# Shankar Yadav v. State of U.P

- **Citation:** (2024) 4 ILRA 1160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-24
- **Case number:** Criminal Appeal No. 1731 of 2004
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankar-yadav-v-state-of-u-p-51779
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 148, 149 & 302 - Code of
Criminal Procedure, 1973 - Sections 161,
313 & 437-A - Criminal Appeal Against
Conviction and Sentence - Rioting - Murder -
Unlawful Assembly - Dying Declaration -
Reliability of Witnesses - Delay in FIR -
Contradictions in Testimonies - False Implication
- The appellant, Shanker Yadav, challenged the
judgment dated 25.03.2004 by the Additional
Sessions Judge/F.T.C.-IV, Jaunpur, in Sessions
Trial No. 41 of 1990, convicting him and four coaccused (Jwala Prasad, Bankey Lal, Shyam
Bahadur, Mithai Lal) under Section 148 IPC (1
year simple imprisonment) and Section 302/149
IPC (life imprisonment, Rs. 20,000 fine each, 1
year additional imprisonment in default) for the
murder of Rambali Yadav on 26.08.1989 at 6:00
PM near an unpaved road in Jaunpur. The
prosecution case, based on a written report by
PW-1 (Lalji Yadav, deceased's brother), alleged
that the accused, armed with gandasas and a
4 All. Shankar Yadav Vs. State of U.P.
1161
lathi, assaulted Rambali due to prior enmity over
land disputes and a pending Section 107 Cr.P.C.
case. The FIR was lodged at 4:30 AM on
27.08.1989, supported by PW-1 and PW-3 (Hari
Shanker Yadav) as eye-witnesses, a purported
dying declaration to the deceased's father (Jai
Shri), and medical evidence showing 18 incised
wounds. The appellant claimed false implication
due to ongoing litigations. Held: (1) The appeal
was allowed, reversing the conviction and
sentence, and the appellant was ordered to be
released, subject to Section 437-A Cr.P.C.
compliance. (2) The prosecution failed to prove
guilt beyond reasonable doubt due to unreliable
testimonies of PW-1 and PW-3, who were
interested witnesses (brother and friend of the
deceased) and likely not present at the incident,
as they reached the spot after the accused fled.
(3) The alleged dying declaration to Jai Shri was
unreliable, lacking proof of the deceased's fit
mental St., certification, or corroboration, as Jai
Shri and other witnesses (Sukhdeo, Santram,
Amarnath) were not examined, per Irfan Vs St.
of U.P., 2023 SCC OnLine SC 1060, Surinder
Kumar Vs St. of Har., (2011) 10 SCC 173, and
Naresh Kumar Vs Kalawati, 2021 SCC OnLine SC

## Text

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1160 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of PW-1 and PW-2 cannot be
termed to be wholly reliable. The testimony
of victim cannot be treated as that of a
sterling witness, which alone can be
relied upon to convict the accused
persons. The fact that no protest was
made for almost two months nor anyone
in the family raised any alarm are factors,
which persuade us to doubt the testimony
of injured witness. There are no other
incriminating material adduced by the
prosecution against the accused persons.
Possibility
of
false
implication
on
account of enmity between the two sides
cannot be ruled out. One of the accused
namely Rahul has been declared juvenile
and his trial has been segregated.
Accused appellant Shripal Yadav is in jail
since
the
date
of
judgment
i.e.
14.12.2017.
He
was
also
remained
incarcerated for about 11 months during
the trial.

21. Considering the totality of
circumstances placed on record and for
the reasons recorded above, we are of the
considered opinion that prosecution has
failed to establish the guilt of the accused
appellant beyond reasonable doubt. The
trial court has also not examined the
testimony
of
witnesses
in
correct
perspective.

22. In that view of the matter,
this appeal succeeds and is allowed. The
judgment and order of conviction and
sentence dated 14.12.2017, passed by the
Special
Judge
(POCSO)/
Additional
Sessions
Judge,
Court
No.6,
Shahjahanpur in Special Case No.60 of
2014 is reversed. The appellant Shripal
Yadav shall be set free, unless he is
wanted in any other cases, subject to
compliance of Section 437-A Cr.P.C.
----------
(2024) 4 ILRA 1160
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1731 of 2004

Shankar Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Jagdish Singh Sengar, Sri Babu Lal Ram, Sri
Prem Chandra Patel, Sri Ram Babu Sharma, Sri
Vindhyachal Singh, Sri Muktesh Kumar Singh, Sri
Ashok Kumar Singh Yadav, Sri Sanjay Kumar
Yadav, Sri Rajesh Yadav, Sri V.P. Srivastava (Sr.
Adv.)

