# State of U.P v. Jagdamba Prasad & Ors

- **Citation:** (2024) 3 ILRA 1376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-04
- **Case number:** Government Appeal No. 1000325 of 2007
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-jagdamba-prasad-ors-51586
- **Pages:** 14

## Headnote

Indian Penal Code,1860 - Sections 302,
34 & 201 - homicide - Government appeal
against acquittal - criminal appeal against
conviction - criminal revision by informant -
alleged forcible carrying away of deceased from
grove - alleged murder inside house of accused
- body recovered near chak road - delay in
lodging F.I.R. - unexplained delay gives room
for
deliberation
and
consultation
-
inconsistencies and contradictions in testimonies
of P.W.1, P.W.2 and P.W.3 - unnatural conduct
of witnesses - no witness to commission of
murder - place of occurrence not proved - no
forensic report linking blood stained weapon,
clothes or soil - ocular evidence unreliable -
suspicion howsoever strong cannot take the
place of evidence - prosecution failed to prove
case beyond reasonable doubt - view taken by
trial court a possible view - no interference with
acquittal - conviction based on conjectures and
surmises - trial court imagined a story not
suggested by prosecution - conviction perverse
- conviction set aside - accused acquitted -
Government appeal dismissed .

Criminal appeal allowed .

Criminal revision dismissed. (E-9)

Cases Cited:

## Text

_Characters 0–39,817 of 47,188. This is a partial read: ask again with offset=39817 for what follows._

1376 INDIAN LAW REPORTS ALLAHABAD SERIES
and as observed and directed by the First
Appellate Court and the observations made
in this order. The parties shall appear
before the Trial Court on 04th April, 2024.
----------
(2024) 3 ILRA 1376
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.03.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA - I

Government Appeal No. 1000325 of 2007
With other connected cases

State of U.P. ...Appellant
Versus
Jagdamba Prasad & Ors. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
Ghulam Mohammad Kamil, Anil Kumar
Maurya

Indian Penal Code,1860 - Sections 302,
34 & 201 - homicide - Government appeal
against acquittal - criminal appeal against
conviction - criminal revision by informant -
alleged forcible carrying away of deceased from
grove - alleged murder inside house of accused
- body recovered near chak road - delay in
lodging F.I.R. - unexplained delay gives room
for
deliberation
and
consultation
-
inconsistencies and contradictions in testimonies
of P.W.1, P.W.2 and P.W.3 - unnatural conduct
of witnesses - no witness to commission of
murder - place of occurrence not proved - no
forensic report linking blood stained weapon,
clothes or soil - ocular evidence unreliable -
suspicion howsoever strong cannot take the
place of evidence - prosecution failed to prove
case beyond reasonable doubt - view taken by
trial court a possible view - no interference with
acquittal - conviction based on conjectures and
surmises - trial court imagined a story not
suggested by prosecution - conviction perverse
- conviction set aside - accused acquitted -
Government appeal dismissed .

Criminal appeal allowed .

Criminal revision dismissed. (E-9)

Cases Cited:

1. State of Karnataka v. Gopalkrishna, (2005) 9
SCC 291.

2. Sudershan Kumar v. State of Himachal
Pradesh, (2014) 15 SCC 666.

3. Dilawar Singh v. State of Haryana, (2015) 1
SCC 737.

4. Bindeshwari Prasad Singh v. State of Bihar,
(2002) 6 SCC 650.

5. D. Stephens v. Nosibolla, AIR 1951 SC 196.

6. K. Chinnaswamy Reddy v. State of A.P., AIR
1962 SC 1788.

7. Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC
583.

8. Pakalapati Narayana Gajapathi Raju v.
Bonapalli Peda Appadu, (1975) 4 SCC 477.

9. Mahendra Pratap Singh v. Sarju Singh, AIR
1968 SC 707

(Delivered by Hon'ble Rajan Roy, J.)

(1) Heard Ms. Meera Tripathi, learned
A.G.A. for the State and Mr. Anil Kumar
Maurya, learned counsel for respondents
no. 2 and 4 in Government Appeal No.
1000325 of 2007. Mr. G.M. Kamil, learned
counsel for the appellant and Ms. Meera
Tripathi, learned A.G.A. for the State have
been heard in Criminal Appeal No. 1462 of
2007. Mr. Sanjay Kumar Yadav, learned
counsel for the revisionist and Ms. Meera
Tripathi, learned A.G.A. for the State have
3 All. State of U.P. Vs. Jagdamba Prasad & Ors.
1377
been heard in Criminal Revision No. 398 of
2007.

(2) Respondent no. 3-Sant Ram
has
died
in
Government
Appeal
No.1000325 of 2007 and the appeal has
abated as regards him so has Revision
No.398 of 2007 in so far as it relates to
him.

