# Rakesh Pandey (In Jail) v. State of U.P

- **Citation:** (2023) 4 ILRA 1430
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** Capital Case No. 05 of 2020
- **Bench:** Ashwani Kumar Mishra, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-pandey-in-jail-v-state-of-u-p-50068
- **Pages:** 32

## Headnote

Criminal Law - Criminal Appeal- Capital
Case and capital reference- arising out of
Sessions Trial- conviction under Sections
147, 148, 201 and 302/34/149 IPC-
allegations
against
the
convicted
appellants
that
they
committed
the
heinous crime- severed the head and
thumb
of
the
deceased-
relationship
between
the
parties
of
immense
significance- star witness PW-1-interested
witness- will and gift deed executed by
the deceased in his favour- contradiction
in his testimony- testimony is not sterling
in nature- oral and documentary evidence
mismatch-his deposition found to be
unnatural-identity of the headless body
not established- numerous missing links in
prosecution version- PW-1 not wholly
reliable witness- separation of chaff from
grain necessary- further corroboration
from available evidence necessary-trial
overlooked
inherent
contradictions
in
testimony
of
PW-1
vis-à-vis
medical
evidence-
prosecution
has
failed
to
establish guilt of the accused beyond
reasonable doubt- appellant acquittedappeal allowed.

HELD:
The background facts have been noticed by us
in order to appreciate the issues that arise for
determination in the present appeals. It is the
criminality part of the incident which alone
requires adjudication by us. We have to
determine whether the incident, as is alleged by
the prosecution, has occurred in the manner
suggested by the prosecution and; secondly,
whether the prosecution has succeeded in
establishing the guilt of the accused appellants
beyond doubt on the basis of oral and
documentary evidence produced by it. Dispute
relating to rights of the parties over immovable
property or contentious issues relating to
legality and validity of the will and the gift deeds
do not form part of the lis before us, and
therefore we refrain ourselves from making any
observations on the merits of such contentions
raised by the parties. We also hasten to clarify
that any observation made by us while noticing
the respective stand of the parties is for the
limited purpose of proper appreciation of the
background facts and does not amount to
expression of our opinion on the merits of the
claim of either party. (Para 59)

The star witness of the prosecution in this case
is the informant Akhilesh Kumar Pandey who
has been produced as PW-1. This witness claims
to have seen the incident, wherein the accused
persons in an ambush brought down the
deceased and chopped of his head and thumbs.
As per PW-1 the deceased had executed a
registered will and gift deed in favour of his
brother and himself. A subsequent gift deed of
24.4.1995 was also relied upon by PW-1. PW-1
has clearly stated that deceased Dubari Pandey
4 All. Rakesh Pandey Vs. State of U.P.
1431
was living with his family and he had no issue.
(Para 66)

PW-1 is not only a related witness but is a
highly interested witness

## Text

_Characters 0–39,892 of 111,669. This is a partial read: ask again with offset=39892 for what follows._

1430 INDIAN LAW REPORTS ALLAHABAD SERIES
directed above, shall be in accordance with
the judgment and outcome of Writ Petition
No. 17743 of 2022.
----------
(2023) 4 ILRA 1430
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWAKAR, J.

Capital Case No. 05 of 2020
With
Reference No. 4 of 2020
And
Capital Case No. 6 of 2020

Rakesh Pandey ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajrshi Gupta, Sri Dileep Kumar (Senior
Adv.), Sri Rizwan Ahamad, Ms. Shambhavi
Shukla, Sri Gaurav Yadav, Sri Sunil Singh,
Sri Ankush Yadav, Sri Rajesh Babu

Counsel for the Opposite Party:
G.A., Sri Ashok Kumar Dwivedi, Sri Ganesh
Datt Mishra, Sri Kamal Krishna (Senior
Adv.), Sri A.K. Dwivedi, Sri Shailendra
Sharma

Criminal Law - Criminal Appeal- Capital
Case and capital reference- arising out of
Sessions Trial- conviction under Sections
147, 148, 201 and 302/34/149 IPC-
allegations
against
the
convicted
appellants
that
they
committed
the
heinous crime- severed the head and
thumb
of
the
deceased-
relationship
between
the
parties
of
immense
significance- star witness PW-1-interested
witness- will and gift deed executed by
the deceased in his favour- contradiction
in his testimony- testimony is not sterling
in nature- oral and documentary evidence
mismatch-his deposition found to be
unnatural-identity of the headless body
not established- numerous missing links in
prosecution version- PW-1 not wholly
reliable witness- separation of chaff from
grain necessary- further corroboration
from available evidence necessary-trial
overlooked
inherent
contradictions
in
testimony
of
PW-1
vis-à-vis
medical
evidence-
prosecution
has
failed
to
establish guilt of the accused beyond
reasonable doubt- appellant acquittedappeal allowed.

