# Nathoo & Ors v. State of U.P

- **Citation:** (2022) 4 ILRA 518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-22
- **Case number:** Crl. Appeal No. 619 of 1986
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathoo-ors-v-state-of-u-p-48256
- **Pages:** 17

## Headnote

Criminal Law- Indian Penal Code, 1860 -
Sections 302 & 34- Possibility of false
implication- There was strong rivalry in
the village and the deceased belonged to a
group which had strong rivalry with the
group
to
which
the
accused
party
belonged, it is a case where the evidence
would have to be scrutinised carefully to
exclude not only the possibility of false
implication but also over implication.

Where there are rival factions then the
possibility of false or over implication cannot be
ruled out and therefore it is the duty of the
court to scrutinise the evidence with due care
and caution.

Evidence Law - Indian Evidence Act,
1872- Sections 101 & 102 - The deceased
was a history-sheeter and, importantly, at
the time of spot inspection by the I.O., the
deceased was found having a country
made gun in his hand with an empty 12
bore cartridge in its chamber-No doubt,
we are conscious that no cross version or
self defence has been set up by the
defence but the prosecution has to prove
its case beyond reasonable doubt by
4 All. Nathoo & Ors. Vs. State of U.P.
519
leading evidence that inspires confidence.
Once, a doubt arises as to whether the
prosecution is hiding the genesis of the
incident or true facts, it is difficult for the
court to accept the prosecution case
unless the evidence led in support thereof
is carefully tested on all material aspects,
particularly, in a case involving rival
factions of a village. It appears to be a
case where the prosecution witnesses are
guilty of suppressing true facts and not
coming out with full disclosure about the
incident.

Even though the defence may not have set up a
cross case, but yet it is the duty of the
prosecution to come with clean hands and also
to prove its case beyond all reasonable doubt.

Criminal
Trial-
Contradiction
between
ocular and medical version-The incised
wound found on the body of the deceased
is not attributable to the use of Bhala or to
any other weapon assigned to the accused
persons in the ocular account of PW-4.
Other than that, there is a material
difference in the number of injuries found
on the body of the deceased than alleged
to have been inflicted with a Bhala, as per
the ocular account.

Where the prosecution has suppressed material
facts thereby hiding the genesis of the
occurrence, the medical evidence contradicts
the ocular version and the oral testimony fails to
inspire the confidence of the court, then the
accused deserve the benefit of doubt.( Para 22,
26, 27, 28)
Criminal Appeal accordingly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,817 of 60,181. This is a partial read: ask again with offset=39817 for what follows._

518 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Learned Tribunal has awarded
rate of interest as 7% per annum, but we
are fixing the rate of interest as 7.5% in the
light of the above judgment.

14. In view of the above, the appeal is
partly allowed. Judgment and award passed
by the Tribunal shall stand modified to the
aforesaid extent. The Insurance Company
shall deposit the amount within a period of
8 weeks from today with interest at the rate
of 7.5% from the date of filing of the claim
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The Oriental
Insurance Company Ltd., [2007(2) GLH
291] and this High Court in total amount of
interest, accrued on the principal amount of
compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial year exceeds Rs.50,000/-, insurance
company/owner is/are entitled to deduct
appropriate amount under the head of 'Tax
Deducted at Source' as provided u/s 194A (3)
(ix) of the Income Tax Act, 1961 and if the
amount of interest does not exceeds
Rs.50,000/- in any financial year, registry of
this Tribunal is directed to allow the
claimants to withdraw the amount without
producing the certificate from the concerned
Income- Tax Authority. The aforesaid view
has been reiterated by this High Court in
Review Application No.1 of 2020 in First
Appeal From Order No.23 of 2001 (Smt.
Sudesna and others Vs. Hari Singh and
another) and in First Appeal From Order
No.2871 of 2016 (Tej Kumari Sharma v.
Chola Mandlam M.S. General Insurance
Co. Ltd.) decided on 19.3.2021, while
disbursing the amount.
----------
(2022)04ILR A518
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Crl. Appeal No. 619 of 1986

Nathoo & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Keshav Sahai, Sri Indra Kumar Chaturvedi,
Sri Shaurabh Chaturvedi, Sri Ram Milan Dwivedi

Counsel for the Respondents:
D.G.A.

Criminal Law- Indian Penal Code, 1860 -
Sections 302 & 34- Possibility of false
implication- There was strong rivalry in
the village and the deceased belonged to a
group which had strong rivalry with the
group
to
which
the
accused
party
belonged, it is a case where the evidence
would have to be scrutinised carefully to
exclude not only the possibility of false
implication but also over implication.

Where there are rival factions then the
possibility of false or over implication cannot be
ruled out and therefore it is the duty of the
court to scrutinise the evidence with due care
and caution.

