# Ram Das v. State

- **Citation:** (2021) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-05
- **Case number:** Jail Appeal No. 352 of 2018
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-das-v-state-46748
- **Pages:** 15

## Headnote

Evidence Law - Indian Evidence Act,1872 -
Sections 3, 154- The first informant
Shamshuddin is not an eye witness to the
incident. He has categorically stated that
the information about the incident has
been received by at his house through
Naeemuddin PW-1. Naeemuddin PW-1 has
not supported the prosecution case and
has been declared hostile. The person
whose name surfaced later on as an eye
witness is Faizuddin PW-4 - In the
application of Shamshuddin, there is no
reference of Faizuddin being an eye
witness to the incident.The sole eye
witness Faizuddin PW-4 after the other
eye witness Naeemuddin PW-1 has been
declared hostile is a chance witness and
an
interested
witness
as
being
the
youngest brother of the first informant
and the deceased. The evidence of the
only eye witness being Faizuddin PW-4
does not inspire confidence. In so far as
the fact that the deceased had given an
oral dying declaration to Shamshuddin
PW-3 whereby he had described the entire
incident and detailed about it to him also
does
not
appear
to
be
true
and
trustworthy as the deceased while in an
injured condition was in an unconscious
state. There is no evidence or document
on record showing his condition contrary
to that. Thus, telling Shamshuddin PW-3
of the version of the occurrence as stated
by Shahjuddin is a concoction.

It is settled law that although the Court can
secure the conviction of the accused on the
basis of the evidence of a solitary witness, but
where the evidence of such solitary witness is
false and concocted on the face of it and fails to
inspire the confidence of the Court, then
conviction of the accused cannot be secured on
the basis of such untrustworthy evidence. (Para
45, 50, 52)

Criminal Appeal Allowed. (E-2)

## Text

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1 All. Ram Das Vs. State
1
(2021)01ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Jail Appeal No. 352 of 2018

Ram Das ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ajay Kumar Singh, Sri Dileep
Singh Yadav, Sri Bhishm Pal Singh

Counsel for the Opposite Party:
A.G.A.

Evidence Law - Indian Evidence Act,1872 -
Sections 3, 154- The first informant
Shamshuddin is not an eye witness to the
incident. He has categorically stated that
the information about the incident has
been received by at his house through
Naeemuddin PW-1. Naeemuddin PW-1 has
not supported the prosecution case and
has been declared hostile. The person
whose name surfaced later on as an eye
witness is Faizuddin PW-4 - In the
application of Shamshuddin, there is no
reference of Faizuddin being an eye
witness to the incident.The sole eye
witness Faizuddin PW-4 after the other
eye witness Naeemuddin PW-1 has been
declared hostile is a chance witness and
an
interested
witness
as
being
the
youngest brother of the first informant
and the deceased. The evidence of the
only eye witness being Faizuddin PW-4
does not inspire confidence. In so far as
the fact that the deceased had given an
oral dying declaration to Shamshuddin
PW-3 whereby he had described the entire
incident and detailed about it to him also
does
not
appear
to
be
true
and
trustworthy as the deceased while in an
injured condition was in an unconscious
state. There is no evidence or document
on record showing his condition contrary
to that. Thus, telling Shamshuddin PW-3
of the version of the occurrence as stated
by Shahjuddin is a concoction.

It is settled law that although the Court can
secure the conviction of the accused on the
basis of the evidence of a solitary witness, but
where the evidence of such solitary witness is
false and concocted on the face of it and fails to
inspire the confidence of the Court, then
conviction of the accused cannot be secured on
the basis of such untrustworthy evidence. (Para
45, 50, 52)

Criminal Appeal Allowed. (E-2)

(Delivered by Hon'ble Samit Gopal, J.)

[Delivered by Samit Gopal, J. for the
Bench under Chapter VII Rule 1 (2) of the
Allahabad High Court Rules, 1952]

1. The present appeal has been
preferred from jail by the appellant Ram
Das against the judgment and order dated
29.03.2016 passed by the Additional
Sessions Judge, Court No.1, Kannauj, in
Sessions Trial No. 428 of 2008 (State of
U.P.
Vs.
Ram
Ashrey)
which
was
connected with Sessions Trial No. 445 of
2007 (State of U.P. Vs. Ram Das) whereby
the appellant has been convicted and
sentenced under Section 304 of the Indian
Penal Code, 1860 to Life imprisonment and
fine of Rs. 25,000/-. In default of payment
of fine, he is directed to undergo two years
imprisonment.

