# Sokendra & Anr v. State of U.P

- **Citation:** (2021) 11 ILRA 1340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-10
- **Case number:** Criminal Appeal No. 6075 of 2006
- **Bench:** Anjani Kumar Mishra, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sokendra-anr-v-state-of-u-p-46555
- **Pages:** 9

## Headnote

Indian Penal Code, 1860 - Sections 302 & 201 -
Arms Act,1878 - Section 25 - Murder -
Circumstantial evidence - Delayed F.I.R. &
discrepancy regarding date of recovery of dead
body & number of accused - As per F.I.R. dead
body of deceased was found on 20.03.2002 7
thereafter F.I.R. was lodged on 21.03.2002 at
about 12.45 P.M. in the noon but P.W.-1 (first
informant) stated that the deceased was
searched on 20.03.2002 & dead body was found
on 21.03.2002 then F.I.R. was lodged - this
discrepancy regarding recovery of dead body
not explained by the prosecution - Non
examination
llast
seen
witness
effect
-
According to prosecution, deceased was taken
away from the house by accused & last seen by
witnesses, Krishnapal and Sardar Singh -
however relevant witnesses Krishnapal and
Sardar Singh were not examined by prosecution
& no explanation was given for their nonexamination
which
creates
doubt
upon
prosecution story - alleged eye witnesses P.W.-1
and P.W.-3 considered to be unreliable as their
names were not mentioned in F.I.R nor their
names were told by last seen witness Krishnapal
and Sardar Singh to informant - recovery of firearm from accused after about 14 days of
incident from an open space in absence of any
public witness of recovery, is highly doubtful -
possibility of murder of deceased by unidentified
culprits and false implication of appellants in
belated FIR due to enmity - prosecution failed to
prove charges by any reliable, cogent and
independent
evidence
to
the
hilt
beyond
reasonable doubt - accused entitled to the
benefit of doubt. (Para 27, 28, 31)

Allowed. (E-5)
11 All. Sokendra & Anr. Vs. State of U.P.
1341
List of Cases cited:

## Text

1340 INDIAN LAW REPORTS ALLAHABAD SERIES
life term is very harsh keeping in view the
entirety of facts and circumstances of the case
and gravity of offence. Hon'ble Apex Court, as
discussed above, has held that undue harshness
should be avoided taking into account the
reformative approach underlying in criminal
justice system and in the recent and latest
judgement of the Apex Court in Manoj Mishra
@ Chhotkau Vs. State of U.P. Decided on
08.10.2021 will permit us to punish him for a
period of 17 years with all remissions and fine
enhanced to Rs. 10,000/- looking to condition of
the accused which should be paid to the parents
of the prosecutrix who by now must have
become major.

15. In view of the above, this criminal
appeal is partly allowed.

16. Record and proceedings be sent back to
the trial court.

17. If the accused is not want in any
litigation, he may be set free forthwith.

18. We are thankful to learned counsel for
appellant and learned AGA for the State who
have ably assisted the Court.
----------
(2021)12ILR A1340
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 6075 of 2006
with
Criminal Appeal No. 5482 of 2006

Sokendra & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Desh Ratan Chaudhary, Sri Birendra Singh
Khokher, Sri Pankaj Kumar Tyagi, Sri B.K.
Yadav, Sri F.N. Dubey, Kamla Mishra, Sri Md.
Khalid, Sri Pankaj Bharti, Sri Saurabh Gour, Smt.
Archana Tyagi, Sri Anish Kumar, Sri Santosh
Kumar, Sri A.B.L. Gour, Sri Mohd. Khalid, Sri
Shailendra Kumar Singh

