# Rajesh Kumar @ Pappu v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Criminal Appeal No. 4982 of 2019
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Hussain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-pappu-v-state-of-u-p-anr-49360
- **Pages:** 23

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 374,386(b)(i) &
391- Postmortem report totally belies the
prosecution story that the alleged named
accused persons gave gun shot to the deceased
persons under the shed of pumping set and
thereafter dragged their cadavers to the 'Well'
and thrown them into it--- The interest of
appellants was literally butchered by the hand of
48 INDIAN LAW REPORTS ALLAHABAD SERIES
their counsel who have strangely admitted the
genuineness of the documents produced by the
prosecution. Neither its author was examined to
establish its contents nor the circumstances in
which that document was authored. Unless and
until the genuineness of any document is not
put under the crucible and thoroughly examined
by the counsel for defence so as to elucidate
and establish its authenticity, a concession given
by the counsel for defence would certainly come
into the purview of gross injustice to the
appellants---It is the binding duty of the
presiding officer to observe that there is a level
play ground for both the parties and no one
should be at advantageous position. In fact this
is the undercurrent of Section 391 Cr.P.C. which
empowers the appellate Court to examine the
entire gamut of facts and circumstances of the
case and reach to a conclusion as to whether
the counsel for either of the parties are assisting
the court in a fair and judicious way and
manner---As soon as the appellants have
admitted
the
genuineness
of
documents,
immediately the eyebrows of the presiding
Judge ought to have been raised and he should
try to lift the veil so as to unearth the truth of
the case by summoning the various witnesses
on its own---Matter remanded.

Appeals partly allowed.(E-15)

List of the cases referred-:

## Text

_Characters 0–39,981 of 79,765. This is a partial read: ask again with offset=39981 for what follows._

11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
47
specifically
formulated,
as
separate
question, and then put to the accused,
which has not been done.

33. When the entire statement in the
question-answer form is put as the
circumstance, it would be difficult for the
accused to come up with his defence or the
explanation in respect of the substance of
evidence led against him. Section 313
Cr.P.C. is by now well-recognized as
conferring an important right upon the
accused to explain the circumstances put
against him by the prosecution in the form
of evidence to elicit his reply. Unless
questions are put in the manner required in
law such circumstance cannot be relied
upon against the accused.

34. The manner in which statement of
accused is recorded under Section 313
Cr.P.C., without formulating the question
and confronting the accused with the
circumstances, which has surfaced against
him in respect of charges levelled has
clearly denied opportunity to the accused to
explain the circumstances.

35. This reference is made to this
Court under Section 366 Cr.P.C. While
answering the reference this Court is
required to exercise its powers under
Section 366 and 367 Cr.P.C. In the event
this Court finds that proper procedure has
not been followed in recording of the
statement of accused under Section 313
Cr.P.C. it is open for this Court to cure the
defect by directing the court below to
formulate questions separately, in respect of
each circumstance, as appears against the
accused, so as to record his version in terms
of Section 313 Cr.P.C.

36. In light of the discussions
aforesaid, we direct the court of sessions to
record the statement of the accused under
Section 313 Cr.P.C. afresh, by formulating
proper questions, in light of the above
directions, to be put as circumstance relied
upon by the prosecution against the
accused. The proceedings, in that regard,
would be concluded within a period of two
months and the statement of accused shall
be remitted to this Court at the earliest.
----------
(2023) 11 ILRA 47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSSAIN
IDRISI, J.

Criminal Appeal No. 4982 of 2019
With
Criminal Appeal No. 5346 of 2019
And
Criminal Appeal No. 5347 of 2019

Rajesh Kumar @ Pappu ...Appellants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
Mrs. Vatsala, Sri Dharmendra Singh (Sr.
Advocate), Sri Lav Srivastava, Sri Santosh
Rai, Sri L.M. Singh, Sri V.P. Srivatava (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Anurag Vajpeyi, Sri Praveen
Kumar Singh
Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 374,386(b)(i) &
391- Postmortem report totally belies the
prosecution story that the alleged named
accused persons gave gun shot to the deceased
persons under the shed of pumping set and
thereafter dragged their cadavers to the 'Well'
and thrown them into it--- The interest of
appellants was literally butchered by the hand of
48 INDIAN LAW REPORTS ALLAHABAD SERIES
their counsel who have strangely admitted the
genuineness of the documents produced by the
prosecution. Neither its author was examined to
establish its contents nor the circumstances in
which that document was authored. Unless and
until the genuineness of any document is not
put under the crucible and thoroughly examined
by the counsel for defence so as to elucidate
and establish its authenticity, a concession given
by the counsel for defence would certainly come
into the purview of gross injustice to the
appellants---It is the binding duty of the
presiding officer to observe that there is a level
play ground for both the parties and no one
should be at advantageous position. In fact this
is the undercurrent of Section 391 Cr.P.C. which
empowers the appellate Court to examine the
entire gamut of facts and circumstances of the
case and reach to a conclusion as to whether
the counsel for either of the parties are assisting
the court in a fair and judicious way and
manner---As soon as the appellants have
admitted
the
genuineness
of
documents,
immediately the eyebrows of the presiding
Judge ought to have been raised and he should
try to lift the veil so as to unearth the truth of
the case by summoning the various witnesses
on its own---Matter remanded.

Appeals partly allowed.(E-15)

List of the cases referred-:

1. Sessions Judge, Nellore Vs Intha Ramana
Reddy, 1972 CrLJ 1485,

2. Brigadier Sukhjit Singh (Retd) MVC Vs St. of
U.P. & ors., 2019 (16) SCC 172,

3. Zahira Habibullah H. Sheikh & anr. Vs St. of
Guj., AIR 2004 (SC) 3114,

4. Akhtar & ors.Vs St. of Uttaranchal, Criminal
Appeal No.1590 of 2007 decided on 9th April,
2009

5. St. of Rajasthan Vs Asharam @ Anshumal,
2023 SCC Online SC 423

6. Munna Pandey Vs St. of Bihar, Criminal
Appeal no.1271-1272 of 2018) dated 04th
September, 2023
(Delivered by Hon'ble Mohd. Azhar
Hussain Idrisi, J.)

