# Omkar Misra v. State of U.P

- **Citation:** (2026) 2 ILRA 264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-24
- **Case number:** Criminal Appeal No. 546 of 2012
- **Bench:** Rajnish Kumar, Zafeer Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omkar-misra-v-state-of-u-p-54240
- **Pages:** 16

## Text

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264 INDIAN LAW REPORTS ALLAHABAD SERIES

(56) The Hon'ble Supreme Court, in the case of Suresh Rai and Others Vs. State of Bihar (Supra),
has held that Inquest Report cannot be treated as substantive evidence but may be utilised for contradicting
the witness of inquest. It has also been held that Inquest Report is prepared by the Investigating Officer to
find out prima facie the nature of injuries and the possible weapon used in causing those injuries as also the
possible cause of death. It is of no assistance to the appellants in the facts and circumstances of the instant
case.

(57) In view of above and considering the over all facts and circumstances of the case, it has been proved
beyond reasonable doubt by the prosecution that the accused/appellants with the common intention and in
furtherance thereof assaulted the deceased with intention of causing death and left the place of incident only after
killing despite the alarm by the witnesses. Thus, on the basis of evidence and material on record and the findings
recorded by the learned Trial Court, this Court does not find any illegality or error in the impugned judgment and
order, which has been passed by a reasoned and speaking order after considering the evidence and material on
records and none of the grounds taken by the appellants are tenable in the eyes of law.

(58) The appeal is misconceived and is liable to be dismissed, which is accordingly dismissed,
upholding the impugned judgment and order passed by the learned Trial Court. The conviction of the
appellants for the offence punishable under Section 302/34 I.P.C. is upheld and the sentence awarded to them
under Section 302/34 I.P.C. is confirmed.

(59) The appellant No.2; Gyanendri (Janendri) and the appellant No.3; Ram Pher had died during
pendency of the appeal, whereas the appellant No.1; Ram Narain and the appellant No.4; Ram Uggar alias
Ram Ugra are on bail, therefore, the appellant No.1; Ram Narain and the appellant No.4; Ram Uggar alias
Ram Ugra are directed to surrender within two weeks from today before the Chief Judicial Magistrate
concerned, who shall send them to jail to serve out the remaining sentence. In case the appellant No.1; Ram
Narain and the appellant No.4; Ram Uggar alias Ram Ugra do not surrender within a period of two weeks
from today, the Chief Judicial Magistrate concerned shall take appropriate steps for arrest of the appellant
No.1; Ram Narain and the appellant No.4; Ram Uggar alias Ram Ugra.

(60) Let a copy of this judgment alongwith the Trial Court's record be transmitted to the Court
concerned forthwith for information and compliance.
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(2026) 2 ILRA 264
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 24.02.2026

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE ZAFEER AHMAD, J.

Criminal Appeal No. 546 of 2012

Omkar Misra ...Appellant
Versus
State of U.P. ...Respondent
2 All. Omkar Misra Vs. State of U.P.
265
Issue for Consideration
Matter pertains to "whether the prosecution has proved the involvement of the appellant in the murder of the
deceased beyond reasonable doubt in light of contradictions in the ocular evidence and other attending
circumstances" (Paras 41, 43, 45)

Headnotes
Indian Penal Code, 1860 - S.s 302/34, 498-A - Murder - Appreciation of evidence - "there is
material contradiction in the prosecution case, as set up in the F.I.R., and the prosecution
witnesses and among themselves and the material on record" - Prosecution case not proved
beyond reasonable doubt. (Paras 43, 41)
Evidence - Ocular testimony - Reliability - "P.W.-1 and P.W.-2 are not reliable as there are
contradictions in their testimony" - Presence of eye-witness doubtful. (Paras 23, 34)
Criminal Trial - Benefit of doubt - "the appellant is entitled for benefit of doubt" - Conviction
cannot be sustained. (Para 41)
Dowry demand - Proof - "the demand of dowry and harassment, on account thereof is not true" -
Motive not established. (Para 27)
Non-production of material witnesses - "Non production of the parents of the deceased creates
serious doubt on the prosecution story" - Adverse inference. (Para 29)
Parity - Similar evidence against co-accused - "Court cannot convict one accused and acquit the
other when there is similar or identical evidence" - Principle applicable. (Para 35)

Held: The prosecution story and the involvement of the appellant in the murder of the deceased, cannot be
said to have been proved beyond reasonable doubt - there is serious doubt on the prosecution story - the
prosecution has failed to prove its case beyond reasonable doubt - The appeal is, accordingly, allowed - The
impugned judgment and order is hereby set aside - The appellant is acquitted." (Para 34,41,45,46) (E-7)

Case Law Cited
Ram Laxman Vs. State of Rajasthan; (2016) 12 SCC 389; Yogarani Vs. State by the Inspector of Police;
Balaram Vs. State of Madhya Pradesh; (2023) SCC OnLine SC 1468; The State of Uttar Pradesh Vs.
Raghuvir Singh; Moniruddin Ahmed alias Lalu Dealer and Others Vs. State of West Bengal; (2010) 12 SCC
238.

