# Sanjay @ Kalla v. State of U.P

- **Citation:** (2021) 11 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-18
- **Case number:** Criminal Appeal No. 5508 of 2007
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kalla-v-state-of-u-p-46446
- **Pages:** 12

## Headnote

102 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

Criminal Law - Code of Criminal Procedure,
1973-
Section
174-
Inquest
Report-
In
panchayatnama, names of the assailants have
not
been
mentioned,
which
shows
that
panchayatnama has been prepared prior to
lodging the FIR. Crime number and Section
details of GD has been mentioned in the
panchayatnama. Mentioning the name of the
accused is not required in inquest report.

Merely not mentioning the names of the accused in
the inquest report will not result in doubting the
timing of the FIR as there is no requirement in law to
mention the names of the accused in the inquest
report.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive-It is a case of direct
evidence. In the case of direct evidence, motive
becomes insignificant. It is not required to
mention each and everything in the FIR. If
motive has not been mentioned in the FIR, this
will not damage the prosecution case.

Settled law that in a case of direct evidence motive
pales into insignificance. Not mentioning the motive in
the FIR will not dent the case of the prosecution as all
facts not required to be stated in the FIR.

Criminal Law - Indian Penal Code, 1860-
Section 34 IPC- Common intention should be
gathered by the act and conduct of the
accused.

Where it is proved from the act and conduct of the
accused that they committed the offence in
furtherance of a common intention and overt acts are
attributed to all the accused, then they will be
vicariously liable for committing the said offence.

Evidence Law - Indian Evidence Act- Section 3-
Interested Witness- P.W.-2 and Kaley P.W.-3
are the natural witnesses-. Both witnesses
were present on the spot, witnessed the
occurrence and informed the father of the
deceased
P.W.-1-;
their
evidences
are
supported by medical evidence; the evidence of
P.W.-2 and P.W.-3 is fully reliable and credible.
Witnesses have no enmity with the accused
and there is no ground to falsely implicate
them.
The
submission
of
defence
that
witnesses are related one, is not tenable. This
does not affect prosecution case. Injury
inflicted by the accused on the vital part of the
deceased in furtherance of common intention
of
both
the
accused
is
proved
beyond
reasonable doubt.

Settled law that an interested witness is one who
stands to benefit from the false implication of the
accused and merely because a natural witness is
related to the deceased, would not make him an
interested witness.( Para 30, 36, 45, 54)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,857 of 44,019. This is a partial read: ask again with offset=39857 for what follows._

11 All. Sanjay @ Kalla Vs. State of U.P.
101
some hot talks between them took place after
which his brothers Mohan Yadav and Sohan
Yadav @ Patali Yadav, the exonerated coaccused instigated the accused-appellant Ramji
Yadav and on this, he fired a shot on the
deceased. None of these witnesses have
disclosed as to what was the cause or reason by
the accused-appellant to abuse the deceased. The
accused-appellant had caused a single gun-shot
injury, on being instigated by his brothers
Mohan Yadav and Sohan Yadav @ Patali
Yadav. Thus, if there was no dispute or quarrel
or enmity before the incident and it has not been
made clear by the witnesses as to what was the
cause or reason for hurling abuses then certainly
it can be inferred that the genesis of the
occurrence has not been established in this case,
though, it is proved beyond doubt that the
accused-appellant fired a gun-shot on the
deceased resulting in his death. Therefore, the
offence committed by the accused-appellant
would not fall under section 302 IPC, but in our
considered view, the offence would fall under
section 304 Part-I IPC.

36. So far as sentence is concerned, from
the records it is clear that the accused-appellant
was arrested on 16.01.2011 and during trial he
remained in custody and even after the
impugned judgment he has remained in jail till
date. Thus, he has suffered imprisonment of
about ten years and ten months and if remission
part is considered then this sentence would be
more. The incident is of the year 2011 and the
accused-appellant has suffered mental agony of
this case for more than ten years. The accusedappellant is not reported to have any previous
criminal history. Looking to the overall facts and
circumstances of the case, nature of evidence
available on record, this Court is of the
conclusion that the present case would fall under
Section 304 Part-I IPC and not under Section
302 IPC and a conviction of twelve (12) years
alongwith fine already imposed by the trial court
with compensation to the father of the deceased
as ordered by the trial court would meet the ends
of justice.

37. In the result, the appeal is partly
allowed.

38. The accused-appellant is convicted
under Section 304 Part-I IPC to a sentence of
twelve (12) years rigorous imprisonment. The
amount of fine as imposed upon him by the trial
court and the compensation as directed to be
paid from it under Section 357 Cr.P.C. is
maintained. The default sentence as ordered by
the trial court is also maintained.

