# Ratan Pahalwan v. State of U.P

- **Citation:** (2024) 5 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Criminal Appeal No. 2474 of 2018
- **Bench:** Siddhartha Varma, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ratan-pahalwan-v-state-of-u-p-52094
- **Pages:** 8

## Headnote

Criminal Law-Indian Penal Code-1860Sections-148, 149 &302 -The Arms Act1959- Sections 4/25-Criminal appeal against
judgment and order of conviction for life
imprisonment-the testimony of the witness of the
PW-1 who is the mother is not at all believable.
She has changed stands very frequently. She has
introduced so many things like the peepal tree
and Shiv Sewak at her convenience and the
peepal tree is not to be found even in the siteplan. In fact the Investigating Officer who was
PW-10 St.s that the PW-1 had never told him
about the peepal tree. It appears strange that the
site-plan was prepared at the telling of the PW1; that would mean that in fact the site-plan was
also prepared not at the spot but somewhere
else-Despite the fact that she mentioned that she
did not know the addresses of the assailants
before the Court, in the FIR she had mentioned
the addresses and the parentage of all the
accused persons-The mother of the deceased
had St.d that the deceased had died on the spot
and was lying dead but despite that the police
had taken the dead to the Hallet Hospital. which
raises a big question mark to the fact as to
whether the deceased was found at the spot
where, it is alleged, he was killed. The
panchayatnama ought to have taken place at the
place where the deceased lay dead-The ballistic
report from the forensic lab was also never
received and taken into account by the
prosecution-Result Impugned order quashed.

Appeal allowed. (E-15)

## Text

88 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, stands allowed. The judgment and
order 23.3.1982 is set aside. The appellants
before us, are acquitted of the charges
levelled against them in the instant case. The
appellant No.1 has already been died. The
appellant nos. 2 and 3, Ram Achal and
Vishdhar @ Sridhar were granted bail on
29.03.1982, therefore, their bail bonds as
well as the sureties are discharged.
----------
(2024) 5 ILRA 88
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2474 of 2018
WITH
Criminal Appeal No. 2258 of 2018
WITH
Criminal Appeal No. 2326 of 2018
WITH
Criminal Appeal No.1982 of 2018
WITH
Criminal Appeal No. 1993 of 2018

Ratan Pahalwan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Prashant Kumar Singh, Ambrish Kumar
Kashyap, Arun Kumar Shukla, Ashok Kumar
Tripathi, Saurabh Sachan

Counsel for the Respondent:
G.A., Dharmendra Pratap Singh, J.P. Singh

Criminal Law-Indian Penal Code-1860Sections-148, 149 &302 -The Arms Act1959- Sections 4/25-Criminal appeal against
judgment and order of conviction for life
imprisonment-the testimony of the witness of the
PW-1 who is the mother is not at all believable.
She has changed stands very frequently. She has
introduced so many things like the peepal tree
and Shiv Sewak at her convenience and the
peepal tree is not to be found even in the siteplan. In fact the Investigating Officer who was
PW-10 St.s that the PW-1 had never told him
about the peepal tree. It appears strange that the
site-plan was prepared at the telling of the PW1; that would mean that in fact the site-plan was
also prepared not at the spot but somewhere
else-Despite the fact that she mentioned that she
did not know the addresses of the assailants
before the Court, in the FIR she had mentioned
the addresses and the parentage of all the
accused persons-The mother of the deceased
had St.d that the deceased had died on the spot
and was lying dead but despite that the police
had taken the dead to the Hallet Hospital. which
raises a big question mark to the fact as to
whether the deceased was found at the spot
where, it is alleged, he was killed. The
panchayatnama ought to have taken place at the
place where the deceased lay dead-The ballistic
report from the forensic lab was also never
received and taken into account by the
prosecution-Result Impugned order quashed.

Appeal allowed. (E-15)

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Vinod Diwakar, J.)

