# State of U.P v. Gajju

- **Citation:** (2022) 1 ILRA 958
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-13
- **Case number:** Govt. Appeal No. 5120 of 2017
- **Bench:** Suneet Kumar, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-gajju-47468
- **Pages:** 5

## Headnote

(A) Criminal Law - Government appeal -
Appeal against acquittal - Indian Penal
Code, 1860 - Sections 302/120B & 307 -
The Code of criminal procedure, 1973 -
Section 313.

Mother of accused - witness in a triple murder
case - Assault enacted by causing firearm injury
by the son of his mother - to enable
enlargement of his brother on bail - trial court
summoned accused respondent to face trial
trial - court acquitted the accused - Hence,
appeal.

HELD:-Alleged
conspiracy
hatched
by
accused/complainant not proved , no firearm
recovered, thus, the entire prosecution becomes
doubtful. Trial court rightly recorded that the
prosecution (I.O.) failed to produce evidence
against the accused, rather the witnesses are
unbelievable, false and were set up in
connivance with the accused in triple murder
case, in which the deceased was a witness and
pursuing the case. Her son (accused) falsely
implicated by the I.O. to favour the accused in
the triple murder case. I.O. committed serious
lapse while discharging his duties as an
Investigating Officer. Mechanically submitted
the
charge
sheet
against
the
complainant/accused . Direction issued to
initiate disciplinary proceedings against the
officials . Application seeking leave to appeal is
rejected. (Para - 14,20,21,23)

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

958 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A958
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Govt. Appeal No. 5120 of 2017

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

Counsel for the Petitioner:
A.G.A.

Counsel for the Respondents:
--

(A) Criminal Law - Government appeal -
Appeal against acquittal - Indian Penal
Code, 1860 - Sections 302/120B & 307 -
The Code of criminal procedure, 1973 -
Section 313.

Mother of accused - witness in a triple murder
case - Assault enacted by causing firearm injury
by the son of his mother - to enable
enlargement of his brother on bail - trial court
summoned accused respondent to face trial
trial - court acquitted the accused - Hence,
appeal.

HELD:-Alleged
conspiracy
hatched
by
accused/complainant not proved , no firearm
recovered, thus, the entire prosecution becomes
doubtful. Trial court rightly recorded that the
prosecution (I.O.) failed to produce evidence
against the accused, rather the witnesses are
unbelievable, false and were set up in
connivance with the accused in triple murder
case, in which the deceased was a witness and
pursuing the case. Her son (accused) falsely
implicated by the I.O. to favour the accused in
the triple murder case. I.O. committed serious
lapse while discharging his duties as an
Investigating Officer. Mechanically submitted
the
charge
sheet
against
the
complainant/accused . Direction issued to
initiate disciplinary proceedings against the
officials . Application seeking leave to appeal is
rejected. (Para - 14,20,21,23)

Appeal dismissed. (E-7)

List of Cases cited:-

1. Sahabuddin & anr. Vs St. of Assam , (2012)
13 SCC 213)

2. Gajoo Vs St. of Uttarakhand , (2012) 9 SCC
532

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This government appeal has been
preferred against the judgment dated 12
June 2017 passed by the Additional
Sessions Judge, Khurja Nagar Bulandshahr
in Sessions Trial No. 519 of 2015 (State of
U.P. Vs. Gajju), arising out of Case Crime
No. 528 of 2014 for offences under
Sections 302/120B I.P.C., Police Station
Khurja Nagar, District Bulandshahr, by
which the sole accused respondent has been
acquitted.

2. Gajju/accused lodged a report on
28.06.2014 being Case Crime No. 528 of
2014 at 5:15 p.m., under Section 307 I.P.C.
(altered
to
Section
302
I.P.C.,
on
28.06.2014 during investigtion). As per
prosecution case, the complainant had gone
in pairavi of a case to the District Court,
Bulandshahr, and was informed by his
Bhabhi Omvati (D.W. -1)) that around 4
p.m., Bachchu, son of Sheeshram, Sukhvir,
son of Bachchu Singh, Gaurav, son of
Surendra @ Pappu, caused fire arm injury
in the stomach of his mother (Sukhveeri)
who had gone to fetch Kanda (cow dung
cake). His niece Meenu (D.W. -2) was with
his mother. He further mentioned that the
nominated accused had killed four persons
in the year 2010, in some other case, in
which his mother (Sukhveeri), was a
1 All. State of U.P. Vs. Gajju
959
witness. The firearm injury was caused
with an intention to eliminate the witness.

