# Rohtash & Ors v. State of U.P. 292 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 9 ILRA 291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-19
- **Case number:** Criminal Appeal No. 3063 of 1983
- **Bench:** Siddhartha Varma, Ram Manohar Nayayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohtash-ors-v-state-of-u-p-292-indian-law-reports-allahabad-series-52587
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/149 & 147 - Appeal against
conviction - Life Imprisonment - P.W.2,
informant, eye-witness St.d that prior to
nine months of date of incident, murder of
brother of co-appellants took place -
Murder was committed by deceased & ors.
and due to enmity, accused armed with
country made pistol with other miscreants
having lathies in their hands, fired two
shots at deceased and died on spot - The
informant witnesses incident and lodged
FIR. (Para 1, 2, 21)

Held,
P.W.2
and
P.W.3
witnesses
explained reasons for their presence -
Accused persons failed to establish they
are interested witnesses - No evidence
that witnesses were inimical towards
appellants and had direct relationship
with
deceased
-
PW-2
in
crossexamination explained delay in lodging
FIR - PW-1 (doctor) proved injuries of
deceased
in
postmortem
-
Enmity
between accused persons and deceased
proved from documents - PW-2 and PW-3
has made improvement in their evidence
before Court from their earlier version in
FIR/St.ment where they St.d that lathi
wielded by appellant was fixed with iron
nail. (Para 23, 24)

Weapon assigned to surviving appellant in
evidence of witnesses of fact i.e. lathi
fixed with nail was not found as weapon
of offence in medical evidence which
might have been caused injury No.8 of
deceased - Injury No.8 of deceased has
not been explained in ocular testimony of
witnesses - Charges not proved against
surviving appellant beyond reasonable
doubt and impugned order deserves to be
set aside. (Para 25, 27)
Appeal partly allowed. (E-13)

List of Cases cited:

Darshan Singh Vs St. of Pun., (2024) 1 SCR 248,
(Para 26)

## Text

_Characters 0–39,888 of 45,347. This is a partial read: ask again with offset=39888 for what follows._

9 All. Rohtash & Ors. Vs. State of U.P.
291
thereby that the provisions of sub-section
(2) of Section 19 of the Act, 1984 would
have no applicability. Thus, it is the
provisions of sub-section (1) of Section 19
of the Act, 1984 which would be
applicable.

11. As already indicated above subsection (1) of Section 19 of the Act, 1984
starts with a non-obstante clause, meaning
thereby that irrespective of anything contained
in the Code, 1973 it is provisions of the Act,
1984 which would be applicable.

12. Consequently, once the Act, 1984
provides for filing of an appeal from every
judgment or order not being an interlocutory
order of a Family Court except an order passed
under Chapter IX of the Code and in the
instant case it is an order by which an
application filed under Section 340 of the
Code has been rejected which falls under
Chapter XXVI of the Code. Therefore, it is
only an appeal under the Act, 1984 which
would lie in case the appellant herein is
aggrieved by the said order.

13. Considering the aforesaid, it is thus
apparent that in case the appellant herein is
aggrieved by an order by which his application
under Section 340 of the Code has been
rejected consequently the only remedy
available to him is to challenge the said order
by filing of an appeal under Section 19(1) of
the Act, 1984 and the appeal filed under the
provisions of the Code or BNSS would not be
maintainable keeping in view the non-obstante
clause as per sub-section (1) of Section 19 of
the Act, 1984 and the Act, 1984 being a
special Act.

14. Further, whether the order by which
the application under Section 340 of the Code
has been rejected would be an interlocutory
order or an order is also no longer res-integra
keeping in view the Full Bench judgment in
the case of Kiran Bala Srivastava vs. Jai
Prakash
Srivastava
-
MANU/UP/2771/2004 wherein considering
the Full Bench of this Court which has been
passed after considering the judgment of
Hon'ble Supreme Court in the case of Shah
Babulal Khimji vs. Jayaben - AIR 1981 SC
1786, it is apparent that the order passed
under Section 340 of the Code would be an
'order' as per Section 19 of the Act, 1984 and
accordingly it is an appeal which would be
maintainable under the provisions of the Act,
1984.

15. After the aforesaid order has been
dictated the appellant states that he does not
intend to press on with the instant appeal
and prays that the same may be dismissed
as withdrawn with liberty to him to pursue
other remedy as may be available to him
under law.

16. Accordingly, the instant appeal is
dismissed as withdrawn with liberty as
aforesaid.

17. Let certified copies of the orders
as annexed be returned to the appellant as
per rules.
----------
(2024) 9 ILRA 291
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NAYAYAN
MISHRA, J.

