased, (iv)
recovery of Tamancha is also not accordance
with provisions of Section 27 of the Evidence
Act, (v) Trial court committed an error while
acquitting neighbour in relying upon a part of
the
same
evidence
and
convicting
the
accused-appellant, - Held, - prosecution has
failed to substantiate the charges levelled
against the accused-appellant beyond all
reasonable doubts by adducing consistent,
cogent and reliable evidence - therefore,
accused-appellant is legitimately entitled to
avail the benefit of doubt - appeal stand
allowed - directions issued, accordingly. (Para
- 69, 70, 71, 72)

Appeal allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,943 of 105,666. This is a partial read: ask again with offset=39943 for what follows._

372 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 12 ILRA 372
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 602 of 2019

Lavkush ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Dinesh Kumar Gupta, Pragyan Kumar
Mishra, Sharad Mayank Pandey

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Law - Criminal
Procedure Code, 1973 - Sections 145,
157, 161, 161(1), 162, 162(1), 162(2),
164, 172(2), 173(2), 207 & 313 - Indian
Penal Code,1860 - Sections 34, 120-B &
302 - Arms Act, 1959- Section 25 -
Evidence Act, 1872- Sections 27, 32,
145, 155(3) & 165 - Appeals - against
conviction & sentence - offence of murder -
FIR - informant lodged alleged that his
brother (accused person) was a vagabond &
drunkard having illicit relationship with wife of
his neighbour and when his mother used to
dissuade him from having relationship with
neighbour accused brother shot his mother
dead - investigation - recovery - chargesheet against accused person and neighbour
- Session trail - neighbour was acquitted but
accused were conviction & sentenced -
Appeals - Evaluation of evidences - court
finds that, - (i) PW-3 (informant) was not an
eye witness and evidence of eye witnesses
i.e. PW-1 & PW-2 are not reliable as there are
improvements in their St.ments amount to
contradiction, (ii) ocular evidence is not
supported by the medical evidence as such
court not satisfied with the truthfulness of the
ocular evidence, (iii) prosecution failed to
bring on record, the report of the ballistic
expert to whom the recovered Tamancha and
cartridge were sent for examination, as such
there is no evidence to connect the weapon
allegedly used by the accused with the pallets
recovered from the body of the deceased, (iv)
recovery of Tamancha is also not accordance
with provisions of Section 27 of the Evidence
Act, (v) Trial court committed an error while
acquitting neighbour in relying upon a part of
the
same
evidence
and
convicting
the
accused-appellant, - Held, - prosecution has
failed to substantiate the charges levelled
against the accused-appellant beyond all
reasonable doubts by adducing consistent,
cogent and reliable evidence - therefore,
accused-appellant is legitimately entitled to
avail the benefit of doubt - appeal stand
allowed - directions issued, accordingly. (Para
- 69, 70, 71, 72)

Appeal allowed. (E-11)

List of Cases cited:

1. Sessions Judge Nellore Referring & ors. Vs
Intha Ramana Reddy; reported in ILR (1972) AP
683 (1972) CRILJ1485.

2. Shri Gopal & anr. Vs Subhash & ors.; reported
in 2004 (13) SCC 174,

3. St. of Rajasthan Vs Rajendra Singh 1998 SCC
(Cri) 1605,

4. Munna Pandey Vs St. of Bihar; reported in
2023 SCC Online SC 1103,

5. Rahul Vs St. of Delhi, Ministry of Home Affairs
& anr. reported in (2023) 1 SCC 83,

6. Subramanya Vs St. of Karn.; reported in
A.I.R. 2022 SC 5110,

7. Ramanand @ Nandlal Bharti Vs St. of U.P.;
reported in A.I.R. 2022 SC 5273,

8. Gurcharan Singh & anr. Vs St. of Pun.,
reported in 1963 AIR (SC) 340,

9. Ram Singh Vs St. of U.P. reported in 2024 AIR
(SC) 1176.
12 All. Lavkush Vs. State of U.P.
373
(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This criminal appeal has been filed
against the judgment dated 28.08.2017 and
order of conviction dated 30.08.2017
passed by learned Addl. Sessions Judge,
Court no.2, Muzzafarnagar (hereinafter
referred as 'trial court') whereby the
learned trial court in Sessions Trial No. 279
of 2012 (State Vs. Lavkush and another)
arising out of Case Crime No. 468/2011,
has convicted Lavkush (appellant-accused)
s/o late Bhagmal for the offence punishable
under Section 302 I.P.C. and sentenced him
for life imprisonment and has ordered him
to pay a fine of Rs. 20,000/-. It has further
been provided that in case of default of
payment of fine, the appellant has to further
undergo imprisonment for a period of six
months. In Sessions Trial No. 280/2012
(State Vs. Lavkush) arising out of Case
Crime No. 470/2011, under Section 25 of
Arms Act, the court sentenced the appellant
to
undergo
two
years
of
rigorous
imprisonment with fine of Rs. 3,000/- and
in default of the payment of fine, to suffer
additional imprisonment of three months.
All the sentences were directed to run
concurrently. By the same judgment dated
28.08.2017, learned trial Court acquitted
the other co-accused, namely, Smt. Meena,
under Sections 302/34 and 120-B of I.P.C.