(3) At the very outset, it needs to
be mentioned that out of the four accused,
three, namely, Santram, Ramdev and
Ramdas have been acquitted of the charge
of murdering the deceased-Rajendra Kumar
Verma and trying to destroy evidence
punishable under Section 302, 34 I.P.C.
and Section 201 I.P.C. whereas the fourth
accused, namely, Jagdamba Prasad has
been convicted and sentenced to life
imprisonment.

(4) The State of U.P. has filed
Government Appeal No.1000325 of 2007
against acquittal of the aforesaid three
persons.
Jagdamba
Prasad
has
filed
Criminal
Appeal
No.1462
of
2007
challenging his conviction vide impugned
judgment and order dated 22.06.2007
passed by Addl. District & Sessions Judge,
Ambedkar Nagar in Session Trial No.102
of 2004 arising out of Case Crime No.29 of
2004,
P.S.-Haswar,
District-Ambedkar
Nagar holding him guilty for the offence
punishable under Section 302 I.P.C. and
sentencing him rigorous life imprisonment
and a fine of Rs.10,000/- and in default
thereof, to undergo further three months'
simple imprisonment. The informant-Jais
Ram Verma who is brother of the deceased
has filed Criminal Revision No.398 of 2007
for setting aside acquittal of the earlier
mentioned three accused and for punishing
them with which they were charged.

(5) The prosecution case in nutshell is
that in the night intervening 18/19.05.2004,
deceased- Rajendra Kumar Verma was
taken away forcibly by the accused while
he was on a charpai in the grove and, by his
side, his grand-father i.e. P.W.2-Ram
Lakhan aged eighty years was sleeping. He
was taken to the house of Jagdamba Prasad
and was done to death, thereafter the body
was thrown about 200 meters away near the
Chak road. P.W.2 i.e. Ram Lakhan had
seen the accused taking away the deceased
from the grove and P.W.3 saw them
throwing the body near the Chak road and
running away.

(6) The distance of the police station
from the scene of crime is about 10 Kms.
The incident of carrying away Rajendra
Kumar Verma from the grove is said to
have taken place at about 10:00-10:30 P.M.
The body is said to have been recovered at
about 02:00-02:30 A.M. the same night and
F.I.R. (Ex.Ka12) has been lodged in the
morning i.e. on 19.05.2004 at 07:30 A.M.
on the written tehrir of P.W.1 i.e. Jaisram
Verma.

(7) Inquest was conducted between
07:30-09:00 A.M. on 19.05.2004. Postmortem (Ex.Ka.10) was conducted on
19.05.2004 at 01:00 P.M.

(8) As per the post-mortem report,
there were fifteen ante-mortem injuries on
the body of the deceased and cause of death
was shock and hemorrhage as a result of
ante-mortem injuries.

(9) The weapon used to commit the
crime i.e. two lathis and two sticks which
were blood-stained were recovered from
the house of Jagdamba Prasad allegedly on
his pointing while he was on police custody
on 19.05.2004 at 06:10 P.M. The accused-
1378 INDIAN LAW REPORTS ALLAHABAD SERIES
Jagdamba Prasad and Sant Ram were
arrested on 19.05.2004 itself. The other
accused were arrested on subsequent date.

(10) The blood stained clothes worn
by the accused-Jagdamba Prasad and
Santram were also recovered on 19.05.2004
itself at the same time i.e. at 06:10 P.M.
The plain and blood stained soil were
collected from the scene of crime on
19.05.2004. Recovery memos in this regard
are Ex.Ka.7, Ex.Ka.8 and Ex.Ka.9.

(11) Chargesheet was filed against all
the four accused for the aforesaid offence.
The case was committed by the Magistrate
to the Sessions Court and the Sessions
Court framed charges against the accused
persons under Section 302, 34 I.P.C. and
Section 201 I.P.C. on 20.01.2005.

(12) The prosecution produced as
many as eight witnesses before the trial
court. P.W.1-Jaisram Verma as already
stated is brother of the deceased and is the
informant.
P.W.2-Ram
Lakhan
is
grandfather aged eighty years who claims
to have seen the accused carrying away the
deceased while he was sleeping, from the
grove. P.W.3-Bisai is said to have reached
the grove on hearing the shouts of P.W.1 &
P.W.2 and is said to have seen the accused
throwing away the body from where it was
ultimately recovered. He is a neighbour of
the informant. P.W.4-Yogesh Shah, P.W.6Nandlal and P.W.7-Rajveer Singh are the
three Investigating Officers of the criminal
case. P.W.5-Dr. Vivek Gupta is the
Autopsy Surgeon. P.W.8-Ashok Kumar
Singh is the Head Constable who made the
entries in police records i.e. General Diary
and lodged the F.I.R.

