# Ram Gati @ Prem Chandra (In Jail) v. State of U.P

- **Citation:** (2022) 8 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Appeal No. 5950 of 2010
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-gati-prem-chandra-in-jail-v-state-of-u-p-48951
- **Pages:** 18

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120-B , 302 & 452 - The
Code of Criminal Procedure, 1973
-
Sections 107,145 & 313 - Arms Act, 1959 -
Section 25/27 - Criminal conspiracy -
appeal against conviction - House -
trespass after preparation for hurt ,assault
or wrongful restraint - interested witness
testimony not necessarily unreliable
evidence - evidence of interested witness
should be subjected to careful scrutiny
and accepted with caution - If on such
scrutiny, the interested testimony is found
to be intrinsically reliable or inherently
probable - it may, by itself, be sufficient,
in the circumstances of the particular
case, to base a conviction thereon.(Para -
36)

Young girl (PW-2) whose sister was shot dead in
front of her eyes - PW-2 & PW-10 (younger
sister and mother)- category of interested
witnesses - present at the spot - room of their
house - natural - date and time duly
established by PW-1 as well as documentary
evidence - source of light i.e. presence of
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
893
lanterns - disclosed by eye-witnesses - ocular
account corroborated by - medical evidence and
collected plain/blood stained earth from inside
the room. (Para - 40,41,43)

HELD:-Prosecution succeeded in establishing
that deceased was killed inside the room of the
house of the informant(father of deceased).
Prosecution successfully proved the guilt of the
accused-appellant beyond the pale of doubt in
respect of the offences punishable under
Sections 452 and 302 I.P.C. .(Para - 44)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

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892 INDIAN LAW REPORTS ALLAHABAD SERIES
Consequently, in the facts of the instant
case and also in view of Section 27 of the
U.P. Dacoity Affected Areas Act, 1983, a
presumption can safely be drawn to the
effect that kidnapping was done for ransom
and thus, we are of considered opinion that
condition no.3 also stands fulfilled.

98. Accordingly, we uphold the
conviction of the appellants under Section
302, 364-A and 201 IPC as recorded by the
trial court. The sentence and fine in respect
of offences under Section 302, 364-A and
201 IPC, as awarded by the trial court, are
also maintained, in absence of any
mitigating or extenuating circumstances
being placed before us. In almost similar
facts and circumstance, the Supreme Court
upheld the conviction and life sentence of
accused in Sonu @ Amar Vs. State of
Haryana, 2017 (8) SCC 570 and Shyam
Babu and others Vs. State of Haryana,
2008 (15) SCC 418.

99. The punishment of life sentence
death for offences under Section 364-A and
302 IPC was held to be just, fair and
reasonable by the Supreme Court in
Vikram Singh @ Vicky Vs. Union of
India, (2015) 9 SCC 502.

100. We do not find the instant case
to be the rarest of rare cases so as to
convert sentence of life imprisonment to
capital punishment.

101. In the result, all the appeals,
revision and Government Appeal stand
dismissed. The judgment be communicated
to the court concerned forthwith.

102. Let a copy of this order be
placed on record of each case.
----------
(2022) 8 ILRA 892
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 5950 of 2010

Ram Gati @ Prem Chandra
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sanjay Kumar Srivastava, Sri Amit
Kumar Singh, Sri Lav Srivastava, Sri R.P.
Srivastava, Sri Vinod Kumar Sahu

Counsel for the Opposite Party:
Govt. Advocate, Sri P.K. Singh, Sri Tripathi
B.G. Bhai

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120-B , 302 & 452 - The
Code of Criminal Procedure, 1973
-
Sections 107,145 & 313 - Arms Act, 1959 -
Section 25/27 - Criminal conspiracy -
appeal against conviction - House -
trespass after preparation for hurt ,assault
or wrongful restraint - interested witness
testimony not necessarily unreliable
evidence - evidence of interested witness
should be subjected to careful scrutiny
and accepted with caution - If on such
scrutiny, the interested testimony is found
to be intrinsically reliable or inherently
probable - it may, by itself, be sufficient,
in the circumstances of the particular
case, to base a conviction thereon.(Para -
36)

Young girl (PW-2) whose sister was shot dead in
front of her eyes - PW-2 & PW-10 (younger
sister and mother)- category of interested
witnesses - present at the spot - room of their
house - natural - date and time duly
established by PW-1 as well as documentary
evidence - source of light i.e. presence of
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
893
lanterns - disclosed by eye-witnesses - ocular
account corroborated by - medical evidence and
collected plain/blood stained earth from inside
the room. (Para - 40,41,43)

