# Raj Guru and Ors v. State

- **Citation:** (2014) 3 ILRA 1177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-31
- **Case number:** Criminal Appeal No. 18 of 1986
- **Bench:** Arun Tandon, Akhtar Husain Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-guru-and-ors-v-state-43121
- **Pages:** 13

## Headnote

Cr.P.C. Section 374 (2)-Criminal Appealagainst conviction life imprisonment-under
Section 302 read with 34 IPC-on ground of
matterial contradictions between version
of FIR and prosecution witness, delayed
FIR based on connected prosecution storyheld-from evidence available on record-all
prosecution witnesses being trustworthyhaving no ground to disbelieve themconsidering entire evidence as well as all
aspects relevant points for determination
of case-conclusion drawn by Trail Court
based on judicious analysis as per verdict
of Apex Court-rightly placed reliance upon
prosecution
witness-no
ground
for
interference made out-Appeal dismissed.
Held: Para-79
Perusal of impugned judgement and
order passed by trial court shows that
trial court has gone through entire
evidence available on record and has
considered all aspects and relevant
points for determination of the case at
length.
The
conclusions
drawn
and
findings recorded by trial court are based
on
judicious
analysis
of
facts
and
evidence in the light of various judicial
pronouncements of Hon'ble Apex Court.
Case Law discussed:
AIR 2011 SC 255; (2009) 14 SCC 494;(AIR
2009) SC 2573); 2010 Cri. L.J. 3889 (SC);
2012 (IV) SCC 124; AIR 2011 S.C. 280; (2008)
1 SCC (Cri.) 91; A.I.R. 2011 S.C. 255; A.I.R.
2011 S.C. 280; 1977 Cr.L.J. 642 SC; (2010) 13
SCC 657; A.I.R. 2009 SC 152.

## Text

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3 All]. Raj Guru and Ors. Vs. State
1177
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.10.2014
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Criminal Appeal No. 18 of 1986
Raj Guru and Ors.
Appellants
Versus
State
..Opp. Party
Counsel for the Petitioner:
Sri Pratap Narain Misra, Sri Brijesh Sahai,
Sri Janardan Yadav
Sri Narendra Kumar, Sri Rajiv Lochan
Shukla, Sri S.K. Dubey
Counsel for the Respondents:
A.G.A., Sri S.M. Mishra
Cr.P.C. Section 374 (2)-Criminal Appealagainst conviction life imprisonment-under
Section 302 read with 34 IPC-on ground of
matterial contradictions between version
of FIR and prosecution witness, delayed
FIR based on connected prosecution storyheld-from evidence available on record-all
prosecution witnesses being trustworthyhaving no ground to disbelieve themconsidering entire evidence as well as all
aspects relevant points for determination
of case-conclusion drawn by Trail Court
based on judicious analysis as per verdict
of Apex Court-rightly placed reliance upon
prosecution
witness-no
ground
for
interference made out-Appeal dismissed.
Held: Para-79
Perusal of impugned judgement and
order passed by trial court shows that
trial court has gone through entire
evidence available on record and has
considered all aspects and relevant
points for determination of the case at
length.
The
conclusions
drawn
and
findings recorded by trial court are based
on
judicious
analysis
of
facts
and
evidence in the light of various judicial
pronouncements of Hon'ble Apex Court.
Case Law discussed:
AIR 2011 SC 255; (2009) 14 SCC 494;(AIR
2009) SC 2573); 2010 Cri. L.J. 3889 (SC);
2012 (IV) SCC 124; AIR 2011 S.C. 280; (2008)
1 SCC (Cri.) 91; A.I.R. 2011 S.C. 255; A.I.R.
2011 S.C. 280; 1977 Cr.L.J. 642 SC; (2010) 13
SCC 657; A.I.R. 2009 SC 152.
(Delivered by Hon'ble Akhtar Husain Khan, J)
1. Accused-appellants Raj Guru Mishr,
Gorakh Dubey and Paras Dubey have filed
this criminal appeal under Section 374 (2)
Cr.P.C. against judgement and order dated
23.12.1985 passed by Sessions Judge,
Azamgarh in Session Trial No. 463 of 1983
(State Vs. Raj Guru and others), under
Sections 302/34 I.P.C., P.S. Kandhrapur,
District Azamgarh whereby learned Sessions
Judge has convicted accused-appellants Raj
Guru, Gorakh Dubey and Paras Dubey for
offence punishable under Section 302 I.P.C.
read with Section 34 I.P.C. and sentenced
each of them to imprisonment for life
thereunder.
2. Accused-appellant Gorakh Dubey
is reported dead. Appeal abated in respect
of him.
3. Sri Brijesh Sahai and Sri Rajiv
Lochan Shukla, learned counsel appeared
for accused-appellants and Sri Narendra
Kumar Singh Yadav, learned AGA
appeared for the State respondent as well
as Sri S.M. Mishra, appeared for
complainant.
4. We have heard learned counsel
for the parties and perused the record.