Counsel for the Respondent:
Govt. Advocate, Sri Dhirendra Kumar Srivastava,
Sri Ram Ji Yadav, Sri Saroj Kumar Dubey, Sri
Vineet Kumar Yadav, Sri Virendra Pratap Pal, Sri
Siddhartha Shukla, Sri Rajiv Lochan Shukla

Criminal Law - Indian Penal Code, 1860 -
Sections 148, 149 & 302 - Code of
Criminal Procedure, 1973 - Sections 161,
313 & 437-A - Criminal Appeal Against
Conviction and Sentence - Rioting - Murder -
Unlawful Assembly - Dying Declaration -
Reliability of Witnesses - Delay in FIR -
Contradictions in Testimonies - False Implication
- The appellant, Shanker Yadav, challenged the
judgment dated 25.03.2004 by the Additional
Sessions Judge/F.T.C.-IV, Jaunpur, in Sessions
Trial No. 41 of 1990, convicting him and four coaccused (Jwala Prasad, Bankey Lal, Shyam
Bahadur, Mithai Lal) under Section 148 IPC (1
year simple imprisonment) and Section 302/149
IPC (life imprisonment, Rs. 20,000 fine each, 1
year additional imprisonment in default) for the
murder of Rambali Yadav on 26.08.1989 at 6:00
PM near an unpaved road in Jaunpur. The
prosecution case, based on a written report by
PW-1 (Lalji Yadav, deceased's brother), alleged
that the accused, armed with gandasas and a
4 All. Shankar Yadav Vs. State of U.P.
1161
lathi, assaulted Rambali due to prior enmity over
land disputes and a pending Section 107 Cr.P.C.
case. The FIR was lodged at 4:30 AM on
27.08.1989, supported by PW-1 and PW-3 (Hari
Shanker Yadav) as eye-witnesses, a purported
dying declaration to the deceased's father (Jai
Shri), and medical evidence showing 18 incised
wounds. The appellant claimed false implication
due to ongoing litigations. Held: (1) The appeal
was allowed, reversing the conviction and
sentence, and the appellant was ordered to be
released, subject to Section 437-A Cr.P.C.
compliance. (2) The prosecution failed to prove
guilt beyond reasonable doubt due to unreliable
testimonies of PW-1 and PW-3, who were
interested witnesses (brother and friend of the
deceased) and likely not present at the incident,
as they reached the spot after the accused fled.
(3) The alleged dying declaration to Jai Shri was
unreliable, lacking proof of the deceased's fit
mental St., certification, or corroboration, as Jai
Shri and other witnesses (Sukhdeo, Santram,
Amarnath) were not examined, per Irfan Vs St.
of U.P., 2023 SCC OnLine SC 1060, Surinder
Kumar Vs St. of Har., (2011) 10 SCC 173, and
Naresh Kumar Vs Kalawati, 2021 SCC OnLine SC
260. (4) A 10-hour delay in lodging the FIR was
unexplained, casting doubt on the prosecution
case. (5) Major contradictions in PW-1 and PW3's testimonies (e.g., timing of arrival, lighting
conditions, presence of others) and their enmity
with the accused suggested possible false
implication. (6) The trial court failed to critically
evaluate evidence, and the prosecution evidence
was insufficient to sustain the conviction.

List of Cases cited:

1. Irfan alias Naka Vs St. of U.P., 2023 SCC
OnLine SC 1060

2. Surinder Kumar Vs St. of Har., (2011) 10 SCC
173

3. Naresh Kumar Vs Kalawati & ors., 2021 SCC
OnLine SC 260

4. Paparambaka Rosamma (referred to in
Naresh Kumar Vs Kalawati)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This criminal appeal has been
preferred by the accused-appellant Shanker
Yadav against the judgment and order dated
25th March, 2004 passed by the Additional
Sessions
Judge/F.T.C.-IV,
Jaunpur
in
Sessions Trial No. 41 of 1990 (State of U.P.
Vs. Jwala Prasad & Others), arising out of
Case Crime No. 110 of 1989, under
Sections 148, 149 and 302 of I.P.C., Police
Station-Baxa, District-Jaunpur, whereby the
accused-appellant along with four other coaccused, namely, Jwala Prasad, Bankey
Lal, Shyam Bahadur and Mithai Lal, has
been convicted and sentenced to undergo
one year simple imprisonment for the
offence punishable under Section 148 of
I.P.C. and life imprisonment for the offence
punishable under Section 302/149 I.P.C.
with a fine of Rs. 20,000/- each, in default
thereof he has to further undergo one year
additional imprisonment.

2. We have heard Mr. V.P.
Srivastava,
learned
Senior
Advocate,
assisted by Mr. Ashok Singh Yadav, Mr.
Sanjay Kumar Yadav, Mr. Rajesh Yadav,
learned counsel for the accused-appellant,
Mr. Rajeev Lochan Shukla, Mr. Direndra
Kumar Srivastava, learned counsel for the
respondent, Mr. Siddhartha Shukla, learned
counsel for the first informant and Mr.
Arun Kumar Pandey, learned A.G.A. for
the State and also perused the entire
materials available on record.

