# Subhash Yadav & Ors v. State of U.P

- **Citation:** (2023) 10 ILRA 72
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-27
- **Case number:** J. Criminal Appeal No. 583 of 2000
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-yadav-ors-v-state-of-u-p-49519
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 304, 323, 308, 504 & 506 read
with Section 34 - Evidence Act, 1872 -
Section 134 - Hostile Witnesses - Motive
- Ocular and Medical Evidence - Faulty
Investigation - Conviction under Section
304 - Quashing of Convictions under
Sections 323, 308, 504 & 506 - The
appellants, Subhash Yadav, Jang Bahadur, and
Darmesh Yadav, challenged the conviction and
sentencing dated 19.05.2000 by the Special
Judge (PC Act)/Additional Sessions Judge,
Lucknow, for offenses under Sections 323/34,
308/34, 504, 506, and 304/34 IPC, arising from
Case Crime No. 80 of 1997, Police Station
Banthra, Lucknow. Subhash Yadav and Jang
Bahadur died during the appeal, leaving
Darmesh Yadav as the sole surviving appellant.

Held: (1) The appeal was partly allowed,
quashing convictions under Sections 323/34,
308/34, 504, and 506 IPC due to insufficient
evidence, but the conviction and ten-year
rigorous imprisonment under Section 304/34
IPC were upheld for Darmesh YadaVs (2) The
prosecution proved the case under Section
304/34 IPC beyond reasonable doubt through
the credible testimonies of PW-4 (Milap Singh,
brother of the deceased) and PW-5 (Ram
Narayan, maternal uncle), corroborated by
medical evidence from PW-6 (Dr. Anil Kumar),
showing multiple abrasions, contusions, and
broken ribs leading to the death of Om Prakash
Yadav due to shock and hemorrhage from lathi
blows. (3) The motive was established through
prior altercations and threats by Subhash Yadav
against the deceased, as confirmed by PW-4
and PW-5, stemming from incidents at a tilak
ceremony and a village scuffle. (4) The FIR,
lodged promptly at 10:45 a.m. on 25.03.1997
for an incident at 9:30 a.m., was not delayed,
despite PW-3 (Sushil Kumar, informant) turning
hostile, as its registration was proved by PW-9
(Head Constable Jageshwar Dayal). (5) Hostile
witnesses (PW-1, PW-2, PW-3, CW-1) did not
negate
the
prosecution
case,
as
their
testimonies partially supported the date, time,
place of occurrence, and injuries, aligning with
Khujji @ Surendra Tiwari Vs St. of M.P. and Raja
Vs St. of Karn., where reliable portions of hostile
witness testimonies can be used. (6) The place
of occurrence was consistently proved by all
witnesses and the site plan (Ex.Ka-9). (7)
Alleged investigative lapses, such as nonrecovery of the towel used to tie the deceased's
10 All. Subhash Yadav & Ors. Vs. State of U.P.
73
feet, non-inspection of the tractor/tempo, and
discrepancies in the deceased's name (Om
Prakash alias Ram Prakash), were immaterial, as
ocular evidence was credible and corroborated
by medical evidence, per Nankaunoo Vs St. of
U.P. and Leela Ram Vs St. of Har.. (8)
Convictions under Sections 323 and 308 IPC
were unsustainable due to the deceased's
death, rendering these charges redundant, and
no
evidence
supported
convictions
under
Sections 504 and 506 IPC for abuse or threats.
(9) The testimony of related witnesses (PW-4,
PW-5) was reliable, as their relationship with the
deceased did not discredit their account, per
Bhagwan Jagannath Markad Vs St. of Mah.. (10)
The court directed Darmesh Yadav to surrender
by 09.10.2023 to serve the remaining sentence,
with adjustments as per law.

Case Law Cited:

## Text

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72 INDIAN LAW REPORTS ALLAHABAD SERIES
O R D E R

36. The Criminal Appeal is dismissed.
The order of conviction and sentencing
dated 27th January, 2001 passed by the trial
court in Session Trial No. 979 of 1995
(State Vs. Kailash), under Section 307
I.P.C, Police Station Aasiwan, district
Unnao, is affirmed.

36. A copy of this order be sent to the
Additional Sessions Judge - VI, Unnao, to
ensure the compliance and also alongwith
original record for consignment.

37. The convicted appellant Kailash
shall surrender before the learned A.S.J 6th
Unnao immediately, he shall be taken into
custody and shall be sent to prison to serve
the rest of the period of sentence.
----------
(2023) 10 ILRA 72
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Appeal No. 583 of 2000

Subhash Yadav & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
G.R. Chhabra, Vijay Kumar Verma, Vinod
Kumar Tiwari

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 304, 323, 308, 504 & 506 read
with Section 34 - Evidence Act, 1872 -
Section 134 - Hostile Witnesses - Motive
- Ocular and Medical Evidence - Faulty
Investigation - Conviction under Section
304 - Quashing of Convictions under
Sections 323, 308, 504 & 506 - The
appellants, Subhash Yadav, Jang Bahadur, and
Darmesh Yadav, challenged the conviction and
sentencing dated 19.05.2000 by the Special
Judge (PC Act)/Additional Sessions Judge,
Lucknow, for offenses under Sections 323/34,
308/34, 504, 506, and 304/34 IPC, arising from
Case Crime No. 80 of 1997, Police Station
Banthra, Lucknow. Subhash Yadav and Jang
Bahadur died during the appeal, leaving
Darmesh Yadav as the sole surviving appellant.