HELD:-Prosecution succeeded in establishing
that deceased was killed inside the room of the
house of the informant(father of deceased).
Prosecution successfully proved the guilt of the
accused-appellant beyond the pale of doubt in
respect of the offences punishable under
Sections 452 and 302 I.P.C. .(Para - 44)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Hari Obula Reddy & ors. Vs St. of A.P.,
(1981) 3 SCC 675)

2. Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Maha., Criminal Appeal No.739 of 2017

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. This appeal is against the judgment
and order dated 04.08.2010, passed by the
Sessions Judge, Basti in Sessions Trial
No.137 of 2007, arising out of Case Crime
No.178 of 2007 (State Vs. Ram Gati alias
Prem Chandra and others), P.S. Khalilabad,
district Sant Kabir Nagar, whereby the
appellant
has
been
convicted
under
Sections 302 and 452 I.P.C. and sentenced
as follows: imprisonment for life and fine
of Rs.5,000/-, coupled with a default
sentence of six months, under Section 302
I.P.C.; and four years R.I. and fine of
Rs.3,000/-, coupled with default sentence
of three months, under Section 452 I.P.C.
Both sentences to run concurrently.

2. Four persons, namely, Ram Gati @
Prem Chandra (the appellant), Vijay
Kumar,
Daya
Shankar
and
Krishna
Chandra were put to trial. The appellant
was charged for offences punishable under
Sections 302 and 452 I.P.C. and Section
25/27 Arms Act whereas, co-accused Vijay
Kumar and Krishna Chandra were charged
for offences punishable under Sections 452
and 302 read with Section 34 I.P.C. The
fourth accused, namely, Daya Shankar, was
charged for offence punishable under
Section 120-B I.P.C. The appellant though
was acquitted of the charge of offence
punishable under Section 25/27 Arms Act
but has been convicted for other offences as
noticed above; whereas, co-accused, Vijay
Kumar,
Krishna
Chandra
and
Daya
Shanker have been acquitted. Hence, this
appeal is confined to the accused-appellant
(Ram Gati alias Prem Chandra) in respect
of his conviction for offences punishable
under Sections 452 and 302 I.P.C.

INTRODUCTORY FACTS

3. The prosecution case is that there
was an old standing enmity between
informant-Ram Shabad (PW-1) and the
appellant on account of land dispute; that
on account of this enmity, the appellant had
always been on the lookout to cause harm
to the informant and his family; that on
24.01.2007, while the informant was at his
Baithak, his wife-Kishori (PW-10) and his
elder daughter Nirmla (the deceased) inside
the house and his younger daughter-
Pramila (PW-2) outside, near the tap/tubewell, filling water, at about 7.15 pm, Ram
Gati (the appellant), co-accused Vijay
Kumar,
Daya
Shanker
and
Krishna
Chandra came at the door of informant's
house
with
country
made
pistol,
Lathi/Danda and asked informant's younger
daughter, namely, Pramila (PW-2), as to
where her father and brothers were, when
PW-2 refused to divulge any information
about them, the accused persons entered the
house; at this stage, informant's elder
894 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter Nirmla (the deceased) objected
and warned the accused not to enter the
house; on account of her intervention, Daya
Shankar exhorted the accused, upon which,
Ram Gati (the appellant) fired a shot at
Nirmla, as a result, Nirmla died on the spot;
on hearing the noise of gunshot, the
informant, his wife (PW-10) and other
villagers, namely, Surendra, Jhinku (PW-3),
Babu Lal etc. arrived with Lathi/Danda and
torch and challenged the accused, as a
result, all the four accused escaped. By
making all these allegations, written report
(Exb.Ka-1) was lodged by PW-1 at police
station Kotwali Khalilabad, district Sant
Kabir Nagar where it was registered as
Case Crime No.178 of 2007 at 20.35 hrs on
24.01.2007 of which chik FIR (Exb.Ka-5)
and GD entry (vide report no.52) (Exb.Ka6) was made by PW-5.

4. After registration of the FIR, Chhedi
Prasad Yadav, SSI (PW-7) proceeded to the
spot with his team of officers and carried out
the inquest proceedings. On completion of
inquest proceedings by 22.50 hrs, the inquest
report (Exb.Ka-9) was prepared by S.I. Paras
Nath
Mishra
whose
signatures
were
identified and proved by PW-7.

5. During investigation, Chhedi Prasad
Yadav (PW-7) lifted plain earth/blood stained
earth from the spot and prepared its seizure
memo (Exb.Ka-10). PW-7 also prepared
challan
nash,
photo
nash
and
other
documents in connection with autopsy, which
were exhibited as Exb.Ka-11 and Ka-14 and,
after sealing the body of the deceased, sent
the same for autopsy. On 25.01.2007, Station
House
Officer
of
the
police
station
concerned, namely, Vijay Shankar (PW-8),
took over the investigation of the case.

