# Rajan Yadav (In Jail) v. State of U.P

- **Citation:** (2021) 3 ILRA 920
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-18
- **Case number:** Criminal Appeal No. 507 of 2010
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajan-yadav-in-jail-v-state-of-u-p-46997
- **Pages:** 32

## Headnote

(A) Criminal Law - Appeal against
conviction - Indian Penal Code, 1860 -
Section 323/34 , 364 , 302/34 , 201 - U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 - Section 3(1) -
Arms Act, 1959 - Section 3/25 - The Code
of criminal procedure, 1973 - Section 161,
313 - motive - circumstantial evidence -
Confessional statement - last seen theory
- evidence of last seen of PW1 - victim
abducted and taken away by the two
appellants - dead body found after 9 days
of the incident by PW1 - his belief that
victim
was
done
to
death
by
the
appellants - same cannot be a reliable
piece of evidence as there is no proximity
between the point when the accused
appellants
and
deceased
were
seen
together and when the deceased was
found dead. (Para -106)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - How much of
information recieved from accused may
be proved - recovery made at the pointing
out of the appellant cannot be admissible
under Section 27 of the Evidence Act -
3 All. Rajan Yadav Vs. State of U.P.
921
appears to be a false one and afterthought
just to improve the prosecution case
against
the
appellant
-
recovery
of
remains of burnt clothes of the deceased
at the pointing out of the accused
appellant from an open place which is
accessible
to
all
along
with
his
confessional statement appears to be
doubtful. (Para - 108)

(C) Evidence Law - Indian Evidence Act,
1872 - where the prosecution rests on the
circumstantial
evidence
-
prosecution
must place and prove all the necessary
circumstances, which would constitute a
complete chain without a snap and
pointing to the hypothesis that except the
accused, no one had committed the
offence, which in the present case, the
prosecution has failed to prove. (Para -
111)

Incident had taken place on 21.12.2004 at
about 9:00 p.m. in the night - FIR registered by
brother of the deceased - information given by
PW1 about the recovery of the dead body of the
deceased at the concerned police station -
Sections 302, 201 I.P.C. added in the present
case.(Para - 93)

HELD:- The conviction and sentence of the
appellants under Sections 323/34, 364 I.P.C.
and 3(1) of the U.P. Gangster and Antisocial
Activities (Prevention) Act, 1986 by the trial
Court is hereby upheld. The conviction and
sentence of the appellants under Sections
302/34 and 201 I.PC. is not sustainable as it is
against the evidence on record. The appellants
are entitled for the benefit of doubt for the
murder of the deceased, hence, the conviction
and sentence of the appellants under Sections
302/34 and 201 I.P.C. are hereby set aside.
(Para - 112)

Appeal partly allowed. (E-6)

List of Cases cited:-

## Text

_Characters 0–39,966 of 107,476. This is a partial read: ask again with offset=39966 for what follows._

920 INDIAN LAW REPORTS ALLAHABAD SERIES
committed, there appears to be no basis and
has no legs to stand.

(45) Moreover, a casual suggestion
about the said fact has been given to PW 2
by the defense regarding the presence of
the appellant at the place of occurrence and
that some unknown miscreants have
entered in the house of the appellant and
the deceased has identified them and she
was
killed
which
has
also
been
categorically denied by PW 2- Awdhesh
Kumar, who is the informant of the case
and brother of the deceased.

(46) Thus, the case law relied upon by
learned counsel for the appellant referred
above is of no help to him as it is
distinguishable
from
the
facts
and
circumstances of the present case.

(47) In view of the foregoing
discussions we do not find any illegality or
infirmity in recording the finding of the
conviction and sentence recorded by the
trial Court against the accused- Mahesh for
the offences under section 498-A, 302 and
3⁄4 Dowry Prohibition Act, hence the
impugned judgment and order passed by
the trial court is hereby upheld.

(48) The Appeal lacks merit and is
accordingly dismissed.

(49) The appellant is stated to be in
jail. He shall serve out the sentence as
awarded by the trial court.

(50) Office is directed to transmit the
lower Court Record along with certified
copy of this order to the Court concerned
forthwith for necessary information and
follow up action, if any required.
----------
(2021)03ILR A920
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.03.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.
Criminal Appeal No. 507 of 2010
with
Criminal Appeal No. 859 of 2010

Rajan Yadav ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Subodh Kumar Shukla, Amrit Kumar Tiwari,
Maya
Ram
Yadav,
Santosh
Kumar
Srivastava