39. The lower court record along with a
copy of this judgment be sent back forthwith to
the trial court concerned for compliance and
necessary action.
----------
(2021)11ILR A101
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 5508 of 2007
connected with
Criminal Appeal No. 4794 of 2007

Sanjay @ Kalla ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Raghuraj Kishore, Sri Ajay Kumar Sharma,
Sri Ashutosh Tripathi, Sri Atmaram Nadiwal, Sri
Dharmendra Singhal, Sri Dharmendra Singhal,
Sri Hari Om Yadav, Sri Maqsood Ahmad, Sri
Mohd. Farooq, Sri Shiv Prakash, Sri Yogesh
Srivastav

Counsel for the Respondent:
102 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

Criminal Law - Code of Criminal Procedure,
1973-
Section
174-
Inquest
Report-
In
panchayatnama, names of the assailants have
not
been
mentioned,
which
shows
that
panchayatnama has been prepared prior to
lodging the FIR. Crime number and Section
details of GD has been mentioned in the
panchayatnama. Mentioning the name of the
accused is not required in inquest report.

Merely not mentioning the names of the accused in
the inquest report will not result in doubting the
timing of the FIR as there is no requirement in law to
mention the names of the accused in the inquest
report.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive-It is a case of direct
evidence. In the case of direct evidence, motive
becomes insignificant. It is not required to
mention each and everything in the FIR. If
motive has not been mentioned in the FIR, this
will not damage the prosecution case.

Settled law that in a case of direct evidence motive
pales into insignificance. Not mentioning the motive in
the FIR will not dent the case of the prosecution as all
facts not required to be stated in the FIR.

Criminal Law - Indian Penal Code, 1860-
Section 34 IPC- Common intention should be
gathered by the act and conduct of the
accused.

Where it is proved from the act and conduct of the
accused that they committed the offence in
furtherance of a common intention and overt acts are
attributed to all the accused, then they will be
vicariously liable for committing the said offence.

Evidence Law - Indian Evidence Act- Section 3-
Interested Witness- P.W.-2 and Kaley P.W.-3
are the natural witnesses-. Both witnesses
were present on the spot, witnessed the
occurrence and informed the father of the
deceased
P.W.-1-;
their
evidences
are
supported by medical evidence; the evidence of
P.W.-2 and P.W.-3 is fully reliable and credible.
Witnesses have no enmity with the accused
and there is no ground to falsely implicate
them.
The
submission
of
defence
that
witnesses are related one, is not tenable. This
does not affect prosecution case. Injury
inflicted by the accused on the vital part of the
deceased in furtherance of common intention
of
both
the
accused
is
proved
beyond
reasonable doubt.

Settled law that an interested witness is one who
stands to benefit from the false implication of the
accused and merely because a natural witness is
related to the deceased, would not make him an
interested witness.( Para 30, 36, 45, 54)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

1. Seikh Ayuub Vs St. of Maha. 1999 SCC Crl.1055

2. Pratap Singh & ors Vs St. of UP 2021, SCC Online
All 686

3. Abu Thaker Vs St. of T.N, (2010) 5 SCC 91

4. Bipin Kumar Mondal Vs St. of W.B, (2010) 12 SCC
91

5. Mohd. Rojali Ali & ors. Vs St. of Assam (2019) 19
SCC 567

6. Laltu Ghosh Vs St. of W.B (2019) 15 Supreme
Court Cases 344

(Delivered by Hon'ble Om Prakash Tripathi, J.)

1. Heard Sri Dharmendra Singhal, learned
Senior Advocate assisted by Sri Atmaram
Nadiwal, Sri Sudhir Kumar Agarwal and Sri
Naveen Kumar Yadav, learned counsel for the
appellants as well as Sri A. N. Mulla, learned
AGA for the State and perused the material on
record.

2. The appellants have preferred these
criminal appeals aggrieved by the judgment and
order dated 18.07.2007 passed by the Additional
Sessions Judge, Fast Track Court-I, Baghpat in
Sessions Trial No. 544 of 2006, arising out of
Case Crime No. 406 of 2006, Police Station
11 All. Sanjay @ Kalla Vs. State of U.P.
103
Barot,
District
Baghpat
convicting
and
sentencing the appellants to undergo rigorous
life imprisonment under Section 302/34 of IPC
with a fine of Rs.25,000/- each, in default
thereof, to undergo two years rigorous additional
imprisonment, therefore, these appeals are heard
and being decided together by this common
judgment.

3. The prosecution case is as follows:

4. Rishi Pal, the complainant, S/o Bhullan,
R/o Wazidpur, Police Station Baraut, District
Baghpat lodged the first information report on
24.07.2006 at the Police Station Baraut, District
Baghpat alleging therein that on 24.07.2006 at
04:30 pm, the son of the complainant namely,
Mange was going to see buffalo at the house of
Rajiv S/o Padam with Pappu, S/o Vijay Pal and
Kaley, S/o Nahar. When all these three persons
came in front of the shop of Tejpal Jhevar,
Pappu, S/o Vijay Pal began to purchase gutka,
where Mange Ram and Kaley, stood before the
shop. Suddenly, Sanjay @ Kalla and Vinod @
Bhura came from the back side and Vinod @
Bhura caught hold Mange Ram and Sanjay @
Kalla with intention to kill, inflicted gun shot
injury upon Mange (son of the complainant),
which resulted in the death of the deceased on
the spot.