2. The factual matrix of the case, which
are relevant for present criminal appeal are
that informant, namely, Sonu s/o late
Bhagmal submitted a written complaint
Ex.Ka-1 on 16.11.2011 on which the First
Information Report Ex.Ka-2 was registered in
Case Crime No.468 of 2011 under Section
302 I.P.C. at P.S. Bhopa, Jansath, District-
Muzzafarnagar against one Lavkush. On the
same day at 22:30 hours another F.I.R.
bearing Case Crime No. 470 of 2011, Ex.Ka4, was also lodged by Sri Sanjay Verma,
Station Officer, P.S.- Bhopa, against Lavkush
under Section 25 of Arms Act, 1959.

3. As per the First Information Report
Ex.Ka-2, the informant stated that his brother,
namely, Lavkush, was a vagabond and
drunkard. He was having illicit relationship
with Mrs. Meena, wife of his neighbour
Ajeet, resident of Rahmatpur, P.S.-Bhopa.
His mother used to dissuade Lavkush from
having relationship with Meena, and for this
reason his brother shot his mother dead in the
night of 16.11.2011. Ravinder, s/o Jaipal and
Gajendra Kumar s/o Dharampal had seen his
brother running away from the spot after
shooting his mother.

4. After the First Information Report
was lodged, the police investigated the
crime and after collecting the evidence,
charge sheet Ex. Ka-6 was submitted under
Section 173(2) Cr.P.C against Lavkush and
Smt. Meena under Sections 302 and 120- B
I.P.C. in Case Crime No. 468 of 2011.
Another charge sheet Ex. Ka 18 was
submitted against Lavkush under Section
25 of Arms Act.

5. The learned Magistrate after taking
cognizance
and
complying
with
the
provisions
of
Section
207
Cr.P.C.
committed the case for trial to the court of
Sessions. On commencement of trial,
learned Sessions Court on 27.04.2012
framed charges against Smt. Meena under
Sections 302/34 and 120-B I.P.C. and
Lavkush under Sections 302, 120-B of
I.P.C. and Section 25 of Arms Act. The
charges were explained and read over to
accused persons, who denied the charges
and pleaded not guilty.

6. During trial, statement of eight
persons were recorded by the prosecution,
374 INDIAN LAW REPORTS ALLAHABAD SERIES
namely, Ravindra Kumar P.W.-1, Gajendra
Kumar P.W.-2, Sonu (informant/ brother of
accused-appellant) P.W.-3, Rakesh Kumar
(Constable Clerk, P.S.-Bhopa) P.W.-4,
Vijendra Singh Bhadana (Station Officer,
P.S.-Bhopa) P.W.5, Sanjay Verma (Station
Officer,
P.S.-Bhopa)
P.W.-6,
Yashpal
Singh (Sub Inspector, P.S.-Bhopa) P.W.-7
and Dr. Arun Kumar (Medical Officer,
District Hospital, Muzzafarnagar) P.W.-8.
The statements of the accused persons Smt.
Meena and Lavkush were recorded under
Section 313 Cr.P.C.

7. The prosecution produced Written
Report Ex. Ka-1, chik F.I.Rs. Ex.Ka-2 and
Ex.Ka-4, memo of possession of country
made pistol and empty cartridges Ex.Ka15, memo of possession of blood stained &
plain earth Ex.Ka-14, memo of possession
of blood stained 'chadar' from cot Ex.Ka13,
post-
mortem
report
Ex.Ka-19,
Panchayatnama Ex.Ka-7, charge sheets
Ex.Ka-6 & Ex. Ka-18, order of District
Magistrate Ex. Ka-19 A, and site plans with
index Ex.Ka-17, Ex. Ka-16 and Ex.Ka-12
as documentary evidence during the trial.

8.
After
considering
the
entire
evidence, the learned Sessions Judge
acquitted Smt. Meena under Sections
302/34 and 120-B I.P.C. and convicted
Lavkush
(accused-appellant)
under
Section 302 I.P.C, whereby he was
sentenced with life imprisonment along
with fine of Rs. 20,000/- and in case of
default,
six
months
additional
imprisonment. He was also convicted by
the learned trial court under Section 25 of
Arms Act whereby he was sentenced to
undergo
two
years
of
rigorous
imprisonment with fine of Rs. 30,000/-
and in default of the payment of fine, to
suffer additional imprisonment of three
months.

9. Heard Sri Sharad Mayank Pandey,
learned counsel for the accused-appellant,
Ms. Manju Thakur, learned A.G.A. for the
State and perused the material on record.

