# Shyam Behari Mishra & Anr v. State of U.P

- **Citation:** (2023) 4 ILRA 1384
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-24
- **Case number:** Criminal Appeal No. 1092 of 2005
- **Bench:** Anjani Kumar Mishra, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-behari-mishra-anr-v-state-of-u-p-50061
- **Pages:** 47

## Headnote

Law-Appeal-Conviction
under
Section 302 and 307 read with section 34
IPC-old enmity regarding land between
the parties-motive behind the crimedefence could not create any doubt about
the FIR being lodged ante-dated and antetimed-investigation
started
just
after
lodging of FIR-inquest is not a substantive
piece of evidence-no need of previously
lodged FIR-contents of FIR, inquest and
oral evidence-conformity with each otherno contradiction between ocular and
medical evidence-testimony of related and
family members can be relied upon-proper
scrutiny and cautious appreciation of
evidence
necessary-report
of
FSL
admissible in evidence under Sectio 293 of
CrPC-mere non-recording of statements of
some witnesses does not create doubtmere
faulty
investigation-delay
in
recording statement of witness not fatal
for the prosecution-defective framing of
charge of no consequence-unless it results
in failure of justice-plea of alibi rejected-
all defence witnesses are colleagues of the
accused-prior meeting of mind presentconviction rightly under Section 34 IPC-no
infirmity in judgement of the trial courtconviction
upheld-appeal
dismissed.
(Paras 28, 29, 30, 33, 34, 44, 49,60,63 and
67)

HELD:
In this case defence could not create any doubt
about the F.I.R. being lodged ante-dated and
ante-timed. The investigation started just after
the F.I.R. was lodged. After few hours the
deceased had been declared brought dead and
the proceeding of inquest and post-mortem had
been started. The I.O. had visited the spot and
prepared map and had also recorded statement
of informant, therefore, only delay in sending
the report/copy of the F.I.R. to the Magistrate
under Section 157 Cr.P.C. is not fatal for the
prosecution and in no way affects the merit of
the case. (Para 28)

This Court is of the opinion that for inquest
there is no need of previously lodged F.I.R.
Suppose an unidentified dead body is found and
no FIR is being lodged, in that case, the police
shall visit the place and shall take the dead body
in its possession and shall conduct inquest and
post-mortem and shall publish news in media
and newspaper, if after few days any person
comes and claims the dead body and moves
written complaint to lodge the F.I.R., it cannot
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1385
be said that there was no occasion to conduct
the inquest proceeding. In this case F.I.R. had
already been lodged though copy of the chick
F.I.R. was not with the Kotwali police while
conducting the inquest. Hence, according to this
court there is no scope of argument at this
point. (Para 29)

On 11.4.2000 at 2:00 pm autopsy was
conducted by P.W.5 Dr. K.N. Joshi wherein he
found fire arm wound of entry on the right side
of chest 4 cm below right nipple size 3 cm X 1
cm, margins inverted, charring, blackening and
tattooing present, 63 small pellets with one wad
recovered from the thorax cavity. According to
the doctor, the cause of death was shock and
haemorrhage as a result of ante -mortem injury.
Thus the contents of F.I.R., inquest and oral
evidence and post-mortem report and evidence
of the doctor are in conformity with each other.
It is also established that deceased was shot at
a very close range. (Para 30)

In this case it has been concluded that
witnesses observed the commission of crime
from behind and due a little distance between
the accused and the deceased they thought that
the deceased had been shot from a contact
range but virtually it was a close range shot by
the accused. Therefore, the charring, blackening
and tattooing were found on the wound of
entry. (Para 33)

On the basis of the overall discussion this Court
is of the considered view that there is no
infirmity in the judgment and order of conviction
passed by the learned
trial Court. The
prosecution has proved its case beyond all
reasonable doubts. The order of sentencing is
also proper. It is neither harsh nor punitive and
has been awarded the minimum sentence which
meets t

## Text

_Characters 0–39,998 of 152,071. This is a partial read: ask again with offset=39998 for what follows._

1384 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Judge (Junior Division) 4th, Faizabad are
quashed so far as its relates to applicants.

18. The party shall file computer
generated
copy
of
such
order
downloaded from the official website of
High Court, Allahabad or certified copy
issued from the Registry of the High
Court, Allahabad.

19. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court, Allahabad and
shall make a declaration of such verification in
writing.
----------
(2023) 4 ILRA 1384
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 1092 of 2005
With
Criminal Appeal No. 1884 of 2005

Shyam Behari Mishra & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri
Jagdish
Singh
Sengar,
Sri
Anuj
Srivastava, Sri Mohd. Raghib Ali Ac, Sri
Saghir Ahmad (Sn. Adv.)

