# Shera v. State of U.P

- **Citation:** (2025) 5 ILRA 113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Criminal Appeal No. 652 of 2001
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shera-v-state-of-u-p-53438
- **Pages:** 18

## Headnote

Law
-
Appreciation
of
Evidence - Appreciation of Testimony -
Indian Penal Code, 1860 - Sections 302,
307, 323 & 504 - Arms Act, 1959 - Section
3/25 - Evidence Act, 1872 - Sections 134
& 114 (g) - Quality, not quantity, of
evidence is decisive - conviction can rest
on testimony of closely related witnesses
only if wholly reliable and of sterling
character - benefit of doubt must be given
where
prosecution
evidence
suffers
serious lacunae and main witnesses are
found unreliable or only partly reliable -
Suspicion, howsoever grave, cannot take
place of a proof - Related/Interested
witness - Testimony must be carefully
scrutinised and corroborated if not wholly
reliable - Acquittal on parity where coaccused are acquitted on same evidence -
Standard of proof - There is a long
distance between 'may be' and 'must be -
Where principal witnesses are not wholly
reliable and corroboration is lacking, and
there is unexplained non-production of
material
witnesses
with
serious
discrepancies
in
prosecution
case,
conviction is unsustainable and benefit of
doubt must go to accused. (Paras 48, 49,
58, 60, 61, 63 to 68)
114 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Acquittal on Identical
Evidence - Benefit of Doubt - If coaccused are acquitted on same set of
evidence, remaining accused also entitled
to same benefit - Conviction cannot rest
on
identical
evidence
which
was
insufficient to convict co-accused. (Para
63 to 65)

Two criminal appeals arose against conviction
under Section 302 IPC (Lakhan) and Section
307 IPC r/w Section 3/25 Arms Act (Shera) in a
case involving murder and injuries caused to
several persons - conviction was based on
testimony of related/injured witnesses only -
with non-examination of all but two injured
witnesses - there were discrepancies in ocular
and medical evidence - contradictions between
prosecution witnesses - and failure to explain
non-production of independent witnesses as
well as non-corroboration of recovery with
forensic (FSL) link. (Paras - 1 to7, 22 to 29, 32
to 41, 59 to63)

HELD: - Testimony of P.W.-2 was found wholly
unreliable and that of P.W.-1 only partly reliable.
Injured witnesses were not examined. Recovery
was not independently corroborated. Serious
discrepancies existed in prosecution story.
Prosecution failed to prove its case beyond
reasonable doubt. Evidence adduced by the
prosecution cannot be said to meet the standard
required to prove the guilt of the appellants in
this case. Appellants ought to have been given
the benefit of doubt. Conviction and sentence
set aside. Appellants acquitted. (Paras - 65 to
70)

Appeals allowed. (E-7)

List of Cases cited:

## Text

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5 All. Shera Vs. State of U.P.
113
doubt and also to prove that the crime in
question had been committed by none other
than the accused-appellants. The trial court
only on the basis of suspicion convicted the
accused appellants while passing the
impugned judgment.

Conclusion

63. In view of the discussions and
deliberations held above, the prosecution
could not prove its case against the
accused-appellants
beyond
reasonable
doubt. Hence, both the appeals deserve to
be allowed.

64. Accordingly, the both the appeals
succeed and are allowed. The impugned
judgment dated 7th December, 2020 passed
by the Additional Sessions Judge/POCSO
Act,
Court
No.43,
Shahjahanpur
in
Sessions Trial No. 487 of 2011 (State Vs.
Laddan and Ram Dev) under Sections 302,
201 and 120-B I.P.C. arising out of Case
Crime No. 107 of 2011, Police StationJalalabad, District-Shahjahanpur, against
the accused appellants, is hereby set aside.

65. The accused appellant-Ram Dev,
who is in jail since 13th April, 2012 shall
be released forthwith, unless he is wanted
in any other case on compliance of the
provisions of Section 437-A Cr.P.C.
Whereas the accused-appellant Laddan,
who is reported to be on bail, he needs not
surrender before the court below. His bail
bond shall be deemed to have been
discharged.

 66. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Shahjahanpur henceforth, for necessary
compliance.
----------
(2025) 5 ILRA 113
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.05.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 652 of 2001
With
Criminal Appeal No. 605 of 2001

Shera ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sudeep Kumar, A.K. Pandey