3. The inquest was done on
29.06.2014 at 8:30 a.m.. (Exhibit Ka-6) and
post mortem was also conducted on
29.06.2014 (Exhibit -Ka-3) at 12:30 p.m.
The statement of some witnesses was
recorded by the Investigating Officer (IO)
on 14.08.2014 and the complainant (Gajju)
was made an accused and charge sheet was
submitted against him, exonerating all the
accused named in the F.I.R.

4. The trial court summoned the
accused respondent to face trial. After
going through the records, as well as, the
statements of the witnesses, the trial court
acquitted the accused. Hence, the present
appeal.

5. We have heard Sri R.P. Shukla,
learned A.G.A. for the State appellant and
perused the record with the assistance of
the learned counsel.

6. Prosecution, in order to prove the
charge, produced the witnesses P.W. -1
(Rajkumar), P.W. -2 (Dileep @ Guddan),
P.W. -3 (Jaipal), P.W. -4 (Constable Clerk
1021 Ratanpal), P.W. -5 (Virendra Singh),
P.W. -6 (Dr. Vinod Kumar Nirichetak),
P.W. -7 (S.I. Brajpal Singh), P.W. -8
(Shatrughna Upadhyay) and P.W. -9
(Sudhir Kumar Tyagi) (the IInd I.O.).

7. The accused was confronted with
the
prosecution
evidence
and
the
circumstances under Section 313 Cr.P.C.
He denied all the charge and stated that he
was falsely implicated..

8. The accused produced witnesses,
D.W. -1 (Omvati) (Bhabhi of the accused)
and D.W. -2 (Meenu) (niece of the
accused), in defence.

9. P.W. -1 (Rajkumar), P.W. -2
(Dileep @ Guddan), P.W. -3 (Jaipal) and
P.W. -5 (Virendra Singh), are witnesses of
fact. They deposed that the accused
respondent murdered his mother. There
was enmity between respondent accused
and the nominated accused in the F.I.R. All
the four witnesses stated that the accused
(Gajju) wanted to help his elder brother,
namely, Kunwarpal, who was in jail in a
case for offence under Section 302 I.P.C.
Gajju (accused) wanted to fabricate a false
case under Section 307 I.P.C., by causing
injury to his mother, so that his elder
brother Kunwarpal could be bailed out.

10. The record reveals that the second
I.O. (Sudhir Kumar Tyagi) had recorded
the statements of P.W. -1 (Rajkumar), P.W.
-2 (Dileep @ Guddan), P.W. -3 (Jaipal) and
P.W. -5 (Virendra Singh), on 14.08.2014
and the entire case was turned topsy turby,
the complainant Gajju was made an
accused. The I.O. in a casual manner
investigated the crime; the theory that the
assault was enacted by causing firearm
injury by the son of his mother to enable
enlargement of his brother on bail is an
improbable. The record further indicates
that there is long standing enmity between
the accused respondent and the family of
Bachchu Singh nominated in the F.I.R.

11. It is pertinent to note here that
Kunwarpal, (the elder brother of the
accused) was implicated in a cross case
being Case Crime No. 718 of 2010, Police
Station Khurja Nagar. P.W. -3 (Jaipal) and
P.W. -5 (Virendra Singh), are nominated
accused in that case at Serial Nos. 6 and 10
respectively, which is admitted by them in
960 INDIAN LAW REPORTS ALLAHABAD SERIES
cross examination. P.W. -1 (Rajkumar) has
been convicted with a sentence for five
years in a case for offence under Section
307, 504, 506 I.P.C. P.W. -1 does not
belong to the village of the accused and he
has a relation with Bachchu Singh.

12. The defence produced the bail
order (Exhibit 42Kha/2), which indicates
that
Kunwarpal
was
bailed
out
on
20.06.2014 by the order of the Sessions
Judge, Bulandshahr. It is thus clear that
eight days prior to the date of incident, bail
was granted to Kunwarpal; there was no
occasion for the respondent accused to
stage a false case by causing firearm injury,
in the stomach (vital part) of his own
mother.

