# Mahavir v. State of U.P

- **Citation:** (2016) 5 ILRA 453
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-12
- **Bench:** Shashi Kant Gupta, Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahavir-v-state-of-u-p-43853
- **Pages:** 12

## Headnote

Conviction Set Aside - Medical Evidence Contradicts Oral Testimony - Appellant convicted u/s 302 IPC by
III Addl. Sessions Judge, Bijnor (Session Trial No. 123 of 1983) for alleged axe murder of wife Kela Devi on
24.02.1983; prosecution witnesses stated only one axe blow on forehead, whereas post-mortem report
disclosed seven ante-mortem injuries including two by hard blunt object like Lathi; inquest report showed only
three injuries; Held, injury No.1 on forehead could not be caused from behind as alleged - prosecution story
irreconcilably inconsistent with medical evidence; conviction unsustainable. (Paras 15, 33-37)

No Eyewitness to Actual Assault - Testimony Unreliable - PW-2 Sheeshram (younger brother)
admittedly was giving fodder to cattle in a different portion of house at time of incident and reached spot only
after hearing hue and cry; PW-3 Balbir (cousin) also reached later; PW-4 Shanti Devi (mother), declared
hostile, categorically denied the occurrence and stated appellant had left home early morning to irrigate fields;
no witness actually saw the assault; palms of deceased not smeared with flour despite prosecution claim she
was cooking - vital omission destroying prosecution story. (Paras 24-32, 41)

FIR Ante-timed - False Implication Due to Property Dispute - PW-1 Phullu (Chaukidar of different village
Jothimma) lodged FIR at 10.00 AM after half an hour's stay at spot and 10-12 km walk on foot - physical
improbability establishes ante-timing; axe not sent for chemical examination; dead body reached mortuary
after 17 hours without explanation; material contradictions among PW-2, PW-3 and PW-6 on removal of dead
body; son of appellant had died one week prior - possibility of false implication by brothers to usurp landed
property after father's death cannot be ruled out; benefit of doubt granted. (Paras 15-18, 38-43)

Appeal Allowed - Appellant Acquitted

## Text

5 All. Mahavir Vs State Of U.P.

453
 "14. The new High Court, and the judges and division Courts thereof, shall sit at Allahabad
or at such other places in the United Provinces as the Chief Justice may, with the approval of the
Governor of the United Provinces appoint:

"Provided that unless the Governor of the United Provinces with the concurrence of
the Chief Justice, otherwise directs, such judges of the new High Court, not less than two in number,
as the Chief Justice, may, from time to time nominate, shall sit at Lucknow in order to exercise in
respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and
power for the time being vested in the new High Court;

Provided further that the Chief Justice may in his discretion order that any case or
class of cases arising in the said areas shall be heard at Allahabad."

7. The hon'ble Apex Court while interpreting the second proviso to Article 14 of the Order, quoted
above, has held that the Judges at Lucknow Bench are alone competent to hear the cases arising in the
specified Oudh areas and unless there is an order of the Chief Justice under the second proviso the case shall
be heard at Lucknow. It is the order of the Chief Justice alone, which enables such cases being heard at
Allahabad.

8. So far as the present case is concerned, there is no order of the Hon'ble Chief Justice enabling this
court to hear this matter. As the present case has to be transferred from the district of Barabanki, which comes
under the jurisdiction of Lucknow Bench, hence the matter should be heard by the Lucknow Bench of this
High Court.

9. In view of the above, the transfer application is dismissed as not maintainable with liberty to the
applicant to file a fresh Transfer Application before the appropriate Bench at Lucknow.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.05.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 146 Of 1984

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

Counsel for the Appellant:
454 INDIAN LAW REPORTS ALLAHABAD SERIES
M.A. Qudeer, V.P. Srivastava

Counsel for the Respondent:
A.G.A.
.................................

Conviction Set Aside - Medical Evidence Contradicts Oral Testimony - Appellant convicted u/s 302 IPC by
III Addl. Sessions Judge, Bijnor (Session Trial No. 123 of 1983) for alleged axe murder of wife Kela Devi on
24.02.1983; prosecution witnesses stated only one axe blow on forehead, whereas post-mortem report
disclosed seven ante-mortem injuries including two by hard blunt object like Lathi; inquest report showed only
three injuries; Held, injury No.1 on forehead could not be caused from behind as alleged - prosecution story
irreconcilably inconsistent with medical evidence; conviction unsustainable. (Paras 15, 33-37)

No Eyewitness to Actual Assault - Testimony Unreliable - PW-2 Sheeshram (younger brother)
admittedly was giving fodder to cattle in a different portion of house at time of incident and reached spot only
after hearing hue and cry; PW-3 Balbir (cousin) also reached later; PW-4 Shanti Devi (mother), declared
hostile, categorically denied the occurrence and stated appellant had left home early morning to irrigate fields;
no witness actually saw the assault; palms of deceased not smeared with flour despite prosecution claim she
was cooking - vital omission destroying prosecution story. (Paras 24-32, 41)