Counsel for the Respondent:
Govt. Advocate

(A)
Criminal
Law
-
Appreciation
of
Evidence - Appreciation of Testimony -
Indian Penal Code, 1860 - Sections 302,
307, 323 & 504 - Arms Act, 1959 - Section
3/25 - Evidence Act, 1872 - Sections 134
& 114 (g) - Quality, not quantity, of
evidence is decisive - conviction can rest
on testimony of closely related witnesses
only if wholly reliable and of sterling
character - benefit of doubt must be given
where
prosecution
evidence
suffers
serious lacunae and main witnesses are
found unreliable or only partly reliable -
Suspicion, howsoever grave, cannot take
place of a proof - Related/Interested
witness - Testimony must be carefully
scrutinised and corroborated if not wholly
reliable - Acquittal on parity where coaccused are acquitted on same evidence -
Standard of proof - There is a long
distance between 'may be' and 'must be -
Where principal witnesses are not wholly
reliable and corroboration is lacking, and
there is unexplained non-production of
material
witnesses
with
serious
discrepancies
in
prosecution
case,
conviction is unsustainable and benefit of
doubt must go to accused. (Paras 48, 49,
58, 60, 61, 63 to 68)
114 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Acquittal on Identical
Evidence - Benefit of Doubt - If coaccused are acquitted on same set of
evidence, remaining accused also entitled
to same benefit - Conviction cannot rest
on
identical
evidence
which
was
insufficient to convict co-accused. (Para
63 to 65)

Two criminal appeals arose against conviction
under Section 302 IPC (Lakhan) and Section
307 IPC r/w Section 3/25 Arms Act (Shera) in a
case involving murder and injuries caused to
several persons - conviction was based on
testimony of related/injured witnesses only -
with non-examination of all but two injured
witnesses - there were discrepancies in ocular
and medical evidence - contradictions between
prosecution witnesses - and failure to explain
non-production of independent witnesses as
well as non-corroboration of recovery with
forensic (FSL) link. (Paras - 1 to7, 22 to 29, 32
to 41, 59 to63)

HELD: - Testimony of P.W.-2 was found wholly
unreliable and that of P.W.-1 only partly reliable.
Injured witnesses were not examined. Recovery
was not independently corroborated. Serious
discrepancies existed in prosecution story.
Prosecution failed to prove its case beyond
reasonable doubt. Evidence adduced by the
prosecution cannot be said to meet the standard
required to prove the guilt of the appellants in
this case. Appellants ought to have been given
the benefit of doubt. Conviction and sentence
set aside. Appellants acquitted. (Paras - 65 to
70)

Appeals allowed. (E-7)

List of Cases cited:

1. Chandrashekhar Suresh Chandra Bhatt Vs St.
of Maha. , 2000 (10) SCC 582

2. Govind Vs St. of M.P. 1994 (1) SCC 536

3. Meherbaan & ors. Vs St. of U.P., 2000 (1) JIC
519

4. Dahari & ors. Vs St. of U.P. , (2012) 10 SCC
256

5. Ram Singh Vs St. of U.P., (2024) 4 SCC 208

6. Javed Shaukat Ali Qureshi Vs St. of Guj.,
(2023) 9 SCC 164

7. Upendra Pradhan Vs St. of Orissa , (2015) 11
SCC 124

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. These are two criminal appeals
challenging judgement and order dated
20.07.2001 passed by the Vth Additional
District and Session Judge, Lucknow in
Sessions Trial No. 194 of 1998, State of
U.P. Vs. Chhote Lal and Others convicting
the appellant Lakhan in Criminal Appeal
No. 605 of 2001 under Section 302 of the
Indian Penal Code (hereinafter referred as
'IPC') and awarding a punishment of life
imprisonment and a fine of Rs.5000/- in
default of payment of which an additional
simple imprisonment of six months, and the
Shera under Section 307 IPC read with
Section 3/25 of the Arms Act and awarding
a rigorous imprisonment of five years and a
fine of Rs.2000/- in default of payment of
which an additional simple imprisonment
of two months.

2. The prosecution story in short is
that one Kesh Kumar S/o Reoti Pasi, R/o
Madharmau, Police Station - Gosaiganj,
Lucknow lodged a First Information Report
on 09.10.1997 at Police Station - Gosaiganj
in Case Crime No. 383 of 1997, 11:50 PM
against the appellant, Shera S/o Prahlad,
and Lakhan S/o Chhote Lal and Prahlad S/o
Fatte, Chhote Lal S/o Dukkha, all resident
of village Madharmau, alleging there in
that one Punarvasi S/o Chhote Lal, was
murdered some four months ago, and the
family members of Punarvasi had suspicion
upon the uncle of the informant Nankau.
On 09.10.1997, when the informant's
5 All. Shera Vs. State of U.P.
115
Uncle Nankau was coming from Lucknow
on bicycle along with one Kunware
towards his home, all the accused waylaid
Nankau, banging their bicycle to the
bicycle of Nankau. As Nankau fell down,
all of them started beating, Nankau.
Kunware, who was accompanying Nankau
ran towards the village, shouting for help.
Nankau also ran towards the village. On
hearing
such
shouts
for
help,
the
grandfather of the informant Dukkha (the
deceased), and other family members of
Dukkha had rushed towards the spot. The
accused ran away on seeing the informant's
family. When Dukkha and other family
members including the informant were
returning towards their village at around
08:00 PM then all the accused had
assaulted the informant and his family
members by using Farsa and Tamancha.
The
accused
killed
the
informant's
grandfather, Dukkha S/o Mangal, and
injured the informant's father, Reoti, his
brother Mukesh Kumar and Jaskaran S/o
Chheda Lal, by opening fire upon them and
also attacking them with Farsa and Lathi.

