# Ram Shankar & Ors v. The State of U.P

- **Citation:** (2023) 1 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Criminal Appeal No. 500 of 1984
- **Bench:** Ramesh Sinha, Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shankar-ors-v-the-state-of-u-p-49166
- **Pages:** 23

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 374(2) - Appeal
against conviction and Sentence - Scope
of hearing - Principle explained - Held,
the First Appellate Court while deciding
the criminal appeal on facts must apply its
independent mind and record its own
findings
on
the
basis
of
its
own
assessment, the evidence is appreciated
for
our
independent
assessment
of
evidence and recording the findings if we
reach to the findings that the findings
recorded
by
the
trial
court
is
in
consonance of our findings, the appeal
could be dismissed and if two views are
possible after appreciation of the evidence
and one view is in favour of acquittal, the
appeal would be allowed or on the basis of
appreciation of evidence if we find that
trial
court
has
not
appreciated
the
evidence while recording the findings of
guilt and it is illegal, the appeal would be
allowed. (Para 24)
B. Criminal Law - First Information Report
- Delay, how far affects its authenticity -
Anjan Dasgupta's case relied upon - A
promptly lodged FIR reflects the first hand
account of what has actually happened,
and who was responsible for the offence
in question - Held, trial court has rightly
held that first information report was
lodged promptly which rules out any sort
of concoction and deliberation and it gives
assurance
regarding
the
truth
of
informant's version. (Para 25 and 26)
C. Criminal Law - First Information Report
- Omission of few facts, how far fatal for
prosecution - Held, certain omission like
non-mentioning of covering of the face by
Shyam Bihari by scarf and certain other
minor omissions in FIR does not go to the
root of the prosecution case, therefore,
that is not fatal. Moreover, the FIR cannot
be said to be an encyclopedia. It is not
expected that all the details must find in
FIR. Therefore, it will not affect the
prosecution case. (Para 29)
D. Criminal trial - Interested witness -
Reliability - Held, the ground that the
witness
being
a
close
relative
and
consequently being a partisan witness,
should not be
relied
upon, has no
substance - Dalip Singh's case relied
upon. (Para 37)
E. Criminal trial - Indian Penal Code,1860 -
Sections 302 - Murder - Injured witness -
St.ment of witnesses that the appellant
opened fire on the injured - Reliability -
Nothing came in his cross-examination
which makes his testimony unreliable -
Relevance - Held, the factum that accused
were identified in the light of lantern and in
the light of torch of the accused was not
challenged
in
the
cross-examination.
Therefore, the testimony of this witness
inspires confidence and is liable to be relied
on - Prosecution has proved its case beyond
reasonable doubt against the accusedappellants for offence punishable under
Sections 302/149, 307/149, 148, 323/149
and Section 449 I.P.C. The learned lower
court has rightly convicted and sentenced
the appellants. (Para 31 and 40)
Appeal dismissed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,943 of 80,281. This is a partial read: ask again with offset=39943 for what follows._

576 INDIAN LAW REPORTS ALLAHABAD SERIES
justice. It is only the dishonest intention of
the petitioner which was reflected in the
proceedings that were sought to be pursued
by him. Even otherwise, assuming if the
land was a fragment then too it would vest
in the State and petitioner would not gain
anything to the contrary. It has also been
submitted that as a matter of fact, the State
Government has issued Notifications that in
case, there is a fragmentation then the
same can be regularized by making certain
deposits and, therefore, the sale deed would
not be void.

7. Having heard learned counsel for
the parties and having perused the counter
and rejoinder affidavits, it is evident that
the
rights
of
the
petitioner
stood
extinguished with the execution of the sale
deed. The petitioner had never challenged
the sale deed, as such it appears that the
petitioner has somehow the other tried to
cause damage to the answering respondent
for no valid reason. The petitioner would
not stand to gain anything except causing
sheer harassment to the respondent no. 4.
The contention of the respondent that the
petitioner would not stand to gain anything
appears to be correct.

8. In view of the fact that the petitioner
has been unable to make out any case for
interference in view of the facts that have
been brought on record and the findings
recorded by the authorities, I am not
inclined to interfere in the exercise of
jurisdiction under Article 226 of the
Constitution of India. The writ petition
lacks merit and it is accordingly dismissed.
Interim order granted earlier stands
discharged."

16. The judgment cited by learned
counsel
for
the
petitioners
are
not
applicable in the present controversy as
both the judgment are of year 1991 & 2000
while the Section 168-A of U.P.Z.A. & L.R.
Act has been omitted by U.P. Act No.27 of
2004
w.e.f.
23.08.2004
and
State
Government notification for validation of
sale deed which was hit by Section 168-A
of U.P.Z.A. & L.R. Act came into force on
05.04.2010.

17. It is also material that Civil Suit
No.4 of 2006 has been filed by respondent
Nos.7, 9 and 10 (vendor of petitioners) to
declare the sale-deed of respondent No.6 as
illegal, void and ineffective which is
pending for adjudication before civil court.

18. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by this Court in Smt.
Sumitra Devi (supra) and Deep Chand
(supra) coupled with the provisions of
validation
of
sale-deed
in
view
of
Government notification dated 05.04.2010,
no interference is required against the
impugned orders.