FIR Ante-timed - False Implication Due to Property Dispute - PW-1 Phullu (Chaukidar of different village
Jothimma) lodged FIR at 10.00 AM after half an hour's stay at spot and 10-12 km walk on foot - physical
improbability establishes ante-timing; axe not sent for chemical examination; dead body reached mortuary
after 17 hours without explanation; material contradictions among PW-2, PW-3 and PW-6 on removal of dead
body; son of appellant had died one week prior - possibility of false implication by brothers to usurp landed
property after father's death cannot be ruled out; benefit of doubt granted. (Paras 15-18, 38-43)

Appeal Allowed - Appellant Acquitted

(Delivered by Hon'ble S.K. Gupta, J.)

1. This criminal appeal has been preferred by the accused appellant Mahavir Singh against
the judgement and order dated 5.12.1983 passed by Sri P.C. Joshi III Addl. Sessions Judge,Bijnor
in Session Trial No. 123 of 1983 convicting the appellant Mahavir for the offence punishable under
Section 302 I.P.C. and sentencing him to undergo imprisonment for life for the said offence.

2. The story as unfolded by the prosecution is that about three months prior to the date of
the incident i.e. 24.2.83, Kewal Singh, father of the accused Mahavir had died. Thereafter a dispute
had arisen between Mahavir (appellant) and his brother Dharamvir, as a result of which Mahavir
used to ask his wife not to cook food for the entire family. On 24.2.83 at about 8.00 A.M. while the
informant Phulloo, r/o village Jothimma, P.S. Sherkat, District Bijnor, who was posted as a
Chaukidar in a different village namely Jothimma, was going to ease himself to the forest, he
overheard few women of the village of Mukarpur talking about the murder of Kela by his husband
Mahavir with an axe. On hearing this, he proceeded to the house of Mahavir, he saw many people
gathered there. Mahavir was tied to a tree in his courtyard and the dead body of his wife Kela was
lying with bleeding injury on her forehead inside the Kotha of his house. The axe by which the
injury was inflicted was lying near the dead body. He was informed by P.W.2, Sheeshram(younger
5 All. Mahavir Vs State Of U.P.

455
brother of appellant Mahavir) that at around 8 O' clock in the morning, the wife of Mahavir was
cooking food for the entire family, on seeing this, the appellant got enraged and inflicted axe blow
on her forehead causing her death. The appellant thereafter caught hold of Mahavir with the help of
Balbeer ( P.W. 3) and tied him to a tree. The informant went to the police station after leaving the
Chaukidar of the village Mukarpuri at the spot to lodge FIR.

3. The F.I.R. was lodged at 10.00 A.M. i.e. after two hours of the incident. The distance
between the police station and the place of occurrence is said to be around 10-12 Kms. The
Investigating Officer is said to have reached the place of occurrence at 12.30 P.M. During the
investigation of the case, S.I.Balbir Singh( P.W. 6) prepared the site plan Ext.Ka-8,inquest report of
the dead body, seizure memos relating to seizure of the blood stained axe, blood stained and simple
soil from the place of incident. Dead body was sealed and was sent for the post-mortem
examination. The post-mortem examination of the dead body was concluded on 25.2.83 at Bijnor.

4. During the investigation,the I.O. recorded the statements of informant Phullu ( P.W.
1),Sheeshram, younger brother of Mahabir (P.W.2), Balbir, cousin of Mahabir (P.W.3) and his
mother Shanti (P.W. 4),Rameshwar Prasad Sharma, villager(P.W.5). After completing the
investigation, the police submitted the charge sheet u/s 302 I.P.C against the accused. The trial
court framed a charge u/s 302 I.P.C against the accused Mahavir to which he pleaded not guilty and
claimed to be tried.

5. The prosecution examined Phullu P.W.1, Sheeshram P.W.2, Balbir Singh P.W.3, Smt.
Shanti P.W.4, Rameshwar Prasad Sharma P.W.5 S.I., Sri. Balbir Singh P.W.6, H.C. Satyavir
P.W.7, constable Ali Momin P.W.8 and Dr. Vijay Kumar Goel P.W.9, in all 9 witnesses .

6. Sheeshram, P.W.2, has deposed that his brother Dilawar, his mother Shanti and his
brother Mahavir used to live together. However, his brother Dharamvir was living separately as
some dispute had arisen between Dharamvir and Mahavir owing to which Mahavir told his wife
Smt. Kela Devi not to cook food for him as well as for other family members. Since the deceased
was cooking for the entire family on the day of incident at about 8.00 AM the appellant got enraged
and inflicted an axe blow on her forehead. His mother and sister in- law raised an alarm for help,
upon which, the witnesses Balbir, Wahid, Nauratan and Jagram reached there and thereafter he and
Balbir tied Mahavir to a tree in the courtyard with the help of a rope and after some time, Phullu
Chaukidar too reached the spot and thereafter P.W. 1 Phullu proceeded to P.S. Sharkot to lodge a
report of this incident.