3. The prosecution case is based
upon a written report dated 26th August,
1989 (Exhibit-Ka/1) of first informant,
namely, Lal Ji Yadav (P.W.-1) wherein he
has stated that there was a rivalry between
his family and the family of the accused
Jwala Prasad due to certain litigations.
Earlier, the accused persons had beaten the
father of the informant, which case under
Section 107 was pending in the court.
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
Because of the said case, the accused Jwala
Prasad along with other accused persons
had grudge. On 26th August, 1989 at
around 6:00 p.m., when the brother of the
informant,
namely,
Rambali
was
returning to his house after taking
medicine for the use of his child from
Lakhaunwa market, the informant himself
and Harishankar were also following him.
As soon as the brother of the informant
crossed the railway line and reached the
unpaved road, the accused Jwala Prasad,
Banke Lal, Shyam Bahadur, Shankar
(accused-appellant) and Mithai, who
resided in the same village, arrived. The
accused Jwala, Bankey Lal, Shyam
Bahadur and Shankar (accused-appellant)
had Gandasas in their hands and the
accused Mithai had stick in his hand. The
above accused persons, after surrounding
the brother of the informant, started
beating him brutally. On hearing the
scream of the informant and when the
informant
and
Harishankar
shouted,
Sukhdev and Santram, who were coming
from the market, arrived. On this the
accused ran away threatening them. The
brother of the informant had fallen down
due to injuries sustained by him. His
condition was severe. He was taken to
Sadar Hospital by auto rickshaw and was
admitted where he died at 11:30 in the
night. On the basis of such written report
dated 27th August, 1989 (Exhibit-Ka/1),
first information report (Exhibit-Ka/4)
came to be lodged at 04.30 a.m. on 27th
August, 1989 in respect of the incident
which occurred on 26th August, 1989 at
about 06:00 p.m. (evening).

4. Thereafter, the inquest followed
and the inquest report dated 27th August,
1989 came on record (Exhibit-ka/6). It is
mentioned in the inquest report that the
death of the deceased relates to an offence,
which requires doctor's opinion and the
body of the deceased be sent for postmortem.

5. The post-mortem has been
conducted on 27th August, 1989 at 04:30
p.m. and in the post-mortem report
(Exhibit-ka/16), the cause of death of the
deceased has been reported to be shock and
haemorrhage as a result of following antemortem injuries:

"1. Incised wound 4 cm x 4 cm
above right eye brow on the seal.
2. Incised wound 1.5 cm x 4 cm
above incised wound no.1.
3. Incised wound 5 cm. bone deep
on right ... 5 cm. above injury no.1
4. Incised wound stitched 7 cm
above injury no.1 or temporal bone.
5. Incised wound 5 cm. stitched on
10 cm. above root of the nonjections
wound.
6. 0.2 cm x 0.2 cm on the frontal
aspect of left elbow joint.
7. Incised 4 cm. stitched, 4 cm
below left knee joint on anteromedial
aspect,
8. Incised wound 1 cm x 0.5 cm on
the anteromedial aspect of left leg 4 cm.
below knee.
9. 2 parallel incised wounds 6 cm
each stitched 1 cm. apart 10 cm injury no.7
on anteromedial aspect of left leg.
10. Incised wound 2 cm x 0.5 cm
anteromedial aspect of left leg 14 cm.
below injury no.7.
11. Incised wound 5.5 cm. stitched
10 cm. below right knee joint on
anterolateral part.
12. Incised wound 7 cm. x 4 cm.
below injury no.11.
13. Incised wound 2.5 cm. x 0.5 cm.
3 cm. below injury no. 11 antero lateral
aspect.
4 All. Shankar Yadav Vs. State of U.P.
1163
14. Incised wound 2.5 cm. x 1 cm.
on right antero lateral of the right leg 2 cm.
above lateral malleolus .
15. Incised wound 7 cm. x 01 cm.
on heel 7.5 cm. below ankle joint on the
dorsal aspect on lateral side. "

6. The investigation was conducted
by the Inspector Jagannath Tiwari (P.W.-4).
He
has
recorded
the
statements
of
witnesses and prepared the site plan. He
has also collected the blood stained earth
and plain earth and prepared the recovery
memo. After conclusions of the statutory
investigation under Chapter XII Cr.P.C..
P.W.-4 has submitted the charge-sheet
against the accused persons including the
present appellant, namely, Jwala Prasad @
Achhey Lal, Bankey Lal, Shaym Bahadur,
Shanker and Mithai.

7. On submission of charge-sheet,
the concerned Magistrate took cognizance
in the matter and committed the case to the
Court of Sessions by whom the case was to
be tried. On 5th November, 1992, the
concerned Court framed following charges
against the accused-persons:

"Firstly; that you, on 26.8.1989 at
about 6 P.M. in the evening near kuchcha
road of village Lakhawan besides Railway
Line, within the circle of P.S.Buxa, district
Jaunpur, were member of an unlawful
assembly armed with deadly weapon, like
Gandasa and lathi, and in prosecution of
the common object of that assembly, used
force, committed the offence of rioting with
the said weapon, punishable under section
148 of I.P.C., and within the cognizance of
this Court; and
Secondly;
that
you,
on
the
aforesaid date, time and place, being
member of above unlawful assembly and in
prosecution of common object of murder of
Rambali Yadav son of Jaishri Yadava you
assaulted Rambali Yadava with Gandasa
and lathi resulting his death, and thereby
you committed an offence punishable under
section 302 read with section 149 of I.P.C.,
and within the cognizance of this court.
And, I hereby direct that you be
tried by this court on the said charges."

8. The charges were read out and
explained to the accused persons including
the appellant in simple Hindi, who denied
the accusation and demanded trial.