List of Acts
Code of Criminal Procedure, 1973; Indian Penal Code, 1860; Dowry Prohibition Act, 1961; Indian Evidence
Act, 1872.

List of Keywords
benefit of doubt; material contradiction; ocular evidence; dowry demand; plea of alibi; reliable witness;
prosecution story; beyond reasonable doubt.

Case Arising From
APPELLATE JURISDICTION: Arising out of "judgment and order dated 27.03.2012 passed by learned
Additional Sessions Judge, Court No.3, Sitapur, in Sessions Trial No. 649 of 2000; State Versus Omkar Mishra
& others"

Appearances for Parties
Advs. for the Appellant:
Shri Aakash Srivastava, learned Counsel for the appellant
Advs. for the Respondents:
Shri R.S. Dwivedi, learned A.G.A. for the State

(Delivered by Hon'ble Rajnish Kumar, J.)
266 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (here-in-after
referred to as "Cr.P.C.") emanates from the judgment and order dated 27.03.2012 passed by
learned Additional Sessions Judge, Court No.3, Sitapur, in Sessions Trial No. 649 of 2000; State
Versus Omkar Mishra & others, arising out of Case Crime No.139 of 2000, under Sections 498A,
302/34 of the Indian Penal Code, 1860 (here-in-after referred to as "I.P.C.") and Section 3/4 of
Dowry Prohibition Act, 1961, Police Station Maholi, District Sitapur, whereby the appellant,
Omkar Mishra, has been convicted under Section 302/34 I.P.C. for life imprisonment and a fine of
Rs.5,000/- and in default of payment of fine, to undergo additional one month's imprisonment.

(2) The prosecution case, in short, is that on 20.05.2000, at 12:30 p.m., complainant, Navin
Kumar Shukla (P.W.1), had lodged a written report at Police Station Maholi, District Sitapur,
alleging that in the year 1994, marriage of his sister (hereinafter referred to as 'victim') was
solemnized with Omkar Mishra (appellant herein) according to Hindu rites and customs, after
giving dowry as per capacity. After marriage, Omkar Mishra, his brother Lallan son of Hari
Shankar, Puttan son of Hari Shankar, Sachidanand son of Hari Shankar and their father
Harishankar, his wife Bitti and wife of Sachidanand have started harassing his sister for not
bringing a Suzuki Motorcycle in dowry. They tortured his sister for not giving a motorcycle in
dowry in such manner that out of fear of her life, his sister had to leave her matrimonial home and
come to live with him. Within two years of marriage, she was compelled to leave her in laws'
house. Even after that many times, Omkar Mishra, Sachidanand and Harishankar came to his house
demanding a motorcycle. When his sister was so terrified due to the continuous harassment for
dowry, then, she had to seek protection from the Court and file a dowry harassment case in the
Court at Sitapur, in which the statement of his sister and other witnesses had already been recorded.
Thereafter, Omkar Nath and his father Harishankar Mishra came to his house and asked him to
withdraw the case and give the motorcycle but due to lack of financial capacity, they could not give
motorcycle to them.

It has further been alleged that on 19.05.2000, at 08:00 in the morning, Omkar Nath,
Sachidanand, Harishankar Mishra and his wife Bitti came to his house and asked him that they
have come last time to his home and if by tomorrow morning, motorcycle would not be send to
their home and they do not come to Court to withdraw the case, then, they will cause them to face
consequences. At that time, his family and sister pleaded a lot from them, but they did not agree.