1. These appeals have been filed
against the judgment and order dated
22.3.2018 passed by the Additional District
& Sessions Judge, Court No.12, Kanpur
Nagar convicting the appellants-Ratan
Pahalwan, Mahesh @ Maheshiya, Mewalal,
Ram Kumar Mallah, Suresh @ Mandir and
Vikas Maurya for life imprisonment under
section 302 read with section 149 IPC. A
fine of Rs.50,000/- had also been imposed
on each of the convict and in the event of
non-depositing of fine, they had to undergo
additional imprisonment of 180 days. Also,
the accused Ratan Pahalwan, Ram Kumar
Mallah and Vikas Maurya, under section
4/25 of the Arms Act, were sentenced for
one year rigorous imprisonment and a fine
5 All. Ratan Pahalwan Vs. State of U.P.
89
of Rs.1000/- each was imposed and in the
event of non-depositing of the fine, they had
to
undergo
30
days'
additional
imprisonment. The Accused Mahesh @
Maheshiya; Suresh @ Mandir and Mewalal
were also sentenced for three years' rigorous
imprisonment under section 25/27 of the
Arms Act with a fine of Rs.3000/- each and
in the event of non-depositing of fine, they
had also to undergo 90 days' additional
imprisonment. It was provided that all the
sentences were to run concurrently.

2. Brief facts of the case are that on
30.7.2009 a First Information Report was
lodged by one Gyanwati wife of Om
Prakash. The FIR was got written on the
dictation of Gyanwati by one Manoj
Kumar son of Jamuna Prasad. In the FIR,
it was mentioned that on 30.7.2009, the
son of Gyanwati namely Sarvesh Pandit
when was sitting with Munna Pandit and
Dayaram in front of the Santoshi Maa
Temple where a light bulb was on, at
around 10.30 pm, Ratan Pahalwan son of
Jagmohan, resident of 4/272 Purana
Kanpur along with Mahesh @ Maheshi
son of Ganga Prasad, r/o 5/237 Purana
Kanpur; Ram Kumar Mallah and Suresh
Mandir sons of Ganga Prasad, r/o 5/237
Purana Kanpur and Vikas son of Roshan
Pahalwan who were armed with country
made firearms and Chapad, approached
Sarvesh Pandit and said that they would
take the revenge of the death of Basant
Pahalwan. Thereafter they surrounded
Sarvesh and attacked him. Consequently,
the son of the first informant died. In the
FIR, the motive has been given that around
12-13 years prior to the lodging of the FIR,
in the area of Police Station Nawabganj,
Basant Pahalwan had been killed and in
that the son of Gyanwati had been jailed
and on account of this revenge, Ratan
Pahalwan and others were inimical to her
son and they always wanted to do away
with him. Thereafter she categorically
stated that the dead-body of her son
Sarvesh Pandit was lying under a tree and
she
requested
that
investigation
be
undergone and justice be done.

3.

Thereupon
investigation
ensued. Six accused were arrested and on
14.8.2009 at the pointing of Mahesh, a
country made pistol of 315 bore was
recovered. In that regard, a recovery
memo was prepared and an FIR was
lodged under section 4/25-A of the Arms
Act. Similarly, the accused Ram Kumar
Mallah on 14.8.2009 had got recovered a
Chapad and against him also an FIR under
the Arms Act was got lodged. On
30.8.2009, Vikas Maurya got recovered a
Kulhadi (axe) and similarly against him
also, an FIR under the Arms Act was got
lodged. On 24.8.2009, Suresh @ Mandir had
got recovered another .315 bore country
made pistol and against him also, an FIR
under the Arms Act was got lodged. On
7.9.2009, Mewa Lal son of Ganga Prasad
had got another country made .315 bore
pistol recovered and against him also, an
FIR was got lodged. The firearms, as were
recovered, were kept in the custody of the
police and the recovery memos were
accordingly prepared. From the spot, where
the alleged murder had taken place, three
empty cartridges and two bullets of .315
bore were recovered and they were kept in a
tin box of which a recovery memo was
prepared and was exhibited as Exhibit Ka27. The plain soil and the soil on which there
was blood was also recovered and a
recovery memo was prepared and was
exhibited as Exhibit Ka-28. After the FIR
was lodged, the police had reached on the
spot and had taken the body of Sarvesh
Pandit to the Hallet Hospital where the
Panchayatnama was got prepared. This
90 INDIAN LAW REPORTS ALLAHABAD SERIES
happened on 31.7.2009. Thereafter the
Constable Pradeep Kumar Rai took the
dead-body for the post mortem.

