# Puttan @ Shiv Shanker & Anr v. The State of U.P

- **Citation:** (2022) 3 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** Criminal Appeal No. 818 of 1981
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puttan-shiv-shanker-anr-v-the-state-of-u-p-48169
- **Pages:** 24

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
374(2)
-
Indian
Penal
Code,
1860-Sections
302/34,
307/34,
394-challenge
toconviction- a broad daylight murder with
strong
motive-direct
evidence-the
statements of three witnesses PW-1,
PW-2,
PW-3

have
categorically
supported the evidence, which is fully
supported by the medical evidence-no
recovery of any fire-arm weapon is not a
ground to acquit the accused when his
presence, active participation and using
firearm
has
been
established
and
proved-injuries sustatined by deceased
are
result
of
one
weapon-injured
witness
was
not
produced
by
the
prosecution cannot be a ground to throw
out the prosecution case in its entiretyno
independent
witness
had
come
forward to support the prosecution as
there
were
number
of
passengers
present on the bus can hardly prove
fatal to the prosecution case-stomach of
the
deceased
was
found
empty
in
medical examination, determination of
time of death solely with reference to
the stomach contents is not very certain
and
determinative
factor-the
prosecution has proved its case beyond
reasonable
doubt
against
the
appellants-order passed by trial court
convicting the appellants is upheld.(Para
1 to 59)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,849 of 83,206. This is a partial read: ask again with offset=39849 for what follows._

3 All. Puttan @ Shiv Shanker & Anr. Vs. The State of U.P.
145
did not speak a word about recording of
dying declaration. In these circumstances,
if the prosecution chose not to prove the
dying declaration, it can not be said that the
prosecution was prevented from leading
evidence in that regard. Rather, there may
be some reasons which the prosecution did
not want to disclose. Be that as it may, as
we have not been shown any application
from victim's family to recall or call any
witness and there is also no complaint
brought to our notice with regard to
extension of threat, or of coercion, upon the
witnesses to desist from speaking the truth,
we are of the considered view that merely
because the dying declaration was not
proved, the matter does not call for a
retrial.

44. We also examined whether we
should summon the magistrate concerned to
get the alleged dying declaration exhibited.
After examining the issue we have taken a
decision that it would not be appropriate on
our part to summon the magistrate concerned
for the following reasons: (a) that the alleged
dying declaration implicates three persons,
out of which only one is named; (b) that the
one named, is Monu without the suffix
"Thakur" and his parentage is also not
disclosed and even the address is not
complete; (c) that there exists no forensic
evidence such as DNA profiling to connect
the appellant to the crime, if any; (d) that
there is no application moved by any party to
summon the recording magistrate or the
doctor to prove the alleged dying declaration;
and (e) that PW-1, PW-2 and PW-3, namely,
the witnesses of fact, have not supported the
prosecution case as against the appellant and
as per the statement of I.O. (PW-7), during
the course of investigation, affidavits were
given by witnesses exonerating the accusedappellant. Under these circumstances, we do
not deem it necessary to summon the
concerned magistrate to get the alleged dying
declaration exhibited, particularly, when the
prosecution as well as the victim's family
both are not relying on it.

45. In view of the discussion above, as
we have found that there is no worth-while
evidence on record to prove the charges
against the accused-appellant; and that in
absence of proof of foundational facts with
regard to commission of specified offences
punishable under the Act, the benefit of
presumption would not be available to the
prosecution under section 29 of the Act, we
have no hesitation in allowing the appeal and
rejecting the reference. The appeal is
therefore allowed. The judgment and order of
the trial court is set aside. The reference to
confirm the death penalty is rejected. The
appellant is acquitted of the charges for which
he has been tried. He shall be released
forthwith unless wanted in any other case
subject to compliance of the provisions of
section 437-A CrPC to the satisfaction of the
trial court below.

46. Let the lower court record be sent
along with certified copy of the order to the
trial court for compliance.
----------
(2022)03ILR A145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 818 of 1981

Puttan @ Shiv Shanker & Anr. ...Appellants
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
146 INDIAN LAW REPORTS ALLAHABAD SERIES
J.N. Chaudhary, Gaurav Mishra, Rajendra
Prasad Mishra, Sanjay Kumar Srivastava

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
374(2)
-
Indian
Penal
Code,
1860-Sections
302/34,
307/34,
394-challenge
toconviction- a broad daylight murder with
strong
motive-direct
evidence-the
statements of three witnesses PW-1,
PW-2,
PW-3

have
categorically
supported the evidence, which is fully
supported by the medical evidence-no
recovery of any fire-arm weapon is not a
ground to acquit the accused when his
presence, active participation and using
firearm
has
been
established
and
proved-injuries sustatined by deceased
are
result
of
one
weapon-injured
witness
was
not
produced
by
the
prosecution cannot be a ground to throw
out the prosecution case in its entiretyno
independent
witness
had
come
forward to support the prosecution as
there
were
number
of
passengers
present on the bus can hardly prove
fatal to the prosecution case-stomach of
the
deceased
was
found
empty
in
medical examination, determination of
time of death solely with reference to
the stomach contents is not very certain
and
determinative
factor-the
prosecution has proved its case beyond
reasonable
doubt
against
the
appellants-order passed by trial court
convicting the appellants is upheld.(Para
1 to 59)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Rizwan Khan Vs St. of Chhattisgarh (2020) 9
SCC 627