5. On the basis of the written report
(Exhibit Ka.-1), the police registered a case as
Crime No. 406 of 2006, under Section 302
IPC and entry about registration of the case
was made in the General Diary on 24.07.2006.
Investigation of the case was taken over by the
Sub-Inspector Suraj Pal Singh (P.W.-5). He
rushed to the spot and recorded the statement
of the complainant Rishi Pal and prepared the
site plan.

6. The postmortem examination was
conducted on the dead body of the deceased
Mange Ram by P.W.-4, Dr. P. Kapoor,
Medical Officer, Community Health Centre,
Baghpat on 25.07.2006 at 10:45 am. As per
the post mortem report, the deceased was
about 26 years old at the time of the death and
possibility of death of the deceased was about
3/4th day from the date of postmortem. On
internal examination of the deceased, the
doctor opined that the deceased died due to
coma, shock and haemorrhage due to ante
mortem injuries. Ante mortem injuries are as
follows :

Gun shot wound of exit on right side
of head of size 3.5 cm x 1.5 cm margin
everted.

Gun shot wound of entry on left side
of neck of size 7 cm x 5 cm located above left
collar bone margin inverted on dissecting
underlying tissues and vessels lacerated and
torn. On dissecting and probing injury nos. 1
and 2 in direct communication.

7. During investigation, the Investigating
Officer recorded the statements of the
witnesses. After completing all formalities of
investigation, he submitted the charge sheet
(Exhibit Ka.-13) against the appellants in the
Court of Chief Judicial Magistrate, Baghpat
under Section 302 IPC and the cognizance of
offence was taken by the Magistrate. The case
was committed to the Court of Sessions Judge
by
the
Chief
Judicial
Magistrate
and
thereafter, the case was transferred to the
Court of Additional Sessions Judge, Fast
Track Court-I, Baghpat. On 17.04.2017,
charge was framed against the appellants
under Section 302 IPC and the accusedappellants pleaded not guilty and claimed to
be tried.

8. In order to prove the charges framed
against the appellants, the prosecution has
examined the complainant (P.W.-1) Rishi Pal,
(P.W.-2) Pappu, (P.W.-3) Kaley, (P.W.-4) Dr.
Pradeep
Kapoor,
(P.W.-5)
Sub
Inspector
104 INDIAN LAW REPORTS ALLAHABAD SERIES
Surajpal Singh, (P.W.-6) Clerk Surendra Singh,
(P.W.-7)
Ashok
Kumar,
(P.W.-8)
Head
Constable Ram Kishan Rathi.

9. In examination-in-chief the complainant
Rishi Pal (P.W.-1) who is a witness of fact, but
not eye witness, stated that the incident took
place on 24.07.2006. His son Mange was going
to see buffalo at the house of Rajiv with Pappu
and Kaley. At 4:30 p.m., they reached at the
shop of Tej Pal Jhevar, then Sanjay @ Kalla and
Vinod @ Bhura came from back side, Vinod @
Bhura caught hold his son and Sanjay @ Kalla,
fired gun shot injury by country made pistol,
which hit on the head of the deceased and
resultantly he died on the spot. Pappu (P.W.-2)
and Kaley (P.W.-3) came at the house of the
complainant and narrated the story to the him.
The complainant has proved the written report as
Exhibit Ka-1. There was hot-talk among Mange,
accused Sanjay @ Kalla and Vinod @ Bhura
prior to 12 days prior to the incident and both
have threatened him. In his cross examination,
P.W.1 stated that the incident took place at about
4:30 pm. The house of P.W.-2 is at about one
and a half km far from his house. P.W.-2 went to
see buffalo. He visited the spot 10-15 minutes
after the incident. The information was given by
P.W.-2 and P.W.-3, but they have not visited the
spot again. The police came on the spot 15
minutes after the incident. Police has recovered
one empty cartridges, blood stained soil and
plain soil. Recovery memos were not prepared
before me. There was injury on the left side of
the ear of the deceased, except this, there was no
other injury on the body of the deceased.

10. P.W. 2 Pappu, who is an eye witness of
the incident had deposed that incident took place
on 24.07.2006, they were going to see buffalo at
the house of Rajeev with Mange and Kaley
(P.W.-3). They reached at the shop of Tej Pal
Jhevar at 04:25 pm. He went to take dilbag
(gutka) from the shop. Mange and Kaley were
standing on Kharanja, in the meanwhile,
accused namely, Vinod @ Bhura and Sanjay @
Kalla came there, Vinod caught hold Mange
from the back side and Sanjay shot fire from
country made pistol, which hit on the head of
deceased. Seeing the incident, Pappu (P.W.-2),
Kaley (P.W.-3) and accused fled away from the
place of occurrence. P.W.-2 and P.W.-3 went to
the house of the complainant and narrated the
story to him. The complainant (P.W.-1) rushed
to the place of incident. They also accompanied
him and saw that Mange was dead. He wrote the
report of the incident. He has identified his
handwriting and signature on the written report
(Ex.Ka-1).