(1). Heard Shri V.P. Srivastava,
learned Senior Counsel assisted by Shri
Santosh Kumar Rai and Shri L.M. Singh,
learned counsel for the appellants and Shri
Praveen Kumar Singh, learned counsel for
the informant as well as Shri Ghanshyam
Kumar, learned A.G.A.-I for the State of
U.P. Perused the record of the case.

(2). Since all the three appeals were
admitted on 20.2.2020 and the lower court
record is available. Learned counsel for
contesting parties are ready and willing to
argue the case finally on the merit of the
case. They have furnished the summary of
the case, moot issues to be raised during
arguments and have also supplied the
citations on which they want to rely upon.
Thus, the Court has got no option or even
objection to decide all the three appeals
finally with the help and aid of respective
counsels for the parties as well as learned
counsel for the State.

(3). After the arguments and the
judgment was reserved, the Court has lay
its hand over a very valuable quotation
which gives an insight about the issue
involve and plays a pivotal role in deciding
these appeals. It reads thus :-

"Justice has nothing to do with
what goes in the courtroom; Justice is
what comes out of a courtroom."

By Clarence Darrow

Aforementioned lines would act
as beacon light for us while deciding
aforementioned appeals. Elaborating these
golden lines, it is evident that courtroom
proceeding is an arena whereby two legal
opponents representing their respective
clients, muster their legal acumen to
11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
49
impress upon the Judge. But it is the Judge
and his verdict on the issue and his
endeavour to search out the truth by using
his robust legal sense, come out his final
verdict on the issue.

Thus,
from
aforesaid,
it
is
established that answer of the aforesaid
gobbet is the litmus test for any judgment
and deciding the 'issue' between the
parties.

INTRODUCTORY :-

(4). The learned Special Judge
(SC/ST Act), Varanasi vide judgment and
order dated 15/16.7.2019 while deciding
S.S.T. No.212 of 1999 (State vs. (i) Radhey
Shyam Lal s/o Ghorahu Srivastava, (ii)
Pratap s/o Ram Awadh (iii) Jagannath s/o
Ram Awadh and (iv) Rajesh Kumar @
Pappu @ Gandhi s/o Mohan Srivastava),
who were convicted for offence u/s 302/34,
201 of I.P.C. and Section 3(2)(5) of SC/ST
Act
and
were
sentenced
for
life
imprisonment and a fine of Rs.50,000/- for
the offence u/s 201 I.P.C. for seven years
rigorous imprisonment and a fine of
Rs.20,000/- and u/s 3(2)(5) SC/ST Act for
life sentence and a fine of Rs.50,000/- were
awarded and in the case of default in
paying the fine amount the additional
duration of simple imprisonment were also
awarded. All the sentences would run
concurrently.

(5). Aggrieved by the aforesaid
judgment and order of sentence Rajesh
Kumar @ Pappu has filed Criminal Appeal
No.4982 of 2021, Radhey Shyam Lal has
filed Criminal Appeal No.5346 of 2019 and
Pratap and Jagannath have filed Criminal
Appeal No.5347 of 2019. For the sake of
brevity and convenience, all the three
appeals are being jointly decided by a
common judgment.

(6). After having the marathon
arguments advanced by the counsels for the
rival parties, it is imperative to give a bird's
eye view to the prosecution story as
mentioned
in
the
F.I.R.
and
other
undisputed facts.

(7) FACTUAL MATRIX :

(I) Shri Shyam Narayan Ram on
22.4.1998 around 5.30 in the morning have
succeeded in lodging the F.I.R. for the
incident said to have been taken place on
21/22.4.1998 itself around 01.00 in the
night, under Sections 302/34 and Section
3(2)(5) of SC/ST Act against (i) Radhey
Shyam Lal, (ii) Pratap Kumhar, (iii) Pappu
@ Gandhi and (iv) Jagannath for the
alleged killing of his parent Mohan Ram
and Smt. Bodha Devi. The distance
between the place of occurrence and the
police station is hardly six kilometres.

(II)
The
First
Informant
is
permanent resident of Police Station
Dhanapur, Chandauli. The parent of the
informant Mohan Ram and Bodha Devi
(parent of informant) used to sleep in the
shade of a pumping set belonging to one
Kamla Singh.

On the fateful day, both of them
went to the agriculture field, near the
pumping set. From the FIR itself, it is
admitted that there was some dispute
regarding the landed property between the
rival groups i.e. deceased and appellants. In
addition to this, about two days back Pratap
Kumhar was taking out some nut and bolts
from the trolley belonging to Panna Lal,
and when objected by Panna Lal, then
Pratap Kumhar started hurling filthy abuses
and have extended threats. On this score,
the named accused persons
(i)
Radhey Shyam Lal, (ii) Pratap Kumhar,(iii)
Jagannath and (iv) Pappu @ Gandhi came
on the place of incident around 01.00 in the
50 INDIAN LAW REPORTS ALLAHABAD SERIES
pitch dark of night and they jointly have
committed the offence by giving a gun shot
injury to his parent Mohan Ram and Bodha
Devi (the deceased persons). After hearing
the noise of gun shot, the Informant; Ram
Dular (PW-2) and Dashmi who were also
harvesting the agriculture crop of Kamla
Singh at nearby place from pumping
station, have seen/heard the incident in the
moonlight and also when they came to the
tubewell in the light of the bulb having
sufficient lights, have seen that Radhey
Shyam Lal was carrying a gun, Pratap
Kumhar was having a country made pistol
(Katta) and Jagannath and Pappu were
dragging the informant's parent Mohan
Ram and Bodha Devi and thereafter thrown
their body into the Well. The informant and
others got horrified as the assailants were
carrying guns with them. They hide
themselves and only after the resile of the
assailants, informant came on the spot and
have seen the parent inside the Well. They
have raised the alarm and the co-villagers
came on the spot. They were scared,
resultantly they could not inform the police
in the night itself. They came to police
station early in the morning at 5.30 of
22.4.1998 to lodge the FIR.

