# Ram Samujh & Anr. (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 1379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-13
- **Case number:** Criminal Appeal No. 2411 of 1983
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-samujh-anr-in-jail-v-state-of-u-p-48509
- **Pages:** 30

## Headnote

D.G.A.

A. Testimony of an independent witness can alone
form the basis of conviction but before it's
acceptance the court must satisfy itself whether
the substratum of the story narrated by the
witness is consistent with the other evidence on
record, the natural course of events, the
surrounding
circumstances
and
inherent
probabilities of the case and is such which will
carry conviction with a prudent person.

B. Mere congruity and consistency are not the sole
test of truth, sometimes even falsehood is given at
right appearance of truth so that truth disappears
and falsehood comes on surface.

C. Once there arises a strong suspicion of the
F.I.R. not being registered at the time when it is
purported to have been lodged, the benefit of
prompt reporting would not accrue to the
prosecution. Under these circumstances the
prosecution evidence would have to be evaluated
and assessed independently after carefully testing
it on all material particulars.

D. Absence of strong motive may not be fatal to
the prosecution case based on ocular evidence but
where there is an occasion to suspect the
prosecution testimony motive accrues importance
to test the probability of the prosecution case.

E. Criminal Law - Indian Penal Code, 1860 -
Section 141/149 - Where general allegations
are made against a large number of persons the
court must carefully scrutinize the evidence
whether the assembly consisted of some persons
which were merely passive witnesses and had
joined the assembly as a matter of ideal curiosity
without intending to entertain common object of
the assembly and should hesitate to convict large
number of persons if the evidence available on
record is vague and also before convicting with the
aid of Section 149 IPC the court must give clear
finding regarding nature of common object and
that the object was unlawful.

Appeal allowed. (E-12)

List of Cases cited:-

## Text

_Characters 0–39,806 of 105,824. This is a partial read: ask again with offset=39806 for what follows._

5 All. Ram Samujh & Anr. Vs. State of U.P.
1379
petitioner had received payments under
Section 194 J also, but it had not shown the
said receipts in his Profit and Loss account
and had not given any explanation for the
same. The petitioner had not disclosed the
amount of reimbursement of expenses
claimed by it and the actual amount received
by it towards reimbursement. It had not
submitted the details of expenses incurred by
it for verification during the assessment
proceedings. It did not produce any ledger,
bills and vouchers of expenses incurred on
behalf of the Principal Companies. Thus the
petitioner did not make a "full and true"
disclosure of all the material facts which
resulted in an income of Rs. 1,07,24,386/-
having escaped assessment. In the instant
case, the notice under Section 148 of the Act
has been issued by the Assessing Officer after
an investigation was carried out and after
going through the income tax return and other
related documents of the petitioner and after
forming reason to believe that the petitioner
did not truly and fully disclose all the
material facts, because of which income
amounting to Rs.1,07,24,386/- has escaped
assessment. Thus the reassessment has been
ordered upon discovery of apprehended
untruthfulness of facts previously disclosed,
which came to light after an investigation
and, therefore, the judgment in Phool Chand
Bajrang Lal (supra) does not support the
petitioner and as per the law laid down in
Srikrishna
(Supra),
the
reassessment
proceedings have rightly been initiated.

19. The judgment passed by this Court
has also been sought to be reviewed on the
ground that various case laws relied upon by
the petitioner in support of its claim have not
been considered by this Court. In the
judgment sought to be reviewed, the
judgments of Aventis Pharma Ltd. versus
ACIT, (2010) 323 ITR 570 (Bom), Arun
Gupta versus Union of India, (2015) 371
ITR 394 (All) and United Electrical Co.
Ltd. versus Commissioner of Income Tax,
(2002) 258 I.T.R. 317, cited by the learned
counsel for the petitioner have been referred
to and dealt with. This Court is not obliged
to refer to each and every judgment forming
part
of
a
compilation
of
judgments
submitted
after
conclusion
of
oral
submissions, which judgments were not
placed before the Court during oral
submissions. Moreover, while deciding the
writ petition, we have referred to and relied
upon the relevant case laws and it is not
been submitted by the petitioner that in the
judgment sought to be reviewed, the law
applicable to the facts of the case has not
been taken into consideration. Therefore,
this submission also stands rejected.

20. In view of the aforesaid discussion,
we do not find any "error apparent on the
face of the record" in the judgment and the
order dated 18-04-2022 sought to be
reviewed. The application for review of the
judgment and order dated 18-04-2022 lacks
merit and, is accordingly dismissed.

21. However, there will be no order as
to costs.
----------
(2022)05ILR A1379
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2411 of 1983

Ram Samujh & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri D.S. Tiwari, Sri Brijesh Sahai, Sri Manvendra
Dixit, Sri P.C. Chaturvedi, Sri S. Shukla, Sri
Shashwat Shukla, Sri Sageer Ahmad (Senior
Adv.)

Counsel for the Respondent:
D.G.A.

A. Testimony of an independent witness can alone
form the basis of conviction but before it's
acceptance the court must satisfy itself whether
the substratum of the story narrated by the
witness is consistent with the other evidence on
record, the natural course of events, the
surrounding
circumstances
and
inherent
probabilities of the case and is such which will
carry conviction with a prudent person.