13. Mother of the accused, namely,
Sukhveeri, was witness in a triple murder
case, wherein the nominated persons, in the
F.I.R., were accused. Four Investigating
Officers, conducted the investigation from
28.06.2014
to
16.06.2015,
but
the
statement of P.W. -1, P.W. -2, P.W. -3 and
P.W. -5, were recorded on a single day i.e.
on 14.08.2014 and the respondent herein
was made an accused.

14. The alleged conspiracy hatched by
Gajju with the help of Siril @ Sunil, has
not been proved, Siril @ Sunil was
attributed the role of causing firearm injury
to the mother of Gajju, but no firearm was
recovered, thus, the entire prosecution
becomes doubtful.

15. The prosecution miserably failed
to prove the case beyond reasonable doubt.

16. We record our displeasure in the
manner investigation was undertaken in the
instant case. The I.O. appears, is unaware
how investigation is done, which we are
not prepared to accept being thana
incharge. It is a case of serious dereliction
of duty undertaken with ulterior motive,
which is writ large from the facts and
materials placed on record.

17. The incident is of 28.6.2014,
F.I.R. came to be lodged promptly by the
accused at 5:15 P.M. on being informed by
his bhabhi, Omwati (D.W. -1) on mobile
that his mother was shot by the nominated
accused. Meenu (D.W. -2) daughter of
D.W. -1 was with the deceased at the time
of the incident. The first I.O. Brijpal Singh
(P.W. -7) recorded the statement of the
complainant/accused and other independent
witnesses. They supported the prosecution
case. The F.I.R. was initially lodged under
Section 307 I.P.C., but upon the death of
the deceased it was converted to Section
302 I.P.C. The investigation came to be
transferred to the thana incharge Sudhir
Kumar Tyagi (P.W. -9) on 29.6.2014. For
the next forty five days until 14.8.2014, he
did
nothing
except
perusing
the
panchayatnama, post mortem report and
recorded the statement of the earlier I.O.
and the Constables. Thereafter, recording
the statements of independent witnesses
(P.W. -1, P.W. -2, P.W. -3 and P.W. -5)
implicating the complainant/accused of
having
committed
the
crime.
In
examination the I.O. (P.W. -9) admitted
that he had not paid attention to the
statement of the complainant/accused and
the two other witnesses recorded by his
predecessor. He admitted that he had not
recorded the statement of Omwati (D.W. -
1) who informed the complainant/accused
of the incident. Nor did he record the
statement of the deceased or her grand
daughter (D.W. -2) who claims to be the
occular witness. He did not visit the
hospital to record the statement of the
doctor who examined the injuries of the
1 All. State of U.P. Vs. Gajju
961
deceased. The I.O. (P.W.-9) admits that he
was present in the thana at the time of the
incident. The I.O. further admitted that he
did not enquire whether there was any
enmity between the deceased and the
nominated accused. He ignored the crime
case (718/2010) stated in the complaint.
The deceased was a witness in the murder
case. P.W. -3 and P.W. -5 are accused in
the said case, who were set up by Bachchu
Singh.

18. The theory set up by the I.O.
(P.W. -9) for commission of the offence by
the complainant/accused was that he
wanted to stage a crime by causing firearm
injury on the non-vital part of his mother,
to ensure the enlargement of his brother
Kunwarpal on bail. The theory fell flat as
Kunwarpal was ordered to be enlarged on
bail on 20.6.2014 i.e. eight days prior to the
incident (28.6.2014). Siril @ Sunil was set
up as an accomplice with the complainant
to have committed the offence, read with
Section 120 I.P.C. The investigation
against Siril is probably inconclusive, the
weapon employed in the commission of the
offence has not been recovered.

19. The investigation finally came to
be transferred to I.O. Shatrughna Upadhyay
(P.W. -8) on 28.4.2015 who upon perusal
of the case diary mechanically submitted
the
charge
sheet
against
the
complainant/accused on 16.6.2015.