10. Learned counsel for the accusedappellant vehemently assailed the order of
conviction
and
made
the
following
submissions:-

(i) Accused-appellant is innocent
and has not committed the alleged offence.

(ii) The order of conviction is
based on conjecture and surmises.

(iii) P.W.3, the informant, Sonu,
has turned hostile and has not supported the
prosecution case.

(iv) P.W.1 Ravindra Kumar and
P.W. 2 Gajendra Kumar are inimical
witnesses, whose testimonies are not
reliable.

(v) Statements of P.W. 1 and
P.W. 2 are also not reliable for the reason
that there are contradictions in their
evidence.

(vi) The prosecution case as well
as evidence of the eye-witnesses are not
supported by the medical evidence and
therefore, cannot be relied upon.

(vii) The recovery of Tamancha
(country made pistol) on the pointing out of
the accused is hit by Section 27 of the
Evidence Act and as such cannot be relied
upon.

(viii) There is no evidence of the
ballistic expert to connect the Tamancha
(country made pistol) which was recovered
on the pointing out of the accused with the
pellets found in the body of the deceased.

(ix) The prosecution has failed to
examine Vijay Pal, the scribe of the First
Information Report, especially when P.W.
3 has not supported the prosecution
version.
12 All. Lavkush Vs. State of U.P.
375

(x) The prosecution has failed to
prove that the accused-appellant has
committed offence beyond reasonable
doubt.

11. Per contra, learned AGA for the
State refuted the submissions made by the
learned counsel for the appellant and made
the following submissions:-

(i) Trial Court rightly relied upon
the statements of P.W. 1 and P.W.2, the
eye-witnesses of the incident for convicting
the accused as P.W.3, Sonu, the informant,
who was not an eye-witness to the incident
was won over by the defence.

(ii) Recovery of 12 bore country
made pistol and cartridges, Ex. Ka-15, on
information given by the accused-appellant
Lavkush supports the statement given by
P.W. 1 and P.W. 2.

(iii) Post mortem report of
deceased Saroj, Ex. Ka-19, shows entry
wounds of bullet which corroborates the
prosecution version.

(iv) Prosecution has proved the
guilt of the accused beyond reasonable
doubt and accused has been rightly
convicted by the courts below.

(v) And it was lastly submitted
that the trial court rightly passed the
judgment convicting the accused-appellant
after considering the entire evidence and
the appeal has no merits and is liable to be
dismissed.

12. With the help of learned counsel
for the appellant and learned A.G.A. for the
State, we have perused the record of the
case.