7. Balbir Singh P.W.3 has, inter alia, stated that after hearing the noise of Sheeshram and
others he reached the house of Mahavir and saw the wife of Mahavir lying dead and one blood
stained axe was lying near her. He and Sheeshram tied Mahavir to a tree with the help of a rope.

8. Smt.Shanti Devi, P.W.4 who is a mother of the accused Mahavir has not supported the
prosecution case and deposed that the accused did not commit the murder of his wife Kela Devi.
456 INDIAN LAW REPORTS ALLAHABAD SERIES
She was declared hostile on the request of the counsel for the State who was permitted to crossexamine her.

9. Rameshwar Prasad Sharma P.W.5, was a resident of village Mukarpuri. He has
supported the prosecution story and stated that on 24.2.83 the Investigating Officer prepared the
inquest report Ex. Ka-2 and recovered the axe from the Kothri and prepared a memo Ext. Ka-3.
The I.O. also collected the blood stained and simple soil from the place of incident and kept the
same in two separate Dibbas which are Ext. 2 and 3 and prepared memo Ext.Ka-4.

10. H.C. Satyavir P.W.7 had stated that on 24.2.83 he was posted as Head Moharrir at
P.S. Sharkot. On that day he prepared the chik report Ext. Ka-1 on the dictation of one Phullu and
entry was made in the G.D., a copy of which, is Ext. Ka-4. He recorded the G.D. entry at 7.30 P.M.
Showing the arrival of S.O. Balbir Singh alongwith accused Mahavir at the police station carrying
the case properties (Ext. Ka-12).

11. Constable Ali Momin P.W. 8 who was also posted at P.S. Sharkot on 24.2.83 has
deposed that on that day he brought the dead body of Smt. Kala Devi in a sealed condition from
village Mukarpuri to Bijnor and the seal of the dead body remained intact till the post-mortem
examination was done.

12. Dr. Vijay Kumar Goel, P.W.9 was posted as Medical Officer at District Hospital,
Bijnor, according to him on 25.2.83 he conducted the post-mortem examination of Kela Devi wife
of Mahavir which was brought in a sealed condition by constable Sahab Singh and Ali Momin. He
found one incised wound 10 cm x 3 cm. x scalp cavity deep on forehead near the root of the nose
(2) incised wound 2 cm x 1/2 cm near right cheek, (3) incised wound 2.5 cm x 1/2 cm x bone deep
on the top of scalp, (4) abrasion 3cm x 1.5 cm over right side face. (5) abrasion on right side of
neck (6) incised wound 9 cm. x 3 cm. x cavity deep on skull (7) incised wound 1.5 cm x 1/2 cm. x
bone deep over left upper arm of the deceased Kela Devi which were ante mortem injuries and
according to him the deceased died on account of shock and hemorrhage due to ante mortem
injuries. The post-mortem examination report is Ext. Ka-13. He has stated that the deceased might
have died on 24.2.83 at 8 A.M.

13. S.I. Sri Balbir Singh P.W.6, who was posted as S.I. at P.S. Sharkot on 24.2.83, has
deposed that he investigated the case, prepared inquest report Ext. Ka-2, sealed the dead body
prepared photo of the dead-body, challan, letter to C.M.O. Ext. Ka-5, 6 and 7 and sent the dead
body through police constable for post-mortem examination, collected the blood stained and simple
soil from the place of incident and prepared memo Ext. Ka-4 for the same and also sent the blood
stained clothes soil to the Chemical Examiner, Agra for examination, inspected the place of
incident, prepared site plan Ext. Ka-3, recorded the statements of the witnesses and arrested the
accused Mahavir from the place of incident and after completing the investigation, submitted the
charge sheet Ext. Ka-9 against the accused. He has also stated that he recorded the statement of
Smt. Shanti Devi u/s 161 Cr. P.C. a true copy of which is Ext. Ka-10.
5 All. Mahavir Vs State Of U.P.

457
14. The accused Mahavir has denied the prosecution allegations in his statement recorded
u/s 313 Cr. P.C. and according to him he was not present at his house at 8 A.M. as he had left the
house early in the morning on that day for irrigating his field and when he returned to his house at
3.00 P.M., he was arrested and challaned falsely by the police at the instance of his brothers who
want to grap his land since the partition has not yet taken place.