19. The writ petition is devoid of
merit
and
the
same
is
accordingly
dismissed.

20. No order as to cost.
----------
(2023) 1 ILRA 576
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.12.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 500 of 1984

Ram Shankar & Ors. ...Appellants
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
1 All. Ram Shankar & Ors. Vs. The State of U.P.
577
Subudh, K. Shukla, Kr. M. Rakesh, Kr.
Mukul Rakesh, Shanti Prakash, Prachi

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 374(2) - Appeal
against conviction and Sentence - Scope
of hearing - Principle explained - Held,
the First Appellate Court while deciding
the criminal appeal on facts must apply its
independent mind and record its own
findings
on
the
basis
of
its
own
assessment, the evidence is appreciated
for
our
independent
assessment
of
evidence and recording the findings if we
reach to the findings that the findings
recorded
by
the
trial
court
is
in
consonance of our findings, the appeal
could be dismissed and if two views are
possible after appreciation of the evidence
and one view is in favour of acquittal, the
appeal would be allowed or on the basis of
appreciation of evidence if we find that
trial
court
has
not
appreciated
the
evidence while recording the findings of
guilt and it is illegal, the appeal would be
allowed. (Para 24)
B. Criminal Law - First Information Report
- Delay, how far affects its authenticity -
Anjan Dasgupta's case relied upon - A
promptly lodged FIR reflects the first hand
account of what has actually happened,
and who was responsible for the offence
in question - Held, trial court has rightly
held that first information report was
lodged promptly which rules out any sort
of concoction and deliberation and it gives
assurance
regarding
the
truth
of
informant's version. (Para 25 and 26)
C. Criminal Law - First Information Report
- Omission of few facts, how far fatal for
prosecution - Held, certain omission like
non-mentioning of covering of the face by
Shyam Bihari by scarf and certain other
minor omissions in FIR does not go to the
root of the prosecution case, therefore,
that is not fatal. Moreover, the FIR cannot
be said to be an encyclopedia. It is not
expected that all the details must find in
FIR. Therefore, it will not affect the
prosecution case. (Para 29)
D. Criminal trial - Interested witness -
Reliability - Held, the ground that the
witness
being
a
close
relative
and
consequently being a partisan witness,
should not be
relied
upon, has no
substance - Dalip Singh's case relied
upon. (Para 37)
E. Criminal trial - Indian Penal Code,1860 -
Sections 302 - Murder - Injured witness -
St.ment of witnesses that the appellant
opened fire on the injured - Reliability -
Nothing came in his cross-examination
which makes his testimony unreliable -
Relevance - Held, the factum that accused
were identified in the light of lantern and in
the light of torch of the accused was not
challenged
in
the
cross-examination.
Therefore, the testimony of this witness
inspires confidence and is liable to be relied
on - Prosecution has proved its case beyond
reasonable doubt against the accusedappellants for offence punishable under
Sections 302/149, 307/149, 148, 323/149
and Section 449 I.P.C. The learned lower
court has rightly convicted and sentenced
the appellants. (Para 31 and 40)
Appeal dismissed. (E-1)
List of Cases cited:-
1. Majjal Vs St. of Har.; (2013) 6 SCC 798
2. Bakshish Ram & anr. Vs St. of Pun.; AIR 2013
SC 1484
3. Phula Singh Vs St. of H. P.; AIR 2014 SC
1256
4. Anjan Dasgupta Vs St. of W. B. & ors.; (2017)
SCC 2022
5. Criminal Appeal Nos. 525-526 of 2012; Jai
Prakash Singh Vs St. of Bihar & anr. decided on
14 March, 2012
6. Gangadhar Behera & ors. Vs St. of Orissa;
(2002) 8 SCC
578 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Dalip Singh & ors.. Vs The St. of Punj.; (AIR
1953 SC 364)
8. Guli Chand & ors.. Vs St. of Raj.; (1974 (3)
SCC 698
9. Vadivelu Thevar Vs St. of Madras; AIR 1957
SC 614
10. Masalti & ors.. Vs St. of U.P.; AIR 1965 SC
202
11. Sandu Saran Singh Vs St. of U. P. & ors.;
(2016) 4 SCC 357

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Ms. Prachi Trivedi, learned
counsel for applicant No.3, Sri Dharm
Trivedi, learned counsel for appellant No.4
as well as Sri Umesh Chandra Verma,
learned Additional Government Advocate
for State of U.P. and perused the record.

2. This criminal appeal is preferred on
behalf of the appellants (1) Ram Shankar,
(2) Gokaran Shukla, (3) Jageshwar, (4)
Sabit, and (5) Mukaddar under Section 374
(2) Cr.P.C. against the impugned judgment
of conviction and order of sentence dated
27.06.1984 passed by learned Additional
Sessions Judge, Court No.1, Lakhimpur
Kheri in Sessions Trial No. 168 of 1984
(State of U.P. Vs. Ram Shanker and 4
others), arising out of Case Crime No. 146
of
1981,
Police
Station-
Dhaurahra,
District- Lakhimpur Kheri, whereby the
appellants were convicted for offence
punishable under Section 302/149 Indian
Penal Code (in short "I.P.C") and were
sentenced to undergo imprisonment for life,
they were also convicted for offence
punishable under Section 148 I.P.C. and
were
sentenced
to
undergo
rigorous
imprisonment for one year, also convicted
for offence punishable under Section
307/149 I.P.C. and sentenced to undergo
rigorous imprisonment for seven years and
they were also convicted for offence
punishable under Section 449 I.P.C. and
were
sentenced
to
undergo
rigorous
imprisonment for eight years, further
convicted for offence punishable under
Section 323/149 I.P.C. and were sentenced
to undergo rigorous imprisonment for one
month. It was further directed that all the
sentences shall run concurrently.