9. The trial started and the
prosecution has examined six witnesses,
who are as follows:-

1
Lalji
Yadav
(complainant)
P.W.-1
2
Dr. D. Mandal
P.W.-2
3
Hari Shanker Yadav P.W.-3
4
Jagannath Tiwari
P.W.-4
5
Mahmood Alam
P.W.-5
6
Dr. S.S. Banarjee
P.W.-6

10. The prosecution in order to
establish the charges levelled against the
accused-appellant
has
relied
upon
following documentary evidence, which
were duly proved and consequently marked
as Exhibits:

1
Written
report
dated
26th
August, 1989
Ex.Ka.-1
2
First Information
Report dated 27th
August, 1989
Ex.Ka.-4
3
Recovery memo
of blood stained
and plain earth
dated
27th
August, 1989
Ex. Ka.-
13
4
Injury
report Ex.Ka.-2
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
dated
26th
August, 1989
5
Letter
qua
information
for
death of deceased
in the hospital
Ex.Ka.-3
6
Copy of the G.D.
entry about the
first information
report
Ex.Ka.-5
7
Copy of the letter
for sending the
post-mortem
of
the deceased
Ex.Ka.-8
8
Photo lash
Ex.Ka.-8
9
Police
Paper
no.33
Ex.Ka.-9
10 Sample of seal
Ex.Ka.-
10
11 Informations
to
the Kotwali
Exts.Ka11 & 12
12 Post
Mortem
Report dated 27th
August, 1989
Ex.Ka.-
16
13 Inquest
Report
(Panchayatnama)
dated
27th
August, 1989
Ex. Ka.-
6
14 Charge-sheet
original
dated
27th September,
1989
Ex.Ka.-
15
15 Site
plan
with
index dated 27th
August, 1989
Ex.Ka.-
14

11. After completion of the
prosecution evidence, statement of the
accused was recorded under Section 313
Cr.P.C. The accused-appellant denied the
prosecution version and stated that due to
litigation between the accused side and
prosecution side, a false case has been
concocted and also stated that the deceased
was killed somewhere in the dark and they
have been falsely implicated. In their
defence, a copy of the charge sheet related
to the case has been filed by the accused
persons.

12. On the basis of above evidence
adduced during the course of trial, the court
below has come to the conclusion that the
accused persons, namely, Bankey Lal, Jwala
Prasad, Shanker (appellant), Shyam Bahadur
and Mithai Lal, who armed with Gandasa and
Lathi, organized a riot. The accused Mithai
Lal had a lathi in his hand, while remaining
accused persons had Gandasa in their hands.
Because of the said riot created by the
accused, all the accused gathered near
Sarpat's tuft with the intention to kill the
deceased. The
deceased
Rambali
was
returning to his house after shopping in the
market and after crossing the railway line,
when he came on the unpaved road, all the
accused, who indulged in old rivalry,
assaulted the deceased by Gandasa and Lathi
due to which he sustained injuries. All the
accused armed with weapons and having
common object to kill the deceased Ram
Bali. As many as 18 injuries were found on
the body of the deceased Rambali. Most of
the injuries were caused by Gandasa, as is
evident from the medical examination report
and the post-mortem report of the deceased.
All the accused unanimously agreed to inflict
injuries on the deceased Ram Bali, due to
which he later died in the hospital. Thus, all
the accused persons were made responsible
for causing the death of deceased Ram Bali
by creating a riot with a common intention.
Thus, the trial court found the accused Jwala
Prasad, Bankey Lal, Shankar, Mithai Lal and
Shyam Bahadur guilty under Section 148,
302, read with Section 149 of I.P.C.

13. On the basis of the above
exhaustive analysis of the evidence, the
trial court has held that since the accused
4 All. Shankar Yadav Vs. State of U.P.
1165
persons armed with Gandasa and lathi,
came to a consensus and attacked the
deceased Rambali in such a way that he
died at around 6:00 p.m. in the evening
(this time has wrongly been mentioned by
the trial court in his impugned judgment, as
at around 06:00 the alleged incident took
place, whereas the deceased died in
hospital at 11:30 p.m. (night) with Gandasa
and lathi, the accused persons are liable to
be punished to undergo one year simple
imprisonment for the offence 148 I.P.C. and
life imprisonment for the offence under
Section 302 read with section 149 I.P.C.
along with a fine of Rs 20,000/- each,
which would be fair in the eyes of justice.
The trial court has further held that in case
of
non-payment
of
fine,
additional
imprisonment of one year would be
appropriate.

14. Being aggrieved with the
impugned
judgment
and
order
of
conviction passed by the trial court, the
accused-appellant has preferred the present
jail appeal.