15. Learned counsel for the appellant castigated the impugned judgement and order and
submitted that the F.I.R. is ante timed and was prepared after consultation with the police. He
further submitted that the post mortem report does not corroborate the oral testimony . He further
submitted that, as per prosecution version, only one injury was caused on the forehead of the
deceased. However, as per post mortem report seven injuries were found on the body of the
deceased and out of them, two injuries are reported to have been caused by hard and blunt object
i.e. Lathi. However, as per Panchayatnama only three injuries were found on the body of the
deceased. He further submitted that the injuries on forehead could not have been caused from
behind. There is no explanation from the side of the prosecution as to how so many injuries were
caused to the deceased. As per prosecution version only an axe was used in the commission of the
alleged offence but, the post mortem report suggests that , interalia, two injuries were caused by a
hard and blunt object like Lathi. Thus, the prosecution story is inconsistent with the medical
evidence.

16. It was further submitted that there is no report of the chemical examiner on record to
show that the alleged axe was smeared with human blood as the same was not sent for chemical
examination. In the absence of this report, it can not be said that the alleged axe was used in the
commission of the alleged offence. It was further submitted that in this case an amicus curiae was
appointed to conduct the trial on behalf of the accused. But, he did not contest the trial properly
resulting into conviction of the accused.

17. It was further submitted that no documents were enclosed with the inquest report and
the papers were sent subsequently after sending the dead body to the mortuary for conducting post
mortem.

18. It was further submitted that the dead body was sent for post mortem at around 2.00
P.M. But, it reached the head quarter at around 6.40 P.M. on 25.2.1983 and the mortuary on
25.2.1983 at 7.30 A.M. There is no justification as to why the dead body reached mortuary after 17
hours although head quarter was only 65 Kms. away from the place of occurrence. In the
Panchayatnama it has not been mentioned as to when the proceedings of preparation of the inquest
memo were commenced and completed. Even the gist of the F.I.R. was not mentioned in its
column no.2 of the inquest memo. Perusal of the inquest memo shows that there were no
enclosures attached to the inquest memo. The incident is alleged to have taken place on 24.2.1983
at 8.00 A.M. and the F. I.R. was lodged at 10.00 A.M. The police station was 10-12 Kms. away
from the place of the occurrence. The informant is said to have reached the spot after half an hour
of the incident and stayed at the place of occurrence more than 20 minutes and thereafter proceeded
to the police station on foot and lodged the F.I.R. at 10.00 A.M. The I.O. is stated to have reached
458 INDIAN LAW REPORTS ALLAHABAD SERIES
the place of occurrence at 12.30 P.M. and came back to the police station at 7.30 P.M. as per G.D.
entry. The aforesaid facts and circumstances shows that the FIR was ante timed. Moreover, there
was no occasion for the I.O. to have stayed there till late evening although inquest report was
prepared before 2.00 P.M and the dead body was sent at 2.00 P.M. There is a great variance in the
evidence with regard to the time of sending the dead body to the mortuary.

19. Per contra, Mr. Rajiv Gupta, learned Addl. Government Advocate, appearing on
behalf of the State, while supporting the impugned judgement and order of conviction submitted
that the prosecution witnesses proved the case to the hilt and no dent could be caused by the
defence in the prosecution case. It was further submitted that it was a brutal murder by the husband
of his wife . The appellant was apprehended on the spot along with the offending axe. It was further
submitted that the evidence adduced by the prosecution does not suffer from any inconsistency and
infirmity. P.W. 1 is an independent witness and there is nothing on record to show that the P.W. 4
was not present on the spot. It was further submitted that the medical evidence also corroborates the
testimonies of the witnesses.

20. It was further submitted that since there are eye witness account of the incident, the
motive is not important. However, the cause giving motive to the accused to commit the murder is
fully proved by the prosecution. It was further submitted that the medical evidence does not
completely rule out the possibilities of having sustained the major injuries by the deceased due to
the axe blows and as such there is no reason to disbelieve the statements of the prosecution
witnesses in this regard.

21. We have heard Mr. Anshul Tiwari holding the brief of Mr. V.P. Srivastava, learned Sr.
counsel for the appellant and Mr. S.N. Tripathi, Mr. Rajiv Gupta, for the State and perused the
record.

22. We have carefully examined the entire evidence of the prosecution as well as the
defence side. The incident is said to have taken place on 24.2.83 at 8.00 A.M. in village Mukarpuri
at a distance of six miles from P.S. Sharkot and an F.I.R. of this incident was lodged by Phullu on
24.2.83 at 10 A.M. It has come in the evidence of Phullu P.W.1 and Sheesram P.W.2 that after the
incident, Phullu village Chawkidar of Jothima first came to the house of Mahavir and from there he
went to the police station to lodge the report of this incident.

