# Ujagar & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Criminal Appeal No. 5696 of 2022
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ujagar-ors-v-state-of-u-p-52097
- **Pages:** 18

## Headnote

Criminal Law-Indian Penal Code-1860Section-302-Criminal
appeal
against
the
judgement
and
order
whereby
the
accused/appellants have been convicted under
Section 302 I.P.C. and sentenced to life
imprisonment- Evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution- The deposition of all the
witnesses of fact reveal that prosecution has
failed to prove by any cognate and credible
evidence the last seen part of the prosecution
case- that none of the prosecution witnesses has
proved the fact that they have seen appellants
calling and taking away the deceased from his
house, the very genesis of prosecution case has
not been proved, which destroyed the very
edifice of the prosecution case- deceased was
last seen with the appellants has also not been
proved- there is no prosecution witness who has
seen appellant killing the deceased-No specific
role attributed to any of the appellants in
authoring the crime- No weapon of assault has
been recovered from any of the appellants or on
his pointing.

The deceased was murdered in a barbarous and
ruthless
manner,
but
mere
heinous
and
gruesome crime is not enough to punish
appellant. Suspicion howsoever, strong it may
be, cannot take place of legal proof- Prosecution
has completely failed to establish such a chain of
circumstantial evidence as would fasten the guilt
of the accused/ appellants leaving no room of
reasonable doubt-Result- Accused appellants are
acquitted of all the charge.

Appeal allowed. (E-15)

List of Cases referred-;

## Text

_Characters 0–39,972 of 63,874. This is a partial read: ask again with offset=39972 for what follows._

5 All. Ujagar & Ors. Vs. State of U.P.
289
----------
(2024) 5 ILRA 289
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5696 of 2022

Ujagar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Rajeev Upadhyay, Vikas Singh

Counsel for the Respondent:
G.A., G.P. Singh

Criminal Law-Indian Penal Code-1860Section-302-Criminal
appeal
against
the
judgement
and
order
whereby
the
accused/appellants have been convicted under
Section 302 I.P.C. and sentenced to life
imprisonment- Evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution- The deposition of all the
witnesses of fact reveal that prosecution has
failed to prove by any cognate and credible
evidence the last seen part of the prosecution
case- that none of the prosecution witnesses has
proved the fact that they have seen appellants
calling and taking away the deceased from his
house, the very genesis of prosecution case has
not been proved, which destroyed the very
edifice of the prosecution case- deceased was
last seen with the appellants has also not been
proved- there is no prosecution witness who has
seen appellant killing the deceased-No specific
role attributed to any of the appellants in
authoring the crime- No weapon of assault has
been recovered from any of the appellants or on
his pointing.

The deceased was murdered in a barbarous and
ruthless
manner,
but
mere
heinous
and
gruesome crime is not enough to punish
appellant. Suspicion howsoever, strong it may
be, cannot take place of legal proof- Prosecution
has completely failed to establish such a chain of
circumstantial evidence as would fasten the guilt
of the accused/ appellants leaving no room of
reasonable doubt-Result- Accused appellants are
acquitted of all the charge.

Appeal allowed. (E-15)

List of Cases referred-;

1. Dalip Singh & ors. Vs St. of Pun., AIR 1953
SC 364

2. Piara Singh Vs St. of Pun. (1977) 4 SCC 452

3. Kamta Yadav Vs St. of Bihar (2016) 16 SCC
164

4. Nand Kumar Vs St. of Chhatisgarh (2015) 1
SCC 776

5. Hari Obula Reddy V/s St. of A.P. (1981) 3
SCC 675

6. S. Sudershan Reddy & ors. Vs St. of A.P.
(2006) 10 SCC 163

7. Sharad Birdhi Chand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. The instant criminal appeal is
directed against the judgment and order
dated 24.05.2022, passed by the learned
Additional Sessions Judge, Court No. 14,
Bareilly, in Sessions Trial No. 1018 of 2012,
arising out of case crime no. 242 of 2012
(State Vs. Ujagar and others), whereby each
of the accused / appellant namely, Ujagar,
Ram Prasad and Kalyan have been
convicted under Section 302 I.P.C. and
sentenced to life imprisonment and fine of
Rs. 20,000/- and in default each of them had
to serve additional simple imprisonment of
six months.
290 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The prosecution case proceeded on
the basis of an application, under Section
156 (3) Cr.P.C. (Ext. Ka-1), moved by the
first informant Roop Lal (PW- 1), Resident
of village Bilauwa P.S. Faridpur, District-
Bareilly, in the court of CJM, Bareilly,
alleging therein that on 08.10.2011 at about
5.00 p.m. his co-villagers Ujagar, Kalyan
and Ram Prashad called his son Rukampal
from the house and took him away. At that
time, his mother Smt. Bhagga and sister
Kalawati were at the house. These people
had stated that Rukampal is being taken for
some work. Rukampal did not return to the
house in the night. On 09.10.2011 in the
morning he and other family members went
to the house of Ujagar, Kalyan and Ram
Prashad to inquire the whereabouts and
location of Rukampal, but they did not give
any satisfactory answer and equivocated.
They queried/ inquired from co-villagers
also. Thereafter at about 12.00 P.M. he was
informed by the villagers that dead body of
Rukampal is lying near Mulberry tree
(Shahtoot) near village Nagariya. They
rushed at the spot and identified the dead
body of Rukampal, there were many injuries
on his body. He (PW-1) immediately
informed the Police Station, Faridpur. He
(PW-1) was illiterate, police did not register
his report. However, police launched inquest
proceedings on 9.10.2011 at about 8.00 p.m.
Inquest report is on record as Ext Ka- 11 and
sent the corpse for autopsy. The post
mortem was conducted on 10.10.2011 at
2.30 p.m. by Dr. S.C. Sundriyal (PW- 3).
Duly proved, PMR is on record as Ext. Ka2.