Held: (1) The appeal was partly allowed,
quashing convictions under Sections 323/34,
308/34, 504, and 506 IPC due to insufficient
evidence, but the conviction and ten-year
rigorous imprisonment under Section 304/34
IPC were upheld for Darmesh YadaVs (2) The
prosecution proved the case under Section
304/34 IPC beyond reasonable doubt through
the credible testimonies of PW-4 (Milap Singh,
brother of the deceased) and PW-5 (Ram
Narayan, maternal uncle), corroborated by
medical evidence from PW-6 (Dr. Anil Kumar),
showing multiple abrasions, contusions, and
broken ribs leading to the death of Om Prakash
Yadav due to shock and hemorrhage from lathi
blows. (3) The motive was established through
prior altercations and threats by Subhash Yadav
against the deceased, as confirmed by PW-4
and PW-5, stemming from incidents at a tilak
ceremony and a village scuffle. (4) The FIR,
lodged promptly at 10:45 a.m. on 25.03.1997
for an incident at 9:30 a.m., was not delayed,
despite PW-3 (Sushil Kumar, informant) turning
hostile, as its registration was proved by PW-9
(Head Constable Jageshwar Dayal). (5) Hostile
witnesses (PW-1, PW-2, PW-3, CW-1) did not
negate
the
prosecution
case,
as
their
testimonies partially supported the date, time,
place of occurrence, and injuries, aligning with
Khujji @ Surendra Tiwari Vs St. of M.P. and Raja
Vs St. of Karn., where reliable portions of hostile
witness testimonies can be used. (6) The place
of occurrence was consistently proved by all
witnesses and the site plan (Ex.Ka-9). (7)
Alleged investigative lapses, such as nonrecovery of the towel used to tie the deceased's
10 All. Subhash Yadav & Ors. Vs. State of U.P.
73
feet, non-inspection of the tractor/tempo, and
discrepancies in the deceased's name (Om
Prakash alias Ram Prakash), were immaterial, as
ocular evidence was credible and corroborated
by medical evidence, per Nankaunoo Vs St. of
U.P. and Leela Ram Vs St. of Har.. (8)
Convictions under Sections 323 and 308 IPC
were unsustainable due to the deceased's
death, rendering these charges redundant, and
no
evidence
supported
convictions
under
Sections 504 and 506 IPC for abuse or threats.
(9) The testimony of related witnesses (PW-4,
PW-5) was reliable, as their relationship with the
deceased did not discredit their account, per
Bhagwan Jagannath Markad Vs St. of Mah.. (10)
The court directed Darmesh Yadav to surrender
by 09.10.2023 to serve the remaining sentence,
with adjustments as per law.

Case Law Cited:

1. Khujji @ Surendra Tiwari Vs St. of M.P.,
(1991) 3 SCC 627;

2. Raja Vs St. of Karn., (2016) 10 SCC 506;
Pooja Pal Vs Union of India, (2016) 3 SCC 135;

3. Vinod Kumar Vs St. of Punj., (2015) 3 SCC
200;

4. Sucha Singh Vs St. of Punj., 2003 (47) ACC
555 (SC);

5. Malkhan Singh Vs St. of U.P., 2001 JIC 290
(All);

6. Bable Vs St. of Chhattisgarh, AIR 2012 SC
2621;

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Mr. Vinod Kumar Tiwari,
learned counsel for the appellants, Ms.
Anupriya Jaiswal, learned AGA, Sri
Devanshu Pratap Singh Brief Holder for
the State and perused the record.

2. This appeal has been preferred
against
the
judgment
and
order
of
conviction
and
sentencing
dated
19.05.2000 passed by the Special Judge
(PC
Act)/Additional
Sessions
Judge,
Lucknow in ST No.655 of 1997 alongwith
ST No.655A of 1997 (State Vs. Dharmesh
and others), arising out of Case Crime
No.80 of 1997, Police Station Banthra,
District Lucknow by which the learned trial
Judge convicted all the three accused
persons under Section 323 read with
Section 34 IPC and sentenced them for
rigorous imprisonment of one year, under
Section 308 read with section 34 IPC for
rigorous imprisonment of five years, under
Section 504 IPC for rigorous imprisonment
of six months, under Section 506 IPC for
rigorous imprisonment of one year and
awarded ten years rigorous imprisonment
under Section 304 read with section 34
IPC. It was also directed to run all the
sentences concurrently.

3. During the pendency of appeal
convicts Jang Bahadur and Subhash Yadav
have died and the appeal survives only in
respect of appellant no.2, Darmesh Yadav.