5. According to first information
report Ex. Ka-1 in brief prosecution case
1178
 INDIAN LAW REPORTS ALLAHABAD SERIES
is that complainant Jagdamba Dubey son
of Sri Dudh Nath Dubey is resident of
village Kapsa, P.S. Kandhrapur, District
Azamgarh. On the date of occurrence i.e.
on 11.5.1981 at about 7 p.m. after sunset,
complainant Jagdamba Dubey was going
along with Shesh Nath Dubey and Durga
Prasad Dubey @ Keertan Dubey of his
own village and one Maheep Pasi resident
of
village
Kohadi
Khurd
to
see
Dwarpooja in village Chevta. At the same
time, Ram Prakat Dubey was coming
from Jhajhava Pokhar towards his house
and in the east of said Pokhar accused
Gorakh Dubey and Paras Dubey were
standing towards west in their Chak along
with co-accused Raj Guru Mishr. As soon
as Ram Prakat Dubey came at Chak road
suddenly said three accused began to
assault him, after having encircled him.
Ram Prakat Dubey sustained injuries of
bomb blast, Katta and Lathi.
6. According to F.I.R. Ex. Ka.-1,
accused-appellant Gorakh Dubey had
Bomb in his hand, accused-appellant
Paras Dubey had Katta and accusedappellant Raj Guru had Lathi.
7. According to F.I.R. Ex. Ka-1,
when complainant and other persons
accompanying him raised alarm accused
appellant ran towards south, thereafter,
other persons came on spot and arranged
to send injured Ram Prakat Dubey to
Sadar Hospital for medical treatment.
Thereafter, complainant Jagdamba Dubey
went to P.S. Kandhrapur and presented
written report i.e. Ex. Ka.-1.
8. In first information report (Ex.
Ka-1) a note has been written that due to
fear, complainant did not go Kandhrapur
straightway, he went to Kaptanganj
through canal and in Kaptanganj due to
unavailability of conveyance delay has
been caused in reaching P.S. Kandhrapur.
9.
On the basis of first information
report (Ex. Ka-1) Crime No. 99 of 1981,
under Section 307 I.P.C. was registered in
P.S. Kandhrapur on 11.5.1981 at 22.00 p.m.
against accused Gorakh Nath Dubey, Paras
Dubey and Raj Guru Mishr. On 12.5.1981,
an information was received from Sadar
Hospital to P.S. Kotwali, Azamgarh
regarding death of injured Ram Prakat
Dubey. Thereafter, an information was sent
to P.S. Kandhrapur through R.T. Set by P.S.
Kotwali regarding death of injured Ram
Prakat Dubey whereupon crime was
converted into Section 302 I.P.C. on
12.5.1981 and entry of conversion of crime
was made in Rapat No. 17 of G.D. Dated
12.5.1981 of P.S. Kandharapur.
10. Inquest report of deceased Ram
Prakat Dubey was prepared by police of
P.S. Kotwali and dead body was sent for
post-morterm in sealed cover, after having
complete necessary formalities.
11. Investigation was completed by
police of P.S. Kandharapur in accordance
with law and after having completed
investigation police submitted chargesheet against all accused under Sections
307 and 302 I.P.C. whereupon concerned
Magistrate took cognizance and after
compliance of Section 207 Cr.P.C.
committed the case to the Court of
Session for trial of all accused. Thereafter
Sessions Trial No. 463 of 1983 was
registered in the Session Court of District
Azamgarh.
12.

Learned
Sessions
Judge,
Azamgarh framed charge against accused
Raj Guru Mishra, Gorakh Dubey and
Paras Dubey for offence punishable under
3 All]. Raj Guru and Ors. Vs. State
1179
Sections 302 read with Section 34 I.P.C.
All the accused pleaded not guilty and
claimed to be tried.
13. Prosecution examined P.W. 1,
complainant Shesh Nath Dubey, P.W. 2,
Durga
Prasad
Dubey,
P.W.
3,
complainant Jagdamba Dubey, P.W. 4 Dr.
K.S. Mishra, P.W. 5 Head Moharrir
Achhaibar dubey, P.W. 6, Head Constable
Mishri
Lal
Gupta
and
P.W.
7,
Investigation Officer Sahdeo Mishra
(S.I.).
14. After prosecution evidence
statement of all accused were recorded
under Section 313 Cr.P.C. All of them
stated that they have been falsely
implicated due to enmity. No evidence
was adduced on behalf of accused in
defence.
15.

Learned
Sessions
Judge,
Azamgarh heard the arguments of both
the
parties
and
passed
impugned
judgement and order dated 23.12.1985
whereby he has convicted and sentenced
accused-appellants as mentioned above.
16. Learned counsel for the accusedappellants contended that the accusedappellants are innocent and has been
falsely implicated.
17. Learned counsel for the accusedappellants contended that the medical
evidence and post-morterm report are
inconsistent with the version of F.I.R.
18. Learned counsel for the accusedappellants contended that there is material
contradiction between version of F.I.R.
and statement of witnesses of fact and
occurrence.
19. Learned counsel for the accusedappellants further contended that F.I.R. is
delayed
and
prosecution
story
is
concocted.
20. Learned counsel for the accusedappellants contended that witnesses of
occurrence examined by prosecution are
related to deceased Ram Prakat Dubey.
Their testimony may not be relied to
convict the accused appellant.
21. Learned counsel for the accusedappellants prayed that appeal should be
allowed and all accused-appellants should
be acquitted.
22. Learned AGA contended that
conviction and sentence recorded by trial
court is in accordance with evidence and
law. There is no sufficient ground to
interfere in the impugned judgement and
order passed by the trial court.
23. Learned AGA prayed that appeal
should be dismissed.
24. We have considered the
submissions made by the parties.
25.

Out
of
seven
witnesses
examined by prosecution, P.W. 1 Shesh
Nath Dubey, P.W. 2 Durga Prasad Dubey
and P.W. 3 complainant Jagdamba Dubey
are witnesses of fact and occurrence.
