# Tejvir v. State of U.P

- **Citation:** (2023) 3 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-27
- **Case number:** Criminal Appeal No. 1387 of 2009
- **Bench:** Ashwani Kumar Mishra, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tejvir-v-state-of-u-p-49911
- **Pages:** 19

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Sections 147, 148 & 302/149 IPC - Arms
Act, 1959 - Section 25 - appellants
sentenced to life imprisonment- informant
is son of the deceased-father shot by
appellant- motive- avenging the defeat in
Gram
Pradhan
election-St.ments
of
witnesses of fact- Sections 161 and 162 of
CrPC- quality of evidence during trial-
establishment of motive- St.ment under
Section 164 CrPC- corroborative evidence-
important improvement in FIR version and
St.ment under Section 161 CrPC- such
evidence has no significance. (Paras 18,
19, 20, 21,23 and 24)

HELD: However, the motive acts as a doubleedged sword which cuts both ways. The motive
instigates a person to commit the offence as well
as it also drives a person to falsely implicate the
other person in a crime and it depends on the fact
and circumstances as well as quality of the
evidence adduced during trial as to what inference
is to be discerned on account of establishment of
motive in a criminal case. (Para 18)

This case is based on direct witness of
witnesses. Therefore, it is to be seen as to what
is the degree of reliability of their sworn
testimony before the Court in the light of their
previous St.ment recorded by the Investigating
Officer under Section 161 Cr.P.C. (Para 19)

Hon'ble Apex Court in the case of Dhanabal And
Anr vs St. Of Tamil Nadu, AIR 1980 SC 628, has
held that the St.ment under Section 164 Cr.P.C.
can be used as corroborative evidence. (Para
21)

Hon'ble Apex Court in Ram Briksh @ Jalim Vs St.
of Chhatisgarh, AIR 2016 SC 2381, Tomso Bruno
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
& anr. Vs St. of U.P., (2015) 7 SCC 178 (SC),
held that where the improvement was made by
the witness in his St.ment before the Court than
that what was made to the Investigating Officer
under Section 161 Cr.P.C. same could not be
relied on. In Vimal Suresh Kamble Vs Chaluvera
Pinake (2003) 3 SCC 175, Hon'ble Apex Court
held that the prosecution cannot seek to prove a
fact during trial through a witness, which such
witness
has
not
St.d
to
police
during
investigation. The evidence of that witness
regarding the said improved fact is of no
significance. (Para 24)

B. Section 25 of Arms Act- recovery of
country made pistol- pointing out of each
appellant-
disclosure
St.ment
under
Section 27 of the Indian Evidence Act- no
recovery from immediate possession after
arrest- FSL reports did not match- no
public witness of recovery- charges not
proved-
appellants
acquitted
of
all
charges- Appeal allowed. (Paras 30 to 33)

HELD: Similar is the position for charges under
Section 25 of Arms Act, with regard to the
present appellants which has also been tried by
learned trial court along with charge under
Section 147, 148, 302/149 IPC as the one
country-made pistol is said to have been
recovered from the pointing out of each of the
present appellants, which are said to have been
used in the commission of offence as per the
prosecution version on the basis of their
disclosure St.ment after their arrest under
Section 27 of Evidence Act in police custody.
(Para 30)

These firearms are not recovered from their
immediate possession after their arrest. One
firearm has been allegedly recovered from the
pointing out of the Pramod Kumar @ Pappu
after getting his police custody by the orders
of learned CJM. Out of three firearms, one
empty cartridge shell recovered near the
place of incident, is found to have been fired
by the firearm allegedly recovered from the
pointing out of accused Tejvir as per FSL
report. The other empty cartridge shell was
not found to be fired by any of the firearms
recovered on the pointing out of accused
persons. No public witness has been enjoined
in the recovery of these firearms alleged
recovered on the pointing out of the accused
persons
in
respect
of
their
presence.
Therefore, the recovery of firearms allegedly
used in the offence is also not proved in the
present
case
beyond
reasonable
doubt,
keeping in view the

## Text

_Characters 0–39,884 of 67,506. This is a partial read: ask again with offset=39884 for what follows._

3 All. Tejvir Vs. State of U.P.
1199
sentence before the court below. It is also
desirable that accused-appellants may be
directed to deposit Rs.5,000/- each as
compensation in this case within two
months. The amount of Rs. 5000/-
deposited by the each accused-appellants,
Rs.5,000/- shall be paid to injured having
received grievous injuries, namely, Janam
Singh, Sardar Singh and Lallu, or in case of
their death to their legal representatives.
The appellants-accused shall file the
aforesaid bonds and sureties and shall
deposit the compensation amount within
two months from the date of the judgment
in the court concerned as per law. In case
surety bonds and compensation is not
deposited, appellants shall have to undergo
the sentence awarded by the Trial Court.