Counsel for the Opposite Party:
Government Advocate

(A) Criminal Law - Appeal against
conviction - Indian Penal Code, 1860 -
Section 323/34 , 364 , 302/34 , 201 - U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 - Section 3(1) -
Arms Act, 1959 - Section 3/25 - The Code
of criminal procedure, 1973 - Section 161,
313 - motive - circumstantial evidence -
Confessional statement - last seen theory
- evidence of last seen of PW1 - victim
abducted and taken away by the two
appellants - dead body found after 9 days
of the incident by PW1 - his belief that
victim
was
done
to
death
by
the
appellants - same cannot be a reliable
piece of evidence as there is no proximity
between the point when the accused
appellants
and
deceased
were
seen
together and when the deceased was
found dead. (Para -106)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - How much of
information recieved from accused may
be proved - recovery made at the pointing
out of the appellant cannot be admissible
under Section 27 of the Evidence Act -
3 All. Rajan Yadav Vs. State of U.P.
921
appears to be a false one and afterthought
just to improve the prosecution case
against
the
appellant
-
recovery
of
remains of burnt clothes of the deceased
at the pointing out of the accused
appellant from an open place which is
accessible
to
all
along
with
his
confessional statement appears to be
doubtful. (Para - 108)

(C) Evidence Law - Indian Evidence Act,
1872 - where the prosecution rests on the
circumstantial
evidence
-
prosecution
must place and prove all the necessary
circumstances, which would constitute a
complete chain without a snap and
pointing to the hypothesis that except the
accused, no one had committed the
offence, which in the present case, the
prosecution has failed to prove. (Para -
111)

Incident had taken place on 21.12.2004 at
about 9:00 p.m. in the night - FIR registered by
brother of the deceased - information given by
PW1 about the recovery of the dead body of the
deceased at the concerned police station -
Sections 302, 201 I.P.C. added in the present
case.(Para - 93)

HELD:- The conviction and sentence of the
appellants under Sections 323/34, 364 I.P.C.
and 3(1) of the U.P. Gangster and Antisocial
Activities (Prevention) Act, 1986 by the trial
Court is hereby upheld. The conviction and
sentence of the appellants under Sections
302/34 and 201 I.PC. is not sustainable as it is
against the evidence on record. The appellants
are entitled for the benefit of doubt for the
murder of the deceased, hence, the conviction
and sentence of the appellants under Sections
302/34 and 201 I.P.C. are hereby set aside.
(Para - 112)

Appeal partly allowed. (E-6)

List of Cases cited:-

1. Koli Lakshmanbhai Chanabhai Vs St. of Guj. ,
(1999) 8 SCC 624

2. Mallikarjun & Ors. Vs St. of Karnataka ,
(2019) 8 SCC 359
3. Dharam Deo Yadav Vs St. of U.P. , (2014) 5
SCC 509

4. Rameshbhai Mohanbhai Koli & Ors. Vs St. of
Guj. , (2011) 11 SCC 111

5. Shailendra Rajdev Pasvan & Ors. Vs St. of
Guj. & Ors., 2020 (1) SCC 537

6. Mukesh & Ors. Vs St. of NCT of Delhi & Ors. ,
(2017) 6 SCC1

7. Navaneethakrishnan Vs The St. by the
Inspector of Police , (2018) 16 SCC 161

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

1. Since both the appeals arise out of
a common order, hence, with the consent of
learned counsel for the parties, both the
appeals are being decided by a common
order.

2. The present two Criminal Appeals
have been preferred by the appellants-
Rajan Yadav & Teja @ Tej Prakash Yadav
against the judgment and order dated
30.01.2010 passed by Special Judge,
Gangster Court, Faizabad in Gangster Case
No.211 of 2005 (State Vs. Teja alias Tej
Prakash Yadav and Another),convicting
and sentencing and appellants under
Section 323/34 I.P.C. to 1 year R.I., under
Section 364 I.P.C. to 10 years R.I. and fine
of Rs.2000/- each and in default payment
of fine, further 6 months R.I., under Section
302/34 I.P.C. to life imprisonment and fine
of Rs.3000/- each and in default of
payment of fine further 1 year R.I., under
Section 201 I.P.C. to 5 years R.I. and fine
of Rs.1000/- each and in default of
payment of fine further imprisonment of 6
months R.I. and under Section 3(1) U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 to 4 years R.I. and
fine of Rs.5000/- each and in default of
payment of fine further imprisonment of 1
922 INDIAN LAW REPORTS ALLAHABAD SERIES
year
R.I.
Further,
convicting
and
sentencing the appellant-Teja @ Tej
Prakash Yadav under Section 3/25 Arms
Act to 2 years imprisonment and fine of
Rs.1000/- and in default of payment of fine
6 months further imprisonment. All the
sentences
were
directed
to
run
concurrently.