B. Mere congruity and consistency are not the sole
test of truth, sometimes even falsehood is given at
right appearance of truth so that truth disappears
and falsehood comes on surface.

C. Once there arises a strong suspicion of the
F.I.R. not being registered at the time when it is
purported to have been lodged, the benefit of
prompt reporting would not accrue to the
prosecution. Under these circumstances the
prosecution evidence would have to be evaluated
and assessed independently after carefully testing
it on all material particulars.

D. Absence of strong motive may not be fatal to
the prosecution case based on ocular evidence but
where there is an occasion to suspect the
prosecution testimony motive accrues importance
to test the probability of the prosecution case.

E. Criminal Law - Indian Penal Code, 1860 -
Section 141/149 - Where general allegations
are made against a large number of persons the
court must carefully scrutinize the evidence
whether the assembly consisted of some persons
which were merely passive witnesses and had
joined the assembly as a matter of ideal curiosity
without intending to entertain common object of
the assembly and should hesitate to convict large
number of persons if the evidence available on
record is vague and also before convicting with the
aid of Section 149 IPC the court must give clear
finding regarding nature of common object and
that the object was unlawful.

Appeal allowed. (E-12)

List of Cases cited:-

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

2. Jalpat Rai Vs St. of Har., (2011) 14 SCC 208

3. Lakshman Prasad Vs St. of Bihar, 1981 (Supp)
SCC 22

4. Alagupandi Vs St. of T.N., (2012) 10 SCC 451

5. Badam Singh Vs St. of M.P., (2003) 12 SCC
792

6. Ramchandran & ors. Vs St. of Kerala: (2011)
9 SCC 257

7. Kuldip Yadav & ors. Vs St. of Bihar: (2011) 5
SCC 324
(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Sameer Jain, J.)

1. This appeal was presented on
behalf of two appellants, namely, Ram
Samujh and Rama Kant. The appeal of
Rama Kant was abated vide order dated
21.08.2015, therefore, this appeal survives
qua appellant no.1 Ram Samujh only.

2. This appeal is against the judgment
and order dated 11.10.1983 passed by the
third Additional Sessions Judge, Jaunpur in
S.T. No.139 of 1981 connected with S.T.
No.120 of 1981 whereby, the surviving
appellant no.1 Ram Samujh, along with coaccused Rama Kant and Sher Bahadur
Singh, has been convicted and sentenced
under Sections 148, 302/149 and 307/149
IPC. Sher Bahadur Singh filed a separate
Criminal Appeal No.2412 of 1983 which
stood abated vide order dated 11.12.2015.
This appeal has, therefore, been pressed
only on behalf of the appellant no.1 Ram
5 All. Ram Samujh & Anr. Vs. State of U.P.
1381
Samujh, who has been convicted and
sentenced as above in S.T. No.139 of 1981.

3. We have heard Sri Sageer Ahmad,
learned Senior Counsel, assisted by Sri
Shashwat
Shukla,
for
the
surviving
appellant
no.1
(Ram
Samujh);
Ms.
Sanyukta Singh, Brief Holder, and Sri J.K.
Upadhyay, learned AGA, for the State; and
have perused the record.

INTRODUCTORY FACTS

4. On a written report (Ex. Ka-1),
dated 01.05.1981, submitted by Achhaibar
(PW-1), scribed by Devi Prasad Maurya
(not examined), Case Crime No.56 of 1981,
at P.S. Meerganj, District Jaunpur was
registered at 01.30 hrs on 01.05.1981 of
which GD Entry No.4 (Ex. Ka-9) and Chik
FIR (Ex. Ka-8) was prepared by Shyam Lal
Tiwari (PW-7). The FIR alleges that the
informant (PW-1) for getting his wheat
threshed had been at the pumping set of
Yadunath Yadav (not examined) where
Saheb Lal (the deceased), Saheb Lal's
relative Rai Sahab (not examined) and
Hanuman Prasad (PW-2) were present. At
about 12 midnight, eight men armed with
country made pistol, gun and bomb arrived,
tied PW-2 and fired at Saheb Lal (the
deceased). Saheb Lal fell whereas Rai
Sahab escaped towards the village. In the
meantime, when a second shot was fired at
Saheb Lal, the informant intervened and
pleaded that if they have to rob/loot they
may go to the village but they should not
kill. Upon which, those men threatened the
informant, as a result, the informant tried to
escape. While he was escaping, those men
hurled a bomb. On explosion of that bomb,
the dried Arhar (lentil) crop kept there
caught fire and started burning, which lit
the spot. In the light of that fire, the
informant
could
identify
three
men,
namely, Rama Kant Dube (the appellant
no.2); Ram Samujh Mishra (appellant
no.1); and Sher Bahadur Singh (the
appellant in the connected appeal), who had
country made pistol, gun and bomb with
them. It is alleged that as the area got
sufficiently lit, the accused effected their
escape towards south west. On their escape,
large number of persons gathered at the
spot. Saheb Lal died on the spot whereas
the informant received injury. After making
allegations noticed above and by stating
that the body of the deceased has been left
at the spot, the FIR was lodged.