(13) As already stated, the trial court
on a consideration of evidence before it
acquitted three of the accused but convicted
Jagdama Prasad and sentenced him to life
imprisonment. Jagdamba Prasad is on bail.

(14) The contention of Ms. Meera
Tripathi,
learned
A.G.A.
was
that
Jagdamba
Prasad
has
rightly
been
convicted by the trial court but it has erred
in acquitting the other three accused P.W.2-
Ram Lakhan has proved the factum of
Rajendra Kumar being carried away by all
the four accused from the grove where he
was sleeping along with P.W.2 about 10:00
- 10:30 P.M. on 18.05.2004. P.W.2 had
seen him being carried away and taken to
the house of Jagdamba Pradad. Thereafter,
the body was recovered near the Chak road
from the field of Ramchander at about
02:00-02:30
A.M.
the
same
night.
Accordingly, the F.I.R. was lodged in the
morning at about 07:30 A.M. P.W.3 has
clearly testified having seen all the four
accused throwing away the body and
running away. The body of the deceased as
is evident from the post-mortem report bore
fifteen ante-mortem injuries and the cause
of death was shock and hemorrhage as a
result thereof. The Autopsy Surgeon has
proved the post-mortem report and the
injuries as also cause of death mentioned
therein.
The
lodging
of
the
F.I.R.
considering the fact that the incident took
place in the night and the police station was
about 10 Kms. away was prompt. The
motive for the murder was the illicit
relation between the deceased and daughter
of Jagdamba Prasad as has been testified by
P.W.1. Therefore, the prosecution has
proved its case against the accused beyond
reasonable
doubt
but
on
minor
discrepancies in the testimony of witnesses
and purely on conjectures and surmises,
trial court has acquitted the three accused
while at the same time convicting Jagdama
Prasad.
Therefore,
the
judgment
of
3 All. State of U.P. Vs. Jagdamba Prasad & Ors.
1379
acquittal is liable to be set aside and the
remaining three accused are also liable to
be convicted and punished for the offence
with which they have been charged.

(15) Sri Anil Kumar Maurya, learned
counsel for the acquitted persons submitted
that the testimony of P.W.1 to P.W.3 are
unreliable in view of the inconsistencies in
the same as also contradictions in their own
testimonies. There are grave contradictions
and inconsistencies in the prosecution case.
The case has been improved from the stage
of filing of F.I.R. to the recording of
statement under Section 161 Cr.P.C. and
even thereafter before the trial court. The
F.I.R. was delayed and has been lodged
after deliberation and consultation so as to
falsely implicate the accused with ulterior
motive and on account of prior rivalry and
merely because, some of the accused were
relatives or neighbours of the main
accused- Jagdamba Prasad. There is no
recovery of the lantern or torch which may
have provided visibility for P.W.2 to see
the incident in the grove. P.W.2 is an eighty
years old person and as per oral testimony
of the witnesses, he was unable to stand for
long, therefore, it is highly unlikely that in
the dark night when the incident took place,
he could have seen any such incident. None
of the witnesses are reliable. The accused
were roped in merely on suspicion. The
trial court has rightly acquitted Santram,
Ramdev and Ramdas and the said judgment
of
acquittal
does
not
require
any
interference especially in view of the law
with regard to appeal against acquittal.

(16) Learned counsel for convicted
Jagdama Prasad, Sri Kamil submitted that
trial court has committed a grave error in
convicting Jagdama Prasad by making out
a new case different from the case of the
prosecution
which
is
absolutely
impermissible in law. The trial court has
convicted Jagdama Prasad purely on
conjectures and on an imaginary story
which
was
not
even
the
case
of
prosecution. When three persons have been
acquitted on the same evidence, there is no
way that the fourth i.e. Jagdamba Prasad
could have been convicted based on the
same evidence. His conviction is based on
conjectures or suspicion. Nobody has seen
commission of the crime in the house of
Jagdama Prasad. There are no independent
witnesses of recovery of the weapon
allegedly used in commission of the crime
nor of recovery of the alleged blood stained
clothes from Jagdamba Prasad. Moreover,
there were similar recovery from Santram
but he has been acquitted while Jagdama
Prasad has been convicted. Motive has also
not
been
proved.
There
are
grave
inconsistencies and contradictions in the
prosecution case and testimonies of the
witnesses, all of which have been ignored
while convicting Jagdama Prasad. There is
no forensic report to establish that the
blood allegedly found on the lathis and
dandas recovered or the blood stained
clothes recovered from the accusedJagdamba Prasad and Santram were of the
deceased. There is no evidence to prove the
guilt of Jagdamba Prasad yet he has been
convicted. Therefore, the judgment of
conviction is liable to be set aside.