These witnesses have supported version
of prosecution in their statements on oath
with variation. All of them have stated
that accused-appellant Raj Guru assaulted
deceased Ram Prakat Dubey with Lathi
while accused-appellant Paras Dubey
assaulted deceased Ram Prakat Dubey
with Katar. They have stated that
accused-appellant Paras Dubey had Katta
1180
 INDIAN LAW REPORTS ALLAHABAD SERIES
in his left hand and Katar in his right hand
but used Katar for causing injury to
deceased Ram Prakat Dubey. All of them
have stated that accused-appellant Gorakh
had bomb in his hand. All of them have
stated that Katta (country made pistol)
and bomb were used for threatening. P.W.
3 Jagdamba Dubey, complainant has
proved first information report (Ex. Ka-1)
also in his statement.
26. P.W. 4 Dr. K.S. Mishra has
stated on oath that on 12.5.2981, he was
posted as Medical Officer in District
Hospital, Azamgarh. On that date at 4.00
p.m. he conducted post-morterm of
deceased Ram Prakat Dubey son of Lallan
Dubey, resident of village Kapsa, Police
Station Kandharapur. The dead body was
identified
by
Constable
No.
160
Bhrigunath Yadav, P.S. Kotwali.
27. P.W. 4 Dr. K.S. Mishra has
proved post-morterm report of deceased
Ram Prakat Dubey (Ex. Ka-2). He has
stated in his statement that the death of
deceased Ram Prakat Dubey might have
occurred on 11.5.1981 at about 10.30 p.m.
He has further stated that anti-morterm
injuries found on his body were sufficient
to cause death in ordinary course. P.W. 4
Dr. K.S. Mishra has stated in his
statement on oath that inquest report of
deceased Ram Prakat Dubey, Challan
Nash, Photo Nash, letter to C.M.O., letter
of information regarding death of Ram
Prakat Dubey and copy of G.D. dated
12.5.1981 of P.S. Kotwali were received
along with dead body and on the said
papers, he had signed. Trial court has
marked (Ex. Ka-3 to Ex. Ka-8) on said
papers.
28.

P.W.
5
head
Moharrir,
Achhaibar Dubey has stated in his
statement on oath that on 12.5.1981, he was
posted as Head Moharrir at P.S. Kotwali
Azamgarh. He has stated that on that date at
7.10 a.m. Ram Subodh, Ward Boy
presented memo dated 11.5.1981 regarding
death of Ram Prakat Dubey son of Lallan
Dubey resident of Kapsa, P.S. Kandharapur,
District Azamgarh. He made entry of said
memo in G.D. He has proved copy of the
said G.D. as Ex. Ka-8).
29. P.W. 6 Head Constable Mishri Lal
Gupta has stated in his statement that on
11.5.1981 he was posted as Head Constable
at P.S. Kandharapur. He has stated that on
that date at 22.00 p.m., complainant
Jagdamba Dubey presented written report
(Ex. Ka-1) in P.S. Kandharapur on the basis
of which he registered Crime No. 99 of
1981 under Section 307 I.P.C. and prepared
Chick report (Ex. Ka-9). He has stated that
at the same time he made entry regarding
registration of Crime in G.D. He has proved
copy of G.D. relating to registration of
crime (Ex. Ka-10) also.
30. P.W. 6, Head Constable Mishri
Lal Gupta ha stated that chick F.I.R. (Ex.
Ka-9) bears signature of S.I. Sahdeo
Mishra also. He has stated that Sahdeo
Mishra had been entrusted investigation.
P.W. 6, Head Constable Mishri Lal Gupta
has further stated that on 12.5.1981, an
information was received by R.T. Set to
his police station from P.S. Kotwali that
injured Ram Prakat Dubey has died
whereupon crime under Section 307
I.P.C. was converted into Section 302
I.P.C. and an entry was made in G.D. He
has proved copy of G.D. regarding
conversion of crime (Ex. Ka-11) also.
31. P.W. 7 I.O., Sub Inspector
Sahdeo Mishra, has stated in his statement
that on 11.5.1981, he was posted as Station
3 All]. Raj Guru and Ors. Vs. State
1181
Officer at P.S. Kandharapur. Crime No. 99
of 1981 under Section 307 I.P.C. was
registered on 11.5.1981 at his police station
and he took investigation into his hand. He
recorded statement of complainant Jagdamba
Dubey and went to place of occurrence. He
searched the accused but could not trace
them. Thereafter, on 12.5.1981, he recorded
statement of witnesses Mahesh Pasi and
Shesh Nath Dubey and inspected place of
occurrence. He has proved site plan of place
of occurrence (Ex. Ka-12) in his statement.
32. P.W. 7, S.I. Sahdeo Mishra has
stated in his statement that he took Blood
stained earth and plain earth from the
place of occurrence and kept in sealed
container. He recovered a peace of Lathi
as well as blood stained residue of Lathi
and kept in sealed cover. He has further
stated that one fired cartridge was also
recovered from the place of occurrence.
He has stated that four broken teeth were
also
recovered
from
the
place
of
occurrence. He kept all the said articles
recovered from the place of occurrence in
sealed cover and prepared recovery memo
of all above articles (Ex. Ka-13).
33. P.W. 7, S.I. Sahdeo Mishra has
stated in his statement that he made
search of houses of accused-appellant
Gorakh, Paras and Raj Guru and prepared
search memos (Ex. Ka-14 and 15).