(I) Grounds of appeal-

4. The appellants have taken grounds
in the appeal that; (i) that PW-3, Sushil
Kumar had simply written the FIR on the
dictation of the IO even then the trial Judge
has concluded that the FIR was proved
according to the Indian Evidence Act; that
such approach of the trial court is perverse;
that the learned Sessions Judge has also
erred in holding that from the evidence of
PW-1, PW-3 and CW-1 the alleged
occurrence has been proved because these
witnesses
have
not
supported
the
prosecution version; that PW-4 and PW-5
have not supported the statements of each
other and there are material contradictions
in their evidence which create serious
74 INDIAN LAW REPORTS ALLAHABAD SERIES
doubts of their presence and the learned
Sessions
Judge
has
ignored
such
contradictions
which
rendered
the
conviction of the appellants; that the
learned Judge has wrongly relied on the
statement
of
PW-4
who
was
not
interrogated by the IO as he has accepted in
his statement that he was not interrogated
by the IO during the investigation since
there is no evidence on record to prove that
any lacerated wound had occurred to the
deceased even then the trial Judge recorded
that the blood was oozing and had fallen on
the earth from the person of the deceased
and the same was collected by the IO; that
in absence of that, the place of occurrence
cannot be said to have been proved; that the
finding of the Sessions Judge that not
taking the towel in the custody would not
disprove the prosecution case is incorrect
and it has resulted into great miscarriage of
justice; that the Sessions Judge has also
erred in misreading the death memo
(Ex.Ka-5); the name of the deceased Om
Prakash @ Ram Prakash while the death
memo is of Ram Prakash only which has
resulted into great miscarriage of justice;
that the learned Sessions Judge has also
erred in law and fact in holding that the
deceased died at 11:12 a.m. contrary to the
doctor PW-6 noting to the time of death at
03:00 a.m. thus, the trial Judge has misread
the evidence on record; that the learned
Sessions Judge has also erred in law and
fact that the statement of the IO recorded in
the court was correctly recorded; that the
learned Sessions Judge has erred in holding
that CW-1 has proved the occurrence and
the participation of the appellants; that the
evidence of PW-3 and CW-1 has not been
considered in right perspective regarding
place of occurrence; that the learned
Sessions Judge has also erred in holding
that that the part of the statement which
supports the defence was given under the
confusion. He has also erred in holding that
CW-1 is an interested witness being a
person of same caste as that of the
appellants; that due to non-production of
the pathani suit of the deceased, his
identification could not be established; that
the learned Judge has also erred in
convicting the accused persons under
Section 323 IPC in absence of any simple
injury; that when the deceased was alive,
the FIR was registered and even after his
death the learned Sessions Judge has
convicted the accused persons under
Section 308 IPC and also under Section
304 IPC, both the said sections cannot sail
together when the victim died; that since no
evidence of Sections 504 and 506 IPC is on
record, hence the conviction under those
sections is without any basis, therefore, the
impugned judgment and order of the
Special Judge (PC Act), Lucknow be
quashed and the appellants be acquitted.

(II) Brief facts of the case-

5. The informant Sushil Kumar Yadav
son of Sri Putti Lal Yadav, resident of Noor
Nagar Madarsa, Police Station Banthra,
District Lucknow, lodged an FIR that a
fight had taken place between the deceased
Om Prakash Yadav of his village and
accused Subhash Yadav at village Devi
Kheda in the tilak ceremony of Mishrilal
Yadav. Accused Shubhash Yadav had
threatened to kill the deceased Om Prakash
Yadav.

6. On 25.03.1997 Om Prakash Yadav
had to take a bus for Kaithi, when he
reached near the hut of Gaya Prasad in
Anoop Kheda at about 09:30 a.m, the
accused persons Subhash Yadav, Darmesh
and Jang Bahadur came out of bus with
sticks. Shubhash Yadav tried his best to kill
him. Seeing this, Om Prakash Yadav started
10 All. Subhash Yadav & Ors. Vs. State of U.P.
75
screaming and running from there but
Shubhash Yadav and Darmesh Yadav caught
Om Prakash Yadav near the wheat field of
Gangadeen, thereafter Jang Bahadur caught
him and also took him to the babool tree
(vachellia nilotica) near the parti-land. Accused
Jang Bahadur threatened to kill him and
abusingly forced him to sit there. While accused
Shubhash Yadav tied the legs of Om Prakash
Yadav and pushed him down, Shubhash Yadav
and Darmesh Yadav started beating Om
Prakash Yadav brutally. On hearing his cries
and screams, Ram Narayan, Milap Yadav and
other farmers reached on the spot but accused
Subhash Yadav in order to stop them threatened
of dire consequences. Therefore, they did not
proceed ahead, and all the accused persons
continued to beat Om Prakash Yadav
mercilessly for 15-20 minutes. When Shubhash
Yadav and Dharmesh Yadav got exhausted, the
accused Jang Bahadur started beating him with
stick. When Suresh Yadav came from the
tractor, the accused persons ran away towards
Madarsa.

7. Informant, PW-3, Sushil Kumar Yadav
produced a written complaint dated 25.03.1997
at about 10:45 a.m. at Police Station Banthra on
which basis, the case under Sections 323, 504,
506, 308 IPC was registered at Case Crime
No.80 of 1997. During the course of the
journey to Balrampur Hospital, injured, Om
Prakash Yadav died, therefore, the case was
converted into Section 304 IPC.

8. After the death of Om Prakash Yadav,
the inquest report was prepared and autopsy of
the dead body of the deceased was also
conducted. After investigation, investigating
officer (IO) submitted the charge-sheet. The
case was committed to the Court of Sessions
which was transferred to the trial court. The
Additional
Sessions
Judge-III,
Lucknow
framed the charge on 29.09.1997, that the
accused denied and sought trial.

