# Rajendra Yadav v. State of U.P

- **Citation:** (2023) 2 ILRA 364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-02
- **Case number:** Criminal Appeal No. 1240 of 2021
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-yadav-v-state-of-u-p-49669
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - benefit of
doubt - In written report, P.W.-1/first
informant, stated that in the evening,
when his father was returning, the
accused, ambushed him at around 7:45
P.M., and repeatedly assaulted him with
a brick until he died - Held - court found
it implausible that P.W.-4 and P.W.-3,
aged 66 and 60 respectively, could
correctly
see
the
incident
from
a
distance of 15 to 20 paces in the dark
and identify the accused, especially with
the brief illumination from a passing
jeep - weapon of assault i.e. the brick
was not sent for forensic examination,
which casts a doubt in the prosecution
case - there was discrepancy in the site's
location - As per the site plan prepared
by P.W.-8 (Investigating Officer), the
place of occurrence was 700 to 800
meters away from G.T. Road, whereas as
per
the
statement
of
prosecution
witnesses of fact i.e. P.W.-3 and P.W.-4
the place of occurrence was near the
village Kateshar Bhusha Mandi Bawan
Bigha field (Maidan) - Both the places
are far away from each other - From the
statements of the P.W.-3 it was clear
that the deceased had already died by
the time when P.W.-3 reached the place
of occurrence and he has not seen the
incident
when it
occurred
-
These
inconsistencies led the court to conclude
that the prosecution had not established
the
guilt
of
the
accused
beyond
reasonable doubt, entitling the accusedappellant to the benefit of doubt -
possibility of the death of the deceased
occurring in a road accident also cannot
be ruled out (Para 35, 36, 38, 40)

Allowed. (E-5)

## Text

364 INDIAN LAW REPORTS ALLAHABAD SERIES
documents for purposes of elucidating a
dispute particularly when even issues have
not been framed and even objections were
not called for from the defendants.

20. It has already been observed herein
above that applications under Order XXVI
Rule 9 can not be allowed merely for
purposes of facilitating the case of one or the
other party and it is not the business of the
courts to discharge burden of evidence of
either party.

21. In view of aforesaid, the order
impugned dated 15th November, 2022 passed
by the Court of Civil Judge, Senior Division,
Malihabad, Lucknow in regular suit No. 2216
of 2022 being against law is set aside.

22. The revision consequently stands
allowed. Parties to bear their own costs.
----------
(2023) 2 ILRA 364
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1240 of 2021

Rajendra Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Kailash Pati Singh Yadav, Sri Rajiv Lochan
Shukla, Ms. Suman Bharti

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - benefit of
doubt - In written report, P.W.-1/first
informant, stated that in the evening,
when his father was returning, the
accused, ambushed him at around 7:45
P.M., and repeatedly assaulted him with
a brick until he died - Held - court found
it implausible that P.W.-4 and P.W.-3,
aged 66 and 60 respectively, could
correctly
see
the
incident
from
a
distance of 15 to 20 paces in the dark
and identify the accused, especially with
the brief illumination from a passing
jeep - weapon of assault i.e. the brick
was not sent for forensic examination,
which casts a doubt in the prosecution
case - there was discrepancy in the site's
location - As per the site plan prepared
by P.W.-8 (Investigating Officer), the
place of occurrence was 700 to 800
meters away from G.T. Road, whereas as
per
the
statement
of
prosecution
witnesses of fact i.e. P.W.-3 and P.W.-4
the place of occurrence was near the
village Kateshar Bhusha Mandi Bawan
Bigha field (Maidan) - Both the places
are far away from each other - From the
statements of the P.W.-3 it was clear
that the deceased had already died by
the time when P.W.-3 reached the place
of occurrence and he has not seen the
incident
when it
occurred
-
These
inconsistencies led the court to conclude
that the prosecution had not established
the
guilt
of
the
accused
beyond
reasonable doubt, entitling the accusedappellant to the benefit of doubt -
possibility of the death of the deceased
occurring in a road accident also cannot
be ruled out (Para 35, 36, 38, 40)

Allowed. (E-5)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This criminal appeal is directed
against the impugned judgment and order
dated 10.02.2021, passed by Additional
Sessions Judge/ Fast Track Court-II,
Chandauli in Session Trial No. 04 of 2013
(State of U.P. Vs. Rajender Yadav), arising
out of Case Crime No. 232 of 2012,
whereby
accused-appellant-
Rajendra
2 All. Rajendra Yadav Vs. State of U.P.
365
Yadav has been convicted and sentenced
for life imprisonment for an offence under
Section 302 I.P.C. alongwith fine of
Rs.15,000/-, in default thereof, to further
undergo
six
months
additional
imprisonment.