3. The informant had accused four
persons namely Lakhan, Shera, Prahlad and
Chhote Lal. FIR was registered under
Sections 302, 323, 307, 504 of the IPC in
Case Crime No. 383 of 1997. The body of
the
deceased
Dukkha
was
sent
for
postmortem
examination,
which
was
conducted by Dr. S.H. Siddiqui on
10.10.1997 at District Hospital. The other
injured i.e., the informant Kesh Kumar, his
father Reoti, his brother Mukesh Kumar,
and his uncle Nankau and one Jaskaran
were medically examined by Dr. Sushil
Kumar and referred for x-ray examination
to Balrampur Hospital. Investigation was
conducted
by
Sub-Inspector,
Arvind
Mohan Jaiswal and chargesheet filed
against the four accused. The trial was
committed to the Sessions Court on
22.01.1998.

4. During investigation, the Gosaiganj
police arrested the accused Shera along
with an unlicensed country made pistol
with one 12 bore Live cartridge and Section
3/25 of the Arms Act was also invoked
against the accused.

5. The accused denied the charges and
claimed trial.

6. The prosecution produced two
witnesses of fact, P.W.-1 Kesh Kumar the
informant, and P.W.-2, Nankau his uncle.
For proving the postmortem report P.W.-3
Dr SH Siddiqui was produced. For proving
the medical legal examination report of the
injured Dr. Sushil Prakash Chaudhary was
produced as P.W.-6. The radiologist Dr
S.K. Hasan was produced as P.W.-5. and
the Sub Inspector Arvind Mohan Jaiswal
was produced as P.W.-4. Head constable
BC Dixit, who had prepared the Chik F.I.R.
and proved the GD entries was produced as
P.W.-7.

7. The accused did not produce any
defence witnesses. After considering all
evidences the Trial Court has acquitted
Prahlad and Chhote Lal of all charges. It
has convicted Shera under Section 307 of
the IPC and Lakhan under Section 302 IPC
and sentenced them as aforesaid.

8. Miss Radhika Verma, holding brief
of Shri Sudeep Kumar argued on behalf of
the appellants that the trial court has
committed a manifest error of law in
relying upon statement of P.W.-1 Kesh
Kumar and P.W.-2 his uncle Nankau as
there were several discrepancies in the
statements
of
the
two
prosecution
witnesses.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It has been argued that P.W.-1
stated that at least four to five shots were
fired by Shera which made the informant
and his other family members run for
cover. They hid themselves and returned
only after the assailants had left. On
returning they found Dukkha dead. He did
not notice any empty cartridges lying on
the ground. The informant and others
thereafter went to the police station on a
Tempo with a written report which was
written by P.W.-1 partly in his village and
Partly in an eatery near the Tempo Stand
on the way to the Police Station. After
registering the FIR, the Sub-Inspector had
taken the statement of P.W.-1, where he did
not specify the manner of Lakhan hitting
with sharp edge of Farsa initially and later
on giving blows from the wrong side.
P.W.-1 and also stated that he had noticed
only one injury on his grandfather's neck,
because the night was dark, he did not
notice other injuries on his body and
whether they were bleeding. He was sure
that his grandfather did not receive any gun
shot injury. Jaskaran, Mukesh, and the
informant had alone suffered gunshot
injuries. His father, Reoti and his uncle
Nankau were hit by Prahlad and Chhote Lal
with brickbats. They were taken to
Gosaiganj Primary Health Centre for
treatment from where they were sent next
morning to Balrampur Hospital for x-ray.

10. P.W. -1 stated that the cycle on
which Nankau was riding was not seriously
damaged as Mukesh Kumar was holding it
while they were walking back to their
village. P.W.-1 also admitted that he had
not accompanied the Sub-Inspector to the
place where the attack took place and did
not show exactly where each of them were
standing when Shera opened fire on them.
He had not told the Investigating Officer
initially that Chhote Lal and Prahlad were
throwing brickbats at them. He also
admitted that as soon as Dukkha received
the first blow of Farsa by Lakhan, they had
moved away and when he fell down and
was being hit by Lakhan again, they came
forward to save him, but were shot at by
Shera and they hid themselves and only
returned after around 10 minutes when the
accused had left the scene and they found
Dukkha dead. P.W.-1 also admitted that he
did not state in his written report that
Prahlad and Chhote Lal had beaten his
grandfather with fists and kicks. Prahlad
and Chhote Lal are not related to each
other. Prahlad is the father of Shera. They
had no prior enmity with Prahlad. He
denied the suggestion made by counsel for
the defence that Dukkha had died and the
informant and his other family members
had received injuries in an attack by dacoits
in their home and they were falsely
implicating the accused at the behest of
Investigating Officer.