Criminal Appeal No. 3063 of 1983

Rohtash & Ors. ...Appellants
Versus
State of U.P. ...Respondent
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
J.N. Chaturvedi, Atul Pandey, Dharmendra
Kumar Mishra, M. Upadhyay, Pradeep
Kumar,
S.N.
Chaturvedi,
Shanti
Dhar
Dwivedi

Counsel for the Respondent:
D.G.A., R.K.Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 302/149 & 147 - Appeal against
conviction - Life Imprisonment - P.W.2,
informant, eye-witness St.d that prior to
nine months of date of incident, murder of
brother of co-appellants took place -
Murder was committed by deceased & ors.
and due to enmity, accused armed with
country made pistol with other miscreants
having lathies in their hands, fired two
shots at deceased and died on spot - The
informant witnesses incident and lodged
FIR. (Para 1, 2, 21)

Held,
P.W.2
and
P.W.3
witnesses
explained reasons for their presence -
Accused persons failed to establish they
are interested witnesses - No evidence
that witnesses were inimical towards
appellants and had direct relationship
with
deceased
-
PW-2
in
crossexamination explained delay in lodging
FIR - PW-1 (doctor) proved injuries of
deceased
in
postmortem
-
Enmity
between accused persons and deceased
proved from documents - PW-2 and PW-3
has made improvement in their evidence
before Court from their earlier version in
FIR/St.ment where they St.d that lathi
wielded by appellant was fixed with iron
nail. (Para 23, 24)

Weapon assigned to surviving appellant in
evidence of witnesses of fact i.e. lathi
fixed with nail was not found as weapon
of offence in medical evidence which
might have been caused injury No.8 of
deceased - Injury No.8 of deceased has
not been explained in ocular testimony of
witnesses - Charges not proved against
surviving appellant beyond reasonable
doubt and impugned order deserves to be
set aside. (Para 25, 27)
Appeal partly allowed. (E-13)

List of Cases cited:

Darshan Singh Vs St. of Pun., (2024) 1 SCR 248,
(Para 26)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. This criminal appeal has been filed
against
the
judgment
and
order
of
conviction dated 09.12.1983, passed by
learned III Additional Sessions Judge,
Muzaffarnagar, in Sessions Trial No.381 of
1982, whereby the learned III Additional
Sessions Judge, Muzaffarnagar (hereinafter
referred as 'trial court') has convicted the
appellants namely, Rohtash, Vija alias
Vijaipal, Dileep, Mughal and King Kong
under Section 302/149 IPC for life
imprisonment, while appellant Rohtash was
further convicted under Section 148 IPC
and sentenced to undergo two years
imprisonment and the remaining appellants
are convicted under Section 147 IPC and
sentenced to undergo one year rigorous
imprisonment. All the sentences were
directed to run concurrently.

2. Factual matrix of the case in brief
are that the informant Vishambher, son of
Natthu, lodged an FIR orally at police
station Purkaji, District Muzaffar Nagar
stating that he is resident of village
Khedaki, Police Station Purkaji, District
Muzaffar Nagar. In last winter, his covillager Bhopal, son of Mama and others
had committed murder of Samay, son of
Chohal. On account of the enmity of said
murder case, on 6.8.1982, at 5/6:00 PM
when he was coming from his agricultural
field alongwith his bullock, he found that
said Bhopal was fishing while sitting on
slope of southwards to the river bank.
Suddenly, his co-villager Rohtash armed
9 All. Rohtash & Ors. Vs. State of U.P.
293
with a countrymade pistol, Vijayee @ Vijja
and his father Mughal wielding lathis in
their hands, Dileep and King Kong, sons of
Chohal having lathies in their hands
appeared and accused Vijayee @ Vijja,
Mugal, Dalip and King Kong started
assaulting Bhopal by lathies. Rohtash fired
two shots at Bhopal in the meanwhile and
due to injuries suffered in the incident,
Bhopal died on the spot. The occurrence
was also witnessed by Rajpal, son of Atar
Sing. He left villagers near the dead body
and came at the police station to lodge the
report. The delay while reaching police
station occurred due to non availability of
conveyance and pathway becoming muddy.
The report was lodged on same day i.e.
6.8.1982, at 23:30 hours, vide Crime
No.128 of 1982, under Sections 147, 148,
149, 302 IPC by Head Muharrir Satyapal
Sharma on the basis of oral account of
Vishambhar. He also made entry of lodging
of this FIR vide report No.28, time 23:30
hours dated 6.8.1982, in which it is stated
that Vishambher @ Banda, Son of Nathhu
Harijan, resident of village Khedaki, Police
Station Purkaji, accompanied with Rishi,
resident of Gram Khedaki appeared at
police station and gave oral information
regarding the incident against five named
accused namely, Rohtash, Vijja, Mughal,
Dileep and King Kong. After lodging of FIR
and registration of case vide said GD entry,
S.O. Shiv Raj Singh Tyagi (PW-4) rushed to
the spot where dead body was lying together
with
S.I.
Jagdamba
Prasad
and
two
constables Surendra Singh and Dhanpal
Singh alongwith necessary papers and after
appointing Panch witnesses, commenced
inquest on dead body of deceased Bhopal on
7.8.1982, at 6:00 AM, which concluded at
7:30 AM on same day i.e. 7.8.1982. The
inquest was conducted on place of incident
where the dead body was lying. It was
stucked in between water and mud and was
found in supine position. In the opinion of
Panch witnesses, the deceased Bhopal died
due to firearm and lathi injuries received
during the incident. The deceased was
wearing a 'kameej' and white underwear,
which were blood stained. The inquest
Officer (S.O. concerned) entrusted the dead
body alongwith copy of inquest report, copy
of FIR, copy of GD Entry and photo lash,
challan lash, report R.I., Report CMO and
sample seal prepared by him to two
Constables namely, Balveer Singh and
Surendra Singh, who were posted at police
station concerned for transporting the dead
body to Headquarter at mortuary for
postmortem. The Investigating Officer took
into possession one cartridge shell 12 bore,
one empty cartridge 12 bore without bottom
and one refilled cartridge from place of
incident on 7.8.1982 and prepared its
inventory as Ext.Ka-9. He also collected
plain earth and blood stained earth from place
of occurrence and prepared its inventory as
Ext.Ka-10.