2. St. of H.P. Vs Pardeep Kumar(2018) 13 SCC 808

3. Masjit Tato Rawool Vs St. of Mah. (1971) SCC
(Cr.) 732
4. Gopal Singh Vs St. of U.P. (1979) AIR SC
1932

5. Sheo Dershan Vs St. of U.P., (1972) SCC
(Cr.) 394

6. R. Prakash Vs St. of U.P. (1969) 1 SCC 48 ,
50

7. Shivappa Vs St. of Karn. (1995) 2 SCC 76

8. Jabbar Singh Vs St. of Raj. (1994) SCC Cr.
1745

9. Dhirendra Singh @ Pappu Vs St. of Jharkhand
CRLA No. 580 of 2018

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Puttan, Ram Chandra and Lali
alias Ram Shanker, were tried by the
Sessions Judge, Unnao in Sessions Trial
No. 480 of 1980 : State Vs. Puttan @
Shiv Shanker and Ram Chandra and
Session Trial No. 336 of 1983 : State Vs.
Lali alias Ram Shanker, respectively,
arising out of Case Crime No. 220 of
1980, under Sections 302/34, 307/34 and
394 I.P.C. at police station Achalganj,
District Unnao.

2. Vide judgment and order dated
22.09.1981 passed in Sessions Trial No. 480
of 1980, the Sessions Judge, Unnao, acquitted
the accused persons, Puttan alias Shiv
Shanker and Ram Chandra, for the offence
punishable under Section 307/34 I.P.C.,
however, convicted and sentenced them in
the manner as stated herein below :-

"i. Under Section 302/34 I.P.C. to
undergo imprisonment for life; and

ii. Under Section 394 I.P.C. to
undergo imprisonment of five years
R.I.."

Both the sentences were directed
to run concurrently.
3 All. Puttan @ Shiv Shanker & Anr. Vs. The State of U.P.
147

3. Later on, vide judgment and order
dated 16.03.1984 passed in Sessions Trial
No. 336 of 1983, the Sessions Judge,
Unnao convicted and sentenced co-accused
Lali alias Ram Shanker in the manner as
stated herein below :-

"i. Under Section 302/34 I.P.C. to
undergo imprisonment for life; and

ii. Under Section 394 I.P.C. to
undergo imprisonment of five years R.I.."

Both the sentences were directed
to run concurrently.

4. Feeling aggrieved by the judgment
and order dated 22.09.1981 passed in
Sessions
Trial
No.
480
of
1980,
convicts/appellants,
Puttan
alias
Shiv
Shanker and Ram Chandra have filed
Criminal Appeal No. 818 of 1981, whereas
convict/appellant Lali alias Ram Shanker
has filed Criminal Appeal No. 268 of 1984
against the judgment and order dated
16.03.1984 passed in Sessions Trial No.
336 of 1983.

5. It is pertinent to mention that
during the pendency of the aforesaid
criminal appeals, convict/appellant Lali
alias Ram Shanker of Criminal Appeal No.
268 of 1984 died on 02.12.2018, hence his
appeal stood abated vide order dated
30.01.2019.

6. Now, the instant Criminal Appeal
No. 818 of 1981 filed on behalf of
convicts/appellants
Puttan
alias
Shiv
Shanker and Ram Chandra is surviving
and we proceed to decide the same.

7. The informant Chandra Shekhar
(P.W.1) had lodged the F.I.R., alleging
therein that in the year 1977, his son
Kaushal Kishore was murdered by Puttan,
Moti, Lali, Ram Chandra (accused) and
others. The report of the said incident was
registered by Hari Kishore (deceased) at
police station Achalganj and Hari Kishore
(deceased) was doing pairvi of the said
case. The said case is still going on in
Court. On account of fear, they are residing
at Unnao.

It has further been alleged by
Chandra
Shekhar
(P.W.1)
that
on
21.06.1980, he and his son Hari Kishore
(deceased) had gone to village Padri Kalan
to meet their relative, namely, Krishna
Kumar Misra. On the next morning i.e. on
22.06.1980, he and his son Hari Kishore
(deceased) were returning from roadways
bus, bearing registration No. UTC 9646,
from village Padri Kalan to Unnao. At
about 9 a.m., the said bus stopped near the
grove of one Rajju Shukl, which is one
kilometer north from Padri Kalan, for
boarding of the passenger and issuing
tickets. All of a sudden, Puttan alias Shiv
Shanker, son of Prayag Narayan (convict/
appellant no.1) armed with single barrel
gun, Lali alias Ram Shanker (co-accused)
son of Narayan Lodh, armed with katta
(pistol), Moti Yadav (co-accused) armed
with double barrel gun and Ram Chandra
(convict/appellant no.2) armed with a
pistol, entered the bus from its back door.
After that, they dragged Hari Kishore
(deceased) out of the bus, who was sitting
near the rear gate of the bus and snatched
his licensed gun and his bag containing 25
cartridges, gun licence, wrist watch and Rs.
150/- cash. After that, all the four accused
persons fired upon Hari Kishore (deceased)
with their respective weapons, causing him
injuries. As a consequence, Hari Kishore
(deceased) succumbed to his injuries.