13. P.W. 1- Ravindra Kumar had
stated in his examination-in-chief that
complainant-Sonu and his brother Lavkush
were known to him. The incident was of
16.11.2011. At about 04:00 A.M., P.W.-1
went to the house of one Raju to call him.
House of complainant was near the house
of Raju. Name of Sonu's mother was Saroj
and son of Saroj, Lavkush was a drunkard
man and was having illicit relationship with
Meena. Mother of Lavkush Saroj used to
discourage Lavkush from meeting Meena,
but Lavkush never cared and used to beat
his mother for this. Husband of Meena was
working with his younger brother Dheeraj
Pal. P.W. 1 further deposed that when he
came down from the house of Raju, he
heard a sound of firing and thereafter he
went to the house of Saroj and witnessed
that Lavkush was holding a Tamancha
(country made pistol), Meena was holding
hands of Saroj and Lavkush had shot Saroj
in the presence of the witness and
thereafter, Lavkush ran away and Saroj
died immediately after she was shot. It was
also stated by P.W. 1 that Gajendra, son of
Dharam Pal (P.W. 2) was along with him at
the time of the incident. Lavkush killed his
mother as she forbade Lavkush to go to
Meena. P.W. 1 stated that Investigating
Officer (Daroga Ji) recorded his statement
and he told everything to him. In crossexamination,
P.W.-1
stated
that
his
statement was taken by the Investigating
Officer in the afternoon on 16.11.2011. At
the time when his statement was taken by
Investigating
Officer,
other
witness
Gajendra was not present. Investigating
Officer
recorded
his
statement
and
thereafter, the Investigating Officer read
over the same to the witness. P.W. 1 stated
in his cross-examination that the house of
the deceased-Saroj was South facing and
the witness had not seen the house from
inside and had seen only the Verandah,
which was visible from outside. The house
of Raju son of Ram Singh was near the
house of the deceased. P.W. 1 stated that in
front of the house of the deceased, there
376 INDIAN LAW REPORTS ALLAHABAD SERIES
was a Gali, which on southern side merged
with the main road, the width of the Gali
was 5-6 feet and the length of the Gali was
50 meters. At the time of incident Sonu
(complainant) was working at Haridwar.
He had not given information of the
incident to Sonu and he did not know who
had given this information to Sonu. P.W. 1
deposed he heard the sound of fire at about
04:15 to 04:30 A.M. Total two fires were
shot and he heard the first shot and the
second shot was fired in front of him and
the duration between the two shots was
about one minute. When he heard the first
shot, he was on the east-south gate of the
house of the deceased. After hearing the
shot, he did not go inside the house. At the
time of second shot, P.W. 1 stated that he
was at the gate of the house of the deceased
and the distance of the charpai (bed) was
about 3 to 4 meters. Meena was on the
northern side of the charpai whereas
Lavkush (accused) was on the southern
side. The head of the deceased was towards
west and the legs on the eastern side. After
the shots were fired, the accused ran away
from the site and thereafter other persons
from village came. When the second shot
was fired, it was only P.W.1 and Gajendra
(P.W. 2) who were present at the spot and
there was no other person. It had also been
stated by P.W. 1 that he did not know
whether the deceased was in the Sahen
(courtyard) or in the Verandah, later on he
said that she was in the Verandah. House of
the deceased consisted of two rooms and a
Verandah, rooms were west facing and the
Verandah was also west facing. Near the
house of the deceased there was no
electricity pole, in the neighbouring house
an electric bulb was lit. It had also been
stated by P.W.1 that he had not seen Meena
and
Lavkush
in
any
compromising
situation. There were only rumors in the
village regarding the same. P.W. 1 admitted
that accused- Lavkush had lodged an F.I.R.
against P.W.1, Gajendra, the other witness,
P.W.2 and against one Ram Pal at P.S.-
Bhopa on 14.04.2007 for forceful entry into
his house and for beating his mother and
the accused. The said allegation was found
to be false later on in investigation. P.W.1
stated that he had not told the Investigating
Officer that at 04:00-05:00 A.M. he was
going towards his agricultural field. How
the Investigating Officer wrote this he
could not tell. P.W. 1 had further stated that
Meena was waiting outside the Gali and
after the incident Meena went to her home.
P.W. 1 stated he had not stated to the
Investigating Officer that Meena went
along with Lavkush. P.W. 1 stated that