34. P.W. 7 Sahdeoi Mishra has stated
in his statement that he went to Sadar
Hospital, Azamgarh on the same day and
recorded statement of Durga Prasad Dubey
@ Keertan Dubey son of deceased.
35. P.W. 7 S.I. Sahdeo Mishra has
stated that the case was converted into
Section
302
I.P.C.
on
receiving
information regarding death of Ram
Prakat Dubey.
36. P.W. 7 S.I. Sahdeo Mishra has
stated that on 13.5.1981 he made search
of accused-appellant and executed process
under Sections 82 / 83 Cr.P.C.
37. P.W. 7 S.I. Sahdeo Mishra has
stated that he completed investigation in
accordance with law and submitted
charge-sheet
against
accused
Paras
Dubey, Gorakh Dubey and Raj Guru. He
has proved charge-sheet (Ex. Ka.14) in
his statement.
38. All the accused appellants have
stated in their statements under Section
313 Cr.P.C. that they have been falsely
implicated .
39.

Accused-appellant
Gorakh
Dubey (now deceased) has stated in his
statement under Section 313 Cr.P.C. that
they
have
enmity
with
P.W.
3
complainant Jagadamba Dubey. They
have no enmity with deceased Ram Prakat
Dubey. Jagadamba Dubey has falsely
implicated them due to animosity.
40. We have examined the evidence
in the light of contentions of parties.
41. In F.I.R. it has been mentioned
that accused appellant Gorakh Dubey had
bomb in his hand, accused Paras Dubey
had Katta and accused Raj Guru had
Lathi. But in statements on oath before
trial court all the three witnesses of fact
and occurrence, namely, P.W. 1 Shesh
Nath Dubey, P.W. 2 Durga Prasad Dubey
and P.W. 3 Jagdamba Dubey have stated
that accused Raj Guru had Lathi, accused
Gorakh Dubey had bomb and accused
1182
 INDIAN LAW REPORTS ALLAHABAD SERIES
Paras Dubey had Katta in his left hand
and Katar in his right hand. Defence has
given suggestion to P.W. 7 I.O. Sahdeo
Mishra, S.I. in cross-examination that
after post-morterm he has introduced
Katar in the hand of accused Paras Dubey
in statements of witnesses recorded under
Section 161 Cr.P.C. P.W. 7 S.I. Sahdeo
Mishra has negatived the suggestion of
defence. P.W. 7 Sahdeo Mishra has stated
in examination-in-Chief that he recorded
statement
of
complainant
P.W.
3
Jagdamba Dubey under Section 161
Cr.p.C. just after registration of crime and
went to place of occurrence. He has
further stated in examination-in-chief that
he recorded statement of P.W. 1 Shesh
Nath Dubey on 12.5.1981 and on the
same day he went to Sadar Hospital and
recorded statement of P.W. 2 Durga
Prasad Dubey. In cross-examination he
has stated that he recorded statement of
Durga Prasad Dubey P.W. 2 on 12.5.1981
at 3.00 p.m. Post-morterm of deceased
Ram Prakat Dubey has been conducted on
12.5.1981 at 4.00 p.m. Thus it is apparent
that statements of P.W. 1 Shesh Nath
Dubey, P.W. 2 Durga Prasad Dubey and
P.W. 3 complainant Jagdamba Dubey
have been recorded by S.I., P.W. 7
Shahdeo Mishra before post-morterm of
deceased and all of the said witnesses
have stated in their statements recorded
under Section 161 Cr.P.C. that accused
Paras Dubey had Katar also. Thus it is
apparent that these witnesses have not
introduced Katar for first time before
Court. Katar has been stated by P.W. 3
complainant Jagdamba Dubey in his
statement recorded under Section 161
Cr.P.C. immediately after registration of
F.I.R. There is no sufficient ground to
believe that statements of witnesses
recorded under Section 161 Cr.P.C. are
anti time. Illustration (e) of Section 114 of
Evidence Act provides that court may
presume that "the judicial and official acts
have
been
regularly
performed."
Therefore, under Section 114 of Evidence
Act presumption arises that case diary has
been properly maintained by I.O.
42. In view of facts mentioned
above, we are of the view that nonmentioning of Katar in the hands of
accused appellant Paras Dubey in F.I.R. is
an
accidental
slip
or
mistake
of
complainant P.W. 3 Jagdamba Dubey and
merely on this ground prosecution case
should not be discarded.
43. P.W. 1 Shesh Nath Dubey has
stated that all the accused encircled Ram
Prakat Dubey and accused Raj Guru
began to assault him with Lathi. Having
received injuries Ram Prakat Dubey fell
down then accused Paras Dubey, who had
Katta in his left hand and Katar in his
right hand assaulted him with Katar. He
has further stated that accused Gorakh
Dubey gave threatening by show of bomb
and said who ever come forward, he shall
be killed. P.W. 1 Shesh Nath Dubey has
further stated in his statement on oath that
when after having heard noise Jagat
Pradhan, Jangali Singh and Dalsingar
Yadav began to come from the village the
accused fired with Katta and thrown
bomb and ran away towards south.