It has also been alleged by
Chandra Shekhar (P.W.1) that the said
incident was witnessed by Munnu Pandey,
son of Shivkanth Pandey, resident of Padri
148 INDIAN LAW REPORTS ALLAHABAD SERIES
Kalan, Sri Chandra Prakash Awasthi
(P.W.3), Laxmikant, son of Ram Shanker
Dixit, and Rajendra alias Raje (P.W.2), son
of Lala Ram Pandey and other passengers
travelling in the said bus. After that, Munnu
Pandey proceeded by the same bus for
treatment.

8. Thereafter, on the day of incident
itself i.e. on 22.06.1980, Chandra Shekhar
(P.W.1) and Krishna Kumar proceeded to
police station Achalganj on a bicycle,
wherein Chandra Shekhar (P.W.1) dictated
the incident to Krishna Kumar, who after
scribing it, handed over the same to
Chandra Shekhar (P.W.1). After reading the
same, Chandra Shekhar (P.W.1) put his
signature thereon and lodged it at police
station Achalganj.

9. The evidence of P.W.5- Dinesh
Kumar shows that on 22.06.1980, he was
posted as Constable Moharrir at police
station Achalganj. On that day, a written
First Information Report was received from
Chandra Shekhar (P.W.1), on the basis of
which, he prepared Chik F.I.R. (Ext. Ka. 6),
which is in his handwriting and signature.
A copy of the said chik F.I.R. was handed
over to Chandra Shekhar (P.W.1). On the
basis of the said F.I.R., case was registered,
entry of which was made in G.D. report
no.16 at 12:30 p.m. He proved the original
copy of G.D. (Ext. Ka-7) which is in his
handwriting and signature. The special
report of the present case was sent through
Constable Shiv Singh at 2.15 p.m., entry of
which was made in G.D. as Report no.18
(Ext. Ka-8) .

In his cross-examination, P.W.5
denied the suggestion that the F.I.R. was
registered
after
investigation.
In
the
General Diary dated 22.06.1980 no other
case was registered apart from the present
case. Report of other crime was registered
in the General Diary at 8.05 p.m. He denied
the suggestion that entries in the general
diary were anti-timed. Till 12 o'clock that
day no constable or inspector returned from
the place of occurrence.

10. A perusal of the chik F.I.R. reveals
that the distance between the place of the
incident and police station Achalganj is 10
miles (16 Kms.). It is significant to mention
that a perusal of the chik FIR also shows
that on it's basis, case crime no. 220 of
1980, under Sections 394, 302, 307 I.P.C.
was registered against Puttan alias Shiv
Shanker, Ram Chandra (appellants), Lali
alias Ram Shanker and Moti Yadav (died
during investigation of the case).

11. The investigation of the case was
conducted by P.W.7- S.I. Shri Hari Krishna
Verma, who, in his examination-in-chief,
had deposed before the trial Court that in
June, 1980, he was posted as Station
Officer at police station Achalganj, District
Unnao. On 22.06.1980, the written report
of the present case was lodged at the police
station in his presence. He deposed that his
signature was also on chik F.I.R. (Ext.
Ka.6). He conducted the investigation of
the present case. He went with the
informant
(P.W.1)
to
the
place
of
occurrence. Since the place of occurrence
was the common way, it was necessary to
reach there.

On reaching the place of incident,
he inspected the dead body and in the
presence
of
witnesses,
he
prepared
Panchayatnama (Ext. Ka.2) of the dead
body in his handwriting and put his
signature thereon, wherein the witnesses
had also put their signature, After that, he
prepared challan lash (Ext. Ka.9), photo
lash (Ext. Ka.10) and letter to C.M.O. (Ext.
3 All. Puttan @ Shiv Shanker & Anr. Vs. The State of U.P.
149
Ka.11) in his handwriting and put his
signature thereon. After that, the dead body
of Hari Kishore (deceased) was sealed on
the spot and sent to the mortuary for postmortem through Constable Konde Ram
along with necessary documents. After that,
he recorded the statement of informant
(P.W.1), inspected the place of occurrence
and prepared the site plan (Ext. Ka.12) in
his handwriting and signature. He found
near the dead body two empty cartridges,
seven pellets, one bullet, one tikli, a piece
of bus ticket from the pocket of the
deceased,
three
coins
of
ten
paisa
denomination and one coin of five paisa
denomination. He recovered these items
and prepared recovery memo (Ext. Ka. 4),
which is in his handwriting and signature.
After that, he took into custody a tericot
pant covered with blood containing marks
of shrapnel, which was taken off from the
body of the deceased. He proved pant (Ext.
I), belt (Ext. II), empty cartridge (Ext. III),
big pellet (Ext. IV), seven small pellets
(Ext. V) and tikli (Ext. VI), which were
found at the place of the incident. He
collected blood stained earth and plain
earth from the place of occurrence under
recovery memo (Ext. Ka.3). After that, he
recorded statement of witnesses Krishna
Kumar, Rajesh Kumar, Chandra Prakash
(P.W.1), Laxmikant and also recorded the
statement of witnesses of Panchayatnama.
In the evening, when he saw the bus no.
UTC 9646 going to Padri Kalan from
Unnao, he stopped it and recorded the
statement of its driver Rajendra Kumar
(P.W.2) and conductor Santosh Kumar.