Evidence Law - Indian Evidence Act,
1872- Sections 101 & 102 - The deceased
was a history-sheeter and, importantly, at
the time of spot inspection by the I.O., the
deceased was found having a country
made gun in his hand with an empty 12
bore cartridge in its chamber-No doubt,
we are conscious that no cross version or
self defence has been set up by the
defence but the prosecution has to prove
its case beyond reasonable doubt by
4 All. Nathoo & Ors. Vs. State of U.P.
519
leading evidence that inspires confidence.
Once, a doubt arises as to whether the
prosecution is hiding the genesis of the
incident or true facts, it is difficult for the
court to accept the prosecution case
unless the evidence led in support thereof
is carefully tested on all material aspects,
particularly, in a case involving rival
factions of a village. It appears to be a
case where the prosecution witnesses are
guilty of suppressing true facts and not
coming out with full disclosure about the
incident.

Even though the defence may not have set up a
cross case, but yet it is the duty of the
prosecution to come with clean hands and also
to prove its case beyond all reasonable doubt.

Criminal
Trial-
Contradiction
between
ocular and medical version-The incised
wound found on the body of the deceased
is not attributable to the use of Bhala or to
any other weapon assigned to the accused
persons in the ocular account of PW-4.
Other than that, there is a material
difference in the number of injuries found
on the body of the deceased than alleged
to have been inflicted with a Bhala, as per
the ocular account.

Where the prosecution has suppressed material
facts thereby hiding the genesis of the
occurrence, the medical evidence contradicts
the ocular version and the oral testimony fails to
inspire the confidence of the court, then the
accused deserve the benefit of doubt.( Para 22,
26, 27, 28)
Criminal Appeal accordingly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Pandurang Chandrakant Mhatre & ors. Vs St.
of Maha, (2009) 10 SCC 773 (vide paragraph
60)

2. Muthu Naicker & ors. Vs St. of T.N, (1978) 4
SCC 385

(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Sameer Jain, J.)

1. This appeal has been filed by four
appellants, namely, Nathoo, Dambar, Tilak
and Kaloo alias Raja Ram against the
judgment and order dated 18.02.1986,
passed by 1st Additional District &
Sessions Judge, Budaun in Sessions Trial
No.353 of 1984 whereby, the appellants
Nathoo and Tilak have been convicted
under Section 302 IPC whereas, appellants
Dambar and Kaloo alias Raja Ram have
been convicted under Section 302 read with
Section 34 IPC and all of them have been
sentenced to imprisonment for life. The
appeal of appellants Dambar and Tilak,
consequent to their death, was abated vide
order dated 28.11.2018 therefore, the
appeal
survives
qua
appellant
no.1
(Nathoo) and appellant no.4 (Kaloo alias
Raja Ram) only.

INTRODUCTORY FACTS

2. On a written report (Exb. Ka-3),
dated 17.03.1984, submitted by Dharmpal
Singh (PW-3), a first information report
(FIR) was registered at police station (P.S.)
Bilsi, district Budaun, as Case Crime No.57
of 1984, at 18.15 hours, of which Chik FIR
(Exb. Ka-4) and GD entry (Exb. Ka-5) was
prepared/ made by PW-7. The allegation in
the FIR is that on 17.03.1984, at 3.00 p.m.,
the informant (PW-3) was informed by
Pappu (PW-4) that informant's nephew
Itwari (the deceased), on his way back
home, after extending Holi greetings, near
the shop of Liladhar Murao (not examined),
was stopped by accused persons, namely,
Nathoo (appellant no.1); Dambar (the
appellant no.2); Tilak (the appellant no.3);
and others, who requested Itwari (the
deceased) to smoke a Beedi (a leaf rolled
and filled with tobacco). But, when Itwari
refused to accede to their request, Nathoo
and Tilak (appellants 1 and 3) inflicted
injury on Itwari with the help of Ballams,
520 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter, on exhortation of Dambar
(appellant no.2), Tilak fetched his gun from
his house and fired at Itwari (the deceased),
which killed Itwari. It was alleged that
Dambar's son Kaloo (appellant no.4) was
also with the accused persons. In the FIR it
was also alleged that at the spot Devendra
(PW-6) and others were there and the
informant including informant's brother
Shivraj Singh (PW-5) also arrived and
when they arrived, accused persons started
pelting brickbat from roof top, in which,
PW-5 received injuries. Making all these
allegations and stating that the body of the
deceased is lying at the spot, FIR was
lodged.

3. The medical examination of Shivraj
Singh
(PW-5)
was
conducted
on
17.03.1984 at 06.45 p.m. by PW-2. The
medical examination report of PW-5 (Exb.
Ka-2), prepared by PW-2, reveals:

(i) Traumatic swelling on the left
clavicular region 8 cm x 2 cm in diameter.
Kept under observation. Advised X-ray;

(ii) Bruise mark on the left clavicular
region medially, 1 cm x 1 cm reddish.

(iii) Bruise mark on the left clavicular
region laterally 2 cm x 1 cm reddish.

Opinion :- All the above injuries are
caused by blunt object. No.(i) kept under
observation. Nos.2 and 3 simple and fresh.