44. P.W. 2 Durga Prasad Dubey has
stated in his statement on oath before trial
court that all the three accused encircled
his father now deceased Ram Prakat
Dubey and Raj Guru began to assault him
with lathi. His father fell down after
having received injuries then accused
Paras assaulted him with Katar. P.W. 2
Durga Prasad Dubey has further stated
that accused Paras had Katta in his left
3 All]. Raj Guru and Ors. Vs. State
1183
hand and Katar in his right hand. He has
further
stated
that
accused
Paras
threatened by Katta and stated who ever
come forward, he shall kill him. P.W. 2
Durga Prasad Dubey has stated in his
statement that accused Gorakh Dubey had
bomb in his left hand and was making
exhortation. P.W. 2 Durga Prasad Dubey
has stated in cross-examination that his
father was caused injuries not with bomb
and Katta but threatening were given by
bomb and katta.
45. P.W. 3 Jagdamba Dubey has
also stated in his statement that accused
Paras Dubey, Gorakh Dubey and Raj
Guru encircled Ram Prakat Dubey and
accused Raj Guru began to assault him
with lathi. Ram Prakat Dubey fell down
after
having
received
injuries
then
accused Paras Dubey assaulted him with
Katar. He has further stated that Paras
Dubey was threatening by Katta and said
that who ever come, he shall be killed.
P.W. 3 Jagdamba Dubey has stated in his
statement that accused Gorakh Dubey had
bomb in his hand and he was making
exhortation and was saying that who ever
come he shall be killed. P.W. 3
complainant Jagdamba Dubey has stated
in cross-examination at page 12 (page 66
of paper book) that he had seen accused
Gorakh
Dubey
throwing
bomb
on
deceased Ram Prakat Dubey. He has
further stated in cross-examination on the
same page that he has seen Paras Dubey
making fire with Katta at Ram Prakat
Dubey.
46. Description of statements of
P.W. 1 Shesh Nath Dubey, P.W. 2 Durga
Prasad Dubey and P.W. 3 Jagdamba
Dubey mentioned above shows that all of
them have stated that accused Raj Guru
Mishr had Lathi, accused Gorakh Dubey
had bomb and accused Paras Dubey had
Katta and Katar both but Ram Prakat
Dubey (now deceased) was caused
injuries by Lathi and Katar. All of them
have stated that Katta and Bomb were
used for threatening. Statement of P.W. 1
Shesh Nath Dubey and statement of P.W.
3
complainant
Jagdamba
Dubey
mentioned above, clearly show that bomb
was thrown and katta was fired.
47. Recovery memo (Ex. Ka-13) as
well as statement of P.W. 7 Investigating
Officer, S.I. Sahdeo Mishra shows that
fired cartridge as well as broken piece of
lathi were recovered from the place of
occurrence. The said recovery memo (Ex.
Ka-13) as well as statement of P.W. 7
Sahdeo Mishra shows that four broken
teeth were also recovered from the place
of occurrence.
48. Perusal of post-morterm report
of deceased Ram Prakat (Ex. Ka-2) as
well as statement of P.W. 4 Dr. K.S.
Mishra shows that 21 anti-morterm
injuries were found on the dead body of
deceased Ram Prakat Dubey. Description
of 21 anti-morterm injuries found on the
dead body of deceased Ram Prakat Dubey
has been given in the judgement of trial
court as well as in post-morterm report
(Ex. Ka-2).
49. Description of anti-morterm
injuries mentioned in the post-morterm
report (Ex. Ka-2) shows that injury no. 21
was multiple abraded contusion 16 cm x
16 cm on back at the right scapular
region.
50. Perusal of post-morterm report
(Ex. Ka-2) shows that buccal cavity was
disfigured. As mentioned above four
broken teeth have also been recovered
1184
 INDIAN LAW REPORTS ALLAHABAD SERIES
from the place of occurrence. Therefore,
considering the nature of injuries of
deceased Ram Prakat Dubey as well as
four broken teeth recovered from the
place of occurrence, it is apparent that
deceased Ram Prakat Dubey had suffered
injuries of explosion of bomb also.
51. P.W. 4 Dr. K.S. Mishra has
stated in his statement that the incised
wounds found on the dead body of
deceased may be caused by Katar. He has
not stated about the weapon of remaining
injuries found on the body of deceased.
Description
of
anti-morterm
injures
mentioned in post-morterm report (Ex.
Ka-2) as well as statement of P.W. 4 Dr.
K.S. Mishra show that out of 21 antimorterim injuries found on the dead body
of the deceased Ram Prakat Dubey, 8
injuries were lacerated wound, 7 injuries
were incised wound, 3 injuries were
contusion,
2
injuries
were
abraded
contusion and one injury was subconjuntival haemorrhage.
52. In view of the discussion made
above, we are of the view that deceased
Ram Prakat Dubey had suffered injuries
of bomb blast also and throwing of bomb
at the time of occurrence by accused
Gorakh Dubey is proved by statement of
witnesses P.W. 1 Shesh Nath Dubey,
P.W. 2 Durga Prasad Dubey and P.W. 3
complainant Jagdamba Dubey.
53. In case of bomb blast, it is
difficult to see movement of splinters of
bomb causing injuries because of smoke
arising out of explosion. Later on injuries
themselves shall speak their cause. As
concluded above, nature of injuries shows
that deceased Ram Prakat Dubey had
suffered bomb injuries also. Therefore,
the complainant Jagdamba Dubey, P.W. 3
has rightly mentioned in F.I.R. (Ex. Ka.-
1) that deceased Ram Prakat Dubey has
suffered injuries of bomb and throwing of
bomb
by
accused-appellant
Gorakh
Dubey now deceased is fully proved with
statements of P.W. 1 Shesh Nath Dubey,
P.W. 2 Durga Prasad Dubey and P.W. 3
complainant Jagdamba Dubey.