15. In support of his case, the
learned counsel for the accused-appellant
has advanced following submissions:

(i) As per the prosecution, alleged
incident occurred at 06:00 p.m. (evening)
on 26th August, 1989, whereas the first
information report was registered on 27th
August, 1989 at 04:00 a.m. (morning),
meaning thereby that there is delay of 10
hours in lodging of the first information
report for which no plausible explanation
has been given by the prosecution.
(ii) The dying declaration of the
deceased which has heavily been relied
upon by the learned counsel for the
informant/prosecution in the form of an
information given by the deceased to his
father, when he reached at the place of
occurrence and such information has also
been received by P.W.-1 and P.W.-2, is not
reliable in the eyes of law, as the
ingredients of acceptance of such dying
declaration are missing in the present case.
(iii) The father of the deceased,
namely, Jai Shree, to whom the deceased
told as to who has assaulted him, as per the
testimonies of P.W.-1 and P.W.-3, was not
even produced in the court to support the
prosecution version, as such, the alleged
dying declaration of the deceased as well as
the testimonies of P.W.1 and P.W.-3 are not
trustworthy. Apart from the above, Sukhdeo
and Santraj who are stated to be eye
witnesses
and
also
charge-sheeted
witnesses, as per the prosecution, were not
produced during the course of trial.
(iv) P.W.1, who is real brother of
the deceased and P.W.-3, who is close
friend of the deceased are interested
witnesses and from their testimonies, it is
apparent that they were not present at the
time and place of occurrence and they
reached there after the accused ran away, as
such their presence at the time and date of
occurrence is doubtful.
(v) The deceased did not die on the
spot as per the oral as well as documentary
evidence relied upon by the prosecution.
He was killed somewhere in the dark.
(vi) There are major contradictions
in the testimonies of the prosecution
witnesses.
(vii) The prosecution evidence is
very weak in which the accused-appellant
has been implicated only on the basis of
suspicion and no evidence exist to hold the
accused-appellant guilty.

16. On the cumulative strength of
the aforesaid, learned counsel appearing for
the appellants submits that in view of the
inconsistency in the statements of the
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution witnesses; the prosecution has
failed to establish the guilt of accusedappellant beyond reasonable doubt, as such
the impugned judgment is liable to be set
aside.

17. Per contra, the learned counsel
for the informant and the learned A.G.A.
for the State, supporting the judgment and
order of conviction, submits that the first
information
report
has
been
lodged
promptly naming the accused persons;
there is clinching evidence to support the
prosecution's case in the form of witnesses
of fact (P.W.-1 and P.W.-3); there is strong
motive for the accused-persons, as there
was dispute qua certain litigations between
the families of both the parties; the
prosecution case has also been supported
by the medical evidence.

18. Mr. Rajiv Lochan Shukla,
appearing for the informant has heavily relied
upon the testimony of P.W.-3 in which it has
been stated that when the accused persons
escaped from the spot, the father of the
deceased, namely, Jai Shree reached there
and asked the deceased as to who has
assaulted him, in reply, the deceased
disclosed that accused Jwala Prasad, Bankey
Lal, Shyam Bahadur and Shanker (appellant)
assaulted him by Gandasa and accused
Mithai assaulted him by Lathi with intention
to kill him. Drawing the attention of the
Court to the aforesaid testimony of P.W.-3,
Mr. Shukla further relied upon the testimony
of P.W.-1 in which it has been stated that after
the escape of the accused, his father and other
people also came to the spot from their house
and his brother i.e. the deceased disclosed the
names to his father as to who assaulted him.

19. Mr. Shukla on the basis of such
testimony submits that the disclosure given
by the deceased to his father Jai Shree, in
an injured state as to who had beaten him,
be treated to be his dying declaration as the
same have been duly supported by P.W.-1
and P.W.-3, who are eye-witnesses.

20. Learned counsel for the
informant and the learned A.G.A. for the
State,
therefore,
submits
that
the
prosecution has proved the charges levelled
against the accused-appellants beyond
reasonable doubt.

21. On the cumulative strength of
the aforesaid, learned A.G.A. urges that in
such circumstances the conviction and
sentence awarded to the accused-appellant,
by the court below merits no interference.

22. We have examined the
respective contentions urged by the learned
counsel for the parties and have perused the
records of the present appeal including the
trial court records.

23. The only question requires to
be addressed and determined in this appeal
is whether the conclusion of guilt arrived at
by the learned trial court and the sentence
awarded is legal and sustainable in law or it
suffers from infirmity and perversity.

24. Before entering into the merits
of the case set up by the learned counsel for
the accused-appellant and the learned
A.G.A. qua impugned judgment and order
of conviction passed by the trial court, it is
desirable for us to briefly refer to the
statements of the prosecution witnesses.

25. P.W.-1/informant, Lalji Yadav
who happens to be the brother of the
deceased Ram Bali, in his examination-inchief has stated that before the present
incident, a civil case and a case under
Section 107 were going on between
4 All. Shankar Yadav Vs. State of U.P.
1167
informant's side and accused's side. Earlier
there was quarrel between both parties qua
a land. The accused had beaten the father of
the informant, whose case is pending in
civil court. The court had stayed the civil
case. Even at the time of the incident, the
stay continued. On the same land, his
Arvi/Arooi (taro roots) was buried and the
accused Jwala Prasad and others were
uprooting it. When the informant's side
objected not to do the same, they were
beaten. There is a rivalry between both the
parties regarding land and criminal cases.

