# Ram Narayan (In Jail Since 31.05.2011) v. State of U.P

- **Citation:** (2019) 1 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-narayan-in-jail-since-31-05-2011-v-state-of-u-p-44486
- **Pages:** 26

## Headnote

Section
302/149
IPC-
Appellantaccused
Rameshwar,
Jagmohan
and
Sukhpal were arrested by the Police and
434 INDIAN LAW REPORTS ALLAHABAD SERIES
firearm was also recovered from them.
No other evidence. Cannot be sufficient
to convict them.

In the absence of any other evidence,
aforesaid three accused-appellants cannot be
said to be involved in the case in hand and, in
our view, they have been convicted without
any evidence against them. Trial Court has
committed error in not looking into this aspect
of the matter particularly when on this aspect
no explanation has come forward on the part
of prosecution, either before Court below or
even before this Court.(Para64)

B. Expert evidence and ocular evidence.
As to other accussed-appellant - Ballistic
reports do not corroborate that the
weapons
recovered
from
accusedappellants were used in the crime in
question.
Credible
ocular
evidence
available.
Non-availability
of
such
ballistic report by itself will not help. It is
well settled legal position that it is
quality
and
not
the
quantity
of
witnesses, which is important. Time
honoured principle is that the evidence
has to be weighed and not to be
counted. The test is whether evidence
has a ring of truth, cogent, credible and
trustworthy or otherwise. (Para63)

Hence,
conviction
and
sentence
of
accused-appellants
namely
Rameshwar,
Sukhpal, Dalpat Kewat, Ram Sewak, Badri
Vishal Pal and Ram Narayan under Section 25
of Act, 1959 warrants no interference and
deserves to be sustained. Similarly, conviction
and sentence of appellant Munna @ Surendra
Pal under Section 30 of Act, 1959 also
deserves to be sustained.(Para65)

Appeal partly allowed.

CHRONOLOGICAL
LIST
OF
CASES
CITED:-

(2007) 14 SCC 150, Namdev Vs. State of
Maharashtra (E-2)

## Text

_Characters 0–39,897 of 85,816. This is a partial read: ask again with offset=39897 for what follows._

1 All. Ram Narayan Vs. State of U.P.
433
Therefore, this is a major inconsistency
between POCSO and IPC. As provided
in Section 42A, in case of such an
inconsistency,
POCSO
will
prevail.
Moreover, POCSO is a special Act,
dealing with the children whereas IPC is
the general criminal law. Therefore,
POCSO will prevail over IPC and
Exception 2 in so far as it relates to
children, is inconsistent with POCSO."

54. In view of the provision contained in
Section 42 of POCSO Act, Trial Judge
ought to have punished appellant only in
Section 376 (2) (f) (i) I.P.C., not in
Section 4 of POCSO Act, 2012. In
addition to it, he ought not to have
punished appellant both in Sections 376
(2) I.P.C. and in Section 3 /4 of POCSO
Act, 2012.

55. In the light of above discussion,
judgment and order dated 16.9.2016; passed
by Additional Session Judge / Fast Track
Court No. 2 Special Act (POCSO), Fatehpur
in S.T. No. 6 of 2016 (State vs. Gyanendra
Singh @ Raja Singh) so far as it relates to
conviction of appellant is maintained and
affirmed but the sentenced is modified. His
conviction and sentence under section 376
(2) (f) (i) I.P.C. is maintained. He has to
undergo for life imprisonment for remaining
natural life as provided in this Section and to
pay fine of Rs. 25,000/-. No separate
sentence is required for the offence under
Section 3/ 4 of POCSO Act, 2012.

56. In the light of above discussion,
the appeal is partly allowed to that
extent, as said above.

57. Sri Sameer Jain, learned Amicus
Curiae has assisted the Court very
diligently. We provide that he shall be
paid counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment of
aforesaid fee through Additional Legal
Remembrancer posted in the office of
Advocate General at Allahabad, to Sri
Sameer Jain, Amicus Curiae, without any
delay and, in any case, within 15 days from
the date of receipt of a copy of this judgment.

58. Let a copy of this judgment
along with lower court record be sent to
the concerned Trial Court, Fatehpur for
necessary information and compliance.

59. A compliance report be sent to
this Court within two months. Copy of his
judgment be also supplied to the accused
through Superintendent of Jail, concerned.
-------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

CRIMINAL APPEAL No. 5708 OF 2017
With
CASES CRIMINAL APPEAL No. 5947 OF 2017, 5752
OF 2017, 5950 OF 2017, 5986 OF 2017, 6068 OF
2017, 6116 OF 2017 AND 7192 OF 2017

Ram Narayan... Appellant (In Jail Since
31.05.2011)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Kameshwar Singh, Sri Phool Singh
Yadav, Sri V.P. Srivastava.

Counsel for the Opposite Party:
A.G.A., Sri Sudhir Bharti.

A.
Section
302/149
IPC-
Appellantaccused
Rameshwar,
Jagmohan
and
Sukhpal were arrested by the Police and
434 INDIAN LAW REPORTS ALLAHABAD SERIES
firearm was also recovered from them.
No other evidence. Cannot be sufficient
to convict them.