5. PW-1 (the informant) was
medically examined by PW-5 (Dr. R.S.
Shukla) at 3.15 pm on 01.05.1981. The
injury report (Ex. Ka-6) notices following
injuries:-

(i) Multiple tiny abrasions on
back in an area of 30 cm x 30 cm. Black in
colour. Soft scab red in color present.

(ii) Lacerated wound 1 cm x 0.5
cm x skin deep on left buttock.

(iii) Traumatic swelling 22 cm x
6 cm on left leg with an abrasion 0.4 cm x
0.4 cm, 8 cm below knee joint.

(iv) Multiple Tiny abrasions in
area 18 cm x 8 cm on back of right leg.
Firm red scab present.

Injuries are simple. No.1 and 4 is
caused by blast injury and no.2 and 3 by
blunt object. Duration about half day.

It be noted that the Chitthi
Majrubi (letter for examination of the
injured, prepared at the police station) on
which the medical examination of PW-1
was carried out by PW-5 has not been
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
exhibited. The injury report (Ex. Ka-6)
though reflects that it is a police case and
the injured was brought by constable
Shyam Narain Mishra (not examined) but
the case crime number of the case is not
mentioned.

6. As per the inquest report (Ex. Ka10), inquest was completed by 7 am on
01.05.1981 by S.I. T.M. Tiwari (not
examined)
under
supervision
of
the
Investigating Officer (I.O.) Raj Nath
Tripathi (PW-8). The inquest report records
the name of Bhagelu, Jatashanker, Asha
Ram, Devi Prasad and Nirhu as witnesses
but none of them have been examined. It be
noted that the inquest report does not bear
the case crime number though it mentions
the name of PW-1 as the person who gave
information at the police station at 1.30
hrs. But there appears overwriting on the
digit "1" of the time mentioned in the first
column of the inquest report. It be also
noted that as per the entry in the inquest
report, police left to go to the spot at 5 am
in the morning. Another feature noticeable
is that the inquest report bears no details of
the police papers available, or prepared, or
annexed with the inquest report, which, in
ordinary course, are to be forwarded with
a request for autopsy. As per Challan Lash
i.e. Form-13 (Ex. Ka-13), the cadaver
reached the District Police Headquarters,
50 km away from the spot, at 14.35 hours
of which GD Entry No.22 was made at
14.35
hours
at
the
District
Police
Headquarters. As per endorsement of Dr.
R.P. Rastogi (autopsy surgeon) (PW-6) in
Ex. Ka-13, the papers in respect of autopsy
were received at the concerned hospital at
4.25 p.m. on 01.05.1981, whereas the body
was received in the mortuary, in a sealed
cloth, at 4.55 pm and the autopsy
commenced at 5 pm. Notably, there is
overwriting over digit "4" of the time 4.25
p.m. Another important feature noticeable
from the record is that there is nothing to
show that the Chik FIR or the GD Entry of
the FIR was forwarded to the Autopsy
Surgeon or was seen or endorsed by the
Autopsy Surgeon (PW-6). It be, however,
noted that Challan Nash (Ex. Ka-11), Form
No. 33 (Letter requesting the surgeon to
conduct autopsy) (Ex. Ka-12), sample seal
(Ex. Ka-14) bear case details but the letter
of the Station Officer requesting for an
autopsy (Ex. Ka-15) bears no such details.

7. Autopsy was conducted at 5 pm by
Dr. R. P. Rastogi (PW-6). As per the
opinion expressed in the Autopsy report
(Ex. Ka--7), death could have occurred
3/4th of a day before. The features of the
cadaver noticed during autopsy are below;

External
examination:
Body
strong built wheatish complexion. Rigor
mortis present upper and lower part of the
body. Eyes and mouth closed with greenish
discolouration
(sic).
Abdomen
not
distended.

Ante-mortem injuries:

(i) Gun shot wound of entry 3 1⁄2
x 3 cm x abdomen cavity deep. Right side
of abdomen 9 cm above umbilicus at 9
O'clock position and 16 cm below right
nipple.
Omentum
protruded
through
wound. Blackening and scrorching and
tattooing present around the wound.

(ii) Multiple gun shot wound of
exit in an area of 15 cm x 12 cm x size 0.2
cm x 0.2 cm x muscle to abdomen cavity
deep on lower part of left side of abdomen
and left upper and outer of buttock into size
0.2 cm x 0.2 cm muscle to abdomen cavity
deep. Margins everted under injury and left
iliac bone fractured.
5 All. Ram Samujh & Anr. Vs. State of U.P.
1383

Internal examination:

Stomach ruptured near duodenal
part. Semi digested food present. Small
intestine having multiple through and
through
opening.
Large
intestine
of
descending colon lower part ruptured.
Blood
vessel
(sic)
greater
omentum
ruptured at many places.

Opinion:- Death due to shock and
haemorrhage as a result of above injury.