(8). From the aforesaid factual matrix
as culled out from F.I.R., it is clear that it
was the pitch dark, around midnight when
the parent of the informant were murdered
by the name accused persons by using their
firearms.
The
informant
and
other
witnesses have seen that assailants were
dragging the corpus of Moham Ram and
Bodha Devi to the Well and they have
thrown their body into the Well. Previous
animosity on account of some landed
property and an incident two days prior are
the trigger points for alleged offencive by
the appellants against the parent of the first
informant.

(9). After lodging of FIR, (i) on
22.4.1998 the police has recovered a blood
soaked 'Sitarami' (scarf), allegedly belongs
to appellant Pratap, from the place of
occurrence. A 'Fard' of alleged blood
soaked Gamchha/Sitarami/scarf belonging
to Pratap was prepared by the police (Exb5). (ii) on 22.4.1998 at 10.30 p.m. the
police has recovered a SBBL licensee gun
belonging to Radhey Shyam. The police
has recovered SBBL licensee gun and one
empty cartridge of 12 bore. The barrel of
the gun was smelling 'gun powder', which
was marked as (Exb.-6). (iii) On the same
day, during investigation, the police after
approaching the place of incident under the
shade of pumping set, the police has
recovered the three empty cartridges of 12
bore, one live cartridge of 12 bore of KF
Special brand, dot, tikli and pallets were
also recovered and a fard of which was
prepared and exhibited as (Exb.-7). (iv)
During investigation the police has also
recovered blood soaked earth and plain soil
from the place of occurrence (Exb.Ka-8),
suggestive of the fact that incident took
place
under
the
shade.
All
these
exercises/recoveries were done by the
police on 22.4.1998 during investigation.

(10). In addition to this, after lodging
of the FIR, an inquest proceeding was
initiated of Bodha Devi and Mohan Ram @
Fazihat. The proceeding of inquest of
Bodha Devi was started on 8.05 a.m. on
22.4.1998 and concluded at 9.45 a.m.,
whereas the inquest of Mohan Ram @
Fazihat was started at 06.45 a.m. on the
same day and ended at 08.00 a.m.

We have perused the contents of
the inquest reports as well as contents of
F.I.R., the information was given to the
police that the deceased were murdered by
11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
51
giving a gun shot injury '(goli mar kar
hatya kar di gayi hai).'

In addition to this, one of the
startling feature of this inquest report was
that after taking out the dead body from the
Well, the dead bodies of the deceased
persons were absolutely 'naked', except the
lady Bodha Devi was covering her breasts
by the blouse. Not a single clothe was over
their persons. In the inquest report all the
Panch have observed that none of the
deceased persons have sustained any gun
shot injury over their persons. After
conclusion of the inquest, dead body of
Bodha Devi was handed over to constables
on 22.4.1998 at 9.45 a.m., whereas the dead
body of Mohan Ram was handed over on
22.4.1998 at 08.00 a.m. to same set of
constables
for
further
formalities
of
postmortem. Both these inquest reports
were marked as Exb.Ka-9 and Exb. Ka-10
on 28.4.2005.

(11). Autopsy report of Bodha Devi is
of 24.4.1998, though her dead body was
handed over to the constables to carry out
her postmortem on 22.4.1998 at 09.45 a.m.
It is interesting to mention that the
postmortem report of Mohan Ram @
Fazihat too, is of 23/24.4.1998 by the
Medical
Officer,
SSPG
Hospital,
Varanasi. It is worthwhile to mention
here, that from Chandauli Police Station
to SSPG Hospital, Varanasi is barely 76
kms far. This unwarranted delay in
bringing the dead body to the SSPG
Hospital, Varanasi goes to the core of
the
prosecution
case
and
remain
unexplained by the prosecutor. No
probable justification coming forward
for this serious lapse in the prosecution
case, which was unfortunately ignored
by the learned trial Judge in his
impugned judgment.

(12). The postmortem report of the
deceased Bodha Devi dated 22/24.4.1998 at
2.30 p.m. indicates that she has sustained 7
injuries over her person, but none of the
injuries were caused by any firearm. As per
opinion of the doctor, the cause of death is
serious damage in the spinal cord and
fracture over the vertebras. Similarly, the
autopsy report of Mohan Ram @ Fazihat
dated 24.4.1998 indicates that he has
sustained 16 injuries over his person, but
none of them are caused by the firearm and
cause of death is the same i.e. serious
damage in the spinal cord causing his
death. At this juncture, the prosecution has
to bridge, the alleged recovery of blood
soaked scarf of Pratap from the place of
occurrence, blood soaked earth from the
shade of pumping set where they used to
sleep, empty and live cartridges, tickli,
pallets, suggesting that two persons have
died by gun shot. But the postmortem
report totally belies the prosecution story
that the alleged named accused persons
gave gun shot to the deceased persons
under the shed of pumping set and
thereafter dragged their cadavers to the
'Well' and thrown them into it.

(13). Yet another aspect of the issue
which deserve attention of the Court is that
though the postmortem of Mohan Ram @
Fazihat was initiated on 23.4.1998 itself,
but there was serious dispute regarding the
fact that there is no firearm injury found
over his person and on this issue a dispute
arose, as such, the C.M.O., Varanasi
postponed
the
postmortem
and
on
24.4.1998 the S.O., Dhanapur was called
for and the postmortem was concluded on
24.4.1998 at 2.00 p.m.