9. The prosecution examined the
following witnesses:

1
 PW-1
Raghu Nandan
2
 PW-2
Gaya Prasad
3
 PW-3
Sushil Kumar Yadav
4
PW-4
Milap Singh
5
PW-5
Ram Narayan
6
PW-6
Dr. Anil Kumar
7
PW-7
SI Rajendra Prasad Kannaujia
8
PW-8
SI SP Singh
9
PW-9
Head Constable Jageshwar Dayal
10
CW-1
Suresh Prasad

10. Prosecution relied on following
documentary evidences:

1
Ex.Ka-1
Written complaint
2
Ex.Ka-2
Postmortem report
3
Ex.Ka-3
Photonash
4
Ex.Ka-4
Police report
5
Ex.Ka-5
Roopkar/death memo
6
Ex.Ka-6
Specimen seal
7
Ex.Ka-7
Police Station report
8
Ex.Ka-8
Inquest report
9
Ex.Ka-9
Site map/Site plan
10
Ex.Ka-10
Recovery memo
11
Ex.Ka-11
Charge-sheet
12
Ex.Ka-12
Chik FIR
13
Ex.Ka-13
Carbon copy/kaymi case GD
14
M.Ex.1
Plain soil
15
M.Ex.2
Blood stained soil
16
M.Ex.3&4
Boxes of plain and blood stained
soil

(III)
Brief
discussion
on
the
statement of the prosecution witnesses-

11. PW-1, Raghu Nandan has not
supported the prosecution version and has
deposed that before him neither accused
76 INDIAN LAW REPORTS ALLAHABAD SERIES
Shubhash Yadav tied the feet of the
deceased Om Prakash Yadav nor the
deceased was beaten by the accused
persons by sticks. He himself stated that he
was at his house. When his son Sandeep
Kumar informed him regarding the scuffle,
he reached on the spot and saw that a
severely injured person was lying there,
and another person was also standing there.
Seeing this, he and the villagers kept the
injured on a tractor. The person standing
there also accompanied the injured on the
tractor. The witness deposed that he does
not know the names of those two persons.
During the course of deposition, the
accused persons were present in the court.
Seeing them, the witness deposed that since
the scuffle had not taken place before him,
he did not see these persons on the spot
and, therefore, can not say whether the
accused persons had beaten the deceased or
not. The witness denied his statement
recorded under Section 161 CrPC.

12. PW-2, Gaya Prasad has also given
a hostile statement and against the
prosecution. This witness also denied that
the accused persons had tied the feet of the
deceased and had beaten him with stick
before him. The witness was declared
hostile and was cross-examined by ADGC.
The
witness
disowned
his
statement
recorded by the IO during the investigation.

13. PW-3, informant Sushil Kumar
Yadav
has
also
not
supported
the
prosecution version in his evidence. This
witness has not admitted that he was with
the deceased, Om Prakash Yadav at the
time of occurrence. The witness also denied
the statement recorded by the IO and
deposed that he had written the complaint
on the dictation of a Sub Inspector.

14. PW-4, Milap Singh has said that
the accused persons and Sushil Kumar
Yadav are from his village and the deceased
Om Prakash Yadav was his elder brother.
The witness deposed that there was a farm
house of Chotu Sardar at a distance of
01km from his village and his brother Om
Prakash used to ply his truck. On
25.03.1997, at about 09:00 to 09:30 a.m.
his brother was going to the aforesaid farm
house on foot along with Sushil Kumar
Yadav. That time he and his father were
digging potatoes in the field. After 10
minutes, they heard a noise "save-save". He
recognised the voice and reached there and
saw that all the accused Subhash Yadav,
Jang Bahadur and Darmesh Yadav were
beating his brother Om Prakash Yadav by
stick in banjar land. They threatened that if
they proceed ahead, they shall also be
beaten. The accused persons kept beating
his brother and after seeing the persons
present there coming nearby, they ran away.
Looking to the condition of his brother, his
father
became
unconscious.
People
managed a tractor and carried the injured to
hospital. He himself did not took his
brother to the hospital. The villagers said
that they took him to the police station. He
had neither accompanied the deceased to
the police station nor to the hospital.
Doctor declared him to be dead.

15. Prior to this incident, in tilak
ceremony at the house of Sri Ram Yadav
resident of Devi Kheda, an altercation had
taken place between his brother and
accused
Shubhash
Yadav.
After
the
incident, his father was called by Shubhash
Yadav who had threatened his father of dire
consequences. The feet and hands of the
deceased were tied separately by separate
towels at the time of incident.
10 All. Subhash Yadav & Ors. Vs. State of U.P.
77

16. During the course of crossexamination, the witness deposed that his
potato field is about 100-150 steps south of
his house. He reached on the spot after
crossing the drainage from his field.
Hearing the noise, he crossed 2-3 fields
which lies in between the place of
occurrence and his potato field. He had
reached on the spot before reaching the
villagers. He had come to his house with
his father. Due to this incident for next 12
days his father used to faint frequently. The
witness could not remember the person
who had taken his brother from the tractor.
He expressed ignorance about the timing of
his return. The witness further deposed that
he does not know the whereabouts of the
people who carried his brother from the
tractor. The witness denied that IO had
recorded his statement. This witness further
deposed that he had not talked about the
incident prior to the deposition.