HELD:
The background facts have been noticed by us
in order to appreciate the issues that arise for
determination in the present appeals. It is the
criminality part of the incident which alone
requires adjudication by us. We have to
determine whether the incident, as is alleged by
the prosecution, has occurred in the manner
suggested by the prosecution and; secondly,
whether the prosecution has succeeded in
establishing the guilt of the accused appellants
beyond doubt on the basis of oral and
documentary evidence produced by it. Dispute
relating to rights of the parties over immovable
property or contentious issues relating to
legality and validity of the will and the gift deeds
do not form part of the lis before us, and
therefore we refrain ourselves from making any
observations on the merits of such contentions
raised by the parties. We also hasten to clarify
that any observation made by us while noticing
the respective stand of the parties is for the
limited purpose of proper appreciation of the
background facts and does not amount to
expression of our opinion on the merits of the
claim of either party. (Para 59)

The star witness of the prosecution in this case
is the informant Akhilesh Kumar Pandey who
has been produced as PW-1. This witness claims
to have seen the incident, wherein the accused
persons in an ambush brought down the
deceased and chopped of his head and thumbs.
As per PW-1 the deceased had executed a
registered will and gift deed in favour of his
brother and himself. A subsequent gift deed of
24.4.1995 was also relied upon by PW-1. PW-1
has clearly stated that deceased Dubari Pandey
4 All. Rakesh Pandey Vs. State of U.P.
1431
was living with his family and he had no issue.
(Para 66)

PW-1 is not only a related witness but is a
highly interested witness in this case. We have
already taken note of the background facts as
per which the deceased had executed a will and
gift deed in favour of informant Akhilesh Kumar
Pandey and his brother to the detriment of
other branch consisting of the accused persons.
The
relations
between
accused
and
the
informant were thus highly inimical for the
aforesaid reason. (Para 68)

In light of the principles laid down by the
Supreme Court as noticed above, the testimony
of PW-1 will have to be carefully examined in
order to determine its credibility and reliability.
(Para 70)

We also find that PW-1 has clearly stated in his
testimony that the deceased Dubari Pandey was
never married. This fact in the testimony of PW1 is contradicted by his own document i.e. will
and gift deed dated 30.3.1995 and 24.4.1995
which records that the wife of deceased has
already died. It is difficult to believe that being a
grandson and inheriting the entire estate of the
deceased, PW-1 would be unaware of the
marital status of the deceased. His deposition is
therefore unnatural. (Para 74)

We otherwise find certain missing links in the
prosecution case.. The Police Station- Dullahpur
had received information about the recovery of
head at 9.45 pm. In the statement of PW-8
Rajendra Prasad Singh, who was posted at
Police Station Dullahpur, it transpires that this
witness was sent alongwith Constable Raj
Kumar for investigation and preparing the
inquest by the Sub-Inspector Uma Nath Shukla.
He claims that as it was dark the inquest could
not be conducted in night and the inquest was
conducted the next morning. He has stated that
after receipt of such information at the police
station, he reached the pond at about 11.00 in
the night. He has specifically stated that the
police personnel had not seen the head in the
night and had seen it only in the morning at
around 7.00 am. This witness has also stated
that no information was received on wireless set
from adjoining district Mau about the missing
head of a dead person. Although this witness
has supported the prosecution case, as per
which, the inquest was conducted at about
7.00-8.00 am, but he later stated that the
inquest concluded by 8.00-9.00 am. (Para 91)

In addition to above, there are some other loopholes in the prosecution story. The postmortem
of the beheaded body shows that the first antemortem injury was a clean cut. Incised wound
14x13cm x bone deep thru and thru (A.P.
diameter), 3 cm above supra sternal notch and
1 cm above base of cervical seven vertebra
underlying bone. The chopping of head is at the
level of cervical six vertebra whereas the
postmortem report of head shows clean cuts to
be at the level of C2. The situation of cuts in the
body and the head does not entirely match as
they are at a different levels. This creates a
doubt in the prosecution itself that the
recovered head was part of the body of
deceased Dubari Pandey. (Para 94)

The testimony of PW-1 does not fall in the
category of wholly reliable witness since PW-1 is
a highly interested witness. In this circumstance
the Court is required to be circumspect and
separate the chaff from the grain and seek
further corroboration from reliable evidence,
direct or circumstantial. (Para 98)

Though the trial court has convicted the
accused appellants, but we find from the
judgment of the court below that inherent
contradictions in the testimony of PW-1 vis-a-vis
medical evidence, as noticed above, have
entirely
been
overlooked.
The
other
circumstance with regard to identity of the dead
body on the basis of prosecution evidence has
also not been subjected to careful scrutiny. The
trial court has completely omitted to consider
that there existed an order of the consolidation
court as per which the estate of the deceased
was to devolve in equal proportion upon the
informant and his brother as well as other
branch of accused persons. We also find that
PW-1 has clearly stated in his testimony that the
deceased Dubari Pandey was never married.
This fact in the testimony of PW-1 is
contradicted by his own document i.e. will and
gift deed dated 30.3.1995 and 24.4.1995 which
records that the wife of deceased has already
died. It is difficult to believe that being a
grandson and inheriting the entire estate of the
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, PW-1 would be unaware of the
marital status of the deceased. This aspect has
also been clearly overlooked by the court below.
(Para 100)

Appeal allowed. (E-14)

List of Cases cited:

1. Md. Jabbar Ali & ors. Vs St. of Assam,
reported in 2022 SCC OnLine SC 1440

2. Nand Lal & ors. Vs St. of Chhat., (2023) SCC
Online SC 262

3.Vadivelu Thevar Vs St. of Mad., 1957 SCR 981

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Aggrieved by the capital sentence
awarded to them, the two appellants,
namely Rakesh Pandey and Yashwant
Chaubey have filed the present appeals
challenging the judgment and order of
conviction
and
sentence
dated
10.2.2020/11.02.2020,
passed
by
the
Additional Sessions Judge, Court No. 1,
Mau in Sessions Trial No. 75 of 1996
(State vs. Indrasan Pandey and others),
arising out of Case Crime No. 83 of 1996,
under
Sections
147,
148,
201
and
302/34/149 IPC, Police Station - Sarai
Lakhansi, District - Mau; whereby they
have been convicted under section 147 IPC
and
sentenced
to
2
years
rigorous
imprisonment alongwith fine of Rs. 2000/-
and in case of default in payment of fine to
undergo two months additional rigorous
imprisonment; under Section 148 IPC
sentenced to 2 years rigorous imprisonment
alongwith fine of Rs. 3000/- and in case of
default in payment of fine to undergo three
months additional rigorous imprisonment;
under Section 201 IPC sentenced to 5 years
rigorous imprisonment alongwith fine of
Rs. 5000/- and in case of default in
payment of fine to undergo five months
additional
rigorous
imprisonment
and
under Sections 302/34/149 IPC awarded
death penalty alongwith fine of Rs.
1,00,000/- and in default of payment of
fine, the same shall be recovered as arrears
of land revenue. All the sentences were
directed to run concurrently.

2. Apart from the two appellants,
three other persons were also implicated in
the aforesaid case crime no.83 of 1996.
Two of these three accused, namely
Indrasan and Ghanshyam have died during
the course of trial. The third accused
Mithilesh was declared juvenile vide order
dated
7.12.2019,
and
his
trial
was
segregated and transferred to the Juvenile
Justice Board.

3. As death sentence was awarded to
the two accused appellants, a reference i.e.
Reference No.4 of 2020 has also been
made to this Court under Section 366
Cr.P.C. by the court of sessions for
confirmation of death penalty.

INCIDENT

4. On 12th March, 1996 at about
12.00 noon near the agricultural field of
one Jiyutbandhan Singh the deceased
Dubari Pandey S/o Dhanraj Pandey was
allegedly done to death by chopping his
head from neck, by a Dao (a heavy sharp
edged weapon used for cutting wood) by
accused Rakesh Pandey. The accused also
cut both the thumbs of the deceased. The
other accused namely Indrasan Pandey,
Yashwant
Chaubey,
Mithilesh
and
Ghanshyam Pandey had pulled down
Dubari Pandey on the ground and held him
during the course of assault. Specific role
of chopping the head and thumbs of
deceased has been assigned to the accused
4 All. Rakesh Pandey Vs. State of U.P.
1433
Rakesh Pandey. Accused Rakesh Pandey
left with the head of the deceased as also
his two thumbs.

5. A written report in respect of the
incident was given by the informant
Akhilesh Kumar Pandey, which is Exhibit
Ka-1. On the basis of said written report a
first information report came to be lodged
at the Police Station Sarai Lakhansi,
District Mau as Case Crime No. 83 of
1996, under Sections 147, 148, 201 and
302/34/149 IPC at 3.10 pm i.e. on the very
date of incident i.e. 12.3.1996.

INVESTIGATION

6. The investigation proceeded in the
matter pursuant to the aforesaid report and
the inquest (panhayatnama) of the body
(without head) was conducted on 12.3.1996
at 17.40 pm. The inquest report is on record
and is marked as Exhibit Ka-2. As per the
inquest report the information with regard
to the incident was furnished to the police
by the informant Akhilesh Kumar Pandey.
The witnesses of inquest were Sitaram,
Lalji Pandey, Islam, Chandradev and
Vishun Ram (PW-2). The inquest report
also records that the dead body (without
head and thumbs) of Dubari Pandey is
lying in the wheat field of Jiyutbandhan
Singh. The deceased was wearing a white
colour old ''Dhoti' and a white vest i.e.
''Bandi'. He also had a checked ''Gamchha'
(indian towel) on his body. The inquest
witnesses suggested holding of postmortem
in order to ascertain the exact cause of
death. The detailed police scroll was
prepared and thereafter the body was sealed
and handed over to constable Rajpati Patel
for getting the postmortem conducted.

7. The postmortem of the headless
body was conducted at 2.15 pm on
13.3.1996.
The
autopsy
surgeon has
specified the age of the deceased as about
70 years and the expected time of death
was reported to be about one day. The
external examination of the dead body in
the postmortem is as under:-

"Headless body, Rigor mortis
present in lower extremity, Abdomen
distended fecal matter coming out, Right
and Left thumbs in part are missing.

Clotted blood present over neck,
chest and back of neck."

8. Autopsy Surgeon determined the
cause of death as shock and hemorrhage
due to following ante-mortem injuries:-

"1. Incised wound 14x13cm x
bone deep thru and thru (A.P. diameter), 3
cm above supra sternal notch and 1 cm
above base of cervical seven vertebra
underlying bone, muscles, vessels and soft
tissue and cervical six vertebra is cut thru
and thru apportion of cervical six is
attached with trunk margin clear cut.