(14). During investigation, the police
has concluded all the necessary formalities
viz; sending the recovered cartridges to the
52 INDIAN LAW REPORTS ALLAHABAD SERIES
FSL for its examination, preparing the site
plan,
sending
the
alleged
Sitarami/Angauchha
to
the
FSL
and
concluding
the
investigation
have
submitted its report u/s 173(2) Cr.P.C.
against all the named accused persons
namely; (i) Radhey Shyam Lal, (ii) Pratap,
(iii) Jagannnath and (iv) Rajesh Kumar @
Pappu @ Gandhi u/s 302, 201 I.P.C. and
3(2)(5) of SC/ST Act and on 30.6.1998 the
cognizance of the offence was taken by the
concerned Magistrate.

(15). Being a cognizable offence, the
case was remitted to the court of Sessions
on 18.02.1999, and thereafter, the learned
Session Judge, after framing the charge and
explaining to accused persons, have framed
the charge u/s 302/34, 201 I.P.C. and
Section 3(2)(5) of SC/ST Act and the
accused persons declined to admit their
guilt and have insisted to be tried.

(16). The prosecution has produced
the following documents to establish their
case. Surprisingly, the counsel for the
defence without calling their respective
authors, have abruptly and blindly admitted
the genuineness of those documents as a
result thereof the learned trial Judge by one
stroke of pen on one and same day have
exhibited the following documents:-

(i) Tehrir Report (Exb Ka-1), (ii)
Chik FIR (Exb Ka-2), (iii) GD Entry (Exb
Ka-3), (iv) Site plan (Exb Ka-4), (v) Fard
recovery of blood soaked Sitarami/scarf
(Exb Ka-5),

(vi) Fard recovery
of the gun (Exb Ka-6), (vii) Fard empty
cartridges/miss
cartridge/live
cartridge
(Exb Ka-7), (viii) blood stained earth and
plain
soil
(Exb
Ka-8),
(ix)
Panchnama/inquest report (Exb Ka-9 and
Ka-10), (x) police form 13 (Exb Ka-11 and
Ka-12), (xi) Photonash (Exb Ka-13 and Ka14), (xii) report by SHO, PS. Lanka (Exb
Ka-15), (xiii) report by Dhanapur police
station (Exb Ka-16), (xiv) Chemical
examination report (Exb Ka-19), (xv)
postmortem reports (Exb Ka-21 & 22),
(xvi) charge sheet (Exb Ka-23), (xvii) FSL
reports (Exb Ka-24 & 25). These are the
documentary evidences which were placed
by the prosecution to establish their case. In
addition to this the oral testimony of P.W.-1
Shyam Narayan Ram and P.W.-2 Ram
Dular (witnesses of fact) were examined.

(17). Shri V.P. Srivastava, learned
Senior counsel has urged that this is the
most startling feature of the entire
prosecution is that an extraordinary
strange and suicidal attempt was made
by the counsel for the defence that
without bringing the respective authors
of the aforesaid documents and crossexamining them, the counsel for the
defence abruptly and strangely have
accepted the genuineness of the aforesaid
documents. This indeed was a Judicial
Harakiri by the defence counsel, who for
the reasons best known to him, without
calling these witnesses have accepted the
genuineness,
and
accordingly,
the
learned Trial Judge in a most mechanical
fashion exhibited all the documents as an
admitted one.

Not only this, defence counsel
has never produced any defenct witness
to
establish
the
innocence
of
the
appellants. In addition to it, scholars
have embraced by their experience that-
multa exercitatione facilius quam regulis
percipies: (A seasoned law practitioner
perceive many things more easily by
experience than by rules). Because
knowing rules is one thing, but knowing
how they are enforced and how they
apply to a specific case is quite another.
11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
53

(18). At this juncture, the Court has
laid his hands to a famous quotation of
Harry Browne :

"A fair trial is one in which the
rules of evidence are honored, the accused
has competent counsel, and the judge
enforces
the
proper
court
room
procedures- a trial in which every
assumption can be challenged."

There is also proverb in this
regard that "Non in legendo sed in
intelligendo leges consistent" which make
us understand that laws depend not on
being read but on being understood.

(19). Shri V.P. Srivastava, learned
counsel for the appellants have submitted
that on 12.01.2000 the two affidavits
carrying the thumb impression/signature of
Shyam Narayan Ram and Ram Dular s/o
Buddhu Harijan, were filed in the court of
Special Judge, SC/ST Act, Varanasi. Shyam
Narayan Ram, the informant, in his
affidavit dated 12.01.2000 states as under :

"समक्ष- न्यायालय स्पेशल जज एस.सी.एस.टी.
वाराणसी

सत्र परीक्षण संख्या 212 सन् 99

शपथ पत्र श्याम नारायण उम्र 25 वर्ष पुत्र स्व०
मोहन उर्ष र्जजहत हररजन जनवासी मीरापुर थाना-धानापुर जनपद
चन्दौली बहलर् जनम्नजलजित बयान करता ह ैः-

1. यह जक शपथकताष बहलर् बयान करता ह जक
मुकदमा में वह वादी ह उसके जपता व माता का मर्षर जकया गया ह
न्यायालय के आदेशानुसार वह न्यायालय हाजजर हो रहा ह ।

2. यह जक जदनांक 21.04.98/22.04.98 वह
कमला जसंह के िेत में गेह ूँ काट रहा था रात में करीब 1 बजे र्ायर
हुआ था वह शोर सुनकर कमला जसंह के पजम्पंगसेट पर आया। वहाूँ
पर हमने नहीं देिा जक अजियुक्त गण राधेश्याम लाल, पप्पू उर्ष
गांधी, प्रताप, जगरनाथ जो हमारे गांव के हैं मौजूद हैं। रात में करीब
तीन बजे माता जपता को िोजा गया था। एर्०आई०आर० की
सूचना मेरे बहनोई ने जदया एवं जहां कहा अंगूठा जनशान लगा जदया।
जब हम लोग रात में पजम्पंग सेट पर गये थे उस समय वहां अंधेरा
था।