Counsel for the Opposite Party:
G.A., Sri V.K. Barawal, Sri Vivek Kumar
Shukla

Criminal
Law-Appeal-Conviction
under
Section 302 and 307 read with section 34
IPC-old enmity regarding land between
the parties-motive behind the crimedefence could not create any doubt about
the FIR being lodged ante-dated and antetimed-investigation
started
just
after
lodging of FIR-inquest is not a substantive
piece of evidence-no need of previously
lodged FIR-contents of FIR, inquest and
oral evidence-conformity with each otherno contradiction between ocular and
medical evidence-testimony of related and
family members can be relied upon-proper
scrutiny and cautious appreciation of
evidence
necessary-report
of
FSL
admissible in evidence under Sectio 293 of
CrPC-mere non-recording of statements of
some witnesses does not create doubtmere
faulty
investigation-delay
in
recording statement of witness not fatal
for the prosecution-defective framing of
charge of no consequence-unless it results
in failure of justice-plea of alibi rejected-
all defence witnesses are colleagues of the
accused-prior meeting of mind presentconviction rightly under Section 34 IPC-no
infirmity in judgement of the trial courtconviction
upheld-appeal
dismissed.
(Paras 28, 29, 30, 33, 34, 44, 49,60,63 and
67)

HELD:
In this case defence could not create any doubt
about the F.I.R. being lodged ante-dated and
ante-timed. The investigation started just after
the F.I.R. was lodged. After few hours the
deceased had been declared brought dead and
the proceeding of inquest and post-mortem had
been started. The I.O. had visited the spot and
prepared map and had also recorded statement
of informant, therefore, only delay in sending
the report/copy of the F.I.R. to the Magistrate
under Section 157 Cr.P.C. is not fatal for the
prosecution and in no way affects the merit of
the case. (Para 28)

This Court is of the opinion that for inquest
there is no need of previously lodged F.I.R.
Suppose an unidentified dead body is found and
no FIR is being lodged, in that case, the police
shall visit the place and shall take the dead body
in its possession and shall conduct inquest and
post-mortem and shall publish news in media
and newspaper, if after few days any person
comes and claims the dead body and moves
written complaint to lodge the F.I.R., it cannot
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1385
be said that there was no occasion to conduct
the inquest proceeding. In this case F.I.R. had
already been lodged though copy of the chick
F.I.R. was not with the Kotwali police while
conducting the inquest. Hence, according to this
court there is no scope of argument at this
point. (Para 29)

On 11.4.2000 at 2:00 pm autopsy was
conducted by P.W.5 Dr. K.N. Joshi wherein he
found fire arm wound of entry on the right side
of chest 4 cm below right nipple size 3 cm X 1
cm, margins inverted, charring, blackening and
tattooing present, 63 small pellets with one wad
recovered from the thorax cavity. According to
the doctor, the cause of death was shock and
haemorrhage as a result of ante -mortem injury.
Thus the contents of F.I.R., inquest and oral
evidence and post-mortem report and evidence
of the doctor are in conformity with each other.
It is also established that deceased was shot at
a very close range. (Para 30)

In this case it has been concluded that
witnesses observed the commission of crime
from behind and due a little distance between
the accused and the deceased they thought that
the deceased had been shot from a contact
range but virtually it was a close range shot by
the accused. Therefore, the charring, blackening
and tattooing were found on the wound of
entry. (Para 33)

On the basis of the overall discussion this Court
is of the considered view that there is no
infirmity in the judgment and order of conviction
passed by the learned
trial Court. The
prosecution has proved its case beyond all
reasonable doubts. The order of sentencing is
also proper. It is neither harsh nor punitive and
has been awarded the minimum sentence which
meets the ends of justice. The appeals lack
merit and are liable to be dismissed. (Para 67)

Appeal dismissed. (E-14)

List of Cases cited:

1. Lekhraj @ Hari Singh Vs St. of Guj. 1998
SCC(Cri) 704

2.Harphool and Ramjeevan Vs St. of Raj., 2002
SCC Online, Raj 988
3.Saddik @ Lalo Gulam Hussein Shaikh & ors.
Vs St. of Guj., (2016) 10 SCC 663

4.Rajkishori Devi Widow(deceased) Vs St. of
U.P. & ors.

5.Raj Gopal Vs Muthupandi @ Thavakkalai &
ors., (2017) 11 SCC 120

6.Girish Yadav & ors. Vs St. of M.P. (1996) 8
SCC 186

7.Prem Nath Yadav Vs St. of U.P. 2022 (2) ACR
1065 (L.B.)

8.Maharaj Singh Vs St. of U.P. (1994) 5 SCC 188

9.Ram Sajeevan Singh & ors. Vs St. of Bih.
(1996) 8 SCC 552

10. St. of U.P. Vs Gokaran & ors., AIR 1985 SC
131

11.Pala Singh Vs St. of Pun., AIR 1972 SC 2679

12. Anil Rai Vs St. of Bih., 2001 7 SCC 318

13.St. of Pun. Vs Hakam Singh (2005) 7 SCC
408

14. St. of Karnataka Vs Moin Patel, (1996) 8 SCC
167

15.Betal Singh Vs St. of M.P., AIR 1996 SC
2770

16.Radha Mohan Singh alias Lal Saheb Vs St. of
U.P., 2006 (54) ACC 86

17.Podda Narain Vs St. of A.P., AIR 1975 SC
1252

18. Budh Singh Vs St. of MP, AIR 2007 SC
(Suppl) 267

19.Swaran Singh Vs St. of Pun., AIR 2000 SC
2017

20.Bharat Singh Vs St. of UP, AIR 1999 SC
717

21.Sarvesh Narain Shukla Vs Daroga Singh, AIR
2008 SC 320
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
22.Ram Swaroop Vs St. of U.P. 2000, (40) ACC
432 (SC)

23.Ramjee Rai Vs St. of Bih., 2007, (57) ACC
385 (SC

24.Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

25.Shyam Babu Vs St. of U.P., AIR 2012 SC 3311

26.Sonelal Vs St. of M.P., AIR 2009 SC 760

27.Sucha Singh Vs St. of Pun., (2003) 7 SCC 270

28.Dharamveer Vs St. of U.P., AIR, 2010, SC
1378

29.Dilawar Singh Vs St. of Har., (2015) 1 SCC
737

30.Ramesh Harijan Vs St. of U.P., (2012) 5 SCC
777

31.Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Mah., 2022 0 Supreme (SC) 569