2. Initially, in the present matter, a
non - cognizable report was lodged by
Shamshuddin which was registered as
N.C.R No. 122 of 2005 at 22:45 hrs on
07.11.2005 at Police Station Thithiya,
District Kannauj. The version as stated in
2 INDIAN LAW REPORTS ALLAHABAD SERIES
the said report is that his brother was
coming back home on a cycle from cold
storage Thithiya and behind him Ram
Ashrey son of Bechey Lal was also coming
on a cycle and when they reached
Bhadausa Road on the drain, Ram Das son
of Sundar Lal met him and tried to sit on
his cycle, to which, his brother refused and
then Ram Das started abusing him. On
being tried to stop, he assaulted his brother
with kicks and shoes, as a result of which,
his brother received injuries on his nose
and face and started shouting. Co-villager
Naeemuddin saw the incident and saved
him. The incident is of 07:00 pm. It is
further stated that the treatment of his
brother is being done in Qasba Thithiya. He
states that a report be registered and action
be being taken. The name of his brother is
Shahjuddin. The said application is marked
as Exb: Ka-2 to the records.

3. Shahjuddin was got medically
examined on 08.11.2005 at 10:00 am at
PHC, Thithiya by Doctor S.B. Dwivedi
(PW-2) wherein he was brought by the
informant Shamshuddin. The doctor found
one lacerated wound on his person which is
as follows:-

"1. Lacerated wound 4.6 cm x 0.5
cm x bone deep on right side nose just
away right eye brow. Irregular margin.
Blood clot present. Unconscious. Heavy
blood loss and swelling on forehead and
nose, vomiting, Adv. X-ray and expert
opinion."

The
injury was
kept under
observation, X-ray was advised and expert
opinion was also advised. The same was
opined to have been caused by hard and
blunt object and the duration was about half
day old, the said medical examination
report is marked as Exb: Ka-1 to the
records.

4. Subsequently, Shahjuddin died on
09.11.2005 at 09:45 pm while being under
treatment in L.L.R Hospital, Kanpur Nagar.
The inquest was conducted on his body by
Sub-Inspector Shyam Lal Das (PW-10) on
10.11.2005 between 11:40 am and 12:40
pm at L.L.R. Hospital Kanpur Nagar, the
same is marked as Exb: Ka-4 to the
records.

5. The postmortem examination of
Shahjuddin was conducted on 10.11.2005
at 02:20 pm by Doctor Kamal Kumar (PW9) and the doctor found the following
injuries:

"1. Contused swelling 6.0 cm x 5
cm on left temporo-parietal area just above
left ear.

2. Abraded contusion 5 cm x 4.0
cm on left side of face.

3. Stitched wound 3 cm long.
Four stitches present on right eye lid.

4. Stitched wound 2 cm long.
Two stitches present on nose."

The cause of death opined was
coma as a result of head injury. The
postmortem report is marked as Exb: Ka-6
to the records.

6. The investigation concluded and a
charge sheet no. 9 of 2006 dated
10.02.2006 was filed against Ram Ashrey
under Section 304 of the Indian Penal
Code, 1860, the same is marked as Exb:
Ka-4 to the records.

7. A charge sheet no. 9-A of 2006
dated 22.04.2006 was filed against Ram
Das under Section 304 of the Indian Penal
Code, 1860 as an absconder, the same is
marked as Exb: Ka-5 to the records.

8. The trial court framed charge under
Section 304 of the Indian Penal Code, 1860
1 All. Ram Das Vs. State
3
vide order dated 02.01.2009 against Ram
Ashrey and under the same section vide
order dated 04.02.2009 against Ram Das, to
which, both the accused pleaded not guilty
and claimed to be tried.

9. By the impugned judgment and
order, accused Ram Ashrey has been
acquitted of the charges levelled against
him but the present appellant Ram Das has
been convicted and sentenced as stated
above.

10. On receiving the medical
examination report of Shahjuddin, the noncognizable report was converted into a
regular case vide GD No. 27 transcribed at
23:05 hrs on 09.11.2005 as Case Crime No.
421 of 2005 under Sections 323, 308, 504
of the Indian Penal Code, 1860 by Head
Constable Ram Dutt Rathore PW-7. On
13.11.2005,
the
first
informant
Shamshuddin gave an application to the
Station House Officer, Police Station
Thithiya, District Kannauj that the injured
Shahjuddin after receiving injuries on
07.11.2005 was in a critical condition and
hence was admitted in Hallet Hospital in
the
emergency
in
Kanpur
and
on
09.11.2005 at 09:45 pm while being under
treatment, he died.