3. यह जक शपथकताष बहलर् बयान करता ह जक
वास्तव में पुजलस ने उससे कोई बयान नहीं जलया ह ।

यह जक शपथकताष बहलर् बयान करता ह जक वह
जो कुछ हलर्नामा दे रहा ह वह सब सही ह ।
जन०अं० श्याम नरायण
सत्यापन

मैं, मुजजहर बहलर् सत्याजपत करता ह ूँ जक हलर्नामा
हाजा दर्ा 1 ता 4 सब सच व सही ह कोई बात इसमें असत्य नहीं
ह और न जछपायी गई ह । इबारत तसदीक दीवानी कचहरी वाराणसी।

जदनांकैः 12.01.2000 शपथ कताष

जन०अं० श्याम नरायण"

Ram Dular, in his affidavit dated
12.01.2000 states as under :
"समक्ष- न्यायालय स्पेशल जज एस.सी.एस.टी. वाराणसी
मुकदमा नं० 212 सन् 99
सरकार बनाम राधेश्याम वग ०
शपथ पत्र

शपथ पत्र राम दुलार पुत्र बुद्धू हररजन जनवासी मीरापुर
थाना-धानापुर जजला-चन्दौली बहलर् जनम्नजलजित बयान करता
ह ैः-

1. यह जक शपथ कताष बहलर् बयान करता ह जक
वह मुकदमा हाजा में अजियोजन पक्ष का गवाह नं०2 ह ।

2. यह जक शपथ कताष बहलर् बयान करता ह जक
जदनांक 22.04.98/21.04.98 ई० की रात को वह घर पर
सोया हुआ था। रात करीब तीन बजे गांव में हल्ला हुआ, सोर
सुनकर कमला जसंह के पजम्पंग सेट पर हम लोग गये। बोधा देबी व
मोहन की लाश कुएूँ में थी हम िेत में कटाई नहीं कर रहे थे न ही
मेरे साथ श्याम नारायण थे। हमने जकसी को गोली मारते हुए या
बन्दूक के बटों से अथवा लाठी से नहीं देिा ह न ही हमने पुजलस के
सामने बयान जदया ह न ही पुजलस हमसे कुछ पूछी ह । न्यायालय द्वारा
सम्मन जमलने पर प्राथी हाजजर अदालत हुआ ह ।

3. यह जक शपथ कताष बहलर् बयान करता ह जक
घटना के जवर्य में वह कुछ देिा नही ह बजल्क लाश को रात में
3.30 बजे के करीब जब श्यामनारायण टाचष जलाकर देि रहे थे
तब हमने िी लाश को कुएं के अन्दर पडा हुआ देिा था।
सत्यापन

मैं मुजजहर बहलर् सत्याजपत करता ह ूँ शपथपत्र हाजा
दर्ा 1 ता 3 मेरी जनजी जानकारी में सत्य सच व सही ह कोई बात
न तो असत्य ह और न जछपायी गई ह । इबारत तसदीक अन्दर
अहाता दीवानी कचहरी वाराणसी में जकया।
54 INDIAN LAW REPORTS ALLAHABAD SERIES
जदनांकैः12.01.2000 शपथ कताष
रामदुलारे"

(20). In continuation of the same, in
the year 2019 the learned DGC (Crl) have
moved three applications u/s 29ख, 30ख and
31ख u/s 311 Cr.P.C.. Vide order dated
20.5.2019 all these three applications were
disposed of by the court concerned,
whereby the application No.29ख and 30ख
were rejected on the ground that since the
matter is of oldest category, and therefore,
there is no need of summoning the desired
prosecution witnesses for re-examining
them.
Order
dated
20.5.2019
while
disposing of all three applications by the
Special Judge, SC/ST Act, Varanasi is
quoted herein below :

"20-05-2019

पत्रावली पेश हुई। पुकार करायी गयी। अजियुक्तगण
अनुपजस्थत ह , जजनकी हाजजरी जररये अजधवक्ता आज के जलये मार्
की गयी।

पत्रावली
वास्ते
आदेश
प्राथषनापत्र
संख्या
29ि,30ि,व 31ि जनयत ह ।

जदनांक 17.05.2019 को पत्रावली वास्ते बहस
जनयत थी। दौरान बहस जवद्वान जवशेर् अजियोजक द्वारा यह अवगत
कराया गया जक पूवष में जदनांक 12.05.2005 को अजियोजन
द्वारा प्रस्तुत उपरोक्त प्राथषनापत्र का जनस्तारण नही जकया गया अतैः
मामले में जनणषय से पूवष उक्त प्राथषनापत्रों का जनस्तारण आवश्यक ह
अतैः न्यायालय द्वारा पूवष जतजथ पर उपरोक्त प्राथषनापत्रों पर बहस सुनी
गयी।

प्राथषनापत्र 29ि इस आशय का प्रस्तुत जकया गया ह
जक मामले में मृतकों की पोस्ट माटषम आख्या मे अंजकत मृत्यु का
कारण स्पष्ट करने के जलये जचजकत्सक एस०के० श्रीवास्तव को तलब
जकया जाय।

प्राथषनापत्र 30ि इस याचना के साथ अंजकत जकया
गया ह जक र्दष िून लगा गमछा, र्दष एस०बी०बी०एल०
बन्दूक,र्दष कारतूस, र्दष िून आलूदा जमट्टी व सादी जमट्टी एवं नक्शा
नजरी को साजबत करने के जलये जववेचक को तलब जकया जाय।