On 23.06.1980, he searched for
injured Munna Pandey and the accused
persons, but couldn't find either of them.
On 24.06.1980 when he received postmortem report of deceased Hari Kishore, he
recorded it in case diary. He kept searching
for the accused. On the information of
absconding
accused,
he
initiated
proceedings against accused under Section
82/83 Cr.P.C. and on receipt of order, SI
Qamrul Haq served notice for initiating
proceedings under Section 82/83 Cr.P.C.
On 03.07.1980, he received the information
regarding the surrender of accused in the
Court. On 17.07.1980, he recorded the
statement of accused Puttan and Ram
Chandra in the lock-up of the Court. On
06.08.1980, he recorded the statement of
injured Munnu. On 17.07.1980, he came to
know that accused Moti was murdered.
After completion of investigation, he
submitted the charge-sheet (Ext. Ka. 13)
against the accused persons on 02.09.1980.

In
cross-examination,
P.W.7
deposed before the trial Court that witness
Chandra Shekhar (P.W.1) did not give
statement before him that Puttan and Ram
Chandra
had
forcefully
dragged
the
deceased out of bus. This witness had also
not stated that Moti had snatched the bag of
Hari Kishore and Lali had snatched the
gun. The aforesaid witness had also not
stated that all the four accused again fired
upon Hari Kishore. This witness had also
not stated that accused had threatened the
driver, conductor and passengers.

P.W.7 had further deposed that on
22.06.1980,
at
05:30-06:00
p.m.,
he
recorded the statement of witness Raje
(P.W.2). When he reached the place of
incident, about 30-40-50 persons were
present. He did not know that Raje (P.W.2)
was an eye-witness of the incident. As
other witnesses pulled back on account of
panic, therefore, Raje (P.W.2), despite
being an eye-witness, kept him as a witness
of Panchayatnama. He did not think it
appropriate to write this reason in the
Panchayatnama. He denied that FIR was
not
prepared
till
the
time
of
Panchayatnama, therefore, Raje (P.W.2)
was kept as witness of Panchayatnama.
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Raje (P.W.2) did not tell him that one other
passenger had sustained injury in the
incident. Raje (P.W.2) had also not stated in
his statement that Chandra Shekhar (P.W.1)
was also travelling in the said bus. Raje
(P.W.2) had also not stated him that Lali
(co-accused) had snatched the gun and
Moti (co-accused) had snatched the bag.
P.W.2-Raje had also not stated to him that
the accused had threatened the driver,
Chandra
Shekhar
(P.W.1)
and
other
passengers.

P.W.7
has
stated
that
on
22.06.1980, he recorded the statement of
witness Chandra Prakash Awasthi (P.W.3).
This witness had not stated that Chandra
Shekhar (P.W.1) was also travelling from
the said bus because he did not ask. This
witness had stated that he saw Moti (coaccused) armed with double barrel gun,
Puttan (appellant no.1) armed with single
barrel gun, Lali (co-accused) and Ram
Chandra (appellant no.2) armed with katta
(pistol)
were
dragging
Hari
Kishore
(deceased) (Ext. Kha. 1). This witness had
also not stated in his statement that Moti
and Lali (co-accused) had snatched the bag
and gun, respectively. This witness had also
not stated the fact of threatening the driver,
conductor and other passengers by the
accused nor he asked.

P.W.7 had further deposed before
the trial Court that witness Santosh Kumar
Awasthi did not state about rampage or
firing from the back portion of the bus. He
denied that FIR was prepared after due
deliberation and consultation with the
police. On 22.06.1980, he went to Padri
Kalan to search for accused and also search
for the injured. On the same day, he also
searched injured at Unnao. He further
deposed that mention was made in the case
diary about search of the accused but not
about the search of injured. On 23.06.1980,
he went to Padri Kalan to search for
injured, and mention of this was also made
in the case dairy. He denied that effort was
made to make fake injured witness but he
did not succeed. He denied that information
was received at the police station only to
the effect that one person was lying dead on
the road. As the driver and conductor of the
bus did not state about seeing the accused
at the time of the incident, therefore, he did
not find it proper to make identification of
the accused from them.