Note: Incised wound is having
A.P. diameter 14 cm with Transverse
diameter is 13 cm.

2. Incised wound 7 x 3 cm x
muscle deep at the back of Rt. Shoulder
joint.

3. Incised wound 3 x 2 cm x
muscle deep on top of Rt. Shoulder joint.

4. Incised wound 4 x 2 cm x skin
deep on the lateral side of right shoulder
joint."

9. In addition to above, the autopsy
surgeon has found following postmortem
injuries on the deceased:-

"(1) incised wound 2 cm x 11⁄2 cm
x thru and thru on the proximal phalynx of
right thumb underlying bone parts missing.
1434 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) incised wound 4 cm x 3 cm x
bone deep obliquely placed on the middle
phalynx of right index finger.

(3) incised wound 2 cm x 11⁄2 cm
x bone deep thru and thru on the middle
phalynx of left thumb."

10. The autopsy surgeon also found
the rectum of deceased to be loaded and
fecal matter was coming out.

11. The record shows that a separate
report was lodged with the Station House
Officer of Police Station - Dullahpur,
District - Ghazipur (an adjoining district of
Mau, where the incident occurred) on
13.3.1996, by one Dhanpati Yadav S/o
Jagroop Yadav stating that he has a tubewell situated on the east of the village near
a pond. In the evening hours of 13.3.1996,
a plastic polythene containing head of a
male was found stuck in the khur
(cracking) of a buffalo, when it came out of
the pond. The polythene was of a shop
selling school uniform and ladies bag, etc.,
situated below the Union Bank of India at
Sahadatpura in District Mau. Both the eyes
of recovered human head were missing and
there were cuts on the cheek and face of the
deceased.

12. On the basis of such information
given by Dhanpati Yadav police personnel
from Police Station Dullahpur reached
village Sultanpur late in the evening and
commenced investigation. Inquest of the
recovered head was got conducted by SubInspector Uma Nath Shukla of Police
Station - Dullahpur, District - Ghazipur on
the next morning vide Paper No. Ka.15, as
per which the information with regard to
recovery of the head has been received in
the police station concerned at 21.45 pm on
13.3.1996 and has been recorded as Entry
No. 37 in the General Diary. The inquest
began at 6.00 am on 14.03.1996 and
concluded at 7.15 am. The identity of the
recovered human head was not ascertained
and has been described as unknown. The
inquest witnesses were Dhanpati Yadav,
Ram Lal, Geeta Yadav, Jagroop Yadav and
Ambika Yadav. The inquest witnesses
found multiple injuries on the face and both
the
eyes
were
found
missing.
The
recovered head was sealed and sent for
postmortem. It is worth noticing that till the
conclusion of inquest the identity of
deceased was not established. Postmortem
has been conducted in respect of the
recovered human head from the pond on
14.3.1996 at 4.00 pm, which is Exhibit Ka14. However, in the postmortem of the
recovered
head
conducted
by
Dr.
Bhupendra Nath Srivastava has been
identified as that of the deceased Dubari
Pandey. In the opinion of the autopsy
surgeon the age of the deceased was about
60 years and the cause of death is reported
to be shock and hemorrhage as a result of
following ante-mortem injuries:-

"An incised wound size 10 cm x
10 cm at level of C2 margins clear cut.

An incised would size 4.0 cm x
1.0 cm x bone deep on right side of skull 15
cm above right eyebrow. Right frontal bone
is sharply cut."

13.

The
Investigating
Officer
proceeded to collect evidence in respect of
the offence. Statements of witnesses were
recorded under Section 161 Cr.P.C. Upon
completion of statutory investigation in
accordance with Chapter XII of the Code of
Criminal
Procedure,
the
Investigating
Officer submitted a charge-sheet against
five accused on 15.6.1996 vide Paper No.
4K/1 (Exhibit Ka-12). The concerned
magistrate took cognizance and committed
the case to the court of Sessions where it
got registered as Sessions Trial No. 75 of
4 All. Rakesh Pandey Vs. State of U.P.
1435
1996 (State Vs. Indrasan Pandey and
others).

THE TRIAL

14. Separate framing of charge orders
were passed against the accused. Vide
order dated 20.5.1999, the accused Rakesh
Pandey was charged of committing offence
under Section 148 IPC; whereas by a
separate order of the same date the accused
Rakesh Pandey, Mithilesh, Ghanshyam
Pandey and Yashwant Chaubey were
charged of committing offence under
Section 302 r/w 149 IPC as also under
Section 201 IPC. By yet another order of
the same date, the accused Mithilesh alias
Tipu,
Ghanshyam
Pandey,
Yashwant
Chaubey were charged of an offence under
Section 147 IPC. The charges were read
out to the accused who denied the same and
demanded
trial.
Resultantly
the
trial
procedure commenced.