54. As mentioned above one fired
cartridge has been recovered from place
of occurrence and it has been proved that
fire has also been made by Katta at the
time of occurrence. Therefore, mention of
fire arm (Katta) injury in F.I.R. does not
lead to infer that complainant had not
seen occurrence.
55. In view of the discussion made
above, we are of the view that there is no
material contradiction between version of
F.I.R. (Ex. Ka-1) and statements of
witnesses namely, P.W. 1 Shesh Nath
Dubey, P.W. Durga Prasad Dubey and
P.W. 3 complainant Jagdamba Dubey.
Non mentioning of Katar in F.I.R. (Ex.
Ka-1) is an accidental slip or mistake of
complainant Jagdamba Dubey and in
view of statements of witnesses recorded
by I.O. it cannot be said that Katar has
been introduced for the first time before
Court with legal advice.
56.
In the case of Ranjit Singh and
others Vs. State of Madhya Pradesh, A.I.R.
2011 SC 255, Hon'ble Apex Court has
placed reliance on its previous judgement
rendered in the case of Prem Singh and
others Vs. State of Haryana, (2009) 14 SCC
494; (AIR 2009 SC 2573), wherein Hon'ble
Apex court has held as under:
"It is now a well settled principle of
law that the doctrine "falsus in uno, falsus
in omnibus" has no application in India.
3 All]. Raj Guru and Ors. Vs. State
1185
In view of above, the law can be
summarised to the effect that the
aforesaid legal maxim is not applicable in
India and the court has to assess to what
extent the deposition of a witness can be
relied upon. The Court has to separate the
falsehood from the truth and it is only in
exceptional circumstances when it is not
possible to separate the grain from the
chaff because they are inextricably mixed
up, that the whole evidence of such a
witness can be discarded."
57. In the case of State of U.P. Vs.
Krishna Master and others; 2010 Cri. L.J.
3889 (SC) Hon'ble Apex Court has held
that "prosecution evidence may suffer
from
inconsistencies
here
and
discrepancies
there,
but
that
is
a
shortcoming from which no criminal case
is free. The main thing to be seen is
whether those inconsistencies go to the
root
of
the
matter
or
pertain
to
insignificant aspects thereof."
58.
In the case of State of U.P. Vs.
Krishna Master and others (supra), Hon'ble
Apex Court has further held that "the basic
principle of appreciation of evidence of a
rustic witness who is not educated and
comes from a poor strata of society is that
the evidence of such a witness should be
appreciated as a whole."
59. In the case of Sampath Kumar
Vs. Inspector of Police, Krishnagiri 2012
(IV) SCC 124, Hon'ble Apex Court held
that "minor contradictions are bound to
appear in the statement of truthful
witnesses as memory sometimes plays
false, sense of observation differs from
person to person."
60. We have perused the entire
statements of P.W. 1 Shesh Nath Dubey,
P.W. 2 Durga Prasad Dubey and P.W. 3
complainant Jagdamba Dubey. In view of
above pronouncements of Hon'ble Apex
Court we are of the view that there is no
material contradiction in their statements
to disbelieve them.
61. In F.I.R. specific mention has
been made that at the time of occurrence
complainant Jagdamba Dubey was going
to village Chevta to see Dwarpooja along
with P.W. 1 Shesh Nath Dubey, P.W. 2,
Durga Prasad Dubey and one Mahip Pasi,
resident of village Kohadi Khurd. P.W. 1
Shesh Nath Dubey, P.W. 2 Durga Prasad
Dubey and P.W. 3 Jagdamba Dubey, all
have stated in their statement on oath that
at the time of occurrence they were going
to village chevta to see Dwarpooja along
with one Mahip Pasi but the defence has
not cross-examined all the said three
witnesses on the point of Dwarpooja and
has not given them suggestion in crossexamination that there was no Dwarpooja
in the village Chevta on the date of
occurrence or they were not going to
village Chevta to see Dwarpooja on the
date of occurrence. Therefore, the version
of prosecution that P.W. 1 Shesh Nath
Dubey, P.W. 2 Durga Prasad Dubey and
P.W. 3 Jagdamba Dubey were going to
village Chevta to see Dwarpooja at the
time of occurrence is un-challenged and
there is no sufficient ground to disbelieve
the statements on oath given by all the
three witnesses in this respect. It has also
not been challenged by defence that the
place of occurrence is not on the chack
road leading from the village of the
complainant to village Chevta. After
considering
the
all
facts
and
circumstances of the case, we are of the
view that the presence of P.W. 1 Shesh
Nath Dubey, P.W. 2 Durga Prasad Dubey
and P.W. 3 complainant Jagdamba Dubey
1186
 INDIAN LAW REPORTS ALLAHABAD SERIES
at the time and place of occurrence is
highly probable and there is no ground to
disbelieve them.
62. P.W. 1 Shesh Nath Dubey has
admitted in cross-examination at page 5
and 6 (Page 22 and 23 of paper book) that
he is step brother of father of the deceased
Ram Prakat Dubey. He has also admitted
in cross-examination at page 6 (Page 23
of paper book) that P.W. 3 complainant
Jagdamba Dubey is son of his step brother
Doodh Nath Dubey. Admittedly, P.W. 2
Durga Prasad Dubey is son of deceased.
Thus, it is apparent that all the three
witnesses are related to deceased and
belong to same family. But Hon'ble Apex
Court has consistently held that testimony
of witnesses may not be discarded merely
on the ground of relationship. For
reference following pronouncements of
Hon'ble Apex Court may be cited.