11. It has been argued that P.W.-2,
Nankau stated that when he was attacked
by the four accused while returning home,
he had started running and shouted for help
and passers by who saw the incident
informed
his
family
members
in
Madharmau, who hurried to the spot to
save him, but all the four accused had run
away. While they were returning home at
around 8 o'clock in the night again, all the
four accused attacked them and they started
running, but his father Dukkha could not
run, and he was caught hold of by the
accused, Lakhan and he hit him with his
Farsa and Dukkha shouted for help, they all
turned and ran towards Dukkha. But Shera
had a country made pistol with him, and he
fired upon them, which resulted in injuries
to his brother Reoti, his two nephews Kesh
Kumar and Mukesh Kumar, and to
Jaskaran. The accused also beat them with
5 All. Shera Vs. State of U.P.
117
kicks and fists. Nankau ran shouting for
help, and by the time other villagers
assembled the accused had run away. On
reaching the place, they found Dukkha had
already died because of his injuries. His
nephew, Kesh Kumar wrote down the
incident on a piece of paper and all of them
then went to Police Station, Gosaiganj to
lodge FIR. Nankau could not remember the
exact date when the incident took place and
he stated that he was illiterate, but the
incident had taken place at least two days
before Dussehra. He had been working as a
Whitewasher in Lucknow, which is 11 KM
away from his village. While returning
home, he had been attacked by the accused.
He did not mention that he was being
accompanied by Kunware, his cousin. He
also stated that the accused Shera had
banged his cycle with his own cycle which
resulted in Nankau falling down, and as
soon as he fell from his cycle, he was
beaten with kicks and fists and he ran
towards
the
field
and
hid
himself.
Passersby saw the incident and informed
his family in the village and when they had
come, he had come out of his place of
hiding in the field, but the accused had run
away when his family arrived. He picked
up his cycle and started walking with them.
His family members were unarmed while
they were walking home. They saw the
accused on the way intending to attack
them again. This time the accused were
armed and Nankau and his family members
started running away, but his father Dukkha
could not run and was hit by Lakhan with
Farsa and he shouted for help. They turned
and started moving towards their father in
order to save him, but Shera fired his gun at
them which injured his two nephews and
Jaskaran. Nankau, however, did not say
that on Dukkha having been hit with Farsa
and falling to the ground, all his family
members had run away and taken shelter
behind the house of Rakesh Bhujuwa and
kept on hiding for 10 to 15 minutes, till the
accused left the scene. When they returned
they found Dukkha dead, all of them took a
tempo to the Police Station and reached
there at around 10:30 PM

12. P.W.-2 did not mention the family
first going to the village where the
informant wrote down part of his written
report. He did not also mention having
stopped at an eatery to write the remaining
report. P.W.-2 also did not see the initial
blow of Farsa on Dukkha and his father
falling down. He stated that as soon as
Dukkha fell down, he had hidden himself
behind the wall of a house. His family
members also took shelter at various places
nearby.

13. Miss Radhika Verma has pointed
out discrepancies in the statement of P.W.-
1 Kesh Kumar with regard to the place of
the first incident as described by him and
by P.W.-2 Nankau. She has also pointed
out that there were no gunshot injuries
received by Dukkha and postmortem report
reveals only incised wounds on the body of
the deceased.

14. It has been pointed out by Miss
Radhika Verma that P.W.-2 stated that his
cycle was not damaged and he had walked
home with it. Whereas P.W.-1 had stated
that a few spokes in the wheel had come
out and his younger brother Mukesh was
walking with Nankau's cycle when they
were again attacked by the four accused.

15. P.W.-1 had stated that when the
accused attacked a second time with Farsa
and Gun, Nankau and his family members
tried to escape by running, but Dukkha was
old and he could not run and fell on
receiving the first blow from Farsa held by
118 INDIAN LAW REPORTS ALLAHABAD SERIES
Lakhan. It was then that they turned in
order to save Dukkha, but Shera fired at
them from his gun, which resulted in
injuries being caused to Kesh Kumar,
Mukesh Kumar and Jaskaran. They again
ran for cover and returned only after 10 to
15 minutes. On the other hand, Nankau in
his testimony has stated that they did not
run away and did not hide.

16. Miss Verma has also pointed out
discrepancy regarding scribing of written
report by P.W.-1 partly in his village and
partly at an eatery near the Tempo Stand
before approaching the Police Station,
Gosaiganj. On the other hand, P.W.-2 has
stated that while going to the Police Station
on Vikram tempo, they had not stopped
anywhere, and Kesh Kumar had written the
report in the Police Station.