32.Maqbool Vs St. of A.P., AIR 2011 SC 184

33.Sheo Shankar Singh Vs St. of Jhar., 2011,
CrLJ 2139 (SC)

34. Dhanaj Singh Vs St. of Pun., (2004) 3 SCC
654

35.Keshav Lal Vs St. of M.P., (2002) 3 SCC 254

36.M.K. Upadhyaya Vs St. of A.P., (2012) 3 SCC
(Cri.) 42

37. Leela Ram Vs St., (1999) 9 SCC 525,

38.Anand Mohan Vs St. of Bih., (2012) 3 SCC
(Cri.) 328

39.Mohd. Mian Vs St. of U.P., (2011) 2 SCC (Cri.)
694

40.Krishna Pal Vs St. of U.P. AIR 1996 SC 733

41.Ramdev & anr. Vs St. of Raj. 2003 CrLJ
(1680)

42.Suradhani Darbar Vs St. of West Bengal 2004
(3) Crimes 196 Culcutta High Court DB

43. State (NCT of Delhi) Vs Navjot Sandhu, AIR
2005 SC 3820

44.Commissioner of I.T. Vs Kamla Town Trust,
(1196) 7 SCC 349

45. Binay Kumar Singh Vs St. of Bih., AIR 1997
SC 322

46.Sandeep Vs St. of U.P, (2012) 6 SCC 107

47.Shaik Sattar Vs St. of Mah., (2010) 8 SCC
430

48.Om Prakash Vs St. of Raj. & anr., (2012) 5
SCC 201

49. Adalat Pandit Vs St. of Bih. (2010) 6 SCC
469

50.Saidu Khan Vs St., AIR 1951 All. 21
(FB)

51.Pyare Lal Vs St. of U.P., 1987 SC 852

52.Nand Kishore Vs St. of M.P. (2011) 4 Cri LJ
4243 (SC)

53.Lallan Rai Vs St. of Bih., (2003) 1 SCC 268.

54. Barendra Kumar Ghosh Vs King Emperor,
AIR 1925 PC 1

55.Pyarelal Vs St. of U.P, AIR 1987 SC 852

56. Jagdish Murav Vs St. of U.P. 2006 Law Suit
(SC) 686

57. Maruti Rama Naik Vs St. of Mah., 2003 0
Supreme (SC)

58. Sampath Kumar Vs Inspector of Police
Krishnagiri, AIR 2011 SC 1249

59.St. of U.P. Vs Parshuram Yadav, 2005 0
Supreme (All.) 1309 DB

60.Daud Khan Vs St. of Raj., 2015 0 Supreme
(SC) 1041
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1387
61. Samsul Haque Vs St. of Assam AIR 2019 SC
4163

62. Ganesh Bhavan Patel & anr. Vs St. of Mah.,
1978 0 Supreme (SC) 323

63.Sukh Dev Vs St. of U.P., 2017 SCC Online All
2992
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. These two appeals have been
preferred against the judgment and order
dated 2.3.2005 passed by Additional
Sessions Judge Court No.5, Allahabad, in
S.T. No. 807 of 2000 State Vs. Shyam
Bihari Mishra and Others, under Section
302 read with Section 34 IPC and Section
307 read with Section 34 IPC. Police
Station Sarai Inayat, District- Allahabad,
convicting and sentencing the appellants
under Section 302 read with Section 34 IPC
for life imprisonment and under Section
307 read with Section 34 IPC for 3 years
rigorous imprisonment. Both sentences
were directed to run concurrently.

2. In brief, the facts of the case are
that informant Shiv Prakash Tiwari r/o
Kotwa,
police
station-
Sarai
Inayat,
Allahabad presented a tehrir Ex. Ka-1 on
10.4.2000 at 9:30 a.m. stating therein that
today at about 8:30 am, his brother Jai
Prakash
Tiwari
was
returning
after
worshiping at Goddess Maa Endree Devi
Temple with nephew (Bhanja) Kuldeep
Mishra on a scooter when he reached near
his house, he slowed down his scooter due
to drain, Shyam Bihari Mishra exhorted to
kill him, his son Bimal Kumar Mishra
stopped his scooter from the front and
Kamal Mishra, placed a country made firearm on the chest of his brother Jai Prakash
and fired. Hearing the sound of the fire he,
Pawan Tiwari and Jai Hind reached the
spot and saw the occurrence and chased the
accused persons. In the meantime, Vimal
Kumar Mishra with the intention to kill him
also fired at him (confront). He ducked
behind a pile of new bricks. Therefore, the
bullet did not hit him. According to the
informant there was old land enmity
between the parties. His brother Jai Prakash
is in a serious condition, he requested to
lodge the F.I.R.

3. On the basis of Tehrir Ex. Ka-1,
Chick F.I.R. Ex. Ka-8 was prepared. P.W.6
S.O.
Kripa
Shankar
Dixit
started
investigation. He reached on the spot and
took sample of blood stained and plain soil
and prepared recovery memo Ex. Ka-4 and
spot map Ex. Ka-4. He searched the house
of accused persons and prepared recovery
memo Ex. Ka-5. The injured Jai Prakash
Tiwari was first of all taken to the police
station wherefrom he was sent to Swaroop
Rani Nehru Hospital, Allahabad, where he
was declared brought dead. There, Chauki
Incharge Kotwali, Sant Kumar Chaturvedi
prepared inquest report and body was sent
for post-mortem to Mortuary on 11.4.2000
at 2:00 p.m. where Dr. K.N. Joshi
conducted the autopsy. On 20.4.2000 after
getting information about the basement in
the house of the accused persons the I.O.
visited and searched the house of the
accused persons but nothing incriminating
was recovered.