(17) Sri Sanjay Kumar Yadav, learned
counsel for the informant arguing in the
revision for setting aside the acquittal of
three other accused argued on the same
lines as learned A.G.A. and for the same
reasons he submitted that the acquitted
persons are also liable to be convicted.

(18) As per the post-mortem report
which has been proved by the Autopsy
Surgeon (P.W.4), it is a case of homicide.
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
The question is whether the accused
committed the offence of murder and
destruction of evidence or not.

(19) There is no memo regarding
recovery of the body on record and none
has been prepared by either of the three
Investigating Officers.

(20) The bloodstained and plain soil
allegedly collected from the scene of crime
which is the house of Jagdampa Prasad,
even if they were sent for forensic
examination, there is no such report to
prove that the said samples matched.

(21) In fact, nobody has seen the
commission of murder inside the house of
Jagdamba Prasad. No blood has been found
in
the
house
of
Jagdamba
Prasad.
Investigating Officer- P.W.4 has stated that
the blood had been washed off but there is
no such mention in the siteplan prepared. In
fact, the siteplan does not even mention the
grove where the initial crime of carrying of
Rajendra Kumar while he was asleep had
taken place which is a grave lapse on the
part of the Investigating Officer.

(22) There is no forensic report with
regard to blood stained weapon recovered
from the accused-Jagdamba Prasad and
Santram nor is there any such report with
regard to blood stained clothes recovered
from the said accused. There is also no
report with regard to plain and blood
stained soil allegedly collected by the
Investigating Officer from the scene of
crime. The siteplan has been prepared by
the Investigating Officer (P.W.4) on the
statement of P.W.1. In the siteplan, there is
no mention of grove where the initial
incident, where it is said that the deceasedRajendra Kumar was carried away by the
accused while he was sleeping on a charpai
and P.W.2 was sleeping by his side, took
place. This is a serious lapse on the part of
the Investigating Officer.

(23) The distance of the police station
from the scene of crime is 10-12 Kms. The
initial incident in the grove is said to have
taken place at about 10:00-10:30 P.M. on
18.05.2004. The body is said to have been
recovered at about 02:00-02:30 A.M. the
same night but the F.I.R. has been lodged at
07:30 A.M. in the morning. In the month of
May, sun rises early. There is no
explanation for this delay in lodging of the
F.I.R. The unexplained delay in lodging of
the F.I.R. gave room for deliberation and
consultation and possible false implication
may be on suspicion or for other reasons.
This, of course, is apart from the fact that
there are inconsistencies in the prosecution
evidence with regard to the police reaching
the scene of crime which will be dealt with
hereinafter.

(24) P.W.1-Jaisram Verma has
neither seen the first incident which
occurred at about 10:00-10:30 A.M. when
it is alleged that the accused carried away
Rajendra Kumar from the grove towards
the house of Jagdamba prasad nor has he
seen commission of the crime in the house
of Jagdamba Prasad nor has he seen the
accused throwing away the body of the
deceased near the chak road in the fields of
Ramchander. His testimony is relevant only
to the extent he says, on hearing the shouts
of his grandfather (P.W.2) who was
sleeping by the side of Rajendra Kumar
(deceased) in the grove, he woke up and
ran towards the grove which is situated
about 200-250 meters and thereafter, he has
testified that he raised an alarm whereupon
other villagers woke up and they all went to
the house of Jagdamba Prasad which was
found to be locked and the women and
3 All. State of U.P. Vs. Jagdamba Prasad & Ors.
1381
children of Jagdamba Prasad family were
found standing outside the house. He has
stated that house of Jagdamba Prasad is
about 10-15 steps from the grove. It is
about 20-25 steps away from the place
where the grand-father was lying on a
charpai in the grove. He has stated that they
reached the house of Jadgamba Prasad
within two-four minutes after running from
the house i.e. after running from the house
to the grove and to the house of Jagdamba
Prasad. Considering the distance of house
of P.W.1 from the grove which is 200-250
meters, even after taking into consideration
that there may be open spaces in between,
considering the age of P.W.2 who is said to
be eighty years at the time of commission
of the crime, it is highly unlikely that the
voice of P.W.2 could have reached such a
distance and P.W.1 could have reached the
scene of crime immediate especially as he
has stated that he was asleep in his house
when he heard the voice of his grand-father
and on hearing such shouts he rant towards
the grove.

(25) In any case, the testimony of
P.W.1 is relevant only to the extent
aforesaid and it does not help the
prosecution's case much as he is not a
witness to either of the three important
incidents which took place in the said night
as already referred hereinabove.