4. Though the police reached the
spot in the evening but due to fading
light, inquest was conducted next day
morning, that is on 18.3.1984. Inquest
report (Exb. Ka-6) was prepared by
Jagdish Chandra Pathak (not examined)
under the direction of the Investigating
Officer (I.O.) (PW.-8). The inquest report
notices that in the right hand palm of the
deceased's body, there was a 12 bore
country made pistol whose chamber had
one empty cartridge.

5. On 18.03.1984, the I.O. (PW-8)
lifted blood stained earth/plain earth from
the spot of which memo (Exb. Ka-12)
was prepared. The I. O. during spot
inspection collected 25 pellets from the
wall of Liladhar's shop, which were
embedded therein, of which seizure
memo (Exb. Ka-13) was prepared. In the
site plan (Ex. Ka-14) prepared by the I.
O. on 18.03.1984, the location of that
spot from where pellets were recovered
have been shown by letter X.

6. The autopsy of body of the
deceased was conducted on 18.03.1984 at
4.00 p.m. of which, the autopsy report
(Exb. Ka-1) was prepared by PW-1. The
autopsy report, inter alia, reveals:

External Examination : Average
built body, eye semi open, mouth semi
open. Rigor mortis: passed upper limb,
present lower limb.

Ante-mortem injury :

(1) one gunshot wound of entry 1 cm x
1 cm x cavity deep on the epigastric region,
margins are burnt and black.

(2) one gunshot wound of exit 1 cm x
1 cm x cavity deep on the left of spleen
region (upper part).

(3) Incised wound 7 cm x 3 cm x
fracture of lower jaw left side and in central
part with fracture of 5 lower jaw teeth.

(4) Abrasion 5 cm x 3 cm on the right
clavicular region medial side.

(5) Abrasion 4 cm x 3 cm over the left
side neck (sic), lower part.

(6) Abrasion 6 cm x 3 cm over the left
wrist region (posterior).

Internal
Examination
:
Spleen
lacerated. Peritoneum punctured. Heart
empty, blood found in the cavity and
4 All. Nathoo & Ors. Vs. State of U.P.
521
stomach contained 6 ounce of digested
food, small intestine had faecal matter and
gases.

Opinion :- Death is due to shock and
haemohrage as a result of described
injuries.

Estimated time of death:- One day
before.

7.

After
investigation,
PW-8
submitted charge-sheet (Exb. Ka-15) on
which, after taking cognisance, the case
was committed to the court of session. The
court
of
session,
vide
order
dated
03.09.1985, framed two charges against
appellants Nathoo and Tilak. The first was
of committing murder of Itwari, punishable
under Section 302 IPC, and the other was
of voluntary causing hurt to Shivraj Singh
(PW-5), punishable under Section 323 IPC.
Similarly, vide order dated 03.09.1985, the
appellants Dambar and Kaloo alias Raja
Ram were charged under Section 302 read
with Section 34 IPC for the murder of
Itwari and under Section 323 IPC for
voluntary causing hurt to Shivraj Singh.
The accused pleaded not guilty and claimed
to be tried. At this stage, it be noticed that
in both sets of charges, murder was alleged
to have been committed at 3.00 pm in front
of the shop of Liladhar Morao on whose
shop's wall gun shot pellets were found
embedded by I.O. (PW-8) and of which
recovery was also made vide Exb. Ka-13.

PROSECUTION EVIDENCE

8. During the course of trial, the
prosecution examined eight witnesses, their
testimony is as follows :

9. PW-1 - Dr. M.K. Maheshwari. He
is the Doctor who conducted autopsy of the
body of Itwari. He proved the autopsy
report and accepted the possibility of death
having
occurred
at
3.00
p.m.
on
17.03.1984. He stated that injury nos.1 and
2 were sufficient to cause death. Injury no.3
could have been caused by a Ballam, if it
had sharp edges and injury nos.4, 5 and 6
could be caused due to friction and could
also be caused by falling on a hard object.
In his cross-examination, the Doctor
stated that the deceased may not have died
instantaneously and might have survived
for 10-15 minutes. In respect of injury no.1,
PW-1 stated that that could have been
caused if the shot had been fired from a
distance of less than 4 feet. PW-1 also
stated that the injury nos.1 and 2 must have
been caused by a bullet and not by pellets
though that bullet may be of brass or of
steel. In respect of injury no.3, PW-1 stated
that that injury could be caused by a Pharsa
but not knife.

10. PW-2 - Dr. R.C. Joshi. The
Doctor, who examined PW-4 for his
injuries on 17.03.1984 at 6.45 p.m. PW-2
proved the injury report (Exb. Ka-2) and
stated that all the injuries noticed could be
from a hard blunt object and could also be a
result of bricks thrown at the injured. He
stated that injury nos.2 and 3 were simple
and fresh which could have been sustained
around 3.00 p.m. on 17.03.1984. In his
cross-examination, PW-2 stated that those
injuries could not be self-inflicted but if the
injured on his own gets bricks thrown at
him then those injuries could be sustained.
He denied the suggestion that he did not
notice the injuries and has prepared a false
report. The Doctor also stated that at the
time when he examined the victim there
was no first information report before him.