3. Neither report of the informant was
written, nor any action was taken by the
police, against the accused persons. Hence,
he gave an application to the Police Station
Faridpur, Superintendent of Police (Rural)
and Senior Superintendent of Police,
Bareilly, but all in vain, no action was taken
against the accused persons. The accused
were roving around saying that Rukum Pal
had opposed Ujagar in Pardhani elections,
hence they killed him. On 08.10.2011
Kamlesh s/o Pothiram and Smt. Prema w/o
Ganga Ram, had seen Rukampal with the
accused
persons.
During
conversation
accused persons disclosed Prema that they
had done Rukampal to death. Thus these
accused have murdered his son Rukampal.

4. In view of the above, complainant
Roop Lal moved an application (Ext Ka-1)
under
Section
156(3)
Cr.P.C.
for
investigation of the matter, before the Chief
Judicial Magistrate, Bareilly on 8.11.2011,
Consequently, on the basis of the order
passed on this application, FIR was
registered on 24.4.2012, as case crime no.
242 of 2012, under Section 302 IPC, police
station Faridpur, District Bareilly, against
the accused persons. Needful entries were
made in kaimi G.D., carbon copy is on
record as Ext. Ka-5 and chik FIR Ext. Ka-3.

5. Initially, investigation was entrusted
to S.I. Gajendra Singh Tyagi. In due course,
he was transferred and another I.O. replaced
him. I.O. has recorded the statement of
witnesses
under
section
161
Cr.P.C,
prepared site plans and arrested accused and
later after due investigation, collecting
credible and clinching evidence, showing
the complicity of the accused appellants in
the murder of Rukampal, S.S.F. P.N.Mishra,
submitted charge sheet on 05.07.2012,
under Section 302 IPC against the accused/
appellants namely Ujagar, Ram Prasad and
Kalyan, in the court of Chief Judicial
Magistrate, Bareilly.

6. Chief Judicial Magistrate, Bareilly
took the cognizance of the case. Being
exclusively triable by the court of Sessions,
he committed it to Sessions, where it was
5 All. Ujagar & Ors. Vs. State of U.P.
291
registered as S.T. No. 1018 of 2012 and in
the
course
of
time
Sessions
Judge
transmitted the same to the court of
Additional Sessions Judge, Court No. 14
Bareilly, for trial.

7. The learned trial judge framed
Charges against the accused Ujagar, Ram
Prasad and Kalyan, under section 302 IPC.
Accused abjured the charge, pleaded not
guilty and claimed to be tried.

8. To bring the charge home,
prosecution has adduced testimonies of
following witnesses as ocular evidence:-

(i)- Pw-1 Roop Lal (complainant),
(ii)- PW-2 Nanhe (village chaukidar), (iii)-
PW-3 Dr. S.C. Sundriyal (Autopsy sergion),
(iv)- PW-4 C- Shiv Kumar Singh, (v)- PW5 Prema, (aunt of the deceased), (vi)- PW-6
S.I. Ganga Das Sagar (part I.O.), (vii)- PW7 Kamlesh (independent witness), (viii)-
PW-8 S.I. Gajendra Sinigh Tyagi (part I.O.),
(ix)- Gajraj (witness of fact) and (x)- PW-10
C- Devi Dayal (formal witness).

9. Besides, the prosecution has also
produced
following
documentary
evidences:-

Sl.
No.
Particular
of
Documents
Proved by
Ext. Nos.

1.
Application
u/s
156(3) Cr.P.C.
PW-1
Ext Ka-1
2.
Post
mortem
Report
PW-3
Ext Ka-2
3.
Chik FIR
PW-4
Ext Ka-3
4.
Application to S.
P.
PW-
Ext Ka-4
5.
Kaimi G. D.
PW-4
Ext Ka-5

6.
Sample Seal
PW-6

Ext Ka-6
7.
Challan Lash
PW-6

Ext Ka-7
8.
Photo Lash
PW-6
Ext Ka-8

9.
Request to R.I.
PW-6
Ext Ka-9

10.
Letter for CMO
PW-6
Ext
Ka10
11.

Inquest Report
PW-10
Ext
Ka11

12.