(26) As regards seeing the accused
while they were running away after
throwing the body P.W.1 has stated that he
did not see them running away but has
stated that other witnesses had seen them.
He has stated that when other witnesses
were shouting and telling that the accused
were running away, inspite of it, he did not
see them running away. P.W.1 is aged
about thirty years and must have had a
good eye-sight presuming that there was
visibility in the night at about 02:00-02:30
A.M. In this context, we have to keep in
mind that P.W.3 who claims to have seen
the accused was aged about 60-61 years on
the date of the incident. Apart from it, no
other witness has been produced who may
have seen the accused running away after
throwing the body of the deceased.

(27) P.W.1 has mentioned about his
suspicion on seeing the door of Jagdamba
Prasad's house locked that, his brother was
being kept inside. He has admitted that
southern wall of Jagdamba Prasad's house
did not have any roof etc yet he did not try
to find out from that side as to whether his
brother was being kept inside or not. He
has also not spoken about hearing any
voice from inside the house. This is
important as according to post-mortem
report there were about fifteen ante-mortem
injuries and if such injuries have been
inflicted upon the deceased inside the
house of Jagdamba Prasad and P.W.1 along
with other witnesses had reached the house
of Jagdamba Prasad within two or four
minutes as claimed, then, obviously, they
would have noticed something amiss.

(28) He has also not explained as to
why in these circumstances, the police was
not informed immediately and why the
F.I.R. was lodged in the morning at 07:30
A.M. though as stated earlier, in the month
of May, dawn would break early. P.W.1
has stated that the Daroga reached the
village at 08:00 A.M. whereas P.W.2 says
that Circle Officer reached the scene of
crime in the night itself.

(29) In this context, it is relevant to
mention that as per P.W.2, the police had
reached the scene of crime in the night
itself. He has clearly stated in his crossexamination that Circle Officer had reached
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
the scene of crime in the night when his
lantern was still lit. He has also stated that
Daroga had reached 02:30 A.M. in the
night of the incident. P.W.3 has also
testified that Daroga had reached the scene
of crime at 02:30-03:00 A.M. the same
night yet the F.I.R. has been lodged at
07:30 A.M. in the morning. In this context,
we may also consider the statement of
P.W.8-the Head Constable who had made
the requisite entries in the police records
and lodged the F.I.R. in the morning that
the Chowkidar-Prabhu Dayal of the village
had orally intimated the police in the night
itself but Inspector was out in the area. This
creates a doubt on the prosecution case
especially in view of the delay in lodging
of the F.I.R. as already discussed, about
which no explanation has been offered by
the informant who submitted the written
tehrir on which the F.I.R. was lodged.

(30) P.W.1 has also not given any
acceptable explanation as to why if the
incidents happened in such a short time and
he reached the house of Jagdamba Prasad
within 2-4 minutes of hearing the shouts of
his grandfather from the grove and he
suspected that his brother was being held
inside
the
house
of
Jagdamba
and
especially as he was accompanied by
several other villagers 10 to 25 in numbers,
no attempt was made in such an emergent
situation to break the lock and enter the
house or for that matter enter it from
southern wall which did not have any roof,
especially when, according to him, there
was a motive on the part of Jadgamba
Prasad on account of the alleged illicit
relationship of the deceased with his
daughter. No such attempt was made.
Instead, he has stated that he along with the
villagers tried to find out the whereabouts
of his brother.
(31) There is no explanation as to
why in these circumstances, he did not
immediately
reach
to
police
station
especially as he has stated that villagers
owned motorcycle and jeep and one of
them i.e. Raghunath also had a telephone
and he has accepted the fact that in
summers dawn breaks at about 04:00 A.M.
Instead, he has stated that he went to the
police station on a bicycle in the morning.

(32) P.W.1 has accepted the fact that
he has not mentioned about the illicit
relation between the deceased and daughter
of Jagdamba in his written tehrir. He has
accepted the fact that the he had not
mentioned in the written tehrir / F.I.R. that
the accused had carried his brother-
Rajendra Kumar to the house of Jagdamba
Prasad nor that this incident had been seen
by his grandfather in torch light.

(33) In cross-examination, he has also
stated that the distance between the house
of Jagdamba where the crime of murder is
said to have been committed and the place
from where the body has been recovered is
200 meters. Now, considering the sequence
of events mentioned hereinabove, if the
villagers and P.W.1 and P.W.3 had reached
the grove within two to four minutes as
claimed by P.W.1 and four to six minutes
as claimed by P.W.3 and they were
searching for Rajendra Kumar in various
groups then one fails to understand as to
when the crime was committed and when
the accused had the time to throw the body
200 meters away from the scene of
commission of crime and why they were
not seen by anybody taking the body out
from the house of Jagdamba Prasad
especially as it has come in the testimony
of P.W.1 and P.W.3 that when they found
the house of Jagdamba Prasad locked they
immediately went towards the fields where
3 All. State of U.P. Vs. Jagdamba Prasad & Ors.
1383
ultimately the body of the deceased was
recovered. This creates a doubt on the
entire
prosecution
case.
In
crossexamination, he has clearly stated that
nobody had seen the accused carrying the
body of the deceased and throwing it.
When the witnesses shouted that the
accused were running away even then he
could not see where the accused were and
what was the distance from where he was
standing. As already stated, he is not a
witness to the factum of body being carried
away from the grove to Jagdamba Prasad's
house nor of commission of crime at
Jagdamba Prasad's house nor has he
witnessed the accused throwing the body
and running away near the Char road. His
testimony is therefore of no significance for
proving the prosecution case.