4. On 28.4.2000, alleged weapon used
in commission of crime was recovered
upon the pointing of accused persons from
their house containing one country made
fire arm of 303 bore, two live cartridges of
303 bore and 12 bombs of which recovery
memo Ex. Ka 5 was prepared.

5. After investigation, charge-sheet
was submitted under Section 302, 307 and
504 /34 of IPC. The case was committed to
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court of Sessions and thereafter it was
transferred to the Court of Additional
Sessions Judge, Court No.6, Allahabad,
who framed the charges under Section
302/34 and 307/34 IPC. Accused persons
denied the charges and sought trial.

6. Prosecution examined following
witnesses to prove the charges

P.W.1
Shiv Prakash Tiwari, informant
P.W.2
Satya Prakash Tiwari, scribe,
independent witness
P.W.3
Jai Hind Singh, Independent
witness
P.W.4
Pawan
Tiwari,
son
of
the
deceased.
P.W.5
Dr. K.N.Joshi, who did autopsy.
P.W.6
Kripa Shankar Dixit, the then S.O
and I.O. of the case,
P.W.7
Badri Prasad Mishra, constable
moharrir,
P.W.8
Sant Kumar Chaturvedi, who
prepared inquest

Documentary evidence:

Ex. Ka-1 Tehrir
Ex. Ka-2 Post-mortem report
Ex. Ka-3
&
Ex.
Ka- 6
Site plans
Ex. Ka-4 Blood stained soil
Ex. Ka-5 Search memo
Ex. Ka-7 Charge-sheet
Ex. Ka-8 Chick F.I.R.
Ex. Ka-9
&
Ex.
G.D. and return G.D.
Ka- 10
Ex. Ka11
Inquest
Ex. Ka12
&
Ex. Ka18
Letter to R.I., letter to C.M.O.,
challan nash, photo nash

7. Paper no. 10, F.S.L. Report which
is not exhibited but is admissible in
evidence under Section 293 Cr.P.C.

8. Defence witness:

D.W.1
Surendra Prasad Mishra
D.W.2
Radhey Shyam Sharma
D.W.3
Mahesh Chandra Mishra
D.W.4
Shitla Prasad

9. Documentary evidence :

Ex. Kha-1
Order tax officer
Ex. Kha-2
Report dated 10.4.2000
Ex. Kha-3
Receipt of Rs. 570 dated
10.4.2000
Ex. Kha-4
Photo
copy
of
the
attendance register.

10. In criminal appeal no. 1092 of
2005, accused Shyam Bihari Mishra and
Vimal Kumar Mishra and in criminal
appeal no. 1884 of 2005, accused Kamal
Mishra, have taken the ground that the
conviction of the appellants is against the
weight of evidence on record and bad in the
eyes of law, the sentences are too severe,
therefore, the appeal be allowed and
judgment and order dated 2.3.2005 be setaside.
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1389

11. P.W.1, Shiv Prakash Tiwari,
deposed that on 10.4.2000 at 8:30 am, his
elder
brother
Jai
Prakash
Tiwari
accompanied by nephew (Bhanja), Kuldeep
Mishra, was returning after worshiping at
the Goddess Maa Endree Devi Temple.
When he reached near the shop of Meenu
Malviya and slowed down his scooter due
to drain, Shyam Bihari Mishra who along
with his two sons namely Kamal Mishra
and Bimal Mishra, was standing in the
nearby street, exhorted his sons Bimal
Mishra and Kamal Mishra, to kill Jai
Prakash Tiwari. At this point, Bimal
Mishra caught the scooter from the front
and Kamal Mishra, shot him with a country
made fire arm which hit Jai Prakash Mishra
on the chest. Thereafter, P.W.1 along with
Jai Hind Singh and Pawan Tiwari ran
towards the place of the incident; he was at
the fore so Bimal Mishra also tried to kill
him and fired at him but he hid himself
behind the pile of new bricks. The
accused persons ran towards their
home in a Marshal Jeep No. UP 70 K
9145 driven by Kamal Mishra and
escaped. Thereafter, they brought Jai
Prakash Singh home and P.W.1, got a
tehrir (Ex. Ka-1) scribed by Satya
Prakash
Tiwari.
This
witness
recognized the tehrir, its contents, his
signature thereon and proved it. He
along with the report and the injured
went to police station Sarai Inayat,
presented it to the constable-clerk and
lodged the F.I.R. Thereafter constable
1740 Jeet Bahadur Singh was sent
along with the injured to Swaroop Rani
Hospital but on the way his brother
succumbed to fire arm injury. There
was old enmity on account of purchase
of land Arazi No. 1005 from Sudarshan
s/o Sundar for which accused persons
killed his brother by shooting him. I.O.
had recorded his statement at his
house.