Counsel for the Respondent:
A.G.A., Sri I.K. Chaturvedi

Indian Penal Code, 1860 - Sections 302 & 201 -
Arms Act,1878 - Section 25 - Murder -
Circumstantial evidence - Delayed F.I.R. &
discrepancy regarding date of recovery of dead
body & number of accused - As per F.I.R. dead
body of deceased was found on 20.03.2002 7
thereafter F.I.R. was lodged on 21.03.2002 at
about 12.45 P.M. in the noon but P.W.-1 (first
informant) stated that the deceased was
searched on 20.03.2002 & dead body was found
on 21.03.2002 then F.I.R. was lodged - this
discrepancy regarding recovery of dead body
not explained by the prosecution - Non
examination
llast
seen
witness
effect
-
According to prosecution, deceased was taken
away from the house by accused & last seen by
witnesses, Krishnapal and Sardar Singh -
however relevant witnesses Krishnapal and
Sardar Singh were not examined by prosecution
& no explanation was given for their nonexamination
which
creates
doubt
upon
prosecution story - alleged eye witnesses P.W.-1
and P.W.-3 considered to be unreliable as their
names were not mentioned in F.I.R nor their
names were told by last seen witness Krishnapal
and Sardar Singh to informant - recovery of firearm from accused after about 14 days of
incident from an open space in absence of any
public witness of recovery, is highly doubtful -
possibility of murder of deceased by unidentified
culprits and false implication of appellants in
belated FIR due to enmity - prosecution failed to
prove charges by any reliable, cogent and
independent
evidence
to
the
hilt
beyond
reasonable doubt - accused entitled to the
benefit of doubt. (Para 27, 28, 31)

Allowed. (E-5)
11 All. Sokendra & Anr. Vs. State of U.P.
1341
List of Cases cited:

1. Criminal Appeal No.2438 of 2010, Bijender @
Mandar Vs St. of Har.

(Delivered by Hon'ble Chandra Kumar Rai, J.)

1. The instant criminal appeals have been
filed against the judgment and order of
conviction and sentence dated 31.8.2006 passed
by the Sessions Judge, Meerut in S.T.
No.730/2002 (State vs. Pawan and Others),
under Sections 302 & 201 IPC and in S.T.
No.961/2002 (State vs. Pappu @ Jitendra @
Bijendra), under Section 25 of the Arms Act,
both P.S. Partapur, Meerut, convicting accused
(Pawan, Kendra, Pappu @ Jitendra @ Bijendra)
for offence under Section 302/201 IPC and
sentencing each of them with imprisonment of
life and fine of Rs.5000/- under Section 302 IPC
and rigorous imprisonment for a period of one
year under Section 201 IPC. Apart from it,
accused Pappu @ Jitendra @ Bijendra was also
convicted
and
sentenced
with
rigorous
imprisonment for a period of one year under
Section 25 of the Arms Act.

2. Being aggrieved therefrom, accused
Sokendra and Pappu @ Jitendra @ Bijendra
preferred Criminal Appeal No.6075 of 2006 and
accused Pawan preferred Criminal Appeal
No.5482 of 2006 for setting aside their
conviction and passing an order of acquittal.

3. Since common issues are involved in
both the appeals, both are being disposed of by a
common order. The facts stated in Criminal
Appeal No.6075/2006 shall be treated as a
leading appeal.

4. The brief facts relating to the case are
that Rampal Singh (father of deceased) lodged
an FIR at P.S. Partapur, District Meerut on
21.3.2002 at 12.45 PM with the averment that at
1 PM (noon) on 19.3.2002, Pawan, son of
Nauraj and Sokendra son of Suraj, came to his
house and called his son Rajendra Kumar @
Raju and taken him (deceased Rajendra Kumar
@ Raju) for pretext of sale / measure of
sugarcane. On the same day at about 7.30 PM,
hotel owner of his village, namely, Krishnapal
and his younger brother Sardar Singh were
present at Mohiuddinpur Hotel belonging to
Krishanpal, at the same time, my son, Pawan,
Sokendra & 2 other persons came to the hotel
which were in drunken stage and they took tea at
the hotel. Krishnapal told that Rejendra @ Raju
should stay in hotel during night but Pawan and
Sokendra said that they had come with them and
they will go to the village with them, after some
time, all the four persons, went along with
Rajendra Kumar @ Raju from hotel. His son did
not come to home on 20.3.2002 till morning
then he along with villagers started search and
when they reached to farm situate back side of
Kisan Inter College, Mohiuddinpur in the wheat
field, adjoining to road, then he found a slipper
of his son, stone and blood was also seen, wheat
crop was damaged. They searched the area then
about 200 mtrs. from blood, they found dead
body in naked stage, wound was found towards
right side of ear and blood was also found there.
About 15-20 years before, there was criminal
case between his family at one side and family
of Nauraj and Suraj on other side to cover the
panchayat well in which incident his younger
brother received serious injuries, due to old
enmity Sokendra along with 2 others murdered
his son Rajendra @ Raju, burnt his dead body in
order to disappear the offence, the dead body of
his son Rajendra @ Raju is lying on the spot.