Meena was holding the hands of the
deceased
and
Lavkush
was
holding
Tamancha and if this fact had not been
written by the Investigating Officer, then he
did not know the reason. It had also been
stated by P.W. 1 that he had stated to the
Investigating Officer that Lavkush shot
Saroj and if this fact was not noted by the
Investigating Officer in his statement, he
could not tell the reason. It was also stated
by P.W. 1 that after the incident, he
remained at the spot for 10 to 15 minutes
and thereafter, went for his work.

14. P.W. 2- Gajendra Kumar stated in
his examination-in-chief that on the date of
incident at about 04:00 to 04:30 A.M., he
along with Guddu had gone to call the
driver. House of Raju was near the house of
the deceased-Saroj. P.W.2 and Guddu had
gone to the house of Raju. P.W. 2 stated
when he along with Guddu came out from
the house of Raju, then they heard a sound
of fire from the house of Saroj (deceased).
P.W. 2 stated that when P.W. 2 reached the
house of Saroj, then at that time, Meena
was holding the hands of Saroj and
Lavkush had fired a shot from the
12 All. Lavkush Vs. State of U.P.
377
Tamancha, which he was holding in his
hand. P.W. 2 stated that after the incident,
they remained there for 5 to 7 minutes.
Lavkush ran away with the Tamancha
(country made pistol) and Meena went to
her house. P.W. 2 and Guddu had also gone
for their work. P.W. 2 stated that the house
of the deceased was west facing and
towards the east, the house of Raju and that
of other persons were situate. P.W. 2 stated
that he cannot tell the month and date of
incident. P.W. 2 stated that he was working
with P.W.1- Ravindra, 14 months back but
now he did not work with P.W. 1. P.W. 2
stated that total two fires were shot and
when the first fire was shot, then P.W. 2 as
well as P.W. 1 started from the house of
Raju, second shot was fired three minutes
after the first shot and at that time, they
were in front of the house of the deceased.
P.W. 2 stated where they were standing;
Saroj was at a distance of about 5 to 7 steps
in the Verandah. There was boundary wall
around the house of the deceased and also a
gate but the height of the boundary wall
was not 10-12 feet but was of the height of
a person. P.W. 2 stated that he heard the
sound of the first shot and the second shot
was fired in front of him and at the time of
incident, there was nobody except P.W. 1
and P.W. 2. He did not know the names of
the neighbours, who came immediately
after the incident. P.W. 2 stated that P.W. 1
and P.W. 2 had seen the incident from
outside the house of the deceased and they
did not go inside the house. At the time of
incident Lavkush and Meena were inside
the house of the deceased. P.W. 2 stated
that both P.W. 1 and P.W. 2 had seen the
incident in the light of electric bulb, which
was in the Verandah of the house of the
deceased. When the shot was fired,
Lavkush was on the east of the charpai and
Meena was on the west. Meena did not
have any firearm but she caught hold of
both hands of the deceased from the back.
He did not remember at what distance the
shot was fired. The incident was of winters;
deceased was not having any Lihaf (quilt)
and was lying on her back. P.W. 1 and
P.W. 2 had no talk with Saroj. It had also
been stated by P.W. 2 that P.W. 1 and P.W.
2 touched the deceased with their hands
and found that she was dead. After the
incident, Lavkush ran away towards the
south, Meena went to her house and the
persons there tried to apprehend Lavkush,
but could not catch him. P.W. 2 stated that
P.W. 1 and P.W. 2 told Sonu (complainant)
of the incident when they met him in the
afternoon of the date of the incident. P.W. 2
stated that he had not given statement to the
Investigating Officer (Daroga Ji) that on
16.11.2011, in the morning he was going
towards his agriculture field. P.W. 2 stated
that he had not stated to the Investigating
Officer that he heard sound of fire while he
was on his way to his field. It was also
denied by P.W. 2 that he had not given
statement to the Investigating Officer that
both P.W. 1 and P.W. 2 had seen Lavkush
coming out of the house with Tamancha
(country made pistol) in his hand. P.W. 2
stated that he never saw Lavkush and
Meena in compromising position and this
he stated on the basis of rumors in the
village that they were having illicit
relationship. P.W. 2 stated that he told the
Investigating Officer that at the time of
incident, bulb was on in the house of the
deceased. P.W. 2 stated that he stated to the
Investigating Officer that he along with
Ravindra-P.W. 1 had seen the shot being
fired.