20. In the circumstances the trial court
has rightly recorded that the prosecution
(I.O.) failed to produce evidence against
the accused, rather the witnesses are
unbelievable, false and were set up in
connivance with the accused in triple
murder case, in which the deceased was a
witness and pursuing the case. Her son
(accused) was falsely implicated by the
I.O. to favour the accused in the triple
murder case.

21. After going through the entire
record of the instant appeal, we are
convinced that the I.O. (Sudhir Kumar
Tyagi) has committed serious lapse while
discharging his duties as an Investigating
Officer. The investigation is designedly
defective and there was deliberate attempt
on the part of the I.O. to misdirect evidence
in connivance with the nominated accused
by
setting
up
interested
witnesses,
implicating the complainant as an accused.

22.

The
Supreme
Court
in
Sahabuddin and another vs. State of
Assam (2012) 13 SCC 213) directed
disciplinary action against the erring
Investigating Officer, as well as, the
Medical Expert, relying upon an earlier
decision rendered in Gajoo vs. State of
Uttarakhand,
(2012)
9
SCC
532.
Paragraph 33 is extracted:

"In view of the above settled position
of law, we hereby direct the Director
General of Police, State of Assam and the
Director General of Health Services, State
of Assam to take disciplinary action against
PW-1 and PW-11, whether they are in
service or have since retired. If not in
service, action shall be taken against them
for deducting/stoppage of pension in
accordance
with
the
service
rules.
However, the plea of limitation, if any
under the relevant rules would not operate,
as the departmental enquiry shall be
conducted in furtherance of the order of
this Court."

23. Having regard to the conduct of
I.O. Sudhir Kumar Tyagi (P.W. -9) and the
962 INDIAN LAW REPORTS ALLAHABAD SERIES
I.O. Shatrughna Upadhyay (P.W. -8), we
direct the Director General of Police, U.P.,
to initiate disciplinary proceedings against
the aforenoted officials, if in service. It is
clarified that in the event the officers have
retired
on
attaining
the
age
of
superannuation, the embargo of limitation,
if any under the rules would not operate
and be an impediment. The departmental
enquiry shall be conducted in furtherance
of
the
order
of
this
Court
for
deducting/stoppage of pension.

24. In such peculiar facts and
circumstances, as discussed above, we are
unable to persuade ourselves in taking a
different opinion than that of the trial court.

25. The prayer for leave to appeal is
consequently, refused. The application
seeking leave to appeal is rejected.

26. The appeal, in consequence,
stands dismissed, however with the above
directions.

27. The Registrar General to ensure
compliance of the order.
----------
(2022)01ILR A962
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2021

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE SHAMIM AHMED, J.

Misc. Bench No. 28898 of 2021

Tribhuwan Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Bhup Chandra Singh, Shiwa Sagar Singh
Counsel for the Respondents:
C.S.C., Jaibind Singh Rathour, Tanay Hazari

A.
Practice
&
Procedure
-
Indian
Constitution, 1950 - Article 226 - In the
present case, the petitioner being a complainant
fails to establish any legal right or able to show
any breach of statutory duty on the part of
authorities. Thus he has no locus to prefer the
present writ. (Para 9 & 12)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Ravi Yashwant Bhoir Vs Collector (2012) 4
SCC 407 (followed)

2. Dharam Raj Vs St. of U.P. 7 ors (2010) 2 AWC
1878 (All) (followed)

3. Ayaaubkhan Noorkhan Pathan Vs St. of Mah.
& ors. AIR 2013 SC 58
(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Bhup Chandra Singh,
learned counsel for the petitioner, Shri
Tanay
Hazari,
learned
counsel
for
respondent no. 2 and learned Standing
counsel for State-respondent no.1.

2. In view of the order proposed to be
passed, notice to respondent no.3 is
dispensed with.

3. This writ petition has been filed
praying inter alia the following reliefs:-

(i) Issue a writ , order or direction in
the nature of certiorari thereby set aside the
letter
no.
8582-89/2021-22
dated
08.09.2021 passed by opposite party
no.2/District
Basic
Education
Officer,
Sultanpur because the opposite party no. 2
without investigating the matter seriously
and also ignoring the material facts and
documents available on record which was
provided before him by the petitioner