5. Upon lodging the FIR, investigation
started and after preparing memo of recovery of
ash and simple earth, kerosine oil in ash, bloodstained square stone, plastic jerry having 1⁄2 ltr.
of petrol, body of deceased was sent for
postmortem. During investigation, the weapon
of crime, country-made pistol and two live
cartridges were recovered from the possession of
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
Pappu @ Jitendra @ Bijendra on 4.4.2002 of
which memo was prepared, FIR was lodged
against Pappu @ Jitendra @ Bijendra under
Section 25 of the Arms Act. After obtaining the
postmortem report and report of Forensic
Science Laboratory, completed investigation,
respective
investigating
officer
submitted
charge-sheet against accused Pawan, Sokendra
& Pappu @ Jitendra @ Bijendra under Sections
302/201 IPC and against accused Pappu @
Jitendra @ Bijendra under Section 25 of the
Arms Act. Charges were framed against Pawan,
Sokendra, Pappu @ Jitendra @ Bijendra under
Sections 302/201 IPC and against Pappu @
Jitendra @ Bijendra under Section 25 Arms Act
to which they denied and claimed trial.

6. In joint trial of two cases, prosecution
produced as many as 11 witnesses viz. Rampal
Singh, the 1st informant and father of deceased as
P.W.-1; Om Prakash and Mam Chand, the eyewitnesses as P.W.'s- 2 & 3; Jai Prakash, formal
witness and witness of inquest and recovery as
P.W.-4; Om Pal, formal witness and witness of
recovery of container of petrol as P.W.-5; Dr.
Gyanendra Kumar, Radiologist, formal witness
who conducted postmortem as P.W.-6. Constable
Dev Singh Head Moharrir formal witness as P.W.-
7 S.I. Rahul Kumar Sharma and S.I. Amresh
Chandra Tyagi Ist and IInd Investigating Officer
formal witnesses as P.W.8 & 9, Rajiv Kuumar
Yadav Investigating officer of Section-25 of Arms
Act formal witness as P.W.10, S.i. Suresh chandra
Gupta, formal witness of recovery of country made
pistol as P.W.11.

7. After completion of prosecution
evidence, statements of accused Sokendra was
recorded under Section-313 Cr.P.C.. who denied
incident & stated that they have been falsely
implicated due to enmity. In defence Nahar
Singh was produced as D.W.-1.

8. P.W.-1, Rampal 1st informant in his
statement-in-chief alleged that Rajendra Kumar
@ Raju was his son, on 19.03.2002 at 1.00 p.m.
accused Sokendra and Pawan came to his house
and bring his son Raju for pretext of sale/
measure of sugarcane. Raju did not come back
till evening then he started search from the
house of Sokendra, Pawan but till the morning
of 21.03.20002 Raju did not return. On
21.03.2002 he started search since morning and
reached in the field in the backside of Kisan
Inter College and found chappal, stone stained
with blood and 200 meter from these item naked
dead body was found, which was burnt. He
further stated that 15-20 years before Rishipal
covered the panchayati well so there was quarrel
in which his younger brother Rajpal received
injuries as well as father of accused Pawan and
Sokendra were also involved in the incident.
However, in cross examination, he stated that
compromise has taken place in respect of
aforementioned incident of 15-20 years before.
In cross-examination, he stated that Hotel owner
Krishnapal told him on 21.03.2002 after dead
body of deceased Raju was found that on
19.03.2002 at 7.30 p.m. Krishnapal and his
younger brother Sadar Singh were sitting at
Hotel and deceased Raju, Pawan, Sokendra
came to hotel and took tea, at that time Pawan,
Sokendra along with their two friends and
deceased Raju were drunk, Krishnapal told him
that Raju (deceased) to sleep at Hotel but Pawan
and Sokendra told that they will carry him to his
home.