15. P.W. 3 Sonu (complainant) had
not supported the prosecution version and
was cross-examined by A.D.J.C. In his
cross-examination, P.W. 3 stated that the
time consumed in coming from house of
378 INDIAN LAW REPORTS ALLAHABAD SERIES
Raju to his house is approximately 20
minutes and it was also stated that there
was no electricity in the neighbouring
houses. At the time of incident P.W. 3, was
at Haridwar and came to know about the
incident at about 08:00 A.M. He started
from Haridwar at about 09:00 A.M. and
reached his village at about 12:00 Noon.
The complaint which was given at the
police station was not written by P.W. 3
and he put thumb impression on the Tehrir
(complaint) written by Vijay Pal (scribe).

16. P.W.-4 Rakesh Kumar, was the
clerk
and
had
prepared
the
First
Information Report.

17. P.W.- 5 Vijendra Singh Bhadhna,
Inspector, was the Investigating Officer
who
had
done
investigation
from
19.01.2012.

18. P.W.- 6 Sanjay Verma (S.I.) was
the Investigating Officer. In his statement,
P.W. 6 stated that he recorded the statement
of Ravindra on 16.11.2011. Aforesaid
witnesses informed him that (accused)
Lavkush was having illicit relationship with
Smt. Meena. Deceased, who was the
mother of the accused used to dissuade the
accused from having such relationship.
Witness informed P.W. 6 that on the date
of incident, witnesses were going to their
agriculture field when they heard at about
04:30 A.M., the sound of fire from the
house of the deceased and when they
reached the house of the deceased, they
saw Lavkush along with Meena. Lavkush
having Tamancha along with Meena had
gone to the house of Meena and from there,
they ran away. P.W. 6 stated that the
witnesses found Saroj was dead on the
charpai (bed) in her Verandah. P.W. 6
proved the recovery of Tamancha on
pointing out of the accused and proved the
Fard Baramdagi (memo of recovery). On
cross-examination by the accused, P.W. 6
stated that he had taken statement of
witness- Ravindra on 16.11.2011. P.W. 6
stated that witness Ravindra gave the
statement that in the morning, he was going
towards his agriculture field and heard
sound of fire from the house of Saroj
(deceased) and when he went near the
house, he saw Lavkush coming out with
Tamancha in his hand and Meena was
waiting for Lavkush outside his house in
the Gali. P.W. 6 stated that Ravindra gave
the statement that Gajendra, son of Dharam
Pal, also came and both of them had seen
Meena and Lavkush going from the place
of incidence. P.W. 6 stated in his crossexamination that witness Ravindra had not
given statement that on date of incident at
about 04:00 A.M he had gone to call Raju
to his house. Witness had not given the
statement that when the witness came out
from the house of Raju then they heard the
sound of fire from the house of the
deceased and hearing the same, when he
went to the house of the deceased, he saw
Lavkush was having Tamancha in his
hands and Meena was holding hands of
Saroj and Lavkush had fired shot in his
presence. P.W. 6 stated that P.W. 1
Ravindra had not given the statement that
Meena was holding hands of Saroj and
Lavkush was having a Tamancha. P.W. 1
had not given the statement that Lavksuh
fired in his presence. P.W. 6 further stated
that witness Gajendra had given statement
that on 16.11.2011, he was going to his
agricultural field in the morning. It was
further stated that the witness stated that on
his way, he heard two shots of fire coming
from the house of the deceased. Witness
stated that Ravindra (P.W. 1) was walking
in front of him and this witness stated that
when they reached house of the deceased,
they saw Lavkush coming out from the
12 All. Lavkush Vs. State of U.P.
379
house along with fire arm. It was also
stated by P.W. 6 that witness Gajendra
stated that Meena asked Lavkush "Kam ho
gaya" (work has been done?) to which
Lavkush replied in the affirmative and after
seeing them, they ran away from the spot.
P.W. 6 stated that Gajendra had not stated
that on the date of incident, he along with
Guddu at about 04:00 A.M. went to call
Raju, driver, to his house. This witness also
did not state that when they came out from
the house of Raju, they heard the sound of
fire from the house of Saroj and when they
reached the house of the deceased, they
saw Meena holding hands of Saroj and
Lavkush was having fire arm in his hand
and shot Saroj in their presence. P.W.-6
also stated that witness Gajendra had not
stated that at the time of incident, Lavkush
and Meena were present in the house of
deceased and the incident was seen by both
P.W. 1 and P.W. 2, in the light of bulb and
this witness had also not stated that there
was a bulb in the Verandah of the house of
the deceased. P.W. 6 also stated that
Gajendra, P.W. 2 had not stated that when
the fire was shot at that time, Lavkush was
on the east of the Charpai (bed) and Meena
was on the west. Witness Gajendra had not
stated that Meena was holding hands of
Saroj from the back and the witness had not
given statement that they touched Saroj.
P.W. 6 stated witness Ravindra came to the
place of the incident after the police
reached the spot. It was stated by P.W. 6
that site plan was prepared by P.W. 6 as per
the actual situation. House of the deceased
was south facing and there was a Gali in
the South. In the western side, there is an
open space which had not been shown in
the site plan. It was also stated by P.W. 6
that there was a boundary wall which was
about 10 feet high and surrounded the
house of the deceased. There was light in
the house of the deceased but the same was
not shown by P.W. 6 in site plan. It was
also stated by P.W. 6 that the house of Raju
was not nearby to the house of the
deceased. It was also stated by P.W. 6
,when the witnesses reached spot 'W' at
that point, the shot was fired and saw the
accused coming out of the house along with
Tamancha. Spot 'W' is about 20-25 steps
away from the place of incident. It was also
stated by P.W. 6 that he had not seen the
house of Raju and Ram Singh and nor
recorded their statement. It was also stated
by P.W. 6 at the place of occurrence no
Khokha Kartoos (empty shells) or chhare
(pellets) were found. It was also stated by
P.W. 6 that the Tamancha (country made
pistol) and Kartoos (cartridge) which was
recovered were not sent by P.W. 6 to the
expert for examination.

19. P.W. 7 Yashpal is also a police
witness, who stated that the Tamancha and
cartridges recovered were sent for the
examination to expert but the report of
expert was not on record.

20. P.W. 8 Arun Singh has conducted
the post-mortem and has proved the postmortem report.

21. The accused-Lavkush in his
statement recorded under Section 313
Cr.P.C. denied the incident and stated that
P.W. 1 and P.W. 2 in year 2007 had beaten
the accused and his mother and had looted
Rs. 30,000/- from the house of the accused
regarding which an application was given
with the police and medical examination
was also done.

22. Learned counsel for the appellant
submitted
that
there
were
gross
contradictions in the testimony of P.W.1
and P.W.2, who were the only eyewitnesses of the incident. The so called
380 INDIAN LAW REPORTS ALLAHABAD SERIES
eye-witnesses were not eye-witnesses at all,
rather, they were interested witnesses
having previous enmity with the appellant.
Learned counsel for the appellant further
submitted that the version as mentioned in
the First Information Report, in the
statements recorded under Section 161
Cr.P.C. and the statements which were
made before the Court by the P.W. 1 and
P.W. 2 are altogether inconsistent. There
are several material omissions which were
not explained by the prosecution witnesses
in their testimony.

23. The defence had proved the
contradictions
and
omissions
in
the
testimony of the eye-witnesses i.e P.W. 1
and P.W. 2 but the same were brushed
aside
by
the
trial
court
as
minor
contradictions.

24.
Per
contra,
learned
A.G.A.
submitted that the contradictions if any in
the evidence of P.W. 1 and P.W. 2 were
minor and which were due to lapse of time
and human error. It has also been submitted
by learned A.G.A. that there are no
material omissions which could lead to the
conclusion that the evidence of the eyewitnesses was not trust worthy.