10. PW-3 - Dharampal Singh. (The
informant) - He stated that the deceased
Itwari was his nephew and on the date and
time of the incident, at about 3.00 p.m.,
522 INDIAN LAW REPORTS ALLAHABAD SERIES
Devendra (PW-6) and Pappu (PW-4) came
running and informed PW-3 that Itwari has
been killed by Nathoo, Tilak, Dambar and
Kaloo alias Raja Ram; that on receipt of the
information, PW-3 and Shivraj Singh (PW5) rushed to the spot; there the accused
Tilak, Nathoo, Kaloo alias Raja Ram and
Dambar threw bricks at them from their
roof top which struck Shivraj Singh (PW5), causing injuries. PW-3 stated that by the
time they arrived there, Itwari had already
died and his body was lying near a Jamun
tree in front of the shop of Liladhar. PW-3
stated that thereafter he got a report scribed
from Jogendra Singh (not examined) who
read the report to him, whereafter he put his
signature on it and, thereafter, his injured
brother
Shivraj
Singh
(PW-5)
was
examined in the hospital. He stated that
before the incident, Pradhan's elections had
taken place in which Ulfat Singh and
Dambar (appellant no.2) were candidates;
the informant party was canvassing for
Ulfat Singh, as a result, the accused party
bore enmity with the informant party. PW3 stated that where the body of the
deceased was lying is a place where
members belonging to the caste of the
accused, including the accused, have their
Abadi; that their (accused persons') houses
were at a distance of 10-15 paces away
from the spot; that the accused belong to
Morao caste whereas the informant party
belong to Thakur caste; and there is partybandi in the village. That day, it was Holi
and the deceased had gone to visit village
Sahbajpur to extend Holi greetings to his
friends and relatives and along with him,
Pappu (PW-4) and Devendra (PW-6) were
there. PW-3 stated that when Itwari had
gone to visit people and extend Holi
greetings, he had not taken any weapon.

In his cross-examination, PW-3
stated - that the I.O. recorded his statement
next day of the incident; that though he is
not aware about the number of cases
pending against Itwari but Itwari was
prosecuted for the murder of Bangali and
prior to that he was also prosecuted for
murder of a lady; and that he is not aware
whether a case of dacoity was also
instituted against Itwari. He claimed
ignorance of there being 5-6 cases relating
to offence punishable under Section 25
Arms Act against Itwari. PW-3, however,
admitted that Itwari was a history-sheeter
and police used to visit him. On further
cross-examination,
PW-3
stated
that
Devendra (PW-6) is Bhanja (sister's son) of
Itwari and a resident of village Matiyari
though, Devendra used to stay in the
village where the incident took place. PW-3
claimed ignorance as to whether the father
of Devendra was also a history-sheeter.

In respect of the spot location, PW-3
stated that the spot where the body of
Itwari was lying was 400-500 paces away
from PW-3's house. PW-3 denied the
suggestion that at the time when Pradhan's
elections were on, Itwari was in jail. PW-3
stated that Pradhan's elections took place 56 months before the incident. He stated that
in
the
village,
members
of
Thakur
community, to which he belongs, and
Morao community, to which accused
belong, reside in separate areas. He stated
that to the best of his knowledge, prior to
the incident, Itwari had never visited Morao
Basti (colony). PW-3 stated that the house
of Itwari was at a distance of 30-35 paces
away from his own house. PW-3 further
stated that Itwari, Devendra and Pappu had
gone together to extend Holi greetings at
about 1.00 p.m. On being confronted that
he did not mention in the FIR that
Devendra and Pappu had gone together
with Itwari to extend Holi greetings, and
that he had not made any such statement to
the
Investigating
Officer
during
4 All. Nathoo & Ors. Vs. State of U.P.
523
investigation, PW-3 stated that he had
made a disclosure of that fact but if that
was not written, he cannot tell the reason
for the same. On being confronted that he
had not mentioned in the report that along
with Pappu, Devendra had also given
information about the incident to him, PW3 stated that he had mentioned this fact in
his report but if that was left out, then he
cannot tell the reason. He stated that when
he and his brother Shivraj Singh had gone
to the police station, village ladies were
asked to guard the body. PW-3 admitted
that the body of the deceased was lying in
front of the shop of Liladhar. PW-3 stated
that towards west of Dambar's house, there
is house of Tilak and in between the two
houses, there is Baithak of one Pranshu. He
stated that when brickbats were thrown at
them, the accused were on the roof top of
the house of accused Dambar. At that time,
apart from the accused persons, there were
other members of Morao community also.
PW-3, however, clarified that brickbats
were thrown by the accused persons and
not by others. He also clarified that the
parapet of the roof was not high therefore
all those who were throwing brickbats
could be noticed.