17. This Court has found from
testimony of P.W.-1 and P.W.-2 that P.W.-
2 admittedly had not gone to the Police
Station along with other family members
and he, therefore, could not have made any
statement that the written report was
scribed by P.W.-1 at the Police Station
itself because P.W.-2 had also stated that
he had run towards Thikaria village to
save himself where he fell down and kept
lying there for around 10 minutes, when
the other villagers arrived, they took him
to the Police Station on a cycle. P.W.-2
also denied that Krishna Kumar and others
had accompanied him to the Police
Station. P.W.-2 kept changing his story
with regard to how he or his family
members, reached the Police Station to
lodge the FIR. P.W.-2 also stated that
when his family members were being
attacked in the second incident, he had
tried to seek help from other villagers by
knocking their doors, but no villager came
out to help.

18. Miss Verma also pointed out
discrepancy in P.W.-2 describing the
incident of Lakhan hitting Dukkha with
Farsa. Miss Verma had pointed out that
while P.W.-1 says that Prahlad and Chotte
Lal attacked his father and uncle by
throwing brickbats at them, P.W.-2 states
initially that none of the accused had used
bricks at all but later on improved his story
and stated otherwise.

Miss Verma had also pointed out
from the testimony of P.W.-1 and P.W.-2
that they were confronted several times
with regard to absence of details which
they were mentioning at the time of their
examination-in-chief from the statement
under Section 161 CrPC but they reiterated
that they were stating only that which they
had mentioned in their statement under
Section 161 CrPC. Also, they could not tell
any reason why the Investigating Officer
had not mentioned such details in their
statement recorded by him under Section
161 CrPC.

19. P.W.-2 had also stated that his
father was walking around 8 to 10 steps
ahead of them and they were lagging
behind, and when his father reached the
house of Nanha Badhai the accused
suddenly came out of hiding and started
abusing them loudly. Initially, Chhote Lal
and Prahlad hit Dukkha with kicks and fists
when Dukkha fell down, then Lakhan hit
him with his Farsa four to five times. P.W.-
2 admitted that when Dukkha had fallen
down on being hit and Shera had fired one
shot at other family members, he had run
away towards the village while the other
family members remained there. But at the
same time, he stated that he had seen
Prahlad and Chhote Lal, throwing brick
bats at them. At one point during his crossexamination, P.W.-2 also stated that he had
5 All. Shera Vs. State of U.P.
119
not seen the cycle after the first incident of
attack on him on way home.

20. It was argued further that the trial
court has based the conviction solely on the
testimony of related and interested witnesses,
particularly the informant who was the
grandson of the deceased and Nankau, who
was the son of the deceased. There were
allegedly two independent witnesses, one
Kunware who was accompanying Nankau
when he was returning home from work and
one Jaskaran who was accompanying the
informant and his family members and had
received gunshot wounds in the subsequent
attack on all family members by the accused.
The Investigating Officer had not made any
effort to record the statement of either
Kunware or Jaskaran and the prosecution did
not produce any independent witnesses to
support the story.

21. It was also argued that the trial
court did not appreciate that there was no
motive for the appellants to kill the
deceased Dukkha, particularly when the
enmity which they were said to have was
with Nankau his son, who only sustained
minor
injuries
like
contusions
and
Nankau's statement did not correspond
with the statement of the informant
regarding the sequence of events which led
to the death of the deceased.

22. It has been argued by the counsel
for the appellant that the medical evidence
does not support occular evidence of P.W.-
1 and P.W.-2 in so far as out of eight
injuries found on the body of Dukkha seven
were incised wounds caused by sharp
edged weapon and one was contusion.
There was no Fire arm injury.

23. It has also been argued that it is
quite unnatural for an assailant to first
attack the victim with the sharp side of
Farsa and then turn it around and start
hitting with the wrong side. It has been also
argued that initially when Nankau was
attacked, Kunware was with him and
Kunware was not examined by the
investigating officer nor produced before
the court. Similarly, during the second
attack, Jaskaran and Mukesh Kumar, had
also received gun shot injuries but they
were not produced by the prosecution.
Jaskaran being an independent witness and
not related to the informant's family was
crucial to support story set up by the
prosecution.

24. It has also been argued that from
the evidence of Nankau P.W.-2, it is
evident that he reached the police station at
around 09:00 P.M. along with others from
village Thikaria. The P.W.-1 however,
along with other injured witnesses reached
the police station at around 11:30 PM. By
that time, Nankau was already in the Police
Station,
along
with
other
villagers
belonging to Thikaria. Also there is no
explanation for the delay and in all
probability, the FIR was lodged after due
discussion and deliberation to falsely
implicate the appellants. There are major
contradictions in statement of P.W.1 and
P.W.2 with regard to manner of lodging of
FIR, the place of writing of FIR and the
time of writing of FIR.

25. It has also been argued that
recovery of Farsa was not made from
Lakhan but Lakhan has been convicted
under Section 302 IPC and given life
imprisonment. Only Tamacha/countrymade
pistol was recovered allegedly on the
disclosure of Shera and from the Forensic
Science Laboratory report, it is evident that
it was of a different bore from the pellets
found in the bodies of the injured yet Shera
120 INDIAN LAW REPORTS ALLAHABAD SERIES
has been convicted under Section 307 IPC
and sentenced for life. It has also been
argued that on the same set of facts two coaccused, Chhote Lal and Prahlad, have
been acquitted while Appellants have been
convicted.