3. The postmortem examination on the
body of the deceased Bhopal was carried out
by Dr. Satish Kumar Sharma (PW-1) on
7.8.1982, at 4:15 PM, which was sent by S.O.
Purkaji (Muzaffar Nagar) through Constables
Balveer Singh and Surendra Singh. Rigor
mortis was present over the lower extremities
and going from upper limbs. Body was
covered with sand and mud. Approximate
time of death was one day before the
postmortem. Following antemortem injuries
were found on the person of the deceased:-

(i) Lacerated wound 2 X 1/2 inch
X scalp over left side head, 4 inch above
left ear;

(ii) Lacerated wound 2 and 1/4
inch X 1/4 inch scalp over right side of
head, 3 and half inch above right ear;
294 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) Lacerated wound 2 and half
inch X 1/4 inch X scalp over right side
head, 2 inch behind right ear;

(iv) Lacerated wound 2 X 1/4
Inch X scalp over right side back against
head, 1-1/2 inch behind injury No.3;

(v) Gunshot wound of entry 1
inch X 1/2 inch X cavity deep over left side
back chest, lateral to spine at the level of
interior angle of left scapula. Tattooing and
blackening present. Margins inverted and
lacerated;

(vi) Gunshot wound of exit 3 inch
X 2 inch over left side chest, 2 and 3/4 inch
from left nipple at 7 to 8'O clock position.
Margins averted, corresponding to injury
No.5.

(vii) Gunshot wound of entry 1/2
inch X 1/4 inch X cavity deep over right
side chest just lateral to sternum, 3 inch
from right nipple at 2:00'O clock position.
Tattooing and blacking were present.
Margins
inverted.
This
one
entered
between 3rd and 4th ribs and was directed
medially and downwards. On dissecting
path, which was found to cross over to left
side anterior media sternum and from there
to left side chest lacerating left lung;

(viii) Incised wound 3 X 1 inch X
abdominal cavity deep over right side chest
in anterior auxiliary line just above costal
margin. Margins clean cut, angles angular.

On internal examination, it was
found that right 8th, 5th and 11th ribs were
cut laterally. Lower lobe of right lung was
cut under injury No.8. Left lung was
lacerated in both lobes. Left pleura was
lacerated under injury No.5 and 8. Left 6th,
7th and 8th ribs were fractured anteriorly.
Stomach
was
empty.
Abdominal
membranes were cut under injuy No.8.
Small intestine was half full and large
intestine was half full.

8 metallic pellets and 2 wadding
pieces were recovered from dead body during
postmortem and were handed over to the
Constables, who had carried the dead body to
mortuary. Cause of death was due to shock
and haemorrhage as a result of antemortem
injuries noted. In the opinion of PW-1 injury
No.5-7 were possibly caused by firearm and
injury No.4 might have been caused by lathi.
Injury No.8 was caused by some sharp edged
weapon.

4. PW-4, S.O. Shiv Raj Singh Tyagi
conducted investigation of the case, recorded
statements of witnesses, collected two empty
and one refilled live cartridge 12 bore KF
Special from place of incident and prepared its
seizure memo (Ext.Ka-9). He also collected
plain and blood stained earth from the place of
incident and prepared its seizure memo as
Ext.Ka-10. He prepared site plan of place of
incident and proved the same by his evidence
as Ext.Ka-11. After completing investigation,
he submitted chargesheet against all the five
named accused persons for charge under
Sections 147, 148, 302 IPC with prayer to
prosecute them in the Court.

5. Learned Chief Judicial Magistrate
committed the case to Session Court for trial
as offence was exclusively triable by Court of
Session.

6. On commencement of trial at Court of
Session, learned 3rd Additional Session Judge
framed charge under Section 148 IPC against
accused Rohtash, Charge under Section 147
IPC against Vijayee @ Vijja, Mughal, Dileep
and King Kong. Charge under Section
302/149 IPC against Rohtash, Vijayee @
Vijja, Mughal, Dileep and King Kong. The
accused persons denied the charge, pleaded
not guilty to it and claimed to be tried.