3. The prosecution case in brief is that
a written report was lodged by the
informant Jairaj Yadav, son of Sitaram,
stating therein that his brother, namely,
Sewaram who was a contractor and used to
ply boat on rent in river and used to get the
people crossed through the river on the
either side. Two moths prior to the incident,
his brother had some dispute with Teja @
Tej Prakash, son of Hari Ram and Rajan
Yadav, son of Amrit Lal, resident of
Ghasiyari Tola, Police Station Kotwali
Tanda, District Ambekdarnagar regarding
the money charged for the said purpose, on
account of which Rajan Yadav and Teja @
Tej Prakash bore enmity with his brother.
On 21.12.2004 at about 9:00 p.m. in the
night, the informant along with his brother
Sewaram and Lal Bahadur Yadav, son of
Hari Prasad, resident of Phoolpur, were
going to Duhia by passing Alibagh Ghat
Kasba Tanda through Nagar Palika and
near Nagar Palika, Rajan Yadav and Teja
@ Tej Prakash who were armed with
hockey, met them. Rajan Yadav and Teja
@ Tej Prakash caught-hold his brother
Sewaram and dragged him in the premises
of Nagar Palika. Thereafter, the informant
and Lal Bahadur rushed to save him, then
both of the accused assaulted Lal Bahadur
with hockey sticks and beaten him
mercilessly and thereafter they ran towards
him also to assault him, on which the
informant along with Lal Bahadur ran to
save their lives. Accused Rajan Yadav and
Teja @ Tej Prakash dragged his brother
Sewaram towards river after beating him.
The informant and Lal Bahadur raised
alarm, but none had came to rescue
them.Thereafter, the informant and Lal
Bahadur went on foot and reached the
Village Duhia and informed about the
incident to his family members as well as
to the villagers. They searched Sewaram on
both sides of the river, but his whereabouts
could not be traced out. The informant had
a strong belief that his brother Sewaram
had been abducted by Rajan Yadav and
Teja @ Tej Prakash with an intention to kill
him. Since, the accused Rajan Yadav and
Teja @ Tej Prakash are the men of criminal
antecedents, hence, he submitted a report at
the concerned police station against them
for appropriate action.

4. On the basis of the written report
submitted by the informant Jairaj Yadav,
the F.I.R. of the incident was registered at
Police Station Kotwali Tanda, District
Ambedkarnagar on 22.12.2004 against the
accused Rajan Yadav and Teja @ Tej
Prakash which was registered as Case
Crime No.350 of 2004, under Sections 323,
364 I.P.C.

5. The scribe of the F.I.R. is Vijay
Kumar Yadav, son of Sri Ram Bahal
Yadav, resident of Village Duhia, Police
Station
Kotwali
Tanda,
District
Ambedkarnagar.

6. The investigation of the case
commenced and during the course of
investigation on 29.12.2004, an information
about the recovery of the dead body of the
deceased Sewaram from the river-bed was
given by the informant Jairaj Yadav to the
police station. During the course of
investigation, it has come that the accused
in order to get the pecuniary benefits and to
terrorize the society used to commit the
3 All. Rajan Yadav Vs. State of U.P.
923
crime by making a gang of criminals.
Hence, after investigation separate charge
sheets for the offence under Sections 323,
364, 201 I.P.C. and 3(1) U.P. Gangster and
Anti Social Activities (Prevention) Act,
1986 were submitted against the appellants,
namely, RajanYadav and Teja @ Tej
PrakashYadav
and
also
against
the
appellant Teja @ Tej Prakash under
Section
3/25
Arms
Act
before
the
competent
Court
and
the
Court
in
pursuance of the same took cognizance of
the offence.

7. The charges were framed against
the appellants under Sections 323/34, 364,
302/34, 201 I.P.C. and 3(1) of U.P.
Gangster Act and also the charge was
framed against the appellant Teja @ Tej
Prakash for the offence under Section 3/25
of the Arms Act. The appellants denied the
charges and claimed their trial.

8. The prosecution in support of its
case has examined PW1-Jairaj Yadav
(informant), PW2-Lal Bahadur, PW3Guddu, PW4-Rampal, PW5-Dr. Vivek
Gupta, PW6- Constable 181 Virendra
Yadav, PW7-Vinod Kumar Yadav, PW8Dr. Atal Bihari Verma, PW9-Arvind
Kumar
Pandey,
PW10
S.I.
Ramesh
Chandra
Yadav,
PW11-S.I.
Rajendra
Prasad Kannaujia & PW12 Constable
Kailash Singh.

9. The statements of the accused were
recorded under Section 313 Cr.P.C. in
which they have stated that the informant in
collusion with the local police and under
the influence of their rivals, have lodged
the F.I.R. for an incident which is a
cooked-up story.