12. This witness further deposed that
he is driver in R.T.O. Allahabad. There was
no duty scheduled, he used to go to duty on
call. He lives in a rented house in
Allahabad. At the time of the incident he
was posted in Pratapgarh and on the date of
incident he was present at his house. On
9.4.2009 he had come from Pratapgarh
after taking two days casual leave for
Darshan of Goddess Vindhyachal as
Navratri was going on. He had informed
his office for extension of leave due to the
murder of his brother. He admits that there
was government hospital in his village.
P.W.1 further deposed that between the
hospital and the government road, 18 biswa
land of Sudarshan is situated which was
purchased through registered agreement by
three persons including Senior Vajpayi son
of Kalika Vajpayi. He got sale deed
executed from Sudarshan, rest two persons
had also purchased 3 biswa land each
through sale deed. He denied that he got the
remaining 5 biswa land in the name of his
sister but he and Vinay Vajpayee had
executed sale deed from their share. He
expressed ignorance that Sudarshan had
also executed sale deed for about 4
biswa of land in favour of Purushottam
Dubey and name of vendee had been
mutated. He also expressed ignorance
that on 31.1.2000 Purushottam Dubey
had executed power of attorney in
favour of accused Kamal Mishra. He
admits
that
Kuldeep
Mishra
(not
examined)
son
of
his
sister
has
purchased 5 biswa land of the aforesaid
plot. He denied that he alongwith
Kuldeep Mishra wanted to grab the land
illegally
which
was
prevented
by
Purshottam Dubey.
1390 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Shyam Bihari Mishra, does
service in Nagar Mahapalika, Allahabad, he
does not know whether he was working
there as an Inspector. This witness further
deposed that at the time of occurrence he
was present on the spot. Maa Indree Devi
Temple is 2-1/2 km away towards south.
His brother Jai Prakash Tiwari had gone for
worshiping at about 7:45 am. Jai Prakash
used to go there regularly with Dolchi and
other
worship
materials
which
were
hanging on the scooter and had not fallen
down.

14. In cross-examination this witness
deposed that after death of his brother at
about 11:30 a.m., he directly returned to his
house and had not gone to the police
station. He had not informed the police
station Sarai Inayat about the death of his
brother. The constable who accompanied
him to the hospital had not come with him.
He does not know as to when the constable
reached the police station. He spent a day
and night at his house. I. O. was also there
who had recorded his statement the next
day. He had come to the post-mortem
house next day. He admits that he had
mentioned in his Tehrir that accused were
standing in the street adjacent to Meenu
Malviya's shop. He did not remember as to
whether this fact was stated by him to the
I.O. as he was perturbed due to the murder
of his brother. He deposed that he had
mentioned the fact that Bimal had caught
the scooter, if this fact is not written in
Tehrir, he cannot assign any reason. He
further deposed that Bimal had stopped the
scooter but had not stated about the
catching of the scooter. On being asked as
to whether Bimal had caught the scooter or
not, he replied that Bimal had stopped the
scooter by standing in front of it. He
admitted that he had mentioned the fact that
at the time of incident, he was standing at
his door and had seen the occurrence, if it
was not written in tehrir or in his statement,
he cannot assign the reason. He has
admitted that Kamal Mishra had run away
by plying vehicle, if this fact was not
recorded by the I.O, he cannot assign the
reason. He deposed that the house of the
accused persons is 150 meter away towards
north-east from the place of occurrence. He
further deposed that from the place of
occurrence the house of the accused
persons is towards which direction and how
many yards away can be told by Lekhpal.
He further deposed that it would have taken
15-20 minutes in writing the Tehrir. Jai
Prakash Tiwari was laying at the door on a
cot. There was no blood on the door. There
must have been blood on the cot which was
seen by the I.O. After writing Tehrir, the
injured was carried in a Commander Jeep
of Chandra Dev Tripathi. There was no
blood on his clothes because the body was
kept above. They reached police station at
9:00 am and from there at about 9:30 they
were sent to the hospital in the same
Commander Jeep. At the same time his
brother's
condition
had
also become
critical. He thought information at the
police station is more important than taking
brother to the hospital. He repeatedly stated
that his brother's condition was serious but
was allowed to go to the hospital only after
writing the FIR, it would have taken about
one hour in reaching the hospital. They
reached hospital at about 10:30 am, and
they had come after crossing the crowded
Shastri Bridge. They remained in the
hospital for a mere five minutes and
returned home from Sumo Car of his friend
Agan Singh. He deposed that he had not
taken his brother to the health center
situated at his village as no staff was there.
When deceased was shot, he was standing
at his house about 40-45 steps away from
the shop of Meenu Malviya. The pile of
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1391
brick belonged to Pancham Kant and was
kept 4-5 months before the date of incident
on a 7 feet wide lane.

This witness further deposed that
when he reached, the I.O. met him at about
11;30 am. He dug the earth. Thereafter, the
I.O. recorded his statement. On the place of
occurrence there was brick and soil both.
The scooter was left on the spot. When he
reached home, the I.O. brought the scooter
to the house. The I.O. remained in the
village up to 2-2:30 pm. Senior officials
had also visited the spot. He denied that he
had not seen the incident. He also denied
that
report
has
been
lodged
after
consultation and was ante-timed.

15. P.W.2, Satya Prakash Tiwari,
deposed that on 10.4.2022, on the dictation
of Shiv Prakash Tiwari, he had written the
tehrir (Ex. Ka-1). After writing it was read
out to him. He denied that he had written
the tehrir at the police station on the
dictation of S.I.