PROSECUTION EVIDENCE

15. The prosecution in order to prove
its
case
produced
the
following
documentary evidence:-

"1. FIR dated 12.03.1996 as
Ex.Ka.22

2.
Written
Report
dated
12.03.1996 as Ex.Ka.1

3. Application dated 18.03.1996
as Ex.Ka. 3

4.
Postmortem
Report
dated
13.03.1996 as Ex.Ka.13

5. Postmortem report (Head)
dated 14.03.1996 as Ex.Ka.14

6. Affidavit by Sitaram dated
09.04.1999"

16. In addition to above documentary
evidence,
the
prosecution
produced
Akhilesh Kumar Pandey (PW-1); Vishnu
Ram (PW-2); Dhanpati Yadav (PW-3);
Kusum Pandey (PW-4); Vansh Bahadur
Yadav (PW-5); Anil Kumar Arya (PW-6);
Bhupendra
Nath
Srivastava
(PW-7);
Rajendra
Prasad
Singh
(PW-8);
and
Jamvant Jaiswal (PW-9).

17. Though in the charge sheet
submitted by the Investigating Officer 28
prosecution witnesses were nominated but
during trial the prosecution adduced only 9
witnesses, referred to above.

18. It is relevant to note that as per the
FIR the incident is alleged to have been
witnessed by the residents of village
namely
Sitaram
and
Chandradev,
in
addition
to
the
informant.
Sitaram,
however, has filed an affidavit dated
9.4.1999 during trial stating that he has not
seen the incident and that he had gone out
of the village due to some urgent personal
work. The other eye-witness Chandradev
was got discharged by means of an
application filed by the informant Akhilesh
Kumar Pandey, through the Government
Counsel. It is, therefore, apparent that out
of the witnesses who have witnessed the
incident only the first informant has been
produced during trial by the prosecution.

19. PW-1 (Akhilesh Kumar Pandey)
in his testimony has disclosed the name of
his father as Ram Singhasan Pandey, who
in turn was the son of Amardev alias
Khedan Pandey. The father of Amardev
was Dhanraj Pandey. Dhanraj Pandey had
two sons namely Amardev alias Khedan
Pandey and Dubari Pandey. As per the
statement of PW-1, in his examination-inchief, the deceased Dubari Pandey was
unmarried and consequently issueless.
Amardev, the elder brother of deceased
Dubari Pandey had two sons namely Ram
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
Singhasan Pandey and Indrasan Pandey.
Ram Singhasan has two sons namely
Kamlesh Pandey and Akhilesh Kumar
Pandey (first informant). Indrasan Pandey
(accused) has four sons namely Rakesh
Pandey (accused), Mithilesh Pandey alias
Tipu (accused), Amit alias Bhoja and Kavis
alias Mandhata. Indrasan also has two
daughters namely Kanaklata alias Urmila
and Ruchi. Indrasan Pandey alongwith his
two sons namely Rakesh Pandey and
Mithilesh Pandey are the accused in this
matter apart from Yashwant Chaubey, who
happens to be the son-in-law of Indrasan
Pandey and husband of Kanaklata alias
Urmila. During the course of trial Indrasan
Pandey and Ghanshyam Pandey have died.
Accused Mithilesh Pandey son of Indrasan
Pandey has been declared a juvenile and
therefore his trial was segregated and sent
to the competent forum i.e. Juvenile Justice
Board.

20. PW-1 has further stated that
younger brother of his grandfather namely
Dubari Pandey was residing with his family
and had no progeny. He was satisfied with
the services rendered to him by the witness
and consequently Dubari Pandey had
bequeathed his movable and immovable
property to PW-1 Akhilesh Kumar Pandey
and his brother Kamlesh Pandey by way of
a registered will and gift deed dated
30.3.1995. Indrasan Pandey and his heirs
were not given any share in the estate of
deceased Dubari Pandey. Accused Indrasan
Pandey and his family members were thus
annoyed. Even during lifetime of Dubari
Pandey the accused Indrasan Pandey had
misrepresented his daughter Kanaklata as
Urmila, daughter of Dubari Pandey, and
prepared a fraudulent unregistered will in
her favour, showing her to be the daughter
of Dubari Pandey in the family register.
However, no date was mentioned in the
family register regarding this entry. A civil
litigation had already started in the matter.
For such reasons the accused wanted to
eliminate Dubari Pandey. On 12.3.1996, at
about 12.00 noon PW-1 was returning with
the
deceased
Dubari
Pandey
after
inspecting the wheat crop. Dubari Pandey
was a little ahead of PW-1. When they
reached the field of Jiyutbandan Singh the
accused Indrasan Pandey, Rakesh Pandey,
Mithilesh,
Ghanshyam
Pandey
and
Yashwant Chaubey pulled down the
deceased on the ground in an ambush.
While Indrasan, Mithilesh, Ghanshyam and
Yashwant held the deceased the accused
Rakesh Pandey beheaded him with Dao (a
heavy sharp edged weapon used for cutting
wood) and also chopped both his thumbs.
The head and thumbs of deceased were
then taken away by the accused Rakesh
Pandey threatened that no one standing
should come in his way and proceeded
towards south on the chak road. The
accused also abused PW-1 and chased him.
On raising alarm by PW-1, Sitaram Singh
and Chandradev alongwith other villagers
came on the spot and an atmosphere of
terror prevailed in the village so that none
may testify regarding the incident.