It has further been alleged that on 20.05.2000, his sister was returning from Primary School,
Kusaila after teaching, sitting on her Bsfy;k (Tricycle loader), upon which he (complainant) and his
uncle Kamlesh Kumar Shukla were also coming to home. Bsfy;k (Tricycle loader) was being
driven by Ganeshi. When Bsfy;k (Tricycle loader) reached near Tara Talab (pond) at about 11:35
p.m., then, Hari Shankar and his wife Bitti, who were already sitting aside the road, suddenly stood
up and stopped the Bsfy;k (Tricycle loader) and Hari Shankar slapped Ganeshi, upon which he
shouted and ran away. In the meantime, Omkar Nath and Sachidanand, waiving pistol in their
hands, arrived and Omkar Nath fired with close range near eye of his sister, upon which he
(complainant) and his uncle Kamlesh raised alarm, then, persons working in the fields, crasher and
ponds, along with people coming on the road and children ran for saving. Then, Omkar while firing
said that if anyone would come forward to save them, he would shoot them as well. At that
moment, Sachidanand pulled down his sister from Bsfy;k and fired a second shot on her back and
2 All. Omkar Misra Vs. State of U.P.
267
overturned Bsfy;k on her. Thereafter, Omkar Nath, Sachidanand and Hari Shankar started firing
indiscriminately, due to which persons working in the field, passerby and school children left their
belongings and ran to save their lives. Both of us (complainant and his uncle) also ran to save their
lives. Thereafter, accused persons waiving pistols in air, ran towards eastern side, consequently,
there was complete silence on the spot and belongings of the passerby etc. are lying at the place,
therefore, and police force should go immediately, otherwise, corpse of his sister could be
disappeared.

(3) On the basis of the aforesaid written report (Ext. Ka-1), which has been scribed by Manoj
Mishra as mentioned in the said report, whereas in the chik F.I.R. the name is mentioned as Pankaj
Misra, bearing Case Crime No. 139 of 2000, under Sections 498-A, 304-B I.P.C. and Section 3/4 of
Dowry Prohibition Act, 1961 was registered at police station Maholi, district Sitapur by Head
Moharrir Iktidar Husain (P.W.4) and the investigation of the case was entrusted to C.O. Shishu Pal
Singh (P.W.5).

(4) The investigating officer C.O. Shishu Pal Singh (P.W.5), on getting information about the
lodging of the aforesaid F.I.R., reached the place of occurrence on the date of the incident. The
Investigating Officer, after keeping carbon copy of chik F.I.R. in G.D., recorded the statement of
the eye-witnesses and complainant Navin Kumar Shukla (P.W.1) under Section 161 Cr.P.C.,
inspected the place of occurrence, prepared the site plan (Ext. Ka.5), collected the blood stained
and plain soil and prepared the recovery memo (Ext. Ka. 6). S.H.O. Parmanand (P.W.6) and other
police personnel reached the place of occurrence for panchanama (inquest) of the dead body of the
deceased. After some time, Tehsildar Harishchandra also reached at the place of occurrence and on
his direction, inquest of the dead body of the deceased was conducted, a letter was prepared for
Reserve Inspector, Police Line, Sitapur seeking permission for post-mortem of the dead body of the
deceased and photo lash, letter to Chief Medical Officer and challan lash were also prepared.

(5) The post-mortem of the deceased was conducted by Dr. V.R. Saxena (P.W.3) at P.A.C.
Hospital, Sitpaur on 21.05.2000 at 11:00 a.m. Dr. V.R. Saxena (P.W.3) found the age of the
deceased about 27 years; probable time of death about one day before the time of postmortem; the
deceased was of average built and height; rigor mortis was passed in upper and was passing in
lower extremities; and PM staining was present on back. He found following ante-mortem injuries
on the body of the deceased :-

1. Firearm wound of entry 7.5 cm x 5 cm x brain deep on forehead and face involving left eye ball just lateral
to root of nose. Margins of wound are inverted and lacerated. Blackening, charring and tattooing present around wound.
Direction front to back.

2. Fire arm wound of Entry 3 cm x 3 cm x chest cavity deep on the left side chest 2.5 cm below and medial to
left inferior angle of scapula. Margins inverted and lacerated. Direction left to right."

In the opinion of doctor, the cause of death was due to shock and haemorrhage as a result of
ante-mortem firearm injuries. The ante-mortem injuries no.1 and 2 could have come by firearm and
the death of the deceased could be possible on 20.05.2000 at 11:35 a.m.

(6) The Investigating Officer, after completion of investigation, submitted the charge-sheet on
17.08.2000 under Sections 498A, 304B I.P.C. and Section 3/4 of the Dowry Prohibition Act, 1961
268 INDIAN LAW REPORTS ALLAHABAD SERIES
against accused Omkar Mishra, Lallan, Puttan, Sachidanand, Hari Shankar, Smt. Bitti and Smt.
Archana.

(7) Learned A.C.J.M.-II, Sitapur took cognizance on the aforesaid charge-sheet and by means
of order dated 03.10.2000, committed the case to the Court of Sessions, where charges against the
accused persons were framed under Sections 498-A, 147, 148, 302/149 I.P.C. and Section 3/4 of
Dowry Prohibition Act, 1961 on 08.07.2003. All the accused persons denied the charges and
prayed for trial.