11. The accused persons pleaded not
guilty and claimed to be tried. They have
led no defence.

12. The prosecution in order to prove
its case produced Naeemuddin as PW-1
who claimed himself to be an eye witness.
Doctor S.B. Dwivedi PW-2 conducted the
medical examination of Shahjuddin while
he was alive. Shamshuddin PW-3 is the
first informant and the elder brother of the
deceased. Faizuddin PW-4 is the younger
brother of the deceased and the first
informant. Smt. Munni PW-5 is the wife of
the deceased. Ramnath Dwivedi PW-6 was
the second Investigating Officer of the
matter from 22.11.2005 upto 09.12.2005.
Ram Dutt Rathore the Head Constable
converted the present case from N.C.R. to a
regular case after receiving information
about the death of the injured. Dev Raj
Singh PW-8, is the Investigating Officer of
the case from 27.12.2005 after the N.C.R.
was converted to a regular case. Dr. Kamal
Kumar PW-9 conducted the postmortem
examination. Ram Lal Das, Sub-Inspector
PW-10 conducted the inquest on the body
of the deceased and Mohd. Hafeej PW-11
was the first Investigating Officer from
09.11.2005 after the non-cognizable report
was registered.

13. The trial court after considering
the entire evidence on record came to the
conclusion that there is sufficient evidence
against the accused appellant Ram Das for
committing the offence and as such
convicted and sentenced him as stated
above. The accused Ram Ashrey who was
also tried with the appellant was acquitted
of the charges levelled against him of the
same judgment and order.

14. We have heard Sri Ajay Kumar
Singh, learned counsel for the appellant
who has been appointed in the present case
by the High Court Legal Committee to
represent the appellant in the present jail
appeal and Ms. Kumari Meena, learned
AGA for the State and perused the record.

15. Learned counsel for the appellant
made the following submissions:

i) Naeemuddin PW-1, the eye
witness of the incident whose name finds
place in the application dated 07.11.2005
given by Shamshuddin which is Exb: Ka-2
4 INDIAN LAW REPORTS ALLAHABAD SERIES
to the records did not support the
prosecution case and has been declared
hostile.

ii) The other eye witness of the
incident namely Faizuddin PW-4 is the
younger brother of the deceased and the
first informant and his name has surfaced
all of sudden as an eye witness and he is an
interested and related witness.

iii)
Shamshuddin,
the
elder
brother of the deceased and the first
informant is not an eye witness and he has
given the application dated 07.11.2005 on
the information received by him from
Naeemuddin which was lodged as a NCR.
It is thus apparent that the other eye
witnesses examined being Faizuddin PW-4
who is the younger brother of the deceased
and the first informant is a planted witness
and is a related witness whose testimony is
totally false just in order to falsely
implicate the appellant.

iv)
The
testimony
of
the
witnesses have major inconsistencies in
themselves and as such it cannot be relied
upon. Even the version given by Smt.
Munni PW-5 is not inconsonance with that
given by the other witnesses namely
Shamshuddin PW-3 and Faizuddin PW-4
and as such even she cannot be relied upon
as a truthful witness.

v) The medical evidence does not
corroborate with the prosecution version at
all.

16. Per contra, learned Additional
Government Advocate for the State argued
that the prosecution of the appellant is
correct and true. It is argued that
Naeemuddin though has been declared
hostile but he was named as an eye witness
in the application given by Shamshuddin
dated 07.11.2005 and further Faizuddin
PW-4 is also an eye witness whose
presence at the place of occurrence is quite
natural. It is further argued that the trial
court has considered these aspects and has
meticulously dealt with them and has thus
convicted the appellant. It is argued that the
present
appeal
lacks
merit
and
be
dismissed.

17. PW-1 Naeemuddin was produced
as an eye witness to the incident. He states
that on 07.11.2005 he was returning on his
cycle to his village from Thithiya. He states
that he did not see any marpeet. He states
that he heard in the village that Shahjuddin
is lying at the place of occurrence and
when he reached there, he saw Shahjuddin
lying unconscious. He states to have
reached the place of occurrence at about
08:00 pm when Shahjuddin was lying in an
injured condition. He states that he did not
see any of the accused persons who are
present in court assaulting. He states that he
had gone to file an affidavit in the Court
which was not read to him. He is illiterate.
He was then declared hostile and was
permitted cross examination by the ADGC.