In the absence of any other evidence,
aforesaid three accused-appellants cannot be
said to be involved in the case in hand and, in
our view, they have been convicted without
any evidence against them. Trial Court has
committed error in not looking into this aspect
of the matter particularly when on this aspect
no explanation has come forward on the part
of prosecution, either before Court below or
even before this Court.(Para64)

B. Expert evidence and ocular evidence.
As to other accussed-appellant - Ballistic
reports do not corroborate that the
weapons
recovered
from
accusedappellants were used in the crime in
question.
Credible
ocular
evidence
available.
Non-availability
of
such
ballistic report by itself will not help. It is
well settled legal position that it is
quality
and
not
the
quantity
of
witnesses, which is important. Time
honoured principle is that the evidence
has to be weighed and not to be
counted. The test is whether evidence
has a ring of truth, cogent, credible and
trustworthy or otherwise. (Para63)

Hence,
conviction
and
sentence
of
accused-appellants
namely
Rameshwar,
Sukhpal, Dalpat Kewat, Ram Sewak, Badri
Vishal Pal and Ram Narayan under Section 25
of Act, 1959 warrants no interference and
deserves to be sustained. Similarly, conviction
and sentence of appellant Munna @ Surendra
Pal under Section 30 of Act, 1959 also
deserves to be sustained.(Para65)

Appeal partly allowed.

CHRONOLOGICAL
LIST
OF
CASES
CITED:-

(2007) 14 SCC 150, Namdev Vs. State of
Maharashtra (E-2)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. All these eight criminal appeals have
been preferred against a common judgment
dated 29.8.2017 and order dated 5.9.2017
passed by Richa Joshi, Additional Sessions
Judge, F.T.C., (Court no. 2), Fatehpur. By
the impugned judgment and order, accused
appellants Ram Narayan @ Lala (Crl.
Appeal No. 5708 of 2017), Dalpat (Crl.
Appeal no. 5752 of 2017), Ashish and
Ramsewak (Crl. Appeal No. 5950 of 2017),
Jagmohan @ Munna and Sukhpal (Crl.
Appeal No. 5986 of 2017), Rameshwar
Kewat (Crl. Appeal No. 6068 of 2017),
Badri Vishal Pal (Crl. Appeal No. 6116 of
2017) and Munna @ Surendra Pal (Crl.
Appeal No. 7192 of 2017) have been
convicted under Section 302/149 IPC and
sentenced
to
undergo
Rigorous
Imprisonment (hereinafter referred to as
'R.I.') for life along with fine of Rs. 20,000/-
each. It is also provided that in case of
default in payment of fine, each of the
accused appellants shall further undergo 6
months additional simple imprisonment. All
the aforesaid accused appellants have also
been convicted and sentenced under Section
147 IPC to undergo 2 years R.I. and a fine of
Rs. 5000/- each. In the event of default in
payment of fine they have to suffer 3 months
additional simple imprisonment. All the
accused appellants have further been
convicted and sentenced under Section 148
IPC to serve out 3 years R.I. and a fine of Rs.
5000/- each. In case of default in payment of
fine, provision of 3 months additional simple
imprisonment was made. Accused appellant
Munna @ Surendra Pal has further been
convicted and sentenced under Section 30
Arms Act 1959 (hereinafter referred to as
"Act,
1959")
to
undergo
6
months
imprisonment with a fine of Rs. 1000/-. In
case of default in payment of fine, he is
required to undergo one month additional
simple imprisonment. Accused appellants
Rameshwar, Sukhpal Kewat, Dalpat Kewat,
1 All. Ram Narayan Vs. State of U.P.
435
Ram Sewak, Badri Vishal Pal and Ram
Narayan have been convicted and sentenced
under Section 25 of Act, 1959 to undergo
one year Simple Imprisonment and fine of
Rs. 1000/- each. In the event of default in
payment of fine, each has to undergo
additional Simple Imprisonment for one
month. All the sentences imposed on
appellants are directed to run concurrently.

2. Crl. Appeal No. 5947 of 2017 has
been filed separately by Ram Sewak
against the conviction and sentence u/s 25
of Act, 1959.

3. Factual matrix of the case,
surfacing from the First Information
Report (hereinafter referred to as 'F.I.R.'),
as also the evidence available on record,
may be stated as under.