(8) In order to prove its case, the prosecution produced complainant Naveen Kumar Shukla as
P.W.-1, Ganeshi as P.W.-2, Dr. V.R. Saxena, (who conducted the post-mortem of the deceased) as
P.W.-3, Constable Iktidar Husain (who prepared the chik-F.I.R. on the basis of written report) as
P.W.-4, C.O. Shishupal Singh (Retd.) (Investigating Officer) as P.W.-5 and S.I. Sri Parmanand,
S.H.O., Police Station Baddupur, District Barabanki, (who conducted inquest) as P.W.-6.

(9) In order to prove its case, the prosecution also placed on record and proved written
complaint given by the complainant as Ext. Ka.1, post-mortem of the deceased as Ext. Ka.2, chik
F.I.R. as Ext. Ka.3, carbon copy of G.D. as Ext. Ka. 4, site plan of the place of occurrence as Ext.
Ka. 5, recovery memo in regard to blood stained and plain soil as Ext. Ka. 6, charge-sheet as Ext.
Ka. 7, inquest report as Ext. Ka.8, letter to Reserve Inspector as Ext. Ka. 9, sample seal as Ext.
Ka.10, photo lash as Ext. Ka.11, letter to Chief Medical Officer as Ext. Ka. 12 and Police Form
No.13 as Ext. Ka.13.

(10) The accused persons, in their defense, produced Vijay Kumar Singh as D.W.1, Satyaveer
Tyagi as D.W.2, Ram Gopal Gupta as D.W.3 and Smt. Rampati as D.W.4. Accused persons have
also produced four documentary evidence viz. (1) certificate issued by Parshad (corporator), Nagar
Nigam Gaziabad certifying that accused Sachidanand is residing with his wife Archana on rent in
House No. H.457, Mariyam Nagar, Nand Gram, Ghaziabad w.e.f. January, 1992 to June, 1998 as
Ext. Kha.1; certificate issued by Ram Gopal Gupta, owner of the aforesaid house, certifying that
accused Archana Mishra was residing with children in his house on rent w.e.f. July, 1998 to May,
2004 as Ext. Kha.2; certificate issued by Smt. Ramdhati, resident of Badagaon, Maholi, district
Sitapur, certifying that accused Smt. Suman Bala was residing with family in her house w.e.f.
01.01.1992 to 31.12.1994 as Ext. Kha.3; and certified copy of the statement of victim recorded
under Section 200 Cr.P.C. dated 05.01.2000 in re: Case No. 2350 of 1999 : Smt. Kusum Mishra,
Vs. Omkar Mishra and others, under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 of the
Dowry Prohibition Act, Police Station Maholi, district Sitapur as Ext. Kha.4.

(11) After completion of the evidence of the prosecution, the statement of the accused persons
was recorded under Section 313 Cr.P.C., wherein they denied the occurrence and all of them have
stated that the marriage of Omkar Mishra was solemnized with victim in the year 1992.
Complainant and his family members have lodged false report on account of lust of property of the
victim and feeling of revenge. They also stated that brother of P.W.2-Ganeshi was driving the Jeep
of complainant, therefore, at the instance of complainant, he gave false evidence.
2 All. Omkar Misra Vs. State of U.P.
269

In addition to the aforesaid, accused Omkar has filed written statement, stating therein
that his marriage was solemnized with victim prior to eight years of the incident and before his
marriage, victim was doing teaching job in Sakaran Primary School, which was at a distance of 80
Kms. from his in-laws' house and often she stayed there. He further stated that his one house was at
Maholi. Before marriage, he was looking after the agricultural work while living separately from
the family. He also stated that his wife wanted that he should live with her at Sakran, leaving the
agricultural work, which he could not do, on account of which, disagreement between them
persisted and his wife and her family members became annoyed with him and his family members.
He further stated that after visiting in-laws house for some time, his wife lastly used to reside in
Sakran. He tried to explain her, but due to instigation of his in-laws, she did not listen him. After
three years of this incident, she was transferred to Primary School Kusaila and used to reside in his
in-laws' house. Kusaila was not far from in her in-laws' house, therefore, on number of times, he
tried to explain and also tried to get her back to his house, but on account of old rift, she did not
come nor his in-laws helped him in sending back her in in-laws house. In November, 1999, he told
that he would file a case for restitution under compulsion, upon which she and her family members
got angry and lodged a false case against them. He also stated that he had a scooter prior to
marriage. In May, 2000, unknown persons killed her wife and due to old malice and with intention
to take revenge, he, his father, mother and brothers have falsely been implicated in the case.