On further cross-examination, PW-3
stated that the FIR was got scribed through
Jogendra Singh while sitting near the body
of the deceased and that it was delivered to
the informant without delay. He stated that
they reached the police station to lodge the
report by about 6.00 p.m. and after leaving
his brother (PW-5) at the hospital, he
returned back to the village. PW-3 stated
that he stayed over night near the body and
when he arrived after lodging the report,
ladies were not there. PW-3 stated that the
Investigating Officer had arrived in the
night of the incident. PW-3 denied the
suggestion that Itwari was killed in
darkness by some unknown persons on
account of party-bandi and that the accused
were falsely implicated. He also denied the
suggestion that the report was lodged next
day. He also denied the suggestion that
Shivraj Singh (PW-5) self-inflicted injuries
from bricks.

11. PW-4 - Pappu (Eyewitness)
Aged 15 years. He stated that at the time of
the incident he, Itwari and Devendra were
returning after extending Holi greetings at
village Sahbajpur and when they reached
near Liladhar's shop, at about 3.00 p.m.,
Dambar, Tilak, Kaloo alias Raja Ram and
Nathoo stopped Itwari. They asked Itwari
to smoke Beedi to which Itwari refused by
saying that he would not smoke with them
as they are not persons with whom he has
relations. On this, Nathoo and Tilak
inflicted
Bhala
blows
on
Itwari.
Whereafter, Kaloo alias Raja Ram and
Dambar exhorted Tilak to fetch gun and
shoot Itwari on which, Tilak went to his
house to fetch his gun and thereafter, Tilak
shot Itwari, as a result whereof, Itwari fell.
As soon as Itwari fell, Pappu (PW-4) and
Devendra (PW-6) effected their escape and,
after reaching home, made a disclosure
about the incident to PW-3 and PW-5.

In his cross-examination, PW-4
stated - that he went with Itwari to extend
Holi greetings at about 1.00 p.m.; that
Itwari and he belong to the same Mohalla
and are of the same Khandaan (pedigree);
that to give his statement in court he has
been away from the village for the last
three days; that the police had brought him
and Devendra; that they had been staying at
the police station. He stated that all the
witnesses are staying at the police station
voluntarily. He denied the suggestion that
the police men had tutored him.

On further cross-examination, when
confronted with his statement, recorded
under Section 161 CrPC, that when he and
524 INDIAN LAW REPORTS ALLAHABAD SERIES
Itwari were returning after extending Holi
greetings, at the spot, they had seen
Devendra, etc., PW-4 stated that he had
informed the Investigating Officer that
Devendra had also been with them to
extend Holi greetings but if that was not
written, he cannot tell the reasons for the
same. He stated that they had gone to
village Sahbajpur without eating anything
at their house but at village Sahbajpur, they
had Gujiya at Dalvir's house. On being
confronted with regard to the omission in
his statement, under section 161 CrPC, that
he along with Devendra had rushed to
inform PW-3 about the incident, he stated
that that information was given to the
Investigating Officer but if it was not
mentioned by the Investigating Officer, he
cannot tell the reason for the same. He
stated that when they were on their way
back, in front of Liladhar's shop, they saw
the accused standing there; that two were
armed with Bhalas and two were empty
handed. PW-4 stated that he was ahead,
followed
by
Itwari,
and,
thereafter,
Devendra. He stated that when Itwari saw
the accused, Itwari neither ran nor, he or
Itwari, raised an alarm. Only when Itwari
was killed, he ran away. On further crossexamination, PW-4 stated that though the
shop of Liladhar was open but there were
no customers. However, Liladhar was
sitting in his shop. PW-4 stated that near
the shop, Dharampal, Ram Autar and Hori
Lal Murao's houses are there but none of
them were present. When the accused saw
Itwari, they asked him to smoke a Beedi
and when Itwari refused, they inflicted
Bhala blows. PW-4 stated that three Bhala
blows were inflicted. Bhalas were pointed.
The top was pointed, having a length equal
to an arm and width of about one and half
finger. PW-4 stated that after Bhala injuries
were inflicted on Itwari, Dambar and Kaloo
alias Raja Ram exhorted Tilak to fetch his
gun; on which, Tilak ran to fetch his gun.
At that time, PW-4 did not run away. After
being inflicted Bhala injury, Itwari had
fallen. Tilak fetched his gun from his
house, which was at a distance of about 50
paces. The gun brought by Tilak was of full
size. Tilak fired at Itwari, pointing
downwards, from a distance of about one
yard. A single shot was fired by Tilak and
no other shot was fired. When the shot was
fired, Tilak was facing towards the house
of Liladhar, which is south of Rasta and the
distance of shop of Liladhar from the place
of incident is 10 paces.

On further cross-examination, PW-4
stated that when shot was fired at Itwari,
Itwari was lying on the ground. PW-4 also
stated that till Tilak could fetch his gun all
the other three accused remained there. He
clarified this by stating that there must have
been
15
minutes
time-gap
between
infliction of Bhala blows and causing of
gun shot injury. He stated that where Itwari
fell, it was brick path (Khadanja).

