# Ram Sujan v. State of U.P. 416 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 3 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-06
- **Case number:** Criminal Appeal No. 3376 of 2010
- **Bench:** Siddharth, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sujan-v-state-of-u-p-416-indian-law-reports-allahabad-series-53093
- **Pages:** 27

## Headnote

Law
-
Common
object
-
Testimony
of
interested
witnesses
-
Unexplained delay in test identification
parade
-
Conviction
under
Sections
302/149, 148 IPC and 10/12 Dacoity
Affected
Area
Act
-
Marriage
party
attacked by assailants resulting in death
of six persons and injuries to others - FIR
initially lodged against unknown persons
- Prosecution story later evolved to
implicate
named
accused
through
St.ments
of
witnesses
and
test
identification - Delay in recording witness
St.ments and holding of TIP remained
unexplained - TIP held after more than
four months from incident - Validity -
Delay of over four months - Not explained
satisfactorily
-
Identification
after
accused were shown to witnesses during
custody
and
transit
-
Not
reliable
evidence for conviction Allegations of
witness
tutoring
and
improper
investigation
-
Trial
court
convicted
accused under multiple charges - High
Court
found
serious
discrepancies
in
prosecution case including non-disclosure
of names in initial stages, contradictions
in testimonies, delayed identification, and
lack of motive - Prosecution failed to
establish guilt beyond reasonable doubt -
Conviction
set
aside
and
appellants
acquitted. (Paras 52, 54, 56to 61, 66, and
67)

HELD:

The implication of the appellants has been made
on the basis of test identification parade
conducted after more than a month. The Apex
Court in the case of Rajesh Govind Jagesha Vs
St. of Maharastra AIR 2000 SC 160 has held that
where identification parade was conducted after
inordinate delay of five weeks from arrest of the
accused
and
there
was
no
trustworthy
explanation of delay, implication of the accused
on the basis of such test identification was not
justified and the accused was entitled to benefit
of doubt... (Para 52)

Facts which establish the identity of an accused
person are relevant under S. 9 of the Indian
Evidence Act. As a general rule, the substantive
evidence of a witness is a St.ment made in
court. The evidence of mere identification of the
accused person at the trial for the first time is
from its very nature inherently of a weak
character. The evidence in order to carry
conviction should ordinarily clarify as to how and
under what circumstances he came to pick out
the particular accused person and the details of
the part which the accused played in the crime
in question with reasonable particularity. The
purpose of a prior test identification, therefore,
seems to be to test and strengthen the
trustworthiness
of
that
evidence.
It
is
accordingly. considered a safe rule of prudence
to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity
of the accused who are strangers to them, in
the form of earlier identification proceeding.
There may, however, be exceptions to this
general rule, when, for example, the court is
impressed by a particular witness, on whose
testimony it can safely rely, without such or
other cor- roboration. The identification parades
belong to the

## Text

_Characters 0–39,983 of 89,410. This is a partial read: ask again with offset=39983 for what follows._

3 All. Ram Sujan Vs. State of U.P.
415
are directed to deposit Rs.50,000/-
fine before the court concerned, which will be
payable as compensation to Vimla Devi-PW-4
the wife of the deceased Shiv Narain and in
case of her death, the said amount will be paid
to her legal heirs to the satisfaction of trial
court.

90. Appeal stands partly allowed in
respect of appellants Devendra Kumar @
Jhunna and Avdhesh, as the sentence awarded
to them by trial court is quashed and they have
been dealt with under Section 15 of Juvenile
Justice (Care and Protection of Children) Act,
2000. Appeal is dismissed in respect of convict
Krishna Kumar @ Chuttan and Rajmun.

91. As conviction and sentence
passed by learned court below in respect of
accused Krishan Kumar alias Chuttan and
Rajmun is affirmed in present appeal by this
judgment and they have been enlarged on bail
during the pendency of appeal, they are
directed to surrender before the trial court to
serve the sentence awarded by court below in
impugned judgment within two weeks and in
case of their non-appearance the trial court
shall ensure their arrest by issuing appropriate
process against them, and on their appearance
they will be sent to jail custody for undergoing
the sentence as awarded by trial court and
affirmed by this Court.

92. Let a copy of this judgment be
sent to court below/ Session Judge, as the case
may be for necessary compliance.

93. This court appreciates the
valuable assistance and hard work which has
been put in by Sri Ajay Kumar Pandey,
learned Amicus Curiae, we quantify his fee as
Rs.25,000/- which shall be paid to him by the
High
Court
Legal
Services Authority,
Allahabad High Court. Learned Registrar
General of the High Court will oversee the
payment.
CRIMINAL APPEAL No. - 2696 of 1981

Appellant :- Devendra Kumar @
Jhunna And Others
Respondent :- State of U.P.
Counsel for Appellant :- Ajay Kumar
Pandey,Arvind
Kumar
Tripathi,Ashish
Kumar,K.K. Srivastava,Roshan Khan,Satish
Trivedi
Counsel for Respondent :- Mayank
Bhushan Nath Tripathi
Hon'ble Siddhartha Varma,J.
Hon'ble
Ram
Manohar
Narayan
Mishra,J.
Criminal Misc. Correction Application
No.4 of 2025 :
Heard learned counsel for the parties. .
On the first page of the judgment dated
21.1.2025, the names of Hon'ble Judges i.e.
"Hon'ble Siddharth Varma, J." and "Hon'ble
Ram Manohar Narain Mishra, J." shall now be
read as "Hon'ble Siddhartha Varma, J." and
"Hon'ble Ram Manohar Narayan Mishra, J.".
The
application
is,
accordingly,
allowed.
----------
(2025) 3 ILRA 415
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2025