9. P.W.-2, Om Prakash alleged eye
witness in his statement-in-chief stated that
deceased Rajendra @ Raju is resident of his
village, accused Pawan and Sokendra are also
resident of his village and Pappu @ Jitendra @
Brijendra is resident of village-Ukhralsi, P.S.-
Murad Nagar, District-Ghaziabad and brotherin-law of one Shripal resident of Village-Gejha,
Police Station-Partapur, District-Meerut . On
19.03.2002 at 7.30 P.M. he, Mamchand and
Nahar Singh were taking tea sitting at the Hotel
situated Mohiuddinpur belonging to Krishnapal
11 All. Sokendra & Anr. Vs. State of U.P.
1343
who also belongs to his village, Sadar Singh of
his village was also taking tea at the hotel, at
the same time, three accused Pawan, Sokendra,
Pappu @ Jitendra and deceased Rajendra @
Raju came to the Hotel, Rajendra @ Raju was
over drunken, all the three accused took tea at
the Hotel but Rajendra @ Raju did not take tea,
when all the four persons Pawn, Sokendra,
Pappu @ Jitendra @ Bijendra and Rajendra @
Raju were ready to go then Krishnapal said to
Rajendra @ Raju to sleep at the Hotel as he has
drunk, all the three accused told they have
brought him so they will drop him at his house.
So at 8.30 P.M. in night all the four went
towards village-Gejha from Hotel on foot,
immediately
thereafter
they
walk
there.
Mamchand and Nahar were also with them and
walking in the same direction, after some
distance they saw that Pawan, Sokendra, Papu
@ Jitendra @ Bijendra were dragging Rajendra
@ Raju towards wheat field from road and
Pappu @ Jitendra @ Bijendra was saying that
you had insulted my sister by abusing her so he
will take revenge today and will kill you, Pappu
@ Jitendra fired at Raju, they frighten and walk
speedily towards his village. They did not tell
about incident to anybody in the village
because they were frightened that accused can
kill him also. In cross-examination P.W.-2
admit that there was no litigation between the
father of deceased Raju and father of Pawan
and Sokendra. He went to his village
immediately after the incident. The distance
between his house and house of deceased is 200
Meter. He went to the house of deceased after
4-5 days.

10. P.W.-3, Mamchand another alleged
eye witness in statement-in-chief stated that
accused Pawn, Sokendra, Pappu @ Jitendra @
Bijendra belong to his village, deceased Raju @
Rajendra belnged to his village, in all other
respect he had deposed same thing as stated by
P.W.2 in his statement-in-chief. In crossexamination P.W.-3 admitted Papppu @ Jitendra
@ Bijendra had fired by country-made pistol on
the head of deceased Raju, after incident they
went to his village directly, his house is at the
distance of 400 meter from the house of
deceased, he had not told about the incident to
anybody on that day.

11. P.W.-4 Jai Prakash witness of inquest
and recovery of ash stated in his statement-inchief that on 19.03.2002, resident of his village
Raju was murdered and his body was recovered
on 21.03.2002 in the filed back side of Kisan
Inter College, Mohiuddinpur and he was one of
the panch of the Panchayatnama. Police has
prepared memo of ash and plane earth.

12. P.W.-5, Ompal witness of recovery of
container of petrol from accused Sokendra has
stated
in
his
statement-in-chief
that
on
19.03.2002 Raju resident of his village had been
murdered
and
Police
was
searching
for
Sokendra,
resident
of
same
village.
On
01.02.2002 at about 12.15 P.M. Sokendra was
standing in front of the gate of Rajkamal factory,
he informed the police accordingly police
arrested him who confessed the guilt of murder
of Raju, the plastic cane having petrol was also
recovered from the field at the instance of
Sokednra, accordingly memo was prepared
which was Ex Ka-7.

13. P.W.-6, Dr. Gyanendra Kumar, Senior
Radiologist, District-Hospital Meerut conducted
the postmortem of the dead body of Rejendra
Kumar @ Raju on 22.03.2002 at 3.45 P.M. He
has proved the post mortem report as Ext-Ka-8
and has stated that following injuries were found
on the body of the deceased:-

1. Gun shot wound of entry 1x1.5 cm
x bone cavity deep right temporal region with
fracture right temporal pair parital and
frontal bone.

2.Gun shot wound of exit 1x1.5 x 1.4
cm x bone cavity deep left side head just
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
behind left ear communicating to injury no.
1, fracture left parietal bone.

3. incised wound 3x1.5 cm x bone
deep right side front upper part of chest II
rib cut.

4. incised wound 3x1.5 cm x muscle
deep front of chest 1 cm below stemal notch.

Postmortem burn injury are all over
the body except front of right and left thing right
leg and part of left leg.

In the internal examination, membrane
and brain was punctured, right lung was
punctured, the cause of death was due to shock
and hemorrhage.