2. We have heard Mr. Rajiv Lochan
Shukla, learned Counsel assisted by Ms.
Suman Bharti, Advocate appearing for the
accused-appellant and Mrs. Archana Singh,
learned A.G.A. for the State as also perused
the entire materials available on record.

3. As per the prosecution case a
written report (Ext. Ka-1) was given on
17.6.2012 to the Police Station Mugalsarai,
District Chandauli, by Muse Yadav (P.W.-
1/first informant), who happens to be the
son of the deceased stating that his father
used to sell milk. As usual, on 17.6.2012 in
the evening, he had gone to sell milk and
when he was returning after supplying milk
to Saran Yadav, resident of village
Katesara, the accused Rajender Yadav son
of Jaganandan Yadav resident of his
village, with whom a dispute was going on
in respect of passage and open land
between them, lay in ambush near Katesar
Bhusa Mandi at around 7:45 P.M., and
assaulted the deceased by brick repeatedly
until he died and that his father's body is
lying on the spot. On the basis of the above
written report a first information report
dated 17.6.2012 (Ex.Ka.6) came to be
lodged and registered as Case Crime No.
232 of 2012, under Section 302 I.P.C.
against the accused-appellant.

4. After registration of the first
information report, P.W.-8, namely Sanjay
Singh, Investigating Officer reached the place
of occurrence on the same day i.e. 17.6.2012
at about 7:30 - 8:00 P.M. The inquest
proceedings however commenced at 06:00
A.M. on the next day and concluded at about
7:30 A.M. The Investigating Officer of this
case P.W.-8 recovered Cycle and milk bucket
(Balta) (Ex. Ka-3), blood stained piece of
brick (Ex.Ka-4), blood stained and plain earth
(Ex. Ka-5) and prepared recovery memos in
that regard.

5. The post-mortem has been conducted
on 18.06.2012 in which cause of death has
been found to be Coma as a result of
following ante mortem head injuries:-

"1. Lacerated injury .8 cm x 2 cm over
Rt. Side of frontal bone and part of left side
parietal bone

2. Contused swelling 10 cm x 6 cm just
above the lacerated wound

3. Contused injury over scalp except
occipital region

4. Contused swelling over face 4 cm x 8
cm including nasal area and part of both
cheek . Both side of maxilla fractured."

6.

The
Investigation
ultimately
concluded with submission of charge-sheet
against the accused-appellant on 30.07.2012
(Exhibit-Ka-8). The concerned Magistrate
took cognizance and committed the case to
the Court of Sessions, wherein charges have
been framed under Section 302 I.P.C. against
the accused-appellant on 28.06.2014. Charges
were read out to the accused-appellant, who
denied the accusation and demanded trial.

7. The prosecution in order to establish
the charge levelled against the accusedappellant,
has
relied
upon
following
documentary evidences, which were duly
proved and consequently marked as Exhibits:

"Written report dated 17.6.2012 has
been marked as Exhibit-Ka-1; F.I.R dated
17.6.2012 has been marked as Exhibit-Ka6; Recovery memo of Cycle & Bucket
366 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 18.6.2012 has been marked as
Exhibit-Ka-3; recovery memo of piece of
bricks dated 18.6.2012 has been marked as
Exhibit-Ka-4; Recovery Memo of blood
stained and plain earth dated 18.06.2012
has been marked as Exhibit-Ka-5; Post
mortem report dated 18.06.2012 has been
marked as Exhibit-Ka-15; Panchayatnama
dated 18.06.2012 has been marked as Ex.
Ka.-10; Site Plan with Index dated
18.06.2012 has been marked as Ex. Ka-9;
and Charge Sheet dated 30.07.2012 has
been marked as Ex. Ka.-8."