26. P.W.-1 has further stated that it
has been almost 8 years since the incident
happened. The incident is of 26 August
1989. The time was 6 o'clock in the
evening. His brother i.e. deceased Ram Bali
had gone to the Lakhowan market to buy
medicine for his children. When the brother
of the informant was coming home through
the unpaved road after crossing the railway
line, the informant and P.W.-3 Harishankar
were also following him from the market
towards home. When his brother reached
near Sarpat on the unpaved road, the
accused Jwala Prasad alias Achhe Lal,
Bankey Lal, Mithai Lal, Shyam Bahadur
and Shankar came out of the tuft of Sarpat
and started beating his brother Ram Bali.
The accused Jwala Prasad, Shyam Bahadur,
Shankar (appellant) and Bankey Lal were
holding Gandasa in their hands and the
accused Mithai Lal was holding a lathi in
his hand. On howling of his brother, the
P.W.-1/informant and P.W.-3 Hari Shankar
also moved towards the spot. P.W.-1 and
P.W.-3 also started shouting loudly, hearing
their noise, Sukhdev and Santram reached
the spot from the village. When those
people arrived, the accused ran towards the
south. The informant/P.W.1 went to his
brother. His brother had fallen when the
accused were beating him. Even after he
fell down, the accused were beating his
brother. His brother was conscious at that
time. After the escape of the accused, his
father and other people also came from the
house. His brother had disclosed the names
of those who had beaten him.

27. P.W.-1 has further stated that
after arranging an auto rickshaw, the
deceased was taken to Sadar Hospital,
Jaunpur and admitted there and he was
treated. Even at that time his brother was
conscious but his condition was getting
serious. The deceased brother died in the
hospital at around 11:15 p.m. P.W. 1 left the
body at Sadar Jaunpur Hospital and wrote
the report there and along with the medical
examination, went to Baksa police station
where his report was registered. Amarnath
Yadav also went to the hospital with him.
His brother i.e. deceased had disclosed the
names of those who had beaten him in front
of Amarnath also. The statement of P.W.1
has been recorded by the Investigating
Officer. The accused had attacked his
brother with the intention to kill him due to
some existing rivalry and due to the injuries
sustained by his brother, he died.

28. P.W.-1 has then stated that
from home his brother i.e. deceased went to
the market first and he went later (about an
hour later, he went to the market). P.W.-1
did not scribe any report until he went to
the hospital from the place of incident and
his brother died in the hospital. Whatever
the deceased was saying in the hospital and
at home, he did not write in the report.

29. In the cross-examination, P.W.-
1 has stated that when he went to the police
station, his signature was made on the
report. His clothes were not taken, where
the Investigating Officer had only seen. His
statement was recorded by the Investigating
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer at the police station. Statement of
Amarnath was also recorded there. In his
statement recorded by the Investigating
Officer, he had stated that his brother was
conscious at that time.

30. In the cross-examination, when
the defence counsel put a question to P.W.-
1, the accused did not kill you?, P.W.-1
replied that the accused did not kill him.

31.

P.W.-1
in
his
crossexamination has further stated that when
his brother Ram Bali went to the market to
buy medicine, he was not there. Ram Bali
had gone to get medicine for his two
children, as they were suffering from boils
and fever. P.W.-1 has further stated that on
that day, he was free but he did not go to
take the medicine. P.W.-1 had taken
ointment for boils and tablets. P.W.-1 did
not know as to which medicines Ram Bali
had received on the day of the incident. The
deceased Ram Bali met him in the market
and when he went to the spot where Ram
Bali fell down in injured condition, he did
not see any medicine there as also he did
not find any prescription. P.W.-1 also did
not find the money which the deceased had
with him at that time. He did not see
whether the deceased had anything in his
pocket or not. P.W.-1 came at the spot when
the Panchayatnama (inquest) was taking
place. He did not see whether the deceased
had any luggage or not.

32. P.W.-1 has further stated that
he had gone to the market for a walk, not
for any specific work. P.W.-3 Harishankar
had also gone for a walk, there was no
special work. P.W.-3 Harishankar is from
his village and he is his old friend.

33. P.W.-1 has again stated that he
did not remember that after the accused ran
away, his brother was conscious and his
father and other people also came and his
brother disclosed the name of those who
had beaten him, to his father.

34. P.W.-1 has stated that when
P.W.-1 reached to rescue his brother, the
accused had run away towards south. No
man or witness from the south side came to
the spot. P.W.-1 has denied that he did not
see anyone beating or killing Ram Bali. He
was beaten/killed in the darkness of the
night.

35. P.W.-2 Dr. D. Mondal, Retired
Senior Medical Officer, District Hospital,
Jaunpur has medically examined the
deceased Ram Bali when he was admitted.
P.W.-2 has found as many as 18 injuries on
the body of the then injured Ram Bali.
P.W.-2 has stated that at the time when he
was examining the deceased, he found that
the condition of the patient was critical and
he was in a semi-conscious state. P.W.-2
has opined that injuries of the deceased
were fresh and life-threatening and all
injuries were kept under observation. He
also stated that the deceased did not die in
his presence.