11. In cross-examination, P.W.-2 stated
that the shop of Tej Pal is about four steps far
from the place of occurrence. He stood at the
gate of the shop and there was no other person.
Tej Pal has not seen the occurrence, because he
was inside of the shop. There was only one fire
on the spot. When accused Vinod caught Mange
(deceased), the deceased shouted, then P.W.-2
reached there. He told the complainant that
Kalla fired gun shot upon Mange, but he did not
tell about the death of the deceased on the spot.
Written report was dictated by the complainant
P.W.-1 and some lines were written by P.W.-2,
both prepared the written report jointly. The
complainant had not seen the occurrence. He
told the complainant that Mange received gun
shot injury and he rushed from the spot. All the
facts are not required to be narrated in the FIR.
After receiving fire arm injury, Mange fell down
and all of them along with the accused fled away
from there. This fact was not mentioned in the
FIR. Mange died on the spot. After incident, we
ran in the north side and accused ran in the south
side. In the spot map, direction of fleeing away
has not been shown by the Investigating Officer.
The reason is not known to him. Sanjay put fire
arm over Mange from 4-5 steps. When Sanjay
shot fire on Mange, Vinod caught hold the leg of
Mange. This fact was not written in the FIR. He
has shown the place from where accused fired
11 All. Sanjay @ Kalla Vs. State of U.P.
105
upon Mange, if this place was not shown in the
spot map, then he could not give reasons
therefor. He has heard that there was hot talk
among deceased and accused about 15 days
prior to the incident. This fact was told by him.
Regarding this, no report has been lodged. The
appellants-accused murdered the deceased due
to enmity. In the report, it was not alleged that
country made pistol was not used as weapon in
the commission of offence, only ''weapon' word
has been used. Country made pistol and Katta,
both are the same weapons. When Mange
received fire arm injury on his head, he was five
steps far from the spot. When accused Vinod
caught hold Mange, accused Sanjay was about
five steps far from Vinod. When Vinod caught
Mange, the back of the Mange was in south and
west side. Face of Vinod was very near to the
back of Mange. Face of Mange was towards
shop. When police took the dead body of the
deceased, then there was protest by villagers to
pressurise the police to arrest the accused. When
Vinod caught hold Mange, he was in bent
position. Vinod caught hold both the legs of
Mange. Accused Sanjay had not stated to Vinod
to catch hold Mange before him. Mange tried to
save himself, meanwhile, he received fire arm
injuries. At the time, when Vinod caught hold
Mange, he had not taken dilbag (gutka),
shopkeeper was taking the dilbag from the shop,
he did not know that there were fifty cases
against Mange and faced long litigation. It is
wrong to say that due to terror of deceased
someone has murdered him.

12. P.W.-3. Kaley, who is an eye witness,
had supported the prosecution case and deposed
that incident took place about 9-10 months ago.
Kaley, Mange, father of Mange, Rishi Pal sat in
the house. Pappu came in the house and said to
give company in seeing the buffalo. They
proceeded to see the buffalo. They reached at the
shop of Tej Pal, Pappu said that it is not the time
for milking, he wanted to purchase gutka. Pappu
went to the shop of Tej Pal to purchase gutka at
4:00-4:15 pm. He was standing there, Mange
was also standing behind Kaley. Bhura caught
hold Mange from the back side and Kalla put
fire arm injury on the head of Mange. Bhura and
Kalla fled away from the spot Kaley and Pappu
also fled towards the house and told the incident
to the father of the deceased Mange that Mange
received fire arm injury. On hearing, they
proceeded towards spot and saw that Mange
died on the spot. They again returned back to his
house and report of the incident was written by
Pappu. Election took place 20 days prior to the
incident. Accused threatened Mange that they
would not leave him.

13. In cross-examination, he has stated that
Mange is the son of his real uncle Rishi Pal.
Pappu s/o Vijay Pal had good friendly relations
with Mange. Mange was affected by folize
(disease) from 14 years. He was under treatment.
He was standing in the left side of the shop of
Tej Pal at the time of incident. He has not visited
the school; there was Kharanja on the spot. The
house of accused Sanjay and Vinod are nearby
and they can be approached there within 3-4
minutes. There were houses in all directions
from the spot. It was well developed area. After
the incident, he went from the place of
occurrence. Sanjay and Vinod also fled away
from the place of occurrence. Police came on the
spot after half an hour of the incident and
recovered one empty cartridge from the spot and
taken soil from there and sent for FSL report.
Police recorded the evidence of the complainant
Rishi, Kaley and Pappu. Rishi Pal went to the
police station for lodging FIR in the vehicle of
Anuj. He has told that incident took place at
4:15 pm. Police station is about 3 kms far from
his village. Police Chauki is about 1 km far from
his village. Written report was prepared by
P.W.-2 and then given to the complainant. As
soon as they reached the shop, incident took
place within a second. It took 15 minutes time in
reaching the house of the complainant. He told
the Investigating Officer that Bhura and Kalla
106 INDIAN LAW REPORTS ALLAHABAD SERIES
fled away from the spot. If this statement was
not written by Investigating Officer, he could
not disclose the reason. He visited three times on
the spot on the date of incident, where the dead
body of Mange was lying; Rishi Pal wept
bitterly. Mother of Mange also came there and
she also wept. He and accused did not flee in the
same direction. Accused had not abused Mange
on the spot. Mange, the deceased was
unmarried. Vinod lives in the village. It is wrong
to say that Vinod was doing job in Delhi and
Muzaffar Nagar in security service. I saw the
incident, there was only one fire arm shot.
Accused Sanjay came with country made pistol
from his back side; when Sanjay shot fire upon
Mange, he was about four steps far from him.
Deceased and accused Sanjay were on the same
height. Kaley was on the platform (chabutara).
He saw the incident standing on platform, Pappu
was standing at the gate of the shop, blood was
lying on the bricks of kharanja. After the
incident, Kaley fled away from the place of
occurrence. There was fire arm injury on the
head of Mange; due to the said fire arm injury,
Mange died on spot. Pappu was with Kaley. The
entire incident which was seen by Kaley, was
narrated to complainant.