16. P.W.3, Jai Hind Singh, is the
independent eye witness who has deposed
that he knows the accused persons and the
informant. The incident occurred on
10.4.2000 at 8:30 a.m., he had talked to the
informant, Shiv Prakash Tiwari, in the
evening for going to Vindhyachal together.
On the date of incident this witness had
come at about 8:30 a.m. to the house of the
informant. The informant told him that his
brother would also go with them and at the
moment he had gone for worshiping at Ma
Endree Devi Temple. At around 8:30 a.m.
Jai Prakash Tiwari, returned and reached in
front of Meenu Malviya's shop, there was a
drain so Jai Prakash Tiwari slowed down.
At that moment, Shyam Bihari exhorted to
kill Jai Prakash Tiwari, Bimal caught the
handle of the scooter from the front and
then Kamal Mishra putting country-made
fire arm on the chest of Jai Prakash fired.
When people ran, Shiv Prakash Tiwari was
ahead of them. He was also shot by Katta
by Bimal but it did'nt hit him due to wall of
the added bricks. Apart from him, Pawan
Kumar Tiwari, Shiv Prakash Tiwari and
others had reached the place of occurrence
and witnessed the incident.

In cross-examination this witness
deposed that after one month of the
incident, I.O. had recorded his statement.
During this period he remained at his
house. After the incident, first of all he
came to the police station with the injured
and thereafter had gone to the hospital. He
had reached police station at about 9:00
a.m. and stayed there for 2-3 minutes and
thereafter went to the hospital. When at
about 9:15 a.m., he reached the hospital
where the doctor informed that the injured
has died. Thereafter, Shiv Prakash Tiwari
went to the police station for giving
information. The dead body remained in
the hospital. Then I.O. and Shiv Prakash
Tiwari reached at the hospital at about
10:30 a.m., the I.O. had sealed the dead
body at about 11-12 a.m. He cannot say the
exact time. After that the I.O. returned to
the police station, he and other persons
remained in the hospital the whole night
because of friendship. Nobody got any
money. Dead body was handed over at
3:00-3:30 hours. About firing, first of all he
had informed the I.O. and in the Court,
none else. The discussion continued in the
village. He had told the I.O. that in the
evening he had spoken to the informant for
going to Vindhyachal together. Therefore,
he had come to the house of the informant
at 8:00 a.m. Deceased had gone to worship
in
Maa
Endree
Devi
Temple.
The
informant
told
him
that
his
brother/deceased would also accompany
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
them to Vindhyachal. This witness further
deposed that if the above fact has not been
written in his statement, he can not tell the
reason. The I.O. had recorded his statement
at his house. He did not remember the time.
Later he deposed that I.O. had recorded his
statement at about 12:00 to 1:00 p.m. He is
not literate, he had signed the statement
given to the I.O. The I.O. had said that
same statement would be given in the
Court. He further deposed that where the
bullet was fired, is the house of Chandra
Kant Shukla. There is khadanja/brick road
in front of the house of Chandra Kant
Shukla. On the east of the road, Meenu
Malviya's grocery shop is situated, which
was open at the time of incident. He had
seen the occurrence from the north corner
of the house of Chandra Kant Shukla,
standing two steps west Kamal had fired at
Jai Prakash Tiwari. When bullet hit Jai
Prakash, Jai Prakash had fallen down.
There was only one fire on Jai Prakash. The
place of occurrence is not visible from his
house. He denied that he had not witnessed
the incident and out of friendship he was
falsely testifying.

17. P.W.-4, Pawan Tiwari, is the son
of the deceased who deposed that his father
was murdered about two years ago. He was
present on the spot at the time of his
murder which took place at around 8:30 in
the morning. His father was returning from
Maa Endree Devi temple. His father slowed
down his scooter due to the drain in front of
Malviya's shop. There is a street next to the
same shop in which accused Shyam Bihari
Mishra, Kamal Mishra and Bimal Mishra
were standing. Shyam Bihari Mishra
exhorted to kill his father on which Bimal
Mishra stopped the scooter forcefully and
Kamal Mishra, taking out the fire arm shot
at the chest of his father. He along with
others was standing at the door of his
house. His uncle, Shiv Prakash Tiwari was
ahead of them. Bimal Mishra, opened fire
at Shiv Prakash Tiwari. There was a brick
wall where his uncle hid himself and did
not get hurt by the bullet. Thereafter, they
ran through the street in which accused
were standing. They lifted his father and
took him to the house where his uncle got
written Tehrir. Thereafter, they carried the
injured in a commander jeep to the police
station where after 15-20 minutes a
constable was provided with whom they
went to Swaroop Rani Hospital where
doctor informed that the injured has died.

This witness further deposed that
there was some enmity regarding land
between them and the accused persons due
to which they had killed his father. The I.O.
had recorded his statement at his house.
Kuldeep Mishra was also sitting on the
scooter of his father.

In cross-examination this witness
deposed that after one and a half month the
I.O. had recorded his statement, during this
period he remained in his village. Before
recording the statement he had not met with
the I.O. He had informed the I.O. that
nearby the street of Meenu Malviya's shop
accused were standing. If this fact is not
written by the I.O., he cannot say the
reason. He had informed in his statement to
the I.O. that they were standing at the door
and when they ran towards the place of
incident, they were led by uncle Shiv
Prakash Tiwari. If this fact is not written in
his statement, he cannot say the reason. He
had also stated to the I.O. that his uncle
saved himself behind the brick pile. If this
fact is not written by the I.O., he cannot say
the reason. He had stated to the I.O. that the
street in which accused had hidden, they
ran through the same street to their house.
If this fact is not written by the I.O., he
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1393
cannot say the reason. He had stated to the
I.O. that his uncle had dictated the tehrir
sitting at the house. If this fact is not
written by the I.O., he cannot say the
reason. He had also stated to the I.O. that at
the police station they were provided
constable after 15-20 minutes for going to
hospital, if this fact is not written by the
I.O. in his statement, he can not say the
reason. According to this Court such
questions are not closely related to the facts
in issue. If such minute description are
neither asked by the I.O. nor stated by this
witness under Section 161 Cr.P.C. will not
impeach the credit of the witness.