4. A written report, Ex.Ka-1 was
presented by PW-1 Rajesh Kumar at P.S.
Gazipur, District Fatehpur, on 21.5.2011
at 6:30 a.m. stating that he is the son of
deceased Jagannath Nishad, resident of
Village Nidhwapur Majre Parsetha, P.S.
Gazipur,
District
Fatehpur.
In
the
preceding night of 20.5.2011, Informant,
PW-1, along with his father, deceased
Jagannath, aged about 50 years, and
Babu, aged about 40 years, after taking
meals, had gone to field, situated near
Government Tubewell, in order to look
after and protect the crops of moong and
ladyfinger. Informant was sleeping on the
roof of Tubewell whereas his father and
Babu were sleeping on the ground over a
katheri
(cushion
made
of
old
sarees/dhoti). In the night, at about 11
p.m., accused appellants Jagmohan @
Munna s/o Shiv Balak, Munna s/o Seeta
Ram, both armed with their licensed
DBBL gun, Rameshwar s/o Shiv Balak,
Sukhpal s/o Ram Kripal, Ashish s/o Ram
Sewak, Dalpat s/o Ram Ratan, Ram
Narayan @ Lala s/o Ram Pal and Ram
Sewak s/o Shri Pal armed with illegal
weapons, all residents of village of
Informant, and Badri Vishal Pal s/o
Hardayal
Pal,
resident
of
Village
Parsetha, armed with illegal weapon came
over there and tried to awake father of
Informant as well as Babu, sleeping by his
side, on account of election enmity and
scuffle taken place at the time of Holi.
Seeing accused appellants, aforesaid two
persons being scared, tried to flee away
but accused appellants caught hold both
of them and felled them down. They
resorted to indiscriminate firing by their
respective weapons and murdered both of
them. Informant on account of fear
remained lying silently on the roof of
Tubewell and witnessed entire incident in
the moon light. In the meantime, from the
side of village, Ram Bihari s/o Kedar
Nath, Jai Karan s/o Ram Swaroop, Lal ji
s/o Sandala, Ram Sajivan s/o Ram
Khelawan and several others, armed with
lathis, holding torches reached the road
passing near Tubewell and therefrom they
witnessed
the
incident.
When
they
exhorted accused appellants, they were
threatened by accused who shouted and
warned villagers to go back otherwise
they would also meet the same treatment.
Accused appellants also opened several
fires in air towards left side of the road as
a result whereof villagers on the road,
being frightened, went back to village and
concealed themselves in their houses after
closing doOrs. Accused appellants had
surrounded the village throughout night
and at about 4:00 a.m. in the morning,
went towards jungle, hurling threats that
whosoever would inform police, of the
incident or appear as witness, he too
would be met with similar consequence.
All accused appellants, F.I.R. states, have
436 INDIAN LAW REPORTS ALLAHABAD SERIES
formed an organized gang for their own
benefit,
committing
offences
and
incidents. Prior to this incident they have
also
murdered
one
Shamsher
s/o
Chandrapal Nishad and in that case,
sentence of life imprisonment has been
inflicted. These accused have created an
atmosphere of terror and for that reason,
nobody dares to make complaint or lodge
a case or appear as witness against them.
After accused appellants had gone away,
Informant, PW-1, came down from the
roof. In the meantime, family members
and several villagers had also reached the
place of occurrence. It is stated in F.I.R.
that
Informant
had
gone
secretly,
concealing him, to the Police Station for
lodging report.

5. On the basis of written report,
Ex.Ka-1, PW- 5 Abdul Aziz, the then
Head Moharrir at Police Station registered
a case under Section 147, 148, 149, 302
IPC at Case Crime No. 92 of 2011. He
also prepared a Chik report, Ex.Ka-23.
Simultaneously, he made an entry of the
incident in general diary at Report No. 12,
a copy of which has been filed in court as
Ex.24. He also registered a case under
Section 30 of Act, 1959 against accused
appellant Munna @ Surendra Pal Kewat
and under Section 25 of Act, 1959 against
accused appellants Rameshwar, Dalpat,
Ram Narayan, Sukhpal at Case Crime No.
98 of 2011, 99 of 2011, 100 of 2011, 101
of 2011 and 102 of 2011 and also
prepared
Chik
F.I.R.,
Ex.Ka-25.
Corresponding entries were made by him
at Report no. 2 at 1:45 p.m. in General
Diary on 31.5.2011. A copy of general
diary, Ex.Ka-26 is on record.

6. Immediately after registration of
F.I.R., investigation was undertaken by
PW-4, S.I. Rakesh Kumar Saroj, who
rushed to the place of occurrence and took
in possession three empty cartridges, one
bullet of 315 bore and prepared recovery
memo in respect thereof. He also took
sample of simple and blood stained soil
from near the dead bodies of Babu and
Jagannath, sealed them in separate phials
and prepared recovery memos, Ex.Ka-5
and Ex.Ka-6, respectively. Investigating
Officer (hereinafter referred to as 'I.O.')
PW-4, Rakesh Kumar Saroj got prepared
inquest report, Ex.Ka-7, in respect of
deceased Babu and Ex.Ka-12, in respect
of deceased Jagannath by S.I. R.C.
Yadav. S.I. R.C. Yadav, also prepared
necessary documents, Ex.Ka-8 to Ka-11
i.e. letter to C.M.O., specimen seal,
Challan Nash, Photo Nash in respect of
deceased Babu and Ex.Ka-13 to Ka-16 in
respect of deceased Jagannath. Thereafter,
he
sent
both
dead
bodies
to
DistrictHospital for post mortem. On
pointing of the Informant, PW-1, he had
prepared site plan, Ex.Ka-17.

7. On 21.5.2011 PW-3, Dr. K.V.
Chaudhary of DistrictWomenHospital,
Fatehpur conducted post mortem over
dead body of Babu at 5:40 p.m.
According to him, about half day had
passed since his death. The deceased was
of average body built, his eyes and mouth
were
partially
open.
PW-3
found
following ante mortem injuries on the
person of deceased:-

1. firearm entry wound on left
side face temporal region skull size (2 cm
x 2 cm) 4 cm anterior to left ear;
blackening and tattooing present around
the wound.

2. firearm entry wound on left
side face one cm. lateral to left angle of
mouth, size (1cm x 1cm); blackening and
1 All. Ram Narayan Vs. State of U.P.
437
tattooing present around the wound; size
(7 cm x 6 cm) on left side of face.