6. On 25.01.2007, Vijay Shankar
(PW-8) visited the spot and prepared site
plan (Exb.Ka-15). He recorded the
statement of informant-Ram Shabad and
eye witnesses, namely, Kishori Devi
(PW-10), Pramila (PW-2), Jhinku (PW3),
Babu
Lal,
Surendra
including
witnesses of inquest. In between, Jhinku
(PW-3) produced a torch before the
Investigating Officer in the light of
which he witnessed the incident. The
same was found in a running condition
and a custody memo of that torch
(Exb.Ka-3)
was
prepared
with
a
direction to produce it in court as and
when
required.
Similarly,
custody
memos of the torch used by witnesses
Surendra and Babu Lal were prepared
and were exhibited during the course of
trial as Exb.Ka-2 and Ka-4. Likewise,
the custody memo of lantern and torch
used by the informant and his family to
witness the incident was prepared and
proved by the I.O. (PW-8), which was
exhibited as Exb.Ka-26.

7. On 25.01.2007, at about 3.30
pm, the autopsy of the body was
conducted by Dr. Pankaj Khare (PW-6).
The autopsy report (Exb.Ka-8) records :

(i) Female body, aged about 20
years, average built, mouth and eye
closed, rigor mortis present in all the
four limbs. Blood clot present over face
and head;

(ii) Ante-Mortem injuries :

(a) Wound of Entry - Firearm
wound of entry 2 cm x 1.5 cm x bone
deep on left side of parital area of head
just above the left eyebrow. Margins of
wound irregular & inverted about one
cm diameter of bone chip absent;
Direction-oblique.
Tattooing
and
charring present in an area of 10 cm x 9
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
895
cm around the wound; Singing of
eyebrows & scalp present;

(b) Exit wound - of firearm
present 3 cm x 2.5 cm on right side of
back of head in occipital area 6 cm above
and behind right ear. Margins of wound
are irregular and everted. On probing, the
probe passed from wound of entry to exit.
Left to right oblique. Underneath, the left
side frontal and parital and right back
occipital and parital bone fractured. Wide
spread laceration and haematoma present
in brain substance and brain matter
popping out from wound of exit.

(iii) Internal Examination -

semi-digested food about 150
grm present in stomach; pasty material
and gases in small intestine; whereas,
faecal material and gases found in large
intestine.

(iv) Opinion :

Death
due
to
shock
and
haemorrhage as a result of ante-mortem
firearm injury.

(v) Duration :

About one day before.

8.

During
the
course
of
investigation, police custody remand of
the
appellant
was
obtained.
On
24.02.2007, a country made pistol .315
bore, one live cartridge and one empty
cartridge of .315 bore were recovered
from the house of the appellant on his
pointing in respect of which recovery
memo (Exb.Ka-16) was prepared by PW8. After conclusion of the investigation,
charge-sheet (Exb.Ka-13) was submitted
against the appellant under Sections 452
and 302 IPC and 25 Arms Act whereas
the other accused, except Daya Shankar,
were charged for offences punishable
under Sections 452 and 302 IPC. Daya
Shankar
was
charged
for
offence
punishable under Section 120-B IPC.

9. After taking cognizance on the
charge-sheet, the case was committed to the
court of session. On commital of the case,
the appellant Ram Gati was charged for
offence punishable under Sections 302 and
452 IPC and Section 25/27 Arms Act;
whereas, accused Vijay Kumar and Krishna
Chandra
were
charged
for
offence
punishable under Section 302 read with
Section 34 and 452 IPC; and accused Daya
Shankar was charged for offence of
conspiracy for murder punishable under
Section 120-B IPC. All the accused pleaded
not guilty and claimed to be tried.

PROSECUTION EVIDENCE

10. During the course of trial, the
prosecution examined eleven witnesses.
Their testimony, in brief, is as follows :

11. PW-1 - Ram Shabad. He is the
father of the deceased. He proved the
lodging of the FIR, which was marked as
Exb.Ka-1. He stated that at the time of the
incident, he was at the Baithak, outside the
house. He witnessed the incident as
narrated in the FIR through the Jangla
(window) of the room in which the
deceased was at the time the shot was fired
at her and could recognize all the accused
persons.