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 3376 of 2010
And
Criminal Appeal Nos. 3122 of 2010, 3168 of
2010 & 3507 of 2010

Ram Sujan ...Appellant
Versus
State of U.P. ...Respondent
416 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Kamleshwar Singh, Sri Raj Karan Yadav, Sri
Jitendra Singh

Counsel for the Respondent:
G.A.

Criminal
Law
-
Common
object
-
Testimony
of
interested
witnesses
-
Unexplained delay in test identification
parade
-
Conviction
under
Sections
302/149, 148 IPC and 10/12 Dacoity
Affected
Area
Act
-
Marriage
party
attacked by assailants resulting in death
of six persons and injuries to others - FIR
initially lodged against unknown persons
- Prosecution story later evolved to
implicate
named
accused
through
St.ments
of
witnesses
and
test
identification - Delay in recording witness
St.ments and holding of TIP remained
unexplained - TIP held after more than
four months from incident - Validity -
Delay of over four months - Not explained
satisfactorily
-
Identification
after
accused were shown to witnesses during
custody
and
transit
-
Not
reliable
evidence for conviction Allegations of
witness
tutoring
and
improper
investigation
-
Trial
court
convicted
accused under multiple charges - High
Court
found
serious
discrepancies
in
prosecution case including non-disclosure
of names in initial stages, contradictions
in testimonies, delayed identification, and
lack of motive - Prosecution failed to
establish guilt beyond reasonable doubt -
Conviction
set
aside
and
appellants
acquitted. (Paras 52, 54, 56to 61, 66, and
67)

HELD:

The implication of the appellants has been made
on the basis of test identification parade
conducted after more than a month. The Apex
Court in the case of Rajesh Govind Jagesha Vs
St. of Maharastra AIR 2000 SC 160 has held that
where identification parade was conducted after
inordinate delay of five weeks from arrest of the
accused
and
there
was
no
trustworthy
explanation of delay, implication of the accused
on the basis of such test identification was not
justified and the accused was entitled to benefit
of doubt... (Para 52)

Facts which establish the identity of an accused
person are relevant under S. 9 of the Indian
Evidence Act. As a general rule, the substantive
evidence of a witness is a St.ment made in
court. The evidence of mere identification of the
accused person at the trial for the first time is
from its very nature inherently of a weak
character. The evidence in order to carry
conviction should ordinarily clarify as to how and
under what circumstances he came to pick out
the particular accused person and the details of
the part which the accused played in the crime
in question with reasonable particularity. The
purpose of a prior test identification, therefore,
seems to be to test and strengthen the
trustworthiness
of
that
evidence.
It
is
accordingly. considered a safe rule of prudence
to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity
of the accused who are strangers to them, in
the form of earlier identification proceeding.
There may, however, be exceptions to this
general rule, when, for example, the court is
impressed by a particular witness, on whose
testimony it can safely rely, without such or
other cor- roboration. The identification parades
belong to the investigation stage. They are
generally held during the course of investigation
with the primary object of enabling the
witnesses to identify persons concerned in the
offence, who were not previously known to
them. This serves to satisfy the investigating
officers of the bona fides of the prosecution
witnesses and also to furnish evidence to
corroborate
their
testimony
in
court.
Identification proceedings in their legal effect
amount simply to this: that certain persons are
brought to jail or some other place and make
St.ments either express or implied that certain
individuals whom they point out are persons
whom they recognise as having been concerned
in the crime. They do not constitute substantive
evidence.
These
parades
are
essentially
governed by s. 162, Cr. P.C. It is for this reason
that the identification parades in this case seem
to have been held under the supervision of a
Magistrate. Keeping in view the purpose of
identification parades the Magistrates holding
them are expected
to take all possible
precautions to eliminate any suspicion of
3 All. Ram Sujan Vs. State of U.P.
417
unfairness and to reduce the chance of
testimonial error. They must, therefore, take
intelligent interest in the proceedings, bearing in
mind two considerations : (i) that the life and
liberty of an accused may depend on their
vigilance and caution and (ii) that justice should
be done an the identification Those proceedings
should not make it impossible for the identifiers
who, after all, have, as a rule, only fleeting
glimpses of the person they are supposed to
identify. Generally speaking, the Magistrate must
make a note of every objection raised by an
accused at the time of identification and the
steps taken by them to ensure fairness to the
accused, so that the court which is to judge the
value of the identification evidence may take
them into consideration in the appreciation of
that evidence. The power to identify, it may be
kept in view, varies according to the power of
observation
and
memory
of
the
person
identifying and each case depends on its own
facts, but there are two factors which seems to
be of basic importance in the evaluation of
identification. The persons required to identify
an accused should have bad no, opportunity of
seeing him after the commission of the crime
and before identification and secondly that no
mistakes are made by them or the mistakes
made are negligible. The identification to be of
value should also be held without much delay.
The number of persons mixed up with the
accused should be reasonably large and their
bearing and general appearance not glaringly
dissimilar. The evidence as to identification
deserves, therefore, to be subjected to a close
and careful scrutiny by the Court. (Para 60)