प्राथषनापत्र 31ि इस याचना के साथ जदया गया ह
जक धारा 313 द०प्र०सं० के बयान में कुछ प्रश्न पूछने से रह गये ह
अतैः उन प्रश्नों को पूछने के जलये दौबारा 313 द०प्र०सं का बयान
कराया जाय।

उपरोक्त प्राथषनापत्र के समथषन में जवशेर् अजियोजक
द्वारा यह तकष जदया गया जक मामले में दो व्यजक्तयों की हत्या की गयी
ह और अजियोजन का वाद साजबत करने के जलये उपरोक्त साक्ष्यों
की आवश्यकता ह अतैः समस्त प्राथषनापत्र स्वीकार जकया जाय।

बचाव पक्ष के जवद्वान अजधवक्ता द्वारा उपरोक्त
प्राथषनापत्रों का जवरोध इस आधार पर जकया गया जक मामला
अजतप्राचीन ह । प्राथषनापत्र सन् 2005 में प्रस्तुत जकये गये थे,
जबजक उससे पूवष औपचाररक साक्षी तलब जकये जाने के स्तर पर
बचाव पक्ष द्वारा समस्त अजियोजन प्रपत्रों की औपचाररक
प्रमाजणकता को स्वीकार कर जलया गया ह , इसजलये साक्षीगण को
मात्र प्रपत्र साजबत करने के जलये तलब जकये जाने की आवश्यकता
नही ह और ऐसा जकये जाने पर मामले में अनावश्यक जवलम्ब काररत
होगा। अजतररक्त बयान 313 द०प्र०सं० के सन्दिष में बचाव पक्ष का
कथन ह जक यजद न्यायालय उजचत पाती ह तो किी िी व जकसी िी
स्तर पर अजियुक्तगण के अजतररक्त परीक्षा कर सकती ह ।

उिय पक्षों के तको को सुना एवं पत्रावली का
पररशीलन जकया।

वतषमान वाद की घटना 22-04-1998 की ह
जजसमें आरोप जदनांक 01-10-1999 को जवरजचत जकया गया।
मामले में दो साक्षी पी०र्ब्लू०-1 श्याम नरायन व पी०र्ब्लू०-2
राम दुलार को परीजक्षत जकया जा चुका ह । अंजतम साक्षी जदनांक
28-04-2005 को परीजक्षत जकया गया। उसके पश्चात् जदनांक
28-04-2005 को ही बचाव पक्ष के जवद्वान अजधवक्ता द्वारा
अजियोजन प्रपत्रों के औपचाररक प्रमाजणकता को स्वीकार जकया
गया। तत्पश्चात् जदनांक 04-05-2005 को धारा 313 द०प्र०सं
के अन्तगषत अजियुक्तगण के बयान दजष जकये गये।

उपरोक्त प्रजिया समाप्त होने के उपरान्त जदनांक 1205-2005 को प्रश्नगत प्राथषनापत्र अजियोजन की ओर से प्रस्तुत
जकया गया। जदनांक 24-05-2005 को धारा 311 द०प्र०सं के
अन्तगषत अजियोजन द्वारा प्राथषनापत्र प्रस्तुत कर पन्नालाल को
परीजक्षत जकये जाने की याचना की गयी। उक्त प्राथषनापत्र जनरस्त करने
के आदेश जदनांजकत 24-04-2005 के जवरुद्ध अजियोजन द्वारा
माननीय उच्च न्यायालय के समक्ष याजचका संख्या 5560/2005
योजजत की गयी जजसमें आदेश जदनांजकत 16-05-2005 पाररत
कर अजियोजन को एक अवसर जदया गया। तत्कालीन पीठासीन
अजधकारी द्वारा माननीय उच्च न्यायालय के आदेश के अनुपालन में
अजियोजन को अवसर जदया गया और अजियोजन द्वारा साक्षी के
परीजक्षत न करने के कारण अवसर जदनांक 26-05-2005 को
11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
55
समाप्त कर जदया गया। उक्त आदेश के जवरुद्ध वादी की तरर् से
प्रकीणष वाद अन्तगषत धारा 482 द०प्र०सं संख्या 6421/2005
योजजत जकया गया और याजचका सूचीबद्ध होने तक वाद की
कायषवाही स्थजगत कर दी गयी। उक्त आदेश के माध्यम से याजचका
को जुलाई सन् 2005 के अंजतम सप्ताह में सूची बद्ध करने का
आदेश पाररत जकया गया और आदेश के अनुपालन के सम्बन्ध में
न्यायालय से आख्या आह त की गयी। तत्कालीन पीठासीन
अजधकारी द्वारा आख्या 05-07-2005 को प्रेजर्त की जा चुकी
ह ।

वतषमान में माननीय उच्चतम् न्यायालय द्वारा एशियन
रिसफेशसिंग आफ िोड एजेन्सी प्राईवेट शिशिटेड बनाि
सी०बी०आई० में पाररत आदेश के अनुपालन में आदेश जदनांक
14-02-2019, 26-02-2019 एवं 11-03-2019 पाररत
कर स्थगन आदेश के समाप्त होने की अवधारणा करते हुए पत्रावली
वास्ते बहस जनयत की गयी।

शनस्तािण प्रार्थनापत्र 29ख व 30खः-

उपरोक्त दोनों प्राथषनापत्रों में अजियोजन द्वारा
अजियोजन प्रपत्रों व उनमें उजल्लजित तथ्यों को साजबत करने के
जलये साक्षी को तलब करने की याचना की गयी। जबजक बचाव पक्ष
द्वारा अजियोजन प्रपत्रों की औपचाररक प्रमाजणकता को स्वीकार
जकया गया और तथ्यों से इन्कार जकया गया। उल्लेिनीय ह जक
औपचाररक प्रमाजणकता अथाषत् प्रपत्रों का जनष्पादन स्वीकार करने के
उपरान्त उसके तथ्यों की प्रमाजणकता को अजियोजन द्वारा प्रस्तुत
मौजिक साक्ष्य के आधार पर परिा जा सकता ह । ऐसी दशा में
मामले की प्राचीनता को ध्यान में रिते हुए औपचाररक साजक्षयों को
तलब जकये जाने की आवश्यकता यह न्यायालय नहीं पाती ह ।