3. firearm entry wound on right
side of chest 3 cm above right nipple, X
cavity deep; blackening and tattooing
present; size of wound (2 cm x 1cm).

4. firearm entry wound on left
side below mid clavicle; size (2 cm x 2
cm); blackening and tattooing present
around wound.

5. firearm exit wound on back
side left posterior part of axilla size (1cm
x 1cm).

6. firearm entry wound on left
side abdomen size (2 cm x 2 cm); cavity
deep, 15 cm below the left nipple;
blackening and tattooing present around
the wound; size (4 cm x 4 cm).

7. firearm exit wound on right
side back of thoracic region 3 cm lateral
on 12 (thoracic vertebrae) region.
 (emphasis added)

8. On internal examination fracture of
III rib left side was found; pleura left
lacerated; left lung pale; right lung lacerated;
heart was empty; about one and half litre
blood clot present in thoracic cavity;
peritoneum lacerated; one litre blood clot
present in cavity; teeth 16/16, stomach
contained about 300 ml pasty like food
material; small intestine half filled with gases;
large intestine half filled with faecal matter;
liver- pale; gallbladder half filled; spleen-
pale; both kidneys were pale and urinary
bladder half filled. In the opinion of Doctor
death had occurred due to shock and
haemorrhage, as a result of ante mortem
firearm injuries. Three metallic cylindrical
type bullets recovered from body. The doctor
prepared post mortem report, Ex.Ka-3.

9. On the same day at 4:40 p.m. the
same Doctor i.e. PW-3 conducted autopsy
on the dead body of Jagannath. He was 50
years old and of average body built. Rigor
mortis present in upper and lower
extremities. Eyes and mouth were closed.
Following ante mortem injuries on the
person of the deceased were found:-

1. firearm entry wound on left
side tempo parietal region of scull; size
(2 cm x 2 cm); 5 cm above left area; brain
deep
underlying
bone
fractured,
blackening and tattooing present around
the wound (4 cm x 4 cm).

2. firearm wound on left
eyebrow, size (2 cm x 2 cm), muscle deep;
blackening and tattooing present size (10
cm x 9 cm) on the face left side.

3. firearm wound on the
abdomen wound of entry present size
(1cm x 1cm), blackening and tattooing
present around the wound, size (15 cm x
3 cm) just above the umbilicus, wound of
entry 3 cm above the umbilicus .

4. firearm wound on abdomen
right side above iliac crest area, 12 cm
lateral to umbilicus; blackening and
tattooing present around the wound; size
(20 cm x 12 cm).

5. firearm entry wound on the
back side of right shoulder above right
scapula; blackening and tattooing present
around the wound; size (4 cmx4 cm)
underlying bone fracture.

10. The Doctor, PW-3 found three
metallic cylindrical type of bullets from body
and sent the same to S.P., Fatehpur. On
internal examination the membrane of head
and neck was found lacerated. Brain was
lacerated and about 200 ml blood and clot
present. Pleura- pale; right and left lungs-
pale; heart was empty; wall of abdomenlacerated; peritoneum- lacerated; abdominal
cavity contained about 2 litre blood and clot;
teeth 16/15; stomach contained about 200 ml
pasty like food material; small intestine half
438 INDIAN LAW REPORTS ALLAHABAD SERIES
filled with gases; large intestine half filled
with
faecal
matter;
liver
lacerated;
gallbladder half filled; both kidneys half pale
and urinary bladder half filled. According to
doctor cause of death was shock and
haemorrhage as a result of ante mortem
injuries. The doctor has prepared post
mortem report, Ex.Ka-2.

11. On 24.5.2011 I.O., PW-4, after
receiving information from an Informer,
arrested accused appellant Badri Vishal
Pal of village Parsetha and accused
appellant Ram Sewak of village Parsetha.
On search, one country made pistol of 315
bore in working condition was recovered
from the right phent of Badri Vishal Pal.
A live cartridge of 315 bore was loaded
into barrel of pistol. On search of the
accused Ram Sewak, one country made
pistol of 315 bore in working condition
was recovered from his right phent with a
live cartridge of 315 bore loaded inside.
On query, both the aforesaid accused
admitted their involvement in the crime of
committing
murder
of
Babu
and
Jagannath using aforesaid weapons. I.O.
sealed country made pistols and cartridges
in separate packets and got prepared
recovery memo Ex.Ka-18 by S.I. Daya
Shanker Tiwari. Thereafter, on 25.5.2011
a case under Section 25 of Act, 1959 was
registered. On 30.5.2011, PW-4 arrested
five accused appellants namely Munna @
Surendra Pal Kewat, Rameshwar Kewat,
Dalapat, Ram Narayan and Sukhpal.

12. One DBBL gun, two live
cartridges and one licence No. 888 issued
by District Magistrate, Fatehpur had been
recovered from the possession of Munna
@ Surendra. One country made SBBL
gun of 12 bore with 4 live cartridges of 12
bore kept in the cartridge belt had been
recovered from the person of Rameshwar
Kewat. One country made pistol of 315
bore, one live cartridge and one empty
cartridge
were
recovered
from
the
possession of Dalpat. One country made
pistol of 315 bore and one live cartridge
of 315 bore had been recovered from the
possession of Ram Narayan @ Lala. One
country made pistol of 315 bore, one live
cartridge and one empty cartridge were
recovered from the possession of accused
appellant Sukhpal Kewat. All the five
accused
appellants
admitted
their
involvement
and
use
of
respective
weapons in the murder of Babu and
Jagannath. He got prepared recovery
memos Paper Nos. 3A/5 to 3A/7 through
S.I. Ramesh Chandra. Later, accused
appellant Ashish was arrested and in
respect of accused Jagmohan @ Munna
non-bailable warrant and orders for
proceeding under Section 82, 83 Cr.P.C.
were obtained from the Court on
25.7.2011.