The Apex Court in the case of Rajesh Govind
Jagesha vs St. Of Maharashtra, AIR 2000
SUPREME COURT 160 has held that the physical
appearance of the suspect produced for
identification parade should not be changed.
Where the suspect was having beard and long
hairs at the time of lodging of F.I.R. and no
person with beard and long hairs was included
in the parade, but the witness identified the
suspect even after his changed appearance, the
possibility of the witness having the seen the
said accused between the date of arrest and
test identification parade cannot be ruled out.
The Apex Court also held in this case that delay
in holding of such parade is fatal for the
prosecution where there is no justifiable reason
shown before the court justifying the delay.
Apex Court has also held that where the ocular
testimony of the witnesses is clear, cogent and
reliable, the questions of motive is of no
importance. (Para 61)

In view of the above consideration, we are of
the view that the prosecution has failed to prove
the
case
against
the
appellants
beyond
reasonable doubt. Since the recording of the
St.ments of the witnesses under section 161
Cr.P.C. to their St.ments recorded before court
none of the witnesses pointed out to any special
features of any of the accused. All the
witnesses saw the miscreants for a very short
while. Test identification parade of accused
took after 4 to 7 months. It cannot be said
with
certainity
that
the
witnesses
had
correctly identified the accused. In such
circumstances court should not have recoded
their conviction on the basis of such evidence.
(Para 67)

Appeals allowed. (E-14)

List of Cases cited:

1. Rajesh Govind Jagesha Vs St. of Mah. AIR
2000 SC 160

2. Asharfi & anr. Vs St. (Allahabad) of U.P. 1961
AIR (Allahabad) 153

3. Md. Sajjad @ Raju @ Salim Vs St. of W.B.
(Criminal Appeal No. 1953 of 2010)

(Delivered by Hon'ble Siddharth, J.)

2. The above noted criminal appeals
have been filed against the judgment and
order dated 20.04.2010 passed by Special
Judge, (Dacoity Affected Area) Act, Banda
in Special Sessions Trial No. 53 of 2023,
State vs. Anurag Mishra and Another;
Special Sessions Trial No. 74/2023, State
Vs. Ramji Vs. Another and Special
Sessions Trial No. 76/2003, State Vs.
Chhota @ Rajesh and Another, by which
appellants
have
been
convicted
and
sentenced
to
one
year's
rigorous
418 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment and Rs. 500/- fine under
Section 148 IPC and in default of payment
of fine to undergo two months additional
rigorous imprisonment. Appellants have
been further convicted under Section 302
IPC read with Section 149 IPC for life
imprisonment and Rs. 5,000/- fine and in
default of payment of fine to undergo one
year's additional rigorous imprisonment.

3. Prosecution case is that the
informant, Chhedi Lal Dwivedi, lodged the
F.I.R stating that on 22.01.2003 baarat of
son of his brother-in-law (sadhu), Santosh
@ Chota Gautam, had gone from District
Banda to District Panna in Madhya Pradesh
at the house of Vansh Pratap Pathak. On the
next day i.e., 23.01.2023 at about 7 a.m the
members of the marriage party, namely,
Chhedi Lal, the informant, Madan Mohan,
Niranjan Verma, Sudhir Kumar Pandey,
Ram Sundar Dwivedi, Shailendra Tiwari,
Neelu Dwivedi, left in one marshal car,
driven by Breznev Kumar @ Guddu, for
having darshan of Neelkanth Mahadev
Temple, in Kalinjar fort. In the second
marshal jeep behind the first jeep, Ashok
Kumar Tiwari, his daughter, Shweta,
Gandharva Singh Bundela, Puneet Tiwari,
Shikhar Pandey, aged about 3 years,
Kumari Rashi Pandey, aged about 5 years
and Kumari Puja Bundela, aged about 11
years, were accompanying them and it was
being driven by, Pintu Chaurasia. When
they were returning in two vehicles at about
09:00 a.m., they were surrounded by
miscreants and both the drivers stopped the
vehicles because of fear. All the persons
were directed to come out of vehicles and
to turn back and run. When the above noted
persons turned back and started running
upwards towards the hill, the miscreants
abused them and fired from behind from
rifles and guns. The informant in order to
save himself fell on the ground and came
rolling down from the height. Because of
firing of the miscreants Ram Sundar
Dwivedi, Shailendra @ Shalu, Ashok
Kumar Tiwari, Kumari Shweta Tiwari,
Gandharva @ Bundela, Sudhir Kumar
Pandey, died. Puneet Tiwari, Madan Mohan
and Breznev Kumar @ Guddu, suffered
injuries. The injured were taken to Banda
Hospital in two vehicles. Informant also
suffered injuries because of falling and
rolling from the height.