8. The investigation of the case was
conducted by PW-8 and two separate
charge sheets were submitted. Ex. Ka-27 is
the charge sheet submitted against Rama
Kant and Sher Bahadur, whereas, Ex. Ka28 is the charge sheet submitted against
surviving appellant (Ram Samujh). After
taking cognizance on the charge sheet, case
was committed to the court of session. Two
separate trials were instituted, namely, S.T.
No.120 of 1981, which was against coaccused Rama Kant and Sher Bahadur, and
S.T. No.139 of 1981, which was against the
surviving appellant Ram Samujh. All the
three accused were charged for offences
punishable under Sections 148, 302 / 149
and 307/ 149 IPC. It be noted that in the
memorandum of the charge there was an
allegation with regard to formation of an
unlawful
assembly
with
five
other
unknown persons and of commission of
murder of Saheb Lal and of making an
attempt on the life of Achhaibar (PW-1) by
hurling a bomb at him. The accused
pleaded not guilty and claimed for a trial.

9. During the course of trial, eight
prosecution witnesses were examined,
namely, Achhaibar (PW-1- injured eye
witness);
Hanuman
Prasad
(PW-2-
another eye witness); Kamla Shanker
Upadhyay (PW-3- the constable who
carried the body of the deceased to the
mortuary for autopsy); Kailash Nath (PW4- brother of the deceased Saheb Lal - who
is not an eye witness but examined to prove
the motive for the crime); Dr. R.S. Shukla
(PW-5- the person who conducted medical
examination of PW-1); Dr. R.P. Rastogi
(PW-6- autopsy surgeon who conducted
postmortem examination of the body of the
deceased); Shyam Lal Tiwari (PW-7 -
constable who made GD entry of the
written report and prepared Chik FIR); and
Rajnath
Tripathi
(PW-8
-
the
investigating officer who conducted the
investigation of the case and submitted
charge sheet).

10. After the prosecution evidence
was led, the statement of the accused
persons were recorded under section 313
CrPC. The trial court convicted and
sentenced the appellants as noticed above
against which, instant appeal has been
filed.

PROSECUTION EVIDENCE

11. Before we proceed to notice the
rival
submissions,
to
have
a
clear
understanding of the context in which those
submissions have been made, it would be
appropriate to notice the testimony of the
prosecution witnesses. The testimony of the
prosecution
witnesses,
shorn
of
unnecessary details, is as follows:-

12. PW-1- Achhaibar. He described
the place of occurrence as being near to the
pumping set of Yadhunath, located about
two furlong (one furlong is equal to 220
yards) away from the village abadi, around
which there were fields but no abadi. He
states that Yadunath and Raghunath are
brothers.
Raghunath
has
two
wives,
namely, Batasi and Ramdei. Raghunath
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
does not have a son but only one daughter,
namely, Chanri. Chanri's son is Rai Saheb.
Yadunath has six sons. Three are very
young whereas, the other three, Kailash
(PW-4), Jayantri and Saheb Lal (the
deceased) were adults. In addition to those
sons, Yadunath has a daughter named
Manju. Manju's Jeth (husband's elder
brother) is Hanuman Prasad (PW-2). PW-1
states that at the time of the incident, except
for Saheb Lal nobody else of Yadhunath's
family was there. Yadunath, Kailash (PW4) and Jayantri resided in Bombay. The
younger sons resided in the village. PW-1
stated that the pumping set of Yadunath
runs on electricity and has a thresher
attached to it. The thresher machine was
used to thresh his (Yadunath's) own as well
as crop of other villagers.

In respect of the incident, PW-1
stated that, that night he had taken his crop
for threshing to Yadunath's pumping set.
He had reached there by about 11 or
quarter to 11 pm, as the electricity used to
come late in the night. At that time, there
was no electricity. There, Saheb Lal (the
deceased), Rai Sahab (not examined),
Hanuman Prasad (PW-2) and Saheb Lal's
mother Ramdei were present. At that spot,
three paces away, towards south east of the
pumping set, Saheb Lal and Rai Sahab
were sleeping in a cot, four paces away
towards
north
of
the
pumping
set,
Hanuman Prasad was sleeping in a cot,
Ramdei was sleeping near the room,
towards west of the pumping set, in her
own cot. PW-1 stated that he was sleeping
two paces north of the cot of Rai Sahab and
Saheb Lal. Then PW-1 clarified that while
he was awake, he saw that from west and
south, few men, 7-8 in number, with
torches on, were coming. When those men
came close, PW-1 asked them as to why
they have switched on their torches. Those
men replied by saying that they had gone to
hear folk stories (Birha). By then, Saheb
Lal and Rai Sahab woke up. As soon as
Saheb Lal stood up, a gun shot was fired at
him, as a result of which, he stumbled and
fell on a wheat bushel. Thereafter, a second
shot was fired. Then, 3-4 men went towards
Hanuman Prasad (PW-2) and tied him to
the cot. Rai Sahab, however, escaped. PW1 stated that when the second shot was
fired, he ran 50 paces towards north of the
pumping set and when he reached near the
field of Kedar a bomb was thrown which
exploded near dry Arhar (lentil) crop that
was set ablaze and splinters of that bomb,
struck PW-1 on his leg and back. PW-1
stated that as the Arhar crop started
burning, the area got lit, in that light, he
could identify Sher Bahadur, Ram Samjuh
and Ramakant, the accused put on trial,
who ran away. The remaining he could not
identify but if they were brought before
him, he would be able to identify them.
PW-1 stated that Sher Bahadur had a Katta,
Ram Samujh had a gun whereas Ramakant
was empty handed. PW-1 stated that as
Saheb Lal had died, his body was lifted
from the wheat bushel, kept on a cot and
covered by a cloth. Thereafter, PW-1 got
the report scribed and lodged. PW-1 stated
that the I.O. had sent him for medical
examination to Sadar Hospital, Jaunpur
where he was medically examined and had
to remain there for eight days.