36. P.W.-3 Hari Shanker Yadav,
who happens to be the old friend of P.W.-1
in his examination-in-chief has stated that
the incident is of 26th August, 1989. On the
evening of the incident, he was returning to
his home along with P.W.-1 Lal ji Yadav
from Lakhouwan market. A little ahead of
them, the deceased Rambali Yadav was
also
returning
to
his
home
from
Lakhouwan market. He and P.W.1 could
see Rambali Yadav, who was walking
ahead. At around 6 o'clock in the evening,
when Ram Bali had reached the unpaved
road south of the railway line that goes
from Lakhouwan Bazaar to Pakadi Bazaar,
4 All. Shankar Yadav Vs. State of U.P.
1169
the accused Jwala Prasad alias Achhe Lal,
Bankey Lal, Shankar (appellant), Shyam
Bahadur armed with Gandasa and Mithai
Lal armed with Lathi, who were already
behind tuft of Sarpat, came out and
surrounded Rambali and started assaulting
him with Gandasa and lathi with intention
to kill him. Rambali suffered fatal injuries
due to the assault of those five accused.
Rambali i.e. deceased, he and P.W.-1 had
raised alarm. At the time of the incident,
Sukhdev and Sant Ram, who were coming
from the village towards the market, had
reached the spot shouting. P.W.-1 Lal ji,
Sukhdev and Santram/Saptram saw the
entire incident very well and made the
same statement. At the time of the incident
it was sunset but there was ample light at
that time and Rambali had fallen due to
injury. There was rivalry and litigation
between Rambali and the accused before
the present incident.

37. P.W.-3 has further stated that
after the accused ran away from the spot,
the deceased Rambali's father, namely, Jai
Shri also came to the place of incident and
when Jai Sri inquired from the deceased
Rambali as to who has assaulted him, in his
presence, then Ram Bali, disclosed to his
father Jai Shri that the accused Jwala
Prasad, Baken Lal, Shyam Bahadur and
Shankar (appellant) had hit him by
Gandasa and the accused Mithai had hit
him by lathi with intention to kill him, as
such he would not survive.

38. In the cross-examination, P.W.-
3 has stated that before the present case, on
the report of accused Shyam Bahadur, a
case under Sections 325, 323, 308 etc. of
I.P.C. was going on and the same is
pending before the Court of Additional
District Judge-IX. A cross case was also
pending in the same court against the
accused Shyam Bahadur, Achhelal, Devraj,
Shanker (appellant) etc. who were accused
in the said case on the report of Harilal son
Jagan in which he, P.W.-1 Lal Ji and his
father Jai Sri were the witnesses against the
accused. P.W.-3 was also an injured person
and a witness in both the cases. P.W.-3 was
also a witness in the case of State vs Shyam
Bahadur etc. and apart from him, P.W.-1
Lal ji and his father Jai Sri were also
witnesses in the said case. P.W.-3 has also
stated that he did not know whether the
deceased Rambali was a witness or an
accused in the above two cases or not. The
above two cases were going on before the
instant case. A case under Sections 107/116
was also going on between the parties. In
reply to a question put by the defence
counsel that when his family members and
villagers came to the spot, whether the
accused ran away from the spot or not, in
answer to this, P.W.3 has stated that before
his family members and villagers came to
the spot, the accused ran away.

39. P.W.-3 has further stated that
he did not always come along with the
deceased Rambali. On that day, he and
P.W.1 were behind the deceased. He had
gone to the market wearing shirt and
slippers. Lal ji was wearing pyjama, kurta
and slippers. Rambali was carrying a
wooden sieve and medicines in his hand.
When they were carrying him to the
hospital, blood was falling from Rambali's
body. His sieve, slippers and medicine were
left behind. The investigating officer had
not prepared any paper regarding the
present incident.

40. This witness has further stated
that he and P.W.-1 were a little away from
the place of incident, therefore they did not
look at the people stooping down. He did
not remember whether it was dark or bright
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
from the time of the incident till returning
home. P.W.-3 has denied that any incident
about which he has given his statement was
not seen by him. He has also denied that he
was not coming behind the deceased. He
has further denied that he did not see as to
who has assaulted the deceased. He has
then denied that on the date and time of
incident, the deceased Rambali did not go
to the market nor was he returning after
taking goods. He has lastly denied that the
accused
persons
have
been
falsely
implicated due to earlier litigations between
the parties.

41. P.W.-4 Inspector Jagannath
Tiwari has investigated the case and after
conducting the same in terms of statutory
provision under Chapter XII of the Code of
Criminal Procedure, he has submitted the
charge-sheet against the accused persons
including the appellant.

42.

P.W.-4
in
his
crossexamination has stated that he never went
to the hospital during the investigation nor
did he see any register of the hospital on
which the inspection took place or the form
on which the patient was admitted. He has
also stated that during investigation he did
not
find
out
from
where
the
informant/P.W.1 was coming and also no
doctor's prescription and medicine were
found. He knew that the patient's name is
recorded in the register of the doctor's
office but he did not find out. The
informant/P.W.-1 did not say about the
same in his statement recorded under
Section 161 Cr.P.C. He has further stated
that in his statement recorded under Section
161 Cr.P.C., the informant/P.W.1 did not
say that his brother was conscious at that
time. He also did not say that after the
accused ran away, the people of his village
had also come and his brother i.e. the
deceased had disclosed the names of those
who hit him to his father. P.W.-1 did not say
that Amarnath Yadav had also gone to the
hospital along with him. His brother had
also revealed the names of those who hit
him in front of Amarnath.