4. On the basis of aforesaid report
made to the police, F.I.R. was lodged
against 5 unknown accused. Investigating
officer conducted investigation of the case
and after completing the formalities, charge
sheet
was
submitted
against Anurag
Mishra, Ram Sujan, Ramji @ Ram Lal, Raj
Karan @ Pappu, Chota @ Rajpal and
Kuber Singh. The trial court framed
charges against them under Sections- 148,
307/149, 302/149, 504 IPC and 10/12
Dacoity Affected Area Act. All the accused
denied charges and sought trial.

5. In order to prove the prosecution
case, the prosecution produced P.W.-1,
informant, Chhedi Lal; P.W.-2, Breznev @
Guddan; P.W.-3, Niranjan; P.W.-4, Raja;
P.W.-5, Deendayal Sahu; P.W.-6, Constable
Bare Lal; P.W.-7, Dr. B.K. Saxena; P.W.-8,
Dr. Rauf Siddhiqui; P.W.-9, Inspector Tulsi
Ram Sakyavar; P.W.- 10, Sub-Inspector
Mahendra Singh Yadav; P.W.-11, SubInspector Ravindra Kumar Mishra; P.W.-
12, Constable 236 Bare Lal; P.W.-13,
Constable Shiv Bardan; P.W.-14, SubInspector Chandrabhan Singh; P.W.-15, Bal
Mukund Pandey; P.W.-16, Ram Narayan,
Joint Secretary Development Authority;
P.W.-17, S.D.M., Nandan Chakravarti;
P.W.-18, Head Constable Jagdish Babu and
P.W.-19,
Sub-Inspector,
Ram
Das
Chaudhary.
3 All. Ram Sujan Vs. State of U.P.
419
6. The statements of accused were
recorded under Section 313 Cr.P.C.,wherein
they pleaded innocence and stated they
have been implicated on account of enmity
in this case. Defence side produced, D.W.-
1,
Sita
Ram
Patel,
D.W.-2,
Suraj
Chaturvedi and P.W.-3, Mata Prasad Patel.

7. P.W.-1 in his examination-inchief repeated the contents of the F.I.R. He
further stated that after two vehicles were
stopped by the miscreant, one of them
came with the a rifle and pointed it towards
the vehicles. He asked everyone to come
out of the vehicles. The aforesaid miscreant
was Pappu Yadav present in court.
Thereafter four miscreants came armed
with double barrel guns and the others were
having single barrel guns. All of them
directed the informant and his companions
to run because they wanted to teach them
lesson. All started firing together and four
of them, namely, Pappu, Arun Mishra, Ram
Sujan and Vijay @ Chota, are present in
court. Six persons, namely, Ashok Tiwari,
Gandharva Singh Bundela, Shailendra @
Shalu, Ram Sunder Diwedi and Sudhir
Kumar Pandey and Kumari Shweta Tiwari,
died on the spot after suffering gun shot
injuries. Madan Mohan, Puneet, Breznev @
Guddan, were injured. Thereafter, Niranjan
Verma and the two drivers who were hiding
in the bushes came out took the deceased
and the injured to the hospital in the two
vehicles. Later, injured, Madan Mohan and
Puneet Tiwari also died during treatment.

8. P.W.-1, went to the police
station in a jeep without having any
registration number. In the way he met Raja
Gautam and Prabha Shankar Tripathi, who
had also come in the Barat. He informed
them about the incident. He took paper and
pen from the shop and Prabha Shankar
Tripathi and wrote the application. He
himself got the F.I.R. lodged on his oral
statement and identified accused in District
Jail, Banda. His injuries were medically
examined and his statement was recorded
by the investigating officer.

9. In cross-examination, P.W.-1,
stated that he is the eldest among his three
brothers. House of his parents-in-law is at
Simariya Kushal, near Attara. Santosh
Gautam is not his real brother-in-law
(sadhu). Ashok Kumar Tiwari, is the
brother-in-law (sala) of Santosh Gautam,
uncle (mama) of Sudheer Kumar and
brother-in-law (sala) of his elder brother,
Sudheer Kumar Pandey and resides in
Tindwari which is his nani's place. His
mother was a teacher and resided there.
Relationship of Sudheer Kumar Pandey
with his parents was normal. He expressed
ignorance about the father of Sudheer
keeping another woman and was unwilling
to give any property to Sudheer. He also
expressed ignorance about the fact that
Ashok Kumar Tiwari helped Sudheer.
There was minor dispute between Santosh
Gautam and his brother, Ashok Gautam.
Ashok Gautam, had not come in the
marriage at Kalinjer. He never informed
reasons of the incident to the investigating
officer nor he informed the Diwan of the
police station about the dispute between
Santosh Kumar Gautam and Ashok Kumar
Gautam. He only informed that some
dispute is going on between Santosh
Gautam and his brother, Ashok Kumar
Gautam. They are not at talking terms and
Ashok Kumar Gautam had not come in the
marriage. After lodging of the F.I.R. a
constable
took
him
for
medical
examination. He remained in the police
station for the whole day on 23.01.2003.
His statement under section 161 Cr.P.C was
recorded immediately. The programme of
going to have darshan at Neelkanth
420 INDIAN LAW REPORTS ALLAHABAD SERIES
Mahadev Temple was made on the earlier
night in the presence of witness, Gopal,
who accompanied them on a motorcycle.
He had reached the temple after 15-20
minutes alongwith his younger brother,
Virendra Pandey. They went inside the
temple with him and also came back with
him. He denied that Gopal came to the
temple after P.W.-1 and his companions had
taken Gopal and Virendra, both in the jeep
and they were also sitting in their jeep.
Gopal and Virendra, left on motorcycle
before them. When the jeeps were stopped
on the threat of the miscreants, Gopal was
not seen anywhere nor any other person
from public was there. In the report made at
police station, he had not mentioned the
names of Mithlesh Narayan Garg, Dinesh
Tiwari and his younger brother on account
of nervousness and fear. He had mentioned
the name of Kr. Dimpi Tiwari and Pushkar
@ Saurabh, but if it is not mentioned in
F.I.R, he could not tell the reason. He had
not mentioned in the F.I.R. that Mithlesh
Kumar Garg, was driver of the vehicle, but
stated that Breznev Kumar was driving the
same.
Whether
he
informed
the
investigating officer about this fact or not,
he is not clear. In examination-in-chief,
P.W.-1, stated that Kamlesh Garg was
driver the vehicle, but it was being driving
by Mithlesh Garg. Mithlesh Garg had
brought the injured from the place of
incident in his vehicle accompanied by
Niranjan Verma and Bindesh. From Baheri
to Kalinjer, vehicle no. U.P. 90 A 7133 was
brought by Breznev @ Guddan. Mithlesh
Kumar Garg is not related to him and
Niranjan Verma is not a driver. Mithlesh
Garg was his childhood friend, who stated
that he does not knows driving hence,
Breznev @ Guddan, drove the vehicle. In
the incident, Guddan, got injured and,
thereafter, Mithlesh Garg brought the
vehicle. The vehicle belongs to Lalji Kuril
and it was taken on hire by Breznev @
Guddan.
Permanent
driver,
Mithlesh
Narayan Garg, also accompanied Breznev,
who did not had driving license and he had
suffered injury on his right hand by fire
arm.