43. Accordingly, this appeal is partly
allowed
regarding
sentences
of
the
appellants.

44. Let a certified copy of this order
along with record be sent to the court
concerned for compliance.
----------
(2023) 3 ILRA 1199
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1387 of 2009
With
Criminal Appeal No. 1648 of 2009
With
Criminal Appeal No. 1685 of 2009

Tejvir ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Virendra Singh, Sri Apul Misra, Sri
Kuldeep Singh Chahar, Sri R.S. Saroj, Sri
Sheshadri Trivedi, Sru Surendra Singh

Counsel for the Opposite Party:
G.A., Sri Mithilesh Kumar Shukla, Sri R.P.
Dwivedi, Sri Sheshadri Trivedi, Sri Avanish
Kumar Shukla

A. Criminal Law - Indian Penal Code, 1860
- Sections 147, 148 & 302/149 IPC - Arms
Act, 1959 - Section 25 - appellants
sentenced to life imprisonment- informant
is son of the deceased-father shot by
appellant- motive- avenging the defeat in
Gram
Pradhan
election-St.ments
of
witnesses of fact- Sections 161 and 162 of
CrPC- quality of evidence during trial-
establishment of motive- St.ment under
Section 164 CrPC- corroborative evidence-
important improvement in FIR version and
St.ment under Section 161 CrPC- such
evidence has no significance. (Paras 18,
19, 20, 21,23 and 24)

HELD: However, the motive acts as a doubleedged sword which cuts both ways. The motive
instigates a person to commit the offence as well
as it also drives a person to falsely implicate the
other person in a crime and it depends on the fact
and circumstances as well as quality of the
evidence adduced during trial as to what inference
is to be discerned on account of establishment of
motive in a criminal case. (Para 18)

This case is based on direct witness of
witnesses. Therefore, it is to be seen as to what
is the degree of reliability of their sworn
testimony before the Court in the light of their
previous St.ment recorded by the Investigating
Officer under Section 161 Cr.P.C. (Para 19)

Hon'ble Apex Court in the case of Dhanabal And
Anr vs St. Of Tamil Nadu, AIR 1980 SC 628, has
held that the St.ment under Section 164 Cr.P.C.
can be used as corroborative evidence. (Para
21)

Hon'ble Apex Court in Ram Briksh @ Jalim Vs St.
of Chhatisgarh, AIR 2016 SC 2381, Tomso Bruno
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
& anr. Vs St. of U.P., (2015) 7 SCC 178 (SC),
held that where the improvement was made by
the witness in his St.ment before the Court than
that what was made to the Investigating Officer
under Section 161 Cr.P.C. same could not be
relied on. In Vimal Suresh Kamble Vs Chaluvera
Pinake (2003) 3 SCC 175, Hon'ble Apex Court
held that the prosecution cannot seek to prove a
fact during trial through a witness, which such
witness
has
not
St.d
to
police
during
investigation. The evidence of that witness
regarding the said improved fact is of no
significance. (Para 24)

B. Section 25 of Arms Act- recovery of
country made pistol- pointing out of each
appellant-
disclosure
St.ment
under
Section 27 of the Indian Evidence Act- no
recovery from immediate possession after
arrest- FSL reports did not match- no
public witness of recovery- charges not
proved-
appellants
acquitted
of
all
charges- Appeal allowed. (Paras 30 to 33)

HELD: Similar is the position for charges under
Section 25 of Arms Act, with regard to the
present appellants which has also been tried by
learned trial court along with charge under
Section 147, 148, 302/149 IPC as the one
country-made pistol is said to have been
recovered from the pointing out of each of the
present appellants, which are said to have been
used in the commission of offence as per the
prosecution version on the basis of their
disclosure St.ment after their arrest under
Section 27 of Evidence Act in police custody.
(Para 30)

These firearms are not recovered from their
immediate possession after their arrest. One
firearm has been allegedly recovered from the
pointing out of the Pramod Kumar @ Pappu
after getting his police custody by the orders
of learned CJM. Out of three firearms, one
empty cartridge shell recovered near the
place of incident, is found to have been fired
by the firearm allegedly recovered from the
pointing out of accused Tejvir as per FSL
report. The other empty cartridge shell was
not found to be fired by any of the firearms
recovered on the pointing out of accused
persons. No public witness has been enjoined
in the recovery of these firearms alleged
recovered on the pointing out of the accused
persons
in
respect
of
their
presence.
Therefore, the recovery of firearms allegedly
used in the offence is also not proved in the
present
case
beyond
reasonable
doubt,
keeping in view the consideration, tenure and
nature of the evidence adduced during trial.
(Para 31)

In view of the discussions made above, we have
found that there is no cogent and reliable
evidence on record to prove the charges against
accused appellants, for which they have tried,
convicted and sentenced by learned trial Court.
The case of the prosecution with regard to
charges, for which the accused appellants are
tried and convicted by trial court are not found
to have been proved beyond reasonable doubt.
Therefore, we have no hesitation in allowing
these appeals. (Para 32)

Appeal allowed. (E-14)

List of Cases cited:

1. Hemraj Vs Rajaram, 2004 (1) CRIMES 317
(SC)

2. Gayasuddin Vs St. of Bihar, 2004 (1) CRIMES
90 (SC)

3. Dhananjay @ Shera Vs St. of Punj ., 2004 (2)
CRIMES 2 (SC)

4. A.K. Mansoori Vs St. of Guj., 2002 (2) SCJ 38

5. St. of Orisha Vs D. Naik, 2002 (2) CRIMES
286 (SC)

6. Girish Chandra Mahato, 2006 (1) CAR 125
(SC)

7. Mohd. Khalid Vs St. of W. B., 2002 (7) SCC
334

8. Prithvi Singh Vs Mamraj, 2004 (2) CRIMES
170 (SC)

9. Dhanabal & anr. Vs St. Of T. N., AIR 1980 SC
628

10. Ram Briksh @ Jalim Vs St. of Chhatisgarh,
AIR 2016 SC 2381
3 All. Tejvir Vs. State of U.P.
1201
11. Tomso Bruno & anr. Vs St. of U.P., (2015) 7
SCC 178 (SC)

12. In Vimal Suresh Kamble Vs Chaluvera Pinake
(2003) 3 SCC 175

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. These Criminal Appeals have been
preferred by the appellants against the
impugned judgment and order dated
6.2.2009 passed by the Additional District
and Sessions Judge, Firozabad, in S.T.
No.235/2006, arising out of Case Crime
No. 96 of 2005, under Sections 147, 148,
149, 307 and 302 IPC and in S.T. Nos.
235A/2006, 235B/2006 and 235C/2006
(State of U.P. Vs. Tejvir and 2 others),
arising out of Case Crime Nos.95 of 2005,
99 of 2005 and 9 of 2006, under Section 25
of Arms Act, Police Station Pachokhara,
District Firozabad, whereby the accusedappellants Tejvir, Hariom and Pramod
Kumar @ Pappu have been convicted
under Sections 147, 148, 302/149 IPC and
25 of Arms Act and sentenced them as
under:-

(I) Under Section 302/149 IPC
they have to undergo imprisonment for life,
with a fine of Rs.5,000/-each, with default
stipulation;

(II) Under Section 148 IPC, they
have to undergo one year imprisonment;
No sentence was awarded under Section
147 IPC as Section 148 is aggravated form
of offence of Section 147 IPC;

(III) Under Section 25 of Arms
Act, they have to undergo one year
imprisonment, with a fine of Rs.1,000/-
each with default stipulation in their
respective case. All the sentences are
directed to run concurrently.

2 . The main case under Section 147,
148, 307, 302 was registered vide Crime
No. 96 of 2005, Police Station Pachokhara,
District Firozabad, in which appellants and
co-accused
persons
were
named
as
accused. Other cases were registered under
Section 25 of Arms Act against each of the
appellants on the basis of recovery of
firearm allegedly used in the offence, on
their pointing out, and all the four cases
were tried together by learned trial Court.

3. Heard learned counsel for the
appellants, learned AGA for the State and
perused the material placed on record. The
appellants are held in jail custody as
convict.