(34) P.W.2-Ram Lakhan is the
grandfather who was sleeping by the side
of Rajendra Kumar in the grove. He has
stated that they were sleeping at the center
of the grove. The measurement of the grove
has been mentioned by him as sixteen
lathas from north to south. He has also
stated that the grove was a kalmi bag and
the height of the mango trees was about 10
hands. The branches were about three
hands above the ground. The initial
incident happened at about 10:30 P.M.,
according to P.W.2. In this situation with
the height of trees and the branches being
only three hands above the ground
considering that, he is an eighty years old
person whose visibility would not be very
good, he claims to have seen the accused
carrying away Rajendra Kumar in the
night.

(35) P.W.3 who is a neighbour of
P.W.2 has clearly stated that P.W.2 did not
have such strength so as to chase the
accused-Jadgamba. This is inconsistent
with the testimony of P.W.2 that he ran a
few paces after the accused although he i.e.
P.W.2 has himself stated that he cannot
keep standing for long which also makes
his testimony suspect. Moreover, P.W.3 has
stated that when he reached the grove on
hearing the shouts of P.W.1, he found
P.W.2- Ram Lakhan standing near the
charpai in the grove whereas P.W.2 has
stated that he ran a few paces towards the
house of Jagdamba and was only a few
paces away from it which is inconsistent
especially as the said charpai was at the
centre of the grove which as stated by
P.W.2 measured sixteen lathas from north
to south. It has come in the testimony that it
was a dark night.

(36) P.W.2 though initially he has
stated that he was sitting on a charpai at a
short distance from Rajendra Kumar when
the latter shouted but, in his crossexamination, he has stated that he was
feeling sleepy and was about to sleep and it
is incorrect to say that he was sitting at the
time of the incident, but immediately
thereafter, he has stated that he has rightly
testified in examination-in-chief that when
his grandson was being carried away he
was sitting. He has also stated that
whatever has been stated by him today in
the cross-examination i.e. 24.04.2006 was
also correct, that is, he was sleeping and
was also sitting. He has, however, stated
that he did not see as to who was holding
his grandson by the leg and who was
holding his hands while carrying him away.
None of them were carrying wooden sticks.
Considering the age of this witness, the
time of the offence and the testimony of
P.W.3 and the contradiction in his own
statement as to whether he was awake or
sleep, it creates a reasonable doubt as to
whether, in fact, he saw his grandson being
carried away.
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
(37) In this context, he has spoken
about a lantern being lit in the grove and
also that he saw the said incident in torch
light. However, there is no recovery of any
torch.

(38) P.W.2 has further stated that he
had seen the accused taking his grandson in
the house of Jagdamba Prsad and also that
they had not masked their faces. The
accused belonged to the same village and in
fact, they live nearby and if they were
committing the crime in the dead of night
in the grove when the grand-father was
awake or was in such a position where he
could be awakened, it is unlikely that they
would not mask their faces and even if they
did not, it is highly unlikely that they would
allow the crime to be seen by the
grandfather and they would in his presence
while he was witnessing the incident take
the body to the house of Jagdamba Prasad
to commit the crime especially as house of
Jadgamba Prasad is situated barely two
lathas from the place where Rajendra
Kumar (deceased) and P.W.2 were on the
charpai in the grove.

(39) Moreover, if P.W.2 had seen
them taking Rajendra Kumar inside the
house of Jagdamba Prasad from the
northern door then there was all the more
reason for the villagers to have broke open
the lock on the house of Jagdamba Prasad
to enter it, so as to prevent any crime being
committed
or
for
that
matter
to
immediately raise an alarm and awaken
other villagers especially the Pradhan or to
have informed the police immediately as at
least one of the villagers i.e. Raghunath had
a telephone and there were others who
owned motorcycles and one of them Ramu
Yadav even owned a jeep as has come in
the testimony of P.W.1 himself. None of
this was done and the villagers including
the witnesses kept looking for Rajendra
Kumar in and around the village till his
body was recovered at 02:00-02:30 A.M.
The crime, in fact, was committed during
three to four hours of the time when the
villagers and the witnesses came to know
about the incident and during which they
were looking for Rajendra Kumar. This
appears to be highly unlikely.