4. Charges were framed by the
police and they were forwarded to the Court
of Additional Sessions Judge, Court No.13.
The Court upon taking cognizance of the
matter, charged the accused under the
relevant sections. All the accused pleaded
not guilty and denied charges and thereafter
the trial commenced.

5. From the side of the prosecution
as many as 14 prosecution witnesses gave
their statement-in-chief and they were also
cross-examined.

6. PW-1 Gyanwati wife of Om
Prakash had stated in her examination-inchief that her son on 30.7.2009 was sitting
under a Goolar tree on a chabutara and by
his side Munna Pandit and Dayaram were
also sitting. The goolar tree was in front of
Santoshi Mata Temple and at that time i.e.
around 10.30 pm she (Gyanwati) was
standing on a chabutara which surrounded a
Peepal tree near her house. Around 7-8
paces behind her, her nephew Shiv Sewak
Sharma was standing. From the side of
gaushala, Ratan Pahalwan, Ram Kumar,
Mahesh @ Maheshiya, Mewa Lal, Suresh @
Mandir and Vikas arrived. Ratan Pahalwan
exhorted all the accompanying assailants
and said that they had to take revenge of his
brother Basant and had ordered them to kill
Sarvesh. Ram Kumar and Ratan who were
carrying chapad; Mahesh, Mewalal and
Suresh who were having the tamancha along
with Vikas who was having a kulhadi,
surrounded the son of the first informant and
they started assaulting the son of the first
informant who fell down faced downwards.
He was shouting for help. The nephew of the
first informant and the first informant
reached
the
spot
but
the
assailants
threatened the first informant that if she
raised her voice, she would also be killed.
PW-1 also stated that there were a lot of
people living in the area but because of the
fear of the assailants, none of them came.
She has also stated that Guddu @ Anwar and
Rajesh had seen the incident and they were
standing 7-8 paces away near a bargad tree.
After having killed the deceased, the
assailants went away. The first informant
went to the police station and told them
about the incident. The police asked her to
give a written complaint then she got hold of
Manoj and on her dictation the report was
written down. On that document she had
also signed. She thereafter also proved the
tehrir. Thereafter the police came on the spot
and recovered four empty cartridges and two
bullets and they took her son in a Jeep to the
Hallet Hospital where he was declared dead.
Post mortem was thereafter done. Here she
again stated that the motive for killing her
son was that her son while was working as a
Home-Guard had got recovered four and
half kilograms of gunpowder and a
tamancha from the house of one of the
assailants Ratan and she reiterates about the
fact that 12-13 years back when Basant
Pahalwan was killed, the assailants thought
that her son had killed him. Earlier also,
Sarvesh was attacked upon. In her crossexamination, the PW-1, upon being asked as
to whether she was aware that her son was a
history-sheeter, she denied that her son was
ever externed. She categorically stated that
Guddu @ Anwar was sitting on the
neighbouring chabutara. Upon being asked
about Daya Ram and Munna Pandit, whose
names she had mentioned in the FIR, she
stated that at the time when the incident had
occurred, they were not there at the spot. She
stated that they were sitting beside her son
before the incident had occurred. She then
stated that even though she knew the house
5 All. Ratan Pahalwan Vs. State of U.P.
91
of Ratan Pahalwan but she did not know its
number. She stated that she had in fact
mentioned in the FIR which she had got
lodged that she was standing by the Peepal
tree in her house. She also stated that she
was standing 10 paces away from the place
where the incident had occurred and this fact
she had also stated in the FIR. She had also
mentioned in the FIR that Shiv Sewak was
standing 7-8 paces away behind her. She has
stated that she definitely mentioned in the
FIR that Vikas had a small axe. She has
stated that the copy of the FIR was given to
her at 4.00 pm on the next day i.e. on
31.7.2009. She had stated that her son
worked in J.K. Jute Factory. She reiterates
that her son was beaten for around 6-7
minutes. Upon being asked as to why her
husband had not appeared at the spot, she
had stated that he was asleep. She had also
stated that while she was sitting at the
threshold of her house, she had not made
any efforts to wake-up her husband. She
has also stated that the wife and the
children of the deceased were also present
on the spot.