12. Going backward, the post-mortem
of the dead body of the deceased Hari
Kishore was conducted on 23.06.1980 at
12:00 noon at District Hospital, Unnao by
P.W. 4- Dr. J.N. Bajpai, who found the
following ante-mortem injuries on his
person :-

"Ante-mortem
injuries
of
deceased Har Kishore :

1. Gun shot wound of entry, 1⁄2" x
1⁄2" x brain cavity deep on the right side of
face, 1 inch in front of right ear. Margins
inverted and contused. Blackening and
tattooing present.

2. A gun shot wound of entry,
1/3" x 1/3" x brain cavity deep, on the left
temporal region, with bleeding from left
ear. Margins inverted and contused. No
blackening or tattooing present.

3. A gun shot wound of entry, 1⁄2"
x 1⁄2" x chest cavity deep on the right side of
chest, 2" above right nipple. Blackening
and tattooing present. Margins inverted and
contused.

4. Six gun shot wounds of entry
1/3" x 1/3" x abdominal cavity deep on the
lower part of right side of abdomen in the
right iliac region in an area 3 1⁄2" x 3 1⁄2".
Blackening and tattooing present. Margins
inverted and contused.

5. A gun shot wound of entry, 1
1⁄2" x 1 1⁄2" x abdominal cavity deep on the
3 All. Puttan @ Shiv Shanker & Anr. Vs. The State of U.P.
151
lower part of the right of abdomen, 5"
below umbilicus with loop of lacerated
small intestine protruding from the wound.
Blackening and tattooing present. Margins
inverted and contused.

6. A gun shot wound of entry 1/3"
x 1/3" x chest cavity deep on the left side of
chest in the region of left nipple.
Blackening and tattooing was present.
Margins inverted and contused.

7. A gun shot wound of entry 1/3"
x 1/3" x chest cavity deep on the left side of
chest 3" above injury no.6. Blackening and
tattooing was present.

8. Three gun shot wounds of
entry 1/3" x 1/3" x bone deep on the inner
part of left arm upper half in an area 21⁄2" x
1". No blackening or tattooing present.

9. Ten gun shot wounds of entry,
1/3" x 1/3" x bone deep on the back of left
arm in an area 6" x 4". No blackening or
tattooing present.

10. A gun shot wound of entry, 1"
x 3⁄4" on the back of left arm, 1" above
injury no.9. No blackening or tattooing
present.

11. A gun shot wound of entry
1/3" x 1/3" x muscle deep on the left
scapula.
No
blackening
or
tattooing
present.

12. Four gun shot wounds of
entry 1/3" x 1/3" x chest cavity deep on the
left side of chest, 5" below left armpit.
Blackening and tattooing present.

13. A gun shot wound of entry,
1⁄2" x 1/3" x muscle deep on the outer part
of left buttock. No blackening or tattooing
present.

14. Three gun shot wounds of
entry 1/3" x 1/3" x muscle deep on the left
side of buttock middle part. No blackening
or tattooing present.

15. A gun shot wound of entry 1⁄2"
x 1/3" x muscle deep on the lower part of
left buttock.

As per the opinion of P.W. 4- Dr.
J.N. Bajpai, the deceased died due to coma,
shock and haemorrhage on account of gun
shot injuries.

13. It is significant to mention that
P.W.4-Dr. J.N. Bajpai had reiterated the
aforesaid cause of death of the deceased
and stated before the trial Court that on
23.06.1980, he was posted as Radiologist in
Sadar Hospital, Unnao. On the said date, at
around 12 noon, he conducted post-mortem
examination of the dead body of deceased
Hari Kishore, which was brought in a
sealed condition by Constable Kode Ram
and identified by him. According to him,
the deceased Hari Kishore was aged about
27 years; he died a day ago; the physic of
the deceased was average; rigor mortis was
present in the lower extremities of the dead
body; and there were no signs of rotting on
the dead body. He further deposed that on
internal examination of the deceased, he
found fracture of middle cranial fossa;
fracture base of skull; brain was lacerated;
the third and fourth ribs of the right side of
the chest were fractured; the pleura was
lacerated and contains a litre of fluid; both
lungs were lacerated; pericardium was
lacerated; heart had been torn into pieces;
empty peritoneum was lacerated and
contained a litre of fluid; stomach was
empty; small and large intestines were
lacerated; liver was lacerated on the left
side; spleen was lacerated; and urinary
bladder was lacerated. He further deposed
that nine big shots and eight pieces of
waddings were recovered from the dead
body and sealed and sent to the S.P.,
Unnao. He proved the post-mortem report
(Ext. Ka. 5). He further deposed that the
above injuries were sufficient in the
ordinary course to cause death and there is
a possibility of instant death from such
injuries. The death of the deceased could be
152 INDIAN LAW REPORTS ALLAHABAD SERIES
attributable on 22.06.1980 at around 08:00
a.m.. All the injuries could be caused by
fire arm.