23. From perusal of the record, it transpires that the P.W.1, who had lodged the F.I.R. was
not the Chaukidar of the village Mukarpuri where the incident had occurred. He was a Chaukidar of
another village namely Jothimma. In the F.I.R. it has been stated that one Sukhwa,who was the
Chaukidar of village Mukarpur, was asked by the informant to keep watch over the dead body
while proceeding to the police station for lodging F.I.R. The P.W.1 has deposed that while he was
going to ease himself at 8.00 A.M. in the forest, he overheard some women folk of the villlage
Mukarpuri talking about the murder of Kela by his husband Mahavir. On hearing this, he
proceeded to the place of occurrence. According to P.W. 2 Sheeshram , he stayed there for about 20
minutes. The distance of police station from the place of incident is said to be about 10-12 Kms.
5 All. Mahavir Vs State Of U.P.

459
According to P.W.1, he had gone to the police station on foot and F. I.R. was lodged at 10 O'clock
in the morning. This fact itself shows that the FIR could not have been lodged so promptly at 10
AM as P.W. 1 had reached the place of incident only after half an hour of the incident and then
stayed there for 20 minutes and thereafter proceeded to the police station which was 10-12 kms on
foot. It is difficult to understand as to how the FIR would be lodged within two hours of the
incident and why the P.W. 1, Phullu, who was the Chaukidar of a different village Jothimma, went
to the police station for lodging an F.I.R., instead of Sukhwa, who in fact was the Chaukidar of the
village Mukarpuri where the incident had taken place. Neither Sukhwa nor any member of the
family of Mahavir bothered to go to the police station for lodging the F.I.R. The P.W. 1 Phullu has
further very categorically stated in his examination in chief that he did not mention the names of
the villagers as the F.I.R. witnesses and he does not even know as to how the names of Nauratan
and Jagram figured in the F.I.R. The P.W.1 further stated that accused Mahavir used to reside all
alone in the Haveli where the dead body was found lying. He further stated that the Investigating
Officer had asked him to stay till 5 .00 P.M. at the police station, so he did not return to the village
just after lodging the F.I.R. However, the P.W. 6, I.O. Balwir has stated on the contrary that the
P.W. 1 after lodging the FIR had returned to the village.

24. P.W.2, Sheesh Ram, who happened to be the real younger brother of the appellant was
having strained relations with the appellant no. 2 deposed that at the time of the incident he was
engaged in providing fodder to the cattle in a different portion of the house. This fact itself shows
that when the alleged incident took place, he was not present at the scene of the occurrence.
According to him, he reached the spot only when he heard the shouts. As such, in view of his own
admission, it can not be said that he had seen the appellant assaulting his wife as he reached the
spot after hearing the shouts.

25. We now turn to yet another important aspect of the matter which requires focused
attention of this court.

26. According to the prosecution, the deceased was murdered only for the reason that she
was cooking food for the entire family. This part of the prosecution story inspires no confidence
because no body would kill his wife for such a petty reason i.e simply for cooking food for the
entire family of the husband including his brothers on completion of three months of the death of
his father. On such solemn occasions, no normal man could fly into a rage on such trifling issue
and kill his wife as alleged by the prosecution.

27. It is also notable that according to P.W. 1, the accused appellant after inflicting an axe
blow on his wife threw away his axe and did not make any effort to escape or put any resistance
while he was being caught hold of by the P.W. 2 Sheeshram or later on when being tied to a tree
with a rope by Sheeshram with the help of his cousin Balbir ( P.W. 3). It is difficult to believe that
the appellant, who was carrying an axe would meekly surrender without any resistance before his
brother P.W.2 Sheeshram with whom he was having inimical relations. According to the own
version of P.W. 2, at the time of the incident , he was so petrified that he did not even try to pick up
the axe lying there as he apprehended that he might be killed by the appellant. In such a situation it
460 INDIAN LAW REPORTS ALLAHABAD SERIES
appears improbable that P.W. 2 Sheesh Ram would try to catch hold of the appellant. The story
propounded by the P.W. 2 that the appellant did not make any attempt to escape from his clutches
again does not inspire any confidence about the reliability of the prosecution case as this conduct of
the appellant is against the normal human behaviour and therefore is unbelievable, and
unacceptable and does not appeal to reason. It is highly improbable that the appellant after killing
his wife would throw away the axe on the spot and not put any resistance while he was being
caught hold of by his brother or when being tied to a tree, especially when he himself was carrying
a lethal weapon i.e. 'Kulhari' with him.