21. PW-1 was cross examined by the
accused in which he feigned ignorance
about the sister of deceased Dubari Pandey.
He stated that Smt. Anjora was the wife of
Amardev and he does not know the name
of the wife of Dubari Pandey. He had not
seen her and was not aware as to when the
wife of Dubari Pandey died. He claims to
know nothing about the wife of Dubari
Pandey. PW-1 has further stated that the
deceased Dubari Pandey had executed a
will and gift in his favour on 30.03.1995.
The original gift and will, however, was not
available as it was allegedly filed in the
mutation proceedings at the Tehsil from
4 All. Rakesh Pandey Vs. State of U.P.
1437
where the proceedings came to the
Additional Magistrate. He then stated that
original will has been submitted before the
High Court in the case of Akhilesh vs.
Gulabi. He then stated that will was taken
from the court of Tehsil and submitted
before the High Court. An application
under section 156(3) Cr.P.C. was filed by
the accused, against PW-1, which is
challenged in High Court where the will is
submitted.
The
original
gift
dated
24.04.1995 is also filed in the said case.
The witness, however, did not remember
the case number. He claimed to be unaware
of the direction issued by the trial court to
produce original will and gift deed. He
claims that original will and gift deed is on
record. The witness has further stated that
on 24.04.1995 a registered gift deed was
executed in his favour and also in favour of
his brother but its photocopy has not been
produced. Original deed has been given to
the advocate at High Court as per PW-1.
The witness asserted that the will dated
30.03.1995 as also the two gift deeds dated
30.3.1995
and
24.04.1995
are
both
registered documents.

PW-1 has further stated that the
deceased Dubari Pandey was with him in
the night of 11.03.1996. On 12.3.1996, they
left at around 09.30 - 10.00 in the morning
for the agricultural field. By then, they had
eased themselves (attended nature's call)
but had not taken bath or eaten anything.
The agricultural field which he had gone to
see with the deceased was at a distance of
about 300 meters. The agricultural plot had
already been partitioned in which share of
Dubari Pandey was half while 1⁄4th - 1⁄4th
shares were of Ram Singhasan and
Indrasan. Cultivation in the agricultural
field by deceased and PW-1 was done
jointly. At the time when he had gone to
inspect the wheat crop it was almost the
harvesting time. There were agricultural
fields of other villagers between his house
and the agricultural fields. The names of
other tenure holders whose agricultural
fields are situated in between has been
specified. He has explained that towards
the east of the field of Jiyutbandhan Singh
is the field of one Kuber and Khichadi and
nearby it are the fields of Markandey
Pandey. At the time of incident these
persons were not in their fields. Khichadi,
Kuber, Jhullan, Vinod Pandey, Jamuna had
arrived much after the incident. The village
Abadi is at a distance of about 300 meters
on the eastern side. On the way to the fields
PW-1 claims to have met Ganga Yadav and
others working in the brick-kiln. The brickkiln belongs to Rakesh Pal and is at a
distance of 110-115 yard from the place of
occurrence. He has stated that on the way
to his field he had crossed the fields of
about 20-25 persons. The witness has
specified that he reached his agricultural
field at about quarter to 11 and stayed there
for about half an hour. They also talked to
Shankar Yadav whose field was about 100
yards towards west. While they remained at
their agricultural field none of the adjoining
tenure holders were available. He has stated
that while returning from their field the
accused ambushed the deceased in the
fields of Jiyutbandhan Singh. The place
where the accused had hidden themselves
was not visible from the chak road and thus
he cannot specify it. The accused ambushed
the deceased from behind and pulled him
down. It was only when the accused came
near them that the witness could see them.
He saw the accused coming from a distance
of 5-7 paces. Rakesh Pandey was carrying
''Dao' whereas other accused had sticks in
their hand. PW-1 halted at a distance from
them on the chak road. The accused hurled
abuses and asked him to leave or else he
too would be done to death. The witness
was not chased by the accused. The
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased could not protect himself. The
deceased fell on his back. PW-1 claims that
he was at a distance of 70-80 paces from
the place of occurrence when the incident
occurred.

The cross examination of PW-1
continued and on 22.07.2003 he stated that
the deceased was held by Yashwant,
Mithilesh and Ghanshyam. Rakesh and
Indrasan followed. PW-1 claims to have
left when Indrasan started abusing him. He
was chased by Indrasan Pandey for few
steps
whereafter
Indrasan
returned.
However, PW-1 rushed 70-80 paces and
halted thereafter. He raised an alarm from
there. On raising alarm by PW-1 the
workers engaged in the brick-kiln rushed to
the place of occurrence. Various other
villagers also came thereafter. On arrival of
such persons from brick-kiln the accused
left with the head and thumbs of deceased.
About 20-25 persons had come from brickkiln. Those 20-25 persons who came from
brick-kiln did not chase or followed the
accused. PW-1 has asserted that about 10 to
15 minutes was consumed between the
deceased being pulled down and beheaded.
He did not remember the name of those 2025 persons but remembers the names of
only Sitaram Singh, Chandra Dev Ram,
Shree Ram Singh, Ganga Yadav, Lal
Mohammad, Lalji Pandey, Shankar Yadav
etc.