14. P.W.-7, Constable Dev Singh (Head
Moharrir) who has proved the chik FIR (Ext. Ka20), GD Report (Ext. Ka-21).

15. P.W.-8, Rahul Kumar Sharma, 1st
Investigating Officer has stated that he was posted
on the post of Sub-Inspector at P.S. Partapur, this
case was lodged in his presence on 21.3.2002 at
12.45 PM. He prepared the site plan after inspection
which is Ext. Ka-23.

16. P.W.-9, Amresh Chand Tyagi, 2nd
Investigating Officer has stated that he took over the
investigation on 24.3.2002. On 1.4.2002, he arrested
Sokendra on the information of Ompal Singh and
Nawab Singh and recovered jerrycane, having 1⁄2 ltr.
Petrol, memo was accordingly prepared, the same is
Ext. Ka-7, the site plan was also prepared and the
same is Ext. Ka-11. On 4.4.2002, accused Pappu @
Jitendra @ Bijendra was arrested on information
received who confessed his guilt and at his instance
country-made pistol and two cartridges were
recovered, the memo was prepared and marked as
Ext. Ka-9. In his cross-examination, P.W.-9
admitted that there was no public witness of alleged
recovery of country-made pistol and cartridges as
well as the arrest of Pappu @ Jitendra @ Bijendra.

17. P.W.-10, Rajiv Kumar Yadav,
Investigating Officer of Section 25 of the Arms
Act, he recorded statement and prepared site
plan Ext. Ka-18, on 18.5.2002 approved case
under Section 25 of the Arms Act against
accused Pappu.

18. P.W.-11, S.I. Suresh Chandra Gupta
was witness of recovery of country-made pistol
from accused Pappu @ Jitendra @ Bijendra.

19. D.W.-1, Nahar Singh in his statement
has stated in his statement-in-chief that on
19.3.2002 at 7.30 P.M., he was with Mam
Chand and Om Prakash and he has not seen any
incident at that time, he is a labour, he is resident
of the village of the accused person.

20. Heard Sri Desh Ratan Chaudhary and
Sri Birendra Singh Khokher, learned counsel for
the appellants and learned A.G.A. for the State
and perused the record.

21. Learned Counsel for the appellants
contended that appellants have been falsely
implicated for murder of Rajendra Kumar @
Raju and further submitted that prosecution case
is very weak and is wholly unreliable. Counsel
for the appellants submitted that F.I.R. is
delayed & there is discrepancy regarding date of
recovery of dead body. According to F.I.R.
version dead body of deceased was found in the
field on 20.03.2002 however F.I.R. was lodged
on 21.03.2002 at about 12.45 P.M. in the noon
& there is no explanation for this delay. In his
deposition P.W.-1 (first information) had
improved his case by stating that the deceased
was searched on 20.03.2002 & dead body was
found on 21.03.2002 then F.I.R. was lodged, this
discrepancy regarding recovery of dead body
has not been explained by the prosecution.
Learned counsels for the appellants further
submitted that there is discrepancy regarding
number of accused in the F.I.R. the first
informant had stated that deceased Rajendra
Kumar @ Raju was taken away from his house
by Pawan, Sokendra and he was last seen by
Krishnapal and Sardar Singh in the Hotel along
11 All. Sokendra & Anr. Vs. State of U.P.
1345
with Pawan, Sokendra and two other persons,
while in his examination-in-chief he had stated
only two persons namely Pawan and Sokenda
came to his house and taken the deceased with
them. In his cross-examination he had stated that
he was informed by Krishnapal that Rajendra
Kumar @ Raju (deceased) came to hotel
alongwith accused Pawan, Sokendra and with
their two friends however, P.W.-2 and P.W.-3
alleged eye-witnesses had stated that deceased
was at Hotel along with three accused Pawan,
Sokendra and Pappu @ Jitendra @ @ Bijendra.
P.W.-2 and P.W.-3 had not stated about any
other fourth person.

22. The next submission made by Counsels
for appellants is that most important and relevant
witnesses Krishnapal and Sardar Singh, who are
cousin and real brother of first informant and are
witnesses of last seen have not been examined
by prosecution and no explanation has been
given for non-examination of Krishnapal and
Sardar Singh.