8. The prosecution has also adduced
oral testimony of following witnesses:-

"P.W.-1/ informant, namely, Muse
Yadav, son of the deceased; P.W.-2, namely
Boder Yadav, son of the deceased; P.W.-3,
namely Nakhadu Yadav; P.W.-4, namely,
Shankar Yadav, P.W.-5, namely, Pintoo
Yadav, witness of Panchayatnama, P.W.-6,
Sub Inspector Ram Kumar Singh,, who has
lodged
the
F.I.R.,
P.W.-7
Second
Investigation Officer, Ram Prakat Yadav,
P.W.-8 First Investigating Officer Sanjay
Singh, P.W.-9 S.I. Praveen Kumar Singh,
P.W.-10, namely Dr. Ashok Kumar, who
conducted
the
post-mortem
of
the
deceased.

9. On the basis of material produced
by
the
prosecution
during
trial,
incriminating materials were put to the
accused-appellant
for
recording
his
statement under Section 313 Cr.P.C. The
accused-appellant has stated that he has
been falsely implicated in the present case
due to enmity and the statements of
prosecution witnesses are incorrect. He
further stated that the deceased died due to
injuries sustained in a road accident for
which the wife of the deceased namely,
Jokhni Devi received a Cheque of Rs. 5
lakhs on 3.9.2013 under a State scheme,
namely, U.P. Krishak Durghtana Bima
Yojana.

10. Defence has also produced three
witnesses namely, D.W.-1 Lalta Prasad,
Tehsildar Mughalsarai, Chandauli, D.W-2,
namely,
Phulchandra Yadav, Tehsildar
Sadar, Chandauli and D.W.-3, namely,
Khushhal Prasad, retired Lekhpal.

11. Upon perusal and consideration of
the material placed on record by the parties,
the trial court held that P.W.-3 and P.W.4
are the eye-witnesses of the incident and on
the
basis
of
their
statements
(in
examination-in-chief as well as in crossexamination) it has come to the conclusion
that the deceased Kailash was murdered by
the accused by assaulting him with brick
and the eye witnesses have seen the
incident with their own eyes in the
headlight of a Jeep passing through the
area. The court below has also concluded
that the death of the deceased Kailash
Yadav was not in a road accident, but he
was done to death by the accused appellant.
P.W.-10, namely Dr. Ashok Kumar has
denied that the deceased died due to
injuries sustained in a road accident and has
stated that injury No.3 cannot come from
being crushed under the wheel and the
same could be the cause of death of the
deceased and due to this injury the bones of
skull of the deceased were fractured. The
trial court also opined that benefit of
Krishak Durghatana Bima Yojana is not
limited to the dependents who died in road
accident, but can also be given in the case
of murder. After recording the aforesaid
finding the trial court held that the murder
of the deceased has been committed by the
accused-appellant.
Therefore,
the
prosecution has been able to prove the guilt
of the accused-appellant beyond reasonable
2 All. Rajendra Yadav Vs. State of U.P.
367
doubt and has accordingly convicted and
sentenced
him
to
undergo
life
imprisonment along with fine. It is against
this judgment of conviction that the present
appeal has been preferred.

12. Learned counsel for the accusedappellant
submits
that
the
accusedappellant has been falsely implicated in the
present case due to enmity. He further
submits that a dispute in respect of passage
and open land was going on between the
parties and the informant has intentionally
implicated the accused appellant. It is also
submitted that the deceased met with an
accident on the road and the prosecution
has given it a colour of murder. Deceased's
wife namely Jokhni Devi has received a
cheque of Rs.5 lakhs under the scheme of
Krishak Durghatana Bima Yojana. The
incident occurred at about 7:45 P.M. on the
road and there was no source of light and
all the witnesses, who have alleged that
they have seen the incident are not the eye
witness because they reached the place of
occurrence after the death of the deceased.
He next submits that the autopsy report
does not support the prosecution case and
no brick part has been recovered from the
place of occurrence.

13. Learned A.G.A. on the other hand
submits that this is a case in which enmity
is admitted and the statement of eyewitnesses namely, P.W.-3 and P.W.-4 are
absolutely credible and reliable and there is
direct
evidence
against
the
accusedappellant to support the prosecution case.
The place of occurrence has not been
disputed by the prosecution. On the
cumulative strength of the evidence led by
the prosecution, learned A.G.A. submits
that this is a case of direct evidence and the
impugned judgment and order does not
suffer from any infirmity and illegality and
the present appeal is liable to be dismissed
by this Court.