In his further cross-examination
on 23.07.2003, PW-1 has stated that the
place where accused had hidden themselves
was at a distance of 20-30 paces from chak
road. He had seen the accused in the village
a day before. He further stated that the
Investigating Officer had seen the place of
occurrence when he arrived first. He had
also seen the place where the accused were
hiding. The place of occurrence was
inspected by the Investigating Officer and
his statement was recorded. He also stated
that there was a solitary will executed by
the deceased alongwith two gift deeds in
his favour and that of his brother. The
witnesses to the deeds executed by
deceased were Jitendra Pandey and Girish
Chandra. Jitendra Pandey is father-in-law
of his sister whereas Girish Chandra is his
maternal uncle. He stated that age of the
deceased was about 70-80 years when he
executed the will.

A Photograph was shown to PW1 (Paper no.108) about which he stated that
the persons standing near the dead body
shown in the photograph is Indrasan
Pandey.
PW-1
was
standing
behind
Indrasan
in
the
photograph.
The
photograph included other persons namely
Ghanshyam Pandey, Jai Prakash Singh @
Jaya Singh and accused Rakesh Pandey.
Next to Rakesh Pandey is Radhey Shyam
Chaubey
who
is
father
of
accused
Yashwant Chaubey. He has denied the
suggestion that photograph (paper no.108)
was of cremation of Dubari Pandey and
stated that in fact Dubari Pandey was then
alive. As per him this photograph was
taken during the last rites of Anjora wife of
Amar Dev @ Khedan. He also denied the
suggestion
that
during
the
first
consolidation proceedings a compromise
was arrived at between Dubari Pandey,
Indrasan Pandey and father of PW-1 Ram
Singhasan Pandey whereby Dubari Pandey
was
prevented
from
transferring
his
agricultural land. He has denied the fact
that Dubari Pandey was married or that
name of his wife was Sharda. He has also
denied having any knowledge of the fact
that a daughter was born to deceased
Dubari Pandey from Sharda Devi. He also
stated that original suit no.456/95 (Indrasan
vs. Dubari Pandey) filed in the court of
civil judge (junior division) was dismissed
in default. This witness has denied the
suggestion that he had got the suit filed
4 All. Rakesh Pandey Vs. State of U.P.
1439
through an imposter claiming to be
Indrasan Pandey. He also denied that some
imposter had signed on the vakalatnama of
such suit. He also denied the suggestion
that distance of Abadi from the village is
about 1 kilometer or that the brick-kiln was
at a distance of 400 meter. He also denied
the suggestion that gift deed executed in his
favour is not by Dubari Pandey but was by
some imposter. He has admitted that in his
statement made to the Investigating Officer
he had stated that various persons working
in the nearby fields at the time of incident
came to the place of incident and saw it. In
his statement under section 161 Cr.P.C. he
had also not disclosed that other accused
were carrying sticks in their hands.

22. Prosecution then produced PW-2,
Vishun Ram, who is the witness of inquest
of the alleged beheaded body of Dubari
Pandey. He has identified the headless
body as that of Dubari Pandey. The
dead body was sealed in his presence
and the witness has identified his
signatures on the inquest. In his crossexamination this witness has clearly
stated that he had not identified the
headless body as that of Dubari Pandey
on the saying of PW-1. He had rather
identified the body of deceased Dubari
Pandey from the boil on the back of
the deceased. He had seen the boil
earlier also on the back of the
deceased. The testimony of PW-2, in
that regard, is extracted hereinafter:-

"मैंने खुद लाश को पिचाना िि दुबरी पाण्डे
की थी। यि किना र्लत िोर्ा र्क अर्खलेश के बताने पर मै
माना र्क लाश दुबरी पाण्डे की थी। दुबरी पाण्डे के िड ि
पीठ के फोडेे़ को देखकर मैंने पिचाना की िि दुबरी पाण्डे
की लाश िै। मैं लाश का फो़िा देखा था पिले से िी मैंने
फो़िा देखा था। पंचनामा के समय मैंने दुबरी पाण्डे की पीठ
पर फोडाे़ देखा था मैं मौके पर करीब रार्ि तीन बजे पिुाँचा
था। मैं पिुंचा तो लाश पीठ के बल प़िी थी।"

23. PW-3 Dhanpati Yadav, who has
proved the written report given by him to
the in-charge of police station Dullahpur
with regard to unidentified human head
recovered from pond near his tubewell. He
has stated that on his information the SubInspector came on the spot and deputed two
constables in the night. The Sub-Inspector
again came in the morning and conducted
inquest. It is at this juncture that the police
of other police station alongwith family
members of deceased came on spot and
identified the recovered human head. The
human head had no eyes and had signs of
cut on cheek and face. The family members
had recognized the human head as that of
the deceased Dubari Pandey. This witness
identified his signatures on the inquest. In
the cross-examination PW-3 has explained
the manner in which human head surfaced
from the pond and he had informed the
police about it. He has stated that he came
to the place of occurrence alongwith
Investigating Officer and it was dark by
then. He again came in the morning at the
place where human head was recovered
and various paper formalities were carried
out by Investigating Officer in his presence.
He denied that he was an accused in a
dacoity case. He also denied that he has
given false testimony on the persuasion of
Ram Lal, who was a client of Rakesh
Pandey.