In cross-examination, P.W.4 had
deposed before the trial Court that duration
of death could be between 6-7 hours either
way. The shots containing blackening or
tattooing or wadding could be caused by a
very close range of about 3 feet. The
injuries which did not contain blackening
or tattooing could be caused at a distance of
more than four feet. Since stomach was
found empty it can be said that the
deceased had not eaten any food within
four hours of his death.

14. The case was committed to the
Court
of
Sessions
by
the
Judicial
Magistrate-I, Unnao vide order dated
10.10.1980 and the trial Court charged the
appellants, Puttan and Ram Chandra, for
the offence punishable under Sections
323/34, 307/34, 394 I.P.C. They pleaded
not guilty to the charges and claimed to be
tried. Their defense was of denial.

15. The prosecution in support of it's
case has examined six witnesses, out of
which P.W.1-Chandra Shekhar, who is the
informant and father of the deceased,
P.W.2-Raje, who is the friend of the
deceased
and
P.W.3-Chandra
Prakash
Awasthi, who was travelling in the bus at
the time of the incident, were examined as
eye-witnesses of incident, whereas Dr. J.N.
Bajpai,
who
conducted
post-mortem
examination of deceased Hari Kishore, was
examined as P.W. 4; Constable Moharrir
Dinesh Kumar of police station Achalganj
was examined as P.W. 5; Santosh Kumar,
who was the Conductor of the bus from
which deceased Hari Kishore was said to
have been dragged out and murdered, was
examined as P.W. 6; and Investigating
Officer S.I. Sri Harikishan Verma, who
conducted the investigation and proved
various documents and memos drawn up
by him, was examined as P.W. 7.

16. Reverting to the testimony of the
witnesses of fact, P.W. 1-Chandra Shekhar,
in his examination-in-chief, had stated
before the trial Court that he had four sons,
namely, Kaushal Kishore, Raj Kishore,
Jugul Kishore and Hari Kishore (deceased).
His son Raj Kishore was convicted in the
murder case of Gauri Shanker. Gauri
Shanker was real brother of accused Puttan.
In the year 1977 his son Kaushal Kishore
was murdered and report of said murder
was lodged by his son Hari Kishore
(deceased) against Puttan, Ram Chandra,
Motilal, Lali, Bacchu and others. The said
murder case of Kaushal Kishore was still
going on during the pendency of the
present murder case of Hari Kishore. Hari
Kishore (deceased) who was the witness of
the said murder case of Kaushal Kishore
was doing pairvi. On account of the said
murder case, the accused Puttan and others
were furious with him and therefore, on
account of fear, he and his family left the
village and started residing at Unnao.
Accused Puttan has two brothers, one of
them,
namely,
Gauri
Shanker,
was
murdered and in the said murder case of
Gauri Shanker, son of P.W.1 Raj Kishore
was convicted. The third brother of Puttan
namely, Bacchu alias Prem Shanker is
absconding in the murder case of Kaushal
Kishore.

P.W.1 had further deposed before
the trial Court that the incident was around
a year ago. On 21.06.1980, he and his son
Hari Kishore went to the house of their
relative Krishna Kumar Mishra. There is a
paved road from Padri to Unnao, in which
buses of roadways were plying. The bus
3 All. Puttan @ Shiv Shanker & Anr. Vs. The State of U.P.
153
from Unnao turned near Mangat Khera and
went towards Padri. On 22.06.1980, at
08:30 a.m., he, his son Hari Kishore
(deceased) and Krishna Kumar Mishra
were going to Unnao by roadways bus. His
son Hari Kishore was having gun and bag,
in which 25 cartridges, one watch, 150 cash
and gun license were lying. The bus was
overcrowded. His son Hari Kishore sat
beside window of rear seat of the bus. He
was seated in the left side of middle seat of
the bus. At around 08:30 a.m., the bus left
from Padri to Unnao. After plying about
one kilometer from Choti Padri, the bus
stopped near the grove of Rajju Shukl,
wherein the bus conductor issued the
tickets
to
the
passengers
and
took
passengers on board. When the bus
stopped, Hari Kishore (deceased) started
shouting. At that time, it was around 09:00
a.m. When he looked out of the window, he
saw that at the rear window, accused Putan
and Ram Chandra were forcibly dragging
Hari Kishore (deceased) out of the bus.
Moti Yadav and Lali Lodh accompanied
them. Puttan (appellant no.1) was armed
with single barrel gun. Accused Moti (died
during investigation) was armed with
double barrel gun. Ram Chandra (appellant
no.2) and Lali (co-accused) were armed
with country-made pistols. Accused and his
companion
dragged
Hari
Kishore
(deceased) out of the bus. Moti Yadav (coaccused) snatched the bag of Hari Kishore
(deceased) and Lali (co-accused) snatched
the gun of Hari Kishore (deceased). The
said scuffle occurred on the western side of
the bus and in the said scuffle, Hari Kishore
(deceased), accused and his companions
moved 4-6 steps towards the southern side.
After that, accused Puttan and Ram
Chandra armed with gun and pistol,
respectively, fired a shot upon Hari Kishore
(deceased). The said fire was done by the
accused at a distance of about 11⁄2 hands.
After that, accused Moti and Lali fired
upon Hari Kishore (deceased) with their
respective weapons. After this, all the four
accused persons fired one more shot. Hari
Kishore (deceased) fell there and died.