3. During the pendency of appeal,
appellant no.(1) Ram Shankar, (2) Gokaran
Shukla and (5) Mukaddar died and the
appeal in respect of them was dismissed as
abated vide order dated 29.09.2021, now
the present appeal survives only against
appellant no. (3) Jageshwar and (4) Sabit.

4. In brief, the prosecution case is that
informant Devi Charan Mishra (PW-1) son
of Ram Swaroop Mishra, resident of village
Shekhan Purwa, Police Station- Dhaurahra,
District- Lakhimpur Kheri lodged the first
information report on 06.07.1981 at 7.00
a.m. at Police Station- Dhaurahra alleging
therein that he was living with his cousin
Lalji Prasad son of Santram in the same
house. His second marriage took place
about 12 years ago with Vidya, daughter of
Babu Ram Shukla, resident of village
Murasa, Police Station- Mitauli. His wife
Vidya was a lady of easy virtue on account
of which his relation with her was not good
and she parted company with him and was
living at her paternal house. It is also
alleged that due to this his father-in-law,
brother-in-law Ram Shankar and others had
suspicion that Lalji Prasad and his wife
Smt. Ram Shree were behind all this
trouble so that they made repeated
unsuccessful attempt to persuade Devi
Charan to separate himself from Lalji
Prasad. One year before the incident, his
wife had also exhorted that as long as Lalji
and his wife would not die or be killed she
1 All. Ram Shankar & Ors. Vs. The State of U.P.
579
would not come to her matrimonial home.
His wife Vidya had developed illicit
relation with accused Sabit and Mukaddar,
who were living in the neighborhood, and
on account of this unholy activity the
aforesaid accused had exchange of words
with Lalji Prasad. In the night of
5/6.07.1981 he and his cousin Lalji Prasad
were sleeping in the courtyard after taking
dinner and his sister-in-law (Bhauji) Ram
Shree, niece Shravan Kumari and nephew
Dinesh Kumar were sleeping on the terrace
and his another brother Shrikant and his
servant Arjun Lodh (PW-3) were sleeping
in the western side of the same courtyard.
A lantern (lamp) was burning in the
courtyard (ANGAN). In the mid of night,
informant woke up and sat down on
CHAUKI and at around 12:30 hrs. in the
night, 5-6 persons infiltrated from the north
side of TATIHAR (thatched) gate flashing
torches, thereupon, informant accosted
them, then the miscreants commanded him
to sit quietly. Then he saw in the flashes of
torch that his brother-in-law Ram Shankar
armed with gun, Shyam Bihari Shukla
armed with country made Addhi and his
brother-in-law's son Jageshwar armed with
stick, Sabit armed with spade, Mukaddar
armed with stick. Accused Sabit and
Mukaddar caught hold of him but as soon
as his brother-in-law and Shyam Bihari
said not to kill him otherwise his sister will
become a widow, they had to kill Lalji
Prasad and his wife. On his alarm, Shrikant
and Arjun Lodh woke up and Basudev
flashed torch from adjacent terrace, then
Sabit exclaimed that Lalji Prasad was
sleeping nearby on which Ram Shankar
and Shyam Bihari opened fire on Lalji
Prasad resultantly he died, then Sabit said
that wife of Lalji Prasad is sleeping on the
terrace, thereupon, all the miscreants run
towards the terrace. Informant and Arjun
Lodh also went on the terrace to save his
sister-in-law
(BHABHI),
then
Ram
Shankar opened fire on his BHABHI. The
informant
Debi
Charan
hugged
his
BHABHI then Jageshwar and Mukaddar
assaulted with stick as a result of which he,
his BHABHI Ram Shree and niece
sustained injury. Meanwhile, Sunder Lal
Tiwari and many other people of the village
came armed with stick, flashing torches and
raised alarm. Then all the accused persons
fled towards north while firing. They
identified the accused persons clearly and
by their names also. His brother's dead
body was lying at home and the injured
were also at home. He prayed that his first
information report be lodged and legal
action be taken against accused persons.

5. Head Constable Raghunath Singh
scribed the chick report (Exhibit-Ka-5) on
06.07.1981 at 7 a.m. at Police Station-
Dhaurahra on the basis of Tehir (ExhibitKa-1) of informant and by making
necessary entry in GD vide report No. 9 at
7 a.m. on 06.07.1981, registered Case
Crime No. 146 under Sections 147, 148,
149, 449, 302 I.P.C. at Police Station-
Dhaurahra.