4. The prosecution case is based on a
written report dated 11.11.2005 (Ex.Ka-1)
submitted by the PW-1 the informant
Vinod Kumar Dixit and son of deceased
Brahm Dutt Dixit. The informant Vinod
Kumar lodged the first information report
at Police Station Pachokhara (Tundla)
District Firozabad and Chik FIR was
registered by Constable Muharrir Hari
Nandan Singh, vide Crime No.96 of 2005,
under Sections 147, 148, 149, 307, 302 IPC
on 11.11.2005 at 12:05 hours. The chik FIR
is marked as Ex.Ka-3. In the FIR, it is
alleged that on 11.11.2005 at 9:30 hours,
deceased Brahm Dutt Dixit, who is father
of the informant, was moving towards
Pachokhara Paith (local village market)
riding his motorcycle bearing Registration
No.DL75R7268 and the informant was also
following him along with his cousin Neeraj
riding
over
his
motorcycle
bearing
Registration No. UP73J1326. On the way
to Pachokhara Paith from his native village
Chhikau, the informant noticed that a
Maruti Car was parked on the turn of
orchard of Prem Singh near Gadhi
Thakuran village and as soon as the father
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
of informant reached near the car, his covillagers Pramod @ Pappu and Tejvir, son
of Sardar Singh, Vikas s\o Pramod and
Hari Om Singh s\o Tejvir Singh and
brother-in-law of Yogesh (name not
known) disembarked from the Maruti car
and Pramod abused the deceased stating
that he had defeated him in Gram Pradhan
election and he will not spare him and kill
him and at that time accused Pramod,
Tejvir, Vikas and Brother-in-law of Yogesh
were armed with tamanchas (country made
pistols). They had surrounded the deceased
and before he could understand the matter,
Pramod opened the FIR by tamancha,
which he had taken in his hand. The fire
shot by Pramod hit him and he fell down in
the nearby field after walking some
distance.
Thereafter,
accused
persons
namely, Vikas, Tejvir and Hariom had
opened fire on him by their respective
firearms. The deceased got seriously
injured in the firing incident. The brotherin-law of Yogesh suddenly fired at
informant, however, from which he got
narrow escape. The witnesses Omprakash
and Rajpal, who were working in nearby
field, had seen the incident and came to the
place
of
occurrence.
On
arrival
of
witnesses, the accused persons fled away
from the place by their Maruti car. The
deceased Brahm Dutt Dixit was laid in a
tempo driven by Satya Prakash, a covillager
of
the
informant
and
was
transported up to Srinagar and from there,
he was shifted in a car, which belonged to
some person from market (Paith) and they
took him to Kamayani Hosptal of Agra,
where he was declared dead. No treatment
could be given to him in the hospital. The
informant brought back the dead body and
lodged the FIR at police station concerned
on same date. After registration of the FIR,
the Investigating Officer recovered two
empty cartridges from two places near the
place of incident and prepared its recovery
memo (Ex.Ka-12) in presence of witnesses
Nand Kishore and Virendra Kumar. On the
same
day,
the
Investigating
Officer
collected the plain and blood stained soil
from the field, where the deceased fell
down after receiving injuries and prepared
recovery memo in presence of some
witnesses which is marked as Ex.Ka-11.
The inquest on the dead body of the
deceased was conducted by the first
Investigating Officer- S.I. Ramendra Pal
Singh (PW-5) on the date of incident
between 12:50 to 13:50 hours and inquest
report was prepared by him which is
Ex.Ka-5. The dead body was sent for post
mortem in order to ascertain the real cause
of death of deceased by the Officer who
conducted inquest alongwith police papers
and post mortem on the dead body of the
deceased was conducted on the date of
incident at 10:10 P.M. In post mortem
report, cause of death was found by the
Doctor
due
to
coma,
shock
and
hemorrhage, as a result of antemortem
injuries. The post mortem report is marked
as Ex.Ka-2. During investigation, accused
Tejvir Singh was arrested on 14.11.2005 by
S.O. Krishna Baldeo and his colleagues and
at 10:00 A.M. on his pointing out a country
made pistol of 0.315 bore used in the
offence of murder of deceased Brahm Dutt
Dixit was recovered, which is marked as
Ex.Ka-13. Another accused Hariom was
arrested by police on 21.11.2005 at 10:30
hours and a country made pistol of 0.315
bore was recovered at 10:05 hours on his
pointing out, which was used in the
offence. The recovery memo is marked as
Ex.Ka-14 and on 21.1.2006, S.O. and his
team, during police custody remand of
accused Pramod Kumar @ Pappu ordered
by the CJM concerned, a country made
pistol used in the offence was recovered on
his pointing out at 17:40 hours and
3 All. Tejvir Vs. State of U.P.
1203
recovery memo thereof is marked as
Ex.Ka17.
The
Investigating
Officer
prepared site plan of the place of incident,
where deceased was shot by accused
persons, at the instance of the informant,
which is marked as Ex.Ka-10. The
Investigating Officer, who investigated the
cases of Arms Act to accused persons
separately had also prepared the site plan
for offence of recovery of firearm, which
are marked as Ex.Ka-20 in respect of
accused Pramod Kumar @ Pappu and
Ex.Ka-27 in respect of accused Hariom.
The Investigating Officer produced the
firearms recovered at the pointing out of
the accused persons before the District
Magistrate and obtained his sanction order
under Section 39 of Arms Act for
prosecution of three accused persons under
Section 25 Arms Act, which are placed on
record as Ex.Ka-21, Ka-23 and Ka-28 in
respect of Tejvir, Pramod @ Pappu and
Hariom, respectively. During investigation,
one accused, who is shown in FIR as
brother-in-law of Yogesh was not traced
and one named accused Vikas was declared
juvenile and after filing of charge-sheet his
case was separated and referred to Juvenile
Court. Chargesheet was filed against
accused Tejvir, Pramod and Hariom, after
investigation, by the police after arriving at
a finding regarding their complicity in the
offence. The Investigating Officer sent the
wearing apparels of the deceased worn by
him at the time of incident, along with
blood stained and plain soil recovered from
the place of incident and the countrymade
pistols, two empty cartridges recovered
from the spot and a disfigured bullet
recovered from the brain area of deceased
during his post mortem examination for
expert examination to FSL, Agra. One
empty cartridge was found to be fired by
the countrymade pistol allegedly recovered
from the possession of accused Tejvir and
in chemical examination report of blood
stained soil, human blood was found
therein. The fouling matter lead, copper
and nitrate were found from the barrel of
countrymade pistols sent for ballistic
examination.

5. Learned Chief Judicial Magistrate,
Firozabad committed the case for trial to
Court of Sessions as the same was
exclusively triable by the Court of Session.
The accused persons were not released on
bail during investigation and trial and they
faced the trial as under trial prisoner.

6. The accused persons Tejvir,
Hariom and Pramod Kumar @ Pappu were
charged by Court below in S.T. No. 235
2006 under Sections 147, 148, 149,
302/149, 307/149 IPC and in Connected
S.T. Nos. 235A/2006, 235B/2006 and
235C/2006, the accused persons namely,
Tejvir, Pramod Kumar @ Pappu and
Hariom were charged under Section 25 of
Arms Act, respectively.