14. P.W.-4 Dr. Pradeep Kapoor, evidence
of the doctor has already been stated earlier.

15. P.W.-5 S.I. Suraj Pal Singh had proved
recovery memo of blood stained and plain earth
(Ex.Ka.-3) and recovery memo of empty
cartridge (Ex.Ka.-4). This witness has also
proved that site plan (naksha nazri) (Ex.Ka.-5)
and inquest report (Ex.Ka.-6), which was
prepared by S.I. Sompal Singh. Letter R.I.
(Ex.Ka.-7),
letter,
Chief
Medical
Officer
(Ex.Ka.-8), photo of dead body (Ex.Ka.-9),
Challan (Ex.Ka.-10), report of FSL (Vidhi
Vigyan Prayogshala) (Ex.Ka.-14), pant material
(Ex.-5), shirt material (Ex.-6), Kalava (band)
material (Ex.-7), shoes material (Ex.-8) and
cloth material (Ex.-9) have been produced by the
prosecution as documentary evidence.

16. P.W.-6 Constable Clerk, Surendra
Singh had proved FIR as (Ex.Ka.-14) and carbon
copy of GD (Ka.-15).

17. P.W.-7 Constable Ashok Kumar had
proved recovery memo of country made pistol
(Ex.Ka.-11).

18. P.W.-8 ASI Ram Kishan Rathi, who
was Investigating Officer of Crime No. 432 of
2006 under Section 25/27 Arms Act, had proved
smart map (Ka.-16), prosecution signature (Ka.-
17), chik FIR (Ka.-19) and carbon copy of GD
(Ka.-20).

19. Accused had examined D.W.-1 (Dhare)
and D.W.-2 (Constable Sudesh Kumar) in his
defence and had proved the history-sheet of
Mange (Ex.Kha.-1), accused Vinod @ Bhura
had filed photostat copy of Security Services
from the list. No other evidence has been
adduced by the defence.

20. After evaluating the evidence available
on record, the Trial Court reached to the
conclusion that the prosecution has successfully
proved its case against the appellants beyond
reasonable doubts and accordingly convicted
and sentenced the appellants as referred above.

21. Learned counsel for the appellants has
submitted that they have been falsely implicated
in this case. He further submitted that the case of
the prosecution falls within the ambit of Section
304 Part-1 IPC. Accused was history-sheeter,
notorious person, he has enmity with so many
persons, but there was no motive to cause the
incident. There is contradiction in the statements
of the witnesses. They are related to the
deceased. Their testimonies are not reliable and
trustworthy.
11 All. Sanjay @ Kalla Vs. State of U.P.
107

22. Learned counsel for the appellant
Vinod @ Bhura has submitted that role of
accused Vinod is quite different, he was not
present on the spot. Role of catching hold the
deceased has been assigned to the accused as
alleged by prosecution, is false.

23. Statement of the accused under Section
313 Cr.P.C. had been recorded, in which, he has
stated that witnesses had given their evidence
due to enmity and village party bandi and
accused had been falsely implicated in the
present case. Accused -Sanjay @ Kalla has
stated that deceased was defamed in the area. He
had enmity with others and he has ill will against
the females of the village. In this regard, many
times panchayat was organized. His father and
family members insulted the father of Mange
and Pappu, so he was falsely implicated. Vinod
@ Bhura had stated in his statement that he is
living in Delhi and Muzaffar Nagar with his
children prior to 7-8 years of the incident; he
was working as Security Guard and on the day
of the incident he was not present in the village.

24. Police had filed another charge sheet
against accused Sanjay @ Kalla under Section
25/27 Arms Act. Prosecution case, in brief, in
this regard is that recovery memo had been
prepared on 11.08.2006 (Ex.Ka.-11), in which, it
has been stated that while in police remand the
accused Sanjay @ Kalla had taken the police
personnel to the place where weapon of the
murder had been hidden by the accused and on
the pointing out of accused Sanjay @ Kalla,
Alha
katal
was
recovered;
accused
had
concealed country made pistol of 315 bore in the
field of sugar cane. Accused has also stated that
on 24.07.2006, he had committed the murder of
Mange by that country made pistol.