(1) Brahm Swaroop and another Vs.
State of U.P. A.I.R. 2011 S.C. 280.
(2) Vithal Vs. State of Maharastra
(2008) 1 SCC (Crl.) 91
(3) Ranjit Singh and others Vs. State
of Madhya Pradesh A.I.R. 2011 S.C. 255
63. P.W. 1 Shesh Nath Dubey has
stated in his statement on oath that there
was chack road between chack
of
deceased Ram Prakat Dubey and that of
accused Gorakh Dubey and Paras Dubey.
He has further stated in his statement that
about 5 or 6 days before occurrence,
accused were making encroachment on
said chack road by cutting the chack road
into their chack. Deceased Ram Prakat
Dubey prohibited them whereupon an
altercation took place between them.
64. P.W. 2 Durga Prasad Dubey and
P.W. 3 complainant Jagdamba Dubey
both have also stated in their statement on
oath that about 4 to 5 days before
occurrence there had been an altercation
between
Ram
Prakat
Dubey
(Now
deceased) and accused-appellants Paras
Dubey and Gorakh Dubey regarding
encroachment on chack road.
65. P.W. 7, S.I., Sahdeo Mishra,
Investigating Officer has shown chack
road in site plan (Ex. Ka.-12). He has
shown in site plan (Ex. Ka. 12) chack
road ploughed in chak of accusedappellants. Thus, the statements of P.W. 1
Shesh Nath Dubey, P.W. 2 Durga Prasad
Dubey and P.W. 3 Jagdamba Dubey
regarding encroachment of chack road by
accused-appellants are corroborated by
site plan (Ex. Ka-12).
66. In view of above, after having
gone through the whole evidence on
record as well as facts and circumstances
of the case, we are of the view that cause
or motive for the occurrence alleged by
the prosecution has been fully proved.
Morevoer, in the case of Brahm Swaroop
and another Vs. State of U.P. A.I.R. 2011
S.C. 280 Hon'ble Apex Court has held
that "if evidence of the eye witnesses is
trustworthy and believed by the court, the
question
of
motive
becomes
total
irrelevant."
67. Perusal of statement of P.W. 6
Mishri Lal, Head Moharrir as well as
Chick F.I.R. (Ex. Ka-9) and G.D. relating
to registration of Crime (Ex. Ka-10)
shows that F.I.R. has been lodged at P.S.
Kandharapur at 10.00 p.m. Time of
occurrence has been alleged 7.00 p.m.
Thus, it is apparent that F.I.R. has been
lodged in police station Kandharapur
within 3 hours of occurrence. Distance of
police station Kandharapur from the place
3 All]. Raj Guru and Ors. Vs. State
1187
of occurrence is four mile as is apparent
from Chick F.I.R. (Ex. Ka-9). P.W. 3
complainant Jagdamba Dubey has written
a note in F.I.R. (Ex. Ka-1) that due to
fear, he could not go to police station
Kandharapur straight way. He went to
Kaptanganj through canal and due to non
availability of conveyance delay was
caused
in
reaching
police
station
Kandharapur. P.W. 3 Jagdamba Dubey
complainant has stated in his statement on
oath that after occurrence injured Ram
Prakat Dubey was carried to Kaptanganj
by his son P.W. 2 Durga Prasad Dubey
and others on cot. He went to his house
and wrote F.I.R. (Ex. Ka-1). Thereafter,
he went to Kaptanganj where he met with
injured Ram Prakat Dubey and others and
thereafter a tempo was made available, by
which they carried Ram Prakat Dubey to
Azamgarh hospital. He also accompanied
them and dropped tempo in the way at
Kandharapur. Thereafter, he went to P.S.
Kandharapur and presented report (Ex.
Ka-1). Thus, it is apparent that there is a
reasonable explanation for delay in
lodging F.I.R. Moreover, F.I.R. lodged
within 3 hours of occurrence may not be
said to be delayed F.I.R.
68. Defence has given suggestion to
P.W. 1 Shesh Nath Dubey, P.W. 2 Durga
Prasad Dubey and P.W. 3 Jagdamba
Dubey that deceased Ram Prakat Dubey
has been killed in darkness at late night by
other persons and none has seen the
occurrence. All the said witnesses have
negatives the suggestion of defence and
there is no sufficient ground to disbelieve
the time of occurrence alleged by
prosecution.
69. In view of above, we are of the
view that F.I.R. is prompt and there is no
chance of concoction in version of F.I.R.
70. The time of occurrence alleged
by prosecution is 7.00 p.m. on 11th May,
1981 sunset will be at 6.55 p.m. Thus, it is
apparent that at about 7 p.m. darkness
shall not prevail. Therefore, without any
source of light occurrence may be seen by
witnesses.
71. Statement of P.W. 4, Dr. K.S.
Mishra as well as post-morterm report
(Ex. Ka-2) shows that out of 21 antimorterm injuries found on the dead body
of deceased Ram Prakat Dubey, there
were incised wounds, lacerated wounds,
contusions, abraded contusions and subconjuntival haemorrhage in left eye.
Contusion and lacerated wounds may be
caused by blunt object and Lathi is a blunt
object, incised wounds may be caused by
sharp edged weapon and Katar is a sharp
edged weapon.