Charge sheet
PW-4
-

10. On conclusion of the prosecution
evidence,
accused/appellants
were
confronted with the evidence led against
them during trial, and recorded their
statements under Section 313 Cr.P.C.
wherein all the accused/ appellants denied
the prosecution evidence and allegations
against them. They stated and asserted that
they have been falsely implicated on
account of enmity and village partibandi.
They had pleaded innocence. They did not
adduce any defence witness.

11. Learned trial court after examining
the testimony of the prosecution witnesses
and other material on record, came to the
conclusion that the accused/ appellant are
guilty of committing the murder of
Rukampal Singh and accordingly convicted
them under section 302 IPC and sentenced
for life imprisonment and fine with default
clause, vide judgment and order dated
24.05.2022. Felt aggrieved, the appellants
preferred the present appeal.

12. Heard learned counsel for the
appellant Sri Rajeev Upadhyay and learned
AGA for the State and Sri G.P. Singh,
learned counsel for the informant. Perused
the record.

13. Learned counsel for the accused/
appellants has urged that prosecution has not
assigned to any of the appellants any
specific role of causing fatal injuries to
which deceased succumbed. There are
material inconsistencies and discrepancies
in the prosecution version. Some of the
prosecution
witnesses
had
made
292 INDIAN LAW REPORTS ALLAHABAD SERIES
improvements in their deposition and had
narrated the manner of incident in such a
way, which cannot be perceived in ordinary
course of diligence and prudence. The
investigation was also done in a pedantic
and lackadaisical manner with the oblique
motive
of
implicating
the
accused
appellants, on the undue pressure of
complainant. No incriminating article has
been recovered from any of the appellants or
on their pointing. It creates prosecution story
highly
improbable,
untrustworthy
and
dubious. There is no material from the side
of the prosecution to evince that the accused
appellants had harbored vengeance to
eliminate Rukampal (now deceased). The
presence of the prosecution witnesses at the
place of occurrence has not been proved,
hence their testimony is highly doubtful and
incredulous and not really commends any
acceptance. No tangible material is elicited
from the evidence of the prosecution
witnesses in cross examination by which
their testimony was found to be highly
doubtful and untrustworthy. The chain of
evidence and circumstances is also not
complete, so as to conclusively establish that
the accused appellants are the actual
perpetrator of dreadful crime of murder of
Rukampal. The victim Rukampal was a man
of felonious nature and was having to his
credit so many antagonists. Some unknown
persons were nurturing animus and grudge
against him, they succeeded in their
venomous and filthy design of liquidating
him in the darkness of night. The appellants
had no animus against the deceased
Rukampal. It is also argued that the
prosecution could not prove any motive
against the accused/ appellants which
actuated them to take such a drastic step.
There is no independent and impartial
witness to support the prosecution version.
Many of them turned hostile. The evidence
of some of them is not consistent with the
hypothesis of the guilt of the accused/
appellants. There is general and omnibus
allegation in the first information report. The
charge sheet has also been submitted relying
upon such evidence which is not even
formally proved. There is not an iota of
evidence pointing towards the guilt of the
accused appellants. The trial court wrongly
drew the inference that the appellants are the
mastermind to commit the murder of
Rukampal. The trial court has not analyzed
and appreciated the evidence objectively
and proper perspective. The prosecution has
failed to prove its case beyond reasonable
doubt. Therefore appeal deserve to be
allowed.

14. Per contra, learned A.G.A. has
submitted that there is no embellishment in
the prosecution version. The victim died on
account of inflicting of injuries on his person
by the appellants. The entire incident has
been narrated in a very intrinsic and natural
way. It is a case of homicidal death. The
murder has taken place in a planned manner.
The prosecution witnesses had supported
the case completely. Whosoever had turned
hostile, is on account of undue pressure of
the accused persons and his adherents. There
is a chain of evidence to demonstrate that
Rukampal was inflicted serious injuries on
the vital part of body with gunshot in a fit of
anger and ire, as a result of which he
succumbed to injuries. The causing of injury
on the vital part is sufficient to demonstrate
that the accused appellants had already
nurtured animus and grudge to eliminate the
victim.
The
accused
appellants
are
influential person and had good approach,
on account of which FIR was not registered
while on information, the police personnel
had come at the spot. The inquest report was
prepared by the police personnel after
appointing witnesses of the inquest. The
post mortem had also been done in presence
5 All. Ujagar & Ors. Vs. State of U.P.
293
of police personnel. The non-registration of
first information report in such a gruesome
and diabolical case by police personnel
shows
their
utter
recklessness
and
irresponsibility. In case there is any
variation or omission in the examination,
cross examination or examination in chief
that will not destroy the entire prosecution
version and will not absolve the accused
/appellants from the charge.