Further, this witness deposed that
at some distance there is the house of
Chandra Kant Shukla. At the time of
shooting, shooter was 10 steps towards
north west corner of the house of Chandra
Kant Shukla, who hit his father. There is a
Khadanja road towards west in front of the
house and a shop towards west. On the
west of this road there is the house of
Chandra Kant Shukla. When bullet hit his
father, his father was to the north of the
house of Chandra Kant Shukla at Khadanja
road. This place is to the east of the house
of Umakant, Pancham Kant and Chandra
Kant Shukla. When first firing took place,
he, Shiv Prakash Tiwari and Jai Hind were
together. When bullet hit his father, his
father was on the scooter and fell down on
Khadanja road with the scooter. Thereafter,
he was taken to the door, blood was oozing
out of his body. He was taken to the house
from the place of occurrence on a cot. He
remained on the door for 15 to 20 minutes
in injured state. The Jeep then came at the
door, he along with his uncle had kept his
father in jeep with the help of several other
persons of the village. He was taken to the
police station. Whether blood fall on the
jeep or not, he cannot say. His father was
lying straight. During placing and carrying
the injured on the jeep, there was no blood
on his clothes and whether there was any
blood on the clothes of his uncle, he can
not say. On being asked, this witness
deposed that the primary health center was
on the way but they did not stop there
because there was no doctor and they
directly reached the police station as the
condition of his father was deteriorating. At
around 10:00-10:30 a.m. they reached
hospital and remained at the hospital for the
entire. He did not remember as to whether
his uncle Shiv Prakash or the I.O. were in
the hospital or not. On the second day, after
performing last rites, they reached their
village in the night, he did not remember
whether the scooter was lying on the spot
or in the house. After 2-4 days from the
incident, the scooter was seen standing at
the home. He did not care as to whether
there was blood on the scooter and on the
cot. He also did not pay attention as to
whether blood had fallen on the door or
not. There was a crowd on the place of
occurrence at the time of incident. He
denied that his father had been injured at
some other place and he had not seen the
occurrence.

18. P.W.5, Dr. K.N.Joshi, T.B.
department, Sapru Hospital, Allahabad,
deposed that he had conducted postmortem of the body of the deceased on
11.4.2000. He found the following injuries:

External injuries:

a. Fire-arm wound of entry
present on the right side of the chest, 4 cm
below right nipple, size 3 cm x 1 cm,
margin inverted, charring, blackening and
tattooing present.

Internal injuries:
1394 INDIAN LAW REPORTS ALLAHABAD SERIES

a. Pleura lacerated

b. Both lungs lacerated.

c. Heart lacerated.

d. Blood vessels lacerated

e. Thorax cavity filled with blood

f. Abdominal cavity filled with
fluid.

g. Liver lacerated.

Cause of death- shock and
hemorrhage as a result of Ante-mortem
injury.

In the opinion of this witness,
injury could have been occurred at 8:00 am
on 10.4.2000. This witness has proved the
post mortem report (Ex. Ka-2).

In cross-examination this witness
has deposed that it is not possible to tell as
to when the injuries were caused. It might
have occurred 8-9 hours before the
recorded time of death.

19. P.W.6, Kripa Shankar Dixit,
I.O., deposed that on 10.4.2000, he was
posted
as
S.O.
Sarai
Inayat;
when
informant Shiv Prakash Tiwari, moved a
written complaint, an F.I.R. bearing no. 158
of 2000 under Section 307/ 504 I.P.C. was
registered. The injured, Jai Prakash Tiwari,
was
sent
to
government
hospital,
Allahabad. After receiving copy of chick
and
report,
he
started
investigation,
recorded statements of F.I.R. scribe and
copied it in CD, reached on the place of the
occurrence
with
Chauki
In-charge,
Hanumanganj, Shri Ram Murti Pandey,
where he came to know that after
committing the crime the accused have
gone towards Jamunipur by their Marshal
Jeep No. UP 70 R 9145. Leaving the
Chauki Incharge on the spot, he went in
search of the accused persons but they
could not be traced. Thereafter, he returned
to the place of occurrence at about 11:00
a.m.
Prem
Narain
Awasthi,
H.C.P.,
informed about the death of the injured
which he copied in CD and recrorded
statement of the informant Shiv Prakash
Tiwari and witness Kuldeep Mishra. He
inspected the place of occurrence at the
instance of the informant and prepared site
map (Ex. Ka-3) in his handwriting and
signature which he also proved.