72. In view of conclusion drawn
above, it is apparent that injury no. 21 and
condition of buccal cavity shows that
deceased had suffered bomb blast injuries
also. Therefore, having considered all the
facts and circumstances of the case and
evidence on record, we are of the view
that post-morterm report (Ex. Ka-2) as
well as statement of P.W. 4 K.S. Mishra
fully corroborates the version of F.I.R.
and ocular evidence adduced by the
prosecution. Time of death is also
corroborated by post-morterm report (Ex.
Ka-2) as well as statement of P.W. 4 Dr.
K.S. Mishra.
73. Statement of P.W. 7, S.I. Sahdeo
Mishra as well as recovery memo (Ex.
Ka-13) shows that one fired cartridge
pellets and four broken teeth have been
recovered from the place of occurrence by
I.O. I.O. has taken blood stained earth
also from the place of occurrence.
1188
 INDIAN LAW REPORTS ALLAHABAD SERIES
Defence has not challenged place of
occurrence.
Defence
has
merely
suggested that deceased Ram Prakat
Dubey has been assaulted in darkness at
late night by other persons and none has
seen
the
occurrence.
Therefore,
considering
all
the
facts
and
circumstances of the case as well as
evidence on record, we are of the view
that place of occurrence alleged by
prosecution is proved beyond doubt.
74. In view of discussion made and
conclusions drawn above, after having
gone
through
whole
facts
and
circumstances of the case as well as
evidence on record, we are of the view
that P.W. 1 Shesh Nath Dubey, P.W. 2
Durga Prasad Dubey and P.W. 3
Jagdamba
Dubey
are
trustworthy
witnesses and there is no sufficient
ground to disbelieve their testimony.
75. In the case of Narpal Singh Vs.
State of Haryana 1977 Cr.L.J., 642 SC,
Hon'ble Apex Court held that, "If the
witnesses examined are believed, the
question of inference for non-examination
does not arise."
76. In view of this pronouncement
of Hon'ble Apex Court no adverse
inference
may
be
drawn
against
prosecution for non-examination of other
witnesses of occurrence.
77.

Accused-appellant
Gorakh
Dubey (now deceased) has stated in
statement under Section 313 Cr.P.C. that
he had no enmity with deceased Ram
Prakat Dubey. He has enmity with
complainant
Jagdamba
Dubey
and
Jagdamba Dubey has falsely implicated
him due to animosity. In view of this
statement of accused-appellant Gorakh
dubey there is no reason for giving false
evidence against him by P.W. 2 Durga
Prasad Dubey son of deceased Ram
Prakat Dubey, who has also fully
supported version of F.I.R. in his
statement.
78. In view of discussion made
above, we are of the view that evidence
adduced by prosecution is sufficient to
convict surviving accused-appellants Raj
Guru Mishra and Paras Dubey for offence
punishable under Sections 302 / 34 I.P.C.
79.
Perusal of impugned judgement
and order passed by trial court shows that
trial court has gone through entire evidence
available on record and has considered all
aspects and relevant points for determination
of the case at length. The conclusions drawn
and findings recorded by trial court are based
on judicious analysis of facts and evidence in
the light of various judicial pronouncements
of Hon'ble Apex Court.
80. In view of discussion made and
conclusion drawn above, we are of the
view that the learned trial court has
rightly placed reliance upon evidence
adduced
by
prosecution
to
convict
surviving accused appellants for offence
punishable under section 302 read with
section 34 I.P.C.
81. In the case of Sunil Kumar
Sambhudayal Gupta (Dr.) and others vs.
State of Maharashtra, (2010) 13 SCC 657,
Hon'ble Apex Court has placed reliance
on its previous judgement rendered in the
case of State Vs. Saravanan; A.I.R. 2009
SC 152, wherein Hon'ble Apex court has
held as under:
"The trial court, after going through
the entire evidence, must form an opinion
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1189
about the credibility of the witnesses and
the appellate court in normal course
would not be justified in reviewing the
same again without justifiable reasons."
82. In view of this pronouncement
of Hon'ble Apex Court as well as
discussion made and conclusion drawn
above, we are of the view that there is no
sufficient ground to disturb the findings as
well as conviction recorded by trial court.
83. Sentence awarded by learned trial
court is not excessive and State has not filed
appeal for enhancement of sentence.
84.
In view of discussion made and
conclusion drawn above, we are of the view
that there is no sufficient ground for
interference in the impugned judgement and
order passed by learned trial court. Appeal
has no merit and is liable to be dismissed.
85. Appeal is dismissed accordingly.
86. Surviving accused appellants
Paras Dubey and Raj Guru are on bail.
They shall surrender before the trial court
for serving sentence within 30 days from
the date of judgement of this Court,
failing which trial court shall ensure their
arrest and shall send them to jail for
serving sentence in accordance with law.
87. Office is directed to send copy
of judgement to trial court for securing
compliance.
88. Lower court record shall be
returned
to
the
concerned
court
immediately.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2014
BEFORE
THE HON'BLE DEVENDRA PRATAP SINGH, J.
Election Petition No. 19 of 2012
Prabhat Pandey
...Petitioner
Versus
Dimple Yadav & Anr.
...Respondents
Counsel for the Petitioner:
In Person, Sri Asit Kumar Roy, Sri M.P.
Sinha, Sri Pradeep Verma, Sri Rajenndra
Kumar Pandey, Sri Sunil Kumar Tiwari, Sri
Vijai Prakash Shukla
Counsel for the Respondents:
Sri K.R. Singh, Sri Bhopendra Nath Singh
Sri H.P.