14. We have examined the respective
contentions urged by the learned counsel
for the parties and have perused the records
of the present appeal including the lower
court records.

15. The only question required to be
addressed and determined in this appeal is
whether the conclusion of guilt arrived at
by the learned trial court and the sentence
awarded to the accused-appellant is legal
and sustainable in law and suffers from no
infirmity and perversity.

16. Before entering into the merits of
the case set up by the learned counsel for
the accused-appellant and the learned
A.G.A. qua impugned judgment and order
of conviction passed by the trial court, it is
desirable for us to briefly refer to the
statements of the prosecution witnesses.

17. The prosecution in order to prove
its case has relied upon the statement of
P.W.-1,
namely,
Muse
Yadav
(first
informant) son of the deceased. He has
stated that the incident occurred on
17.6.2012. At the time of the incident, his
father Kailash Yadav used to sell milk. He
used to collect milk every day and take it to
Saran Yadav's place by bicycle. On the
fateful day, the deceased Kailash Yadav had
gone to sell milk as usual in the evening
and while he was returning home, Rajendra
Yadav son of Jaganandan Yadav of his
village, who was waiting in ambush at a
deserted place around 7:45 P.M., threw his
father off the bicycle and killed him by
assaulting him with a brick. A dispute in
respect of passage and open land was going
on between the accused and his family
from before the incident, due to which
368 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellant harboured enmity with
the deceased. On the fateful day, Nakhdu
Yadav (P.W.-3) and Shankar Yadav (P.W.-4)
of his village were also returning after
supplying milk. Nakhdu Yadav came to his
house and told him at around 8 o'clock in
the night that Rajendra Yadav had killed his
father by assaulting him with a brick near
the village Katesar Bhusa Mandi Bawan
Bigha Field. On this information, informant
P.W.-1 along with his brother reached the
place of occurrence and saw that his
father's dead body was lying at a deserted
place on a rough road, about 500 meters
away from Bhusa Mandi. After that he
went
to
Police
Station
Kotwali
Mughalsarai, accompanied by his brother
Bodar Yadav (P.W.-2) and gave the written
report at the police station on which the
F.I.R. was registered.

18. In the cross-examination, this
witness has stated that he got the
information about the murder of his father
from Nakhdu Yadav, and when he reached
the place of occurrence it was about 8:15
P.M., he shook his father but got no
response, because of which he apprehend
that his father had died. His father's head
and face were completely crushed and
blood was oozing from one side of his face.
Apart from this, there was no other injury.
He further stated that he had filed an
application against Rajendra Yadav on the
information of Nakhdu Yadav. Nakhdu
Yadav had informed him that the deceased
Kailash Yadav was killed by the accusedappellant Rajendra Yadav by assaulting him
with a brick. He has also stated that
Nakhdu Yadav had not disclosed that
someone else had also seen the incident or
he tried to save the deceased. When the
inquest was conducted by the Investigating
Officer Nakhadu Yadav was not present. He
disclosed the Investigating Officer that the
brick, bicycle and the milk bucket (Balta)
were lying nearby the deceased.

19. P.W.-2 namely, Bodar Yadav son
of
the
deceased
has
supported
the
prosecution case and substantially adapted
the stand taken by P.W.-1 at the stage of
trial. The murder occurred on the sidewalk
of Bavan Bigha Bhusa Mandi. He has
admitted that he had not seen the incident
and he and his brother Muse Yadav were
informed by Nakhdu Yadav. When he
reached the place of occurrence he saw that
blood was oozing out from the face of the
deceased and there was no bleeding from
other parts of the body. It was about 8
o'clock in the night and there was no light.
His house is 500 meters away from the
place of occurrence. None of the villagers
informed that Rajendra had killed Kailash.
Nakhdu Yadav is his cousin. There was a
dispute
between
Nakhdu Yadav
and
Rajendra Yadav in which both the sides
have implicated each other, before the
incident. He has further stated that he is not
aware that his mother had received a
cheque of Rs. 5 lakh towards motor
accident claim under the scheme of Krishak
Durghatana Bima Yojana with regard to
death of his father, Kailash Yadav in a road
accident. He has denied that the case was
registered on the wrong information given
by Nakhdu Yadav.