18. In the cross examination, he was
read over his statement recorded under
Section 161 Cr.P.C., to which, he states that
he did not give any such statement and as
to how the same was recorded he does not
know the reason. He was shown an
affidavit, to which, he stated that on it, his
photograph is affixed. He states that he did
not go to the Tehsil for getting the said
affidavit prepared. He also states that he
does not know as to whether the thumb
impression affixed on it is his or not. He
states
that
he
knows
the
deceased
Shahjuddin. Accused Ram Ashrey is a
resident of his village and he does not
know as to where Ram Das lives. Ram
Ashrey does the work of getting bidi
prepared from Makanpur. He states that he
does not know accused Ram Ashrey and
1 All. Ram Das Vs. State
5
deceased Shahjuddin used to come and go
together or not. He did not see the deceased
and did not see the injuries and even did
not go to the place of occurrence. He had
gone to Tehsil Tivo for getting the affidavit
prepared. Along with him Shamshuddin
and Faizuddin had gone. To a suggestion
that he is giving false evidence as he has
colluded with the accused, he denies. He
states that the affidavit was read by an
Advocate but it was not read over to him.
He had affixed his thumb impression on it.
He was then cross examined by the defence
to which he states that he did not go to the
place of occurrence and saw when the
injured was brought to the village. He
states that Shamshuddin and Faizuddin had
taken him to Tehsil Terya and had got his
thumb impression affixed on the same and
prepared it. He does not know about any
paper. He was not told where the paper will
be used. He was not interrogated by the
Investigating Officer. He states that the
deceased Shahjuddin was of his family.
There was no enmity between the family of
the deceased and his family. The accused
Ram Ashrey belongs to Kushwaha caste.
The distance between the house of Ram
Ashrey and his house is about half
kilometre. There was no enmity between
the family of the deceased and the accused.

19. Dr. S.B. Dwivedi PW-2 had
examined Shahjuddin while he was in an
injured condition on 08.11.2005 at 10:00
am when he was posted as the Medical
Officer, PHC Thithiya. He states that the
injured was brought by his elder brother
Shamshuddin and states about the medical
examination report which he prepared, the
injury noted by him the advice mentioned
therein. He states that the injured was
unconscious. The injuries are not being
quoted herein as they have already been
quoted above. The injury report was proved
by him which was marked as Exb: Ka-1 to
the records. He states that it is possible that
the injury might have been received on
07.11.2005 at 07:00 pm.

20. In his cross examination, he states
that the injuries were about half day old. He
states that when the injured came to him,
blood was clotted. Police did not bring the
injured to him. He states that the majroobi
chitthi and the injured was brought to him
by his brother. The injured had received
injury on his nose and nowhere else. He
states that the said injury can be caused
from a stone or if any one bangs on a stone.
X-ray of the injured was not brought to
him. He did not prepare any supplementary
report. The injured was unconscious. The
injury cannot be caused by fall. The injury
can be caused if any one bangs on a stone.
If anyone bangs on a hard blunt object, the
injury can be caused. He states that he
found only one injury on the body of the
injured and did not find any other injury. To
a suggestion that there were other injuries
on the injured except for one injury, he
denies the same.

21. Shamshuddin PW-3 is the
informant and the elder brother of the
deceased. He is not an eye witness of the
incident. He states in his examination-inchief that the deceased Shahjuddin was his
younger brother who used to work in bidi
factory of Devi Prasad. Ram Ashrey also
worked with him. Ram Das did not work
with him. Devi Prasad used to get country
made pistol made at his house. He states
that his brother Shahjuddin had seen the
said illegal work being done. Other
employees had told Devi Prasad about it, to
which, he said that the information may get
leaked and then Devi Prasad give Rs.
30,000/- to Ram Ashrey for getting the
murder of his brother. He states that the
6 INDIAN LAW REPORTS ALLAHABAD SERIES
said information was told by his brother to
him when he came from Makanpur, since
then Ram Ashrey was trying to get the
murder of his brother done. Due to the said
reason, Ram Ashrey along with Ram Das
committed the murder. The incident is of
07.11.2005 at about 07:00 pm. He states
that at that time he was at his house.
Naeemuddin co-villager came there and
told him that he was returning by foot from
Thithiya back to the village and at about
07:00 pm when he reached the drain on
Bhadausa Road near the field of Ram
Swaroop in Basawan Purva, he saw Ram
Das assaulting Shahjuddin with kick, fists
and danda by throwing him in the drain on
the road. He states at that time Faizuddin
PW-4 and Awadhesh reached there and also
saw the incident. They exhorted Ram Das,
to which, he ran towards Nathuvapur Road.
Moonlight was the source of light present.
Shahjuddin was lying in an injured
condition in the drain of the field. His cycle
was lying on the side of the road on the
unmetalled part. He states that on the said
information, he, Gayasuddin the younger
brother, his son Raju and other villagers
went to the place of occurrence and saw his
brother was lying in an injured condition
and the cycle also lying on the unmetalled
side of road.

22. He further states that his brother
in an injured condition told him that he was
returning from cold storage of Thithiya on
the cycle and behind him Ram Ashrey was
also coming on his cycle. When they
reached the place of occurrence, Ram Das
met him and stopped him. Ram Ashrey
went ahead. Ram Das told him that he may
be permitted to sit on the cycle, his brother
refused for the same, to which, he was
thrown in the drain and assaulted by kick,
fists and danda. At that time, Naeemuddin,
Faizuddin and Awadhesh reached there and
saved him and then Ram Das ran towards
Nathuvapur. He then states that he took his
injured brother on a cycle to the Police
Station Thithiya and got the report lodged.
The report was read to him, the same is
marked as Exb: Ka-2 to the records.