10. P.W.-1, did not informed the
investigating officer about accused (Pappu)
pointing gun for the first time rather he
stated that one miscreant armed with rifle
came out. He did not recognized, Pappu,
therefore, he could not tell his name. After
test identification parade, he came to know
that the name of the aforesaid miscreant
was Pappu. He could not tell when the
identification parade took place. He could
not identify Pappu in test identification
parade because patches were put on his
face at number of places. He recognized
him only when he saw him in court. Neelu,
identified Pappu who came to the court on
19.02.2024 and he told him that this
miscreant is Pappu. After test identification
parade, he came to know that these are the
accused involved in the accident. Pappu
Yadav, is involved in the incident. During
test identification parade names of the
accused were informed and it was told that
these persons are to be identified. He had
seen names of number of accused in
newspapers also. Santosh used to come his
village 3-4 years prior to his marriage. He
does not knows his elder brother, Ashok.
Murder of father of Santosh, namely, Lala
Ram Kishore, was committed by his real
Fufa, Buddh Vilash. Buddh Vilash, was
murdered by Ashok and Indraprakash got
injured
in
the
incident.
He
denied
knowledge that Ashok was punished with
the sentence of hanging till death in the
abvoe murder case and was pardoned on
mercy petition by the President of India. He
also denied knowledge that Ashok was
convicted for seven years imprisonment in
3 All. Ram Sujan Vs. State of U.P.
421
a case of dacoity in Madhya Pradesh and
has been released only about 2-3 years ago.
He also denied the knowledge that son of
the Buddh Vilash was a member of Santu
Gang. His brother, Madan Mohan, died in
the way. He had suffered scratches on his
right
knee
and
left
leg.
The
test
identification parade of the accused did not
took place together. On 14.05.200, Anurag
and Ram Sujan, were identified and on
05.07.2003
Vijay
and
Pappu
were
identified. No other accused was identified.
He denied that Anurag Mishra and Ram
Sujan were taken to Kalinjer and police got
their photographs taken there. He also
denied that police got them identified by
him. He also denied that he was in the
second jeep and no incident took place with
him.

12. P.W.-2, Breznev @ Guddan,
stated that on 23.01.2003 at 09:00 a.m., the
incident took place on the slope of Kalinjer
Fort, near culvert. He had come in village,
Baheri, on 22.01.2003 in a Barat from
village, Mahotra. On 23.01.2003 at 07:00
a.m., he alongwith others went to Kalinjer
in two marshal jeeps. In both the jeeps,
there were 18-20 passengers. One marshal
jeep was being driven by him wherein
Chhedi Lal, Niranjan Verma, Sudhir Kumar
Pandey, Neelu, Sheelu and Madan Mohan
were sitting. His jeep was ahead. Second
marshal jeep was being driven by Pintu
Chaurasiya. After having darshan of
Neelkhanth Mahadev Temple in Kalinjer
Fort, they started driving back for Baheri at
about 09:00 a.m. His jeep was ahead while
the other jeep was behind. On the slope of
the fort, one person armed with rifle was
standing. He pointed out the same towards
the jeep and asked him to stop the jeep
which
he
stopped
because
of
fear.
Thereaftr, 4-5 people further came armed
with guns. They got the passengers down
from the jeep and asked them to run and
scale the slope. When the passengers and
P.W.-1 started running fast the misceants
started firing from behind and people
started falling. He suffered injuries on his
right hand and jumped from the hill. On
account of suffering gun shot injuries,
Sudhir Kumar Pandey, Ashok Kumar
Tiwari, Gandharv Singh Bundela, Ram
Sundar Dwivedi, Sheelu and Kumari Sweta
died. He got injured. Madan Mohan and
Pintoo also got injured and were taken to
Hospital. Niranjan Verma also suffered
injuries. P.W.-2 recognized, Anurag Mishra,
Ram Sujan and lastly Pappu Yadav, who
got the vehicles stopped.