25. Prosecution had examined PW-7
(Constable Ashok Kumar) to prove the recovery
memo and P.W.-8 (ACP Ram Kisan Rathi), who
conducted the investigation of this case and filed
charge sheet under Section 25/27 Arms Act
against the accused Sanjay @ Kalla (Ex.Ka.-18).
He also proved GD of this Crime No. (Ex.Ka.-
19). After examination of the entire evidence,
learned trial court had acquitted the accused
Sanjay @ Kalla for the charges under Section
25/27 Arms Act against which no appeal has
been preferred.

26. Learned AGA vehemently opposed the
submissions made by learned counsel for the
appellants and submitted that it is a daylight
murder; eye witnesses had been examined,
whose testimony is fully reliable and credible.
There is no cause to falsely implicate the
accused. Accused had committed very serious
offence, which has been proved by the
prosecution
through
cogent,
reliable
and
trustworthy evidence beyond reasonable doubt.
In this way, learned trial Judge has passed the
judgment and order dated 18.07.2007 and
sentenced the appellants properly as per law.
The evidence on record is sufficient on the basis
of which learned trial Judge has concluded the
conviction of appellants which is right in the
eyes of law. There is no illegality or impropriety
in the order dated 18.07.2007. The appeals are of
no force and are liable to be dismissed.

27. We have heard Sri Dharmendra
Singhal, learned Senior Advocate assisted by Sri
Atmaram Nadiwal, Sri Sudhir Kumar Agarwal
and Sri Naveen Kumar Yadav, learned counsel
for the appellants as well as learned AGA for the
State and perused the material available on
record.

28. Learned counsel for the appellants has
submitted that present FIR is ante-time and has
pointed out the statement of complainant (PW1), which is on page 38 of paper book, that he
has not stated in the report that there was hot
talk among his son and accused 10 days prior to
the incident. He has not stated the fact in the
report that he was unaware about that fact. He
108 INDIAN LAW REPORTS ALLAHABAD SERIES
came to know about that fact after lodging report
on the basis of rumour in the village.

29. The incident took place on 24.07.2006
at 4:30 pm and FIR was lodged at 6:15 pm,
place of occurrence is about 4 kms far from the
police station. PW-1 (complainant) has proved
(Ex.Ka.-1), written report through his statement.
Scribe of the said written report i.e. Pappu (PW2), also proved the writing and contents of the
written report. On the basis of this report, FIR
was lodged. PW-6 (Constable Clerk Surendra
Singh) has proved chik FIR as (Ex.Ka-14A) and
GD as (Ex.Ka.-15).

30. PW.-1 has stated in his statement that
he had prepared written report with the help of
Pappu s/o Vijay Pal. Pappu is the writer of the
report. Contents of the report has been told to
Pappu by him and few facts were also written by
Pappu himself, as he was eye witness. Police
came on the spot after lodging the report, there
was protest against the police for 24 hours for
the reason that actual name of assailants were
not told to him clearly. On this point PW-2 has
stated that protest was made against the police to
pressurize the police for arresting the accused.
Thus, it is evident that FIR has been lodged
against the accused within two hours from the
time of incident. Police station is 4 kms far from
the place of occurrence. Deceased was 26 years
old and after the murder of such young son,
father has consoled himself and lodged FIR
within 2 hours. It shows that FIR was lodged
promptly without consultation or legal advice.
Natural facts were stated in the FIR. It is also
alleged that in panchayatnama, names of the
assailants have not been mentioned, which
shows that panchayatnama has been prepared
prior to lodging the FIR. Crime number and
Section details of GD has been mentioned in the
panchayatnama. Mentioning the name of the
accused is not required in inquest report as held
in the case of Seikh Ayuub Vs. State of
Maharashtra 1999 SCC Criminal page 1055.
Thus, from the evidence on record, it is clear
that FIR was lodged prior to panchayatnama.
FIR is not anti-time but lodged promptly within
two hours from the time of the occurrence
without due consultation.

31. Learned counsel for the appellants has
submitted that there was no motive to cause that
incident. Motive has not been stated in the FIR.
In the evidence, it has come that 10 days prior to
the incident, there was hot talk among the
deceased and accused. From the evidence on
record, it is evident that deceased was a man of
criminal mentality and he was within top 10
criminals of the police station. From the
evidence on record, it is also proved that the
incident took place at 4:30 pm, there was ample
light on the spot to recognize the accused by the
witnesses. It is a case of direct evidence. In the
case of direct evidence, motive becomes
insignificant.