In his cross-examination, PW-1
admitted that his grand father (Ruchi) had
two brothers, namely, Dukhi and Mukkhu.
Mukkhu's wife was Ramdei, who is now
Raghunath's wife. PW-1 stated that when
Ramdei married Raghunath, she was
already pregnant with Chanri. He admitted
that his brother Bhagelu also has a pumping
set, which runs on electricity and where
also, there is a thresher. He stated that near
5 All. Ram Samujh & Anr. Vs. State of U.P.
1385
that pumping set, they have their holding
and that pumping set is about one furlong
away from Yadunath's pumping set. In
paragraph 11 of his statement, PW-1
admitted that Ram Samujh (the surviving
appellant) is a primary school teacher and
has a licensed weapon. In paragraph 13 of
his statement, when he was shown that in
the FIR he had not mentioned that eight
persons had arrived with torches in their
hand, PW-1 stated that he made a mention
of that in his report but if that was not
written, he cannot tell the reason. When
confronted with an omission in the FIR that
those men, on being questioned, had stated
that they were coming after hearing folk
stories (Birha), PW-1 stated that he cannot
tell the reason for that omission. In
paragraph 13 of his statement PW-1 stated
that till the time he could notice the
accused, he thought that those men were
dacoits. When he was confronted with his
previous statement under Section 161 CrPC
to the effect that Ramakant was carrying a
bomb, PW-1 stated that he did not make
any such statement but if that was written,
he cannot give the reason. In paragraph 14
of his statement, on being confronted with
an omission in his previous statement that
the gunshot was fired from a gun, PW-1
stated that he had disclosed that the shot
was fired from a gun but if that was not
written, then he cannot given the reason. In
paragraph 15 of his statement, he stated as
follows:-

"15& pksV yxus ls eSa fxjk ugha FkkA
[kM+k gh jgkA eSa Mj ds dkj.k Hkkxk FkkA pksV
yxus ds ckn eSa ,d ijx vkxs c<+k vkSj [kM+k gks
x;kA eSa vkSj ;nqukFk] lkgscyky ,d gh fcjknjh
ds gSA va/ksjs dh otg ls ekjus okys dks eSa ugha
igpku ik;k FkkA ;g dguk xyr gS fd jekdkar
o jkeleq> ekSds ij ugha FksA ;g Hkh xyr gS fd
eSa bu nksuksa dk uke ikVhZcanh] nq'euh vkSj e`rd
ds fcjknjh dk gksus ds ukrs ys jgk g¡wA**

In paragraph 20 of his statement,
he stated as follows:-

"eSa i<+k fy[kk ugha gwA eSa viuk uke
fy[k ysrk g¡wA tc xkao ds yksx ?kVukLFky ij
vk x;s rc eSa iafiax lsV ij vk;kA nsohizlkn ls
fjiksVZ fy[kus ds fy, eSaus dgk vkSj fdlh us ugha
dgkA ?kVuk gksus ds 8&10 feuV ds ckn eSaus
fjiksVZ fy[kus dks dgkA ;g xyr gS fd fnu gksus
ij eSaus fjiksVZ fy[kk;k FkkA eq>s /;ku ugha fd eSaus
fjiksVZ esa ;g 'kCn vkt chrh jkr dks fy[kk;k Fkk
;k ughaA ,slh ckr ugha gS fd fjiksVZ Fkkus ij
nwljs fnu lqcg lykg e'kojs ds ckn fy[kh xbZA
eSa vdsys Fkkus ij ugha x;k FkkA**

In paragraphs 22 and 23 of his
statement, on being confronted that his son
Amarnath was an accused in a case under
Section 392 IPC in which Jayantri Lal and
Saheb Lal (the deceased) were also
accused, and in which Ram Chandra Singh
was a witness, PW-1 denied the suggestion
that co-accused Sher Bahadur was falsely
implicated to pressurise Ram Chandra
Singh to not press the case against his son
under Section 392 IPC. In paragraph 24 of
his statement, he claimed ignorance that
Lal Bahadur, relative of Devi Prasad
Maurya, scribe of the instant FIR, was an
accused with Jayantri in that dacoity case.
He also denied the suggestion that there
were several cases against Jayantri in
which PW-1 was a surety for his bail. He
also denied the suggestion that in another
case of dacoity, Yadhunath, Jayantri Lal,
Saheb Lal and Rai Sahab were accused at
the instance of Shyam Lal. In paragraph 27
of his statement he admitted that Arhar
crop was at some distance from the spot. In
paragraph 28 of his statement, PW-1 stated
that Saheb Lal (the deceased) stepped off
his cot from the northern side whereas Rai
Sahab stepped off the cot from the southern
side. The shot was fired from north west.
The person who fired shot at Saheb Lal was
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
four paces away from the cot. He stated
that the second shot was fired at Saheb Lal
immediately when he fell and when the
second shot was fired, it hit Saheb Lal on
the left side of his abdomen. Immediately
thereafter, PW-1 clarified that he did not
notice where the first and second shot had
hit Saheb Lal. Only when the area was lit,
on return, after the accused had left, he
noticed
the
injury.
He
denied
the
suggestion that Rai Saheb and Hanuman
Prasad were not present at the spot.