On further cross-examination, PW-4
stated that Munni is Itwari's cousin brother.
He stated that he is not aware that Itwari
had killed Munni's mother and that Itwari
had also stabbed Munni at the time of
Baraat
(marriage
procession).
PW-4 stated that after giving information
about the incident he stayed at the house,
whereas Dharmpal (PW-3) and Shivraj
(PW-5) went to the spot. PW-4 stated that
the accused, by that time, had run away.
PW-4 stated that when the Investigating
Officer had come, I.O. had called PW-4 to
the spot, PW-4 had described the incident
to I.O. PW-4 denied the suggestion that he
did not witness the incident and that he is
telling a lie on account of being part of that
family.

12. PW-5 - Shivraj Singh. He stated
that on the date of the incident, at about
4 All. Nathoo & Ors. Vs. State of U.P.
525
3.00 p.m., Devendra and Pappu both came
and gave information about the incident; at
that time, he was with his brother
Dharmpal (PW-3); thereafter, he and PW-3
rushed to the spot; there, Tilak, Dambar,
Nathoo and Kaloo alias Raja Ram were
noticed throwing brickbats at them from
roof-top, which caused injuries; when, they
raised an alarm, several other villagers
arrived; by that time, Itwari had died;
thereafter, report was lodged at police
station Bilsi, from where he was sent for
medical examination. He stated that prior to
this incident he had no enmity with the
accused except animosity on account of
Pradhan's
elections.
As
regards
the
relationship inter se accused persons, PW-5
stated that Kaloo is the son of Dambar; and
Tilak is the nephew of Dambar. Nathoo
though a relative, but not a close one.

In his cross-examination, PW-5
stated that the Investigating Officer had
called him for recording his statement 1516 days later. He admitted that against
Itwari there was a case regarding murder of
Bangali Thakur and also a case in respect
of firing of gunshot at Munni's mother. He
claimed ignorance about a dacoity case
registered against Itwari.

On
further
cross-examination,
he
stated that the information about the
incident was first received from Pappu
whereas he met Devendra on the way. He
stated that after receipt of information, PW5 and PW-3 went to the spot but Pappu and
Devendra did not accompany them though,
on way, they met 10-15 other villagers,
who went with them to the spot. He stated
that when brickbats were hurled at them,
they stopped, but, when other villagers
arrived, they proceeded to the spot. At that
time near the body there was nobody else,
and when he received injury, except he and
his brother there was nobody else. He
stated that his brother (PW-3) was ahead
and he stopped because of brickbats. He
stated that brickbats were thrown from the
roof over the Baithak adjoining the house
of accused Tilak. He clarified by stating
that the roof was over a joint Baithak of
Tilak and Dambar. He stated that on the
roof top, only accused persons were there.
He stated that 5-10 bricks were thrown at
him, out of which, one had hit him.

On
further
cross-examination,
he
stated that at the time when Pradhan's
elections were held, Itwari was out of jail
and after Pradhan's elections, he was not
sent back to jail. He stated that Itwari was
released from jail about 20-25 days before
Pradhan's elections. He stated that in his
presence
there
was
never
an
altercation/fight between Itwari and the
accused. He stated that though Ulfat Singh
had won Pradhan's elections earlier, several
times, but this time he lost to Dambar. He
denied the suggestion that at the instance of
Ulfat, he falsely implicated the accused.

13. PW-6 - Devendra. As Devendra
was aged 13-14 years only, the court
examined him to test whether he could be
considered competent to depose. After
being satisfied in that regard, he was
permitted to depose. PW-6 stated that the
deceased Itwari was his maternal uncle, he
was killed at about 3.00 p.m; when Itwari
was killed, he was present there; that he,
Pappu and Itwari had gone to village
Sahbajpur to extend Holi greetings and on
their way back, when they arrived in front
of the shop of Liladhar, there, Nathoo,
Dambar, Kaloo and Tilak asked Itwari to
smoke Beedi; when Itwari refused, Nathoo
and Tilak started assaulting Itwari with
Bhala, Itwari received two Bhala blows;
immediately thereafter, Dambar and Kaloo
asked Tilak to get his gun to finish him off,
thereafter, Tilak brought his gun from his
house and fired at the deceased (Itwari); till
526 INDIAN LAW REPORTS ALLAHABAD SERIES
that shot was fired, he was present there,
after that, he went back home, then, on
way, he met Dharmpal (PW-3) and Shivraj
(PW-5). PW-6 stated that prior to the death
of Itwari, PW-6's mother had expired and
after the death of his mother, he had been
staying with his maternal grandfather
Shivraj Singh (PW-5).