20. P.W.-3, Nakhdu Yadav in his
examination in chief has stated that the
incident occurred on 17.6.2012 at about
7:45 pm. On the date of the incident he and
Shankar
Yadav
were
returning
after
supplying milk. Kailash Yadav (deceased)
was ahead of them, who too was returning
after supplying milk. When they reached
near village Kateshar Bhusa Mandi Bawan
Bigha Field, they saw in the headlight of a
passing jeep that Rajendra Yadav son of
2 All. Rajendra Yadav Vs. State of U.P.
369
Jaganandan Yadav killed the deceased
Kailash Yadav by assaulting him with brick
and Kailash Yadav was stuck in the cycle.
He has further stated that he and Shanker
(P.W.4) have seen the incident. They rushed
to the spot and tried to catch Rajendra
Yadav but he escaped in the bush. They
came home and informed the sons of the
deceased about the incident. He has further
stated that he had filed a case against the
accused Rajendra Yadav in respect of
dispute of passage. Deceased Kailash
Yadav was his real uncle. The accusedappellant Rajendra Yadav was seen from a
distance of 20 paces from the place of
occurrence. He tried to save the deceased
when the accused-appellant was assaulting
the deceased but he could not catch him
because of darkness.

21. This witness has further stated
that it was dark when Rajendra was
assaulting Kailash. He has admitted that
after 10 to 15 or 20 days police recorded
his statement under section 161 Cr.P.C. He
has shown his inability to disclose whether
Jokhani Devi, wife of deceased had
received 5 lakh rupees as compensation by
showing Kailash's death as a death in a
road accident.

22. PW-4, namely, Shankar Yadav has
stated that on the day of the incident, he
alongwith Nakhdu Yadav were returning
home after supplying milk. Kailash Yadav
was ahead of them. At about 7:45 P.M.,
when they reached near Kateshar Bhusa
Mandi, Bawan Bigha Ground, they saw in
the headlight of a jeep coming from front,
which was available for one to two seconds
that Kailash Yadav was stuck in the bicycle
with his milk bucket and the accused
Rajendra Yadav was assaulting Kailash
with a brick. Accused Rajendra Yadav
killed the deceased due to enmity on
account of a dispute in respect of passage
and open land. He has further stated that he
and Nakhdu have seen the incident from a
distance of more than 15-20 paces and that
it was dark at the time of occurrence. He
admitted that the jeep did not stop at the
spot and they could not see its registration
number. He has admitted that there was
litigation pending between Nakhdu Yadav
and accused Rajendra Yadav.

23. P.W.-5, namely, Pintu Yadav is the
witness of inquest (Exhibit Ka-1). He has
also proved the recovery memo of bicycle
and milk bucket. He has been cross
examined in which he has stated that he
had signed on a blank paper. He has
admitted that since the recovery memo of
blood stained and plain earth has not been
shown to him in the court, therefore he
could not prove the said recovery. He has
further admitted that a litigation was
pending between Rajendra Yadav and his
father Nakhdu Yadav with regard to a fight
(maar-peet). He has admitted that there was
animosity between both of them.

24. P.W.- 6, namely S.I. Ramkumar
Singh has proved the chik F.I.R (which is
marked as Exhibit Ka-6).

25. P.W.-7 is Ramprakat Yadav, who
has submitted charge sheet no. 110/12
against the accused-appellant Rajendra
Yadav s/o Jaganand Yadav under section
302 I.P.C. He has been cross-examined in
which he has stated that since the alleged
weapon i.e. piece of brick has not been
shown to him in the trial Court, he was
unable to prove the same. He has stated that
he could not disclose as to on which date
and month the piece of brick has been sent
for forensic examination to the Forensic
Science Laboratory and the forensic report
has also not been produced. He has further
370 INDIAN LAW REPORTS ALLAHABAD SERIES
stated in his cross-examination that since
the number of the jeep was not revealed by
the witnesses and various Jeep passes every
day on that road, he could not locate the
jeep in the headlight of which the incident
was seen by the prosecution witnesses.