23. The counsels for appellants further
submitted that alleged eye witnesses P.W.-1 and
P.W.-3 are unreliable as their names are not
mentioned in F.I.R. Krishnapal and Sardar
Singh, who were present at Hotel had not stated
about the presence of P.W.-2 and P.W.3 in the
Hotel. The alleged eye-witnesses PW.-2 and
P.W.-3 are resident of same village and their
houses are at distance of 200 yards & 400 yards
from the house of first informant but they had
not disclosed to anyone in the village that they
had seen the incident rather they had disclosed
about the incident after 4-5 days, the alleged eye
witness account is in conflict with medical
evidence and there is no explanation of two
incised/punctured wounds and postmortem burn
injuries of the deceased, the alleged eye
witnesses P.W.-2 and P.W.-3 are having grudge
with the accused persons on account of election
gram Pradhan and they had admitted this fact in
their
cross-examination
counsel
for
the
appellants further submitted that prosecution has
failed to prove motive of the incident and further
submission was made that Nahar Singh/D.W.-1,
who was named as witness in the statement of
P.W's- 2 & 3, had stated that he was not there
along with mam Chand and Om Prakash,
counsel for the appellants further submitted that
from the pointing out of Sokendra, a container
for keeping petrol was recovered while from the
ash which was sent for forensic examination,
Kerosene oil was found and not the petrol which
proves that prosecution had tried to concoct
evidence of alleged statement and with respect
to the recovery of country made pistol and live
cartridges from the possession of Pappu @
Jitendra @ Bijendra there is no public witness of
the alleged recovery and arrest. Counsel for the
appellants further submitted that statement of
P.W.-6, Dr. Gyanendra Kumar is unreliable as
he had mentioned two incised wound on the
person of deceased and wound appears to be
cavity deep as the second rib below this injury
and right lung were found cut in his statement he
said that these injuries can be caused by stone
having one sharp edge this shows that the
medical evidence is in conflict with prosecution
evidence.

24. Learned AGA for the State on the other
hand supported the impugned judgments and
order of conviction by contending that no
inordinate delay has been caused in lodging the
FIR, recovery memo and recovery of countrymade pistol from accused Pappu @ Jitendra @
Bijendra fully make out the case against accused
/ appellants. Prosecution case is fully proved
from statement of P.W.'s- 2 & 3, the appeal has
been filed with false and baseless allegations and
is liable to be dismissed.

25. Upon hearing learned counsel for the
parties and perusal of record, we find that 1st
informant do not claim himself to be eye witness
of occurrence, FIR states that deceased Rajendra
Kumar @ Raju along with Pawan, Sokendra
along with 2 others was last seen by Hotel owner
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
Krishnapal and Sardar Singh (younger brother of
1st informant) at the hotel in drunken stage but
Krishna Pal and Sardar Singh had not been
examined, P.W.'s-2 & 3, Om Prakash and Mam
Chand have not been mentioned in the FIR,
there is no whisper in FIR about providing of
any information to 1st informant by P.W.'s- 2 &
3. According to FIR version, the dead body of
deceased was found after search on 20.3.2002
but in his deposition, the 1st informant improved
his case by stating that the deceased was
searched on 20.3.2002 and dead body of
deceased
was
found
on
21.3.2002,
this
discrepancy
has
not
been
explained
by
prosecution. According to prosecution, deceased
was taken away from the house by accused
Pawan and Sokendra and in the last seen at
Hotel by witnesses, Krishnapal and Sardar
Singh, the deceased was seen along with Pawan,
Sokendra and two unknown person.

In the cross-examination, P.W.-1 again
stated that he was informed by Krishnapal that
deceased Rajendra Kumar @ Raju came to his
hotel along with Pawan, Sokendra and their two
friends while P.W.'s- 2 & 3 had stated that
deceased was at hotel along with accused
Pawan, Sokendra and Pappu @ Jitendra @
Bijendra but they have not stated about 4th one.
It shows that allegations about date of recovery
of dead body and number of accused are totally
imaginary part of prosecution story in FIR which
may not be relied upon in absence of any
evidence.