7. Prosecution examined Dr. S.K.
Sharma, the author of postmortem report as
PW-1; Vishambher, the informant as PW-
9 All. Rohtash & Ors. Vs. State of U.P.
295
2; Rajpal as eye-witness as PW-3, S.O.
Shiv Raj Singh Tyagi, the Investigating
Officer as PW-4 and Surendra Singh,
Police Constable who carried the dead
body to mortuary for postmortem as PW-5.

8.

On
closure
of
prosecution
evidence, statement of accused persons was
recorded by learned trial court under
Section 313 Cr.P.C., in which they stated
that the witnesses have deposed against
them due to enmity. The FIR has also been
lodged against them due to enmity. They
have admitted enmity as deceased Bhopal
had killed Samay, prior to the incident, who
was brother of accused Dilip and King
Kong and cousin of accused Rohtash and
Vijaypal alias Vijja. However, they denied
that they killed Bhopal due to enmity. They
also stated that both the witnesses belonged
to clan of deceased and deposed falsely
against the accused persons. Accused
Dileep stated that deceased Bhopal was a
man of criminal antecedents and was
inimical to many persons. Informant side
was exerting pressure on accused Mughal
to desist from deposing in the murder case
of Samay.

9. The accused persons were given
opportunity of adducing defence evidence
but they did not tender any evidence in
defence. Their defence is that of denial.

10.

Learned
trial
court
after
appreciation of evidence on record and
considering the submissions made at Bar
from both sides, recorded vedict of guilt
against accused appellants and convicted
them for charge under sections 302/149,
147,
148
IPC
and
appellants
were
sentenced to life imprisonment for charge
under Section 302/149 IPC. Accused
Rohtash was sentenced to two years
rigorous imprisonment for charge under
Section 148 IPC and other accused persons
were sentenced to one year rigorous
imprisonment for charge under Section 147
IPC.

11.
Feeling
aggrieved
by
the
impugned
judgement
and
order,
the
convicts/appellants preferred present appeal
before this Court under Section 374(2)
Cr.P.C.

12. Heard learned counsel for the
appellants, learned AGA for the State and
perused the material placed on record.

13.

Prosecution
examined
two
witnesses of fact in support of its case
namely, Vishambhar (PW-2) and Rajpal
(PW-3), who supported prosecution version
in their testimony before the Court. PW-2
stated that accused Rohtash and Vijay @
Vijja are sons of accused Mughal. Accused
Dilip and King Kong are real brothers and
sons of Chohal. Deceased Bhopal belong to
his village. Case of murder of Samay, son
of Chohal was litigated in which deceased
Bhopal and Raghuveer were accused. The
incident occurred on fateful day at around
5-6 PM. He was returning to his home from
his field. When he reached near the river
bank, he saw Bhopal engaged in fishing.
Accused Rohtash shot at Bhopal from
behind. Rohtash fired two shots at him by
countrymade pistol and at the same time,
Dilip, King Kong, Vijja and Mughal
emerged from nearby 'chari field'. The
accused persons also hit Bhopal by lathies
and he died on the spot on account of
injuries suffered. He had seen the incident
together with witness Rajpal, who was also
present there. The witnesses namely,
Vishambhar (PW-2) and Rajpal (PW-3)
tried to stop the accused persons, who in
turn walked away towards Pava. He
straight way rushed to police station and
296 INDIAN LAW REPORTS ALLAHABAD SERIES
lodged the FIR. Rajpal also accompanied
him up to police station. He dictated the
written report to Head Muharrir who
transcribed the same as per his dictation.
He appended his thumb impression thereon
after being read over by the scribe, Ext.Ka2 was marked thereon. A long iron nail was
fixed in lathi of Vijaypal. In crossexamination, the witness stated that Bhopal
was sitting on the bank of river. The
witness was sitting in other side of river. A
distance of 30 paces was lying between two
banks. The four accused persons assaulted
Bhopal by the lathies. He met Station
Officer of police station when he visited the
police station and got the report lodged by
Head Constable. He is not aware as to
whether thumb impression of Rajpal was
taken on FIR. He travelled the police
station from the ghat (Place of occurrence)
on feet. Two Sub Inspectors and three
Constables left for place of occurrence after
lodging of FIR. He had not conversed with
police officials on way to place of
occurrence.
They
went
to
place
of
occurrence from police station by a horse
cart at around 3:00 AM (night). The Sub
Inspector sealed the dead body on the next
date at 8:00 AM and did writing work with
regard to dead body. The dead body was
taken by police constables after paper
work. Co-accused Dilip and King Kong are
brothers of Samay, who was killed prior to
this incident. The witness denied defence
suggestion that the witness and his family
members were exerting pressure on accused
Mughal to desist to depose in murder case of
Samay. They never exerted pressure on
accused Dilip and King Kong. He had
dictated in written report the fact that the lathi
wielded by accused Vijaypal @ Vijja was
consisting of a long nail. He had also dictated
this fact in written report that at the time of
incident, he was standing with his bullock on
second side of the river. He had also got this
fact written in his report that accused persons
emerged from 'chari field' of Fullu and also
reiterated this fact to Darogaji. He cannot
explain as to why this fact has not been stated
in his statement recorded by Darogaji. Bhopal
had hunted three fishes, which he had kept in
a bag. He was fishing by fishing hook.