7. During the course of trial,
prosecution examined as many as 14
witnesses in support of its case. PW1-
Vinod Kumar Dixit is the informant and
son of the deceased, who has been
produced as eye-witness, PW-2 Rajpal
Singh is produced as an independent
witness, was present in the locality, when
the incident of murder took place, PW3
Neeraj is also examined as eye-witness,
who is cousin of informant, PW-4 Dr.R.K.
Garg is author of the postmortem report,
who has proved the postmortem report as
Ex.Ka-2. He also proved the wearing
apparels and articles worn by the deceased
at the time of incident during his
examination as Material Ex.1 to 12, PW-5-
Head Constable Dharampal has proved the
chik FIR and entries of G.D. regarding
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
registration of case under Sections 302,
307, 147, 148, 149 IPC as Ka-3 and Ex.Ka4 as at police station concerned on
11.11.2005 at 12:05 hours and ravangi and
returning of G.D. entries of S.O. on the
date of incident by his evidence during trial
as Ex.Kha-1 and Kha-4. PW-6 Rajendra
Pal Singh, retired Sub Inspector is
produced as Investigating Officer of the
case under Section 302 IPC and has proved
the inquest report as Ex.Ka-5, police papers
sent alongwith dead body for postmortem
as Ex.Ka-6 to Ka-9, site plan of the place of
incident as Ka-10, recovery memo of two
empty cartridges and blood stained and
plain soil as Ex.Ka-11, Ka-12 as well as
recovery memo of a countrymade pistol
from accused Tejvir as Ex.Ka-13 and
recovery memo of a countrymade pistol
from accused Hariom as Ex.Ka-14. PW-7
S.O. Krishna Baldeo the second I.O.
proved the statements of accused persons
leading to recovery and recovery memo of
firearm recovered at the pointing out of
accused Pramod Kumar @ Pappu as
Ex.Ka-17. PW-8- S.I. Suresh Chand was
Investigating Officer of Crime No. 97 of
2005, State vs. Tejvir, under Section 25
Arms
Act,
proved
the
investigation
proceeding, site plan of said case as Ex.Ka20. PW-9 HCP (Rtd) Kripal Singh has
proved
the
remaining
investigation
proceeding in the case No.97 of 2005
against accused Tejvir Singh chargesheet in
the case as Ex.Ka21. PW-1-0 HCP Badan
Singh
has
proved
the
investigation
proceeding, site plan, prosecution sanction
and filed under Crime No.9 of 2006,
against Pramod @ Pappu Singh as
Ex.Ka22, 23 and 24. PW-11- Constable
Clerk Harinandan Singh has proved chik
FIR of Case Crime No.97 of 2005, under
Section 25 Arms Act and G.D. entries
thereof as Ex.Ka-25, Ka-26. PW-12 S.I.
Pratap Singh Solanki is a witness of
recovery of firearm from accused Tejvir
and Investigating Officer of Case Crime
No.99 of 2005, under Section 25 Arms Act
(State vs. Hariom) and he has proved the
recovery of a countrymade pistol from
accused Tejvir during investigation as
material exhibit as well as site plan,
prosecution sanction and chargesheet filed
against accused Hariom in the Case Crime
No. 99 of 2005, under Section 25 Arms Act
as Ex.Ka-27, 28, 29 being Investigating
Officer. He has also produced pistol
recovered in Crime No.97 of 2005 as
material exhibit. PW-13 Constable Rajveer
Singh has proved chik FIR of Crime No.99
of 2005, under Section 25 Arms Act and
G.D. entries thereof as Ex.Ka-30 and Ka-31
as its author. PW-14 Constable Ranveer
Singh has proved the chik FIR of Crime
No.9 of 2006, under Section 25 Arms Act
and G.D. entries thereof as its author and
same were exhibited as Ex.Ka-32 and Ka33, during his evidence. PW-7 also
produced the firearm recovered at pointing
out of accused Pramod Kumar @ Pappu as
ME.15 and clothing and slip as ME.16 and
17. He proved site plan of pistol recovery
place as Ex.Ka-18 and charge-sheet in
murder case as Ex.Ka-19.