7. Shiv Sevak, the nephew,
appeared in the witness box as PW-2. He
repeats the case as was stated by PW-1.

8. PW-3 Rajesh Kumar who was, as
per the first informant, present on the spot,
had stated in his examination-in-chief that
he was not present there. He was thereafter
declared hostile. In the cross-examination,
he has stated that he was not threatened by
the assailants.

9. PW-4 Dr. R.L Mahip was the
doctor who had proven the post mortem
report.

10. PW-5 Constable Ashok Kumar
Mishra had proven the chik FIR.
11. PW-6 Guddu @ Anwar who,
per the first informant, was present at the
spot, had stated that he was not there on the
spot and thereafter he was also declared
hostile. In the cross-examination, he stood
firm on what he had stated in the
examination in chief.

12. PW-7 Constable Girja Kumar
was a formal witness.

13. PW-8 Tannu who was a witness
of the recovery of the empty cartridges and
the bullets, had stated that he was not present
at the time when the recovery memo was
prepared and that they were not recovered in
from of him and that he had signed on a
blank paper.

14. PW-9 was the scribe of the FIR
Manoj Kumar and he had virtually stated
what the PW-1 had stated to him.

15. PW-10 was the Investigating
Officer Satyendra Singh Rathor. He had
stated that on the date of incident, he had
gone on the spot along with the first
informant and on the next date he was
present at the time of panchayatnama and he
was also instrumental in getting all the
recovery memos prepared. PW-10 had
stated in his cross-examination that the
bullet and the pallets were sent to Agra for
forensic lab test. He had stated that when he
had gone on the spot, the deceased was lying
in an injured state. He had stated that the first
informant had not told him about the fact
that she was standing by a peepal tree. He
had also stated that the first informant had
not told him that behind her, was her nephew
Shiv Sevak Sharma standing. He states that
he had not stated as to how high was the
chabutara and he had also not stated that
there was blood near the chabutara and on
the walls. He had stated that there were also
92 INDIAN LAW REPORTS ALLAHABAD SERIES
no bullet marks on the walls and on the trees
and he further states that when he had
reached the spot, the body of the deceased
was not lying on the chabutara but was on
the ground. The deceased, he stated, was a
history-sheeter and there were many other
serious cases pending against him.

16. PW-11 was Sub-Inspector Shiv
Karan Sonkar and he was the Investigating
Officer in the case under the Arms Act.

17. PW-12 Pratap Singh was also an
Investigating Officer under the Arms Act.

18. PW-13 Sub-Inspector Pradeep
Kumar Rai had stated that he had reached
the LLR (Hallet) Hospital at around 23.40
hours
and
had
got
conducted
the
panchayatnama. He had taken out the dead
body from the mortuary. He has also stated
that he had got sent the dead body for the
post mortem.

19. PW-14 Sub-Inspector Ram
Niwas was the witness of the recovery of the
axe (kulhadi).

20. Thereafter the accused persons
got their statements recorded under section
313 Cr.P.C. They had all stated that they
were innocent.

21. One Arjun, who was the
defence witness, had come forward and had
stated that Vikas Maurya was his neighbour
and on 28.8.2009 at 10.00 pm, he was sitting
in front of his house after having taken his
diner and thereafter the police came to the
house of Vikas Maurya and had taken him
away.