During
cross-examination,
he
stated that he is employed in a workshop at
Gorakhpur where he works in a paint shop.
896 INDIAN LAW REPORTS ALLAHABAD SERIES
His duty hours are from 7 am to quarter to 12
noon and, thereafter, from 12.30 pm to
quarter to 5 pm. He stated that in connection
with his job, on a daily basis, he goes to and
comes back from Gorakhpur. He stated that
he has two sons and two daughters, the
daughter who has been murdered was the
eldest, younger to her is Jeet Narayan. The
third is Pramila (PW-2) and the youngest is
Surya Narayan. He stated that Jeet Narayan is
aged 19 years and is un-married, whereas,
Surya Narayan is aged about 10 years.
Nirmla, the deceased, was aged 20 years at
the time of the incident; whereas, Pramila is
aged 14-15 years. He stated that Nirmla was a
student of B.A. PW-1 admitted that prior to
the incident, there was a case registered
against him in respect of assaulting Salwal
and others of which there was a cross case as
well. He stated that on 01.01.2007, the
appellant, Vijay Kumar, Daya Shankar and
Salwal had assaulted PW-1's relative and had
damaged his motorcycle in respect of which a
case was registered against them. Prior to that
incident, on report of Salwal, proceeding
under Section 107 CrPC was instituted
against Shiv Narayan, Jeet Narayan and
others wherein surety bonds were furnished
by them. He, however, admitted that he had
received information about a proceeding
under Section 145 CrPC. With regard to his
presence at the place and time of the incident,
PW-1 was asked as to by which train he
arrived in the village on that day. In response
to that question, PW-1 stated that he does not
remember the name of the train but, probably,
it might be Vaishali. He stated that he boarded
the train at about 5.00 pm and reached
Khalilabad station by quarter to 6 pm and
from there he cycled to his house and reached
his house by 6.30 pm.

In respect of the structure of his
house, PW-1 stated that his house is double
storeyed having one outer door. Both door
and window are towards north. He stated
that except that outer door, which opens
towards north, there is no other entry/exit
point to his house. He stated that the door
on the north is actually located in the
Verandah of his house and is in the form of
two channel shutters facing north, making
the Verandah look like a room. PW-1 stated
that towards north of that door, at a distance
of 8, or may be 5, Kattha he has his
Baithak.

On further examination, PW-1
stated that though the night was dark, about
1 and 1⁄2 hours had passed after sun set, but
there was lantern light in his house.
Though, there was no lantern lit near the
Baithak where he was sitting. PW-1 stated
that in the south-west corner of his house,
about one Bigha away, there is house of
appellant-Ramgati.
PW-1
denied
the
suggestion that at the time of incident he
was sitting at the Baithak with his wifeKishori (PW-10), Babu Lal, Jhinku (PW-3)
and Surendra and drawing heat from Kauda
(fire place). He reiterated that at the time of
the incident, he was alone at the Baithak
whereas, his daughter Pramila (PW-2) was
near the tap/tube-well; his wife Kishori
(PW-10) was inside the house; his elder
daughter Nirmla (the deceased) was in the
room near the Verandah; his elder son Jeet
Narayan had gone to visit a relative; and
his younger son Shiv Narayan had gone to
have dinner on an invite. PW-1 specifically
stated that his wife (PW-10) was in a room
on the ground-floor of the house. He stated
that at 7.15 pm he spotted all the four
accused arriving at the door of his house.
They were spotted in the light of lantern
and torch. The accused had not covered
their faces. The accused were spotted from
a distance of 20-25 paces or may be 20-25
meters. He stated that when he spotted the
accused at the door of his house, he raised
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
897
no alarm. Rather, he hid himself and kept
silent.

PW-1 further stated that Ram
Gati held Katta, whereas, the others were
armed with Lathi/Danda. He stated that in
the room where Nirmla was present, there
was a big door and that room's dimensions
must be 15' x 9'. A lantern was lit in that
room. The room had a wooden cot,
Sandook
(box)
and
Almirah
where
household goods were kept. He stated that
from PW-10's room, the room of Nirmla
was clearly visible through its door. On
further questioning, he reiterated that
accused Ram Gati fired a shot at Nirmla.
He stated that he witnessed the incident
through the window of that room. PW-1
also stated that the other three accused were
trying to break the lock put on the box. He
stated that when the gunshot was fired,
PW-10 and PW-2 entered that room. The
accused abused PW-10 and PW-2 but did
not assault them. PW-1 clarified that
though he saw the incident from the
window but did not enter that room at that
time. He specifically stated that when the
accused left the spot, witnesses Babu Lal,
Jhinku
and
Surendra
arrived.
PW-1
clarified that the accused did not spot him.
He also stated that witnesses arrived at the
spot upon hearing the gunshot and they,
including him, chased the accused for about
4-5 Kattha but did not succeed because the
accused had country made pistol and were
extending threats. PW-1 stated that the
accused also fired a shot in the air to
threaten
them.
However,
no
empty
cartridge could be noticed on the spot. He
stated that after the accused had escaped,
he entered the room and came near the
body of his daughter. The body was lying
on the floor. He stated that the body was
taken to the Baithak to ascertain whether
the deceased was alive and whether she
should be taken to the hospital but, she was
found dead. PW-1 stated that the body was
taken out from the room by him, Bablu Lal,
Surendra, Subhash and Dinesh. He stated
that the gunshot had hit the deceased near
her eye and blood had fallen on the spot.
He stated that his hands and clothes were
also blood-stained.