10. The accused in their defence has
examined DW1-Suresh Kumar Srivastava.

11. PW1-Jairaj Yadav, in his
deposition before the trial Court, has
reiterated the prosecution case, as has been
stated in the F.I.R. and submitted that on
22.12.2004 he lodged a report and when he
had lodged the report, a day prior to the
incident, his brother Sewaram was beaten
by the accused Rajan Yadav and Teja @
Tej Prakash. About one month prior to the
incident, some altercation took place
between his brother Sewaram and Rajan
Yadav and Teja @ Tej Prakash, on account
of which the accused bore enmity with his
brother. The incident had taken place at
9:00 p.m. in the night. When his brother
Sewaram was passing through near Nagar
Palika Tanda, then accused Rajan Yadav
and Teja @ Tej Prakash met him, who
were
armed
with
hockey
and
after
assaulting Sewaram they dragged him
towards North. When this witness along
with Lal Bahadur ran to save him, then the
said accused also assaulted Lal Bahadur.
Thereafter the informant fled away from
there, came to his village and informed
about the incident to the villagers. As this
witness became afraid, hence, did not go to
the police station and on the next day he
got a report written by Vijay Kumar Yadav
to whom he dictated about the incident. In
pursuance of which, the First Information
Report was registered at the concerned
police station. He has proved the written
report as Ext. Ka.1 and has identified his
signature on the same.

12. The investigating Officer recorded
his statement on the same day and
thereafter the Investigating Officer had
come to his village after 6-7 days and along
with him there were 5-6 police constables
also. The Investigating Officer had told him
that the investigation has to be done and
this witness was also told by the
Investigating Officer that near pontoon
924 INDIAN LAW REPORTS ALLAHABAD SERIES
bridge the dead body of his brother could
be recovered and also there is possibility of
the accused to be present there.

13. This witness and others along
with the police team went near the pontoon
bridge. Thereafter, the police went towards
East to Karwari and near the Marahi the
accused Rajan Yadav was found. He tried
to flee after seeing the police but the police
apprehended
him.
After
being
apprehended, the accused Rajan Yadav told
that he along with Teja @ Tej Prakash
carried Sewaram on a boat across the river
and in the mids of the river his brother
Sewaram was shot at by the accused Teja
@ Tej Prakash with country-made pistol
and killed. Thereafter, all the clothes of
Sewaram were put off and his dead body
was thrown in the river and his clothes
were taken to Karia Ki Marahi and the
same were burnt by them. Thereafter,
accused Rajan Yadav had taken the police
party at the place where the clothes were
burnt, from where the remains of burnt bed
sheet and clothes of his brother Sewaram
(deceased) were also recovered by the
police and the police sealed the same. The
dead body of the deceased was recovered
on the second day of recovery of remains
of burning of the clothes of the deceased.

14. This witness further stated that he
along with Pintoo of the village and 2-3
other persons had gone to search the dead
body of his brother and when they reached
the Ghat of Yam River, then he found the
dead body of his brother lying on the
riverbed. There was black thread found in
the neck of his brother in which there were
two keys. There were six fingers in the leg
of the deceased, due to which he identified
the dead body to be of his brother.
Thereafter, he took the dead body to his
house and had given a written information
through the Gram Pradhan of the village.
The said information which was given to
the police about the recovery of the dead
body, he has signed the same and proved
the same as Ext. Ka.2

15. This witness further stated that on
the information given, the police had
arrived and conduced the panchayatnama
of the dead body of the deceased and he
had also signed the inquest report.

16. In his cross-examination,this
witness has stated that there was no
litigation going on with him or with his
brother with the accused Rajan Yadav and
no marpeet had taken place prior to the
incident. He knew Rajan Yadav prior to 2
years of the incident and he did not use to
go to his house and he had seen Rajan
Yadav at Tanda Bazar.

17. This witness has denied the
suggestion that he did not know Rajan
Yadav. He further denied the suggestion
that he did not know Rajan Yadav and at
the instance of the police he has disclosed
his name. He also did not know what the
accused Rajan Yadav used to do, how
much he is educated and what work he
does. There was no money dispute between
him and Rajan Yadav. He further stated
that on the day of the incident, he had come
along with his brother Sewaram at about
7:00-8:00 a.m. and looked-after the work
near the river and returned at about 8:309:00 p.m. from there and prior to it they
often used to return at about 4:00-5:00 p.m.

18. This witness further stated that he
along with others did not carry lantern,
torch, lathi danda or anything. The accused
had met them at Nagar Palika road. On the
road, there were people coming and going
and
vehicles
were
also
passing
3 All. Rajan Yadav Vs. State of U.P.
925
through.When the accused reached to his
brother, no conversation had taken place
between them and because of fear he fled
away from the place of occurrence. He
further stated that his brother had not died
in his presence. He went to his house and
informed that his brother was being beaten.
From the house no one had come in the
night and had come on the next day. On the
next day at 7:00-8:00 a.m. many persons of
the village had come to the place of
occurrence and he informed that it was the
place where the quarrel took place. After he
had fled from the place of occurrence on
the said date, in the night he did not inform
at the police station about the incident and
on the next day while he was coming to the
place of occurrence he did not remember
how much time it took to search his
brother. The dead boy of his brother was
recovered near Ghaghra river outside the
area of Nagar Palika and it was not
recovered in the area of Nagar Palika. After
the recovery of the dead body, he informed
the police station Kotwali and lodged a
report. From the place where the dead body
was recovered, he took the same to his
house and on the said day only the police
had come. The panchayatnama of the
deceased was conducted.