तदनुसार प्राथषनापत्र 29ि व 30ि जनरस्त जकया
जाता ह ।

प्रार्थनापत्र 31ख का शनस्तािणः-

उक्त प्राथषनापत्र के माध्यम से हेतुक पररजस्थजत एवं
रोशनी आजद के बावत अजतररक्त बयान अन्तगषत धारा 313
द०प्र०सं की याचना की गयी। उल्लेिनीय ह जक उक्त प्राथषनापत्र
जदनांक 12-05-2012 को योजजत जकया गया था। पत्रावली के
पररशीलन से यह पररलजक्षत होता ह जक जदनांक 16-05-2005
को उपरोक्त जबन्दुओ के सन्दिष में अजतररक्त बयान अन्तगषत धारा
313 द०प्र०सं दजष जकया जा चुका ह । अथाषत् यह उपधारणा की
जायेगी जक जदनांक 16-05-2005 को प्राथषनापत्र स्वीकार करते
हुए बयान अन्तगषत धारा 313 द०प्र०सं दजष जकया जा चुका ह ।
दूसरे शब्दों में कहा जाय तो प्राथषनापत्र 31ि स्वतैः जनस्ताररत हो
चुका ह ।

उपरोक्तानुसार प्राथषनापत्र के जनस्तारण के उपरान्त इस
न्यायालय के समक्ष पत्रावली में बहस सुनकर जनणषय पाररत करने के
अलावा अन्य कोई जवकल्प शेर् नहीं ह ।

अतैः पत्रावली जदनांक 22-05-2019 को वास्ते
बहस पेश हो।
जवशेर् न्यायाधीश (एस०सी०/एस०टी०) एक्ट
वाराणसी"

(21). The aforesaid affidavits were
taken on record, finds reference in para 19
of the judgment, but it seems from the
judgment that, Dashmi who is one of the
eye-witness along with the informant and
Ram Dular have allegedly managed to
extract the aforesaid affidavits from the
respective deponents taking the advantage
of their illiteracy and on very next date
when they came to know about this
affidavit, they have filed yet another
affidavit on 19.2.2000 denying the contents
of earlier affidavit as clarified by P.W.-1
and P.W.-2 in their respective depositions.
On similar lines, P.W.-2 has also given his
testimony denying the contents of paper
No.10ख, their alleged affidavit. It has been
contended that both of the witnesses have
not given their affidavits on their own
sweet wills. When they came to know
about the fraud by own man and an eyewitness Dashmi, they have rectified their
mistake by giving yet another affidavit 16ख/1. But there is no denial of the fact that
the informant and Ram Dular has given two
affidavits which finds reference in para 19
of the instant judgment.

(22). Shri Srivastava, learned counsel
for the appellants, have contended that it is
just possible that there might be some
genuine confusion that the informant does
not want to prosecute the appellants and
that is why they have given their affidavits
on 12.2.2000, though which was later on
withdrawn by the P.W.-1 and P.W.-2.

In this backdrop of the case, the
defence counsel might have given this
56 INDIAN LAW REPORTS ALLAHABAD SERIES
concession,
while
admitting
the
genuineness
and
authenticity
of
the
documents produced by the prosecution,
otherwise
there
could
not
be
any
conceivable good reason that the defence
counsel without looking to the papers gave
a sweeping nod, while admitting the
genuineness of those papers. This indeed an
extraordinary situation rather a judicial
hara-kiri by the defence counsel, which
normally no defence counsel would do. It's
true that accepting and admitting the
genuineness of those documents is now
admissible under Section 294 of Cr.P.C. It
is a settled proposition of law that if
genuineness of any document filed by a
party is not disputed by the opposite party,
it can be read as substantive evidence as
per provisions of sub-section (3) of Section
294 of Cr.P.C. Accordingly, the postmortem
report
and
other
documents,
if
its
genuineness is not disputed by the defence
counsel, the said postmortem report can be
read as a substantive evidence to prove the
correctness
of
its
contents
without
summoning its author. The order dated
28.4.2005 passed by the Special Judge,
SC/ST Act in S.T. No.212 of 1999 reads
thus :

"Case called out.

Accused persons Radhey Shyam
Lal, Pratap Jagannath and Rajesh Kumar
@ Pappu @ Gandhi are present in persons
on bail with their learned defence counsel
Sri P.N. Tripathi.

Remaining cross examination of
P.W.-2 Ram Dulare is concluded today.

Learned prosecution counsel Sri
Ajai Kumar Singh assisting through public
prosecutor Sri Suresh Singh, learned
ADGC (Crl.) for State, refused to produce
and examine any more witness of fact and
prayed for summoning formal witnesses.

Learned defence counsel Sri P.N.
Tripathi examined the record of the case in
the light of statement of examined fact
witnesses
and
proposed
to
admit
genuineness of prosecution papers sought
to be formally proved by the formal
witnesses with the prayer for not to
summon formal witnesses by dispensing
formal proof of the prosecution papers by
summoning
the
formal
witnesses.
Accordingly, he was allowed. Learned
defence counsel admitted genuineness of all
prosecution
papers,
not
proved
by
examined fact witnesses P.W.-1 and P.W.-2.
Accordingly, summoning of formal witness
is dispensed with and the prosecution
papers, of which genuineness is admitted
by defence, are exhibited. Accordingly,
prosecution evidence is closed. Fix 4.5.05
for recording statement of accused persons
u/s 313 Cr.P.C.
Sd.-Ill.
Spl. J. (SC & ST) Act."