The
witness
denied
the
suggestion that the police had arrived at the
spot before he could reach the police
station. He stated that despite threat
extended by the accused he had lodged the
report on that very night; that Jhinku and
Babu Lal had accompanied him to the
police station; that he reached the police
station at about 8.30 pm and gave a written
report there, which was registered as FIR.

PW-1 stated that immediately
after registration of the FIR, the police had
arrived at the spot. At the spot, near the
place of occurrence, people had gathered.
When the police inspected the spot and the
body, the place was lit up by torches,
batteries and lanterns and in their light
inquest was conducted. Whereafter, their
statements were recorded. The body was
taken. He had accompanied the body. The
autopsy was conducted on the next day and
thereafter, cremation took place. He stated
that in connection with the investigation,
the I.O. visited his house two or three
times.

In respect of the distance from
where the deceased was shot, PW-1 stated
that at the time when the deceased was
shot, the accused were 2 1⁄2 to 3 ft away
from the deceased. PW-1 again reiterated
that he witnessed the incident through the
window of that room in which the deceased
was, from a distance of 30-35 ft; and that
the accused Ram Gati had fired only one
898 INDIAN LAW REPORTS ALLAHABAD SERIES
shot at the deceased from a distance of 2 to
2 1⁄2 ft upon which the deceased fell on the
spot near the Jangla (window) where she
was standing.

PW-1 denied the suggestion that
he was stating for the first time in court that
he witnessed the incident from the window.
He, however, admitted that this fact was not
disclosed in the written report inasmuch as
at that time he was in a state of shock and
panic. He denied the suggestion that the
deceased was killed by dacoits in a dacoity
committed in his house. He also denied the
suggestion that he had not witnessed the
incident.

12. PW-2 - Pramila. She is the
younger sister of the deceased. She stated
that on 24.01.2007, at about 7.15 pm, while
she was filling water from the tap/tube-well
located just outside her house, her father
was near the Baithak and her mother was in
the adjoining room, while her sister (the
deceased) was in a room next to the
Verandah, Ram Gati (the appellant), Daya
Shankar, Vijay
Krishna
and
Krishna
Chandra came. Ram Gati had country made
pistol in his hand whereas the rest were
having Lathi. They enquired from her about
her father and brothers. Sensing danger, she
did not divulge any information about her
father and brothers because Ram Gati and
others had a land dispute with her father.
She stated that outside in the Sahan there
was a lantern lit and inside the room,
adjoining it, there was another lantern lit.
When she did not give any information to
the accused, they forcibly entered the room.
The deceased Nirmla tried to stop them.
Annoyed by this, Daya Shankar, Krishna
Chandra and Vijay Kumar exhorted by
saying that she (the deceased) is very
talkative, finish her off. On this, Ram Gati
(the appellant) fired a shot from a country
made pistol at Nirmla. She witnessed the
entire incident while standing near the tap
in front of the window. She stated that after
the shot was fired at the deceased, Ram
Gati and others came out from the room.
She stated that the entire incident was
witnessed by her, her father and her mother.
On their alarm, villagers arrived at the spot
with Lathi/Danda, lanterns and torches. The
accused threatened them and escaped.

During cross-examination, the
witness stated that she is un-married and by
mistake instead of Pita (father), it was
mentioned Pati (husband), after her name
and before the name of her father Ram
Shabad. She clarified that Ram Shabad is
her father. She stated that she is a student of
Class-IX and the deceased was student of
B.A. 1st year. She stated that her father
(informant) had arrived from his work
place at about 6.30 pm. At this stage, the
witness stated that she is not aware whether
the night was dark or bright but she denied
that her father was sitting near a fire place
at the time of the incident. She clarified that
the room in which the deceased was killed
had a window facing north, which is 5-6
paces away from the tap. The tap is towards
north of the window. She stated that at the
time of the incident when she was filling
water from the tap, his father must have
been 20-25 paces away, alone at the
Baithak. There was no lantern lit near the
Baithak though lantern was lit near the
channel gate and in the room next to it as
well as in the room where the deceased was
murdered. In all there were three lanterns
lit. She specifically stated that four accused
had arrived and they had not covered their
faces. She disclosed that she divulged no
information to the accused about her father
and brothers because she felt that if she had
disclosed, they would have killed her father
who was at the Baithak. On further
examination, she specifically stated that she
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
899
witnessed the deceased being shot at from
the window of the room wherein the
deceased was present at the time of the
incident. She stated that at the time when
the deceased was shot at, the deceased was
standing near the window of that room. She
denied that the accused had surrounded the
deceased though they were present in that
room. She also stated that the accused had
not broken any article present in the room.
She specifically stated that when the
deceased was shot at, the deceased fell on
the spot near the window of that room and
blood also fell there. She denied that
information was given to the police on
phone; rather, her father had gone to the
police station. She stated that at the time
when her father had gone to the police
station, 2-3 persons had accompanied him
to the police station. She stated that the
police arrived there at about 8.30 pm. and
had carried the body to the Baithak. She did
not witness as to what happened thereafter
because she was crying. She stated that her
mother had not witnessed the incident from
the place from where she witnessed the
incident. She concluded by stating that the
accused had fired a single shot; that when
she witnessed the incident there was no
village person except the accused present;
that the accused did not fire any shot while
effecting their escape; that in the room
where the incident occurred, no empty
cartridge was noticed; that there was no
dacoity in her house; and that her sister was
not killed in a dacoity. She also denied the
suggestion that whatever she is stating has
been tutored to her.