P.W.1 had further deposed that
among the passengers who were travelling
in the bus, Rajendra Pandey alias Raje
(P.W.2), resident of Bhivani, Chandra
Prakash Awasthi (P.W.3), resident of
Pariyar, who was residing in Unnao at the
time of the incident, Laxmikant, resident of
Bhumbhuwar etc. came out from the bus
and saw the incident. One passenger
Munna Pandey was injured in the incident.
After the incident, the accused threatened
the bus driver to take away the bus from
there and threatened that if anyone gives
evidence against them, then, they will see
to them. After saying this, the accused went
towards Choti Padri. After the accused
persons left, he got down from the bus and
saw Hari Kishore (deceased) had died. He
further deposed that during the incident, he
was inside the bus and witnessed the
incident from window of the said bus. He
did not get down from the bus because of
fear. After around 10 minutes, the bus left
for Unnao. Munna Pandey also went to
Unnao on the same bus and he, thereafter,
did not meet him. After that, he went to
Padri Kalan along with Krishna Kumar and
he left Rajendra, Chandra Prakash and
Laxmikant near the dead body. From Padri
Kalan, he took a cycle and went to police
station Achalganj along with Krishna
Kumar. At Achalganj, his son Yugul
Kishore, who is the master, met him at
chauraha (crossroad), wherein he got a
report written by Krishna Kumar on his
dictation. Whatever he dictated, Krishna
Kumar wrote on the report and after
reading it, he put his signature thereon. He
proved the report (Ext. Ka.1). He, then,
proceeded to police station and lodged the
154 INDIAN LAW REPORTS ALLAHABAD SERIES
said report therein. The senior Munshi
prepared chik report and provided him a
copy of it. After that, he came back to the
place of incident along with the Inspector
from police station. The Inspector prepared
the Panchayatnama of the dead body. Two
empty cartridges were found near the dead
body. After that, the Inspector interrogated
him and he told him the incident.

P.W.1 had further deposed that
accused Moti Yadav was murdered during
the pendency of trial and accused Lali was
absconding. Accused Lali threatened that if
any one adduces evidence against him, he
will kill him. The brother of Puttan,
namely, Bacchu, also gave the same threat.
The witness Rajendra was also threatened
by Bachu, Lali and Mewa Lal and upon
climbing of his house, they fired, on
account of which, his sister died and his
nephew was inured and admitted in the
hospital. On account of this fear, Chandra
Prakash Awasthi (P.W.3) and Laxmikant
were scared to give evidence.

In cross-examination, P.W.1 had
deposed before the trial Court that in the
murder case of Kaushal Kishore, Baggad
was also an accused. Baggad was also
murdered during this case. He denied the
suggestion that he and his son had
murdered Baggad. The murder of Moti was
committed in old judge campus outside the
Court of Gupta Sahab, Additional District
Judge when he was handcuffed and sent to
Jail. The accused of murder of Moti was
caught on spot. He did not know whether
the
said
accused
was
awarded
life
imprisonment or not. He further denied the
suggestion that in the murder of Moti, he
was also arrested by the police of police
station Unnao. It is also wrong to say that
Moti was murdered as revenge for the
murder of Hari Kishore (deceased). He
further denied that he gave money for the
murder of Moti and through him got Moti
murdered and that he was doing pairvi of
him. At what time of the day the accused
climbed the house of Rajendra Pandey alias
Raje (P.W.2) is not known to him. After the
said incident, he never met Raje (P.W.2).
He did not know whether father of Mewa
Lal had written a report in the police station
on 21.06.1981 for robbery at the house of
Mangli, Puttan and one washer-man and
also causing injuries to Sharda Prasad and
sister-in-law of Puttan, in which, he, his son
and witness Raje (P.W.2) were accused. It
is wrong to say that Raje (P.W.2) and his
sister were killed in the same incident. He
further deposed that brother of Raje
(P.W.2), Prabha Shankar is known to him.

The trial of murder of Vijay Ahir
of Umrao Khera was started in the year
1977
against
his
son
Hari
Kishore
(deceased), Raj Kishore and brother of Raje
(P.W.2), Prabha Shankar and that the case
was a false one and the informant himself
stated that he did not lodge the report. He
further stated that it is wrong to say that
due to their fear, the witnesses could not be
produced and they were acquitted. He
further stated that his real brother-in-law,
Ram Shankar, resides at Bhumbhuwar. The
son of Ram Shankar, namely, Laxmikant is
the witness of the said case. The father's
name of Krishna Kumar Mishra, resident of
Padri Kalan, is Pyare Lal Mishra. Krishna
Kumar Mishra is his son-in-law in relation.
He further stated that in his knowledge no
other person related to Krishna Kumar
resides at Padri Kalan. The father of
Munnu, who received injuries during the
incident, was Shiv Kanth, who resides at
Padri Kalan. After the incident he did not
ask the name of bus driver or conductor. He
also did not ask the names of the
passengers travelling in the bus. He did not
get the bus ticket issued till the time of
incident. As the bus stopped, the incident
occurred. He further stated that it was not
3 All. Puttan @ Shiv Shanker & Anr. Vs. The State of U.P.
155
the government stoppage, but the bus used
to stop to issue bus tickets. After they
boarded the bus at Padri Kalan until the
time of incident, no ticket was issued by the
conductor of the bus. He did not get the
fact written that he was seated in the
middle seat of the bus. He did not tell the
said fact as the Inspector did not ask him.