13. After collecting evidence and
concluding
investigation,
PW-
4
submitted charge sheet, Ex.Ka-19 against
accused appellants Munna, Rameshwar
Kewat, Sukhpal (wrongly mentioned as
Shiv Pal in the statement of PW-3),
Ashish, Dalpat, Ram Narayan @ Lala,
Ram Sewak and Badri Vishal Pal under
Section 147, 148, 149, 302 IPC.

14. Consequent upon Court's order
dated 25.7.2011 directing for proceeding
under Section 82 and 83 Cr.P.C. accused
appellant Jagmohan surrendered in the
Court on 2.8.2011. On investigation, he
told that his licensed gun was in the shop
of Ajay Arms Store, Fatehpur. After
obtaining
permission
from
District
Magistrate, I.O. took in possession DBBL
gun no. 6555 as per Rules and prepared
recovery memo, Ex.Ka-20 in respect
1 All. Ram Narayan Vs. State of U.P.
439
thereof. A separate charge sheet, Ex.Ka22 was submitted before the Court by the
investigating officer on 17.8.2011.

15. PW-8, S.I. Dayashankar Tiwari
had conducted investigation with regard
to offences under Sections 25 and 30 of
Act, 1959 against the accused appellants.
He prepared site plan, Ex.Ka-34 in respect
of place wherefrom five accused namely
Munna,
Rameshwar
Kewat,
Dalpat
Kewat, Ram Narayan and Sukhpal were
arrested by police. Charge sheets Ex.Ka35 and Ex.Ka-36 were filed against
accused appellants Munna @ Surendra
Pal under Section 30 of Act, 1959 and
against Rameshwar Kewat under under
Section 25 of Act, 1959, respectively.
Requisite sanction for prosecution against
accused appellant Rameshwar Kewat as
Ex.Ka-37 is on record. Ex.Ka-38 is
charge sheet and Ex.Ka-39 is sanction
against Dalpat. Ex.Ka-40 is charge sheet
under Section 25 of Act, 1959 and Ex.Ka41 is sanction for prosecution against
Ram Narayan. Similarly, Ex.Ka-42 and
Ex.Ka-43 are charge sheet and sanction in
respect of accused Sukhpal Kewat.

16. After filing charge sheet, Ex.Ka19 under Section 147, 148, 149, 302 IPC
by the police, C.J.M. Fatehpur took
cognizance of the offence on 8.8.2011
against
accused
appellants
Munna,
Rameshwar, Sukhpal, Ashish, Dalpat,
Ram Sewak, Ram Narayan and Badri
Vishal Pal. Cognizance of the offence
against accused appellant Jagmohan on
the charge sheet, Ex.Ka-22 was also taken
by C.J.M., Fatehpur on 1.10.2011. On
charge sheets Ex.Ka-28, Ka-30, Ka-36,
Ka-38, Ka-40 and Ka-42 cognizance of
the offence under Section 25 of Act, 1959
was taken by C.J.M. on 8.7.2011,
25.7.2011,
23.8.2011,
23.8.2011,
23.8.2011 and 23.8.2011, against accused
appellants Badri Vishal Pal, Ram Sewak,
Rameshwar Kewat, Dalpat, Ram Narayan
and Sukhpal Kewat, respectively. Against
accused appellant Munna @ Surendra Pal
cognizance of the offence under Section
30 of Act, 1959 was taken by C.J.M.
Fatehpur on 14.7.2011 on charge sheet
Ex.Ka-35. All the charge sheets under
Section 25 of Act, 1959 were filed after
obtaining requisite sanction from District
Magistrate.

17. Offences under Section 147,
148, 149, 302/34 IPC (Crime No. 92/11)
being exclusively triable by Court of
Sessions Judge, cases were committed to
the Court of Sessions Judge by C.J.M.
Fatehpur on 15.10.2011 which was
registered as Session Trial No. 440 of
2011. Likewise cases under Section 25
and 30 of Act, 1959 against accused
appellants were also sent to Sessions
Court which were registered as S.T. No.
447 of 2011 against Badri Vishal Pal
under Section 25 of Act, 1959; S.T. No.
448 of 2011 against Ram Sewak under
Section 25 of Act, 1959; S.T. No. 449 of
2011 against Munna @ Surendra under
Section 30 of Act, 1959; S.T. No. 451 of
2011 against Dalpat; S.T. No. 452 of 2011
against Ram Narayan under Section 25 of
Act, 1959 and S.T. No. 453 of 2011
against Sukhpal under Section 25 of Act,
1959. Session Trial was ultimately
transferred to Ist Addl. District and
Sessions judge (Ex Cadre -I, Fatehpur)
who framed charges against accused
appellants on 13.7.2012 under Section
302 read with 149, 147, 148 IPC the
charge reads as under:-

"eS jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki
vfHk;qDrx.k
440 INDIAN LAW REPORTS ALLAHABAD SERIES