15. Aforesaid rival submissions of the
learned counsels of appellant as well as
learned counsel for informant and A.G.A.,
has to be tested upon the touchstone of
evidence adduced by the parties.

16. Elaborating his arguments, learned
counsel for appellants, has urged that
prosecution has failed to produce any
independent witnesses and the witnesses
produced are not trustworthy. They are
interested and partisan witnesses. Hence,
their evidence could not be relied upon.
Learned A.G.A. opposed the contention.

17. The law relating to evaluation of
relative, interested and partisan witnesses
was considered elaborately by the Apex
Court, in Dalip Singh and others V/s State of
Punjab, AIR 1953 SC 364, wherein the
testimonies of the two women witnesses
were impeached on the ground that they
were close relatives of the deceased. the
Hon'ble Apex Court observed that ordinarily
a close relative would not spare the real
culprit who has caused the death and
implicate an innocent person. His/ her
evidence can only be discarded when it is
established that the witnesses has a cause,
due to enmity to implicate him falsely.
Dalip Singh (supra) has been followed and
reiterated in a series of the cases. A
reference may also be made Piara Singh
V/s State of Punjab (1977) 4 SCC 452,
Kamta Yadav vs. State of Bihar (2016) 16
SCC 164 and Nand Kumar vs. State of
Chhatisgarh (2015) 1 SCC 776.

18. In Hari Obula Reddy V/s state of
A.P. (1981) 3 SCC 675, the Apex Court
observed as under :-

13.........it is well settled that
interested evidence is not necessarily
unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting or
rejecting sworn testimony. Nor can it be laid
down as an invariable rule that interested
evidence can never form the basis of
conviction unless corroborated to a material
extent in material particulars by independent
evidence. All that is necessary is that the
evidence of interested witnesses should be
subjected to careful scrutiny and accepted
with caution. If on such scrutiny, the
interested testimony is found to be
intrinsically reliable or inherently probable,
it may, by itself, be sufficient, in the
circumstances of the particular case, to base
a conviction thereon."

19. Again in S. Sudershan Reddy and
others Vs. State of A.P. (2006) 10 SCC
163, the Hon'ble Apex Court has held that :-

"12. .....Relationship is not a
factor to affect the credibility of a witness. It
is more often than not that a relation would
not conceal the actual culprit and make
allegations against an 22 of 24 innocent
person. Foundation has to be laid if plea of
false implication is made. In such cases, the
court has to adopt a careful approach and
analyze evidence to find out whether it is
cogent and credible.

15. We may also observe that the
ground that the witness being a close relative
and consequently being a partisan witness,
should not be relied upon, has no substance.
294 INDIAN LAW REPORTS ALLAHABAD SERIES
This theory was repelled by this Court as
early as in Dalip Singh case in which
surprise was expressed over the impression
which prevailed in the minds of the
Members of the Bar that relatives were not
independent witnesses."

20. Thus, we find unbroken line of
authorities to the effect that the evidence of
eye-witness, if found forceful, can not be
discarded simply because witness is a
relative of the deceased. The only caveat is
that the evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution. Thus, close scrutiny
of testimony of eye-witness is required, to
reach the conclusion that they have seen the
incident, in question.

21. Learned counsel for the appellant
has submitted that present case is based on
circumstantial evidence and plea of last
seen. So far as 'last seen' segment of the
occurrence goes, as per prosecution case, on
08.10.2011 at about 5 o' clock appellants
Ujagar, Kalyan and Ram Prasad, resident of
bilauwa had called the son of the
complainant Rukampal from his house on
the pretext of some work and taken him
away. At that time, mother (Smt. Bhagga)
and sister (Kalwati) of the deceased
Rukampal,were present in the house. The
prosecution has examined three witnesses
regarding last seen. PW- 1 Roop Lal, is the
father of the deceased, PW-2 Nannhe
claimed to be independent witness, PW- 5
Smt. Prema wife of Ganga Ram, who is the
brother of complainant and aunt of the
deceased Rukam Pal and further she is sister
in law of PW-1 Roop Lal, PW- 7 Kamlesh
is the cousin of the complainant, PW- 9
Gajraj claimed to be independent witness of
fact. They are also claimed to be witnesses
of facts. The argument is that PW-1 Roop
Lal and PW-5 Smt. Prema and PW-7
Kamlesh are close relatives of the deceased.
Their testimonies are not credible.