19. In his cross examination, he
further stated that his brother was beaten by
the accused by hockey and he had seen the
accused beating his brother 2-4 times with
hockey but because of fear he fled away
from the place of occurrence. He did not
see who had arrived at the place of
occurrence and how the incident had taken
place.

20. He denied the suggestion that he
was deliberately telling lie and he was not
with his brother on the day of the incident.
He further denied the suggestion that he did
not see any incident and at the instance of
the police he lodged a false F.I.R. He also
denied the suggestion that he, at the
instance of police, is falsely deposing.

21. In his cross-examination made on
behalf of the accused Teja alias Tej
Prakash, this witness has stated that the
incident had taken place 3-4 years prior. In
the year of the incident it was winter and it
was dark night. The deceased Sewaram, his
brother, was addictive and drunkered and
he had no enmity with anyone. Since how
long he was doing the work of contractor
he did not know. He was also unaware of
the reason due to which there was quarrel
of his brother with accused Teja @ Tej
Prakash. He had seen the accused Teja @
Tej Prakash many times and since when he
knew him, he does not know. How long the
'marpeet' took place between the accused
and his brother, he was unaware of the
same. He further stated that he does not
know the reason due to which the dispute
took place between his brother and the said
accused.

22. He further stated that the medical
examination of injured Lal Bahadur was
not conducted at any place. The injuries
which have been sustained by Lal Bahadur
was not caused by fall but because of the
assault made by the accused on him.

23. The dead body of the deceased
was recovered after 5-6 days of the incident
and the dead body was recovered by this
witness and others and not by the police,
which was lying in the river with face
underneath and he had identified the dead
body of the deceased to be of his brother
because of six fingers on his leg. The case
property and the weapon of assault were
produced in the Court during the evidence.
At the time of the post mortem of the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, he was present and till what time
the post mortem proceedings went on, he
had no knowledge. The blood stained
clothes were given to the Investigating
Officer at the police station by the witness
and Investigating Officer went to the place
of occurrence to see the same and he was
with the Investigating Officer continuously
for about 1-2 days. The Investigating
Officer further recorded the statements of
the witnesses in his presence and after how
many days of the incident the Investigating
Officer had recorded their statements, he
has no knowledge. He is also unaware of
the fact that the accused Teja @ Tej
Prakash is a respectable citizen. He denied
the suggestion that because of the dark
night and dense fog he had not seen the
incident. He further denied the suggestion
that he disclosed the name of the accused at
the instance of the villagers and further
denied the suggestion that he got the report
written at the police station.

24. PW2-Lal Bahadur who is an
injured witness, has deposed before the trial
Court that he had not seen the accused
Rajan Yadav and Teja @ Tej Prakash
dragging
the
deceased
Sewaram
or
assaulting him. On the day of the incident,
some person had also assaulted him with
hockey but he could not identify them. At
this stage this witness was declared hostile
and
Public
Prosecutor
was
given
opportunity to cross-examine him.

25. On cross-examination, this
witness has stated that he was assaulted
near Nagar Palika when he had gone to
hand over boat and Jai Raj was not with
him. The Investigating Officer had not
recorded his statement under Section 161
Cr.P.C. and stated that he has no
knowledge that how it was written. This
witness denied the suggestion that he had
won over by the accused and he has been
deposing falsely.

26. He was again cross-examined by
the accused and stated that he was beaten
towards the road coming from Nagar Palika
Tehsil to Kotwali and from there Kotwali is
250 meters. He had not met Jairaj Yadav
and Sewaram on the said date and in the
night he used to come from Tanda to his
house and on the said date he had gone at
about 11:00 p.m. It was dark and foggy
night, on account of which he did not
identify the accused.

27. PW3-Guddu who is witness of
arrest of accused Teja @ Tej Prakash and
also is a witness of recovery of countrymade pistol from the pointing of the
accused Teja @ Tej Prakash, has deposed
before the trial Court that the incident had
taken place on 01.01.2005. On the said
date, SHO, Tanda Kotwali along with
police personnel had taken him along with
witness Rampal for the arrest of the
accused Teja @ Tej Prakash near Karia Ki
Marahi and after the arrest of accused Teja
@ Tej Prakash, who also accompanied with
the
police
party,
got
recovered
a
countrymade pistol and four live cartridges
from jute bag and stated that he had
committed the murder of the deceased
Sewaram with the said country-made
pistol. The SHO of Police Station Kotwali
Tanda had sealed the country-made pistol
and live cartridges at the said place and
prepared a recovery memo of the same. On
which this witness along with other witness
and the accused had put their thumb
impression on the same. He proved the
recovery memo which was read over to
him. He stated that the same was written by
the Investigating Officer, on which his
thumb impression is affixed. The recovered
country-made pistol and live cartridges
3 All. Rajan Yadav Vs. State of U.P.
927
were opened before the Court which he
identified to be the same which the accused
Teja @ Tej Prakash had got recovered and
the same was marked as material Ext.1 & 2
to 5. and empty cartridge is material Ext. 6.
The accused had also got empty cartridge
recovered along with country-made pistol
and live cartridges. The Investigating
Officer recorded his statement under
Section 161 Cr.P.C..