17. PW-5, Ram Narayan has deposed
that the deceased, Om Prakash Yadav was
his nephew (bhanja). He further stated that
Om Prakash Yadav became orphan in his
childhood and he was being nurtured by
him. He further deposed that the deceased
was about 23 years old. At the time of the
incident, he was in his field with his son
Milap Singh where they were digging
potatoes. Hearing the noise "save-save",
both of them ran there and saw that accused
Shubhash Yadav, Darmesh Yadav and Jang
Bahadur were beating Om Prakash Yadav
with sticks. When they went ahead, the
accused persons threatened them that if
they came to rescue, they would also be
killed, so they stopped there. Sushil Kumar
Yadav was also present there. Both of them
had come to the place of occurrence
together and both were going to Kaithi
Farm. When they reached at the hut of
Gaya Prasad, this incident had taken place.
After hearing the commotion, Suresh Yadav
reached there with a tractor. Seeing this, the
accused persons ran away towards village
Noor Nagar, thereafter Suresh Yadav untied
his brother's feet. They kept the deceased at
his tractor and thereafter took him to Police
Station Banthra by tempo and from there he
was
taken
to
Balrampur
Hospital,
Lucknow. He had not come to Balrampur
Hospital from Police Station Banthra with
the deceased, Om Prakash Yadav. Bhagwan
Dev, Ram Dev, Sardar, Inder Pal and two
constables had gone to Balrampur Hospital
with the deceased, Om Prakash Yadav.

18. The report was lodged by Sushil
Kumar Yadav and at the time of lodging the
report, he was sitting near Om Prakash
Yadav outside the building of the police
station and from the police station he had
returned to his home. Before reaching
home, the younger brother of Ram Dev had
informed that Om Prakash Yadav had died.

19. Fifteen days prior to this incident,
a scuffle had taken place in the village
between Harish Chandra and his elder
brother Beerpal. Deceased, Om Prakash
Yadav also reached there. The wife of
Harish Chandra requested Om Prakash for
help upon which Om Prakash Yadav
intervened and said, "why did you beat a
lady in a fight between two brothers". On
being annoyed, Subhash Yadav present on
the spot had threatened the deceased. After
10-12 days of the aforesaid incident,
another altercation took place between
Subhash Yadav and Om Prakash Yadav (the
deceased) in a tilak ceremony held at the
house of Mishiri Lal resident of Devi
Kheda. On the next day, he was summoned
by Subhash Yadav through his younger
brother. To take his revenge, he threatened
him of dire consequences. Thereafter, he
had directed Om Prakash Yadav not to
78 INDIAN LAW REPORTS ALLAHABAD SERIES
intervene in any matter in which the
accused persons were involved. This
witness further deposed that Shubhash
Yadav, Darmesh Yadav and Jang Bahadur
Yadav are not the accused persons.

20. At this juncture, the trial court
intervened and asked about the eye vision
of the witness, who informed that he may
recognize any person at a distance of one
hand. The witness went near the accused
persons and recognized them, and after
touching them, he deposed that these three
accused persons had beaten the deceased
Om Prakash Yadav by sticks. After this
deposition, the witness felt ill and the
cross-examination was adjourned for the
next day where the witness deposed that
after the murder of Om Prakash Yadav, he
fell ill and his eye sight had also become
weak. He further deposed that his eye
vision was quite good even after 2-3
months of the incident. On the date of
occurrence, he had left home at about 08:00
a.m. to reach at his field and had reached
there within five minutes. After 10-15
minutes, Sushil Kumar Yadav and Om
Prakash Yadav had reached together, and
after staying for 15 minutes, they had gone
towards the south, where the bungalow of
Gaya Prasad is situated at a distance of 5-6
plots.

21. From the place of occurrence, Om
Prakash Yadav was taken to Police Station
Banthra by his brother-in-law, Ram Dev,
his brother, father, and Indra Pal Master
from where he was taken to the medical
college Lucknow. Seeing the injuries of the
deceased, he fell unconscious for 4-5
minutes. Thereafter he saw that Om
Prakash Yadav was lying there in an injured
state and the villagers and nearby plot
holders had also reached there. At the time
of
the
incident,
Suresh
resident
of
Anupkheda was ploughing his field there
with a tractor. He reached there with the
tractor by which Om Prakash Yadav was
taken to Kamlapur and from there he was
carried to Police Station Banthra by tempo.
Hearing the noise, they had reached on the
spot. Suresh had also reached on the spot
by tractor after the accused had left the
place of occurrence. The witness further
deposed that injured Om Prakash Yadav
was conscious till Kamlapur.

22. PW-6, Dr. Anil Kumar had
conducted autopsy of the dead body of the
deceased and had found following injuries:

External examination-

(a) Abrasion 2.5cm x 2.5cm on
the dorsum of the left wrist.

(b) Abrasion 3cm x 2cm on the
back part of left elbow.

(c) Multiple contusions on the left
arm and front of forearm in an area of 8cm
below the left shoulder.

(d) Multiple contusions on the
back of right arm in an area of 30cm x 8cm,
3cm below the right shoulder.