At the time of incident, when he
first saw Hari Kishore (deceased), he was
being dragged out of the bus by the accused
persons and his one leg was inside and
another leg was outside the bus. At that
time neither he nor Krishna Kumar or
Laxmikant tried to save him. He did not
alight from the bus on account of fear. He
asked for help from other passengers of the
bus, but none of them came forward. He
did not remember whether the fact, that
Puttan and Ramchandra forcibly dragged
the deceased outside the bus, was written in
the report or not, but he told it to the
Inspector. He did not tell why the Inspector
did not write the said fact in his statement.
Puttan and Ramchandra were armed with
weapons in one hand and by the other hand,
they
were
dragging
Hari
Kishore
(deceased) out of the bus. His son in order
to save himself was pulling himself
towards other side, but the accused persons
were dragging him outside. When his son
was dragged out of the bus, he carried a
bag and gun. He did not remember whether
in the said scuffle, clothes of Hari Kishore
(deceased) were torn or not. During the
scuffle, the gun and bag did not fall from
his hand. While giving statement to the
Inspector, he stated that Moti snatched the
bag of Hari Kishore (deceased) and Lali
snatched the gun. He did not tell the reason
as to why the same was not written in his
statement. After snatching the bag, Moti
hold it in his hand and did not put on the
floor. After snatching the gun, Lali held the
gun in his hand. When the accused shot
fire, Hari Kishore was in standing position.
He further deposed that first the accused
had caught him, then left him and opened
fire upon him. He did not remember
whether Hari Kishore (deceased) fell after
the first fire or not. He could not say after
how many shots were fired during the
firing, Hari Kishore fell on the ground.
When
Ram
Chandra
and
Puttan
(appellants) had fired initially, the face of
Hari Kishore (deceased) was on the west
side and the killers were facing west. From
which side Moti and Lali fired, he could
not say surely but they fired from the side.
He did not remember whether it was
written in the report that the first shot was
fired
by
Ram
Chandra
and
Puttan
(appellants). If it was not written, he could
not tell the reason thereof. It was not
written in the report about firing again by
the four accused, but he told the Inspector
and why the same was not written in his
statement, he could not give any reason
thereof. After the incident, it was not
considered appropriate to get written in the
report that the accused threatened the bus
driver, conductor and other passengers. He
told the Inspector, but why he did not write
this thing, he could not give any reason
thereof. The accused had not opened any
fire inside the bus. Mannu Pandey (injured)
was standing 8 steps east-south outside the
bus from his son when he got hurt.

P.W.1 had further deposed that
when he alighted the bus, he did not have
any conversation with Mannu Pandey
(injured). He didn't have any own items. He
didn't have a towel or anything to change
after taking a bath. He did not remember
whether he had written in the report
''Krishna Kumar watching the incident' or
not. He could not give any reason why it is
not in his report. He did not tell in his
statement to the Inspector that the incident
was seen by Krishna Kumar. He had seen
156 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused from which direction they had
fled away. He did not remember whether
the direction of the accused' escape was
written in the report or not or whether he
had told the same to Inspector. He could
not give any reason why the Inspector did
not write this in his statement. When the
Inspector was preparing the site plan, then,
the direction of the accused' escape was
shown. After the incident, he stayed at the
spot for 20-25 minutes. He and Krishna
Kumar went to Krishna Kumar's house
together from the place of incident. Around
half an hour took place to reach Krishna
Kumar's house. He went to the police
station Achalganj on a cycle from Krishna
Kumar's house. He stayed around 15
minutes at Krishna Kumar's house. The
police station Achalganj is 7 miles from
Krishna Kumar's house. He did not try to
write a report even in Padri Kalan. The
matter of writing the written report was
thought on reaching Achalganj. The written
report was scribed by sitting 1-11⁄2 furlong
from the police station. It would have taken
a total of 15 minutes to write the report.
They stayed at the police station for about
half an hour. His signature was taken on the
report at the police station and not on any
paper. He gave the same written report to
Munshi at the police station. He stayed on
the spot with the inspector till 11 o'clock in
the night. He did not come to Unnao with
the corpse. He did not remember whether
he had signed any paper at the scene of the
incident or not. After 3-4 days of the
incident, he met the Inspector again. He did
not remember whether he (Inspector) got
him to sign some papers at that time or not.