8. The prosecution has examined
three witnesses of fact in support of its
case. The case is based on direct evidence
of alleged eye-witness PW-1 Vinod Kumar
Dixit, who is informant and son of
deceased and has supported FIR version in
his statement being author of the written
report Ex.Ka-1 on the basis of which FIR
has been lodged in the murder case. It is
stated that on 11.11.2005 at around 9:00
A.M. his father was going towards
Pachokhara Paith from his native village
Chhikau by his Hero Honda motorcycle
whereas he and his cousin Neeraj (PW-2)
were also going towards Pachokhara Paith
3 All. Tejvir Vs. State of U.P.
1205
by another motorcycle. As soon as his
father reached near Orchard of Prem Singh,
which situated on the way, a Maruti car
was found to be parked on the road, the
accused Pramod @ Pappu, Tejvir, Hariom,
Vikas and one unknown person, who was
residing at the residence of accused persons
at that time, got down from the car and
Pramod @ Pappu abused his father and
stated that he had defeated him in Gram
Pradhan election and today he will not be
spared and killed. All the accused persons
were armed with tamancha and first of all
accused Pramod @ Pappu shot at his father
by his tamancha which hit him and he fell
down in the field lying in the corner of the
road. Thereafter, four accused persons fired
shots at him by their respective firearms
indiscriminately. The witness cried for help
but in the meanwhile the fifth person,
whose name is not known, shot at him and
his cousin with intention to kill, in which
they got narrow escape. The incident was
seen by Omprakash and Rajpal, witnesses
who are residents of Gadhi Takhuran, who
were working in their field. Many persons
also appeared on the spot apart from these
witnesses. The accused persons ran towards
Pachokhara by their car. His co-villager
Satyapal reached on the spot taking his
auto-rickshaw, in which his father was laid
in the injured position and driven towards
Srinagar Paith (market) and from there, he
was shifted to a vehicle of the people of
Paith and transported to Kamayani Hospital
Agra, where he was declared dead.
Thereafter, they came back with dead body
of his father and laid the dead body in front
of petrol pump at Pachokhara and dictated
the written report to his cousin Ram Naresh
Dixit and filed it at police station
Pachokhara, on the basis of which, FIR was
lodged. The witness verified his signature
on written report, which was exhibited as
Ex.Ka-1 during his statement. In crossexamination, the witness stated that the
accused are his co-villagers and for that
reason, the witness and accused persons are
known to localites. His father started for
Pachokhara Paith at around 9:20 A.M. from
home. He was wearing slippers (chappals)
in his feet. The place of incident lies one
kilometer away from his home. It takes 2 to
3 minutes to reach the place of incident
from his home. There are many turns in
between his home and the place of incident.
When he reached at the place of occurrence
he saw his father sitting on his motorcycle,
which was in start position. After receiving
a shot, he fell down from the motorcycle
and ran few steps after getting up and fell
down in the adjoining field. He had pointed
out
the
place
of
incident
to
the
Investigating
Officer.
He
has
been
produced from jail for recording of his
statement in this case as he was held in jail
custody in a criminal case under Section
307 IPC and out of two cases, one case was
lodged at the instance of Devaki Nandan
and the other by Godan Singh. In case
lodged by Godan Singh, his cousin Neeraj
is also accused along with co-accused. The
accused persons were not masked at the
time of incident. His father had not told
him the purpose for which he was going to
Paith (local market), when he started from
home. The Paith was held on every Friday.
His father moved 2 to 3 minutes before him
from the home. When Pramod shot at him
his father was sitting on motorcycle and
Pramod was standing. No blood stain was
found by the Investigating Officer on road
but it was found in the field because his
father fell down he is not aware as to who
took the motorcycle of his father and his
and brought it back to home after the
incident. At the time of spot inspection by
Investigating Officer, motorcycles were not
there. He also had not found the slippers
(chappals) of his father worn by him in his
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
feet. The witnesses were not present at the
time of preparation of site plan. No field of
Rajpal lies near the place of incident.
Rajpal works at the place of Omprakash.
He could not disclose the name of brotherin-law of Yogesh, who was residing at his
place two months prior to the incident. He
is not in a position to disclose the number
of Maruti car used in the offence. It was
seen for two months at the place of accused
persons prior to the incident. It was white
colored Maruti 800 and no number plate
was displayed thereon. The field in which
his father fell down was cultivated. The
Investigating
Officer
collected
blood
stained soil from the field. No bullet or
pellets were found by him in his presence.
The accused persons shot at his father,
when his father fell down in the field. The
barrels of their pistols were 2:5 feet away
from him. His father received no treatment
at Kamayani Hosptial and he was declared
'dead' by the doctor as soon as he got
inside. The Investigating Officer has
recorded his statement at the place of
incident on the same day.

9. PW-2 Rajpal Singh also supported
the FIR version and statement of PW-1, in
his sworn testimony and stated that at the
time of incident, he and Pandit Omprakash
had gone to work in the field of potato in
Gadhi Thakuran. They had seen the white
colored Maruti car which came towards
Chhikau at around 9:00 A.M. and was
parked by the side of Orchard of Prem
Singh. The deceased Brahm Dutt Dixit
came towards Chhikau at the same time by
motorcycle and his son and nephew Neearj
were also going by their motorcycle behind
him. The accused persons disembarked
from the car as soon as they noticed the
deceased and Pappu fired first shot by his
pistol (tamancha) at deceased who fell
down and again ran but fell down in the
field of Thakur Bachhu Singh, thereafter,
the accused persons fired at him by their
respective weapons with intention to kill.
The deceased had received three shots of
bullets and unknown person fired a shot on
witness Vinod, in which he got narrow
escape. The mother of accused Pramod @
Pappu stood as a candidate in Gram
Pradhan Election in which deceased Brahm
Dutt Dixit was elected and to take revenge
of the defeat, the accused persons had done
away the deceased, who was Gram Pradhan
at that time. In cross-examination, the
witness has stated that he is resident of
Village- Chaturpurawhich is 1-1/4 kms. far
from the place of incident. This is not true
to say that the place of incident is not
visible from the field of Omprakash. In fact
the field of Omprakash lies southwards to
the road whereas the Orchard of Prem
Singh and temple are towards the west of
the road. First shot was fired by Pramod @
Pappu and the deceased fell down and
again arose and ran but fell down in the
field. The accused persons fired at him
when he fell down in the field of Bachchu
Singh. He is not taken the slippers
(chappals) worn by the deceased.