(e)
Multiple
abrasions
and
contusions in an area of 15cm x 10cm on
the right forearm, 8cm above the right hand
wrist bones were broken.

(f) Multiple contusions in an area
of 30cm x 25cm, 4cm below the neck, on
the upper portion of the back. In this injury
there was the biggest contusion in an area
of 12cm x 2.5cm and the lowest contusion
was in an area of 8cm x 2.5cm.

Internal Examinations-

23. On the left side, third and fourth
back ribs of the dead body were found to be
broken. There was half a litre of blood in
the left pleural cavity. Left pleural had also
10 All. Subhash Yadav & Ors. Vs. State of U.P.
79
been torn. Right pleural and lung were
intact and left lung towards the upper and
back sides had also been broken. According
to this witness, the deceased would have
died due to the above injuries and also due
to bleeding, shock and haemorrhage. This
witness has proved the postmortem report
Ex.Ka-2, and the related papers have also
been proved by this witness as Ex.Ka-3 to
Ex.Ka-10. The witness opined that these
injuries may occur from stick blows 12
hours prior to the postmortem. It could
have occurred at about 03:00 p.m. on
25.03.1997.

24. During the cross-examination, this
witness admitted that rigor mortis is
completed within 4-12 hours. He admitted
that it is also a method to ascertain the time
of death of a deceased.

25. PW-7, SI Rajendra Prasad
Kanaujia
has
deposed
that
he
had
completed the inquest, reaching Balrampur
Hospital Mortuary, Lucknow, he appointed
five witnesses for inquest. This witness has
proved the inquest report Ex.Ka-8 and has
also deposed that after completion of the
inquest, he sealed the dead body, prepared a
memo for postmortem and prepared a
specimen seal. The witness proved Ex.Ka3, Ex.Ka-4, Ex.Ka-6 and Ex.Ka-7 to be in
his hand writing and signature. The witness
admitted that in Ex.Ka-5, the crime number
has not been written, and after verifying the
crime number and sections through a
wireless set from Police Station Banthra,
the same was incorporated.

26. PW-8, SI SP Singh has deposed
that after lodging the FIR, the case was
entrusted to him for investigation. On the
same day he received the chick FIR and
kaymi GD, recorded the statements of the
informant, Sushil Kumar Yadav and Head
Constable (Head Moharrir), Jageshwar
Dayal. Thereafter he went to the place of
occurrence, and on the pointing of the
informant, he inspected the place of
occurrence and prepared site plan Ex.Ka-9,
took the blood stained and plain soil from
the place of occurrence and sealed them in
two separate boxes and prepared a
specimen seal and recorded the statements
of the witnesses of fard, Suresh, Gaya
Prasad, Raghunandan and raided the houses
of the accused persons but in vain. The
witness has proved the concerned recovery
memo Ex.Ka-10. This witness proved both
the boxes of plain soil and blood stained
soil as M.Ex.1 and M.Ex.2 and clothes
thereon as M.Ex-3 and M.Ex-4. Next day
on 26.03.1997, he again searched the
accused persons; recorded the statements of
witnesses Ram Narayan Yadav and Milap
Singh Yadav; same day he received a
parcha regarding surrender of the accused
in the court. On 04.04.1997, he recorded
the statement of SI Rajendra Prasad
Kanaujia, Constable Mohd. Raza and
witnesses to the inquest, Abdul Razzaq and
Abdul Sattar, Ram Dev Singh, Indra Pal,
Santram and Home Guard, Birendra Tiwari.

27. After getting permission from the
court, he recorded the statements of the
accused persons on 13.06.1997 in District
Jail, Lucknow and after finding sufficient
evidence against the accused persons, he
submitted
the
charge-sheet
Ex.Ka-11.
During the cross-examination, the witness
accepted that another name of the deceased
was Ram Prakash Yadav about which he
was not informed. He was known as Om
Prakash Yadav or Ram Prakash Yadav. This
witness admitted that he had not seen the
potato field of the witness Ram Narayan.
Ram Narayan did not state that at the time
of the incident he was digging potato but
had said that he was working on his plot.
80 INDIAN LAW REPORTS ALLAHABAD SERIES
The witnesses Ram Narayan and Ram
Milap stated that they heard commotion in
their farm. The witness further deposed that
when Om Prakash Yadav reached the police
station in the injured state, he was present
there. As he was unconscious, was sent to
the hospital for treatment. He had not
inspected the alleged tempo. He had
recorded the statement of Suresh Yadav, the
tractor owner, but had not inspected the
tractor. The witness further deposed that it
is true that on the injury letter, name of the
injured was written as Om Prakash Yadav
while concerned doctor has named the
deceased as Ram Prakash Yadav. The
witness admitted that he had not asked Ram
Narayan or Ram Milap regarding two
names of the deceased and had also not
contacted the hospital or the doctor in this
regard.