13. PW-2 (Hanuman Prasad). He
stated that his younger brother Rajendra
Prasad is married to Yadunath's daughter
Manju and, therefore, has relations with
Yadunath and comes there often. In the
night of the incident, he came from
Mariyahu on a train, alighted at Jarauna
Station where he met Rai Rahab and from
there, he, along with Rai Sahab, came to
village Bhatahar (the place of the incident).
He stated that he and Rai Sahab, after
having dinner, went to sleep at Yadunath's
pumping set. There, he slept on a cot about
a pace away, towards west of the water
tank, whereas towards south, 7-8 paces
away, Rai Sahab and Saheb Lal were
sleeping on another cot. At the door of
pumping set, Ramdei was sleeping. Ramdei
is quite old and has poor eyesight. PW-1
had also arrived there for threshing. At that
time, there was no electricity therefore, the
thresher machine was not running. PW-2
stated that PW-1 was sleeping about two
paces away, towards east, of the cot of
Saheb Lal and Rai Sahab. At about 12
midnight, 7-8 men with country made
pistol, gun and torches arrived. They
started talking to PW-1. On this, PW-2
woke up and sat on the cot. As as he got up,
3 - 4 men came and tied him. He stated that
when PW-1 objected to it, they threatened
him. When Saheb Lal stood up, he was shot
at, as a result whereof, Saheb Lal fell on the
wheat bushel. Seeing all of this, Rai Sahab
ran away. When Saheb Lal fell, another
shot was fired at him. Then, PW-1 ran and
was given a chase and a bomb was hurled
at him, which fell on the Arhar crop,
resulting in a fire lighting the area. PW-2
stated that there were 100-150 bushels of
Arhar crop and in the light of that fire, PW2 noticed Sher Bahadur Singh, Ram
Samujh and Ramakant. PW-2 stated that
Sher Bahadur had a country made pistol,
Ram Samujh held a gun and Ramakant was
empty handed. The remaining persons he
could not recognise. He stated that Saheb
Lal died on account of the injury received
by him, whereas PW-1 received blast
injuries. He stated he does not know
whether the shot was fired from a gun or a
country made pistol.

During cross-examination, he
stated that he knows the sons of Sher
Bahadur but he does not know any person
in the family of Ram Samujh and,
similarly, he does not know the family of
Ramakant. He stated that Yadunath's
threshing/ flour machine and the pumping
machine are in the same room, which is 1012 feet wide and long. Towards east of that
room, there is a water tank and towards
south there is a Khalihan. South west of
that room, there is an electricity pole and at
a short distance from that pole, Saheb Lal
and Rai Sahab were sleeping. In paragraph
10 of his statement, he stated that he had
noticed weapons in the hand of the accused
even before the area was lit by fire. At this
stage, he was confronted with his statement
under Section 161 CrPC wherein he had
stated that he could recognise the accused
in the light of the burning crop and that he
had seen Ramakant with a bomb. In
response thereto, in paragraph 11 of his
statement, he stated that he does not know
5 All. Ram Samujh & Anr. Vs. State of U.P.
1387
as to how that was written. He was also
confronted with his previous statement
under Section 161 CrPC where he had
stated that he was sleeping. In response
thereto, he stated that he was about to sleep
and had just covered his face with a quilt.

He denied the suggestion that at
the spot neither he was present nor he
witnessed any of the accused and that what
he has stated is on account of being a
relative of the victim's family. In paragraph
16 of his cross examination, at the instance
of Sher Bahadur, he stated that prior to the
date of the incident he had never met Rai
Sahab and that he never expected that he
would meet Rai Sahab. To test him whether
he knew about the village Bhatahar,
questions were put to which he gave
evasive answer in paragraph 17. From
which it appeared that he did not know
much about the village. On further crossexamination, in paragraph 20, he stated that
except for the informant, the witnesses and
the accused of this case, he knew one more
person of that village who is a Block
Pramukh but he does not remember his
name.