26. Having heard the learned Counsel
for the appellants, we have gone through
the evidence as available in the Trial
Court's record and also the judgement and
order dated 20.07.2021.

27. The postmortem examination of
the deceased was done by Dr. S.H.
Siddiqui, who appeared in the witness box
and proved the postmortem report. There
were seven incised wounds on the head,
face, and neck, and left shoulder and fore
arm and left thigh of the deceased, and one
contusion on the right forearm 9 cm below
the elbow joint. In answer to a specific
query the medical officer rejected the
suggestion that the injuries could have been
caused at midnight or early dawn. Instead,
he opined that they may have been caused
around 10:00 or 11:00 PM on 09.10.1997,
but simultaneously stated that the time of
death mentioned by him may vary by two
hours either ways.

28. Dr. Sushil Prakash Chaudhary,
P.W.-6
Medical
Officer
Incharge
of
Primary Health Centre Gosaiganj Lucknow
had examined the rest of the injured
persons and he found two gunshot wounds
on right upper arm and on left hand, middle
finger
on
Krishna
Kumar,
P.W.-1.
Tattooing was found on both the injuries
and he had advised x-ray.

P.W.-6 had found four gunshot
wounds on the left side of the chest, on the
right thigh, on the right palm, just at the base
of the little finger, and near the left knee joint
of Mukesh the younger brother of the
informant. All injuries were simple and
caused by firearm. Tattooing was present on
on all these wounds, and in some of them
pellets were palpable. X-ray was advised.

Jaskaran had also suffered two
gunshot wounds on the right side of his
forehead and on the left upper thigh.
Tattooing was present. All injuries were
simple in nature caused by fire arm. X-ray
was advised.

The Medical officer P.W.6 also
described injuries of Reoti father of the
informant. He had suffered two contusions on
his shoulder and knee joint and one abraded
contusion on the left side of the neck. The
informant's uncle Nankau had three abraded
contusions on the left shoulder, on the lower
part of the right chest, on the right upper
scapular region, and also a simple contusion
on outer part of the left thigh.

29. X-ray reports of all the injured were
proved by Dr. S.K. Hasan P.W.-5 and he had
found foreign metallic bodies in the X-ray
plates of the injured.

30. The Investigating Officer had
arrested Shera on 10/11 November 1997. One
country made unlicensed pistol of 12 bore
was recovered from Shera, son of Prahlad.
One cartridge of 12 bore was also recovered
from the pocket of trousers worn by Shera.
Prahlad son of Fatte was also arrested, but no
weapon was recovered from him.

Both the accused confessed before
the police team that they had murdered
Dukha and they had been absconding from
the village since then.

31. However, in their statement under
Section 313 of the Cr.P.C., they had denied
any such involvement and had asserted that
they had been falsely implicated and were
5 All. Shera Vs. State of U.P.
121
being framed in the conspiracy. No motive,
however, could be assigned by the accused
to the informant or his family for falsely
implicating
the
accused.
Since
a
countrymade pistol was recovered from
Shera, Section 3/25 of the Arms Act was
also invoked against him.

32. We have gone through the
testimony of P.W.-1 Kesh Kumar alias
Krishna Kumar, who is also the informant.
He has stated that there was a suspicion in
the minds of the accused regarding death of
one Punarvasi S/o Chhote Lal being caused
by his uncle Nankau and one day when
Nankau along with one Kunware a distant
relative was returning home from work at
around 07:00 PM all the four accused
stopped him on the way and when Nankau
fell down from his cycle, Shera started
beating him up. Kunware ran to the village,
shouting for help. On coming to know, the
informant's grandfather Dukkha, his father
Reoti, his younger brother Mukesh, one
Jaskaran, and the informant went to rescue
him. Nankau, had managed to escape by
the time they reached the place where the
incident took place and the accused had run
away. When they were returning home it
was around 08:00 P.M., the accused again
appeared and Shera had a country made
pistol in his hand, Lakhan had a Farsa,
Prahlad and Chhote Lal were unarmed. The
first blow was on Dukkha with Farsa by
Lakhan and Dukkha fell to the ground.
When the informant and his other family
members approached towards Dukkha in
order to save him, Shera fired from his
pistol which resulted in injuries to the
informant, Jaskaran and Mukesh. Prahlad
and Chotte Lal were throwing brickbats at
them, such brickbats hit Reoti and Nankau.
As soon as the informant and his other
family members moved away Lakhan hit
Dukkha with the wrong side of his Farsa
and
Shera,
using
the
butt
of
his
countrymade pistol to hit Dukkha many
times. The informant and his family
members ran and hid themselves. Dukkha
kept lying on the ground. After about 10 to
15 minutes the accused went away and then
they approached Dukkha but found him
dead. Thereafter, the informant along with
his family members went to Gosaiganj
Police Station to lodge a written report.
After the report was lodged the Police sent
them to the Primary Health Centre,
Gosaiganj
for
treatment
where
the
informant, his father, his uncle, his younger
brother and Jaskaran stayed in the night.
Later on they went to Balrampur Hospital
for X-ray as advised by the Medical
Officer, who had given them treatment at
Primary Health Centre, Gosaiganj.