13. In cross-examination, P.W.-2,
stated that the other vehicle was 4-6 steps
away. He saw one miscreant who came
with the rifle and, thereafter, 4-5 other
miscreants came. He saw 5-6 miscreants
whose faces were open. He suffered
injuries on his hand while jumping from the
hill and after falling suffered injuries on his
legs. After incident, his statement was
recorded by the investigating officer. He
denied that the police brought Ram Sujan at
the police station and, thereafter, statements
of the witnesses were recorded by calling
them at police station. He further stated that
after 2-3 days of the incident, he came to
know that Pappu gang is involved in the
incident. He went to jail for identification
of the miscreants twice. He identified them
on the first occasion and not on the second
occasion. On the second occasion, he
identified Pappu @ Jaikaran. He did not
knew his name at that time, but heard his
name in the court for the first time. He
could not say when he suffered gun shot
injuries, how many others too had suffered
the same nor he can say which miscreants
caused firing and which did not. After the
miscreants escaped, he reached the place of
422 INDIAN LAW REPORTS ALLAHABAD SERIES
incident where police force had arrived.
P.A.C. Camp was on a main road.

14. P.W.-3, Niranjan Verma, stated
that about 20-22 persons had gone to
Kalinjer Fort for darshan. One vehicle was
being driven by Breznev @ Guddan and
Neelu, Sheelu, Cheddi Lal, Mithlesh and
Madan Mohan were also there in their jeep.
His jeep was ahead when the incident as
alleged in the F.I.R. took place. After firing
by miscreants, he fell down and came
rolling down from the hill from 20-25 feet
and hide himself in bushes. After the
miscreants went away, he came out and
took the injured to the hospital. Madan
Mohan and Puneet Tiwari died on the way
to hospital. All the miscreants were aged
about 25, 30 and 35 years. In test
identification parade, he identified, Pappu,
Vijay, Anurag and Ram Sujan. Pappu was
clearly identified by P.W.-3 and he also
identified, Ram Lakhan and Ram Sujan.

15. In cross-examination, P.W.-3,
stated that the marshal jeep was taken by
Breznev on hire and it was being driven by
Mithlesh. When they came to Nareni
Hospital, jeep was driven by Pintu
Chaurasiya. He stated that one miscreant
first came and, thereafter, 4-5 others came.
He could not count how many miscreants
were there. They had not covered their
faces. Eleven persons were sitting his jeep,
who were fired upon from behind. First of
all, Ram Sujan, fired from his double barrel
gun, thereafter, Pappu, exhorted that kill all
of them fast. Thereafter, all of them fired.
He denied that he was not present on the
spot and because of being friend of
Breznev @ Guddan, he is giving false
statement before this Court. He stated that
he had informed the investigating officer
that first miscreant, who pointed out rifle,
was Pappu and if it was not mentioned by
the investigating officer in his statement, he
cannot tell the reason. After the incident
people of Kalinjer Fort informed him that
person who first pointed out rifle was
Pappu. He could not identify Pappu in jail
because Chippi was pasted on all the
persons
who
were
produced
in
identification parade. Since he is now in
court he has identified him. He had
informed investigating officer that first
firing was made by Ram Sujan by his
double barrel gun, but if it is not mentioned
in the statement, he cannot tell the reason.

16. P.W.-4, Raja, stated in his
examination-in-chief, that on 23.10.2003 at
about 09:00 a.m., he had gone to Kalinjer
Fort to meet his brother, Fulla, who is
employed there in the Archaeological
Department. When he was coming back
after meeting his brother, Fulla, he saw two
marshal jeeps going down from the fort.
When the vehicles reached the culvert
above Patalganga he heard the sound of
firing. 7-8 persons were firing. He
recognized, Pappu, who is present in court.
He could not recognize others because their
backs were infront of him. P.W.-4, was
declared hostile. In cross-examination he
stated that he saw all the miscreants from
distance. Pappu was having rifle and he had
not informed the name of anyone except
Pappu to the investigating officer. He
further stated that in his cross-examination
that he recognized, Pappu, Chhota and
Anurag, but he did not saw them earlier.
They belong to his village. They were not
involved in the incident. He never gave any
statement to the investigating officer in this
regard.