14. PW-2 Rajpal has also deposed that
he witnessed the incident as he was present
near the place of occurrence at around 5:30
PM as he was easing himself and after getting
eased, he went to river to wash his hands. He
saw Bhopal engaged in fishing and suddenly
accused Rohtash having a countrymade pistol
in his hand and accused Dilip, Vijja, Mughal
and King Kong armed with lathi reached
there from the side of hillock and they fired at
Bhopal. The accused, who were wielding
lathi also assaulted him by their lathies.
Bhopal died on the spot having been injured.
A witness Vishambhar was also present there
as he was offering water to cattle for
drinking. The lathi which accused Vijja was
wielding consisted an iron nail fixed therein.
There is a hillock near the place of incident.
In cross-examination, the witness stated that
the accused persons fled away towards
hillock after the incident. He witnessed the
incident from a distance of 50-60 paces.
Bhopal was fishing by fish hook. He had
hunted three fishes. The fishes and fish hook
was lying on the spot after the incident.
Bhopal was sitting towards Pawa. The
witness denied the defence suggestion that he
had not seen any occurrence and he was not
present in the village at the time of incident.
He stated that the accused persons were 5060 paces away from him when fire was shot.

15. PW-1 Dr. S.K. Sharma is author
of postmortem report of the deceased who
proved the same by his sworn testimony
before the court on which Ext.Ka-1 has
been marked. He stated that he prepared the
9 All. Rohtash & Ors. Vs. State of U.P.
297
postmortem report in his writing and
signature.

16. PW-4 Shiv Raj Singh Tyagi was
examined as Investigating Officer of the
case who stated in his evidence that the
case was registered in his presence on
6.8.1982. He was posted as Station Officer
at police station concerned. The chik FIR
was scribed by Head Muharrir Satyapal
Sharma, who was posted at his police
station. The FIR was drawn as per oral
version of the informant. In chik FIR
Ext.Ka-2 has been marked. He also stated
that this police case was registered vide GD
No.28, dated 6.8.1982, time 23:30 hours by
Head Muharrir Satyapal Sharma. He is
acquainted with his signature. The witness
proved extracts of GD entries. The witness
proved extracts of GD entries filed on
record by producing the original before the
court and accordingly Ext.Ka-3 has been
marked on Paper No.6/1. He stated that he
conducted investigation of the case on the
same day on which day report was lodged.
He started for placed of occurrence on
same day and reached there at 3:00 AM as
the place of occurrence was lying in a
jungle, no proceeding could be done due to
onset of darkness of night. He carried out
inquest of deceased Bhopal on next day in
the morning at 6:00 AM on 7.8.1982 and
got the inquest report prepared by dictating
the same through S.I. J.P. Thapaliar. The
inquest report was in the hand writing of
J.P. Thapaliar, which also bear signature of
the witness (PW-4), on which Ext.Ka-4 has
been marked. The police papers like Letter
to CMO, Letter to R.I., Challan Lash,
Photo Lash were prepared by S.I. J.P.
Thapalial, which also bears signature of the
witness on which Ext.Ka-5 to Ka-8 have
been marked. He further stated that he
dispatched dead body of Bhopal in sealed
cover
through
Constable
Balvir
and
Surendra
Singh
alongwith
necessary
enclosures
after
finishing
inquest
proceeding. He collected two empty
cartridge shells and one refilled live
cartridge and kept the same in his
possession. He sealed the same. The
ammunitions were produced before him
during his evidence in sealed cover which
bears signature of PW-4 and witnesses
which is marked as Ext.Ka-9. He also
prepared panchnama of blood stained and
plain earth collected from place of
occurrence and got it sealed. He proved the
inventory of same on which Ext.Ka-10 has
been marked. The witness also stated that
he conducted spot inspection and recorded
statement of the witnesses. He prepared site
plan of the place of occurrence in his hand
writing and signature on which Ext.Ka-11
has been marked. He filed chargehseet of
the case after concluding the investigation
in his hand writing and signature, on which
Ext.Ka-12 has been marked. He reached
the place of occurrence on 3:00 AM which
was in jungle and for that reason he could
not do any proceeding immediately. He
carried out investigation proceeding since
5:15 AM on 7.8.1982. He recorded
statement of the informant at police station.
The place of occurrence situates 1 furlong
away from the village. He conducted
inquest at 6:00 AM and got dead body
sealed at 7:30 AM. The witness corrected
certain clerical errors which occurred in
statement of witness Vishambhar recorded
by him during his cross-examination.