10. PW-3 Neeraj is nephew of the
deceased who has stated that at the time of
incident he was pillion rider of motorcycle
driven by his cousin Vinod who is son of
the deceased and he had witnessed the
incident. He has also supported the
FIR/prosecution version in his sworn
testimony and has stated that election of
Gram Pradhan was conducted in the year
2005, in which Vaijanti Devi, the mother of
accused Pramod @ Pappu had also stood as
a candidate. Pramod @ Pappu has also
filled
his
candidature
as
a
dummy
candidate but deceased won that election,
which was the reason of his murder. The
first shot was fired by Pramod @ Pappu
3 All. Tejvir Vs. State of U.P.
1207
and when he fell down in the field, Hariom,
Vikas and Tejvir had fired at him. After
receiving first shot he ran 4 to 5 steps and
fell down in the field. He is not apprised of
the number of Maruti car by which accused
persons had reached on the spot. The
witnesses had brought the deceased in the
injured condition from the place of incident
laying him in a auto-rickshaw of his covillager Satya Prakash to Pachokhara Paith
and thereafter took him to Kamayani
Hospital, Agra by car of some person of
Paith.

11. The incriminating circumstances
appearing from the prosecution evidence
were put to the accused appellants while
recording their statements under Section 313
Cr.P.C., who claimed that they are innocent
and not guilty. They also stated that the false
evidence has been adduced against them by
prosecution witnesses. False FIR was lodged
against them. Investigating was not fair and
impartial. The evidence regarding their
complicity and murder of deceased is false.
The defence, however, tendered no evidence
in defence. Their defence is that of denial.

12. The postmortem report of the
deceased Brahm Dutt Dixit has been
authored by Dr. R.K. Garg, who was
examined as PW-4 during trial and he stated
that he has conducted the postmortem on the
body of the deceased on 11.11.2005 at 10:10
P.M. with permission of Incharge- District
Magistrate and CMO- Firozabad. Deceased
was aged about 68 years old. He compared
the specimen seal with the seal affixed on
clothes by which the dead body was wrapped
and found it intact. At the time of postmortem
examination following ante mortem injuries
were found on his person:

(1) firearm wound of entry of size
2.5cm X 1.5cm cranial cavity deep on right
side, back of head, 3cm behind left ear,
margins
are
inverted
and
lacerated,
blackening and tattooing present;

(2) firearm wound of entry of size
2cm X1.5cm X chest cavity deep on left
side of chest, 14cm below and lateral to left
nipple at 5'O clock position, margins are
inverted and lacerated, blackening and
tattooing present;

(3) firearm wound of exit of size
3.5cm X 2.5cm on back of chest, which
was communicating to injury No.2. This
injury was lying on back of chest
downwards and on spinal cord, margins
were averted and lacerated;

(4) firearm wound of entry of size
1.5cm X 1.5 cm on left side of chest and
abdominal cavity deep at outer space over
the costa border, margins were inverted and
lacerated, blackening and tattooing present;

(5) firearm wound of exit 2.5cm
X 2.0cm into abdominal cavity deep and
chest cavity deep on right side of outer
aspect of lower part of chest and above left
costa border, margins are averted and
lacerated; This injury was communicating
to injury No.4.

(6) abrasion of 6cm X 3.5cm on
lower part of right knee.

13. In the opinion of Doctor, the death
of deceased was due to coma, shock and
hemorrhage
as
a
result
of
above
antemortem injuries, as described. It is also
stated in the postmortem report (Ex.Ka-2)
that the time of death was of half day back
and one metallic piece of bullet was
recovered from the cranial cavity. Rigermortis was present in both lower and upper
extremities. In internal examination, the
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
temporal and occipital bones of skull were
found fractured. T8 to T10 vertebra of neck
were fractured. Spinal cord was fractured.
Small intestine was lacerated and semi
digested food was present. Large intestine
was lacerated and faecal matter was
present. The Doctor proved the clothes and
belongings removed from the dead body at
the time of postmortem as material Ex.1 to
12 during his examination as PW-4.