26. P.W.-8 is Sanjay Singh. He has partly
conducted investigating in this case. He
admitted that the dead body was lying in
the field at a distance of 7-8 hundred
meters from G.T. Road. He has denied that
the body of the deceased was lying on the
pitch road. He has further admitted that the
weapon of assault i.e. the piece of brick has
not been sent to the forensic science
laboratory for forensic examination. There
was no supply of electricity at the place of
occurrence and it was completely dark. He
has admitted that he has not marked the
place in the site plan from where the
witnesses have seen the occurrence. He did
not send the weapon of assault i.e. piece of
brick, blood stained and plain earth for
forensic
examination.
He
has
not
investigated whether the wife of deceased
received any amount towards road accident
claim/ insurance.

27. P.W.-9 namely, inspector Praveen
Kumar Singh has been examined who has
prepared the inquest report. He has stated
in his examination-in-chief that proceeding
of inquest started on 18/6/12 at 6 a.m. and
concluded at 7:30 am. P.W.-10 namely, Dr.
Ashok Kumar has conducted post-mortem
of the body of the deceased. He has been
cross-examined in which he alleged that
injury no. 1 may be caused from a sharp
edged weapon or due to a fall by force.
Injury No. 2 cannot come from falling on a
hard object, it can come from assault with a
blunt weapon or upon being hit by a
vehicle. Injury No. 2 can also come from a
forceful impact of a vehicle. He admitted
that Injury No. 3 can result from forceful
hit of something or forceful hit by a heavy
object and could have been the cause of
death of the deceased as the bone of his
skull was fractured. Injury No. 4 was a
grievous injury. It may be caused from a
hard object or collision. It cannot come
from fall and can also be caused with a
blunt weapon. Injury No. 4 may be caused
from iron bumper or iron fitted in the
vehicle if it is hit forcefully. Injury No. 3
was a crush injury.

28. DW-1 Lalta Prasad, was posted in
Azamgarh on 2/3/14 and not at Chandauli.
D.W.-2 Phool Chandra Yadav, Tehsildar,
Sadar Chandauli, has stated that he was not
in service on 13/5/13. The benefit of farmer
accident insurance is not only given to the
dependants of a deceased farmer who dies
in a road accident but also in cases of
drowning in rivers, ponds, etc., house
collapse, vehicle accident areas, being
bitten by animals. etc. He has further stated
that in this case, Jokhani Devi, wife of the
deceased Kailash Yadav, has been given the
benefit of Krishak Durghtana Bima Yojana
on 3/9/13 by the then Tehsildar Sadar
Chandauli.
Presently
the
village
of
deceased Kailash Nath is within the
territorial limits of Tehsil Mughalsarai.

29. From the perusal of the
prosecution witnesses, it is apparently clear
that as per the prosecution case, P.W.-3
Nakhadu Yadav, who happens to be real
nephew of the deceased and P.W.-4
Shanker Yadav are witnesses of fact/eye
witnesses, whereas P.W.-1 Muse Yadav,
P.W.-2 Boder Yadav, who happen to be the
sons of the deceased and P.W.-5 Pintoo
Yadav, who happens to be son of P.W.-3
Nakhadu Yadav, are hear-say witnesses and
other prosecution witnesses, namely, P.W.-6
to P.W.-10 are formal witnesses. From the
2 All. Rajendra Yadav Vs. State of U.P.
371
prosecution side, it is claimed that this is a
case of direct evidence in which P.W.-3 and
P.W.-4 have seen the incident with their
own eyes. Therefore, the statements of
P.W.-3 and P.W.-4 require deeper scrutiny
by us.

30. It is important for us to refer to the
statement of P.W.-3. In the examination-inchief, P.W.-3, who is stated to be 60 year of
age, has stated that on the date of the
incident he and P.W.-4 were returning
together after supplying milk. The deceased
was on a bicycle ahead of them, who was
also returning after supplying milk. When
they reached the village Kateshar Bhusa
Mandi Bawan Bigha Field, they saw in the
headlight of a jeep, coming from the front
that
the
accused-appellant
killed
the
deceased by assaulting him on his head
with a brick and the deceased was stuck in
the bicycle. He has further stated that the
incident was seen by him and also P.W.-4.
They reached the spot and tried to catch the
accused-appellant but he succeeded in
running away and hiding himself in the
bush. He has also admitted that there was
dispute qua the passage and open land
between the deceased and the accusedappellant. He has also admitted that there
was enmity between the accused-appellant
and himself qua a passage and he has also
filed a case against the accused-appellant
for title over the disputed passage, meaning
thereby that enmity between the accusedappellant and P.W.-3 is admitted on record
due to which the possibility of false
implication of the accused-appellant in the
present case by P.W.-3 cannot be ruled out.