22. P.W-1 Rooplal is the father of the
deceased. He no where in his statement
acceded that in his presence appellants came
to his house and took away his son
Rukampal. Rather, in his cross examination,
he has admitted that, at that time he was not
present at his house. He was at some other
place and out of his house. The other
persons, mother (Smt. Bhagga) and sister
(Kalawati) of the deceased, who are said to
be present at that time in the house, have not
been examined by the prosecution. PW- 2
Nanhe, who is village chaukidar and who
informed the occurrence to police station,
has also not averred that on the day of
occurrence he saw Rukampal going with the
appellant. PW-5 Prema Devi, who is the
aunt of the deceased has deposed that she
was at her home at the time of occurrence.
She turned hostile by saying that in her
presence no one called Rukampal and took
him from his house. PW-7 Kamlesh, who is
the cousin of complainant and who was in
constant touch with the complainant has also
disowned his presence at the time of
happening of incident. PW-9 Girja Shanker
has also acceded that he has not seen the
incident or appellants coming to the house
of the deceased Rukampal and took him
away for some work. Thus the prosecution
has failed to prove the genesis of the
incident. PW- 1 complainant, PW- 2 Nanhe,
PW- 5 Prema Devi, PW- 7 and PW- 9 are
not the eye witnesses, nor have seen the
appellant taking away the deceased from his
house at 5.00 P.M. on the day of occurrence.
PW- 5 Smt. Prema, PW-7 Kamlesh and PW9 Girija Shankar has turned hostile and
nothing could be elicited from them
supporting prosecution case. Besides, as
discussed above, PW- 1, PW- 5, PW- 7 are
related to the deceased in one way or the
5 All. Ujagar & Ors. Vs. State of U.P.
295
other. So, their evidence is not credible and
worthy of reliability in the absence of
corroboration. Rest of the witnesses are
formal, their evidence has to be minutely
scrutinized. The deposition of all the
witnesses of fact, mentioned above, would
reveal that prosecution has failed to prove by
any cognate and credible evidence the last
seen part of the prosecution case. Anyway,
only last seen evidence cannot form the
basis for conviction. Thus prosecution has
failed to prove its last seen story.

23. So far the second segment of the
prosecution case, i.e. participation of the
appellant in murdering the Rukampal and
other relevant facts goes, it will be pertinent
to describe relevant prosecution evidence in
this behalf.

(1)- PW-1 complainant Roop Lal,
has deposed that about five years ago, the
accused persons namely Ujagar, Kalyan and
Ram Prasad called to his son Rukampal and
took him away for some work. At that
moment, his daughter Kalawati and his wife
Bhagga Devi, were present in the house.
When Rukampal did not come back at night,
he along with other members of the family
went at the residence of the accused persons
on the next morning, to inquire about his
where
about.
The
accused
persons
equivocated and avoided talking about the
where about of his son Rukampal. They
enquired from the native villagers also and
came to know at about 12 o'clock, that the
corpse of Rukampal was lying near a
Mulberry (Shahtoot) tree near Nagariya. He
reached at the place stated by the informers
in Nagariya, he saw the corpse of his son
Rukampal. There were multiple injuries on
his person. There was a gunshot wound on
the backbone. He informed to the police
station concerned, about the incident. The
police personnel came on the spot and
launched inquest of the dead body and after
preparing relevant documents sealed the
dead body and handed over to police
constables to deliver it to the district hospital
for autopsy. Since the complainant was
highly nervous and upset, he could not take
notice whether the first information report
was lodged at the police station or not. When
the
accused
persons
were
roaming
undauntedly and were extending threats to
him, he raked up his grievance by
submitting application before the higher
police authorities. The accused persons were
murmuring and buzzing in the village that
Rukampal had been done to death on
account of being in opposition to Ujagar in
the pradhani election. On the fateful day of
occurrence, Kamlesh s/o Pothiram and
Prema Devi w/o Ganga Ram had seen
Rukampal going in the company with
accused persons. The first information
report with respect to the said incident was
registered pursuant to the order of the court.
He proved his thumb impression on the
application given by him in the court of
CJM. He duly proved the application, as
Ext.Ka.1. Thereafter the Station Officer
concerned recorded the statement of the
complainant. The complainant went to the
spot of inspection done by the investigating
officer concerned.