22. Learned counsel for the
appellants has argued that in fact the murder
had not taken place at the spot as had been
alleged by the PW-1. Learned counsel for
the appellants has stated that the mother of
the deceased i.e. the first informant had
stated in the FIR itself that the deceased was
dead and was lying on the spot yet it has
been stated that the dead-body of the
deceased was taken from the spot and was
taken to the LLR (Hallet) Hospital. Learned
counsel for the appellants, therefore, states
that in fact the murder had taken place
somewhere else and the dead body was
taken to the LLR Hospital and there the
panchayatnama was conducted. He submits
that had the death taken place on the spot
where the first informant was saying then
the panchayatnama too would have been
conducted on the spot itself. For giving the
reason as to why the dead body was taken to
the Hallet Hospital, the police officer
Pradeep Kumar Rai had stated that when he
had gone on the spot, he had found that the
dead-body was breathing and therefore he
taken him away. Learned counsel for the
appellants states that when the assault was to
the extent, as had been mentioned in the FIR
itself and when it was stated by the first
informant, that her son was dead then there
was no reason for taking the dead-body to
the hospital for panchayatnama. Learned
counsel for the appellants stated that the
police personnel are from an experienced
service and they could easily decipher as to
whether a person is dead or alive. Learned
counsel for the appellants thereafter states
that in fact after the first informant had come
to know about the death of her son
somewhere else, she had gone to report
about the death and the police who were
aware of the fact that the accused persons
were also history-sheeters, took out their
names from their own records and had, in
the FIR, given their names, parentage and
the addresses. Learned counsel for the
appellants states that if the statement of PW1 is seen, she has very categorically stated
5 All. Ratan Pahalwan Vs. State of U.P.
93
that even though she knew about the houses
of Ratan Pahalwan but she did not know the
number of the house (i.e. the address).
Learned counsel for the appellants states
that if the FIR is seen then the addresses of
all the accused had been given. This, he
submits, definitely was the doing of the
police. Learned counsel for the appellants
thereafter has stated that in the FIR, the PW1 had tried to create eye-witnesses on the
spot apart from her itself. She had also
named Munna Pandit and Dayaram in the
FIR but subsequently she had done away
with them and in her statement-in-chief she
had brought in Guddu @ Anwar and Rajesh
as eye-witnesses. Learned counsel for the
appellants further states that in the FIR she
had also not stated about the fact that there
was any peepal tree by the side of which she
was standing and that behind her, Shiv
Sewak Sharma was standing around 7-8
paces away. Learned counsel for the
appellants, therefore, states that the PW-1
had come up with all cooked-up story. He
submits that Munna Pandit and Dayaram did
not even come into witness box. The
witnesses which she had tried to bring in as
eye-witnesses namely Guddu @ Anwar and
Rajesh came to the witness box but they had
turned hostile. Further, learned counsel for
the appellants states that the post mortem
report shows that there were three bullets
which had entered the body of the deceased.
It is alright, he submits, that this matched
with the three empty cartridges but he
submits that only one bullet was recovered
from the body of the deceased and one
which had probably escaped from the exit
wound was also found. Where did the third
bullet go was a mystery. Learned counsel for
the appellants further states that all the
firearms which were recovered were country
made pistols of .315 bore but pellets were
also recovered from the body of the
deceased. How those pallets entered the
body of the deceased was again a mystery.
Learned counsel for the appellants states
that when no forensic lab test was done on
the firearm and on the pellets, it mattered
little as to what was the recovery done.
Learned counsel also states that even the
motive was a strange motive which the PW1 had given. He states that the accused
persons were taking a revenge of an event
which had taken 13 years prior to the
incident which she was reporting. Still
further, learned counsel for the appellants
states that the father of the deceased who
was sleeping was the first person the first
informant would have woken-up but she had
allowed him to sleep. Also, the wife and
children of the deceased who were standing
at the spot as per the PW-1 had not come
forward to give their side of the story.
Learned
counsel
for
the
appellants,
therefore, states that all the statements which
the PW-1 had given get falsified. If the
statement of the Investigating Officer PW10 is seen, it would reveal that he had
categorically denied that PW-1 had told him
about the peepal tree by which she was
standing. What is more, even the peepal tree
was not shown in the site-map which the
Investigating Officer had prepared; meaning
thereby, learned counsel for the appellants
states, that even the site-plan was not
prepared after going to the site but in fact it
was prepared sitting in the police station.
Learned counsel for the appellants, to
bolster his submissions, relied upon the
decisions
of
the Supreme
Court
in
Ravasaheb @ Ravasahebgouda etc. vs.
State of Karnataka : 2023 LiveLaw (SC)
225; Ajai @ Ajju etc. etc. vs. The State of
Uttar Pradesh : 2023 LiveLaw (SC) 110;
Chhote Lal vs. Rohtash & Ors. (Criminal
Appeal No.2490 of 2014 decided on
14.12.2023); Amar Singh vs. The State
(NCT of Delhi) (Criminal Appeal No.335
of 2015 decided on 12.10.2020) and also
94 INDIAN LAW REPORTS ALLAHABAD SERIES
upon the decisions of this Court in Criminal
Appeal No.4857 of 2011 (Parshu Ram vs.
State of U.P.) decided on 14.2.2019;
Criminal Appeal No.6583 of 2004 (Karan
Singh & Anr. vs. State of U.P.) decided on
13.1.2017; Criminal Appeal No.1875 of
2007 : Shesh Narain vs. State of U.P.
(decided on 27.5.2016); Criminal Appeal
No.2421 of 1985 : Bashir & Anr. vs. State
of U.P. (decided on 17.5.2019) and
Criminal Appeal No.4122 of 2015 :
Gulshan @ Mekedam Singh Jatav vs.
State of U.P. (decided on 6.8.2020).