17. PW-5 Constable Surendra Singh
testified that he carried the dead body from
the place of occurrence to head quarter on
7.8.1982 alongwith Constable Balvir. The
dead body of Bhopal was kept in sealed
cover. The GD entry of arrival of dead
body at Police Lines is report No.31, time
14:13 hours. He produced the GD of
298 INDIAN LAW REPORTS ALLAHABAD SERIES
receiving of dead body at Police Line
before the Court. In cross-examination, the
witness stated that they carried the dead
body from place of occurrence by a Jeep, in
which S.I. S.S. Tyagi, J.P. Thapalial and
Constable Dharampal and Balvir were also
sitting.
They
reached
the
place
of
occurrence at 12:30:00 hours in the night. It
takes two and half hours in reaching
Muzaffar
Nagar
from
the
place
of
occurrence. The police personnel were
carrying torches in their hands at the scene
of occurrence.

18. Learned counsel for the appellants
submitted that the appellants have been
implicated in the case due to old enmity
between deceased and appellants. Deceased
Bhopal was accused in murder case of
Samay, son of Chohal. Appellants Dilip
and King Kong were real brothers of
deceased
Samay.
Accused
appellant
Mughal and his sons Rohtash and Vijaypal
@ Vija belong to the clan (khandan) of
Samay. All the appellants derived their
origin from common ancestor Jagan. A
genealogical table of the appellants has
been given in paragtah No.9 of the
impugned judgement as the appellants were
witnesses in murder case of Samay in
which deceased Bhopal was a potential
accused. The informant's side was exerting
pressure on the appellants to desist from
deposing against Bhopal but the appellants
did not oblige them, as a result of which
when Bhopal was killed by some unknown
person on a secluded place, the appellants
have been falsely implicated in the case to
settle the score by informant's side. He
next submitted that no recovery of any
firearm or ammunitions used in the offence
has been effected from the appellant by the
Investigating Officer, which creates a doubt
on authenticity of prosecution version
regarding complicity of appellants in the
offence. The witnesses of fact i.e. PW-2
Vishambhar and PW-3 Rajpal are chance
witnesses and their presence on the spot
cannot be held to be natural. The
Investigating Officer had not found or
collected the fishing hook allegedly used
by the deceased at the time of offence or
fished hunted by him. The main role has
been
attributed
to
accused
appellant
Rohtash, who is said to have fired a shot at
the deceased which proved fatal. Other
appellants are attributed the role of causing
injuries to deceased by lathi blow in FIR as
well as in statements of the witnesses under
Section 161 Cr.P.C., however, during
investigation, a case has been developed
with a view to create consistency with
postmortem report that the lathi wielded
and used by appellant Vijaypal @ Vija was
having a long nail fixed therein. In
postmortem report of the appellant as many
as 8 antemortem injuries are shown on the
person of the deceased out of which injury
No.8 is incised wound of 3 inch X 1 inch X
abdominal cavity deep over right side of
chest and this injury can only be caused by
sharp edged weapon. Such type of injury
cannot be caused by lathi or even by a lathi
fixed with a nail as deposed by witnesses of
fact i.e. PW-2 and PW-3. Therefore, injury
No.8 of the deceased remained unexplained
in prosecution evidence. This depicts that
the witnesses had not seen the occurrence
and they are got up witnesses. The general
role has been assigned to surviving
appellant Vijaypal @ Vija that he had
assaulted the deceased by lathi together
with other appellants namely, Mughal,
Dilip and King Kong. The presence and
complicity of surviving appellant Vijaypal
@ Vija is highly doubtful in view of the
fact that the weapon (lathi fixed with iron
nail) could have hardly caused injury No.8
as shown in postmortem report of the
deceased. PW-3 has falsely stated that there
9 All. Rohtash & Ors. Vs. State of U.P.
299
was lying his agricultural field in the
vicinity of place of occurrence on way. No
agricultural field of Rajpal (PW-3) is
shown in site plan.

19. With above submissions and
contentions,
learned
counsel
for
the
appellants prayed for acquittal of surviving
appellant Vijaypal @ Vija in present
appeal.