26. Prosecution witnesses Om Prakash -
P.W.-2 and Mam Chand- P.W.-3, the alleged
eye witnesses of the incident have not been
mentioned in the FIR, the witnesses mentioned
in the FIR Krishna Pal (cousin of 1st informant)
and Sardar Singh (younger brother of 1st
informant) have not mentioned about the
presence of P.W.'-2 & 3 in the hotel to the 1st
informant. It is further material that P.W.'s- 2 &
3 are resident of same village - Gejha and their
houses are situated at the distance of 200 - 400
yards from the house of deceased even then
P.W.'s- 2 & 3, the alleged eye-witnesses had not
told about the incident to any of the villagers
including 1st informant rather had told about the
incident after 4-5 days. It is further material to
state that the statements of P.W.'s- 2 & 3 are in
conflict to medical report / evidence as two
incised / punctured wounds and burn injuries
were found on the body of deceased but in chief
as well as in cross-examination of P.W's- 2 & 3,
they had stated about fire only. It is further
material to state that P.W.-2 in his crossexamination admitted that in the panchayat
election, his brother contested for Pradhan
against Bijendra, in the same manner, P.W.-3, in
the cross-examination stated about accused
Pawan, these facts prove that P.W.'s- 2 & 3 had
enmity against accused person. From the
aforementioned fact, it is fully established that
testimony of P.W.'s- 2 & 3, alleged eyewitnesses cannot be relied upon.

27. Another argument of learned counsel
for the appellants is that most important and
relevant witness of the incident, namely,
Krishnapal who is cousin of 1st informant and
Sardar Singh, younger brother of 1st informant,
witnesses of the last seen and not been examined
by prosecution, is very much relevant. It is
material to state that non-examination of
Krishnapal and Sardar Singh by prosecution is
very crucial as they were witnesses of the last
seen as such it creates doubt upon prosecution
story.

28. In view of the facts and circumstances
stated above, we are of the considered view that
the prosecution case is based on testimony of
alleged eye-witnesses P.W.'s-2 & 3 which is not
found reliable in absence of the testimony of
witnesses of last seen, Krishna Pal & Sardar
Singh whose names were mentioned in FIR but
the names of P.W.'s- 2 & 3 were not mentioned
in FIR nor their names were told by Krishnapal
11 All. Sokendra & Anr. Vs. State of U.P.
1347
and Sardar Singh to P.W.-1 as such the
prosecution case is doubtful.

29. It is also pertinent to state that with
respect to motive of the incident in the FIR, it is
alleged that about 15-20 years before, there was
quarrel between the family of 1st informant and
family of Nauraj & Shauraj (father of accused)
in which younger brother of 1st informant
received serious injury, due to that enmity the
son of 1st informant, has been murdered,
however, in the cross-examination, P.W.-1
admitted that dispute of 20 year before was
compromised, this admission part is on page-29
of the paper book. P.W.-2 / Om Prakash in his
cross-examination had denied about enmity /
criminal litigation between the family of the
deceased and family of accused Pawan and
Sokendra, the relevant part of cross-examination
of P.W.-2 is on page no. 33 of the paper book.
P.W.'s-2 & 3 in their examination-in-chief had
stated that accused Pappu @ Jitendra @
Bijendra was saying just before the incident that
you have insulted my sister and abused her also
so I will take revenge today. Relevant portion is
on page nos. 33 & 35 of the paper book, P.W.-2
& P.W.-3 had introduced another motive rather
than set up by P.W.-1in the FIR. Accordingly,
motive of the incident had also not been proved
by the prosecution.

30. With respect to recovery, it is relevant
to mention here that Ext. Ka-7, recovery of
plastic jerry can (page nos. 14 to 16 of the paper
book) says 1⁄2 ltr. of petrol in the jerry can at the
pointing out of accused Sokendra while the ash
sent for forensic examination says for kerosine
oil (page no. 26 of the paper book), this further
proves that prosecution concocted the evidence
of statement and recovery. The recovery memo
of country-made pistol and live cartridges, Ext.
Ka-9 (page no. 17 of the paper book) from the
accused Pappu @ Jitendra @ Bijendra and his
arrest, reveal that there is no public witness of
the recovery and arrest, accordingly, recovery of
fire-arm from accused pappu @ Jitendra @
Bijendra after about 14 days of incident from an
open space in absence of any public witness of
recovery, is highly doubtful and may not be
relied upon. Learned counsel for the appellants
placed reliance upon paragraph no. 19 of the
judgement of the Hon'ble Apex Court, delivered
on 8.11.2021 in Criminal Appeal No.2438 of
2010, Bijender @ Mandar vs. State of
Haryana.