33.
In
cross
examination,
the
informant stated that Kunware was a
distant relative and he had only shouted for
help while running to the village, and he
did not accompany them to the place where
Nankau was initially attacked. Jaskaran
was not related to them. He admitted that in
the FIR that was lodged no mention was
made of Kunware accompanying Nankau
when he was initially attacked. He also did
not give details about the exact place where
the initial attack took place. When they had
reached the spot the accused had run away.
After they reached the spot, Nankau arrived
after 2 to 3 minutes as he had hidden
himself, they stayed at the spot for 4 to 5
minutes and were returning home with
Nankau, who told them the details of how
his cycle was initially banged by Shera and
he had fallen to the ground along with his
cycle, and he was later slapped several
times by Shera. P.W.1 also stated that he
had told the Sub-Inspector about Shera
hitting the cycle of Nankau with his own
cycle, making him fall down and then
122 INDIAN LAW REPORTS ALLAHABAD SERIES
slapping him but did not know as to why
these details were not mentioned in the
statement under Section 161 Cr.P.C. The
informant was grilled by the counsel for the
accused repeatedly with regard to the exact
place where Nankau was initially accosted
by the accused. He was also question
repeatedly with regard to the exact place
where the second attack was made, which
resulted in Dukkha's death. He stated that
while they were returning home, Mukesh
was holding the cycle of Nankau. Dukkha
was hit by Lakhan with the sharp side of
Farsa initially, and Dukkha fell to the
ground later on, he was hit with the wrong
side of the Farsa repeatedly by Lakhan.
When they tried to save him, Shera fired
his gun which caused injuries to them and
they backed away and Shera also hit his
grandfather Dukkha with the butt of his
pistol. P.W.-1 could not remember whether
Dukkha also received gunshot injury.

34. A suggestion was made to P.W.-1
having motive to implicate Shera as
sometime in spring of 1996, there was a
wedding in the family of Mata Prasad, his
uncle where Shera had accused P.W.-1 in the
Panchayat at Hanuman Temple of abducting
the sister-in-law of Mata Prasad. The girl was
later recovered. This suggestion was denied
by P.W.-1. It was also suggested to P.W.-1
that Dukkha had been killed and other family
members injured in a dacoity carried out in
the night at their house. This suggestion was
also denied. It was also suggested that
Dukkha was infamous for making spurious
country liquor and had also gone to jail, and
Nankau was also involved in various crimes,
as a result of which they had several enemies,
and any one of them could have carried out
the attack. This suggestion was also denied.

35. However, in their statement
recorded under Section 313 Cr.P.C., by all
the accused they have not substantiated the
suggestions made during cross examination
of P.W.-1 regarding Shera being falsely
implicated as he had deposed before the
Panchayat
that
P.W.-1
had
been
instrumental in the abducting of the sisterin-law of Mata Prasad his brother. They did
not also substantiate their claim of Dukkha
and Nankau having criminal history and
having several enemies. None of the
suggestions made during cross examination
by their counsel were in any way
substantiated or elaborated in the statement
of the accused taken under section 313
Cr.P.C.

36. P.W.-4, Arvind Mohan Jaiswal,
the
Investigating
Officer
during
his
examination had stated that the informant
alongwith Mukesh, Reoti and Jaskaran had
reached the Police Station on 09.10.1997 at
around 11:50 P.M. and after recording the
statement, he had sent the injured to
Primary Health Centre, Gosaiganj, along
with one Constable, Anil Kumar Yadav. He
himself had left for the scene of the crime
along with Sub-Inspector Ram Teerath
Pandey and other members of the Police
team. Sub-Inspector, Ram Teerath Pandey
had taken a photo of the body of the
deceased, the inquest report was prepared,
and the body was sealed and sent to the
Medical College for postmortem and he
had collected blood stained soil and plain
soil in the presence of witnesses. Site plan
was prepared and Nankau, one of the eye
witnesses statement was taken. Then he
visited the place where initially Nankau
was attacked and prepared another site
plan. On 11.10.1997, he had arrested Shera
along with his country-made pistol and live
cartridge of 12 Bore and also Prahlad and
recorded their statements. On 15.10.1997,
he received medical examination report of
all the injured and postmortem report of
5 All. Shera Vs. State of U.P.
123
Dukkha. On 23.10.1997 Chhote Lal and
Lakhan
surrendered
in
court.
On
24.10.1997 he took statements of Reoti
Prasad, Mukesh Prasad and on 11.11.1997,
took statements of Chhote Lal and Lakhan
in jail. On 28.11.1997, he took statement of
Jaskaran and on 01.12.1997, he received Xray reports of Jaskaran, Mukesh and
Krishna Kumar.