20. Per contra, learned AGA strongly
supported the impugned judgement and
order passed by learned trial court by which
the appellant has been convicted and
sentenced for charges under Sections
302/149, 147, 148 IPC. He submitted that
the case is based on eye-witness account of
witnesses i.e. PW-2 Vishambhar and PW-3
Rajpal. There was no occasion on the part
of the witnesses to falsely implicate the
appellants. They had no grudge or enmity
with the appellants. The mode and manner
of assault and the nature and number of
injuries suffered by the deceased are duly
proved by ocular testimony and medical
evidence adduced during trial. There is
consistency between medical and ocular
testimony on point that deceased suffered
two firearm injuries in the incident on his
chest and back. The appellants nurtured
strong motive against the deceased Bhopal
as he was accused in murder case of
Samay, who was real brother of appellants
King Kong and Dilip and son of the real
sister of accused Mughal and cousin of
Rohtash and Vijaypal @ Vijja. The
appellants committed murder of Bhopal to
retaliate murder of their relative Samay.
The eye-witnesses are natural witnesses of
the incident as they are resident of same
village
where
deceased
and
accused
appellants were residing and their presence
on the spot is duly explained in their
testimony before the court and their
presence cannot be doubted. FIR in the
present case was lodged with promptness,
keeping in view the distance of police
station from place of incident as shown in
chik FIR (Ext.ka-2). Nothing can be
elicited
by
defence
in
evidence
of
prosecution witnesses of fact which could
suggest reasonable doubt in testimony of
the witnesses. The FIR in the case was
lodged by the PW-2 Vishambhar, who is
unconcerned with either of the parties. He
narrated the sequence of events to Head
Muharrir at police station orally and on his
oral information, chik FIR (Ext.Ka-2) was
drawn.
There
is
no
infirmity
or
misappreciation of evidence on the part of
the learned trial court. Appeal deserves to
be dismissed.

21. We re-appreciated the evidence on
record in the light of submissions and
contentions made by learned counsel for
the parties to determine the question as to
whether there is any factual or legal error in
impugned judgement and order passed by
learned trial court. So far as the motive of
commission of the alleged offence is
concerned, the motive has been introduced
in FIR itself by the informant Vishambhar,
who is also an eye-witness who stated that
prior to nine months of the date of incident
in present case which is 6.8.1982, murder
of Samay, son of Chohal and brother of coappellants Dilip and King Kong took place.
This murder was committed by his covillagers namely, Bhopal and others and for
this enmity, on 6.8.1982 at around 5:30 to
6:00 PM, when the informant was coming
back to home after taking his bullocks from
his agricultural field, he found deceased
Bhopal sitting on the slope of hillock on
southwards of river bank. Suddenly, his covillagers namely, Rohtash, Vijaypal @
Vijja, sons of Mughal, Mughal son of
Ragsi, Dilip and King Kong, sons of
300 INDIAN LAW REPORTS ALLAHABAD SERIES
Chohal emerged there. Rohtash was having
a countrymade pistol and other miscreants
were having lathies in their hands. Rohtash
fired two shots at Bhopal and other accused
persons assaulted him with lathi. Bhopal
died on the spot due to injuries received in
the incident. The informant witnesses the
incident, left the dead body in supervision
of villagers and reached police station
anyhow with some delay on account of non
availability of transport and the road
becoming muddy. The FIR was lodged at
around 23:30 hours. The FIR bears thumb
impression
of
informant
Vishambhar,
which has been proved by informant in his
evidence before the Court on which
Ext.Ka-2 has been marked. The FIR in the
case was drawn against five named accused
persons on the basis of oral information
given by PW-2. The witnesses of fact
namely, PW-2 Vishambhar and PW-3
Rajpal have duly proved the motive
introduced in FIR in their evidence during
trial. PW-1 Vishambhar stated on oath as
PW-2 that deceased Bhopal was his covillager, who was an accused in murder
case of Samay, the brother of accused Dilip
and King Kong. Accused Mughal and his
sons Rohtash and Vijaypal belong to
branch of Ransi and King Kong, Dilip and
deceased Samay are sons of Chohal, who
was husband of Chhoti, sister of Ransi.
Thus, all the accused persons belongs to
same clan. PW-2 stated that he had seen
accused Rohtash firing two shots at
deceased Bhopal from behind. Thereafter,
accused Dilip, King Kong and Mughal also
came out from their place of hiding and
assaulted the injured by their lathis
resulting his death. This incident was also
seen by witness Rajpal when the witnesses
tried to intervene, the accused persons went
towards Pawa. He went straight to police
station for lodging the FIR and got the
same lodged on the basis of his oral
information. The lathi wielded by Vijaypal
@ Vijja was fixed a long nail. There was
distance of 30 paces between the banks of
the river.