31. He has stated in his examinationin-chief that when he arrived at the place of
incident along with Shanker Yadav (P.W-4),
the deceased Kailash Yadav was lying dead
on the road. Similarly, in the crossexamination he has stated that when he
along with Shanker Yadav (P.W.-4) reached
near the village Kateshar Bhusa Mandi
Bawan Bigha Field, they saw that the
deceased was stuck in his bicycle. From the
perusal of both the aforesaid statements of
P.W.-3, it is apparent that the deceased had
already died by when P.W.-3 and P.W.-4
reached the place of occurrence and they
have not seen the incident when it
occurred. In his cross-examination at one
place P.W.3 has stated that he saw the
accused-appellant at the place of incident
from 20 paces whereas at another place he
has stated that he saw the deceased from a
distance of 1.6 kilometer (one mile) on the
northern side of road towards Ramnagar to
Padaav. Similarly, at other place, P.W.-3 has
stated that the deceased was at a distance of
20 to 25 paces ahead from him. When the
accused-appellant
was
beating
the
deceased, he tried to save him but he could
not caught him due to darkness. He has
further stated that by the time they reached,
the accused-appellant ran away and hide
himself in bush. It was dark at the time
when he saw the accused killing the
deceased and running away. From the
aforesaid statement, it is doubtful for any
person to have seen the incident, which
occurred at a distance of 20 to 25 paces or
1.6 kilometers, when it was dark, and to
recognize the assailant who committed the
offence.

32. P.W.-4 happens to be uncle of P.W.-3
and is aged 66 years. He too is stated to be
an eye-witness of the incident. He has
stated in his examination-in-chief that at
about quarter to 8 in evening he and P.W.3
were returning home on foot after selling
milk and when they reached near village
Kateshar Bhusa Mandi Bawan Bigha Field,
they saw in the headlight of jeep, which
was available for one to two seconds that
372 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased got stuck in his bicycle along
with bucket of milk and the accusedappellant was assaulting the deceased by
brick. In the cross-examination, P.W.-4 has
stated that he and P.W.-3 were together and
they were 70-80 paces behind the deceased
and it was getting dark and nothing was
visible. He has further stated that they saw
the accused assaulting the deceased from a
distance of 15 to 20 paces. He has admitted
that there was enmity between the accusedappellant and the deceased with regard to a
passage. He has further stated that he saw
the deceased in crushed condition and the
direction of Jeep was northwards. He has
further stated that he saw the accusedappellant running but by then there was no
jeep. P.W.-3 was the first to disclose him
about the death of deceased. At another
place, P.W.-4 has stated that at that time he
knew that the death was caused by the
accused-appellant. He has further stated
that there was litigation going on between
P.W.-3 and the accused-appellant and in
that case, he went to the Court on behalf of
P.W.-3 as he is his nephew.

33. From the statements of P.W.-3 and
P.W.-4 it is clear that they saw the accusedappellant running from a distance of 15 to 20
paces and it is highly doubtful that they saw
the incident when it actually occurred. Even if
it is accepted that they saw the incident when it
occurred in the headlight of a jeep it is difficult
to believe that P.W.-4 and P.W.-3, who are 66
and 60 years of age could correctly see the
incident from a distance of 15 to 20 paces in
the dark and identify the accused correctly and
that too in the headlight of a moving jeep
which was available for a few seconds (one to
two seconds) as per P.W.-3 and P.W.-4. Both
P.W.-3 and P.W.-4 have admitted in their
statements that they could not ascertain the
number of jeep. Apart from the above, there is
strong possibility of false implication of
accused-appellant in the present case by P.W.-
3 and P.W.-4, as they have admitted that there
was litigation going on between P.W.-3 and the
accused-appellant and that P.W.-4 used to go to
Court on behalf of P.W.-3. There was
admittedly no other source of light available
on the spot as is evident from the statement of
P.W.-8 i.e. Investigating officer.