Accused Devendra Kumar alias Lalla has stated in his statement under Section 313
Cr.P.C. that he is innocent. He lived in New Delhi along with family w.e.f. 10.06.1991 to
04.10.1995 and was working there in a firm, namely, Special Cables Pvt. Ltd. and thereafter, while
working there, he along with family was staying in Unchagaon village, Ballabhgarh, Haryana for
quite a long time after the incident. He also stated that Sachidanand was also living in Unchagaon
along with him separately while working in Bhivadi w.e.f. June, 1998 till the date of the incident
and wife of Sachidanand Archana and son Abhinav had returned to Sitapur.

Accused Surendra Nath Mishra alias Puttan has also filed a written statement, stating that
before marriage, his wife Suman Bala Mishra was working on the post of B.H.W (Woman) in
Primary Health Centre, Maholi and he used to reside in sub-station Semarawa (Parsehara Gram
Sabha) of Primary Health Centre, Maholi with his wife and son Dipak in the house of Pradhan till
31.12.1994 and w.e.f. 04.01.1995 till after the incident, they resided in Government
accommodation Housing Colony, P.H.C. (Woman). He has no concern with family of Omkar or
Omkar. Being brother, he has falsely been implicated. He is innocent.

Accused Sachindanand has also filed written statement, stating therein that prior to
marriage of Omkar, he was working as Tenning Engineer in Vishwakarma Industries Ltd., Mukund
Nagar, Ghaziabad w.e.f. 25.06.1991. He got opportunity to work in Uttam Industries Engineering
Pvt. Ltd., Rath Road, Ghaziabad in April, 1992, where he worked till 13.11.1995 and by that time,
he used to reside with wife Archana and son Abhinav in Ghaziabad. In November, 1995, he
switched the job and started working in Global Engineering Ltd., Rajendra Place, New Delhi but he
used to reside in Ghaziabad and in June, 1997, he was transferred in Bhivadi unit of this company
and w.e.f. June, 1998 till the incident, he alone resided with his brother Bhailal alias Devendra at
Unchagaon, Ballabhgarh, Haryana. His wife Archana and son Abhinav resided in Ghaizabad till the
end of academic session and thereafter his wife came back to Sitapur along with son Abhinav and
while living therein, admitted his son in Secret Heart. On getting information about the incident, he
reached Maholi on 21.05.2000 at 06:00 a.m., upon which complainant got him arrested from police
270 INDIAN LAW REPORTS ALLAHABAD SERIES
near tempo stand. He has no concern with Omakar and his family members prior to marriage and
after the marriage.

Accused Hari Shankar has also filed written statement, stating therein that before
marriage of Omkar with the victim, he was working in Secondary School, Aurangabad district
panchayat, Lakhimpur. By means of the order of the Additional Secretary, Regional Office,
Allahabad of Board of High School and Intermediate Education, U.P. Board dated 25.04.2000, he
was appointed as Assistant Examiner for examining the answer papers of Social Science. His
examiner number was 00102. He was directed to present at Examiner Centre, Rajkiya Inter College
Lakhimpur on 11.05.2000 at 10:00 a.m. for examining the copy. He was doing the work of
examiner w.e.f. 11.05.2000 to 22.05.2000 between 10:00 a.m. to 05:00 p.m. On 22.05.2000, at
05:00 p.m., he was relieved. He joined his District Panchayat School Higher Secondary School
Aurangabad on 23.05.2000 at 07:00 p.m. Being father of Omkar, he and his wife have falsely been
implicated in the case.

Accused Archana Mishra has also filed written statement, stating therein that his husband
Sachidanand was working in Ghaziabad and she used to live with him there. When her husband
was transferred to Bhivadi, then, on completion of academic session, he came to Sitapur along with
her son Abhinav and admitted her son in Secred Heart and started living there. Her husband was
working in Bhivadi and he resided there along with his brother Lallan alias Devendra in
Ballabhgarh, Haryana. She further stated that she is innocent.

(12) The trial Court, after analyzing and appreciating the evidence on record, found the case of
the prosecution against accused Omkar Mishra under Section 302/34 I.P.C. proved beyond
reasonable doubt and convicted and sentenced him as disclosed in first paragraph of this judgment,
however, acquitted other accused persons from charges framed against them, by means of the
impugned judgment and order dated 27.03.2012. Hence the instant appeal has been filed against the
same by Omkar Nath Mishra.

(13) Learned A.G.A. informed that no appeal either on behalf of the State or the complainant
has been filed against the order of acquittal of other accused persons by means of the impugned
judgment and order dated 27.03.2012.

(14) Heard Shri Aakash Srivastava, learned Counsel for the appellant and Shri R.S. Dwivedi,
learned A.G.A. for the State.