28. This witness in his cross
examination has stated that the incident had
taken place 5 years ago near Karia Ki
Marahi. He is an illiterate person and used
to do the work of welding. He stated that he
is seeing the accused Teja @ Tej Prakash
for the first time in the Court. The police
had taken this witness from his house. The
jeep on which he was taken, there were 5-6
persons and he does not know the number
of the jeep. The police personnel did not
prepare any paper in his presence nor read
over the same to him and when they had
taken him from his house they got his
thumb impression on a blank paper. He
further stated that the distance of Karia Ki
Marahi from his house which is in North
direction is 20-25 kms. and he had gone in
the afternoon to Karia Ki Marahi and it was
about 11:00 a.m. and from Karia Ki Marai
illegal weapon of assault of 12 bore
country-made pistol was recovered and the
same was in running condition. When the
recovery was made, 40-50 people were
arrived there. Live cartridges were also
recovered which were in running condition.
In preparing the recovery memo, the
Investigating Officer took 4-5 hours and
after the said date he did not meet the
Investigating Officer.

29. He denied the suggestion that the
country-made pistol and cartridges were
not recovered in his presence. He further
denied the suggestion that under the
influence of police he is falsely deposing.
He also denied the suggestion that under
the influence of Jairraj Yadav he is falsely
deposing. At the time of his evidence,
informant Jairaj Yadav was present in the
Court.

30. PW4-Rampal has deposed before
the trial Court that on 01.01.2005 he and
Guddu were taken by the SHO of Kotwali
Tanda along with other police personnel
telling them about the purpose for arresting
the accused Teja @ Tej Prakesh near Karia
KI Marahi, where Teja @ Tej Prakesh had
got recovered a countrymade pistol, four
live cartridges and one empty cartridge and
recovery memo of the same was prepared
by the Investigating Officer at the place
from where it was recovered. The countrymade pistol and other articles which were
recovered, were sealed there only. The
recovery memo was read over to him and
he along with other witness and accused
signed the same and put their thumb
impression on the same. He also identified
the recovery memo in the Court which is
stated to have been written by the
Investigating Officer at the spot and he had
affixed his thumb impression. When the
articles recovered were shown to him, he
stated that the accused Teja @ Tej Prakesh
had got recovered the same and his
statement under Section 161 Cr.P.C. was
recorded. He denied the suggestion that at
the instance of police he has affixed his
thumb impression and further denied that
he has falsely deposed.

31. PW5- Dr. Vivek Gupta in his
examination before the trial Court has
stated that on 22.12.2004 he was posted at
Community Health Centre at Tanda on the
post of Medical Officer. On the said date,
he had examined the injured Lal Bahadur
928 INDIAN LAW REPORTS ALLAHABAD SERIES
who was brought by Homeguard at 2:45
p.m.
from
Kotwali
Tanda,
District
Ambedkarnagar
and
during
his
examination he found the following injuries
on his person:-

"Injuries

1. L/W 1.0 cm. x 0.3 cm. on Lt
side of scalp, 5.0 cm. above Lt. eyebrow.
Injury Muscle deep.

C/o pain Rt. shoulder, Rt. knee,
but no external mark of injury present."

32. In the opinion of the doctor all the
injuries were found to be simple in nature
and were caused by hard and blunt object.
The duration of injury was one day old. He
stated that the injury could be caused to the
injured on 21.12.2004 at 9:00 p.m. in the
night. He has proved the said medical
examination report of the said injured as
Ext. Ka.2 in his hand writing and signature.

33. In his cross-examination, this
witness has stated that during the course of
the evidence, the injured is not present in
the Court. He stated that the injury no.1
which was a lacerated wound could be
caused by fall while running on a pointed
stone and when he was examining the
injury no.1 it was not bleeding and injury
no.2 was mentioned by him as was told by
the injured.The duration of the injury which
he had mentioned, was not at the instance
of the injured. The rest of the injury etc.
could be caused due to running on account
of fall, is possible.

34. The working hours of PHC is
from 8:00 a.m. to 2:00 p.m.. The injured
was medically examined on 22.12.2004 at
2:45 p.m. and it took 10 minutes to
examine his injuries.