P.W.-4 denied that P.W.-1 and
P.W.-2 had stated that any details of the
incident in statements under Section 161
Cr.P.C. as mentioned by them in their
examination-in-chief.

37. The Investigating Officer stated
that there was a lamp post two steps away
from the place where the Dukkha was
attacked and all evidence was collected
with the help of light from such lamp post.
He also stated that he had found the body
lying near the house of Nanha Badhai. He
also stated that he did not recover any
pellets or empty cartridges near the place of
the crime. No brickbats were also found
lying there. He had prepared the Site Plan
of both the places with the help of Nankau.
The scene of crime was around half a
kilometre away from the Police Station.
The site plan was prepared by him in the
morning at around sunrise. He denied the
suggestion made by the defence counsel
that Nankau had arrived at the Police
Station at around 08:00 P.M. and he had
lodged the FIR and the one lodged by
Krishna Kumar was the second FIR of the
same incident and it was late registered as
Case Crime No. 383 of 1997 after due
deliberation with Police at the Police
Station Gosaiganj.

38. In the postmortem examination of
the deceased, the doctor had found eight
injuries of which seven had been caused by
sharp edged weapons. The frontal, temporal,
and occipital bone in the skull were found
fractured. There was fracture also in the
maxillary bone. Oesophagus and trachea
were found cut. Cranial fossa was also found
to have been fractured.

39. Mukesh had four gunshot wounds,
Jaskaran had two gunshot wounds, Krishna
Kumar had two gunshot wounds, and the
radiologist in his testimony had proved
foreign bodies of metallic density being
found in the X-ray plates of Mukesh,
Jaskaran and Krishna Kumar. The Medical
Officer who had examined the injured at
Primary Health Centre Gosaiganj had stated
that these injuries could not have been caused
by the patients themselves. Also, the medico
legal report of Reoti showed three contusions
one of them abraded, having been caused
either by lathi or Danda or by dragging. He
had also examined Nankau and had found
four contusions three of them being abraded.
All the injuries were simple in nature caused
by a blunt object. The doctor opined that
these injuries could have been caused either
by lathi or Danda or by dragging. Also,
Medical Officer had opined that the injuries
may have been caused at around 08:00 P.M.
the previous night.

40. The Head Constable had proved the
G.D. Entry and F.I.R. The investigating
officer had proved the collection of blood
stained and plain soil, preparation of Inquest
Report, preparation of Site Plan of two places
where the incidents had taken place, recovery
of TamanCha/countrymade pistol and one
live cartridge of 12 Bore from Shera, and the
lodging of the second F.I.R. under Section
3/25 of the Arms Act against him after
permission from the District Magistrate.

41. After having recorded the evidence
of the official witnesses and having
considered the contents of the FIR and of
124 INDIAN LAW REPORTS ALLAHABAD SERIES
the statement of the accused under Section
313 of the Cr.P.C., the trial court has from
internal
page
11
of
the
judgement
considered the prosecution story in detail
and arguments raised by the Counsel for
the defence. He framed the issue with
regard to whether the death of Dukkha and
the injuries caused to various witnesses had
occurred on the date and time and place as
stated by the prosecution. He examined the
testimony of P.W.-1 Krishna Kumar who
had received gunshot wounds and was the
informant and also of P.W.-2 Nankau who
had also suffered injuries though simple in
nature.

42.
The
Trial
Court
has
also
considered the argument raised by the
defence that informant P.W.-1 has not
stated clearly the place of the first incident
and that Kunware who had witnessed the
first incident and had run towards the
village shouting for help had not been
produced as a witness. The trial court
considered
the
testimony
of
P.W.-2
Nankau, who was the injured person in the
said attack as first hand account and found
it to be truthful as he had not stated
anywhere that he was attacked by all the
accused, carrying arms with them. He had
only stated that Shera had banged his cycle
and on falling down from it, he was beaten
up by Shera and Lakhan. Since the report
was lodged by P.W.-1, he had only stated
what he had heard from his uncle and
therefore details regarding the place of
attack and the manner of attack could not
have been stated by him very clearly in the
FIR, which was understandable.

43. With regard to the second incident
which occurred at around 08:00 P.M., the
same night, the testimony of P.W.-1
seemed more reliable as he had received
gun shot injuries and had given a first hand
account. P.W.-2 had admitted that he had
run away and hid himself. P.W.-2 Nankau
was illiterate and he on repeated cross
examination had tried to improve his
statements. Sometimes he stated that he had
not hidden himself at others he stated that
he had hidden himself and had run away to
village Tikariya from where he gathered
help and reached the police station on his
own.

44. The trial court has considered the
argument raised by the defence counsel that
in the F.I.R. it had been written that
Dukkha had been killed by Farsa and
Tamancha but there were no gunshot
injuries
found
on
his
body
during
postmortem examination.