In
his
cross-examination
on
24.02.1982, he stated that Ramdei was not
sleeping near him but if that has been
written in his statement under Section 161
CrPC, then he cannot tell the reason. In
paragraph 25 of his statement he stated that
he had reached Yadunath's pumping set by
6-7 pm or may be 8-9.30 pm but by the
time he reached there, it was dark and
nothing was visible. Then, he stated that if
it was totally dark, how could he have
reached there. He stated that while they
were lying there and talking to each other
and were on the verge of sleep, PW-1
arrived there, but he had no talk with PW1. PW-1 had arrived by about 11 pm. He
stated that to cover themselves in the
morning, they had quilts but they had not
covered themselves with quilts at that time.
He clarified his earlier statement that he
had covered his face with quilt by stating
that that statement is incorrect. The correct
fact is that the quilt was kept below his
head. In paragraph 28 of his statement, he
stated that when he woke up and sat on his
cot, initially, he thought that dacoits have
come. He noticed them first, when they
came to tie him. PW-2 stated that they tied
him with a rope, which was lying near the
well of Yadunath. On a specific question as
to how much time it took them to tie him,
PW-2 stated that it must have taken them 23 minutes and during that period gunshot
was fired and when Ram Achhaibar (PW1) ran, he was chased and a bomb was
hurled at him. He further clarified that the
statement which he made on the other day
that 3-4 men had tied him is not correct but,
in fact, the correct statement is that 3-4 men
were tying him. At this stage, PW-2 was
confronted
with his
statement
under
Section 161 CrPC where he had stated that
some people had tied him with a cot to
which he responded that he does not know
the reason for recording the statement in
that manner. He stated throughout the
incident, 2-3 persons were standing next to
him. In paragraph 31 of his statement, he
stated that when the accused gave a chase
to PW-1, he got opportunity to untie and
get off the cot as the accused were giving a
chase to Ram Achhaibar (PW-1). He stated
that all the accused had given a chase to
Ram Achhaibar. In paragraph 31, he stated
that the accused chased Ram Achhaibar
upto a distance of 50-60 paces. In
paragraph 33, he stated that by the time
Daroga Ji had arrived, most of the Arhar
crop had burnt though some were burning.
In paragraph 35 he stated that Rai Sahab
was first to run away, thereafter, Ram
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
Achhaibar (PW-1) ran. PW-2 stated that
when he was being tied he heard gunshots.
He stated that though he heard two gun
shots but he did not notice the firing of
gunshot and the causing of injury by the
gunshot. He stated that when Rai Sahab
was escaping, the miscreants were flashing
torch light on him and in that light, he saw
Rai Sahab running away. When the accused
escaped, he noticed that Saheb Lal was
dead. He stated that Saheb Lal was wearing
an underwear and a vest. He denied the
suggestion that he was not present at the
place and time of occurrence and is telling
lies because of being a relative of victim's
family.

14.

PW-3
Kamla
Shanker
Upadhyay. He was the constable who
carried the body of the deceased for
autopsy. He stated that he received a sealed
body for autopsy. He delivered the body in
a sealed condition along with papers to the
autopsy surgeon.

In
his
cross-examination,
though he stated that the body was
delivered to him at 8 am in the morning but
he could not remember as to when he left
the police station. However, he delivered
the body at the mortuary at 4.55 p.m. He
stated that he carried the body in a jeep. He
also stated that in ordinary course it would
take only two hours to cover that distance
in a jeep. He denied the suggestion that he
started his journey at 3 pm.

15. PW-4 Kailash Nath. He is the
brother of Saheb Lal (the deceased). He
stated that the date on which Saheb Lal was
killed, he was not there in the village but
was at Bombay. He stated that Sukhdeyi
was widow of one Yadav. Prior to the
incident, Sukhdeyi had executed a sale
deed in favour of Ramakant Dubey
(accused). But, alleging that that sale deed
was executed by an imposter, Sukhdeyi had
instituted a suit for cancellation of the sale
deed, which was decreed ex-parte on
09.04.1981. The certified copy of the plaint
of that suit was marked as Ex. Ka-2 and the
decree passed therein was marked as Ex.
Ka-3. PW-4 stated that Sukhdeyi had also
instituted
proceedings
before
the
Settlement Officer of Consolidation in that
regard and to prosecute those proceedings,
she had appointed Saheb Lal (the deceased)
as her attorney. The power of attorney was
exhibited as Ex. Ka-4. PW-4 stated that his
family and family of Sher Bahadur were in
litigation which was pending as a revision,
copy of which was marked as Ex. Ka-5. In
paragraph 4 of his statement, PW-4 stated
that Ram Samujh's brother, Ramdeo
Mishra, is a teacher in an institution whose
manager is Jokhan Singh i.e. father of Sher
Bahadur Singh. In that institution, there is a
Primary Pathshala in which Ram Samujh
(surviving appellant) is a teacher and
because of that relationship, Sher Bahadur
Singh and Ram Samujh have close
association with each other. He stated that
Saheb Lal stays at home and looks after
agricultural operations as well as pending
cases.