35. PW6-Constable 181 Virendra
Yadav in his deposition before the trial
Court has stated that on 01.01.2005 he was
posted as Constable at Police Station
Kotwali Tanda and on the said date the
Inspector Sri Vinod Kumar Yadav had
submitted a recovery memo, on the basis of
which Chick FIR No.1of 2005, arising out
of Case Crime No.1 of 2005, under the
Arms Act was registered at 10:30 against
the accused Teja @ Tej Prakesh. Accused
Teja @ Tej Prakesh was wanted in Case
Crime No.350 of 2004 and Chick FIR of
the said case was prepared by this witness
under his hand writing which he has proved
and which has been marked as Ext. Ka.3.
He also proved the G.D. Entry vide G.D.
No.16 at 10:30 dated 01.01.2005 for
endorsing the registration of the F.I.R.
under the Arms Act and carbon copy of
which is on record, was prepared from the
original one, was singed by him, which he
proved as Ext. Ka.4.

36. In his cross-examination made on
behalf of accused Teja @ Tej Prakash, this
witness has stated that the original G.D. is
not before him and on the carbon copy of
the G.D. there is his carbon signature, he
identified his signature.

37. The material exhibits of the case
was not before the witness when he was
deposing in the Court. While registering the
F.I.R. of the crime in question, the
Inspector of Police Station Kotwali was
present in his office. He has not mentioned
in the G.D. about the same because on his
written report the F.I.R. was registered. As
the original G.D. was not before him,
hence, it was not possible for him to state
whether any cognizable offence or noncognizable report about the offence was
earlier registered before the said case or
not. He stated that it is wrong to state that
3 All. Rajan Yadav Vs. State of U.P.
929
the time mentioned in the G.D. was antitime. He further stated that it is wrong to
state that he under the influence of the
Inspector is giving evidence. After meeting
the Investigating Officer at the concerned
police station he did not meet him again.

38. PW7-Vinod Kumar Yadav in his
deposition before the trial Court has stated
that on 22.12.2006 he was posted as Incharge Inspector of Kotwali Tanda, Case
Crime No.350 of 2004, under Sections 323,
364 I.P.C. was registered during his tenure
and investigation of the same was entrusted
to the Investigation Officer Sri Bandhan
Ram Ghusia, S.I. who commenced the
investigation. Sri Bandan Ram went on
long leave, on account of which on
28.12.2004 he took the investigation of the
present case. He arrested the accused Rajan
Yadav on 28.12.2004 and recorded his
statement and at the pointing out of the
accused Rajan Yadav he recovered the
remains of burnt clothes of the deceased
Sewaram and prepared its recovery memo
and sealed the same.The recovery memo
was written by Head Constable Ramesh
Chandra on his dictation. On the fard
recovery memo there are signatures of
Head Constable Manoj Yadav, Constable
Ram Saware, accused Rajan Yadav and
Zilajeet also put his thumb impression on
the same. On the recovery memo this
witness has also put his signature and
proved the same as Ext. Ka.5 which is on
record.

39. This witness further stated that on
29.12.2004,
he
conducted
the
panchayatnama on the dead body of the
deceased Sewaram which was prepared by
the Head Constable Ramesh Chandra and
the same was copied by him in the case
diary and he recorded the statements of
witnesses of fard and witnesses of panch,
namely, Jairaj Yadav and Zilajeet under
Section 161 Cr.P.C. On 01.01.2005, he
arrested the accused Teja Yadav @ Tej
Pakash and recorded his statement. The
accused confessed his guilt and told for
getting
the
countrymade
pistol,
live
cartridges recovered. On the pointing out of
the accused, in the presence of Head
Constable
Ramesh
Chand
Yadav,
Constable
Radhey
Shyam
Maurya,
Constable Om Prakash, Constable Ram
Sabad Yadav, witness Rampal and Guddu
Yadav, a countrymade pistol of 12 bore,
four live cartridges of 12 bore and one
empty cartridge of 312 bore were recovered
near Karia Ki Marahi from a bag which
was taken out by the accused Teja @ Tej
Prakash and given to him. This witness has
identified the recovered countrymade pistol
and cartridges in the Court and stated that
the same were recovered from the spot at
the pointing out of the accused Teja @ Tej
Prakash.
He
proved
the
recovered
countrymade pistol as material Ext.1, live
cartridges as material Ext. 2 to 5 and empty
cartridge as material Ext.6.

40. On the basis of fard recovery
memo, Case Crime No.1 of 2005, under
Section 25 of the Arms Act was registered
at Police Station Kotwali Tanda against the
accused Teja @ Tej Prakash and recovery
memo of the same was prepared by Head
Constable Ramesh Chandra on his dictation
and he had got the signature of the accused
and other witnesses and thumb impression
affixed on the same and proved the said
recovery memo as Ext. Ka.6.