(40) P.W.2 has stated that it took
about half an hour for the villagers to reach
the grove till then he and P.W.1 did not
have the courage to approach the house of
Jagdamba Prasad. Now, this is not
consistent with the testimony of P.W.1 who
says that they reached the house of
Jagdamba Prasad after first going to the
grove and talking to P.W.2 within two to
three minutes and P.W.3 has stated that this
happened within four to six minutes. P.W.
2 has stated that about 25 villagers had
reached the scene. If it was so then they
could have easily broken the lock of house
of
Jadgamba
Prasad
considering the
sequence of events narrated by the
witnesses. But this was not done. He has
spoken about a suspicion that Rajendra
must have been detained inside the house
and murdered there but, this is a mere
suspicion
as
nobody
has
seen
this
happening. Most important, in crossexamination, he has stated at one place that
his grandson could not scream, therefore,
there is no question of any scream being
heard and they were strongly of the belief
that his grandson was being held up in the
house. Now, if the grandson did not scream
then how P.W.2 has stated initially that he
heard the shout of his grandson inside the
grove, woke up and even ran a few paces
behind the accused while they were
carrying him away. This again is a
contradiction in the testimony of P.W.2
3 All. State of U.P. Vs. Jagdamba Prasad & Ors.
1385
himself.
Suspicion
howsoever
strong
cannot take the place of evidence.

(41) P.W.2 has stated that though
the villagers went to the house of Jadgamba
but they did not go to the house of any
other accused. Now, this is inconsistent
with the testimony of P.W.1.

(42) P.W.2 has stated that when all of
them were looking for Rajendra they had
not seen the accused-Jagdamba nor had
anybody told him of having seen him. This
is not consistent with the testimony of
P.W.3 who has stated that the accused were
running away after throwing the body and
P.W.1 has stated that other witnesses had
seen this though he had not.

(43) In view of the above discussion,
we are of the opinion of P.W.2 is not
reliable. His testimony does not inspire
confidence in view of the inconsistencies
and contradictions and especially in view
of his age.

(44) At this stage, we take note of the
fact that testimony of P.W.2 himself, who
in fact was a witness to the alleged incident
of Rajendra being carried away by the
accused, was recorded on 04.06.2004.
Being an eighty year old person, there is no
evidence to the effect that he was not
available at his house from the time of
commission of crime till recording of his
statement, as such, the statement of the
Investigating Officer P.W.4 that he was not
available at his house is also not
acceptable. There is no explanation as to
why the statement of this important witness
has been recorded with such delay. This
also creates a doubt on the prosecution case
as it leaves scope for deliberation,
consultation and false implication may be
on suspicion or because of the motive being
alleged.

(45)

Prosecution
case
is
not
believable in view of unnatural conduct of
the witnesses and other villagers in not
entering the house of Jadgamba Prasad to
find out whether Rajendra was being kept
there or not. It appears that crime was
detected only later and thereafter a story
has been cooked up and that is why the
F.I.R. has been lodged belatedly and the
time lapse has been used to deliberate,
consult and lodge the F.I.R. may be on
suspicion or on account of the alleged
motive of illicit relationship between the
deceased and daughter of Jadgamba Prasad.

(46) P.W.3 is a neighbour of P.W.1
and P.W.2. He is a witness of body of the
deceased being found and claims to have
seen the accused running away after
throwing it. This aspect has been dealt with
earlier. There is no other witness who has
spoken about having seen the accused
throwing away the deceased's body and
running away. P.W.1 who was present with
P.W.3 did not see it. P.W.3 has stated that
house of P.W.1 is near his house but the
grove is far away. He has then stated that
he reached the grove on hearing the shouts
of P.W.1 and not P.W.2 which is
inconsistent with the testimony of P.W.1
but, even if this is ignored, the fact is that
an eighty year person (P.W.2) raised an
alarm in the grove situated about 200-250
meters which was heard by P.W.1 and
P.W.3, who claim to have reached the
grove and the house of Jadgamba Prasad
within two-four or four-six minutes which
in the circumstances considering that it was
a night appears to be unbelievable.
1386 INDIAN LAW REPORTS ALLAHABAD SERIES

(47) He has stated in his crossexamination that they i.e. the witnesses and
the villagers came to know that body of
Rajendra has been taken out of the house of
Jagdhamba whereupon P.W.1 stated that it
was useless to stand outside his house.
Accordingly, they went towards the field of
Ramchander using the Kharanja. They did
not go anywhere else to look for Rajendra.
Now, this testimony of P.W.3 is not
reliable. If the time lapse between the
shouts of P.W.2 and the villagers and
P.W.1 and P.W.3 reaching the house of
Jagdamba Prasad is only four to six
minutes
then
how
and
under
what
circumstance they came to know that the
body had already been taken out of the
house has not been proved. P.W.2, on the
other hand, says that though P.W.1 reached
there immediately, the villagers reached the
grove after half an hour. There is no
explanation for these inconsistencies in the
prosecution case.