6. Investigation of the case was
entrusted to Sub-Inspector Sardar Singh.
He copied the chick report and GD
registering the case in the case diary and
recorded the statement of Head Constable
Raghunath Singh, scriber of the chick and
GD, on 06.07.1981. Sub-Inspector Sardar
Singh along with Sub-Inspector Irshad,
Constable Ram Prakash, Constable Ragini,
Constable Gayatri Prasad Yadav and
Constable Uday Narayan proceeded for the
place
of
occurrence
thereafter.
He
appointed
Shrikanth,
Basudev,
Sri
Krishna,Vansh Gopal and Parashuram as
witnesses of the Panchayatnama. The dead
body of the deceased Lalji Prasad was
580 INDIAN LAW REPORTS ALLAHABAD SERIES
found lying in a room of the house of
informant. The head of the dead body was
towards South and the foot was towards
North. The elbow was found on side of
dead body. The fingers were found bend.
Eyes were opened and mouth was closed.
Blood stained Janeu, Kurta and Dhoti were
found on the body of deceased. The
matting (Kathari) and cot were found blood
stained. Blood stained firearm injury was
found on the left side of the chest. Injury
with blood-stain was also found on the
right side of the chest. The Panch witnesses
opined that deceased died due to injury and
for ascertaining the exact cause of death
postmortem of the dead body is needed.
Sub-Inspector Sardar Singh prepared the
Panchayatnama (Exhibit-Ka-7), photo nash
(Exhibit-Ka-8), Challan lash (Exhibit-Ka9), sample seal (Exhibit-Ka-10), letter to
CMO (Exhibit-Ka-11) and sent the dead
body for postmortem examination by
Constable Ram Prakash (PW-4) and village
Chowkidar Kunj Bihari. He also took plain
soil and blood stained soil from the place of
occurrence and sealed them into containers.
He also took blood stained towel, piece of
matting, piece of rope of cot and sealed
them. He further took a used old lady's
Dhoti and sealed it. He took four empty
cartridges (red in colour) and two tickles of
cartridge and sealed it. The investigation of
the case was later on undertaken by Station
Officer Sub-Inspector K.D. Singh (PW-5).
On 06.07.1981 he recorded the statement of
informant Debi Charan (PW-1) who
supported the prosecution case, inspected
the place of occurrence at the instance of
Debi Charan and prepared the site-plan
(Exhibit-Ka-13).
On
07.07.1981
SubInspector
K.D.
Singh
recorded
the
statement of eyewitness Shrikant, Arjun
Lodh (PW-3), Smt. Ram Shree (PW-2),
Shravan Kumari, daughter of the deceased.

7 . Injured Shravan Kumari, daughter
of Lalji, aged about 14 years was medically
examined by Dr. R.P. Rathore, Medical
Officer, in-Charge Primary Health Center,
Dhaurahra on 06.07.1981 at 02:45 p.m. At
the time of medical examination, following
injuries were found on her body:

"(i). Contusion 5 cm x 4 cm on
the middle of the forehead.

(ii) C/o pain both buttocks."

Dr Rathore prepared the injury
report in his own handwriting (Exhibit-Ka2) and had identified the thumb impression
RTI of Sharvan Kumari.

8. On the same day at 03:00 p.m. he
also examined Ram Shree, wife of Lalji
Prasad, aged about 40 years. Following
injuries were found on her body:

"(i) contusion 5 cm x 4 cm on
back of left forearm, 4 cm below left elbow,

(ii) abrasion 4 cm x 2 cm on the
back of left ankle,

(iii) contusion 7.5 cm x 2.5 cm on
the front of left knee,

(iv) gunshot wound of entry 8 cm
x 4 cm x muscle deep on the inner and
lower quadrant of left buttock extending
upto vulva, charring and tattooing present,
and

(v) gunshot wound of entry 5 cm x
3 cm x muscle deep on the lower and inner
quadrant of right buttock, charring and
tattooing present."

Dr. Rathore prepared the injury report
of Ram Shree (Exhibit-Ka-3) in his own
1 All. Ram Shankar & Ors. Vs. The State of U.P.
581
handwriting. He also identified the RTI of
Ram Shree on the injury report.

9. Dr. R.P. Rathore on the same day at
3:15 p.m. also medically examined Debi
Charan aged about 30 years. At the time of
medical examination, following injuries were
found on his body:

"(i) contusion 4.5 cm x 1 cm on the
upper face right angle, and

(ii) contusion with abrasion 10 cm x
1.5 cm."

10. Dr R.P. Rathore prepared the injury
report of injured Debi Charan (Exhibit-Ka-4)
in his own handwriting. He also identified the
RTI of Debi Charan.

11. The postmortem of the deceased
Lalji Prasad was conducted by Dr. Kamlesh
Kumar (PW-6) on 07.07.1981 at 2:40 p.m. At
the time of post-mortem examination, the age
of the deceased was found to be 55 years. The
deceased was found having average body
built. Rigor mortis passed off from upper parts
and present in the lower parts. Post-mortem
staining was found present over back. Body of
the deceased was found distended. Blister
present all over body. Skin peeled off at
certain places. Eyes were found opened.
Following ante-mortem injuries were found on
the body of the deceased Lalji Prasad:

"(i) gunshot wound of entry 9 cm x 5
cm x chest cavity deep over front of upper part
of left side chest just below inner end of collar
bone. Blackening and tattooing were found
present around the wound, margins were
irregular, everted. Clotted blood present in the
wound.