(1-a)- During cross examination,
PW-1 averred that he had two brothers. One
of them have died and the second is Ganga
Ram, whose wife is Prema Devi. Prema
Devi is his sister-in-law. The complainant
was well familiar with Kamlesh s/o Pothi
Ram, Vimlesh, as well as Chheda Lal. They
are his cousins. Those persons were in
contact with him, because of their living in
the same locality. Deceased Rukampal was
married to Geeta. She had gone to her
parental house, before fifteen days of the
occurrence. There were amicable and
cordial relation between Rukampal and his
296 INDIAN LAW REPORTS ALLAHABAD SERIES
wife. Geeta had immediately come to her inlaws on getting the information with respect
to murder of her husband. The deceased
Rukampal was neither fond of gambling nor
drinking.
It
was
disclosed
by
the
complainant that there was a criminal case
against Rukampal launched by Nanhe Lal.
The wife of complainant was burnt three
/four days before the incident on account on
pushing of chirag (lamp) with the tail of
bullock, but she did not lodge any report
with respect to demand of dowry against the
deceased. He had seen that his son
Rukampal was called and taken away by the
accused person at about 5.00 p.m. The
complainant went at the house of the
accused again and again, at about 6.00 p.m.,
7.30 p.m. and 9.30 p.m., but they did not
meet. He had enquired from their family
members also, however, he added that they
met on that very day at 9.30 p.m. at their
residences, they avoided to meet him,
showing their non-presence. Jagat's mother
told him about laying of the dead body of the
Rukam Pal in the Jungle. Jagat's mother has
expired. He came to learn about the dead
body at about 12.00 o'clock next day. He
acceded that I.O. has correctly recorded his
statement about his going to the field on
08.10.2011 and returning to home at 5.00
p.m.
After
registration
of
the
first
information report, the station officer
concerned recorded his statement. Later he
acceded that his statement was recorded on
8.10.2011. He reached at the place where the
corpse of Rukampal was lying at about one
o' clock, there was a gathering of villagers
including Chheda Lal, Chandra Pal, Mihilal,
Gajram etc. The distance of place, where the
corpse of Rukampal was lying from his
house, is about half kilometer. He, along
with the chaukidar of the village, reached at
the police station at about 1.00 o' clock and
informed about the incident and the dead
body, thereafter returned back to the dead
body. The police had reached at the house of
complainant at about nine o' clock. The
dead body of Rukampal was lying in the
field till the arrival of police personnel. The
panchayat nama was conducted after
bringing the corpse on the road. The police
personnel did not make any enquiry from the
complainant and took away the dead body of
Rukampal. Ujagar Lal and Natthoo Pradhan
did not come at the place where the corpse
of Rukampal was lying. The corpse of
Rukampal
was
handed
over
to
the
complainant
after
autopsy.
The
first
information report was registered pursuant
to the order of the learned Magistrate. The
complainant had heard about the murder of
his son Rukampal committed by Ujagar Lal,
Kalyan and Ram Prasad after six or seven
days. The complainant had confirmed that
the dead body of Rukampal was lying in the
field near (Mulberry tree) Shahtoot. He had
seen the dead body of the Rukampal. His
body was turned. There was a gunshot injury
on the back of neck. The inquest report was
prepared by the police within fifteen
minutes. When the police personnel took the
dead body of Rukampal at the police station,
the complainant had also joined them.
Natthoo Pradhan did not join him. The
station officer concerned had recorded the
statement of the complainant and witnesses
at the police station concerned. There has
not been any litigation between complainant
and the accused persons barring this case.
There has been some quarrel between the
complainant and the accused persons at the
time of election. It was also stated by him
that the brother of Vijendra namely Brij Lal
was done to death. The first information
report was lodged by Vijendra naming to the
complainant (Roop Lal), Prem Pal, Chandra
Pal and Suresh in the murder of Brij Lal. The
complainant was sent to jail in the said
murder. Munni Devi w/o Sannoo had got a
5 All. Ujagar & Ors. Vs. State of U.P.
297
first information report registered against
Rukampal under section 325 IPC.

(2)- Prosecution has examined
PW-2 Nanhe, who stated that he was
discharging the duty of Chawkidar on
9.10.2011. On that day he got an
information at about 4.30 p.m. that the
corpse of Rukampal was lying in the field of
Bhagwan Das. The victim used to drink
liquor occasionally. He had seen the corpse
of Rukampal. He, in association with P.W.1
Roop Lal and others had gone at the police
station concerned. The station officer had
prepared the inquest and recorded his
statement. It was stated by Nande P.W.2 that
he had been discharging the duty of
Chawkidar for the last twenty years. He was
well conversant with Rukampal.

(2-a)- In his cross examination
PW-2, divulged that Rukampal used to drink
liquor
but
had
never
quarreled
in
intoxication. He had got information about
the dead body of Rukampal at about 4.30
p.m. from the murmuring and buzzing in the
village. When he reached at the place of
occurrence,there was a gathering of his
village folk and also people of Nagaria. The
family members of Rukampal were also
present there. He does not remember that the
accused persons were present at the spot or
not. He had informed to the Station Officer
concerned on telephone . At the behest of
Station Officer concerned, he reached at the
police station in the company of family
members of deceased Rukampal. In addition
to oral information, written information was
also given by Roop Lal at the police station.
Roop Lal did not mention name of any
accused in the written information. He did
not come to know about the assailants of
Rukamlal in the murmuring of village folk.
It was not within his knowledge that there
was any quarrel between Ujagar and the
family members of Rukampal.

(3)-
In
corroboration
of
occurrence and oral evidence, prosecution
has also examined P.W.3 Dr. S.C.Sundriyal,
who has deposed that during his posting as
Sr. Consultant Eye Surgeon, District
Hospital Bareilly on 10.10.2011, he was on
post mortem duty. He had conducted post
mortem of Rukampal, whose corpse was
brought by C.P. Devi Dayal and C.P. Rajeev
Kumar, Police Station Faridpur, in a sealed
cover with requisite papers. He had tallied
the seal. The constables identified the dead
body of the deceased Rukampal and after
being satisfied, conducted the post mortem
of Rukampal at 2.30 p.m.on 10.10.2011 and
prepared
post-mortem
report
in
his
handwriting and signature. He proved P.M.
R. as Ext. Ka- 2 .