23. He then states that he took his
brother to Thithiya Government Hospital
along with letter from the Police Station but
did not meet the doctor as it was night and
then got his brother treated privately and
went home. On the next day, his brother
was taken to PHC, Thithiya where he was
treated. His condition was precarious and
as such he was referred to Hallet Hospital,
Kanpur where he was taken on a Marshal
Jeep and was being treated. He died on
09.11.2005 in the night and inquest was
conducted in the hospital. The postmortem
was conducted there only on 10.11.2005
and then the dead body was handed over
and the last rites was performed. He states
that he had given an application dated
13.11.2005 about the death of his brother at
Police Station Thithiya which was proved
by him and marked as Exb: Ka-3 to the
records. He was interrogated by the
Investigating officer.

24. In the cross examination, he states
that the day of the incident was Monday. At
that time, he was present in the house. The
incident is of 07:15 pm. His brother had
gone to Thithiya from the house at about
02:00 pm. He does not know where he had
gone. He generally used to go and come
with Ram Ashrey and Shahjuddin and they
were friends. He states that both of them
had some differences between them but he
does not know what it was. He states that
Naeemuddin had informed him about the
incident. The name of the father of
Naeemuddin is Amjad. Naeemuddin is his
nephew. He had informed him about the
1 All. Ram Das Vs. State
7
incident in the evening. When he reached
the place of occurrence, Ram Ashrey and
Ram Das were present there. He took the
injured along with other persons to the
police station. The accused persons did not
go to the police station. The accused
persons ran away after seeing them towards
Nathuvapur which is at a distance of half
kilometre from the place of occurrence.
Night was moonlit. He states to have told it
to the Investigating Officer but if the same
has not been written in his statement, he
does not know the reason for it. About 20
people went with him to the place of
occurrence. The injured also went with him
to the police station along with him
Faizuddin,
Naeemuddin,
Pappu,
Gayasuddin, Munni and other persons.
They remained at the Police Station and the
hospital together. After getting the report
lodged they went away. He states to have
given the statement for the first time in the
present matter and prior to this he gave his
statement to the police at the Police Station.
He states that when he reached the Police
Station, his brother was lying in an injured
condition. His cycle was lying on the
unmetalled side of road which was not
broken. He stayed at the place of
occurrence for half an hour. The injured
was taken to the Police Station on the
cycle. He was walking while holding him
and reached the Police Station. The Police
Inspector talked to him and his brother was
sitting
outside.
Letter
for
medical
examination was given to him and he went
to the hospital. He does not know for how
much time he remained at the police
station. He states that it is false that this
brother talked to police at the Police
Station. His brother had told him about the
incident. To a suggestion that he is giving a
false evidence, he denies. He states that it is
correct that when he reached the place of
occurrence, his brother was unconscious
and he regained consciousness after he was
given treatment.

25. His brother was brought home
after first aid and then he told him about the
incident, the same was told to him in
isolation. He states that he did not see the
incident. He was told about it by
Naeemuddin. He got the incident reported
on the information given to him by his
brother. Except for Naeemuddin no one
else came to tell him anything. He discloses
the names on the basis of information
received from Naeemuddin. He has given
the names of Ram Das and Ram Ashrey in
his report. He states that when he reached
the place of occurrence then except for his
brother there was no one else present. He
states that on the day of occurrence, the
fields were vacant and there was no crop at
the place of occurrence. There was a
milestone fixed. To a suggestion that his
brother in an intoxicated condition hit the
milestone and received injuries and died, he
denies the same. Further, to the suggestion
that he has lodged the report on the basis of
what he has heard, he denies the same.