During cross-examination, when he
was confronted with an omission in his
statement recorded under Section 161 CrPC
with regard to he, Pappu and Itwari having
gone together to extend Holi greetings, he
stated that that fact was disclosed to the
Investigating Officer but if that was not
written, he cannot tell the reason. PW-6
was again confronted with his previous
statement made during the course of
investigation wherein he had stated that
while he was returning to his house after
taking a round of the village, near the shop
of Liladhar, he saw that Itwari was
surrounded by Dambar, Kaloo, Tilak and
Nathoo, to which he responded by stating
that if that had been written by the
Investigating Officer, he cannot tell the
reason for the same. PW-6 was also
confronted with an omission in his
statement regarding the accused persons
requesting Itwari to smoke Beedi, to which,
he responded by stating that he had not
disclosed the same to the Investigating
Officer but that incident did happen in his
presence. PW-6 also stated that he had not
disclosed to the Investigating Officer that
Tilak had also inflicted Ballam injury. PW6 also stated that he did not disclose to the
Investigating Officer that he met Shivraj
and Dharmpal on way to his house. PW-6
also admitted that he had not told the
Investigating Officer that Dambar and
Kaloo had exhorted Tilak to get his gun to
kill the deceased.

On further cross-examination, PW-6
stated that he only knows Harvir in village
Shahbajpur and that he does not know the
persons whom Itwari visited that day
though, Itwari new them. PW-6 stated that
he used to stay with his father but at the
time of the incident he was staying at the
village Behta Jabi (village where the
incident took place) though, his younger
brother and sister were staying with his
father at village Gharchari (PW-6's father's
village). PW-6 stated that this was the first
Holi after the death of his mother and as
per the custom, relatives visit the house
where there is bereavement. He admitted
that his maternal grandfather had carried
Gujiya to his father's house. He stated that
his maternal grandfather had returned next
day morning and then he gave this
information to him. He stated that the date
of the incident was Holi day and people
were moving around.

In respect of the incident, during
cross-examination, PW-6 stated that on
their way back, at the time of the incident,
Pappu was ahead, followed by Itwari, who
was followed by him. PW-3 stated that the
accused held two Bhalas and they inflicted
three Bhala blows, one was just above the
stomach region, second was from back and
the third was near shoulder joint. He stated
that when Bhala blows were inflicted on
Itwari, Itwari could not run because he was
caught hold by the accused. He stated that
when the shot was fired at Itwari, Itwari
was standing but after the shot hit Itwari, he
fell down. He stated that the shot must have
been fired from a distance of 1 and 1⁄2
yards. After firing the shot, the accused ran
towards the house of Liladhar. He denied
the suggestion that he was not present at
the spot and that what he is telling is a lie.
He also denied the suggestion that Itwari
had a gun with him.

14. PW-7 - Lal Singh. He proved the
registration of the written report and
4 All. Nathoo & Ors. Vs. State of U.P.
527
preparation of its GD entry as well as chik
FIR, which were exhibited as Exb. Ka-4
and Exb. Ka-5, respectively. He denied the
suggestion that the FIR was lodged after
autopsy.

15. PW-8 - D.P. Juwal. The
Investigating Officer of the case. PW-8
stated that after registration of the case he
started investigation on the same day and
recorded the statement of the informant
Dharm Pal and Head Clerk who prepared
GD entry of the FIR and, thereafter, visited
the spot; that, by the time he arrived at the
spot, it was night and as sufficient light
could not be arranged to conduct the
inquest, a constable was deputed to stay
there near the body; that he recorded the
statement of Pappu, but witness Devendra
could not be found; that effort was made to
trace out the accused but they could not be
found. He stated that because of darkness
of the night, the police team stayed there
overnight
and
in
the
morning
of
18.03.1984,
inquest
proceedings
were
started. It is stated that the inquest report
was prepared under his direction by SubInspector Jagdish Chandra Pathak. He
proved various papers in connection with
inquest, autopsy etc. He stated that at the
spot, he noticed a single barrel country
made pistol, with one empty cartridge in its
chamber, on the right hand palm, just
below the wrist, of the deceased, which was
recovered and sealed of which seizure
memo (Exb. Ka-11) was prepared. He also
proved lifting of blood stained earth/plain
earth from the spot. He stated that at the
time of inspecting the spot, he could collect
25 pellets from the wall of Liladhar's shop
of which a seizure memo was prepared,
which was exhibited as Exb. Ka-13. He
stated that on the basis of inspection, a site
plan (Exb. Ka-14) was also prepared by
him. He stated that on 04.04.1984 he
recorded
statement
of
Shivraj
and
Devendra but, prior to this, despite effort,
they could not be found and, after
completing
the
investigation,
on
18.05.1984, he prepared and submitted
charge-sheet, which was exhibited as Exb.
Ka-15.