17. P.W.-5, Deen Dayal Shahu,
stated that he had gone to take bath in the
Kalinjer Fort and when he was returning he
met Raja and Fulla, near the 7th Gate of the
3 All. Ram Sujan Vs. State of U.P.
423
Fort. He saw two jeeps coming and as soon
as jeeps reached near the culvert in the way,
Pappu, came out from the bushes armed
with rifle. He got the passengers down
from the jeep. Pappu was accompanied by
Chhota, Anurag, Dhyyan, Vijay and others
whom he did not recognized. Pappu
directed all the persons in the jeep to come
out and run above the hill and when they
started running Pappu and his companions
started firing on them from behind. Five
persons had died on the spot, including a
girl, and two got injured. Thereafter, he
stated that the girl was the sixth person who
died apart from the five persons. In crossexamination he stated that accused,
Dhayyan, son of Babloo Yadav, is not
present in court. Brother-in-law (Sadhu)
of his elder brother, Neelkaant, was
murdered and F.I.R. was lodged against
unknown
accused. At
the
time
of
incident, he got frightened and hide
himself in the bushes. Total miscreants
were 8-10 and they included the persons
named by him. He cannot say how in his
statement, the names of other accused
have been mentioned by the investigating
officer when he never informed him in
this regard. One jeep was having number
plate while other was without number
plate. After the incident he went to Satna
and came back after 20-22 days. During
this period, he did not informed anyone
about the incident. The investigating
officer had come to his house and he
informed him about the incident. Pappu
was not involved in the murder of his
brother, Neelkant. Dhyyan is cousin of
Pappu. He denied that he is police
informer and has cooked up story of his
bathing at Kalinjer Fort. He stated that
the accused made about 10-11 fires.
Faces of some miscreants were hidden
while the faces of the others were open.
He was hiding with Raja Mali and Fullu
for one hour. He denied that because of
enmity with Pappu, he is giving statement
against him.

19. P.W.-6, Constable, Bare Lal,
proved the application given by the
informant at the police station.

20. P.W.-7, Dr. V.K. Saxena,
proved
the
post
mortem
repot
of
deceased, Madan Mohan; Punit son of
Ashok Kumar; Kumari Shweta Tiwari,
daughter
of Ashok
Kumar
Diwedi;
Sahilendra @ Sheelu Diwedi son of
Madan Mohan and Gandharv Singh
Bundela.

21. P.W.-8, Dr. Rauf Siddique,
proved that he conducted the post mortem
of the body of the deceased, Sudhir Kumar
Pandey and Ram Sundar Diwedi.

22. P.W.-9, Tulsiram, proved that
he was posted as S.H.O. at Police Station-
Kalinjer Fort, at the time of alleged offence
and he conducted the investigation of this
case. He stated in his examination-in-chief
that on 23.01.2003, he was posted as
S.H.O., Police Station- Kalinger, when the
case in dispute was registered at the police
station. He himself started investigation
after getting the copy of the F.I.R. He
examined the place of incident and made
search of the accused. Got the inquest
proceedings of the dead bodies conducted
and got the inquest reports prepared. He
proved the documents in this regard before
the trial court and got them exhibited. He
further proved the preparation of site plan;
collection of bloodstained and plain earth
from the place of incident; recovery of
empty cartridges; preparation of necessary
memos; recovery of the belongings of the
deceased
and
preparation
of
their
memorandums
of
recoveries.
On
424 INDIAN LAW REPORTS ALLAHABAD SERIES
24.01.2003, he came to know from the
informer that the incident in dispute was
caused
by
Pappu
Yadav
Gang;
on
25.01.2003, he recorded the statements of
witnesses, Saurabh Gautam; driver, Pintu
Chaurasiya; Gudiya; Budela, etc., who
testified seeing the incident. Two vehicles
involved were given in the possession of
respective
owners.
He
prepared
the
necessary parchas. On 04.02.2003, he
recorded the statements of the witnesses,
Fullu Mali and Raja, who gave eye witness
account of the incident involving Pappu @
Kamal
Yadav,
Chhota,
Vijay
Yadav,
Jaikaran @ Pappu, Santa Yadav, Ram Sujan
Yadav, Kuber Singh Thakur, Chimpa and
two others. He further stated that earlier the
witnesses of public had named the
aforesaid
persons.
He
recorded
the
statement of Deen Dayal Sahu, who stated
that they have seen the members of the
Pappu Gang committing the offence. They
also named, Anurag Mishra and Ram Ji @
Ram Lakhan, thereafter, he was transferred.
In his cross-examination, P.W.-9, stated that
the statement of the informant was
recorded on the same day at about 04:00
p.m. He was asked three questions in reply
to which he sated that he had came in the
Barat of son of his brother-in-law (Sadhu);
there is enmity going on between his
brother-in-law and elder brother of his
brother-in-law, Ashok. There was small
family dispute between them and Ashok
had not come in the Barat. He did not said
anything about the incident and stated that
on 24th of January, 2003 he came to know
that Pappu Yadav is involved in the
incident from the informer. There was no
evidence against the accused at that time.
He knew Pappu Yadav by his name and
prior to the incident he had challaned him
and tried to him in connection with another
incident. He also knew the Ram Sujan
against whom case is pending at police
station. P.A.C. camp was situated at
distance of 1.5 kilometre from the place of
incident. The enmity between Santosh
Gautam and Ashok Gautam came to his
knowledge
in
the
statement
of
the
informant and the First Information Report,
but he did not considered it as the motive of
crime since other information had come to
his knowledge. At the time of incident he
did not had the list of members of Pappu
Gang, but it was present in the police
station. Prior to the incident, it is not in his
knowledge that Pappu committed any other
offence. He recorded the statement of Deen
Dayal Sahu on 14.02.2003. Prior to
recording of his statement and the incident
taking place, he never met Deen Dayal.
Deen Dayal Sahu stated that all the accused
came out armed with guns. Witness, Fullu,
named Deen Dayal as the person who saw
the incident. He also stated that Raja Mali
too saw the incident. The names of the
accused came to light from the statements
of Fullu Mali, Raja Mali and Deen Dayal.
He denied that Raja Mali and Deen Dayal
are witnesses set up by him. P.W.-9, denied
that he is not aware whether Raja Mali and
Deen Dayal had any enmity with Pappu
Yadav prior to the incident or not. Fullu
informed the names of Pappu @ Kamal,
Chottta, Vijay Yadav, Jaikaran, Ram Sujan,
Kuber, Ram Narayan and Raja Mali had
informed the name of Pappu Yadav,
Chhota, Vijay Yadav, Jaikaran, Ram Sujan
and Kuber. Both the witnesses did not
named Ram Lakhan @ Ram Ji. P.W.-9
denied that he has falsely arrested and
implicated Ram Lakhan @ Ram Ji in this
case. Ram Lakhan had no criminal history
recorded in his police station at that time.
Prior to the incident in dispute, Pappu
Yadav Gang had not committed any
heinous offence. Prior to the incident,
mother and sister of the Pappu Yadav were
challaned in a criminal case. Niranjan did
3 All. Ram Sujan Vs. State of U.P.
425
not gave statement that the first miscreant
who got the vehicle stopped by pointing
rifle was Pappu. Witness, Cheddi Lal, did
not informed him that Mithlesh Garg was
driving one of the vehicle rather he
informed that at that time Guddan son of
Madan Mohan was driving the same. P.W.-
9, further sated in his cross-examination
that he was not shown the place of coming
out of the witnesses, Deen Dayal Sahu,
Fullu and Raja out from the Kalinjer Fort
and they are hiding because the information
came later. He did not prepared any site
plan later. He further stated that on
03.07.2003 at about 09:00 a.m. he had gone
to the house of the accused, Ram Sujan and
broken his house and arrested his brother
Ram Jiyawan and kept him in a lockup till
02.08.2003. He also denied that he
threatened
these
person
of
false
implication. He denied that on 03.08.2003,
Ram Jiyawan gave affidavit before the
C.M.O.,
Banda,
regarding
medical
examination of injuries caused to him by
P.W.-9. He also denied that father of Ram
Jiyawan
gave
application
to
higher
authorities and Human Right Commission
with regard to the incident. He denied that
he falsely implicated Ram Jiyawan and
Ram Sujan.