(15) Learned counsel for the appellant submitted that the appellant has wrongly and illegally
been convicted by means of the impugned judgment, whereas no crime has been committed by
him. He further submitted that the appellant has wrongly and falsely been implicated in the case on
account of matrimonial dispute between him and the deceased, in regard to which, a case was also
filed by the deceased and on account of the said dispute, the complainant implicated the appellant
and his family members to get the monetary and service benefits, as the deceased was in
government service. He further submitted that the alleged eye witness i.e. uncle of the complainant,
namely, Kamlesh has not been produced in evidence, which creates serious doubt about the
prosecution story. He further submitted that the thelia, pellets and the weapon of crime have not
been recovered and the learned Trial Court, even after finding that the complainant, who claims to
be an eye witness is not reliable and there are contradictions in the evidence of P.W.-1 and P.W.-2
2 All. Omkar Misra Vs. State of U.P.
271
and the post-mortem also does not support the prosecution case, but relying on their evidence,
convicted the appellant, which could not have been done. He also submitted that all the family
members of the appellant were implicated in the case but, except the appellant, none have been
convicted considering the plea of alibi as they have not been found present on the place of incident.
Therefore, the prosecution story itself is false and not reliable. Thus, learned counsel for the
appellant submitted that the impugned judgment and order is liable to be set aside and the appellant
is liable to be acquitted.

(16) Learned counsel for the appellant relied on the judgment and order dated 23.01.2025
passed in Criminal Appeal No.1588 of 2015; The State of Uttar Pradesh Vs. Raghuvir Singh
and judgment and order dated 23.11.2024 passed in Criminal Appeal No.477 of 2017; Yogarani
Vs. State by the Inspector of Police by the Hon'ble Supreme Court and the judgments rendered in
the case of Ram Laxman Vs. State of Rajasthan; (2016) 12 SCC 389 and Balaram Vs. State of
Madhya Pradesh; (2023) SCC OnLine SC 1468.

(17) Learned A.G.A. vehemently opposed the submissions of learned counsel for the
appellant. He submitted that the appellant has rightly and in accordance with law been convicted by
the impugned judgment by the Trial Court after considering the evidence and material on record.
He further submitted that the prosecution case has been proved by the eye witnesses, which is
corroborated by the injuries sustained by the deceased, therefore, there cannot be any doubt about
the prosecution case. He further submitted that the deceased was wife of the appellant but he has
not lodged any F.I.R., therefore, his conduct also creates doubt on him. He also submitted that
merely because the co-accused persons have been acquitted considering their plea of alibi, the
appellant is not entitled for any benefit of the same and parity is not applicable in the claim of alibi
and the plea of alibi is to be specifically pleaded and proved. He further submitted that the case
laws relied by learned counsel for the appellant are not applicable on the facts and circumstances of
the case. This appeal has been filed on baseless and misconceived grounds, which is liable to be
dismissed. He relied on Moniruddin Ahmed alias Lalu Dealer and Others Vs. State of West
Bengal; (2010) 12 SCC 238.

(18) We have considered the submissions of learned Counsel for the parties and perused the
records.

(19) The deceased was the wife of the appellant. Their marriage was solemnized in the year
1992, which has been shown as 1994 in the F.I.R., as found by learned Trial Court upon
considering the evidence and material on record. On account of matrimonial dispute, the deceased
was living separately. She was in a Government Job as a teacher. Undisputedly, on account of the
matrimonial dispute, a case under Section 498-A, 323, 504, 506 I.P.C. and Section 3/4 of the Dowry
Prohibition Act, Police Station Maholi, district Sitapur; Smt. Kusum Mishra, Vs. Omkar Mishra and
others, filed by the deceased was pending at the time of the incident and on account of the said
dispute, the deceased was residing with her brother i.e. the complainant.

(20) On the date of incident, while the deceased was returning from the school after it was
over, the incident had happened. As per prosecution story, the school of the deceased was from
7:00 AM to 11:30 AM and after the school was over, she was returning home by the thelia, which
272 INDIAN LAW REPORTS ALLAHABAD SERIES
was being driven by P.W.-2, Ganeshi. The said thelia was purchased by the deceased. It has also
been alleged that the complainant and his uncle; Kamlesh were also coming by the said thelia with
the deceased.