25.
Elaborating
his
submissions,
learned counsel for the appellant referred to
the First Information Report and submitted
that the only allegation in the First
Information Report was that Ravindra and
Gajendra (P.W. 1 and P.W. 2, respectively)
had seen the accused coming out of the
house of the deceased after Saroj was shot
dead. Learned counsel for the appellant has
further drawn attention of this Court to the
statement of P.W. 1- Ravindra Kumar
given before the Investigating Officer
under Section 161 Cr.P.C., wherein he
stated that in the morning, he was going
towards his agriculture field at about 04:30
to 05:00 A.M. and heard the sounds of
firing from the house of Saroj (deceased)
and when he reached the house of the
deceased Saroj, he saw Lavkush (accused)
coming out of house holding a Tamancha
in his hand and thereafter he went inside
the house of Meena and thereafter, Meena
and Lavkush went together whereas in his
statement before the Court, P.W. 1 stated
that P.W. 1 had gone to the house of Raju
along with Gajendra to call Raju and while
returning from there he heard the sounds of
firing and thereafter, he went to the house
of the deceased where he saw that Lavkush
was holding a Tamancha (country made
pistol) in his hand and Meena was holding
the hands of the deceased and Lavkush had
shot the deceased, in his presence and
thereafter, Lavkush ran away from the
scene. Learned counsel for the appellant
has further submitted that P.W. 2 gave
statement in the same line as P.W. 1. It is
submitted by learned counsel for the
appellant that before the Investigating
Officer, P.W. 1 only stated that he had seen
the accused coming out of the house of the
deceased and had not disclosed this fact to
Investigating Officer that he had seen the
accused firing the deceased. This is a
material contradiction which had not been
explained by P.W. 1. Learned counsel for
the appellant also invited the attention of
this Court to the statement of P.W. 1 as
given before the court wherein he had
stated
that
the
Investigating
Officer
(Daroga Ji) had taken his statement and the
same was read over by the Investigating
Officer to P.W. 1. In his cross-examination
when the P.W. 1 was confronted regarding
this omission, he only stated that he gave
the statement before Investigating Officer
that Meena was holding the hands of the
deceased and Lavkush was having a
Tamancha in his hand, but why this fact
12 All. Lavkush Vs. State of U.P.
381
was not written by the Investigating
Officer, he could not tell any reason for the
same. He also stated in his statement that
he had stated before the Investigating
Officer that accused Lavkush shot Saroj but
if such statement was not recorded by the
Investigating Officer, he could not give any
reason for the same. It is further submitted
by learned counsel for the appellant that at
the stage of trial, the entire prosecution
story had changed and there were a lot of
improvements as to what had been stated in
the First Information Report, in the
statement under Section 161 Cr.P.C. and in
the statement made before the court and
that too without any proper explanation and
such an omission would amount to material
contradiction in the evidence of the witness
and therefore, same cannot be relied upon.
Learned counsel for the appellant drew the
attention of this Court to the statement
made by P.W. 2 before the Investigating
Officer under Section 161 Cr.P.C., wherein
P.W. 2 stated that he along with P.W. 1 had
seen, after hearing the sound of fire,
accused coming out of the house of the
deceased but in statement in-chief before
the Court, the P.W. 2 deposed that when
they reached the house of the deceased
after hearing the first shot, they found
Meena was holding hands of the deceased
and the accused shot the deceased and
thereafter they ran away. P.W. 2 had not
explained why he had not informed the
Investigating Officer regarding this fact
that he had seen the accused firing upon the
deceased. This omission on the part of the
witnesses to state before the Investigating
Officer about the fact that they had seen the
accused firing the deceased is a material
contradiction and therefore, cannot be
relied upon by the prosecution.

26. Per contra, learned A.G.A. has
submitted that by merely not stating before
the Investigating Officer by P.W. 1 and P.W.
2 that they had seen the accused shooting the
deceased is not such an omission which may
shake their testimony, especially, when they
have deposed before the court and their
statements were consistent as to the fact that
they had seen the deceased being shot by the
accused. It is further submitted by learned
A.G.A. that in the cross-examination, P.W. 1
and P.W. 2 have not been confronted with
their
statements
made
before
the
Investigating Officer as contemplated under
Section 145 Cr.P.C. and therefore, the same
is not relevant.

27. Replying to the submissions made
by learned A.G.A., it has been submitted by
learned counsel for the appellant that though
the witnesses were confronted with their
previous statements recorded under Section
161 Cr.P.C. regarding the material omission
and even if, the same is not in true
compliance of Section 145 Cr.P.C. it was the
duty of the court in view of Section 165 of
Evidence Act to find out the truth by himself
and this duty cannot be abdicated by the
Judge, specially when the defence had failed
to cross-examine the witnesses properly in
accordance with the mandate of Section 145
Cr.P.C. It has also been submitted that
Section 172(2) of Cr.P.C. enables the Court
to send for police diaries in a case and use
them to aid it in the trial. The record of the
proceedings of the committing Magistrate
may also be perused by the Sessions Judge to
further aid in the trial and in this regard,
learned counsel for the appellant relied upon
a judgment of Andhra Pradesh High Court in
Sessions Judge Nellore Referring and
Others vs Intha Ramana Reddy; reported in
ILR (1972) AP 683 (1972) CRILJ1485.