28. The witness admits that he has not
shown the distance between the places 'A'
and 'B' shown in the site plan and has also
not searched the towel used in tying the
feet of the deceased. Ram Narayan and
Ram Milap informed him that they had
untied the feet of the deceased. According
to him, the towel used in tying the feet was
not material, hence he did not search the
same. The witness further deposed that
since the accused persons could not be
arrested, sticks were not recovered on their
pointing. The accused persons had also not
stated about the sticks during their
statements. The witness further deposed
that when the deceased was carried to the
police station, the names of the persons
who accompanied the injured were not
written in the GD that they were Sushil
Kumar Yadav, Bhagwan Dev and Ram Dev.
The witness accepted that he had recorded
the statement of informant Sushil Kumar
Yadav at the police station. The witnesses,
Ram Narayan and Milap Singh had not
accompanied the injured to the police
station. The witness admits that he had not
recorded the statements of Bhagwan Dev
and Ram Dev when they came to the police
station with the injured and Dr. Anil Kumar
who had conducted the postmortem of the
deceased.

29. PW-9, Head Constable Jageshwar
Dayal has deposed that on 25.03.1997,
informant Sushil Kumar Yadav came to
him and produced a written complaint on
which basis he lodged the FIR at Crime
No.80 of 1997, under Sections 323, 504,
506, 308 IPC and had also prepared chik
FIR Ex.Ka-12 and proved it. He entered the
case in kaymi GD at Serial No.20 at about
10:45 a.m. The witness proved kaymi case
GD/carbon copy Ex.Ka-13.

30. In the cross-examination, this
witness deposed that at about 04:45 p.m.
Home Guard Birendra Kumar reported the
death of the injured on which basis the case
was converted into Section 304 IPC. Its
information was also given to the superior
officers. This witness admits that no special
report was forwarded to the District
Magistrate. There is no averment in GD
regarding the sending of the special report
for converting the case into Section 304
IPC though it must be sent immediately.
The witness further deposed that he had
seen the injuries sustained by Om Prakash
Yadav when he was brought to the police
station. This witness described the injuries
of Om Prakash Yadav.

31. The court summoned Suresh son
of Sheetla Prasad as CW-1 who has said to
have carried the injured from the place of
occurrence keeping him on his tractor. This
witness deposed that he had brought the
injured upto Anoop Kheda from where he
was carried by tempo. The witness denied
10 All. Subhash Yadav & Ors. Vs. State of U.P.
81
that the accused had beaten the injured with
sticks before him. The witness also denied
to be acquainted with the accused persons.
He also denied that his statement was
recorded by the IO under Section 161
CrPC.

32. In cross-examination, this witness
admitted that the injured, aged about 30
years was wearing a pathani suit and Gaya
Prasad and others were telling that the
injured was Om Prakash Yadav.

33. Mohan Lal son of late Gajraj
Singh resident of Noor Nagar Madarsa,
Police Station Banthra, Lucknow has been
examined as DW-1. This witness deposed
that he was the Pradhan of village Noor
Nagar. Om Prakash Yadav, the nephew of
Ram Narayan, is also called Mannu. Kaithi
Farm is about 11⁄2km away from the house
of Ram Narayan. At the time of the
incident, he was detained in Lucknow Jail.
He had heard about the incident from his
sons, Ajeet and Sher Bahadur. The
bungalow of Gaya Prasad is about 02kms
away from the plot of Ram Narayan. It will
take about half an hour to reach there. The
eye sight of Ram Narain is very weak; he
could hardly see one furlong away. The
witness admitted that he was brought by
Thakur Prasad, father of Shubhash Yadav.
The witness admitted that he is in jail for
17 years in connection with murder of
Pintu. According to this witness, he had
seen Ram Narayan going to the fields with
the help of a stick. At the time of the
incident, Ram Narayan was about 40-45
years old. The witness admitted that during
his imprisonment, the accused persons
were also with him in Lucknow Jail, and
sometimes they used to meet him.

(IV) This case is being decided as
under discussing following issues-

(i) FIR-

34. In this case the occurrence has
taken place on 25.03.1997 at 09:30 a.m.
and the FIR was lodged at 10:45 a.m. same
day at Police Station Banthra which was
11kms away from the place of occurrence.
Thus, it cannot be said that there was any
delay in lodging the FIR though later on
informant PW-3, Shushil Kumar has
become hostile and has not supported the
prosecution version in his statement on
oath but from the evidence of PW-9, HCP
Jageshwar Dayal it is fully proved that on
the date and time of lodging the FIR, the
informant PW-3, Sushil Kumar was present
at the concerned police station and had
lodged the FIR voluntarily. It has been
deposed by the informant that though he
had not accompanied the deceased for
going to Kaithi Farm but were going by bus
to Lucknow. He has also deposed that when
the bus stopped, it was about 09:30 a.m,
thereafter this witness has not supported the
prosecution version. Thus it cannot be said
that there is any anti-dating or anti-timing
in lodging the FIR.

(ii) Motive-

35. So far the motive behind the
commission of crime is concerned, it has
been mentioned in the FIR and the same
has also been proved from the evidence of
PW-4 and PW-5. These witnesses have
proved that prior to this incident, an
altercation between the deceased and
accused, Subhash Yadav had taken place in
tilak ceremony held at the house of Sriram
Madhav resident of Devi Khera. After this
incident his father was called by Subhash
Yadav who had threatened his father of dire
consequences and that he will cut the hands
and legs of the deceased and in the
consequent during commission of the crime
82 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased's both feet and hands were
separately tied with towel.