(21) The complainant, who appeared as P.W.-1, stated that when they reached near Tara
Talab, the accused Hari Shankar (father-in-law of the deceased) and his wife Bitti, who were sitting
aside the road, stopped the thelia. Hari Shanker slapped Ganeshi, on account of which, he ran away
raising voice. In the meantime, Omkar and Sachidanand, waiving country made pistol in their
hands, came and Omkar put the pistol near the left eye of the deceased and fired, on account of
which, the complainant and his uncle Kamlesh shouted. Then the persons working in the fields,
crushers and pond came on the road and the passer-by and the children ran to save them. Omkar
fired and said that if anybody would come forward to save, he will kill. In the meantime,
Sachidanand pulled down the deceased from thelia and made second fire on her back and subverted
the thelia on her. Thereafter, Omkar, Sachidanand and Hari Shanker started making repeated fires,
on account of which, the persons working in the fields, passer-by and the children of school ran to
save their lives. They both also ran. Thereafter, the accused persons waiving their country made
pistols in their hands ran towards east, on account of which, it was complete silence and the
complainant went to lodge the F.I.R.

(22) The Ganeshi appeared as P.W.-2. He, in his evidence, stated that he used to drive the
thelia of Kusum Mishra, who was a teacher in Kusaila School, and used to take her to school and
bring back daily, whereas the deceased, in her statement under Section 200 Cr.P.C. recorded in
case by her i.e. Ex. Kha-4, had stated that Nandu was driving the thelia. He further stated that on
the date of incident, he had gone to school to leave Kusum Mishra and while returning, her brother,
Naveen and Munna alias Kamlesh were also coming on the thelia, who met him in Kusaila where
they had gone for walking and when they reached near Tara Talab at about 11:30 AM, the accused
persons, Omkar, Sachidanand, Hari Shanker and Bitti came and stopped the thelia. Thereafter he
stated that Hari Shanker and Bitti stopped the thelia. He also stated that Hari Shanker slapped him
and thereafter Omkar made fire in the eye of Kusum by a country made pistol and, thereafter, Hari
Shanker fired in the back (कोख) of the deceased. He further stated that he ran away and hid himself
in the pond and came back near the dead body only when the Inspector had come. He also stated
that the Omkar said to the villagers that if anyone will come near, he would kill him. In crossexamination, he admitted that Nandu is his real brother, who is driver of jeep of Naveen Kumar. He
also stated that he does not know anything about any accused, except their name and killing by
them. He also admitted that he was brought by the complainant for evidence and he has also
engaged an advocate who is standing near him.

(23) In view of above, there is contradiction in evidence of P.W.-1 and P.W.-2 in regard to the
person, who made the second fire by the country made pistol on the deceased because the P.W.-1
stated that the second fire was made by the Sachidanand near the dead body, whereas the P.W.-2
stated that Hari Shanker made the second fire. According to P.W.-1, Hari Shanker stopped the
thelia and slapped Ganeshi, on account of which he ran away, therefore, he cannot be said to be an
eye witness. But Ganeshi, the P.W.-2 states that he ran away after the second fire was made by Hari
Shanker and came back near the dead body only when the Inspector had come and P.W.-1, in his
cross-examination, has stated that he had seen Ganeshi in evening after the incident. He also does
2 All. Omkar Misra Vs. State of U.P.
273
not know about the accused persons and knows only their names and that they have killed. He was
also brought by the complainant for evidence. The complainant has failed to disclose as to how he
and his uncle; Kamlesh reached Kusaila and were coming on thelia. Therefore, presence of P.W.-2
at the place of occurrence is doubtful. It appears that he has been tutored to show him an eye
witness and gave evidence accordingly as he is brother of driver of the complainant.

(24) P.W.-1, complainant stated that his sister; the deceased was married to Omkar Mishra, the
appellant about 7 to 8 years back. He had given the dowry as per his capacity in the marriage but
the appellant and his family members were not happy with the same. They started making demand
of Suzuki motorcycle immediately after marriage but he could not give the motorcycle on account
of the financial condition, therefore, the appellant and his family members used to harass his sister,
therefore, with the fear of murder, his sister left her in-laws' house and started living in his house. It
has also been stated by him that even thereafter the appellant and his family members came to his
house for demanding Suzuki motorcycle, on account of which his sister was so fearful that she filed
a case of harassment, on account of dowry, in the court, which is pending.

(25) A statement of the deceased i.e. wife of the appellant was recorded under Section 200
Cr.P.C. before the learned Trial Court and the same has been placed on record by the defense as
Ex. Kha-4. Perusal of the said statement indicates that the deceased has not stated in her statement,
which was recorded on 05.01.2000, that there was any demand of dowry of Suzuki motorcycle. It
belies the allegations of the complainant that there was any demand of dowry of Suzuki
motorcycle. Even otherwise, the appellant and the co-accused have stated that the appellant had a
scooter at the time of incident and since prior to that, therefore, there was neither any requirement
nor any question arises for demand of motorcycle. Thus, the motive of the incident shown by the
complainant also is not proved. However, in the case of ocular evidence account, the motive is not
of much importance. The learned Trial Court also was of the view that in the case of ocular
evidence, the motive looses its effect and will not have any effect on the prosecution case because
the demand of dowry could only have a motive for the incident. However, the Trial Court, on the
basis of documentary and oral evidence, found that the appellant had scooter.