28. Learned counsel for the appellant
has drawn the attention of this Court to the
statement of P.W. 6, the Investigating
382 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, who stated that on 16.11.2011, he
recorded the statement of P.W. 1, Ravindra
s/o Jai Pal, and Vijay Pal s/o Charan Singh
and witnesses had stated that on the date of
the incident, witnesses were going towards
their agricultural field and heard the sound
of fire at about 04:30 A.M. from the house
of the deceased and when they reached the
house of the deceased, then they saw
Lavkush holding Tamancha in his hand and
Meena coming out of the house of the
deceased and they went to the house of
Meena and from there they ran away.
Witnesses had also stated that when they
saw Saroj, she was lying dead on the
charpai (bed). In the cross-examination,
P.W. 6 had stated that witness Ravindra
(P.W.1) stated when he heard the sound of
fire from the house of Saroj, he came
nearby to the house of deceased, he saw the
accused Lavkush coming out of the house
along with a Tamancha and Meena was
waiting for him in the Gali. Witness stated
that Gajendra s/o Dharam Pal (P.W. 2) also
came along with P.W. 1 Ravindra and both
of them saw Meena and Lavkush going
from the place of incidence. P.W. 6 stated
that the witness Ravindra had not stated
before him that on the date of incident at
about 04:00 A.M., he had gone to call Raju
to his house. P.W. 1 had also not stated that
when he came out of the house of Raju, he
heard the sound of fire from the house of
Saroj and on hearing the sound, witnesses
went to the house of Saroj where they saw
Lavkush holding Tamancha (country made
pistol) and Meena was holding the hands of
the deceased and that Lavkush shot the
deceased in his presence. P.W. 6 also stated
that P.W. 1 had not stated that Meena was
holding hands of Saroj and Lavkush was
holding Tamancha. P.W. 6 further stated
that P.W. 1 had not stated that Lavkush
shot Saroj in front of him.

29. P.W. 6 in his statement stated that
Gajendra
(P.W.
2)
stated
that
on
16.11.2011, he was going towards his
agricultural field in the morning but no
time was mentioned by the witness P.W. 2.
P.W. 6 also stated that P.W. 2 stated that on
the way to agricultural field, he heard
sound of two fires from the house of
deceased Saroj. P.W. 2 stated that Ravindra
(P.W. 1) was going few steps ahead of
P.W. 2 and further stated as both P.W. 1
and P.W. 2 reached the house of Saroj, they
saw Lavkush coming from the house of
deceased with Tamancha in his hand and
Meena was standing a few steps outside the
house and thereafter, they ran away. P.W. 6
stated that P.W. 2 had not stated that on the
date of incident at about 04:00 A.M., he
along with Guddu (Ravindra-P.W. 1) went
to call Raju. P.W. 2 had also not stated that
when P.W. 2 and Guddu came out from the
house of Raju, then they heard the sound of
fire and thereafter, they saw inside the
house of Saroj and saw Meena holding the
hands of Saroj and Lavkush shot Saroj with
Katta (country made pistol) in their
presence. P.W. 2 had also not stated that at
the time of incidence, Lavkush and Meena
were present in the house and both the
witnesses had witnessed the incident in the
light of an electric bulb. P.W. 6 further
stated that P.W. 2 had not given the
statement that there was a bulb in the
Verandah of the house of the deceased and
the bulb was on. P.W. 2 had also not stated
that when fire was shot Lavkush was on the
east of charpai (bed) and Meena was on the
west. P.W. 2 had also not stated that Meena
was not having any weapon and was
holding hands of the deceased Saroj from
the back. P.W. 2 had also not stated that
both the witnesses touched the deceased
Saroj and found her dead. P.W. 6 stated
that P.W. 1 Ravindra reached the place of
12 All. Lavkush Vs. State of U.P.
383
incidence after sometime when P.W. 6
reached the spot.

30. Relying upon the statement of
P.W. 6, learned counsel for the appellant
contended that both the eye-witnesses have
improved their statements before the court,
as they deposed that they had seen accused
shooting the deceased in their presence,
that co-accused Meena was holding the
hands of the deceased when Lavkush shot
the deceased, they had gone to the house of
Raju to call him and while coming out of
house of Raju, they heard the sound of fire
and after hearing the same, they reached
the spot where they saw accused Lavkush
shot the deceased. In their statement before
the police under Section 161 Cr.P.C., it had
only been stated by P.W. 1 and P.W. 2 that
while going to their agricultural field in the
morning of the date of incident they heard
sound of fire coming from the house of
deceased and when they reached the house
of deceased, they saw accused Lavkush
coming from the house with a Tamancha
(country made pistol) in his hand and the
accused Lavkush along with Meena, who
was standing in the Gali ran away from the
spot. It is also contended by counsel for the
appellant
that
when
P.W.
1
was
contradicted with his statement under
Section 161 Cr.P.C.