29. It would be useful to reproduce para 3 of the testimony of P.W. 1 in this regard which
is as follows:

^^3- esjh ekWa 'kkfUrnsoh vkt vkbZ gqbZ gSaA cyohj flag] ukSjru vkSj txjke xokg Hkh vkt
vnkyr vk;s gq, gSaA pkSdhnkj QqYyw gekjs egkohj dks jLlh ls cka/kus ds djhc vk/kk ?kaVs ckn gekjs ?kj igqWapk
FkkA ftl le; dh ?kVuk gS ml le; eSa vius ?kj ds nwljs fgLls esa tkuojksa dks pkjk ns jgk FkkA geus egkohj
dks ekjk ihVk ugha FkkA vkSj u blus ge yksxksa ls NwVus dh dksf'k'k dh cfYd ;g dg jgk Fkk fd eq>s NksM nks
eSa dgha tkus dk ughaA geus tc bls idM+k blls igys og ekWa ds ihNs Hkkxk FkkA vkSj ml le; blus gkFk esa
dqYgkM+h ugha ys jD[kh FkhA egkohj us eq>s ekjus dh ;k /kedkus dh dksbZ dksf'k'k ugha dhA tks dqYgkMh egkohj
us Qsad nh Fkh og u eSaus mBkbZ vkSj u eSaus mBkus dh dksf'k'k dhA ml le; eq>s Mj yxk fd dgha egkohj eq>s
Hkh u ekj nsA ijUrq fQj Hkh eSaus ml dqYgkM+h dks ogkWa ls gVkus ;k mBkus dh dksf'k'k ugha dhA egkohj us ,d
dqYgkMh dsyk ds eqWg ij esjs lkeus ekjh FkhA eSaus dsyk ds ,d gh pksV ns[kh FkhA tc njksxk th 1⁄4vkbZ0vks01⁄2 ekSds
ij vk;s vkSj dk;Zokgh dh eSa ml le; ogha ij jgkA**

30. At this stage, it would also be fruitful to refer to the testimony of P.W. 3, who happened
to be a cousin of the appellant. Admittedly, P.W. 3, Balveer was living separately in his house.
According to him, he was residing about 50 paces away from the house of Mahavir. Admittedly, he
was not present at the time when axe blow was allegedly inflicted by the appellant on his wife.
According to him, he reached the spot after hearing the cries of Shanti Devi, mother of the
appellant. Further, according to him when he reached there P.W. 1 Phulloo had also arrived there.
According to P.W. 1, Phullu Chaukidar, he reached the spot after half an hour of the incident. Such
incident takes place in a fraction of minutes and if the version of the P.W. 2 that he caught hold of
the appellant immediately after the incident is believed to be true, the P.W. 3, who reached the spot
later on, could not have assisted the P.W. 2, Sheeshram in catching hold of the appellant . Thus, the
testimony of P.W. 3 that when he reached the spot he saw Sheeshram catching hold of the appellant
also does not appear to be believable.

31. It is also notable that P.W. 3, Balveer has stated that the dead body of the deceased was
taken away by the P.W.6 I.O. alongwith him and the I.O. had left the place of occurrence at 4.00
P.M. However, according to the P.W. 2 Sheeshram's body was taken by him and two police
constables to the police station after the I.O. P.W. 6 had left the spot at 5.30 P.M but they reached
the police station at 9.00 PM in the night and on the next morning from the police station they left
for Bijnor along with the dead body.
5 All. Mahavir Vs State Of U.P.

461
32. P.W. 4, Shanti Devi who is mother of the appellant has not supported the prosecution
story, as such she was declared hostile. She in her testimony has very clearly stated that the
appellant had left the house early in the morning on the fateful day to ease himself and to irrigate
his fields. At the time of incident she was not present in the house and had gone to the shop to
purchase Ghee and when she came back home she found her daughter in law dead. She has further
denied the story of prosecution that Kela was murdered by the appellant since she was cooking
food for the entire family. She has further stated that at the time of the incident, P.W. 2 Sheeshram
was sleeping and he reached the spot after hearing her hue and cry. She has categorically denied
that the appellant had committed any murder. She has further stated that the P.W. 2 Sheeshram was
inimical with the appellant after the death of her husband. No partition of the agricultural property
had taken place amongst her sons after the death of her husband. She has further stated that the
appellant was living separately from his brother. She denied having seen any axe on the spot or the
appellant being tied to the tree. As the P.W. 4, Shanti Devi has been declared hostile, there was no
other witness who actually witnessed the manner of assault. The P.W. 2, Sheeshram, as per his own
statement, was giving fodder to the cattle in a different portion of his house. Since he reached the
place of incident after hearing the hue and cry of her mother, there was no possibility of his actually
witnessing the assault allegedly made by the appellant. It has come on record that the brothers of
the appellant were living separately in different portions of the house and no partition of the
agricultural land had taken place amongst them after the death of their father three months back and
that the the appellant Mahavir was not having cordial relation with his brothers.