13. PW-3 - Jhinku @ Jhinak. He
stated that the incident occurred on
24.01.2007 at about 7.15 pm. At the time of
the incident, he was sitting in the house of
Babu Lal. When he heard gunshot and
alarms, he and Babu Lal rushed to the
house of Ram Shabad (informant) with
Lathis and torches to notice Ram Gati with
country made pistol and other accused with
Lathis exiting the Verandah of the house of
Ram Shabad and Ram Shabad's wife (PW10) and daughter Pramila (PW-2) shouting.
In that Verandah, a lantern was lit and in
the light of that lantern they could
recognize the accused. He stated that they
made an effort to apprehend the accused
but were threatened by them. He proved the
custody memo of torches, which were
marked as Exb.Ka-2, Ka-3 and Ka-4.

During cross-examination, PW-3
stated that at the time of the incident he was
not sleeping but was near the fire place of
his house. He stated that the distance of his
house from the house of Ram Shabad is
about 2 1⁄2 Kattha; that though the night was
dark but lantern was lit; and that
information to the police was given by Ram
Shabad on telephone. On further crossexamination, he stated that Ram Shabad
had told him that his daughter was killed by
accused Ram Gati, Vijay Kumar, Daya
Shankar and Krishna Chandra. He stated
that he noticed the body of Nirmla in the
room. Later the body was taken out. He
stated that when he arrived at the spot, the
accused were exiting the house of the
deceased. They had not covered their face.
He stated that he witnessed the accused
escaping from a distance of 100 paces. He
stated that when he entered the room i.e.
where murder had taken place, he did not
notice Almirah, boxes etc. open. PW-3
stated that the body was lying in the room
near the window. He denied the suggestion
that he did not notice the accused escaping
from the spot. He also denied the
suggestion that un-known dacoits had
killed the deceased and because of pattidari
and friendship with the informant he is
levelling false allegations.
900 INDIAN LAW REPORTS ALLAHABAD SERIES

14. PW-4 - Kamta. This witness was
examined by the prosecution to prove prior
conspiracy for the murder but since the court
below has acquitted the accused of the
charge of conspiracy, we do not propose to
notice the testimony of PW-4.

15. PW-5 - H.C. Ravikant Mani. He
proved receipt of the written report and
making GD entry in respect thereof, vide
report no.52 at 20.35 hrs, and preparation of
chik FIR. On his statement, the GD entry
was marked Exb.-Ka-6 and the chik FIR
was marked Exb.Ka-5. During crossexamination, he stated that Ram Shabad
(informant) had brought a written report. He
denied the suggestion that the report was
lodged after deliberation while sitting at the
police station.

16. PW-6 - Dr. Pankaj Khare -
Autopsy surgeon. He proved the autopsy
report and the entries therein as already
noticed above. He accepted that death could
have occurred at or about 7.15 pm on
24.01.2007. The autopsy report was marked
Exb.Ka-8 on his statement.

During
cross-examination,
the
witness stated that he cannot say with
certainty whether the gunshot injury was
from a rifle or not, but it was certainly from
a firearm. He stated that the injury was not
caused by two shots but by one shot because
there was one entry wound and the other
was an exit wound. In respect of the
direction of the shot, PW-6 stated that if a
person of the height of quarter to 6 ft fires at
a person of the height of 5 ft, the injury of
the nature found could be caused. He also
stated that the injury caused was from a
close distance, which could be between 1 - 2
ft. He stated that his estimate about death
having occurred a day before may have a
variation of three hours on either side.