34. Upon examination of the statements
of prosecution witnesses, who are stated to be
eye-witnesses a serious doubt arises with
regard to their presence at the place of
occurrence or their seeing the incident. There
is also contradiction in the statements of
prosecution witnesses. As such we do not
deem it proper to rely upon the testimony of
inimical
and
interested
witnesses
of
prosecution to return a finding of guilt against
the accused.

35. Considering the aforesaid statements
as well as the fact that from the statements of
prosecution witnesses, we have not found that
any one from the prosecution side has seen the
incident when it occurred. We also find that
possibility of the death of the deceased
occurring in a road accident also cannot be
ruled out particularly as the defence has
proved that wife of deceased had accepted
compensation of Rs. 5 Lacs in a State
sponsored accidental insurance scheme.

36. Apart from the above, we may also
notice that there is no report of concerned
Forensic Science Laboratory in respect of
forensic examination of weapon of assault i.e.
piece of brick, which is alleged to have been
used by the accused-appellant in assaulting the
deceased due to which he has been done to
death. P.W.-8 who has conducted the
investigation has stated that he has not sent the
weapon of assault i.e. piece of brick for
forensic examination, which casts a doubt in
the prosecution case.
2 All. Sudhir Vs. State of U.P.
373

37. Similarly, recovery memo prepared
during the course of investigation qua blood
stained and plain earth, which are alleged to
have been recovered from the place of
occurrence, has not been proved by P.W.-5,
who is alleged to be a witness of such
recovery. P.W.-5 has stated that at the time of
preparation of such recovery, his signature has
been obtained by the Police on a blank paper.
The aforesaid fact also creates a dent on the
prosecution version.

38. Perusal of the site plan (Exhibit-ka/9) also
casts doubt in the prosecution case as the place
of occurrence as per the site plan and other
evidence on record, has been shifted. As per
the site plan prepared by P.W.-8 (Investigating
Officer), which has also been disclosed by him
in his statement during the course of trial, the
place of occurrence is 700 to 800 meters away
from G.T. Road, whereas as per the statement
of prosecution witnesses of fact i.e. P.W.-3 and
P.W.-4 the place of occurrence is near the
village Kateshar Bhusha Mandi Bawan Bigha
field (Maidan). Both the places are far away
from each other, meaning thereby that the
place of occurrence as per the prosecution has
been shifted, which make a flaw in the
prosecution case. The site plan also casts an
anomaly on the ground that the place from
where the prosecution witnesses of fact i.e.
P.W.-3 and P.W.-4 are alleged to have seen the
occurrence, when it occurred, has not been
marked.

39. We may also notice that on the basis
of written report of the first informant/P.W.-1,
the first information report has been lodged on
17th June, 2012 at 21:25 hrs. whereas in the
cross-examination, P.W.-8 has stated that he
reached the place of occurrence between 07:30
to 08:00 p.m. meaning thereby that the
investigation is ante-timed, which also creates
a dent on the prosecution version.

40. In view of the above discussions and
deliberation, we find that the trial court
although has referred to the testimony of
prosecution witnesses especially P.W.-3 and
P.W.-4 and the other prosecution evidence but
the same has not been carefully evaluated and
examined. We hold that prosecution has not
been able to establish the guilt of the accusedappellant beyond reasonable doubt. The
accused-appellant in the facts of the present
case is thus entitled to benefit of doubt.

41. Consequently, the appeal succeeds
and is allowed. The impugned judgment and
order of conviction and sentence dated
10.02.2021 is hereby set aside. The accused
appellant Rajendra Yadav, who is reported to
be in jail since 10th February, 2021, shall be
released forthwith, unless he is wanted in any
other case on compliance of Section 437-A
Cr.P.C.

42. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Chandauli
henceforth, who shall transmit the same to the
concerned Jail Superintendent for release of
the accused-appellant in terms of this
judgment.
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(2023) 2 ILRA 373
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, A.C.J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3503 of 2012
with
Jail Appal No. 4478 of 2012

Sudhir ...Appellant
Versus
State of U.P. ...Respondent