(ii) gunshot wound of exit 11 cm x
7 cm x chest cavity deep over front of left
side chest and shoulder, 2 cm to the left of
injury no.1. Margins irregular, everted.
Clotted blood present.

Injury No. 1 is communicating
with injury No. 2 while track of wounds
contains clotted blood, bone fragments
from broken ribs and extensive laceration
of muscles, vessels and nerves as found on
dissection of wounds 1st to 6th ribs of left
side found fractured into multiple pieces.
75 small irregular metallic shots found
embedded in the posterior muscle of left
side axila muscle of inner side of left arm,
shoulder joint, muscle of arm on back
portion of shoulder and arm and taken out
the injuries and muscles in which shots
were embedded contains clotted blood.

(iii) penetrating wound 4 cm x 2
cm x chest cavity deep over front of upper
part of left side chest, 3 cm below right
collar bone, elliptical in shape, margins
clear-cut
sharp,
clotted blood
found
present."

12. Doctor opined that the deceased
died due to shock and hemorrhage as a
result of ante-mortem injuries at about one
and a half day before. Dr. Kamlesh Kumar
(PW-6) prepared the post-mortem report
(Exhibit-Ka-16) in his own handwriting.
He handed over one sealed bundle
containing Dhoti-1, Kurta-1, Janeu-1, all
blood stained to constable who took the
dead body for post-mortem. He also sealed
one envelope containing 75 small metallic
shots (pellets) recovered from the body of
the deceased and sent it to S.P., Kheri.

13. On 17.07.1981, the Investigating
Officer came to know that accused
Jageshwar and Ram Shankar surrendered in
the court of Additional Munsif Magistrate,
Court No.8 and accused Shyam Bihari,
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Gokaran,
Mukaddar
and
Sabit
were
arrested and sent to the jail. On 05.08.1981,
he recorded the statement of Basudev
Tiwari.
Later
on,
investigation
was
transferred to the Station Officer, SubInspector Laeeq Ahmed. He recorded the
statement of witnesses Sunder Lal Tiwari
and Babu Ram Tiwari on 01.03.1982.
Investigating Officer also recorded the
statement of Ram Shankar and Shyam
Bihari wherein they denied the incident.
The Investigating Officer recorded the
statement
of
witnesses
of
the
Panchayatnama, namely, Vansh Gopal,
Shrikanth, Parashuram and Sri Krishna on
20.05.1982 and also recorded the statement
of Dinesh Kumar. The Investigating
Officer after investigation submitted the
charge-sheet against the accused Sabit and
Mukaddar (Exhibit-Ka-14) and another
charge-sheet against accused Ram Shankar,
Gokaran Shukla and Jageshwar (ExhibitKa-15) in Case Crime No. 146 of 1981,
under Sections 147, 148, 149, 302, 449
I.P.C.

14. The cognizance of offence on the
basis of aforesaid charge-sheet was taken
on 18.06.1982 by Additional Judicial
Magistrate, Lakhimpur Kheri and after
complying the provision of Section 207
Cr.P.C. the case was committed to the
Court of Sessions for trial. The charges for
offence punishable under Section 148
I.P.C., 302 I.P.C. read with 149 I.P.C., 307
I.P.C. read with Section 149, 323 read with
149, and section 449 I.P.C. were framed
against Ram Shankar, Gokaran Shukla,
Jageshwar, Sabit and Mukaddar. The
accused-appellants pleaded not guilty and
claimed to be tried.

15. In order to prove its case,
prosecution has examined informant Debi
Charan (injured) as PW-1 who proved the
Tehrir report (Exhibit-Ka-1). Witness Ram
Shree, widow of deceased Lalji Prasad, as
PW-2 and Arjun Lodh as PW-3, alleged
eyewitness of the occurrence. As formal
witness,
prosecution
has
examined
Constable Ram Prakash who carried the
dead body for postmortem as PW-4,
Investigating Officer K.D. Singh as PW5.
The Investigating Officer proved the steps
taken in the investigation and the check
report (Exhibit-Ka-5), GD registering the
case (Exhibit-Ka-6) by secondary evidence.
He also proved that Panchayatnama of the
deceased was done in his presence by S.I.
Sardar
Singh
and
proved
the
Panchayatnama (Exhibit-Ka-7), photo lash
(Exhibit-Ka-8), challan lash (Exhibit-Ka9), sample sale (Exhibit-Ka-10), letter to
CMO for post-mortem (Exhibit-Ka-11)
which was prepared in the handwriting of
Sub-Inspector Sardar Singh. He also
proved that from the place of occurrence
Sub-Inspector Sardar Singh had taken in
possession a blood-stained bed sheet,
Towel and piece of matting (Kathari), piece
of rope of cot (baan) and plain soil and
blood stained soil, blood stained lady's
Dhoti, four empty cartridges and two
ticklies and sealed them separately. He
produced the sealed packet in the court
from which a piece of Kathari and a towel
that was alleged to have been found and
taken in possession from the place of
occurrence by S.I. Sardar Singh and the
sealed bundle was exhibited as Material
Exhibit-1. He also produced the sealed
container having plain soil and bloodstained soil as Material Exhibits- 2 & 3. He
also produced a sealed container having
four empty cartridges and two ticklies as
Material Exhibit-4 before the Court below.
He also proved that these articles were
taken in possessed by Sub-Inspector Sardar
Singh from the place of occurrence. He
also proved the site-plan (Exhibit-Ka-13).
1 All. Ram Shankar & Ors. Vs. The State of U.P.
583
He also proved that he was transferred from
Police Station Dhaurahra and later on
investigation was conducted by SubInspector Laeeq Ahmed who had filed
charge-sheet (Exhibit-Ka-14) and (ExhibitKa-15) against the accused persons. The
prosecution has examined Dr. Kamlesh
Kumar, Medical Officer to prove the postmortem report (Exhibit-Ka-6). He also
produced sealed packet from which 75
shots (pellets) were found and stated that
these metallic shots were taken out from
the body of the deceased. He also proved a
sealed bundle from which blood stained
Janeu, Kurta and Dhoti were found and it
was exhibited as Material Exhibit-6. The
genuineness of medical report of Shravan
Kumari
(Exhibit-Ka-2),
Ram
Shree
(Exhibit-Ka-3) and Debi Charan (ExhibitKa-4) was admitted by learned counsel for
the accused-appellant before the Court
below.