(26) The P.W.-1, complainant, in his statement, has also stated that his parents were alive but
now they have died. He further stated that the deceased was his eldest sister and she was
B.A./B.T.C. and teacher in a Government School since prior to her marriage. He further stated that
there is a brother about 10 years younger to the said sister and then a sister, who was married about
2.5 to 3 years prior to the incident. He also stated that the marriage of the deceased was got
solemnized by his parents, but now they have died. Thus, learned Trial Court recorded a finding
that the claim of the complainant that he had married his sister as per his capacity and gave the
dowry, is not sustainable because the marriage of the deceased was solemnized by their parents.

(27) P.W.-2, Ganeshi stated in his cross-examination that the parents of the complainant,
Naveen Kumar are alive and residing with him and he had seen them yesterday i.e. a day prior to
the date on which his evidence was recorded, which was recorded after P.W.-1. He further stated
that they are capable of movement and talking. Thus, it is apparent that the complainant was
speaking lie that his parents have died. A copy of his family register was also placed on record by
the defense in proof thereof. Considering it, the learned Trial Court also recorded a finding that it is
274 INDIAN LAW REPORTS ALLAHABAD SERIES
apparent from its perusal that the parents of the complainant are alive and this fact has deliberately
been concealed by him. Thus, upon consideration of evidence of P.W.-1 and P.W.-2 and the
material on record, the learned Trial Court recorded a finding that the demand of dowry and
harassment, on account thereof, by the appellant and his family members, as alleged by the
complainant, is not true. However, it is apparent from the statement of P.W.-1 that the deceased has
been murdered and the question arises as to who killed her which would be decided after
examining the evidence of other witnesses. Thereafter, the learned Trial Court proceeded to
consider the statement of P.W.-2, Ganeshi, which we have dealt above and found that there is
contradiction in the evidence of P.W.-1 and P.W.-2 with regard to the assault made by the accused
persons and the two gun shot fires made because, according to P.W.-1, it was by Sachidanand,
whereas the P.W.-2, Ganeshi has stated that second fire was made by Hari Shanker.

(28) The P.W.-1 has also stated that after second fire made by the Sachidanand, he subverted
the thelia on the deceased and, thereafter, they left the place. The complainant has stated in his
evidence that he has neither removed thelia from the dead body of the deceased nor tried to provide
any medical assistance to her on the ground that as per him she was dead. It has also been stated by
the P.W.-1 that his uncle Kamlesh never returned at the place of incident. He has also not been
produced in evidence.

(29) Upon consideration of evidence of both the witnesses, it is apparent that there is
contradiction in the evidence and conduct of the witnesses is also not natural. Non production of
the parents of the deceased, in evidence to prove the demand of dowry and harassment of the
deceased on account thereof, creates serious doubt on the prosecution story coupled with the fact
that contradictions for demand of Suzuki motorcycle in the evidence of P.W.-1, which is not in the
statement of the deceased before the learned Trial Court in other case by the deceased, a certified
copy of which has been placed on record as Ex. Kha-4, which is considerable and has been
considered by the learned Trial Court also.

(30) P.W.-1 has admitted in cross-examination that he had not seen as to which side, Ganeshi
had gone and he had also not seen the thelia after the incident and blood on it. The non recovery of
thelia from the place of incident and no crusher near the place of incident as admitted by the
Investigating Officer also raises serious doubt on the prosecution story and testimony of the eye
witnesses.

(31) The P.W.-3, Dr. V. R. Saxena has proved the post-mortem conducted by him and the
injuries suffered by the deceased. The aforesaid two injuries were found and there are contradiction
in the manner of assault, which is apparent from the ocular evidence of eye witnesses and the
evidence given by the doctor. According to P.W.-1, the thelia was subverted on the deceased after
second fire but no injuries on account of it has been found. However, the learned Trial Court
recorded a finding that these minor contradictions would not have any adverse effect on the
prosecution case. But it creates doubt on prosecution story.

(32) It has also been mentioned in the FIR that a day prior to the date of incident i.e.
19.05.2000 at about 08:00 AM, the appellant and his family members had come for demand of
dowry and stated that they have come for the last time for it and in case it is not fulfilled by
2 All.