26. Faizuddin PW-4 is the youngest
brother
amongst
the
first
informant
Shamshuddin PW-1 and the deceased
Shahjuddin. He states that all the brothers
live separately. Shahjuddin makes bidi. He
was working in the bidi factory of Devi
Prasad. He used to go to the factory daily
from the house. Ram Ashrey who is also of
the same village was also working in the
same factory. He states that in the factory
of Devi Prasad illegal country made pistol
and guns were also manufactured which
was seen by the deceased Shahjuddin. The
said fact was told to Devi Prasad by the
other workers of the bidi factory and stated
that the said fact may be leaked on which
he gave Rs. 30,000/- to Ram Das and Ram
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Ashrey for murdering Shahjuddin. This fact
was told to him and his brother by
Shahjuddin. Since then, Ram Das was in the
search of committing murder of Shahjuddin.
He states that the incident is of 07.11.2005 at
about 07:00 pm. He and Naeemuddin were
returning to the village from Thithiya on his
cycle.
He
was
driving
cycle
while
Naeemuddin was sitting behind. At the place
of occurrence, he saw Ram Das and Ram
Ashrey assaulting his brother with danda and
butt of a country made pistol. Shahjuddin
received injuries due to the assault on his face
and head. It was bleeding. His cycle was
lying on the unmetalled road. They then
exhorted, on which, Ram Ashrey ran towards
the village and Ram Das ran towards
Nathuvapur. He states that Ram Ashrey gave
the information about the incident to his
house. Apart from the said two persons,
Awadhesh of village Bhadausa also came
there who saw the incident and had exhorted.
Then Shamshuddin, Gayasuddin, Raju and
Munni came to the place of occurrence from
the house. He, Awadhesh and Shamshuddin
told about the incident. His brother was aged
about 35 years. Then they took his brother to
Police Station Thithiya report was got lodged
at the Police Station by Shamshuddin. The
Police had seen his injuries and had given
majroobi chitthi then he was taken to
Thithiya Hospital but doctor was not present
and no treatment was given and his medical
was not done. Then, he was taken to a private
doctor Rajendra Katihar who gave him first
aid and did dressing of the injury and the
injured was brought to the house. Then, in the
morning, he was taken to Thithiya from
where he was referred to Hallet Hospital,
Kanpur. He was treated for three days in
Hallet Hospital and on the third day, he died.

27. The inquest was conducted and
the
dead
body
was
sealed.
He,
Shamshuddin and other persons had gone
to Kanpur. He, Shamshuddin, Pappu, Kaley
Khan and Nanhey Khan were appointed as
Panch witnesses to the inquest. He
identifies his signature on the inquest
which was marked as Exb: Ka-4 to the
records. The postmortem examination was
then conducted and they brought the dead
body
thereafter
to
the
village
and
performed the last rites.

28. In cross examination, he states
that he saw the incident and is an eye
witness. To a suggestion that the incident
was informed to the house and then he
went to lodge the report, he states it to be
false. He had started from the Thithiya at
about 07:00 pm. The distance between
Thithiya and the place of occurrence is two
kilometres. Naeemuddin was with him. He
first
saw
Ram Ashrey.
His
brother
Shahjuddin and Ram Ashrey were going on
different cycles. Ram Ashrey was going in
the front. At that time it was dark. Vehicles
also ply on the road on which he goes to his
house. The accused ran away after the
incident. He saw the incident from a
distance of 50-60 steps. The accused saw
them and ran away. He did not chase the
accused but had shouted. He shouted as
soon as he identified his brother. He does
not know as to for how much time did the
assault last. He states that his brother did
not use to drink liquor before him.

29. The information of country made
pistol being manufactured at the cold store
was told to him by his brother 2-3 times.
He did not give any application at the
Police Station for any action. His brother
also
did
not
complain
about
the
manufacture of the country made pistol. He
did not see country made pistol being
manufactured at the bidi factory. He does
not know of any differences between the
owner of the bidi factory and his brother
1 All. Ram Das Vs. State
9
and neither did his brother ever tell him.
His brother did not see him coming behind.
His brother did not raise a shout and he did
not hear it. When he reached the place of
occurrence and turned the person lying
there then he identified him to be his
brother. He states that there is a milestone
fixed at the place of occurrence on the side
of the road. To a suggestion that the dead
body was found at the milestone, he denies
the same and states that it was found about
30-40 steps away from it. It was 07:00 pm,
he does not know where there was fog or
not. He took his brother and came to the
Police Station for lodging a report. The
body was not sealed there. The body was
sealed in Kanpur about after three days of
the incident. The report was lodged on the
same
day.
His
brother
was
in
an
unconscious state. The police went to the
place of occurrence later on but did not go
before him. He states that the story of
giving of Rs. 30,000/- was not witnessed by
him. He had not told the said fact to the
Investigating officer. To a suggestion that
he did not go to the Police Station, he
denies it.

30. The report was not signed by him
but was got lodged by Shamshuddin. To a
suggestion that his brother in an intoxicated
condition banged on the milestone due to
which he died, he states to be incorrect. He
states that Ram Ashrey had gone to the
house and had told about the incident to his
sister-in-law Munni Devi. He does not
know as to whether Ram Ashrey had gone
to the house before he had reached or later.
To a suggestion that he did not see the
incident and came to know of it while he
was at the house, he denies. He states that
he told the incident at the house after Ram
Ashrey had not given information. His
family members went to his brother after
receiving information from Ram Ashrey. To
a suggestion that he is giving false
evidence, he denies.