Thereafter, he took blood stained
and plain soil from the place of occurrence
and got the recovery memo (Ex. Ka-4)
prepared in the handwriting of S.I. Ram
Murti Pandey and signed it. He also
recorded statements of the witnesses
present on the spot. Thereafter, he visited
the house of the accused persons and
searched it and recovered a country-made
fire arm/gun of 303 bore and 7 cartridges.
Besides, 5 live cartridges of 32 bore and 5
empty cartridges of 303 bore, 12 bombs
were also recovered. Recovery memo (Ex.
Ka5) was prepared. The proceeding was
also entered in CD paper no.1. On
15.4.2000, knowing that the accused
persons are disposing of their articles,
moved an application for issuance of
process under Section 82/83 of Cr.P.C.
which was issued on 18.4.2000, pasted
copy of process under Section 82 Cr.P.C. at
the door of the accused persons. On
20.4.2000,
he
received
information
regarding fire arms inside the jeep of the
accused persons on telephone. Thereafter,
Marshal Jeep was taken to the premises of
the police station where it was searched and
7 AK-47 cartridges were recovered under
4 All. Shyam Behari Mishra & Anr. Vs. State of U.P.
1395
the rubber of driving seat about which
recovery memo was prepared and an FIR
under Section 25 Arms Act was lodged. On
21.4.2000,
when
accused
persons
surrendered, it was recorded in Parcha No.
8. He attached inquest and post mortem
report with the CD and after taking
permission of CJM Allahabad, visited
Naini Jail and recorded the statement of
accused
persons.
They
denied
the
commission of crime but accused Kamal
Mishra and Bimal Mishra agreed to get the
crime weapon recovered. After that their
house was searched but no weapon, used in
the crime, was recovered. On 27.4.2000,
CJM, Allahabad, permitted police custody
remand on 28.4.2000 up to 3:00 pm. On the
pointing out of the accused Kamal Mishra a
country-made fire arm of 12 bore and on
the pointing out of the accused Bimal
Mishra a country-made fire arm of 315
bore with empty cartridges of 315 bore
were recovered from an alluvial area near
Government Tubewell Chhavaiya Road.
Recovery memo was prepared and site map
(Ex. Ka-6) was prepared. After coming to
the police station the case property was
deposited in Malkhana and a case under
Section 25 Arms Act was also lodged.
After that the accused were sent to Naini
Jail. On different dates this witness has
recorded
the
statements
of
several
witnesses. On 25.5.2000, he prepared
parcha no. 16 wherein criminal history of
accused Shyam Bihari Mishra of two cases,
accused Kamal Mishra of five cases and
accused Bimal Mishra of 3 cases have been
mentioned. Being satisfied that accused
persons had committed the crime he
submitted charge-sheet (Ex. Ka-7) under
Section 302, 307, 504, and 34 I.P.C.

In cross-examination this witness
deposed that, on 12.4.2000 he recovered
Marshal Jeep from a village under the
territorial limits of police station Kheeri
and had admitted it in accordance with law
at the police station. No article was
recovered from the jeep. It was at police
station till 20.4.2000. He does not know as
to what happened when he remained within
the premises of police station. He could not
say when chick report Ex. Ka-8 was
prepared by the police. He further deposed
that no ticuli of empty cartridge was
recovered from the spot. He admitted that
the house of accused persons is at a
distance of 150 meter from the place of the
incident. He deposed that the informant
Shiv Prakash Tiwari was working in RTO.
He did not try to find out the time on
10.4.2000,
when
the
informant
Shiv
Prakash Tiwari departed from the office.
He replied that neither blood stained soil
was found on the spot nor blood stained cot
was there. He admits that on 10.4.2000 and
15.5.2000, it is not recorded in G.D. that
statements
of
which
witnesses
were
recorded by him. He did not remember that
before 15.5.2000 Pawan Tiwari and Jai
Hind Singh met him or not. He denied that
on 10.4.2000 after lodging FIR, he had
visited S.R.N. Hospital. This witness
further deposed that Shiv Prakash Tiwari
had not stated in his statement that the
accused were standing in the street next to
the shop of Meenu Malviya rather it was
told that they were standing next to the
shop. The same witness in his statement
had not told about standing at the door but
had told to watch the incident while being
present on the spot. He had not even told
about the moving ahead at the time of the
incident. This witness has told that accused
Kamal Mishra drove the Marshall Jeep.

Witness Jai Hind Singh, did not
say in his statement that he had spoken to
the informant about going to Vindhyachal
together but has said that when he came to
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
the house of informant Shiv Prakash Tiwari
at around 8:00 am, the informant told him
that his elder brother will also go with
them, he has gone to worship Endree Devi.

Witness Pawan Tiwari did not
depose that the accused were standing in
the street next to the shop but had told that
the accused were standing there. It was not
even deposed that they were standing at
their door. The witness has replied that he
sat behind the wall. It was not deposed by
him that he had hid behind the brick pile.
He had deposed about running and
escaping towards his house and had not
replied that he had run towards the house
through the same street in which he was
hiding himself.

This witness further deposed that
the FIR was lodged in his presence. He
could tell whether Pawan Tiwari had come
with the informant. There is no GD entry
about the presence of Pawan Tiwari. On the
date of the occurrence he had not met
Pawan Tiwari and had not seen blood on
him. This witness had not recorded the
statement of Meenu Malviya. There is the
house of Chandra Kant Shukla near the
place of occurrence to the north of his
house there is the house of Padam. If a
person is standing 10 steps towards northwest corner or west of the houses of
Chandra Kant Shukla and Padam Kant
Shukla, he would not be able to see the
place of occurrence. Houses of both the
persons are pakka. During the investigation
he knew that Shyam Bihari Mishra does
service in Nagar Mahapalika. He did not
know as to which post Shyam Bihari
Mishra was posted nor he go there to
inquire about his presence. According to
this witness the information regarding the
incident was given to the higher officials
through R.T.