19. Unmindful of these age old
parameters, we find that the Prosecution in the
present case has miserably failed to bring
home the guilt of the Appellant and Courts
below have been unwittingly swayed by
irrelevant considerations, such as the rise in
the incidents of dacoity. In its desire to hold a
heavy hand over such derelictions, the Trial
Court and the High Court have hastened to
shift the burden on the Appellant to elucidate
how he bechanced to be in possession of the
incriminating
articles,
without
primarily
scrutinizing the credibility and admissibility of
the recovery as well as its linkage to the
misconduct. We say so for the following
reasons:

Firstly, the High Court and the Trial
Court failed to take into consideration that the
testimony of ASI Rajinder Kumar (PW14)
exhibited no substantial effort made by the
police for conducting the search of the
residence of the Appellant in the presence of
local witnesses. The only independent witness
to the recovery was Raldu (PW8) who was
admittedly a companion of the Complainant.

Secondly, the Complainant (PW4) as
well as Raldu (PW8), have unambiguously
refuted that neither the passbook, nor the 'red
cloth' was recovered from the possession of the
Appellant, as claimed in his disclosure
statement.

Thirdly,
while
the
Complainant
(PW4) negated his signatures on the recovery
memo (EX. PD/2), on the other hand, Raldu
(PW8) also neither enumerated the recovery
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
memo (Ex. PD/2) in the catalogue of exhibited
documents, nor did that he affirm to having
his endorsement.

Fourthly, the recovered articles are
common place objects such as money which
can be easily transferred from one hand to
another and the 'red cloth' with 'Kamla'
embossed on it, as has been acceded by the
Investigating
Officer,
Rajinder
Kumar
(PW14), can also be easily available in market.

Fifthly, the recovery took place
nearly a month after the commission of the
alleged offence. We find it incredulous, that
the Appellant during the entire time period
kept both the red cloth and the passbook in his
custody, along with the money he allegedly
robbed off the Complainant.

Sixthly and finally, there is no other
evidence on record which even remotely points
towards the iniquity of the Appellant.

31. The argument raised on behalf of the
appellants with respect to statement of P.W.-6 /
Dr. Gyanendra Kumar, Senior Radiologist that
the same is not reliable, appears to be correct as
P.W.-6 had mentioned injury nos. 3 & 4 in his
postmortem report as follows:-

No.3- Incised wound 3x1.5 cm x
bone deep right side front upper part of chest
II rib cut.

No.4- Incised wound 3x1.5 cm x
muscle deep front of chest, 1 cm below sternal
notch.

In the internal examination, right lung
was also found cut but P.W.-6 has stated that
injury nos. 3 & 4 can be caused by one sharp
edged stone.

It is material to state that evidence of
P.W.-6 is in conflict of prosecution evidence as
such the same cannot be relied upon.

31. In view of the discussions made above,
we have come to the conclusion that prosecution
has failed to prove charges levelled against
accused persons under Sections 302/34, 201 IPC
and Section 25 of the Arms Act by any reliable,
cogent and independent evidence to the hilt
beyond reasonable doubt. For the reasons
mentioned in preceding para, considering the
possibility
of
murder
of
deceased
by
unidentified culprits and false implication of
appellants in belated FIR due to enmity and
suspicion, it will not be safe to base conviction
of appellant on uncorroborated testimony of
P.W.'- 2 & 3 and accused appellants are entitled
to the benefit of doubt. The learned trial court
has acted wrongly and illegally in not
considering above mentioned material aspect
and believing unreliable and uncorroborated
testimony of P.W's-2 , 3 & 6 in holding the
appellants guilty. The impugned judgment and
order of conviction of appellants and sentence is
liable to be set aside and appeal is liable to be
allowed.

32. The appeals are allowed and impugned
judgment and orders of conviction and sentence
are set aside. The accused appellants Sokendra
and Pappu @ Jitendra @ Bijendra in Criminal
Appeal No.6075/2006 and accused - appellant
Pawan in Criminal Appeal No.5482/2006 are
acquitted of the charges under Section 302 and
201 IPC and accused-appellant no. 2 Pappu @
Jitendra @ Bijendra in Criminal Appeal
No.6075/2006 is also acquitted of the charges
under Section 25 of the Arms Act.

33. The accused-appellant no. 1 Sokendra
in Criminal Appeal No. 6075 of 2006 and
accused - appellant Pawan in Criminal Appeal
No.5482 of 2006 are in jail. They shall be
released from jail forthwith. Accused -appellant
no. 2 Pappu @ Jitendra @ Bijendra is on bail
and need not to surrender. His bail bond is
cancelled.

34. Let copy of this order along with the
record be sent to the court below for compliance.
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