31. Smt. Munni PW-5 is the wife of
the
deceased
Shahjuddin.
In
her
examination-in-chief she states that the
incident is of 07:00 pm. She has two sons
and two daughters. Gudiya and Anas being
the
daughters
and
Gayasuddin
and
Shamshuddin are her sons. Her husband
used to prepare bidi in the factory of Devi
Prasad in Makanpur. He used to go to
Makanpur from the house daily. On the day
of incident, her husband left the house for
Makanpur at 10:00 am and came back at
03:00 pm. He told her to prepare food to
which she started preparing it. At that time,
Ram Ashrey came to her house and told her
husband to accompany him to the cold
store at Thithiya for taking out potatoes and
will sell them and then they will have food
at Thithiya. Her husband then went to
Thithiya with him without having food. He
did not return till 06:00 pm. Then Ram
Ashrey came at 07:00 pm and called her
son Gayasuddin and told him that Ram Das
has taken his father and is assaulting him at
the Bhadausa Road in Thithiya. At that
time, she states that both the hands of Ram
Ashrey were blood stained and his clothes
were also having blood. She then raised a
hue and cry and along with her sons,
nephew and Ram Ashrey went to the place
of occurrence where she saw her husband
lying in an injured condition. He was seen
by her, Kallu and Gayasuddin and other
persons. The cycle was also lying there.
Then Ram Ashrey disappeared. She states
that her husband had received injuries on
face and nose which was bleeding. Then
they picked him up and her jeth and other
persons went to the Police Station. She
came back to the house. The report was
lodged by her jeth Shamshuddin. Her
husband then died on 09.11.2005 at Hallet
10 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital, Kanpur. She states that she,
Shamshuddin, Pappu, Nanhey Khan and
Kaley Khan were present there. The inquest
was conducted and the dead body was
taken by the Police. Then the body was
brought back home. She states that the
death of her husband was due to the assault
by Ram Das and Ram Ashrey. She was
interrogated by the Investigating Officer.

32. In her cross examination, she
states that she is illiterate. She does not
know the day of the incident. Ram Ashrey
and her husband were friends. They used to
be together and often also used to have
food together. They used to work together
in the factory. They used to go together to
the factory. Ram Ashrey for the first time
came to her house on the day of the
incident at 03:00 pm. He did not sit at the
house. Both of them immediately went
away. He told her husband to accompany
him to Thithiya to which he immediately
got ready. The second time Ram Ashrey
came to her house was at 07:00 pm. Ram
Ashrey did not tell about any fight between
her husband and Ram Das. To a suggestion
that she is speaking a lie, she denies. To a
further suggestion that she had told the
Investigating Officer that Ram Ashrey had
come to the house and told her that her
husband and Ram Das had a fight, she
denies. The distance between the place of
occurrence and her village is stated to be
one kilometre by her. She states that she
went on foot to the place of occurrence.
She started from her house at 07:00 pm and
reached the place of occurrence in half an
hour. She was crying and then Ram Ashrey
consoled her and made her reach the place
of occurrence. She, her nephew and brother
then lifted her husband and made him lie
down on the road. Ram Ashrey did not hold
him. Many persons of the family and about
100-200 peoples of the village were present
there who had followed them. The night
was moonlit. There was a milestone about
60 steps away from the place where the
dead body of her husband was found. She
on a suggestion that she did not go to the
place of occurrence and is speaking a lie,
she denies. She states that the report was
got
lodged
by
Shamshuddin
after
consultation. She did not tell Ram Ashrey
to give evidence. The house of Ram Ashrey
is about 10 house away from her house.
Ram Ashrey did not meet her thereafter.
She states her statement to be given for the
first time in court and states that she has
never given any statement before. She
denies the suggestion that she had told Ram
Ashrey to give evidence in the matter and
as he had refused for it, he has been made
an accused. She states that when she
reached the place of occurrence, her
husband was lying there. Ram Das had run
away. She had reached the place of
occurrence at about 07:30 pm. She did not
see any one assaulting her husband. To a
suggestion that she is giving evidence on
the same being heard, she denies.

33. Further, to a suggestion that she is
giving a false evidence she denies. To a
suggestion that her husband was a drunkard
and due to the same, he banged somewhere,
she denies as result of which he received
injuries, she denies.

34. Ram Nath Dwivedi PW-6 is the
second Investigating Officer of the matter
who
took
up
the
investigation
on
22.11.2005 which remained with him upto
09.12.2005. He states that the investigation
was taken over by him on 22.11.2005 from
the previous Investigating Officer Mohd.
Hafeez. He perused the case diary and
recorded the statements of Faizuddin,
Awadhesh, Gayasuddin and Raju on
26.11.2005. Later on, he recorded the
1 All. Ram Das Vs. State
11
statements of Vijay Dwivedi, Rajendra, Dr.
S.B. Dwivedi on 09.12.2005. In his cross
examination, he states to have recorded the
statements
of
Faizuddin,
Awadhesh,
Gayasuddin and Raju and states that the
said witnesses did not tell him that Ram
Ashrey had a fight with the deceased.
Further, he states that the said witnesses did
not name Ram Ashrey in their statement.