14. Learned counsel for the appellants
submitted that prosecution examined three
witnesses of fact, out of whom PW-1
Vinod Kumar Dixit is son of the deceased,
PW-2 Rajpal Singh has been examined as
independent and eye-witness and PW-3
Neeraj has also been examined as eyewitness, who is nephew of the deceased.
The public witnesses of recovery of empty
cartridge shells and blood stained soil were
not examined by prosecution during trial,
which casts doubt on the factum of
recovery of empty cartridge shells and
blood stained soil. The state of firearm
injuries found on the person of the
deceased in postmortem report is not in
consonance with the eye-witness account,
which casts doubt on trajectory of firearm
shots stated in eye-witness account of the
incident given by PW-1, PW-2 and PW-3.
The nature of injuries are to be considered
minutely along with the way in which they
are alleged to be caused to the deceased as
per the deposition of the witnesses but
same is not found in the present case. To
appreciate the nature of injuries, it is
necessary to appreciate minutely the
statement of PW-4 Dr. R.K. Garg, who
conducted the postmortem examination on
the dead body of the deceased. Further, the
postmortem examination report proved by
PW-4 has to be minutely appreciated along
with the description of the injuries made in
the deposition. It is also necessary to
estimate as to how the gunshots would have
been caused to the deceased and the actual
seriatim, in which the injuries would have
been caused to the deceased. He further
submitted that the dead body of the
deceased was not brought to the police
station concerned by the informant and
witnesses from Agra but was kept on the
road near the petrol pump situated opposite
a school. This conduct of the witnesses also
creates a good deal of doubt about their
presence on the spot when the incident
occurred. He next submitted that on
appreciation of witnesses of fact, there is a
great deal of contradictions therein, which
clearly establish the fact that they had in
fact not seen the incident and they appeared
on the spot after the occurrence. The eyewitnesses propounded by the prosecution
are infact not eye-witness. Deceased might
have been killed by some other unknown
miscreants and due to rivalry and animosity
prevailed during Gram Pradhan election,
the accused persons were falsely named.
The Maruti car, in which accused persons
are said to have appeared at the time of
incident and seen on the place of incident
by the witnesses could not be traced during
investigation. Even the slippers (chappals)
worn by the deceased were not found or
recovered by the Investigating Officer or
witnesses from the place of incident. He
further submitted that the Investigating
Officer said to have conducted the local
inspection of place of occurrence in the
evening of the date of incident on pointing
out of the informant (PW-1) but the
motorcycles of the deceased and witness
could not be found there and the witness
could not explain as to who and when
brought them to his house after the
incident. Lastly, he submitted that it was
not physically possible for the deceased to
run or walk few paces after receiving
gunshot injury on his head, keeping in view
3 All. Tejvir Vs. State of U.P.
1209
the enormity of his head injury allegedly
caused by gunshot. Thus, the statement of
witnesses on this point is also not possible
or believable. PW-2 Rajpal is said to have
working in nearby field alongwith Om
Prakash and is made eye-witness on that
count but from his evidence itself no such
field could be located nearby the place of
incident. In site plan also, the field where
witnesses Om Prakash and Rajpal are said
to have been working has not been
indicated by the Investigating Officer in
site plan. Thus, his presence on the spot is
also highly doubtful. The appellants are
languishing in jail for more than 17 years.

15. Per contra, learned AGA
submitted that this is a case based on direct
evidence and eye-witness account of the
witnesses. The occurrence took place in the
day light and minor discrepancies and
contradictions pointed out in the crossexamination of witnesses cannot be taken
as a ground to disbelieve their testimony.
There is no factual or legal error in
impugned judgment passed by the learned
trial Court in appreciation of evidence and
same is liable to be affirmed in present
appeal.

16. A perusal of impugned judgment
of learned trial court, which is under
challenge in present appeal, reveals that the
learned Additional Sessions Judge has
observed therein that it is true that
investigation was defective in some respect
such as motorcycles, which was being
ridden by the deceased and the other ridden
by PW-3 and informant and slippers
(chappals) worn by the deceased at the time
of incident were not recovered. These
things were not searched out by the
Investigating Officer during investigation.
The tempo, on which the deceased was laid
firstly from the place of incident, was not
inspected by the Investigating Officer. He
also did not inspect the car through which
the deceased was sent to Kamayani
Hospital, Agra. He did not indicate the
place the in site plan from where the
witnesses had seen the occurrence. He did
not show the agricultural field of the named
witness Omprakash and he did not collect
blood stained clothes of witnesses. He also
failed to locate the Maruti car used by the
accused persons in the offence but in view
of all these factors which are components
of defective investigation, the prosecution
case cannot be treated as doubtful, if the
same has been otherwise proved by the
prosecution.
He
cited
Hemraj
vs.
Rajaram, 2004 (1) CRIMES 317 (SC),
Gayasuddin vs. State of Bihar, 2004 (1)
CRIMES 90 (SC), Dhananjay @ Shera
vs. State of Punjab, 2004 (2) CRIMES 2
(SC), A.K. Mansoori vs. State of
Gujarat, 2002 (2) SCJ 38, State of Orisha
vs. D. Naik, 2002 (2) CRIMES 286 (SC)
in support of his finding.

17. Learned trial judge also observed
that the prosecution case cannot be doubted
due to the fact that informant Vinod Kumar
Dixit has stated in his written report as well
as in his sworn testimony before the Court
as PW-1 that 5th accused, who is not
named in the FIR who was known as
brother-in-law (sala) of the co-villager
Yogesh, could not be traced during
investigation and the allegation of opening
of FIR by said 5th accused at PW-1 Vinod
Kumar Dixit with intention to kill could not
be proved and the accused persons were
acquitted of the charge under Section
307/149 IPC, accordingly. As prosecution
case has been proved by eye-witness
account given by the witnesses of fact and
same has been corroborated by the
evidence of Dr. R.K. Garg, who conducted
post mortem examination on dead body of
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased. Therefore, if there is any
difference in ballistic experts report and
eye-witnesses account that will also not
result in affecting the reliability of
prosecution case. The motive entrusted by
prosecution has been duly proved in
evidence although the same is treated as
double edged sword which cuts both way
and accused persons can be falsely
implicated on account of motive as well as
motive also acts as a motivational factor on
the part of the accused persons to commit
the offence. Therefore, on the basis of eyewitness account of prosecution witnesses
and medical evidence, this fact is proved
without any doubt that the accused are the
persons who are author of the crime and
defence case that the accused persons were
falsely implicated in the case on the
account of enmity of Gram Pradhan
election has got no force. The prosecution
case can also not be disbelieved on account
of the fact that in present case FIR was not
sent to jurisdictional Magistrate promptly
as provided under Section 157 Cr.P.C.