16. The statement of the accusedappellant under Section 313 Cr.P.C. was
recorded by learned Court below wherein
they denied the prosecution case and stated
that they were falsely implicated due to
enmity with police. They stated that they
have enmity with Basudev regarding land
and dispute took place. They did not
produce any oral evidence in their defence
and filed following documents in their
defence and closed their evidence:

"(i). copy of remand application
dated 05.07.1981 moved by Investigating
Officer in the court of Munsif Magistrate
East in relation to Crime No. 117 of 1981,
Police Station- Beniganj, District- Hardoi,
under Section 60 Excise Act (Exhibit-Kha1).

(ii)
copy
of
order
dated
12.04.1983 passed by Munsif Magistrate
East, Hardoi in Case Crime No. 117 of
1981, under Section 60 Excise Act, Police
Station- Beniganj, District Hardoi (ExhibitKha-2).

(iii) copy of charge-sheet dated
01.08.1981 (State vs Shyam Bihari) under
Section 60 Excise Act in Case Crime No.
117 of 1981, Police Station- Beniganj,
District Hardoi (Exhibit-Kha-3).

(iv) copy of first information
report dated 04.07.1981 registered as Case
Crime No. 117 of 1981 against accused
Shyam Bihari under Section 60 of Excise
Act (Exhibit-Kha-4).

(v) copy of bail application dated
08.07.1981 moved on behalf of accused
Shyam Bihari in Case Crime No. 117 of
1981 under Section 60 Excise Act (ExhibitKha-5).

(vi) copy of bail order passed by
the Munsif East, Hardoi in Case Crime No.
117 of 1981 under Section 60 Excise Act,
Police Station- Beniganj, Hardoi (ExhibitKha-6).

(vii) copy of order of remand
dated 08.07.1981 in Case Crime No. 117 of
1981 under Section 60 Excise Act, Police
Station- Beniganj, Hardoi (Exhibit-Kha-7).

(viii) copy of surety bond dated
08.07.1981 filed by surety Raja Baksh in
Case Crime No. 117 of 1981 under Section
60 Excise Act, Police Station- Beniganj,
Hardoi (Exhibit-Kha-8)."

17. Learned lower court held that
after close scrutiny of the circumstances
and the evidence adduced the charges
against the accused are established beyond
reasonable doubt. It was also held that there
was no dispute that Lalji Prasad was
584 INDIAN LAW REPORTS ALLAHABAD SERIES
murdered. On this point there is more than
sufficient evidence, (Exhibit-Ka-1) the
Tehrir corroborates this fact. The evidence
and paper relating to the inquest proceeding
give utmost support to it because doctors
found gunshot wounds of entry and exit in
the chest communicating with each other.
Ribs were found broken. Muscles, vessels,
and nerves also extremely lacerated and 75
small irregular metallic shots were found
embedded in the pectoral muscle left side,
axilla muscle of inner side of left arm,
shoulder joint, muscle of arm and taken
out. The wound and muscles in which shots
were embedded contains clotted blood.
PW-6 Dr. Kamlesh Kumar proved the postmortem report (Exhibit-Ka-16) and proved
the antemortem injuries of the deceased
found at the time of post-mortem. He has
also proved that punctured wound on the
chest of deceased. It is further held by
learned court below that witness Debi
Charan PW-1, Ram Shree PW-2 and Arjun
Lodh PW-3 have proved the murder of the
deceased Lalji Prasad. Sub-Inspector K.D.
Singh PW-5 proved the formalities of the
investigation. Constable Ram Prakash had
taken the dead body in sealed condition to
mortuary for post-mortem examination.
The defence suggested the witnesses of the
fact that dacoity was committed at the
house of complainant and in dacoity the
murder was committed. In this way murder
of Lalji at the given time and place is
asserted by the defence also. Blood stained
articles were also found on the spot. Blood
stained lady's dhoti and empty cartridges
were also found at the place of occurrence.
The assessment of the time of death as
stated by the doctor is also corresponds
with the manner in which the occurrence
has taken place and the time of incident.
Learned court below recorded the finding
that all appellants, namely, Ram Shankar,
Gokaran Shukla, Jageshwar, Sabit and
Mukaddar have committed murder of the
deceased Lalji Prasad, attempted murder of
Ram Shree, and voluntarily assaulted and
caused
simple
injury
to
injured
in
furtherance of common object, unlawful
assembly and also committed the offence
of rioting armed with deadly weapons and
has committed house trespass in order to
commit offence punishable with death and
held them guilty for offence punishable
under Sections 148, 302 read with Section
149 I.P.C., 307 read with Section 149
I.P.C., 323 read with Section 149 I.P.C. and
449 I.P.C. and each were sentenced to
undergo rigorous imprisonment for a term
of one year for offence punishable under
Section 148 I.P.C., imprisonment for life
for offence punishable under Section 302
read with Section 149 I.P.C., rigorous
imprisonment for a term of seven years for
offence punishable under Section 307 read
with Section 149 I.P.C., to undergo
rigorous imprisonment for one month for
offence punishable under Section 323 read
with Section 149 I.P.C., and to undergo
imprisonment for a term of eight years for
offence punishable under Section 449
I.P.C. It was directed that all the sentences
shall run concurrently. Feeling aggrieved
by it, appellants/convicts Ram Shankar,
Gokaran Shukla, Jageshwar, Sabit and
Mukaddar have preferred this appeal under
Section 374 (2) Cr.P.C against conviction
and sentence awarded by learned lower
court.