23. Learned AGA Sri Amit Sinha
and the learned counsel appearing for the
first
informant
Sri
Saurabh
Sachan,
however, have stated that even if the first
informant who was the eye-witness and in
this case now virtually the lone eye-witness,
her evidence ought to be believed as she was
a mother who was giving evidence with
regard to the death of her son and she would
not lie to implicate others falsely.

24. Learned counsel for the first
informant also argued that even if the peepal
tree was not given in the site-plan and it was
not mentioned in the FIR, it mattered little.
The site as it contained things and which
came to the fore after the statements were
recorded, alone were to be looked into. He
has tried to, after reading the statement of
PW-1, establish that the PW-1 was a truthful
eye-witness and if she had by any chance
missed out certain facts in the FIR about
which she was changing her statement in the
Court, then it mattered little. In this regard,
learned counsel for the first informant relied
upon the decision of the Supreme Court in
Bipin Kumar Mondal vs. State of West
Bengal : AIR 2010 SC 3638; Sunil Kumar
vs. State Govt. of Delhi : AIR 2004 SC
552; Vijendra Singh vs. State of U.P.
(2017) 11 SCC 129; Dhanaj Singh @
Shera & Ors. vs. State of Punjab : (2004)
3
SCC
654;
Ravasaheb
@
Ravasahebgouda
etc.
vs.
State
of
Karnataka : (2023) 5 SCC 391; State of
U.P. vs. Krishna Master : AIR 2010 SC
3071; State of MP vs. Dharkole @ Govind
Singh & Ors. : AIR 2005 SC 44 and State
of Rajasthan vs. Ani @ Hanif & Ors. :
AIR 1997 SC 1023.