33. In the present case, ocular testimony and medical evidence are inconsistent with each
other. According to the P.W. 2, Sheeshram, at the time of incident the deceased was facing north
while she was cooking food and the appellant, who was standing behind her, inflicted an axe blow
on her. Injury report shows that she had sustained injury on her forehead, face etc. The said injury
could not be caused from behind by the appellant. This part of the prosecution story that the
appellant caused injury from behind also does not inspire any confidence.

34. The record also reveals that the alleged axe was smeared with human blood but the
same was not sent for chemical examination and in the absence of such report, it can not be
ascertained that the alleged axe was used in the commission of the alleged offence.

35. P.W. 9, Dr. V. K. Goyal, who conducted the post mortem report, deposed that he had
received two papers of Panchayatnama at the time of post mortem and in the Panchayatnama only
three injuries were mentioned. He further deposed that the death of the deceased may have
occurred at about 8.00 A.M. on 24.2.1983. He further deposed that injuries no.4 and 5 were
possible to have been caused by hard blunt object like Lathi and injury no. 1 could not be caused
from behind.

36. For ready reference, the relevant portion of the deposition made by the said Doctor in
para 4 of the said deposition is extracted below:
462 INDIAN LAW REPORTS ALLAHABAD SERIES

^^4- iapk;r ukesa ds nks ipsZ eq.s iksLVekVZe ds le; izkIr gq, FksA iksLVekVZe djus ls iwoZ eSaus tks
dkxtkr eq>s feys Fks lc ns[k fy;s FksA iapk;r ukesa dks eSaus ns[kk FkkA mlesa rhu pksVsa fy[kh FkhA QksVks yk'k
ij Hkh rhu gh pksVs vafdr gSA pksV ua- 4 o 5 fdlh dqUMvkys elyu ykBh ls vkuk lEHko gSA pksV ua- 2] 3
vkSj \ ,sls gfFk;kj ls vk ldrh gS ftldk Qy de ls de 2&2&1@2 lseh yEck gksA ;fn ekjus okyk e`rd
ds fcydqy ihns [kM+k gks vkSj e`rd lkeus dh vksj ;kfu ekjus okys dh rjQ u gks rks pksV ua- 1 ugha vk
ldrhA e`rd dh ekSr fnukad 24-2-83 dks lqcg 4 cts Hkh gksuk lEHko gSA eSaus viuh fjiksVZ e`rd ds gkFkksa ds
fdlh pht ls euk gksuk ugha fy[kk gS blfy;s eSa ugha dg ldrk fd mlds gkFk fdlh pht ls lus gq, Fks ;k
ughaA vxj e`rd ds gkFk lus gq, gksrs rks eSa t:j fy[krkA**

37. The record also reveals that post mortem report is not consistent with oral testimonies
because, as per the testimonies of the alleged witnesses only one injury was caused on the
forehead/cheeks of the deceased. However, as per post mortem report seven injuries were found on
the body of the deceased and out of them, according to the Doctor, two injuries were caused by
hard and blunt object i.e. Lathi. According to Panchayatnama three injuries were found on the body
of the deceased. The injuries on forehead could not have been caused from behind by the appellant
who, according to the alleged witnesses, inflicted axe blow on the deceased from behind. There is
no explanation from the side of the prosecution as to how so many injuries were caused to the
deceased when there is consistent ocular testimony that only a single axe blow was inflicted in the
commission of the alleged offence. No allegation of causing any injury by lathi has been made,but,
the post mortem report suggests that, interalia, two injuries were caused by a hard and blunt object
like Lathi. No explanation in this regard has been given. Thus,the prosecution story is inconsistent
with the medical evidence.

38. There are material contradictions and inconsistencies in the statements of Sheeshram
(P.W. 2), Balbir (P.W.3) and Balbir Singh ( P.W. 6) and other witnesses, they also contradicted the
version given by each other on material particulars. It is noteable that P.W. 2 in his testimony has
stated that the I.O. ( P.W. 6) had left the spot at 5.30 P.M. And thereafter he (Sheeshram) along
with two police constables took the dead body of the deceased to the police station, where they
reached at about 9 O' clock. In the next morning, they took the dead body to Bijnor for post
mortem. On the other hand, P.W. 3 (Balbir) has categorically stated that the I.O. P.W. 6 had taken
the dead body to the police station at 4 O' clock. However, Rameshwar Prasad (P.W. 5) has stated
that after preparing the inquest memo at 2-2.30 P.M., the I.O.(P.W. 6) went to the police station and
the dead body was sent later on to the police station through the constables and the I.O. had not
taken the dead body along with him to the police station. The I.O. ( P.W. 6) in his testimony has
given a different version stating that he entrusted the dead body to the constables Satyavir (P.W.7
and Ali Momim ( P.W. 8) for taking it to for post mortem and he proceeded to the police station
along with the accused appellant Mahavir in custody. From perusal of the statement of Satyavir
Singh ( P.W. 7), it is evident that the dead body of the deceased was not taken from the spot to the
police station but it was taken to the mortuary straightway and it reached the next morning after 17
hours.Thus, there are material contradictions and discrepancies with regard to taking of the dead
body from the spot to the police station , as according to some witnesses namely P.W. 2
Sheeshram, P.W. 3 Balbir the dead body was taken to the police station but on the other hand,
P.W.6 IO, P.W. 7 Satyavir and P.W. 8 Ali Mohd. have stated that the dead body was taken to the
5 All. Mahavir Vs State Of U.P.