In his cross-examination, he
stated that he had been staying in Bombay
since he was aged 8 years and that he visits
the village once in a year and stays there
for a month or two. He stated that six days
after his brother's murder, he visited the
village. He also stated that when Ramakant
obtained a sale deed of the land of
Sukhdeyi, he was not present in the village
and he was also not in the village when
Sukhdeyi instituted the suit. Only 8-9 days
after the murder, he came to know about
the sale deed and the suit. He stated that
Sukhdeyi is alive and has two daughters,
5 All. Ram Samujh & Anr. Vs. State of U.P.
1389
who are married. In paragraph 7 of his
statement, he clarified that the proceedings
in
connection
with
which
Sukhdeyi
executed power of attorney in favour Saheb
Lal were still pending and after the death of
Saheb Lal those proceedings were being
looked after by her son-in-law, namely,
Ram Bali and Ram Kishore. He stated that
the suit instituted by Sukhdeyi was decreed
ex-parte when Ramakant was in jail. He
also stated that Sukhdeyi was in possession
of that property. On being questioned
whether PW-4 had enquired as to whether
Ramakant had put in appearance in those
proceedings, he feigned ignorance. He also
denied the suggestion that the power of
attorney was created after the death of
Saheb Lal to add colour to the case.

In paragraph 14 of his statement,
he stated that Ramdei's first husband was
Mukkhu. He stated that he is not aware that
Achhaibar (PW-1) is grand son of Mukkhu.
He, however, admitted that Achhaibar
(PW-1) is of the same Khandan. He denied
the suggestion that because they had
grabbed the property of Ramdeyi, there
were many enemies of Saheb Lal. He also
denied the suggestion that Saheb Lal was
accused in multiple criminal cases. He
claimed ignorance that Ram Samujh is a
teacher in an institution which is not in the
village.

16. PW-5 Dr. R.S. Shukla. - The
doctor who medically examined PW-1 for his
injuries. He proved injury report (Ex. Ka-6).
He stated that he examined PW-1 at 3.15 pm
on 01.05.1981. He proved the injuries
mentioned in the injury report of which
details have already been given above. He
stated that all the injuries were simple.
Injuries 1 and 4 could be from a blast,
whereas injuries 2 and 3 could be from hard
object. He stated that the injuries were about
half a day old and could have been sustained
round about midnight of 30.04.1981.

In his cross-examination, he
stated that the injuries 2 and 3 could not have
been caused on account of a fall but they
could be from a lathi or a hard object. He also
stated that it is possible that if someone is
clothed and bomb particles hit the body, then
injury of the nature described as injury no.2
could be caused.

17. PW-6 Dr. R.P. Rastogi, the
autopsy surgeon. He proved the autopsy
report, which was marked Ex. Ka-7. He
stated that he recovered 20 metallic pellets
from the body. He accepted the possibility of
death having occurred around midnight of
30.04.1981.

In his cross-examination, he
stated that he received police papers at 4.25
pm and he conducted the postmortem at 5
pm. He stated that in all the papers that he
received, he had put his signature. He stated
that at the time when he received the police
papers, there was no copy of the FIR with it.
He stated that he never received any copy of
the FIR. In paragraph 8 of his cross
examination, he stated that the injury no.1 is
an entry wound, the margin of which is injury
no.2 and the same would be possible if
someone standing on the right side, near the
head, fires a gunshot at the victim while the
victim is lying on a cot. In paragraph 9 he
categorically stated that both injuries found
on the body of the deceased was from a
single shot.

18. PW-7 Shyam Lal Tiwari, the
constable who prepared Chik FIR and the
GD entry of the report. He proved making
of the Chik FIR (Ex. Ka-8) and the GD
entry (Ex. Ka-9) of the report at its
purported time and date.
1390 INDIAN LAW REPORTS ALLAHABAD SERIES

In his cross-examination, he
was confronted with the carbon copy of the
Chik prepared of Case Crime No.63 of
1980, under Sections 395/397 IPC. He
admitted that that case was registered by
Sher Bahadur Singh against Jayantri. This
paper was marked Ex. Kha-1. He was also
confronted with carbon copy of the Chik
prepared in connection with Case Crime
No.136 of 1980, under Section 392 IPC, in
which the informant was Shyam Lal
Maurya and the accused were Jayantri,
Saheb Lal, etc. This Chik copy was
exhibited as Ex. Kha -2. In paragraph 5, he
denied the suggestion that the report of this
case was written at the police station in the
presence of the I.O. and him. He also
denied the suggestion that the deceased was
brought on a cot to the police station and
that cot was given to Kailash Nath after
few days. In paragraph 6, he denied the
suggestion that the first information report
was lodged on 02.05.1981 after obtaining
the autopsy report. He also denied the
suggestion that the general diary of the
police station was kept vacant to fill up
details of this case. He admitted that except
for making the Chik report and the GD
entry of the written report, he has not
prepared any other paper of this case.

19. PW-8 Rajnath Tripathi -
Investigating Officer. He stated that after
registration of the case, he took over
investigation. At 4 am, he arrived at the
spot. On account of darkness, he could not
hold inquest proceedings till sun rise. He
enquired from the witnesses, namely, Rai
Sahab, Hanuman Prasad and Ramdei, who
were present at the spot. At sun rise, he
inspected the body and the spot and the
inquest proceedings, under his direction,
were conducted by S.I. T.M. Tiwari. He
proved the signature of T.M. Tiwari on the
inquest report (Ex. Ka-10) and photo-nash
(Ex. Ka-11).