32. In support of above contentions,
learned A.G.A. placed reliance on following
decisions :

33. In Pratap Singh and others vs. State
of UP 2021, SCC Online All 686, the Court
held that :

"motive is not very relevant in a case
of direct evidence, where it dependable ocular
version is available. Once, there is evidence
forthcoming on the basis of an eye witness
account that is consistently narrated by multiple
witnesses motive is hardly relevant. "

34. In Abu Thaker Vs. State of Tamil
Nadu, (2010) 5 SCC 91, the Court held that :

"It is settled legal proposition that even
if the absence of motive and if allowed is
accepted that is of no consequence and pales
into
insignificance
when
direct
evidence
11 All. Sanjay @ Kalla Vs. State of U.P.
109
establishes the crime, therefore, in case, there is
direct, trustworthy evidence of witnesses as to
commission of an offence, the motive part uses
its significance. Therefore, if the genesis of
motive of occurrence is not proved, the ocular
testimony of the witnesses as to the occurrence
could not be discarded only by reason of
absence of motive, if otherwise the evidence is
worthy of reliance."

35. In Bipin Kumar Mondal Vs. State of
West Bengal, (2010) 12 SCC 91, the Court held
that :

"motive is of no consequence and
pales into insignificance when direct evidence
establishes the crime. Motive is a thing which is
primarily known to the accused himself and it
may not be possible for the prosecution to
explain it. Ocular testimony of the witnesses if
reliable cannot be discarded only by the reason
of the absence of motive."

36. Trial court was also of the view that
P.W.-2 and P.W.-3 has deposed that both were
present at the time of occurrence. Murder of
Mange has been committed before them. They
have witnessed the occurrence. Thus, in the
presence of direct and reliable evidence, motive
looses its importance. It is not required to
mention each and everything in the FIR. If
motive has not been mentioned in the FIR, this
will not damage the prosecution case.

37. The postmortem examination was
conducted on the dead body of the deceased
Mange Ram by Dr. P. Kapoor, Medical Officer,
Community
Health
Centre,
Baghpat
on
25.07.2006 at 10:45 am. Deceased was about 26
years old and possibility of death of the
deceased was about 3/4th day from the date of
the postmortem.

38. On internal examination, doctor found
that the deceased died due to coma, shock &
haemorrhage due to ante mortem injuries. Ante
mortem injuries have already been discussed
above. In the opinion of the doctor, cause of
death was due to coma, shock & haemorrhage
and due to ante-mortem injuries.

39. The main question before us is that,
whether accused Sanjay @ Kalla and Vinod @
Bhura caused the murder of Mange in
furtherance of common intention? P.W.-1 the
complainant (father of the deceased) has
deposed in his evidence that incident took place
on 24.07.2006, his son Mange along with Pappu
and Kaley went at the house of Rajeev to see a
buffalo. They reached at the shop of Tej Pal
Jhevar at 4:30 pm, Pappu went to purchase
dilbag (gutka) from the shop. Mange and Kaley
were standing outside the shop, then Sanjay @
Kalla and Vinod @ Bhura came from the back
side, Vinod caught hold his son Mange and
Sanjay fired from country made pistol which hit
in the head of Mange and he died on the spot.
Pappu and Kaley came at the house and told the
story to the complainant.

40. P.W.-2 is the eye witness who has
deposed that incident took place on 24.04.2006,
when they were going to see buffalo at the house
of Rajeev with Mange and Kaley. They reached
at the shop of Tej Pal Jhevar at 04:25 pm. He
went to take dilbag (gutka) from the shop.
Mange and Kaley were standing on Kharanja, in
the meanwhile, accused namely, Vinod @ Bhura
and Sanjay @ Kalla came, Vinod caught hold
Mange from the back side and Sanjay shot fire
from country made pistol on the head of Mange.
Seeing the incident, Pappu, Kaley and accused
fled away from the place of occurrence. Pappu
and Kaley went at the house of the complainant
Rishi and told about the incident.

41. P.W.-3 who has given eye witness
account, has also stated that incident took place
about 9-10 months ago. Kaley, Mange, father of
Mange, Rishi Pal; sat in the house. Pappu came
110 INDIAN LAW REPORTS ALLAHABAD SERIES
in the gher and said to give company in seeing
the buffalo. They proceeded to see the buffalo.
They reached at the shop of Tej Pal; Pappu said
that it is not the time for milking; he wanted to
purchase gutka. Pappu went at the shop of Tej
Pal to purchase gutka at 4:00-4:15 pm. He was
standing there, Mange was also standing behind
Kaley. Bhura caught hold Mange from the back
side and Kalla fired on the head of Mange.
Bhura and Kalla fled away from the spot. Kaley
and Pappu also fled away towards the house and
told the father of Mange, Rishi Pal that Mange
received fire arm injury. On hearing that, they
proceeded towards spot and saw that Mange
died on the spot.

42. In cross-examination, he stated that there
is no evidence on record which shows that accused
had not committed the heinous crime. The
presence of accused, deceased and witnesses were
proved on the spot. It is evident from the
postmortem report that deceased sustained gun
shot injury-exit on right side of head of size 3.5 cm
x 1.5cm margin everted, gun shot wound of entry
on left side of neck of size 7 cm x 5 cm located
3cm above left collar bone margin inverted on
dissecting underlying tissues and vessels lacerated
and torn and dissecting & probing injury nos. 1 &
2 in direct communication.