23. P.W.-10, Investigating Officer,
Mahendra Singh, proved the part of the
investigation conducted by him. P.W.-10,
stated that he took over the investigation of
this case on 05.04.2003. He got the
information of arrest of accused, Chhota, at
Tikamgarh and recorded his statement. He
admitted his involvement in this case in his
statement. He further stated that on
10.05.2003, he came to know that recovery
of arms of Pappu @ Kamal Yadav has been
made
from
Barkola
on
09.05.2003.
Thereafter, he went to Ajaygarh and
recovered one rifle factory made, one
DBBL gun factory made, another DBBL
gun factory made 12 bore, SBBL gun 12
bore, one country made rifle and number of
live cartridges belonging to Kamal Yadav
Gang. Case crime no. 88/2003, under
section 25/27 Arms Act and case crime no.
90/2003, under sections- 212/216 IPC were
registered. Statements of accused, Nandu
@ Rajauli and the Dadua @ Daddu, were
also recorded wherein they admitted the
recovery of aforesaid arms as of Pappu
Yadav @ Kamal Yadav. On 14.05.2003
proceedings of test identification parade of
Anurag Mishra and Ram Sujan was
conducted and its details were mentioned in
the case diary. Finding sufficient evidence
against them charge-sheet were submitted
by him before the trial court. Statement of
accused, Jaikaran @ Pappu was recorded in
district
jail
on
24.05.2003
and
on
31.05.2003 application for taking him in
police remand was made when his
statement was recorded. On 05.06.2003
accused, Chimpa @ Rajnarayan, was
reportedly killed and entry to this effect
was made in the case diary. On 10.06.2003
test identification parade of accused,
Jaikaran, was done and he was identified
by witnesses. On 11.06.2003, statements of
accused, Pappu, Vijay and Ram Lakhan @
Ram Ji were recorded in Central Jail, Satna.
They admitted to their involvement in
alleged offence. The clothes of the
deceased were sent to F.S.L. Agra. Chargesheet was filed against Jaikaran @ Pappu,
in court. An application was given for
transfer of accused, Kamal, Vijay and Ram
Lakhan @ Ram Ji, from Satna Jail to
Banda. An application was also given for
conducting their test identification parade.
Test identification parade was conducted
and its details were mentioned in the case
diary.
On
15.07.2003
statements
of
informant, Cheddi Lal, Neelu, Brejnev,
Niranjan Verma, Brijendra Kumar and
426 INDIAN LAW REPORTS ALLAHABAD SERIES
Pushkar
Saurabh were
recorded.
On
18.07.2003 charge-sheet was filed against
accused, Anurag Mishra, Kamal, Vijay,
Ram Ji @ Ram Lakhan.