During
cross-examination,
PW-8
stated that the empty cartridge recovered
from the chamber of that gun was of 12
bore. He stated that he had recorded the
statement of Liladhar and other persons who
were there. He stated that Itwari was a
history-sheeter. He stated that he reached the
spot at about 8.00 - 8.15 p.m. though he did
not remember whether men or women were
there near the body when he arrived. He
denied the suggestion that first information
report was lodged after autopsy. He stated
that Dharampal did not give any such
statement that Itwari had gone without
carrying a weapon. Dharampal had also not
given a statement that with Itwari, Devendra
and Pappu had gone to extend Holi
greetings. He also stated that Dharampal did
not inform him that information about the
incident was given to him by Devendra. He
stated that near the body he could not notice
any brickbat. He stated that the site plan was
prepared by him with the help of witness
Pappu and Suraj Pal Singh. He stated that
Pappu in his statement had not informed that
Devendra was also with them; and that
Pappu had also not informed that the
accused had dispersed in all four direction.
He also stated that the witness Devendra had
not informed him that he, Pappu and Itwari
were on their way back when the incident
occurred. Various other omissions in the
statement of Devendra were put to the
Investigating Officer, which he confirmed.

16. The incriminating circumstances
emanating from the prosecution evidence
were put to the accused. As this appeal
528 INDIAN LAW REPORTS ALLAHABAD SERIES
survives only in respect of appellant nos.1
and 4, namely, Nathoo and Kaloo, we
propose to notice only the statement of
Nathoo and Kaloo recorded under Section
313 CrPC. Appellants Nathoo and Kaloo
denied their involvement in the incident
and claimed that they have been falsely
implicated on account of enmity generated
during election of Pradhan.

TRIAL COURT FINDINGS

17. The trial court upon finding that
on account of election of Pradhan there was
enmity between two communities in the
village; and the prosecution case was
supported by an eye witness account of the
incident, taking into account that the first
information report was promptly lodged,
convicted the appellants as above but,
acquitted the appellants of the charge of
offence punishable under Section 323 IPC.

18. We have heard Sri Indra Kumar
Chaturvedi, learned senior counsel, assisted
by Sri Shaurabh Chaturvedi, for the
surviving appellant nos.1 and 4 (Nathoo
and Kaloo alias Raja Ram); Sri H.M.B.
Sinha, learned AGA, for the State; and
have perused the record.

SUBMISSIONS OF THE LEARNED
COUNSEL FOR THE APPELLANTS

19. Learned counsel for the appellants
submitted that admittedly the village was
divided on caste lines because of Pradhan's
election. The deceased was a history
sheeter and spot inspection confirmed that
there was a gunshot mark on the wall of
Liladhar's
shop,
in
front
of
which
deceased's body was lying. A country made
pistol was noticed in the right hand palm of
the deceased. There is no explanation
rendered by the prosecution in what
circumstances a country made pistol was
noticed in the hand of the deceased and
why there was a gunshot mark on the wall
of the shop. The prosecution is thus guilty
of suppressing the genesis of the incident
therefore, an adverse inference ought to be
drawn against the prosecution. Further, the
ocular account does not inspire confidence,
firstly, with regard to the presence of PW-4
and PW-6, and, secondly, with regard to
the infliction of Bhala injuries on the
deceased more so, because the injuries
found are not referable to a Bhala and,
otherwise also, two persons have been
attributed the role of causing Bhala injury
whereas no punctured wound was found.
The incised wound found could be
referable to a Ballam only, if it had sharp
edges. But the same is not proved by the
description given. Further, incised wound is
solitary; whereas, witnesses say that
multiple blows were inflicted, which
suggests that either none witnessed the
incident or the incident occurred in some
other manner but the FIR was lodged by
guess-work on account of enmity. It has
been submitted that since causing of
gunshot injury, which alone was fatal, has
been attributed specifically to co-accused
Tilak, who is no more alive, and the
evidence in respect of participation of the
surviving appellants in the crime is not
confidence inspiring, it is a fit case where
they be given the benefit of doubt.

SUBMISSIONS ON BEHALF OF THE
STATE

20. Per contra, learned AGA,
submits that this is a case where the
incident occurred in broad daylight; it was
Holi time therefore, if the witnesses were
moving together with the deceased to
extend Holi greetings, the presence of those
witnesses cannot be doubted; that the FIR
4 All. Nathoo & Ors. Vs. State of U.P.
529
was
prompt;
that
during
trial,
the
eyewitnesses
have
supported
the
prosecution case and have disclosed
participation of the surviving appellants
therefore, they have been rightly convicted.
Non-explanation of the country made pistol
in the hand of the deceased is not
detrimental to the prosecution case as there
is no explanation of the accused with
respect to the incident occurring in any
other manner. Further, incised wound can
be caused by a Bhala or a Ballam, if it has
sharp edges therefore, there is no such
discrepancy between the ocular account
and the medical evidence. Learned AGA,
therefore, submits that this is a fit case
where the appeal be dismissed and the
judgment and order of the trial court be
affirmed

ANALYSIS

21. Having considered the rival
submissions and having noticed the entire
evidence led by the prosecution, before
proceeding further, it would be useful to
notice few broad features appearing in the
prosecution evidence with regard to which
there is no issue.