463
police headquarter after preparing inquest memo at 2 O'clock. The dead body reached the mortuary
the next morning after more than 17 hours. Thus, such material contradictions further creates doubt
and deep suspicion in the prosecution story. From the perusal of the inquest memo, it is clearly
evident that that the documents were not enclosed along with the inquest report and the documents
appear to have been sent the next morning. Thus the aforesaid facts creates strong dent in the
prosecution story and it appears that the prosecution has suppressed the origin and genesis of the
occurrence and has thus not presented the true version.

39. There is no explanation as to why the I.O. P.W. 6 (Balbir Singh) reached the police
station at 7.30 P.M. Along with the dead body when, according to other witnesses he had left the
place of occurrence after preparing inquest memo in the afternoon i.e. between 2-2.30 P.M.

40. The record further reveals that one week before the incident the son of the appellant
had died, as such the appellant was issue less at the time of the incident, therefore, the possibility of
implicating him in the present case in order to usurp his landed property by his brothers after the
death of his father can not be ruled out. The record also reveals that he had strained relations with
his brothers after the death of his father and no partition with regard to landed property had taken
place.

41. There is no material evidence to establish that the deceased was cooking at the time of
incident as neither utensils nor vegetables which were being allegedly cooked or the kneaded flour
(dough) was recovered and fard of the aforesaid items were not prepared. Even the doctor
conducting the post mortem in his testimony has specifically stated that the palms of the deceased
were not smeared with kneaded flour. This vital omission on the part of the prosecution was again
sufficient to raise an eye brow about the claim of the prosecution that she was killed because she
was cooking food against the wishes of her husband (appellant).

42. Considering the facts and circumstances of the case, we are of the considered opinion
that the view taken by the Court below while convicting the appellant Mahavir is palpably wrong
and the findings recorded by the Court below are perverse, erroneous and can not stand the scrutiny
of law. The judgment passed by the trial court is based on a complete misreading of the case and
misconception of the legal position relevant to the matter and has not considered the evidence on
record in right perspective. The prosecution has not been able to prove the case beyond doubt. In
our considered opinion the reasons given by the Trial Court are not sufficient to convict the
appellant.

43. In the facts and circumstances of the case and the evidence led by the parties renders
the origin and genesis of the occurrence doubtful and as such the appellant is entitled to benefit of
doubt and acquittal.

44. The appeal having merit is liable to be allowed.
464 INDIAN LAW REPORTS ALLAHABAD SERIES
45. On the basis of aforesaid discussion, in our considered opinion and also applying the
rule of caution, conviction of the appellant namely Mahavir can not be sustained and is liable to be
set-aside and in the circumstances of the case, the appellant deserves acquittal.

46. Consequently, the appeal is allowed.

47. The impugned judgement and order dated 5.12.1983 passed by Sri P.C. Joshi III Addl.
Sessions Judge,Bijnor in Session Trial No. 123 of 1983 convicting the appellant Mahavir for the
offences punishable under Section 302 I.P.C. and sentencing him to undergo imprisonment for life
for the said offence is set-aside and the appellant is acquitted of the charges levelled against him
and his conviction and sentence is hereby quashed. The appellant Mahabir Singh is on bail. He
need not to surrender. His personal and surety bonds are hereby cancelled and sureties are
discharged from his liability.

48. Let a copy of this judgment along with the trial court record be sent to the court
concerned for compliance.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2016

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE YASHWANT VARMA, J.

First Appeal Defective No.- 168 Of 2016

Sushant Kumar & Anr. ...Appellants
Versus
Rajeshwar & Ors. ...Respondents

Counsel for the Appellants:
Rajiv Sharma

Counsel for the Respondents:
Sanjay Kumar Pundir

Civil Procedure Code, 1908 - Order VII Rule 11 - Limitation Act, 1963
- Section 3 - Specific Relief Act, 1963 - Article 54 (Limitation for
specific performance)
Agreement to sell executed on 27.01.2006 with a stipulated period of one year for execution of sale deed -
Last date for performance being
26.01.2007 - Suit for specific performance instituted in 2013 - Held,limitation for filing suit for specific
performance is three years from the date fixed for performance - Suit filed beyond the prescribed limitation
period is barred by law - Plaint liable to be rejected under Order VII Rule 11 CPC - Plea that plaint should