(3-a). As per PW- 3 Dr. Sundriyal,
he noticed following facts about the corps of
Rukampal during autopsy;-

(I)- internal examination: Dr.
noted fracture of cervical vertebrate,
membrances congested,,brain congested ,
base fractured, spinal cord opened, ,left and
right
lung
congested,
pericardium
congested, heart right full , left empty wt.
180 gm. Small and large intestines empty
congested, gall bladder full, liver congested
,spleen congested, kidney congested.

(II)- External Examination: rigor
morti was absent from both extremities.

(III)- Ante-mortem Injuries; A
fire arm wound of entry about 3 cm x 3 cm
on the posterior aspect of root of neck in line
with scapula muscle uper border, in middle
region of margins of wound inverted and
lacerated. Blackening seen,11 pieces of
metallic and a plastic wad recovered from
the body.

(IV)- Doctor opined that the
Cause of Death was due to coma as a result
of ante mortem fire arm injury. Organs/
Viscera
was
preserved
for
chemical
examination. Death of deceased is possible
298 INDIAN LAW REPORTS ALLAHABAD SERIES
to happen on 08.10.2011 after 5.00 o' clock
by fire-arm.

(V)- Pw- 3 Dr. Sundriyal has
further stated that the metallic pieces and
plastic wad were sealed by him and returned
to police personnel.

(4). The prosecution has also
examined, PW-4, C.P. 1244 Sheo Kumar
Singh. He stated that, at that time he was
posted as Constable Clerk at Police Station
Faridpur District Bareilly. Pursuant to the
order of Chief Judicial Magistrate Bareilly,
passed on the application under section 156
(3) Cr.P.C. he had registered case crime No.
242/12 under section 302 IPC against
Ujagar and others and necessary enteries
were made in kaimi GD no. 38 at about
20.30. Original GD was destroyed ,the
carbon copy of GD which was prepared in
the same process with original marked as
Ext.Ka.5, which is on record. Entries were
also entered and the chik FIR (Ext.Ka.3) was
prepared . The copy of the order passed by
the Chief Judicial Magistrate Bareilly was
received on 24.4.2012 by Dak.

(4-a)- In his cross-examination the
PW-4 has divulged that at the time of
registration of the first information report,
the complainant was not present at the police
station.
Investigating
officer
S.S.I.,
P.N.Mishra has expired. He was posted with
him, he is aware of his hand writing. S.I.
P.N.Mishra had taken over the charge of
investigation of this case after transfer of
erstwhile investigating officer Gavendra
Mishra. The witnesses of inquest namely
Gauram;, Mihilal, Ganga Ram ,Krishna Pal
and Tikaram were entered in the Parcha No.
5 on 25.5.2012. He had also entered the
description of affidavits given by Roop Lal,
Vimlesh Dutta Sharma,Kamlesh, Chheta
Lal etc. in the C.D. The name of
complainant Rooplal, and the witnesses
Smt. Prema, Kamlesh, Vimlesh and Chheda
Lal were entered in the case diary. The site
plan was prepared on the pointing of the
complainant Roop Lal. The site plan and
charge sheet were prepared by S.S.I.,
P.N.Mishra, whose writing and signature
were identified by him. He had given detail
of investigation in Parcha no.11. On the
basis
of
material
collected
during
investigation, charge sheet was submitted
against the accused Ujagar, Kalyan and Ram
Prasad under section 302 IPC. However, site
plan paper no. 7Ka and charge sheet paper
no. 6Ka has not been formally given any
Ext. Number. However, he verified the
investigation done by S. S. I., P. N. Mishra
as secondary evidence.

(5)- P.W.5 Smt. Prema, is the wife
of Ganga Ram and aunt of the deceased
Rukampal. She stated on oath that 6-7 years
ago, she was present at her house. Nobody
had called to Rukampal in her presence in
the house. She came to know in the morning
that Rukampal had been done to death. The
people of the locality had gone to see him.
She disowned the paper no.16Ka/13 kept in
the record in the shape of affidavit dated
28.5.2012. Prosecution has declared her
hostile. She did not support the prosecution
case rather denied her statement recorded
under section `161 Cr.P.C.