17. PW-7 - Chhedi Prasad Yadav.
He proved the initial steps of the
investigation undertaken on 24.01.2007
including preparation of the inquest report
and papers relating to autopsy. He stated
that he visited the spot immediately after
receipt of information and completed the
inquest proceeding by 22.15 hrs. He also
proved lifting of plain/blood stained earth
from the spot. He denied the suggestions
that he did not visit the spot in the night
and that the body was called to the police
station on the next day to complete
formalities of inquest.

18. PW-8 - Vijay Shankar. He is the
I.O. of the case, who stated that the case
was registered on 24.01.2007 while he was
not present at the police station; the
investigation of the case was started by
PW-7 (SSI, Chhedi Prasad Yadav) and, on
25.01.2007, he took over the investigation.
He stated that he prepared the site plan;
recorded the statement of the witnesses of
the incident as also of inquest; copied the
contents of autopsy report in the case diary
on 26.01.2007; recorded the statement of
other witnesses, namely, Shiv Prasad,
Kanta Harijan; arrested the accused Daya
Shankar on 02.02.2007 and, thereafter,
applied for police custody remand of the
remaining accused who had surrendered in
court. He stated that after obtaining police
custody remand, the accused Ram Gati was
taken from jail to his house and from the
house of Ram Gati, at his pointing out, a
country made pistol, one empty cartridge
and one live cartridge was recovered of
which seizure memo (Exb.Ka-16) was
prepared. He stated that he prepared site
plan of the spot from where the country
made pistol was recovered; and that the
recovered country made pistol, etc was
sealed. The same were produced in court as
material Exb.Ka-2, Ka-3 and Ka-4. He
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
901
stated that after conducting investigation,
he filed charge-sheet (Exb.Ka-13). He also
obtained sanction for prosecution of
appellant under Section 25 Arms Act. He
proved the custody memo of lantern and
torches produced by the informant and his
family members, which was marked as
Exb.Ka-26. During cross-examination, PW8 stated that he recorded statement of the
informant who stated that he saw the
accused while they were escaping from the
spot. PW-8 stated that the informant had
not disclosed about the presence of Daya
Shankar at the spot though had stated about
his involvement in conspiracy. PW-8
stated that at the time of inspection, he
noted in the site plan that the window of
the room was near the tap/tube-well and it
opened towards north. Except that window
there was no other window in that room.
Though there was a sky light towards west
and a door towards east. He stated that
blood had fallen on the floor in the
northern portion of that room just below
the window. Blood was also noticed in
between the wooden cot and box kept in
that room. He stated that he has taken
instructions from informant's wife and
daughter Pramila while preparing the site
plan. He stated that no cartridge, either
empty or live, was found at the spot. He
stated that though he prepared the custody
memo of torches, lantern etc. but these
torches and lantern are not currently
present before him in the court. The
witness was also cross-examined in
respect of recovery of country made pistol
but since the appellant has been acquitted
of that charge, we do not propose to notice
his statement in that regard.

19 . PW-9 - Constable 52 Onkar
Yadav. This witness is in respect of recovery
of country made pistol. But since the
accused-appellant has been acquitted of that
charge, we do not propose to notice his
testimony in detail.

20. PW-10 - Smt. Kishori. She is the
mother of the deceased. She stated that the
incident is of about 7.30 pm. At that time she
was in the verandah of the house. There was
a lantern lit there. A lantern was lit outside
and another lantern was lit in the room where
the deceased was present. In her house in all
there are four rooms. At that time, she was
alone inside the house. Her younger daughter
Pramila (PW-2) was outside, six paces away,
near the tap/tube-well, filling water; whereas,
her elder daughter Nirmla (deceased) was
inside the room. Her husband Ram Shabad
(informant) was outside at the Baithak. Her
elder son was away on a visit to a relative
whereas her younger son had gone to attend a
dinner at some Pandit's place. The accused,
namely, Ram Gati, his brother Vijay Kumar
and his two brother-in-laws, namely, Krishna
Chandra and Daya Shankar, arrived at the
door of her house. Ram Gati was having a
country made pistol whereas rest were having
Lathi/Danda. All of them enquired from
Pramila (PW-2) as to where her father and
brothers were. When Pramila did not divulge
any information to them, all four entered the
house and, passing through verandah, entered
the room of the deceased. When her elder
daughter Nirmla (deceased) scolded them and
warned them not to enter her room, Daya
Shankar, Krishna Chandra and Vijay Kumar
exhorted Ram Gati. On this, Ram Gati fired a
shot at the deceased by a country made pistol.
The deceased got injured, fell on the spot and
died instantaneously.