1& eqUuk iq= lhrkjke dsoV

2& jkes'oj iq= f'kockyd dsoV

3& lq[kiky iq= jked`iky dsoV

4& vk'kh"k iq= jke lsod

5& nyir iq= jkejru

6& jkeujk;u mQZ yky iq= jkeiky

7& jkelsod iq= Jhiky

8& cnzh fo'kky iq= gjn;ky iky

9& txeksgu mQZ eqUuk fu"kkn] dks fuEu
vkjksi ls vkjksfir djrk gwW %&

1& ;g fd fnuakd 20-05-2011 dks djhc
11%00 cts jkf= LFkku ljdkjh V;wcosy ikl fLFkr
xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin
Qrsgiqj esa vki yksxksa us ,d jk; gksdj lkekU;
mn~ns'; dh iwfrZ esa eqdnek oknh jkts'k dqekj ds
firk txUukFk ,oa ckcw dh rkcM+rksM+ Qk;fjax dj
gR;k dj nhA bl izdkj vki yksxks us
/kkjk&302@149 Hkk0na0la0 ds v/khu n.Muh; vijk/k
dkfjr fd;k tks bl U;k;k;y ds izlaKku esa gSA

2& ;gfd mijksDr fnukad] le; o
LFkku ij vki vfHk;qDrx.k us ,d uktk;t etek
dk;e dj cyok fd;kA bl izdkj vki yksxks us
,slk d`R; fd;k tks /kkjk&147 Hkk0na0la0 ds v/khu
n.Muh; vijk/k gS tks bl U;k;ky; ds izlaKku esa
gSA

3& ;gfd mijksDr fnuakd] le; o
LFkku ij vki vfHk;qDrx.k us ,d uktk;t etek
dk;e dj ?kkrd vk;q/kksa ls lfTtr gksdj cyok
fd;kA bl izdkj vki yksxks us ,slk d`R; fd;k tks
/kkjk&148 Hkk0na0la0 ds v/khu n.Muh; vijk/k gS]
tks bl U;k;ky; ds izlaKku esa gSA

eS ,rn~}kjk funsZf'kr djrk gwa fd mDr
vkjksi ds fy, vki yksxks dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA "

(i) that on 20.5.2011 at about
11:00 pm in village- Nidhwapur Majre
Parsetha, near Government Tubewell
under police circle Gazipur District
Fatehpur, in furtherance of your common
intention you killed informant's father
Jagannath by resorting to indiscriminate
firing. Thus you have committed an
offence punishable under Section 302/149
IPC which is within cognizance of this
Court.

(ii) that on aforesaid date, time
and place you accused formed an
unlawful assembly and committed rioting.
Thus you have committed such an act
which is punishable under Section 147
IPC and is within the cognizance of this
Court.

(iii) That on the aforesaid date,
time and place you all the accused
forming an unlawful assembly committed
rioting armed with deadly weapons. Thus
you have committed such an act which is
punishable under Section 148 IPC and
within the cognizance of this Court.

18. Likewise charges under Section 25
of Act, 1959 were framed by learned
Additional Sessions Judge-I Fatehpur, on
13.7.2012 against accused appellants Badri
Vishal Pal, Ram Sewak, Rameshwar, Dalpat,
Ram Narayan, Sukhpal, which reads as under:

Charge against Badri Vishal
Pal:

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
cnzhfo'kky iky] dks fuEu vkjksi ls vkjksfir djrk
gwaA

;g fd fnukad 24-5-2011 le; 11%30
ih0,e0 LFkku ijlsBk jksM ij cuh iqfy;k ogn xzke
ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts
ls ,d vnn reapk nslh 315 cksj o ,d ftank
dkjrwl Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl
dfEkZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl
dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25
vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr
fd;k tks bl U;k;ky; ds izlaKku esa gSA

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA^^

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First, Fatehpur, charge you accused,
Badri Vishal Pal, as under with the
following charge:

That on 24.5.2011 at 11:30
p.m., Rakesh Kumar Saroj, Station House
Officer
&
other
police
personnel
recovered one country made pistol 315
1 All. Ram Narayan Vs. State of U.P.
441
bore & one live cartridge from your
possession at the culvert on Parsetha
Road
within
Village-Parsetha,
P.S.-
Ghazipur,
District-
Fateh
MoongmoongMoongmoong
pur,
regarding possession of which you had no
licence. Accordingly, you have committed
offence punishable u/s.25 Arms Act,
which is in the cognizance of this Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

Charge against Ram Sewak:

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
jkelsod] dks fuEu vkjksi ls vkjksfir djrk gwaA

;g fd fnukad 24-5-2011 le; 11%30
ih0,e0 LFkku ijlsBk jksM ij cuh iqfy;k ogn xzke
ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts
ls ,d vnn ns'kh reapk ,duyh 315 cksj o ,d
ftank dkjrwl 315 cksj dk Fkkuk/;{k jkds'k dqekj
ljkst o vU; iqfyl dfEkZ;ksa us cjken fd;k ftldks
j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl
izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu
n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds
izlaKku esa gSA

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA^^

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First, Fatehpur, charge you accused, Ram
Sewak, as under with the following
charge:

That on 24.5.2011 at 11:30
p.m., Rakesh Kumar Saroj, Station House
Officer
&
other
police
personnel
recovered one country made pistol single
barrel 315 bore & one live cartridge 315
bore from your possession at the culvert
on
Parsetha
Road
within
Village-
Parsetha,
P.S.-
Ghazipur,
DistrictFatehpur, regarding possession of which
you had no licence. Accordingly, you have
committed offence punishable u/s.25 Arms
Act, which is in the cognizance of this
Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

Charge against Rameshwar:

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
jkes'oj dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA

;g fd fnukad 30-5-2011 le; 22%20
cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV
ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj
tuin Qrsgiqj esa vkids dCts ls ,d vnn
,l0ch0ch0,y0 xu nslh 12 cksj o pkj vnn ftank
dkjrwl 12 cksj dk Fkkuk/;{k jkds'k dqekj ljkst o
vU; iqfyl dfeZ;ksa us cjken fd;k ftldks j[kus
dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj
vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh;
vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa
gSA

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA^^

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First, Fatehpur, charge you accused,
Rameshwar Kewat, as under with the
following charge:

That on 30.5.2011 at 22:20
p.m., Rakesh Kumar Saroj, Station House
Officer
&
other
police
personnel
recovered one country made S.B.B.L. Gun
12 bore & four live cartridges 12 bore
from your possession in the grove of Ram
Shankar & Ram Sewak Kewat within
Village-Nidhwapur Majre Parsetha, P.S.-
Ghazipur, District-Fatehpur, regarding
possession of which you had no licence.
Accordingly, you have committed offence
punishable u/s.25 Arms Act, which is in
the cognizance of this Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

Charge against Dalpat:
442 INDIAN LAW REPORTS ALLAHABAD SERIES

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
nyir dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA

;g fd fnukad 30-5-2011 le; 22%20
cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV
ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj
tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk
nslh 315] ,d vnn ftank dkjrwl 315 cksj ,oa ,d
vnn [kks[kk dkjrwl 315 cksj ds Fkkuk/;{k jkds'k
dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken fd;k
ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha
FkkA bl izdkj vkius
/kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k
dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First, Fatehpur, charge you accused,
Dalpat
Kewat,
as
under
with
the
following charge:

That on 30.5.2011 at 22:20
p.m., Rakesh Kumar Saroj, Station House
Officer
&
other
police
personnel
recovered one country made pistol 315,
one live cartridge 315 bore & one
cartridge shell 315 bore from your
possession in the grove of Ram Shankar
& Ram Sewak Kewat within VillageNidhwapur
Majre
Parsetha,
P.S.-
Ghazipur, District-Fatehpur, regarding
possession of which you had no licence.
Accordingly, you have committed offence
punishable u/s.25 Arms Act, which is in
the cognizance of this Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

Charge against Ram Narain:

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
jkeujk;u dsoV] dks fuEu vkjksi ls vkjksfir djrk
gwaA

;g fd fnukad 30-5-2011 le; 22%20
cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV
ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj
tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk
nslh 315 cksj] o ,d vnn ftank dkjrwl 315 cksj
dk Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl
dfeZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl
dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25
vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr
fd;k tks bl U;k;ky; ds izlaKku esa gSA

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA^^

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First, Fatehpur, charge you accused, Ram
Narain Kewat, as under with the
following charge:

That on 30.5.2011 at 22:20
p.m., Rakesh Kumar Saroj, Station House
Officer
&
other
police
personnel
recovered one country made pistol 315
bore & one live cartridge 315 bore from
your possession in the grove of Ram
Shankar & Ram Sewak Kewat within
Village-Nidhwapur Majre Parsetha, P.S.-
Ghazipur, District- Fatehpur, regarding
possession of which you had no licence.
Accordingly, you have committed offence
punishable u/s.25 Arms Act, which is in
the cognizance of this Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

Charge against Sukh Pal:

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
lq[kiky dsoV] dks fuEu vkjksi ls vkjksfir djrk
gwaA

;g fd fnukad 30-5-2011 le; 22%20
cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV
ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj
tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk
nslh 315 cksj] ,d vnn ftank dkjrwl 315 cksj o
,d vnn [kks[kk dkjrwl 315 cksj dk Fkkuk/;{k
jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken
fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl
ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e
ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl
U;k;ky; ds izlaKku esa gSA
1 All. Ram Narayan Vs. State of U.P.
443

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA^^

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First, Fatehpur, charge you accused,
Sukh Pal Kewat, as under with the
following charge:

That on 30.5.2011 at 22:20
p.m., Rakesh Kumar Saroj, Station House
Officer
&
other
police
personnel
recovered one country made pistol 315
bore, one live cartridge 315 bore & one
cartridge shell 315 bore from your
possession in the grove of Ram Shankar
& Ram Sewak Kewat within VillageNidhwapur
Majre
Parsetha,
P.S.-
Ghazipur, District-Fatehpur, regarding
possession of which you had no licence.
Accordingly, you have committed offence
punishable u/s.25 Arms Act, which is in
the cognizance of this Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

19. Similarly, against accused
appellant Munna @ Surendra Pal charge
under Section 30 of Act, 1959 was
framed, which reads as under:

^^eSa jes'k flag] vij ftyk ,oa l=
U;k;k/kh'k 1⁄4,Dl dSMj1⁄2 izFke] Qrsgiqj vki vfHk;qDr
eqUuk mQZ lqjsUnziky dsoV] dks fuEu vkjksi ls
vkjksfir djrk gwaA