24. PW-4 Kusum Pandey, who is the
wife of PW-1 and has stated that she had
left alongwith Sitaram Singh, Chandra Dev
Ram and Sub Inspector early in the
morning to identify the recovered human
head at village Sultanpur on 14.03.1996.
When she arrived various persons were
already present and the human head was
kept in a polythene. The human head was
taken out and on seeing it she identified it
as that of the deceased. It is after such
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
identification that the head was sealed by
Investigating officer and she returned. In
her cross-examination PW4 has stated that
the Investigating officer came to her house
at about 05.00 in the morning alongwith
other police personnel and nobody else
joined her. The Investigating Officer
informed her that human head has been
found which was to be identified by her
and therefore she immediately left with the
Investigating Officer. It was already day
time when she arrived near the pond. She
has stated that about 1-11⁄2 hour was taken
in reaching the pond from her house. The
polythene was opened when she arrived
there but she does not remember the colour
of
polythene.
No
proceedings
were
undertaken by the Investigating Officer in
her presence. The polythene was kept there
from before and police took out human
head and showed it to her. When human
head was taken out from polythene it had
no blood marks and face was disfigured.
However, she could recognize it. She
returned alongwith police personnel. She
denied the suggestion that she had not
visited the pond and that the identification
proceedings were never undertaken in her
presence.

25.

PW-5
Sub-Inspector
Vans
Bahadur Yadav, who was posted as Station
House Officer of Police Station Sarai
Lakhansi. He verified the receipt of written
report by PW-1 and lodging of FIR
thereafter. He has also explained the steps
undertaken during investigation and that
the thumbs of deceased could not be traced.
Blood was found in the field but despite
best efforts the head of deceased and his
two thumbs could not be traced. He further
stated that he received information on
14.03.1996 from the informer while he was
conducting investigation of this case in the
village itself that a human head of old man
was recovered from a pond within the
police station Dullahpur, Ghazipur. On
receiving such information he left with
PW-4 and others and found that SubInspector Umanath Shukla alongwith his
companion was present and had already
filled various columns of inquest report.
Before the recovered head could be sealed
he had arrived at the place of inquest and
the Investigating Officer had shown the
recovered head to the family members
which was recognized by the family
members, who started weeping. It was
thereafter that the human head was sealed
and sent for postmortem. He has also
proved the site plan and other police
papers. He has stated that an application
was moved by him before the concerned
C.J.M. for custody of accused Rakesh
Pandey, which was denied by the court and
that is why the weapon used in the offence
could not be recovered.

26. In the cross-examination PW-5
has admitted that he had recorded statement
of Chandra Dev Ram on 20.03.1996. He
had inquired about the incident from Jullan
Pandey, Vinod Pandey and Jiyutbandhan
Singh but their statements were not
recorded. The informant had not disclosed
to him about the persons whose lands are
situate near the place of occurrence. He
also stated that statement of brick-kiln
owner Rakesh Pal was not recorded by
him. Statements of the workers engaged at
the brick-kiln were also not recorded. He
also admitted that house of Shankar was
about 200 yards from the place of
occurrence but he had not recorded the
statement of Shankar. He also denied that
the fields of nearby villagers were not
shown in the site plan deliberately. He also
denied the suggestion that statement of
Rakesh Pal and workers at brick-kiln was
not recorded as they were not supporting
4 All. Rakesh Pandey Vs. State of U.P.
1441
the prosecution case. The informant had
also not disclosed him about other accused
having sticks in their hands. He also did not
disclose that he was chased by Indrasan
Pandey. He also had not disclosed that
Dubari Pandey was grabbed from behind
by the accused and was pulled down. With
regard to identification of human head PW5 has stated as under:-

"र्सर के बरामदर्ी के सबबन्ि में दुलिपुर थाना से सूचना
र्मली थी। यि सूचना 14-3-96 को र्मली थी। समय याद निीं िै। केस
डायरी के पचाि नं०-3 में अंर्कत र्कया िै। स्ियं किा र्क मुझे मुखर्िर से
ऐकिारे डीि में सूचना र्मली थी।

मैने मृतक के र्सर की बरामदर्ी निीं की थी। केिल
बरामदर्ी स्थल का र्नरीिर् र्कया था।

दुबिा ताल पर िादी मुकदमा की औरत कुसुम थी। तथा
र्िर्पन कुमार दुबे, चन्रदेि राय, सीताराम र्संि को िी लेकर पिुाँचा था। मैंने
उक्त व्यर्क्तयों का र्सर बरामदर्ी के संबंि में बयान निीं र्लखा था। िे
बरामदर्ी के र्िाि निीं थे। र्शनाख्त के र्िाि थे।

यि किना र्लत िै र्क र्सर को पोस्ट माटिम िोते समय मै
र्ाजीपुर पिुंचा था।"

27. From the above it transpires that
the information about recovery of human
head was received by PW-5 on 14.03.1996.
He, however, does not remember the time
when such information was received.