Several questions were put to her
to ascertain whether she had witnessed the
incident or not. She answered all the
questions accurately and stated specifically
that only one gunshot was fired. She also
specifically stated that when the gunshot
902 INDIAN LAW REPORTS ALLAHABAD SERIES
was fired the deceased was standing near
the window of the room. In fact, PW-10
gave a graphic description of that incident.
When questioned as to whether her
husband also witnessed the incident from
the same spot from where she witnessed the
incident, PW-10 stated that she was alone
at that spot whereas her husband, probably,
was at the Baithak but she was not certain
about that. Later, however, she was told by
her husband that he had also witnessed the
incident. PW-10 clarified that the accused
were looking for her husband and sons. She
stated that only Ram Gati had fired the shot
at the deceased whereas the rest were only
standing by his side. She stated that the
accused had not opened the box or the
almirah though they had hit the box and the
almirah with their Danda. She stated that
she did not run away. Rather, she remained
standing there as she was completely
shocked. She stated that the accused must
have remained in the room for five
minutes. In response to a question as to
whether she went near the body of her
daughter, she said no. She clarified that
when others arrived at the spot, her
husband also arrived. The police, however,
arrived much later. When she was asked
whether she had touched the body of her
daughter, she stated that she touched her
body when the body was taken outside the
room. She stated that blood had spilled on
the floor near the window of that room
where the deceased was shot. She denied
the suggestions that she did not witness the
incident; and that she is giving false
statement on account of past enmity.

21. PW-11 - Subhash. As the
statement of this witness has been recorded
in respect of recovery of the country made
pistol, we do not propose to notice his
testimony in detail as the appellant has
already been acquitted of the charge under
Section 25/27 Arms Act.

STATEMENT OF THE APPELLANT
U/S 313 CrPC

22. After recording the prosecution
evidence, the incriminating circumstances
appearing in the prosecution evidence were
put to the accused-appellant. The accusedappellant
denied
the
incriminating
circumstances and claimed that he has been
falsely implicated on account of past
enmity arising out of land dispute.

DEFENCE EVIDENCE

23. The accused-appellant examined
three defence witnesses. The testimony of
all the three defence witnesses is being
noticed, in brief, here-in-below :

24. DW-1 - Ram Gati - the accusedappellant. The accused-appellant examined
himself as a defence witness. He stated that
the alleged recovery of country made pistol
from him is absolutely false. In his crossexamination, DW-1 admitted that for the
last 20 years, since prior to the incident,
there had been animosity between him and
the informant and that 2-4 months before
the incident he was released on bail. He
also admitted that 3-4 days before the
incident he was released on bail in another
case. He denied killing Nirmla. He denied
that other accused were conspirators with
him. He denied giving any disclosure
statement in connection with the recovery
of country made pistol.

25. DW-2 - Ratnesh Kumar
Srivastava. He gave his testimony to
discredit recovery of country made pistol
from accused Ram Gati. Since Ram Gati
8 All. Ram Gati @ Prem Chandra Vs. State of U.P.
903
has already been acquitted of the charge of
offence punishable under Section 25/27
Arms Act, we do not propose to notice his
testimony in detail.

26. DW-3 - CP Vijay Pratap Singh.
This witness had produced the original GD
entry of police station Kotwali Khalilabad,
district Sant Kabir Nagar of 24.01.2007 and
25.01.2007. He stated that on 24.01.2007,
vide report no.52, at 20.35 hrs, Case Crime
No.178 of 2007 was registered of which
special report was sent vide report no.2
dated 25.01.2007 at 0.10 hrs. He stated that
after 7.15 hrs on 24.01.2007, except the
present case, no other case or NCR was
recorded at the concerned police station.
During cross-examination, he stated that
Special report is not kept for a period
exceeding one year as the same is
destroyed.

TRIAL COURT FINDING

27. After evaluating the entire
evidence led by the prosecution and
considering the defence evidence, the trial
court found that on the date of the incident
the accused were on the lookout for the
informant and his sons. Gunshot injury to
the deceased was ascribed to the present
appellant whereas the other accused caused
no injury to any one and that the allegation
of conspiracy was not proved therefore, the
other accused were entitled to the benefit of
doubt. Similarly, by expressing doubt in
respect of recovery of country made pistol,
the court extended the benefit of doubt to
the appellant in respect of the charge
relating
to offence
punishable under
Section 25 Arms Act. However, the trial
court found that the prosecution was
successful in proving beyond doubt that the
appellant entered the house of the deceased
with country made pistol and with an
intention to kill the deceased fired a shot at
the deceased from a close range, resulting
in her instantaneous death. Accordingly, the
trial court convicted and sentenced the
appellant under Section 452 and 302 I.P.C.

28. We have heard Sri V.K. Shahu for
the appellant; Sri J.K. Upadhyaya, learned
AGA, for the State; Sri Tripathi B.G. Bhai
for the informant; and have perused the
record.

SUBMISSIONS ON BEHALF OF THE
APPELLANT

29.