35. Ram Dutt Rathore PW-7 was
posted as the Head Constable at Police
Station Thithiya. In his examination-inchief he states that on 07.11.2005 at 22:45
hrs, a non-cognizable report no. 122 of
2005 was registered, in which, the injury
report of Shamshuddin of Dr. Chhotey
Khan was given by Vijay Kumar Dwivedi
on the basis of which on 09.11.2005 GD
No. 27 the N.C.R. was converted at 23:05
hrs in Case Crime No. 421 of 2005 under
Sections 323, 308, 504 of the Indian Penal
Code, 1860. He proves the same which is
marked as Exb: Ka-4 to the records.

36. In his cross-examination, he states
that in the N.C.R., Ram Das is only named
and Ram Ashrey is not named. He did not
tell the name of Ram Ashrey to the
Investigating officer. He further states that
the said case was converted on the basis of
the medical examination report. To a
suggestion that he did not see the medical
report, he denies the same.

37. Dev Raj Singh PW-8 was the
Investigating Officer of Case Crime No.
421 of 2005. In his examination-in-chief,
he states that after getting the investigation
of the matter he perused the case diary,
copy of the inquest and postmortem in it.
On 09.11.2006 he received the affidavits of
Naeemuddin, Faizuddin and Shamshuddin
which he copied the case diary. He
recorded the statement of Smt. Munni the
wife of the deceased on 10.11.2006 and
also recorded the statement of Kallu, in
which, the name of Ram Ashrey surfaced
as an accused. He then recorded statements
of other persons and started raids for arrest
of
Ram Ashrey.
Ram Ashrey
then
surrendered on 03.02.2006. He concluded
the investigation in so far as it related to
Ram Ashrey and filed charge sheet no. 9 of
2006 against him which is marked as Exb:
Ka-4 to the records. He then conducted
raids for the arrest of Ram Das but could
not find him and then initiated proceedings
under Section 82/83 Cr.P.C. against him
and later on filed charge sheet against him
on 22.04.2006 being charge sheet no. 9-A
of 2006. The same is marked as Exb: Ka-5
to the records. Later on, Ram Das was
arrested on 26.10.2006 in Case Crime No.
173 of 2006 under Section 25 of the Arms
Act.

38. In his cross examination, he states
that he got the investigation of the matter
on 27.12.2005 and perused the proceedings
of the previous Investigating Officer. He
states that the informant did not name Ram
Ashrey in his statement given to the
previous Investigating Officer. He states
that the informant on 13.11.2005 gave
statement to the previous Investigating
Officer and had stated that witness
Naeemuddin
had
seen
Ram
Das
committing marpeet. In the said statement,
he had stated that his brother is an injured
condition and was only assaulted by Ram
Das. Ram Ashrey had not assaulted him.
The statement was recorded by the
previous Investigating Officer that witness
Naeemuddin and Awadhesh had reached
the place of occurrence at the time of the
incident.
He
states
that
the
second
Investigating Officer R.N. Dubey had
recorded the statement of Faizuddin who
stated that Ram Das had assaulted the
12 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased Shahjuddin. There is no reference
that Ram Ashrey had participated in the
incident. To a suggestion that he did not
record any statement and has filed a false
charge sheet against Ram Ashrey, he
denies. He further denies the suggestion
that due to party-bandi in the village, Ram
Ashrey has been falsely implicated and
false charge sheet has been prepared.

39. Dev Raj Singh PW-8 was then
again summoned for cross examination. In
his cross examination, he stated that he got
the
investigation
of
the
matter
on
27.12.2005. He stated that he did not go to
the place of occurrence and had not
prepared the site plan and as such he does
not know about the place of occurrence. He
had seen the site plan prepared by the
previous Investigating Officer. Prior to him
Mohd. Hafeez and R.N. Dubey were the
Investigating Officers. He had again
interrogated Smt. Munni Devi, Lallu,
Faizuddin, Shamshuddin etc. The said
witnesses were previously interrogated by
the previous Investigating Officer. He took
the statement of the witnesses again. The
incident was of 07:00 pm. At the time of
incident, there was dark. The witnesses had
told him that the day was ending. He could
not tell of any source of light. He states that
in the month of November at 07:00 pm,
visibility is from a close proximity. The
witnesses did not tell him any torch etc. He
did not recovery the cycle of the deceased.
He did not find the previous Investigating
Officer taking into possession plain mud
and blood stained mud. He did not prepare
the recovery memo of the clothes of the
deceased.
The
previous
Investigating
Officer also did not take into possession the
clothes of the deceased.