41. In his cross-examination,he stated
that he is the informant of the said case
registered under the Arms Act and
investigation of the said was carried on by
his subordinate Sub Inspector. The case
property was not before him. On the
930 INDIAN LAW REPORTS ALLAHABAD SERIES
alleged day of the incident, he had left the
police station for supervising the law and
order situation but as to when he had left
the police station he has no knowledge. The
original G.D. of the police station was not
available in the Court. After leaving the
police station he had no knowledge about
the distance of village Duhia and further it
is at a distance of 3 Kms. and for
supervising the area he had used the
government vehicle and after leaving the
police station for the said purpose he
stopped at the kasba for an hour and for
what purpose and was he was doing, he
does not remember. While his stay at
Kasba Duhia for an hour he had taken two
witnesses of the said village and he does
not remember their names and after
perusing the case diary he would remember
the same. After taking the two witnesses he
went in search of the two accused of case
crime No.350 of 2004, under Sections 323,
364, 302, 201 I.P.C. and it took about 1/2
an hour or 45 minutes for taking witness
from village Duhia and to trace out the
accused of Case Crime No.350 of 2004.

42. The police informer met him in
Kasba Tanda. The meeting of the police
informer and the place where the accused
were hiding, the distance was told by the
informer, which he did not remember.
Karia Ki Marahi is in Majha area which is
across the river and for going across the
river a help of vehicle is to be taken.
Pontoon bridge is constructed on which
heavy vehicle were being used by plying
from one ghat to another.

43. On the spot there was water in the
river. The Kotwali Tanda is at a distance of
3-4 kms. away from Karia Ki Marahi and
through Pontoon bridge it can be reached
and on which direction, he does not
remember. Prior to the arrest of the
accused, the accompanying persons in the
team were searched and after the arrest of
the accused he did not give an opportunity
to get the accused his personal search. He
had given an information to the higher
authorities regarding arrest of the accused
and articles recovered and he had given the
said information after coming to the police
station. He had seen the accused Teja @
Tej Prakash for the first time and he came
to know about his name on the information
given by the police informer and the
witnesses. At the spot it took about 1-1/2 to
2:00 hours for Head Constable to prepare
the fard recovery memo which was dictated
to him by this witness,thereafter the
accused was arrested and taken to the
police station and the accused was first
arrested by the witness and his other police
personnel who were with him.

44. At the pointing out out of the
accused, recovery was made near Karia Ki
Marahi which the accused himself had
taken out and given. The recovered articles
were not placed before him during the
course of trial, hence, he could tell that on
the material exhibits whether there is
signature of the accused or not. The place
where the accused was arrested it was
Majha area and there only police personnel
were the witness and there were no person.
The place where the recovery was made, a
Marahi was constructed and there was no
person present or not and whether there
was any person present or not he could not
tell. The day on which he had arrested the
accused, it was cold and not dense fog but
there was fog or not he cannot tell. At the
place of recovery, there were two huts and
field situated. Near the place of occurrence,
there were no one person available, hence,
he could not made them witness and only a
police team was present there and how
many police personnel were there he did
3 All. Rajan Yadav Vs. State of U.P.
931
not know and thereafter the accused was
arrested and brought to Kotwali Tanda. The
ballistic report of the recovered articles of
the case and the report of Armour, the
Investigating Officer can tell about it or he
may tell the same after perusal of the case
diary. After bringing the accused to the
police station, on the basis of fard recovery
memo, a case was registered and the
accused was challaned and was produced
before the concerned Court and the papers
with respect to the arrest of the accused
was submitted to the competent court. On
whose pointing out, the spot inspection of
the place of recovery was done by the
Investigating
Officer,
he
does
not
remember and stated that he would peruse
the case diary and tell about the same.

45. In cross-examination made on
behalf of the accused Teja @ Tej Prakash
Yadav, this witness has denied the
suggestion that he arrested the accused Teja
@ Tej Prakash from his house and got a
false recovery shown and have falsely
challaned him in a case under the Arms
Act. He further denied the suggestion that
on 01.01.2005, no such incident had taken
place at Karia Ki Marahi within the police
station
of
Kotwali
Tanda,
District
Ambedkarnagar. The F.I.R. of the case was
registered in his presence in which accused
Teja @ Tej Prakash, son of Hari Ram and
Rajan son of Amrit Lal were named.

46. The site plan of the case and
proceedings conducted by the earlier
Investigating Officer was not before him
and
after
he
had
taken
over
the
investigation, the earlier investigation
done by the earlier Investigating Officer
was made part in the case diary and it
was not verified and again the spot
inspection was not conducted nor the site
plan
was
prepared.
The
earlier
Investigating Officer was a subordinate
Sub Inspector.

47. In this cross-examination on
behalf of the accsued Rajan Yadav, this
witness has stated that accused Rajan
Yadav was arrested on the way of
Kalwari on the Pontoon birdge. He
further denied the suggestion that accused
Rajan Yadav was called from his house
and challaned in the present case. Rajan
Yadav confessed his guilt after he was
arrested. He denied the suggestion that
accused Rajan Yadav has not confessed
his guilt. He moved an application before
the competent court for recording the
statement of accused Rajan Yadav under
Section 164 Cr.P.C. but the same was not
recorded. Ext. Ka.5 was prepared by him
on the spot which was a recovery memo
of the remains of the burnt clothes of the
deceased and the same was taken by the
police, but is not before him while he was
deposing in the Court.

48.