(48) The testimony of P.W.3 is also
intriguing that they straightaway went from
the house of Jadgamba to the field of
Ramchander where ultimately the body was
found and did not look anywhere else
whereas the testimony of P.W.1 is
something else. He has also supported the
testimony of P.W.2 that they did not go to
the house of other accused -Santram etc.
but only went to the house of Jadgamba
whereas P.W.1 has testified otherwise. It is
also intriguing as to why they did not go to
the house of other accused if P.W.2 had
seen all the accused carrying away
Rajendra from the grove.

(49) P.W.3 has stated that they were
about eight to ten people looking for
Rajendra and then they saw the accused
running away after throwing the body of
Rajendra in the field of Ramchander and
that they had seen this incident from a
distance of one bigha which is not far off,
yet, even after an attempt to chase them,
they could not catch them. As already
stated, P.W.1 has denied seeing the accused
at this time. There is no other witness who
may have testified on the same lines. In
fact, P.W.2 has also stated that nobody had
told him about having seen the accused
running away.

(50) Most important, the testimony of
P.W.3 was recorded by the Investigating
Officer on 04.06.2006 i.e. about fifteen
days
after
the
incident.
In
crossexamination, P.W.3 has stated that during
this period, he was at his house and had not
gone anywhere to attend any marriage etc.
whereas the Investigating Officer has stated
that he did not find P.W.3 at his house
which is not acceptable in view of the
testimony of P.W.3 himself. Thus, there is
no explanation for delay in recording of
statement of P.W.3 and it gives reasonable
basis for opining that his statement was
recorded
subsequently
after
due
deliberation and consultation and that he is
a tutored witness, not at all reliable.

(51) P.W.3 has feigned ignorance as
to why his statement about having seen the
accused while running away has not been
recorded by the Investigating Officer under
Section 161 Cr.P.C.

(52) Most important, P.W.3 has also
spoken/ testified about the Daroga reaching
the scene of crime at 02:30-03:00 A.M. in
the night when the crime was committed
but the F.I.R. has been lodged at 07:30
A.M. in the morning. He has accepted the
fact that his testimony was recorded by the
Daroga 10-15 days after the incident.
3 All. State of U.P. Vs. Jagdamba Prasad & Ors.
1387

(53) Prosecution has failed to prove
that murder was committed inside the
house of Jagdamba Prasad. Place of
occurrence has not been proved. As already
stated, there is no independent witness of
recovery of the weapon allegedly used in
commission of the crime nor of the blood
stained clothes worn by the accused. There
is no forensic report to link the blood found
on the aforesaid with that of the deceased.
There is no forensic report regarding blood
soaked soil and plain soil collected from
the alleged scene of crime having matched.
Ocular evidence is unreliable. Rajendra
Kumar is said to have been murdered in the
house of Jagdamba Prasad but there is no
evidence in this regard. P.W.2 is said to
have seen the accused carrying away
Rajendra Kumar while he was alive from
the grove towards the house of Jagdamba
Prasad but in view of the discussion made
hereinabove his testimony is not reliable.
P.W.1 has not seen any of the three
incidents which constitute the crime. P.W.3
claims to have seen the accused throwing
away the body of the deceased and running
away but P.W.1 who was also present on
the spot and is younger in age did not see
the said incident. There is no other witness
of this fact though several persons are said
to have been present at that time.

(54) Moreover, at this stage, we may
refer to the inquest report which was
prepared in the morning and on a reading
of it, we find that though there is no such
requirement in law to mention the incidents
which took place while committing the
crime, the witnesses to the inquest, none of
whom are witness of any of the incidents
constituting the crime have opined that
Jagdamba Prasad along with other accused
had murdered the deceased inside his house
at about 10:30 P.M. which is surprising as
they could not have any such information.

(55) Considering the facts and
evidence before us though it is a case of
homicide, we are of the opinion that the
prosecution has miserably failed to prove
beyond reasonable doubt that the crime of
murder was committed by the four accused.
The trial court has rightly acquitted
Santram, Ramdev and Ramdas and we see
no infirmity in the judgment of the trial
court acquitting these persons. The view
taken by the trial court is a possible view,
therefore, in view of decision of Hon'ble
the Supreme Court in the case of 'State of
Karnataka vs. Gopalkrishna' (2005) 9
SCC 291; 'Sudershan Kumar vs. State of
Himachal' (2014) 15 SCC 666 & 'Dilawar
Singh vs. State of Haryana' (2015) 1 SCC
737, we see no reason to interfere with the
judgment of acquittal.