43. P.W.-5 Inspector Mahmood
Alam, who after appointing five witnesses
had conducted the inquest of the deceased
has stated that after getting the dead body
of the deceased sealed and after preparing
the form 13 and photo lash, form no. 3,
letter to the Chief Medical Officer, had sent
the dead body of the deceased to the
Hospital
along
with
two
constables,
namely, Harshnath Yadav and Surendra
Nath Tiwari. This witness has also proved
the same before the Court.

44.

Dr.
Shitanshu
Shekhar
Banerjee has been examined as P.W.-6.
This witness has conducted the postmortem of the body of the deceased.

45. For coming to the conclusion
that the prosecution has been able to prove
its case against the accused including the
appellant beyond reasonable doubt, it is
important for this Court to scrutinize the
testimonies of the prosecution witnesses
deeply, which have been relied upon by the
trial court while passing the impugned
judgment.

46. As per the prosecution case,
P.W.-1 Lalji Yadav, P.W.-3 Hari Shanker
Yadav and Amarnath were the eyewitnesses but Amarnath was not examined
as prosecution witness as he died during the
course of trial.

47. Therefore, first this Court may
peruse the testimony of P.W.-1. In the
examination-in-chief, P.W.-1 has stated that
4 All. Shankar Yadav Vs. State of U.P.
1171
on screaming of the deceased, he and P.W.-
3 moved towards the spot and on shouting
of P.W.-1 and P.W.-3, charge-sheeted
witnesses Sukhdeo and Santram reached at
the place of occurrence and when they
reached there, all the accused ran away
towards south, then P.W.-1 reached to his
injured brother i.e. deceased, meaning
thereby that when P.W.-1 reached at the
alleged place of occurrence, the incident
had already taken place and P.W.-1 has not
seen as to who has assaulted the deceased
and by which weapon, which makes the
presence of this witness as an eye witness
is doubtful. For ready reference, the above
statement is extracted here-under:

"भाई के धचलिाने पर मैं ि िरर िंकर भी
कुि दूर पर पिुंच गये र्थे। िम िोग भी जोर से
धचलिाने िगे। िम िोगों का िोर सुनकर गांि
की तरफ से सुखदेि ि संतराम पिुंच गये। इन
िोगों के आने पर मुम्लजमान भाग कर दम्क्षण
तरफ भागे। मैं अपने भाई के पास गया।"

48. Similarly, in his cross-examination,
this witness has stated as under:

"जब िम िोग अपनी भाई को ऊठाने
के धिए पिुंचे तो मुम्लजमान भाग गए र्थे।
दम्क्षण की तरफ भाग गए। दम्क्षण की तरफ से
कोई आदमी या गिाि मौके पर निी आया र्था।"

49. In the cross-examination, this
witness has stated that from home his
brother i.e. deceased went to the market
first and he went later. About an hour he
went to the market.

50.

Further
in
the
crossexamination this witness has stated that
when the deceased was injured, he went,
where he did not see any medicine or any
prescription nor any money was found by
him. This statement will also go to show
that when the deceased had already
sustained injuries, then this witness reached
to the deceased, which also cast a dent in
the presence of P.W.-1.

51. This witness has not stated
anywhere in his statement as to why he
went to the market. In the crossexamination he has only stated as under:

"मै िैसे र्ििने के धिए बाजार चिा
गया र्था, कोई खास काम से निी गया र्था।
िररिंकर भी िैसे घूमने र्ििने चिे गए र्थे कोई
खास काम निी र्था।"

52. In the examination-in-chief,
P.W.-1 has stated that the after the accused
ran away, his father Jai Sri and other people
came from the house and the deceased
disclosed the names of persons, who
assaulted him to his father, whereas in his
cross-examination, he has stated that his
statement was recorded by the Investigating
Officer in which he has stated that his brother
i.e. deceased was conscious and after the
accused ran away, his father and other people
came and his brother i.e. deceased disclosed
the names of accused to his father. This
witness has also stated in his crossexamination
that
when
the
deceased
disclosed the names of accused to his father,
Amarnath was also present there. When as a
matter of fact father of the deceased, namely,
Jai Sri and Amarnath to certify such
disclosure were not produced during the
course of trial. However, such statements of
P.W.-1 have not been supported by the
Investigating Officer i.e. P.W.-4. The relevant
statements of P.W.-4 are extracted here-under:
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
"िादी ने अपने ब्यान मे यि निी
बतिाया र्था हक, " मेरे भाई उस समय िोि में
र्थे। मुम्लजमान के भागने के बाद मेरे वपता जी
िा अन्य िोग भी आ गये र्थे। और भाई ने मारने
िािो का नाम वपता जी को बतिाया र्था।" यि
बात भी गिाि ने निी बताया र्था हक मेरे सार्थ
अमरनार्थ यादि भी अस्पताि गये र्थे, मेरे भाई
ने अमरनार्थ के सामने भी मारने िािो का नाम
बतिाया र्था।"

53.