18. Learned counsel appearing for the
appellants has submitted that it is admitted
position that there is prior enmity among
the deceased and appellants. It is also an
admitted position that the witnesses of fact,
namely, Debi Charan PW-1, Ram Shree
PW-2 are closely related to the deceased
and witness Arjun Lodh PW-3 is the
servant of brother of the deceased Shrikant,
1 All. Ram Shankar & Ors. Vs. The State of U.P.
585
and therefore, they are most interested
witnesses and no reliance can placed on
their testimony. It is also submitted that the
first information report is ante-timed and is
lodged
after
due
deliberation
and
consultation
to
falsely
implicate
the
appellants/convicts after delay of about six
and a half hours of the incident. It is also
submitted
that
since
no
independent
witness
has
been
examined
by
the
prosecution and only on the basis of
uncorroborated testimony of PW-1, PW-2
and PW-3, the conviction of the appellants
is not warranted. It is further submitted that
during autopsy, the doctor has found the
stomach of the deceased empty. It is also
submitted that the empty stomach suggests
that the murder of the deceased has taken
place in the early morning and not in the
midnight. It is also submitted that the
occurrence is alleged to have taken place in
the midnight, whereas the first information
report has been lodged at 7:00 a.m. in the
morning after a delay of about six and a
half hours. The delay has not been
explained by the prosecution and in above
circumstances non-explanation of the delay
leads
to
conclusion
that
the
first
information report is concocted. In view of
the aforesaid facts, it is submitted by
learned counsel for the appellants that the
aforesaid finding of the doctor goes to
show that the deceased had died about 10
hours after he took his meal. Accordingly,
it is submitted that the time of death could
not have been at 12:30 a.m. in night, rather
the same might have taken place at 5-6 a.m.
in the early morning. Accordingly, the
evidence of PWs. 1, 2 and 3 are not reliable
and the same cannot become the basis for
conviction of the appellants. It is further
submitted that PW-1 Debi Charan in his
statement has admitted that Investigating
Officer
has
not
prepared
any
supurdiginama regarding lantern. It is
further
submitted
that
the
statement
regarding availability of light is not
mentioned in the statement under Section
161 Cr.P.C. In the statement before the
court, witnesses have stated that there was
light of torches of the appellants and light
of lantern was also there. Investigating
Officer K.D. Singh (PW-5) has deposed
that while giving the statement under 161
Cr.P.C. Ram Shree stated that she was
weeping badly and could not tell other
facts. It is further submitted that in above
circumstances it is not established that
there was any source of light as to
recognize the appellants/convicts. It is also
submitted that statement of the witnesses
was recorded by the Investigating Officer
with delay, therefore, no reliance can be
placed on the testimony of prosecution
witnesses. It is also submitted that postmortem examination of the deceased and
medical examination of the injured were
conducted with delay which cast doubt on
the prosecution case. It is further submitted
that Investigating Officer had not prepared
any Supurdginama of lantern and torches. It
is further submitted that for the first time in
the court the witnesses deposed that Shyam
Bihari had covered his face and his face
could not be seen by them. This fact is not
mentioned in the Tehrir (Exhibit-Ka-1) and
in the statement of the witnesses recorded
under Section 161 Cr.P.C. It is further
submitted that appellants/convicts Shyam
Bihari was arrested on 04.07.1981 in
Hardoi under Section 60 Excise Act and
remained in jail to 08.07.1981 and Ram
Shankar was at police duty. It is further
submitted that in above circumstances, it is
proved that Shyam Bihari and Ram
Shankar were not present at the place of
occurrence. Shyam Bihari was detained in
jail and appellant Ram Shankar was on
duty at the place of his posting. It is further
submitted that learned lower court has not
586 INDIAN LAW REPORTS ALLAHABAD SERIES
considered
the
documentary
evidence
produced by defence and has not properly
appreciated the evidence on record in right
prospective. It is further submitted that
there is no mention of injury by Ballam in
Tehrir (Exhibit-Ka-1), but in the statement
under Section 161 Cr.P.C. the complainant
and witnesses have stated that Sabit has
given Ballam blow to the deceased. It is
further
contended
that
this
was
an
improvement made after seeing the postmortem report, therefore, the statement of
the witnesses are not reliable. It is further
submitted by learned counsel for the
appellants that admittedly the occurrence
took place in the night but there is nothing
on record to show that there was any source
of light for identification. Accordingly, it is
submitted that in the absence of any source
of identification of appellants/convicts, as
such claim of PWs 1, 2 and 3 appears to be
doubtful. It is also submitted that the
prosecution has not been able to bring
home the charges levelled against the
appellants beyond the shadow of all
reasonable
doubts.
Therefore,
the
impugned judgment of learned court below
cannot be sustained in this appeal.