36. PW-5, Ram Narayan has also
proved the motive behind the crime that 15
days prior to this incident a scuffle had
taken place in the village between Harish
Chandra and his brother Veer Pal. Deceased
Om Prakash had also reached there and on
the request of Harish Chandra's wife he had
intervened in the matter and had said that
why a lady was being beaten in a fight
between two brothers upon which accused,
Subhash
Yadav
had
threatened
the
deceased. Another motive has been proved
by this witness that after the aforesaid
incident another altercation had taken place
between Subhash Yadav and deceased Om
Prakash in the tilak ceremony held at the
house of Sriram Madhav resident of Devi
Khera thereafter he was summoned by the
accused Subhash and he had threatened
him that he would ampute the legs of the
deceased. Thus, the motive behind the
crime has been proved beyond any doubt.

(iii) Place of occurrence-

37. So far as the place of occurrence
is concerned, it has been fully proved from
all the witnesses including the hostile
witness, PWs-1, 2 and 3 and CW-1. They
have not denied the place of occurrence. It
has also been proved from the evidence of
the PW-4, PW-5 and IO, PW-8 who has
prepared and proved the site plan Ex.Ka-9.

(iv) Inquest and postmortem report-

38. The inquest and the postmortem
report has been proved by the formal
witnesses which have been discussed
earlier. Chik FIR and carbon GD has also
been proved by PW-9, HCP, Jageshwar
Dayal. Thus, on the basis of above
discussion, it can be concluded that
where the facts of the case have been
proved beyond reasonable doubt from the
evidence
of PW-4 and
PW-5,
the
documentary evidences have also been
proved by the formal witnesses.

(v)
Evidentiary
value
of
the
evidence of hostile witnesses-

39. PW-1, Raghu Nandan has
become hostile and has not supported the
prosecution version but he has accepted
in his deposition that when his son
Sandeep Kumar informed regarding the
scuffle, he reached on the spot and saw
that a severely injured person was lying
there and another person was also
standing there. Seeing this he and the
villagers kept the injured on a tractor. The
person standing there also accompanied
the injured on the tractor. Thus, from the
evidence of this witness it has been
proved that on the date and time of the
place
of
occurrence
deceased,
Om
Prakash Yadav was severely beaten on the
spot and another person was also with
him who according to the prosecution
was the informant PW-3, Sushil Kumar.

40. PW-2, Gaya Prasad has also
given hostile statement and he had totally
denied that any occurrence had taken
place before him or the accused persons
had tied the feet of the deceased and had
beaten him by lathi. In the crossexamination by ADGC this witness has
accepted that IO had interrogated him
about the incident but he denied the
statement recorded under Section 161
CrPC though he has accepted that he is
'Yadav' by caste and the injured was also
'Yadav' by caste and this fact was stated by
the persons gathered on the spot. From the
evidence of this hostile witness place of
10 All. Subhash Yadav & Ors. Vs. State of U.P.
83
occurrence, injury to the deceased and the
fact that occurrence was seen by several
persons have been proved.

41. PW-3, informant, Sushil Kumar
has not supported the prosecution version
and has also been declared hostile but he
has accepted that the accused persons are
the residents of his village. Deceased was
also the resident of his village. This witness
has denied any scuffle between the accused
Subhash Yadav and deceased Om Prakash
Yadav in tilak ceremony held at the house
of Mishri Lal Yadav and has expressed
ignorance that accused Subhash Yadav had
threatened the deceased to kill him. He
accepted that on the date and time of
occurrence, he was with the deceased and
they were going to Lucknow but not to
Kaithi Farm. He has also accepted that the
bus had stopped at 09:30 a.m. but the
witness denied that accused persons had
taken off from the bus. He also denied that
the deceased was beaten by the accused or
he was caught hold by the accused Jang
Bahadur but this witness has accepted that
he had seen the deceased Om Prakash
Yadav in injured state and at that time he
was unconscious. Three-four persons had
taken the deceased to police station
wherefrom he was sent to hospital but in
the way he died. This witness has accepted
that he wrote the complaint at the police
station but stated that whatever was spoken
by the Sub-Inspector, was written by him.
This witness could not remember the name
of the Sub-Inspector who is said to have
dictated the FIR. Generally, the SubInspector bear their names on their
uniforms. If the FIR had been dictated by
any Sub-Inspector, his name would have
been in the knowledge of this witness.
Therefore, it is concluded that virtually the
FIR was written by this witness voluntarily
as he was the eye-witness and companion
of the deceased but due to terror or winning
over by the accused persons, this witness
has not deposed in favour of the
prosecution.

42. According to this Court, there was
natural narration of the incident in the
written complaint Ex.Ka-1 which cannot be
reduced in writing by any unknown person
like Sub-Inspector of the concerned police
station, therefore, this Court is of the
opinion that after being terrorised or won
over by the accused persons this witness
was denying the writing of the written
complaint voluntarily.

43. In Khujji @ Surendra Tiwari
Vs. State of MP, (1991) 3 SCC 627 the
witnesses including the informant had been
hostile. In such situation the Apex Court
held that merely because a witness has been
declared hostile, his entire evidence cannot
be treated as effaced from the record. His
testimony to the extent found reliable can
be acted upon.

44. During the cross-examination this
witness has accepted that he had heard the
cries of the incident. This witness has also
accepted that on reaching the spot, Suresh
Yadav had carried the deceased upto
Kamlapur and after that he was carried by
tempo.

45.