(6). The prosecution has also examined
P.W.6 S.I.Ganga Sagar. He stated on oath
that he was posted at Bareilly as Subinspector on 9.10.2011. On the fateful day,
on the information given by Nannhe
(Chawkidar) he along with HM constable
Devi Lal and Rajeev Kumar reached at the
place of occurrence. He saw the corpse of
Rukampal s/o Roop Lal lying in the field of
Bhagwan Das. He conducted the inquest of
the corpse of Rukampal. He had prepared
the papers in relation to Panchnama namely
. Specimen of seal Ext. Ka- 6, Challan Lash
Ext. Ka- 7, Photo Lash Ext. Ka- 8, report to
R.I. Ext. Ka- 9, request to CMO Ext. Ka- 10.
5 All. Ujagar & Ors. Vs. State of U.P.
299
Prepared inquest report in his writing and
signature. Signature of the witnesses of
inquest
were
obtained
on
the
panchayatnama and proved it as Ext.Ka.11.

(7)-
The
prosecution
further
examined Kamlesh as P.W.7. He stated on
oath that the said incident had taken place
about quarter to eight years before. The
corpse of Rukampal was lying in the east of
Nagariya village , near the tree of mulberry.
He had gone and seen the corpse of
Rukampal. He had come to know that
Rukampal was done to death. He is not an
educated person. He identified and proved
his thumb impression on paper no. 16Ka/5
but disowned his presence at the time of
happening of incident. Prosecution has
declared him, hostile and cross examined
him.

(7-a)
PW-7
in
his
cross
examination did not support prosecution. He
disowned his statement recorded under
section 161 Cr.P.C. that on 08.10.2011 he
have seen at five o' clock in the morning
Rukampal going with Ujagar, Kalyan and
Ram Prasad out of village and on that night
Rukampal did not return home, next day his
dead body was found in the field of village.
He also denied furnishing of any affidavit to
the police personnel.

(8)- P.W.-8 S.I. Gajendra Singh
Tyagi has deposed that on 24.4.2012 he was
posted as sub-inspector at Police station
Faridpur District Bareilly. On that day, he
was entrusted with the investigation of
aforesaid case. He had entered in parcha
no.1 the application moved under section
156 (3) Cr.P.C. He entered the order of the
Judicial Magistrate Bareilly in the G.D. He
received the copy of Panchayatnama from
the police station concerned. He recorded
the statement of scribe of F.I.R. On
26.4.2012, he recorded the statement of
complainant vide parcha no.11.Subsequent
thereto,
he
was
transferred.
The
investigation was entrusted to someone else.
The panchayatnama and post mortem report
of the deceased, on the direction of Dy.
Inspector General was consigned to record,
by Sub-inspector Ganga Das Sagar. He
disproved the paper no. 14Ka/2. S.I. Ganga
Das Sagar had submitted the panchayatnama
and post mortem report on the score that the
deceased Rukampal had committed suicide.
He had not recorded the statement of Ganga
Sagar during investigation.

(9)- P.W.9 Gajraj on 24.9.2019
stated that the corpse of Rukampal was lying
in the field. He could not remember the date.
Panchayatnama
was
prepared
in
his
presence and his signature was obtained on
the report alongwith other witnesses. He
proved the preparation of panchayatnama
(Ext Ka-11). On the suggestions of the
witnesses of inquest, post mortem was done
in order to know real cause of death. In his
cross examination he has stated that the dead
body of the deceased Rukumapal was
recovered near shrub at village Nagariya.
The body was recovered at about half-a-km
from the village of the deceased. He proved
his presence at the time of preparation of
panchyatnama as well as recovery of corpse
of Rukampal in village Nagariya in the
shrub. The corpse of Rukampal was seen by
the people of village Nagariya and on their
information, the people of his village came
to know about the death of Rukampal. When
he reached near the corpse of Rukampal, a
number of people were already present
there. The police personnel were not present
there. The police personnel had come after 1
or 1.5 hours later. He did not confirm who
had informed to police personnel. The father
of Rukampal and other persons were present
in the vicinity of corpse.

(10)- To substantiate the charge
levelled against the accused the prosecution
has examined P.W.10 constable Devi Dayal.
He stated on oath that on 9.10.2011 he was
300 INDIAN LAW REPORTS ALLAHABAD SERIES
posted as Constable at Police Station
Faridpur. On the fateful day from 8 o'clock
to 10 o'clock ,the inquest of Rukampal was
conducted . The panchayatnama was duly
signed by all the witnesses after completing
the necessary formalities. The signatures of
P.W.10 Devi Dayal and Rajeev Kumar were
also obtained on the same which is marked
as Ext.Ka.11. After completion of necessary
formalities, the corpse of Rukampal was
handed over to him and Balajeet Kumar for
carrying it to the mortuary.

(10-a). In his cross examination,
P.W.10 C-Devi Dayal could not ascertain as
to whether the father of the deceased
Rukampal was present at the moment of
preparing panchayatnama, as he could not
identify him. The panchayatnama of
deceased Rukampal was done on the
intimation of Chawkidar Nanhe. The station
officer concerned had called to the father of
deceased Rukampal while filing up the
Panchayatnama but he was not there. He has
stated that there was no person of the
locality,
except
the
witnesses
of
Panchayatnama present, while carrying out
the formalities of inquest. He confirmed that
there were injuries on the person of deceased
Rukampal.

24.