DISPOSAL OF APPLICATION
U/S 391 Cr.P.C. FILED BY THE
APPELLANT :

(23). After reading of aforesaid order
dated 28.4.2005, it speaks volumes about
Sri P.N. Tripathi, learned counsel for the
defence, who allegedly declined to crossexamine the prosecution witnesses. Not
only this for the reasons best known to the
concerned counsel, without summoning the
remaining formal or witnesses of fact and
insist them to establish the genuineness of
documents and their contents, abruptly and
strangely foregone his valuable right to
cross-examine the remaining witnesses.
Consequently, the learned trial Judge by
one stroke of pen, Exhibited all the
prosecution documents. This order by itself
smacks
foul.
Under
the
normal
circumstances,
acceptance
of
the
genuineness of the prosecution documents
is only a rare and exceptional case, but the
way and the manner the defence counsel
11 All. Rajesh Kumar @ Pappu Vs. State of U.P. & Anr.
57
has accepted was never before and
detrimental to the interest of his party, to
whom he is representing in the court of law.
The court should have raised his eyebrows
immediately
on
this
extraordinary,
uncommon behaviour of the learned
defence counsel. The court is not helpless
or it cannot dance on the tune of the
counsels.

(24). It is urged by learned senior
counsel Shri Srivastava, for the appellants
that this would be extremely harsh and
heavy upon the appellants. No doubt that
the counsel for the defence has shown his
'professional incompetence' or he was
under some mistaken conception that the
parties are coming to truce and summoning
of the evidence/author of the document
may cause unwarranted dragging of the
case, as such, he has accepted their
genuineness. But fact remains that this has
caused a bundle load of complication in the
matter, resultantly the appellants were
condemned and convicted for the offences,
which they have never done or might have
falsely implicated by the prosecution.

(25). While pendency of instant
appeals, an application u/s 391 Cr.P.C. was
filed by the counsel for the appellants on
07.10.2020 with the prayer to allow this
application for additional evidence and
summon the Investigation Officer Sri Rajiv
Ranjan Maurya, then posted at Police
Station Dhanapur, District Chandauli and
Dr. A.K. Srivastava, Medical Officer, SSPG
Hospital
Kabirchaura,
Varanasi
for
examination
and
recording
of
their
statements as additional evidence.

In the affidavit filed in support of
application u/s 391 Cr.P.C., it has been
mentioned that :-

"4. That along with the appeal
appellant also filed bail application but the
same has been rejected vide order dated
30.7.2020 and appeal has been directed to
be placed for hearing after preparation of
paper book.

5. That in the above noted case
only first informant Shyam narayan was
examined as P.W.-1 whereas alleged eye
witness Ram Dular was examined as P.W.-2
and except these two witnesses no other
prosecution witnesses have been examined.

6. That at the time of submission
of chargesheet in the case, prosecution has
shown 30 witnesses including Investigating
Officer Sri Rajiv Ranjan Maurya, then
posted at Police Station Dhanapur District
Chandauli, Dr. A.K. Srivastava Medical
Officer, S.S.P.G. Hospital Kabirchaura
Varanasi and Dr.S.K. Srivastava Medical
Officer, S.S.P.G. Hospital Kabirchaura,
Varanasi.

7. That in the first information
report it has been said tht both deceased
namely Mohan @ Manmohan and Bodha
Devi were done to death by causing fire
arm injury but surprising enough there
were no fire arm injury on the body of
deceased.

8. That in the circumstances
testimony of Sri Rajiv Ranjan Maurya, then
posted at police Station Dhanapur District
Chandauli who was Investigating officer,
Dr. A.K. Srivastava Medical Officer,
S.S.P.G. Hospital Kabirchaura Varanasi
who conducted postmortem on the body of
deceased Mohan as well as testimony of Dr.
S.K. Srivastava Medical Officer SSPG
Hospital,
Kabirchaura,
Varanasi
who
conducted postmortem on the body of
deceased Bodha Devi was necessary but
they could not be examined during trial.

9. That in this view of the matter
availability of evidence by these three
58 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses
are
necessary
for
proper
adjudication of case."

(26). The courts are not supposed to
sit as a mute and silent spectator. The
role of a Judge in dispensation of justice
after ascertaining the true facts, no
doubt is a very difficult one. In the pious
process of unrevealing the truth as to
achieve the ultimate goal of dispensing
the justice between the parties, the Judge
cannot keep himself unconcerned and
oblivious to the various happenings
taking place during the progress of trial
of any case. No doubt, he has to remain
very vigilant, cautious, fair and impartial
and not to give a slightest impression
that he is a bias or prejudice due to own
personal conventions or views in favour
of one or other party. This however
would not mean that a Judge will simply
shut his own eyes and be a mute
spectator. Acting like a robot or a
recording machine to just deliver what
stands feeded by the parties. (Munna
Pandey vs. State of Bihar, Criminal
Appeal no.1271-1272 of 2018) dated 04th
September, 2023.

(27). Taking strength from the above
observation of Hon'ble Apex Court, we feel
proper and justified while deciding the
application u/s 391 Cr.P.C. moved by the
appellant Rajesh Kumar @ Pappu. Before
deciding the matter on merits, it is
imperative to spell out the provisions of
Section 391 Cr.P.C., which reads thus :

"391. Appellate Court may take
further evidence or direct it to be taken.

(1) In dealing with any appeal
under this Chapter, the Appellate Court, if
it
thinks
additional
evidence
to
be
necessary, shall record its reasons and may
either take such evidence itself, or direct it
to be taken by a Magistrate, or when the
Appellate Court is a High Court, by a
Court of Session or a Magistrate.

(2) When the additional evidence
is taken by the Court of Session or the
Magistrate, it or he shall certify such
evidence to the Appellate Court, and such
Court shall thereupon proceed to dispose of
the appeal.

(3) The accused or his pleader
shall have the right to be present when the
additional evidence is taken.