43. It is also submitted that such injury is
not possible five steps far from where the
accused shot fire over the deceased. The nature
of injury shows that injury has been caused on
vital part of the neck of the deceased but there
was no blackening and tattooing on the entry
wound, which shows that firing was made from
some distance from the deceased. Thus, from the
evidence, it is proved beyond reasonable doubt
that weapon used by Sanjay @ Kalla matches
with the injury sustained by the deceased and
accused Sanjay @ Kalla is only the person who
caused gun shot injury to the deceased by which,
the deceased Mange succumbed to death.

44. So far as the role of Vinod @ Bhura is
concerned, the role of catching hold the
deceased from the back side has been assigned
to accused Bhura. Witnesses P.W.-2 and P.W.-3
had stated that Vinod had caught hold the leg of
the deceased in bent position so there was no
danger to receive any injury to Vinod. Before
the Court, the witness has also shown after
catching the advocate below his hip. In such
position, co-accused Vinod caught hold the
deceased keeping in mind his safety, Sanjay @
Kalla had also fired gun shot injury in the neck
and head of the deceased. There is no reason to
falsely implicate the accused by the prosecution.

45. So far as section 34 IPC is concerned,
the act of accused was done in furtherance of
common intention to kill the deceased Mange. It
is very difficult to know the mental status of a
person. Common intention should be gathered
by the act and conduct of the accused. Both the
accused came jointly from the same direction,
Sanjay was carrying loaded country made pistol,
Vinod caught hold Mange and Sanjay fired upon
him. After committing the crime, they fled in the
same direction from the place of occurrence.
Deceased become helpless to save himself due
to catching hold by the accused Vinod. Thus
with the help of the said act and conduct, the
accused persons succeeded in their common
intention to kill the deceased Mange. Accused
Sanjay @ Kalla caused fire arm injury on the
neck which is on the vital part of the deceased
and the exit wound is on right side of the head of
the deceased.

46. So far as the role of Vinod @ Bhura is
concerned, Vinod has taken the plea of alibi that
he was not present on the spot and was doing
service in Delhi or Muzaffar Nagar. In this
support, Vinod had filed few papers from the
said firm vide 73(b), but the papers had not been
proved by any witness and no witness has been
produced by Vinod @ Bhura in his support that
11 All. Sanjay @ Kalla Vs. State of U.P.
111
at the time of occurrence he was not present on
the spot.

47. Contrary to this, it is averred by P.W.-3
on page-4 that Mange was suffering from
disease folize from 10 years, his leg was
comparatively thin. Knowing this fact, accused
Vinod caught hold Mange, by which, he became
unable to defend himself and the act of Vinod
had facilitated accused Sanjay @ Kalla in
commission of crime. Accused Vinod @ Bhura
had caught Mange at koli, leg, hip is immaterial.
The role of Vinod shows that his act was
effective in facilitating the commission of crime
and his participation in commission of the crime
was active one.

48. So far as the defence taken by the
accused under Section 313 Cr.P.C. is concerned,
accused Vinod had not stated that someone had
thrown the dead body of the deceased after killing
him. In the statement under Section 313 Cr.P.C.,
Sanjay had also not stated that someone has
thrown the body of the deceased before the shop of
Tej Pal. Defence has examined Dhare as D.W.-1,
who has deposed that about 3:00 pm, three
assailants came after covering their face by
chaddar and throw the body of Mange before the
shop of Tej Pal. In fact this was not the case of
defence. No suggestion has been placed in the
cross-examination of witnesses of fact that
unknown assailant threw the dead body of the
deceased Mange on spot. Trial court has not relied
on the evidence of D.W.-1 Dhare. Evidence of
D.W.-1 is totally improbable and unreliable. But
the evidence of the witness shows that dead body
of Mange was lying before the shop of Tej Pal. No
argument has been placed on the point of spot
map, spot map was not challenged by the defence.
Spot map is prepared according to place of
occurrence. From the evidence, it is proved that
deceased with witnesses were going to see the
buffalo, he was not returning from there. From
evidence of D.W.-2, it is proved that deceased
Mange was history-sheeter and was within the top
ten criminals of the police station but there is no
evidence that some other person had committed
this crime except the accused. The defence taken
by the accused is not probable.

49. Contradictions are minor in nature,
evidence of eye witnesses i.e. ocular evidence has
been supported by medical evidence.

50. It is also submitted that witness P.W.-2
Pappu is friend of the deceased and Kaley P.W.-3
is nephew of the deceased. Thus, they are related
witnesses and the testimony of these witnesses is
not reliable. No independent witness has been
produced by the defence.

51. In support of the above contentions, the
learned A.G.A. placed reliance on the decisions
in following cases :

52. In Mohd. Rojali Ali and others vs.
State of Assam (2019) 19 SCC 567, the Court
held that :