;g fd fnukad 30-5-2011 le; 22%20
cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV
ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj
tuin Qrsgiqj esa vkids dCts ls ,d vnn
Mh0ch0ch0,y0 xu uECkj&15292 lh@4 o nks vnn
ftank dkjrwl 12 cksj rFkk igus gq, iSaV dh ck;ha
tsc ls ykblsUl uEcj&888@Mh-,e- 1⁄4,Q1⁄2 rFkk nks
vnn ftank dkjrwl 12 cksj uEcj ,d ds Fkkuk/;{k
jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken
fd;kA bl izdkj vkius /kkjk&30 vk;q/k vf/kfu;e
ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl
U;k;ky; ds izlaKku esa gSA

eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr
vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky;
}kjk fd;k tk;sxkA^^

"I, Ramesh Singh, Additional
District and Sessions Judge (Ex. Cadre)
First,
Fatehpur,
charge
you
ac
MoongmoongMoongmoong cused, Munna
@ Surendra Pal Kewat, as under with the
following charge:

That on 30.5.2011 at 22:20 p.m.
and in the grove of Ram Shankar & Ram
Sewak Kewat within Village-Nidhwapur
Majre Parsetha, P.S.-Ghazipur, DistrictFatehpur, Rakesh Kumar Saroj, Station
House Officer & other police personnel
recovered one D.B.B.L. Gun No.15292
C/4 & two live cartridges 12 bore from
your
possession
and
Licence
no.888/D.M.(F.) & two original live
cartridges 12 bore from the left pocket of
the trousers worn. Accordingly, you have
committed offence punishable u/s.30 Arms
Act, which is in the cognizance of this
Court.

I, hereby, direct that you all will
be tried by this Court for the above
charge."

20. All the accused pleaded not
guilty and claimed to be tried.

21. In the meantime, reports of
Ballistic Expert from Forensic Science
Laboratory,
Lucknow
were
received
which have been marked as Ex.Ka-45, ka46, ka-47, ka-48, ka-49, ka-50 and ka-51.
From the aforesaid ballistic reports it
appear that both the deceased had been
done to death by use of firearms.
According to ballistic and forensic
reports, bullets, cartridges and pellets
contained human blood found on the
clothes of both the deceased as well as
sample of blood stained soil contained
human blood.
444 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Here it would be relevant to give
a chart mentioning weapons possessed
and used by individual accused appellant.

S.
No.
Cri.
Ap
pea
l
No.
Appella
nts'
Name
Sentence
imposed
Weapons
1 570
8 of
201
7
Ram
Narayan
@ Lal
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

25 Arms Act-
1 year R.I. +
1000/-
One
country
made pistol 315
bore,
1
live
cartridge
2 594
7 of
201
7
Ram
Sewak
25 Arms Act
One
country
made pistol 315
bore, one live
cartridge
3 575
2 of
201
7
Dalpat
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-
25 Arms Act-
1 year R.I. +
1000/-
One
country
made pistol 315
bore, one live
cartridge and
one
empty
cartridge
4 595
0 of
201
7
1.
Ashish
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

2. Ram
Sewak
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

25 Arms Act-
1 year R.I. +
1000/-
One
country
made pistol with
one live cartridge
of 315 bore
5 598
6 of
201
1.
Jagmoha
n
@
302
Life
imprisonment
R.I. + 20,000/-

7
Munna
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-
2.
Sukhpal
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

25 Arms Act-
1 year R.I. +
1000/-
Country
made
pistol 315 bore, 1
live
cartridge,1
empty cartridge
6 606
8 of
201
7
Ramesh
war
Kewat
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

25 Arms Act-
1 year R.I. +
1000/-
SBBL gun 12
bore,
4
live
cartridges
12
bore
7 611
6 of
201
7
Badri
Vishal
Pal
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

25 Arms Act-
1 year R.I. +
1000/-
Country
made
pistol 315 bore, 1
live cartridge.
8 719
2 of
201
7
Munna
@
Surendra
Pal
Kewat
302
Life
imprisonment
R.I. + 20,000/-
147- 2 years
R.I. + 5000/-
148- 3 years
R.I. + 5000/-

30 Arms Act -
6 months +
1000/-
DBBL gun No.
15292 C/4 + 2
live cartridges +
Licence
No.
888/DM(F)

23. In order to substantiate and prove
the guilt of accused appellants, prosecution
examined as many as 8 witnesses, out of
whom PW-1, Rajesh Kumar and PW-2,
Sohan are witnesses of fact; PW-3, Dr. K.V.
Chaudhary had conducted post mortem on the
dead bodies of deceased Babu and Jagannath
1 All. Ram Narayan Vs. State of U.P.
445
and has proved post mortem report of
deceased
as
Ex.Ka-3
and
Ka-4
respectively; PW-4, S.I. Rakesh Kumar is
the first I.O. who had rushed to the spot
after registration of case and had taken in
possession country made pistol and
bullets and has also proved recovery
memos Ex.Ka-4, in respect of weapons
and cartridges, Ex.Ka-5 and Ex.Ka-6 in
respect of sample of blood stained soil
and simple soil. Besides, inquest report
Ex.Ka-7 and Ka-12, in respect of Babu
and Jagannath respectively have been
proved by this witness.