25. Having heard Sri Ambrish
Kumar Kashyap and Sri Ashok Kumar
Tripathi for the appellant in Criminal
Appeal No.2474 of 2018; Sri Ashutosh
Pandey for the appellants in Criminal
Appeal nos.2258 of 2018 and 2326 of 2018;
Sri Surendra Singh, Advocate for the
appellants in Criminal Appeal Nos.1982 of
2018 and 1993 of 2018; learned AGA Sri
Amit Sinha assisted by Ms. Mayuri
Mehrotra, learned Brief Holder and Sri
Saurabh Sachan, Advocate for the first
informant, this Court is of the view that the
appeals deserve to be allowed. The first
informant had come up in the FIR with a
case that when the assailants had come,
Munna Pandit and Dayaram were sitting beside
the deceased. However, though in the FIR she
had stated so, in her statement before the Court
she stated that they were sitting beside the
deceased before the incident had occurred and in
fact at the time when the incident had occurred,
Guddu @ Anwar and Rajesh were there on the
spot. We find that the peepal tree by which she
says she was standing by at the time of incident
was also never mentioned and in fact the
Investigating Officer also had not shown it in the
site-plan. We also find that throughout PW-1 had
never introduced Shiv Sewak Sharma but for the
first time in the Court she had stated that he was
standing a few paces behind her at the time of the
incident and Shiv Sewak thereafter also comes
before the Court and testifies in her favour but
his statement was absolutely a weak statement
which could not be relied upon. We also find that
5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
95
she had justified the absence of her husband
and has stated that it was not required to wake
him up. She has stated that the wife and
children of the deceased were present on the
spot but they never cared to come in the
witness box. The eye-witnesses which had
come up to the witness box had turned hostile
and the eye-witnesses with regard to which
she had made a mention in the FIR never
turned up to give their testimony. It was just
possible that due to the fear of the assailants
who were history-sheeters, the eye-witnesses
were not coming forward but in the instant
case we find that the testimony of the witness
of the PW-1-Gyanwati who is the mother is
not at all believable. She has changed stands
very frequently. She has introduced so many
things like the peepal tree and Shiv Sewak at
her convenience and the peepal tree is not to
be found even in the site-plan. In fact the
Investigating Officer who was PW-10 states
that the PW-1 had never told him about the
peepal tree. It appears strange that the site-plan
was prepared at the telling of the PW-1; that
would mean that in fact the site-plan was also
prepared not at the spot but somewhere else.

26. What is more we find that the
mother of the deceased, PW-1 had got the FIR
lodged and despite the fact that she had
mentioned that she did not know the addresses
of the assailants before the Court, in the FIR
she had mentioned the addresses and the
parentage of all the accused persons. This
shows that the police very interestingly, which
had the record of all the history-sheeters, had
mentioned about the addresses and the
parentage of the accused persons in the FIR.
Also, we find that in the FIR the mother of the
deceased had stated that the deceased had died
on the spot and was lying dead but despite that
the police had taken the dead to the Hallet
Hospital. This raises a big question mark to the
fact as to whether the deceased was found at
the spot where, it is alleged, he was killed. The
panchayatnama ought to have taken place at
the place where the deceased lay dead.

27. Under such circumstances, we are
of the view that the eye-witness PW-1, the
mother, is an absolutely doubtful witness. The
conviction cannot be done on the basis of her
testimony. Also, we find that the PW-10 has
stated in so many words that all the facts which
the PW-1 was stating in the Court were never
told to him. The ballistic report from the forensic
lab was also never received and taken into
account by the prosecution. This not only speaks
volumes about the prosecution's functioning but
also makes it unbelievable.

28. For all the reasons, the Criminal
Appeals are allowed. The order dated 22.3.2018
passed by the Additional District & Sessions
Judge, Court No.12, Kanpur Nagar is quashed.
The appellants namely Ratan Pahalwan, Mewa
Lal, Mahesh @ Maheshi, Suresh @ Mandir,
Ram Kumar Mallah and Vikas Maurya, who are
in jail, be released forthwith unless they are
required in any other case.
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(2024) 5 ILRA 95
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2558 of 2014
WITH
Criminal Appeal No. 2582 of 2014
WITH
Criminal Appeal No. 2639 of 2014
WITH
Criminal Appeal No.2640 of 2014

Sushil Kumar Dwivedi @ Sonu Dwivedi
 ...Appellant
Versus
State of U.P. ...Respondent