22. In site plan the river on which on
which bank the deceased was sitting and
fishing by fishing hook is shown to have 8
to 10 feet water. The dead body was found
at place 'A' in supine position where the
deceased Bhopal was fishing. Accused ran
away after committing the crime towards
east. Two empty cartridge shells and one
cartridge was found at place 'D' and 'E'
lying near the place where the dead body
was found and same was taken into
possession by the Investigating Officer.
The legs of deceased were turned from
knees and found hanging in river water.
The
Investigating
Officer
took
into
possession blood stained and plain soil
found on place of incident. A 'chari' field
of Phool Singh, who is resident of jungle
village Khedaki is shown lying north
westwards of the place of incident. PW-3,
Rajpal stated that at the time of incident, he
had gone to river bank for easing
(answering call of nature) at around 5:00 to
5:30 PM and when he was washing his
hands, he saw deceased Bhopal fishing on
the bank side of river and suddenly accused
persons came from the side of hillock.
Rohtash fired shots at Bhopal and the
accused persons who were wielding lathi
assaulted him by their respective lathies.
Bhopal fell down after being injured. The
lathi wielded by accused Vijja was fixed
with an iron nail. The witness Vishambhar
was also present when fire was shot. Both
the witnesses have stated that Vishambhar
was present on sought bank of river and
Rajpal was present on north bank of river.
Their village lies towards hillock situated
near the river. Some agricultural fields
intervene between the place of incident and
9 All. Rohtash & Ors. Vs. State of U.P.
301
the river on which incident occurred.
Investigating Officer (PW-4) clarified in
his evidence that due to heavy footfall at
the place of incident, the fishing hook and
fishes hunted by the deceased could not be
found and same might have been removed
by someone.

23. Learned counsel for the appellant
forcefully
contended
that
both
the
witnesses are chance witnesses and no
reliance can be place on their statement.
We are not ready to subscribe this
contention as both the witnesses are covillagers of the deceased and accused
persons. The incident occurred at the
outskirts of the village at the bank of local
river adjacent to their village. Both the
witnesses have explained the reasons for
their presence. The accused persons failed
to establish their contention that they are
interested witnesses. A suggestion has been
made to them on behalf of the defence
counsel that they belong to clan of
deceased Bhopal but no such evidence
could be led in support of this. There is no
evidence that the witnesses were inimical
towards the appellants for any reason
whatsoever. It could not be established in
evidence during trial that the witnesses had
any direct relationship with the deceased.
Therefore, there was no occasion for them
to falsely implicate the accused persons in
the case. PW-2 Vishambhar has explained
the delay of few hours in lodging of FIR in
FIR itself and nothing can be illicited in his
cross-examination which could suggest that
the FIR was ante timed or the delay in
lodging of FIR remained unexplained. As
many as 8 injuries were found on the
person of deceased in his postmortem,
which is duly proved by its author Dr. S.K.
Sharma during his evidence as PW-1
before the Court. One firearm injury over
left side of back and one firearm wound of
exit on left side of chest corresponding to
back injury and one gunshot wound on
right side of chest just lateral to sternum are
shown in postmortem examination report,
which substantially corroborate the eyewitness account given by PW-2 and PW-3
that accused Rohtash fired two shots at
Bhopal by his countrymade pistol. Three
injuries found on the person of deceased
reveal that these were caused by two
firearm shots. The enmity between accused
persons and deceased also finds support
from documents filed on record with regard
to S.T. No.30/1982, which relates murder
trial of Samay, son of Chohal and in that
case, deceased Bhopal, Bhansingh and
Raghuveer were tried. Appellant Mughal
had testified as prosecution witness in
earlier murder case against deceased
Bhopal and others in said criminal trial.

24. On a meticulous appreciation of
evidence on record, we find no infirmity or
discrepancy in approach and finding of
learned trial court while recording the
verdict of guilt against co-appellants
namely, Rohtash, Mughal, Dilip and King
Kong for charge under Section 302/34 IPC.
The evidence of witnesses is found reliable
so far as these appellants (since deceased)
are concerned and learned trial court has
rightly recorded verdict of guilt against
them for alleged offence under Section
302/34 IPC. However, we cannot lost sight
of a crucial fact found in post mortem
report of deceased Bhopal (Ext.Ka-1)
which reveals that in antemortem injury
No.8 of Bhopal "incised wound 3 X 1 inch
X abdominal cavity deep over right side
chest in anterior auxiliary line just above
costal margin. Margins clean cut, angles
angular" is described whereas in FIR or
even in statement of witnesses, it is
nowhere stated that any of the accused
persons were armed with a sharp edged
302 INDIAN LAW REPORTS ALLAHABAD SERIES
weapon, by which injury No.8 of deceased
could have been caused. PW-2 and PW-3
has made an improvement in their evidence
before the Court from their earlier version
in the FIR/statement under Section 161
Cr.P.C. where they stated that the lathi
wielded by accused Vijaypal @ Vija was
fixed with an iron nail probably with a
view to explain this injury No.8 of
deceased Bhopal as stated above.

25. If we go through the evidence of
PW-1 Dr. S.K. Sharma on this score, this is
noticeable that he categorically stated in his
cross-examination that injury No.8 of
Bhopal
as
shown
in
postmortem
examination report may not have been
caused by a nail fixed in the lathi. This
injury could only be caused by a sharp
edged weapon. This injury could not have
been caused by a pointed weapon. This
injury must have been caused by a sharp
edged weapon. If a small 'gadasa' had been
fixed in a lathi in that case, such injury
might have been caused. Such injury could
also have been caused by some flat sharp
edged weapon. Thus, the weapon assigned
to surviving appellant Vijaypal @ Vija in
evidence of witnesses of fact i.e.