19. On the other hand, learned
Additional
Government
Advocate
has
submitted that it is well settled that only
because the witnesses are related to each
other, their evidence cannot be brushed
aside. The law only demands that their
evidences shall be scrutinized with all care
and caution. It is submitted that the court
below, keeping in view the aforesaid law,
has carefully evaluated the evidence of
PWs 1, 2 and 3 and come to the conclusion
that their evidences are wholly reliable and
acceptable. It is further submitted that on
careful scrutiny of the evidence of PWs 1, 2
and 3, it is clear that their statement is
consistent with regard to the genesis of
occurrence, manner of occurrence, place of
occurrence, time of occurrence and during
cross-examination the defence has not been
able to elicit any material from their
evidence on which their credibility can be
impeached. It is further submitted that only
because of empty stomach of the deceased
it cannot be said that the occurrence took
place at later point of time than the time
stated by the witnesses PWs 1, 2 and 3. It is
submitted
that
as
per
the
Medical
Jurisprudence, the process of digestion in
normal, healthy person may completed
within three hours and passed to intestine.
It is submitted that admittedly in the instant
case, the post-mortem was conducted on
07.07.1981 at about 2:40 p.m. and fecal
matter was found in small and large
intestine, thus, the food consumed by the
deceased might have been digested during
that period and it has passed to small and
large intestine. In above circumstances, the
aforesaid submission of learned counsel for
the appellants appears to be misconceived.
It is further submitted that the Doctor (PW6) has found huge collection of blood and
blood clots within the chest cavity. It is
further submitted that it has come in
evidence that deceased was immediately
removed from the place of occurrence and
taken to hospital on the motorcycle. It is
also submitted that the occurrence took
place on 05/06.07.1981 in the night at
about 12.30 a.m., thus it is apparent that the
occurrence took place during summer, and
therefore, the deceased must have been
wearing scarf clothes apart from other
clothes. Accordingly, it is submitted that
because of the aforesaid circumstance, the
blood had fallen on the ground, cot, Kathri
and baan and the Investigating Officer has
collected the same from the place of
occurrence. Investigating Officer has also
collected four empty cartridges and two
ticklies near from the place of occurrence.
1 All. Ram Shankar & Ors. Vs. The State of U.P.
587
Under the aforesaid circumstance, it cannot
be said that the occurrence might had not
taken place at the place of occurrence as
claimed by the prosecution witnesses. It is
further submitted that it has come in
evidence of PWs 1, 2, 3 and 4 that the
occurrence also took place at terrace of the
house of the complainant. It is also
submitted that at the time of occurrence,
the deceased was sleeping in courtyard. It
has also come in evidence that at that time
5 to 6 persons entered in the house from
thatched door to the courtyard where
informant PW-1 along with his brother
Shrikant, Arjun Lodh (PW-3) and Lalji
Prasad were sleeping and lantern was
burning there. It is further submitted that in
courtyard and at terrace they saw the
accused committing the offence in the light
of torches of appellants/convicts, lantern
and light of torch of neighbours. It is
further
submitted
that
the
aforesaid
circumstance shows that lantern was
burning in the courtyard. Accordingly, it is
submitted
that
since
the
deceased,
informant and Shrikant were residing in the
same house, therefore, in the said source of
light the appellants/convicts can easily be
identified by PWs 1, 2 and 3. It is further
submitted that the pellets which were taken
out from the body of the deceased were
also
produced
in
the
court
below,
consequently in view of the fact that the
direct ocular evidence coupled with the
medical
evidence fully supports and
establishes the case of prosecution. It is
further submitted that learned court below
has
rightly held
that
the
document
produced by appellants/convicts could not
be related to Shyam Bihari. Moreover,
appellant/convict Ram Shankar, against
whom appeal has been dismissed as abated,
could not prove that he was on duty at the
place of his posting, and accordingly, it
cannot be said that surviving appellants
were falsely implicated. Accordingly, it is
submitted that there is no illegality or
irregularity in the judgment of the Court
below which may warrant any interference
by this Court.

20 . We have given thoughtful
consideration to the contentions raised on
behalf of the parties and have also gone
through the record.

21. First of all we find it necessary to
enumerate the principal and the procedure
governing the hearing of appeal against
conviction by First Appellate Court.
Hon'ble Apex Court in Majjal vs.