# Umesh v. State of U.P

- **Citation:** (2025) 8 ILRA 971
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-14
- **Case number:** Criminal Appeal No. 4773 of 2005
- **Bench:** Salil Kumar Rai, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-v-state-of-u-p-53837
- **Pages:** 36

## Headnote

Sections 302 IPC and 25 Arms Act was
sustainable on the basis of ocular evidence of
independent witnesses corroborated by medical
evidence,
despite
alleged
defects
in
investigation, recovery and proof of source of
light;
II. Whether acquittal of co-accused Mahesh and
Gore Lal under Section 302/34 IPC and of
accused Umesh under Sections 504 and 506 IPC
was perverse, warranting interference in a
Government Appeal.

Headnotes
Indian
Penal
Code,
1860
-
ss.302,
302/34, 504, 506 - Arms Act, 1959 -
s.25 - Murder - Common intention -
Exhortation
-
Prior
enmity
-
Independent eye-witnesses - Source of
light - Recovery under s.27 Evidence Act
- Non-matching ballistic evidence -
Effect - Scope of interference in appeal
against acquittal - Conviction affirmed
and acquittal reversed.

Held:
Testimony of PW-2 and PW-3, independent
villagers with no animus against the accused,
was natural, cogent and reliable. Their presence
at the spot stood explained; their ocular account
of accused Umesh firing a close-range shot on
exhortation by Mahesh and Gore Lal was fully
corroborated by medical evidence showing
firearm entry wound with tattooing, consistent
with firing from close proximity. [Paras 35-37,
85-87]

Existence of motive was proved by prior
altercation regarding breaking of a coal furnace
972 INDIAN LAW REPORTS ALLAHABAD SERIES
and immediate provocation at the liquor vend
shortly before the incident. In cases resting on
direct ocular evidence, proof of motive is not
indispensable;
nevertheless,
motive
stood
established. [Paras 33-35]

Common intention under Section 34 IPC can be
inferred from conduct before, during and after
the occurrence. Mahesh and Gore Lal were
aware that Umesh was armed; they exhorted
him to kill the deceased, did not attempt to
prevent the act, and fled together thereafter.
Their conduct clearly established sharing of
common intention. Acquittal by the trial court on
the ground that they were unarmed or lacked
prior planning was perverse. [Paras 38-47, 50]

Recovery of the country-made weapon at the
instance of Umesh was proved in accordance
with Section 27 of the Evidence Act. Even
assuming absence of scientific linkage between
the recovered weapon and the bullet found at
the spot, conviction could still be sustained on
the strength of trustworthy ocular evidence.
Recovery of weapon is not sine qua non for
conviction. [Paras 73-84]

Omission to mention source of light in FIR or
site plan, or alleged lapses by Investigating
Officer, did not vitiate the prosecution case. FIR
is not an encyclopaedia; witnesses who were
well acquainted with the accused could also
identify them by voice. Defence evidence
regarding absence of electricity supply was
unreliable. [Paras 59-66]

Ingredients of Sections 504 and 506 IPC were
satisfied by proof of intentional abuse and
threats at the liquor vend with knowledge of
likely provocation; absence of verbatim abusive
words was immaterial. Acquittal of Umesh under
Sections 504 and 506 IPC was erroneous. [Paras
52-58]

Conviction of Umesh under Sections 302 IPC
and 25 Arms Act affirmed; Government Appeal
allowed - acquittal of Mahesh and Gore Lal
under Section 302/34 IPC and of Umesh under
Sections 504 and 506 IPC set aside; Mahesh
and Gore Lal convicted and sentenced. [Paras
89-93]

Appeal
of
the
accused
dismissed
and
Government Appeal allowed. (E-14)

Case Law Cited
Rajkishore Purohit v. State of M.P., (2017)
9 SCC 483 - relied on; Damodar v. State
of U.P., (2005) 1 SCC 543 - applied;
Gulab v. State of U.P., (2022) 12 SCC 677
- followed; Boby v. State of Kerala,
(2023) 15 SCC 760 - considered; Rakesh
v. State of U.P., (2021) 7 SCC 188 - relied
on; State v. Laly @ Manikandan, 2022 SCC
OnLine SC 1424 - followed; B.V. Ram
Kumar v. State of Telangana, (2025) 3 SCC
475
-
applied;
Babu
Sahebagouda
Rudragoudar
v.
State
of
Karnataka,
(2024) 8 SCC 149 - referred.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidenc

## Text

_Characters 0–39,962 of 121,546. This is a partial read: ask again with offset=39962 for what follows._

8 All. Umesh Vs. State of U.P.
971
Sessions Judge, Jhansi, in Session Trial No.
35 of 1984 (State Vs. Narendra Kumar &
another), arising out of Case Crime No. 510
of 1983, under Sections 302/34 IPC, Police
Station -Nawabad, District - Jhansi, is set
aside. The appellant is acquitted from the
charges levelled against him. The appellant
is in jail. He be released forthwith, in case,
he is not required in some other case. The
appellant is directed to furnish bail bonds in
compliance of Section 437-A Cr.P.C. to the
satisfaction of the Court concerned within
one month from today.

40. Copy of this judgment along with
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. Compliance report
be submitted to this Court at the earliest.
Office is directed to keep the compliance
report on record.

41. Shri Rajiv Lochan Shukla, learned
Amicus Curiae assisted by Shri Shashank
Pandey appearing on behalf of the
appellant
has
rendered
his
valuable
assistance to the Court. He be paid Rs.
25,000/- towards fee for the able assistance
provided by him, in hearing of the present
appeal.
----------
(2025) 8 ILRA 971
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.08.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 4773 of 2005
&
Government Appeal No. 114 of 2006

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

Counsel for the Appellant:
Rakesh Chandra Upadhyay, Meenendra
Tripathi, Ram Kishore Gupta, Ram Milan
Dwivedi, Ravindra Kumar Mishra, Shyam
Sunder Tripathi, Tarun Kumar Tripathi

Counsel for the Respondent:
Govt Advocate

Issues for Consideration
I. Whether conviction of accused Umesh under
Sections 302 IPC and 25 Arms Act was
sustainable on the basis of ocular evidence of
independent witnesses corroborated by medical
evidence,
despite
alleged
defects
in
investigation, recovery and proof of source of
light;
II. Whether acquittal of co-accused Mahesh and
Gore Lal under Section 302/34 IPC and of
accused Umesh under Sections 504 and 506 IPC
was perverse, warranting interference in a
Government Appeal.

Headnotes
Indian
Penal
Code,
1860
-
ss.302,
302/34, 504, 506 - Arms Act, 1959 -
s.25 - Murder - Common intention -
Exhortation
-
Prior
enmity
-
Independent eye-witnesses - Source of
light - Recovery under s.27 Evidence Act
- Non-matching ballistic evidence -
Effect - Scope of interference in appeal
against acquittal - Conviction affirmed
and acquittal reversed.

Held:
Testimony of PW-2 and PW-3, independent
villagers with no animus against the accused,
was natural, cogent and reliable. Their presence
at the spot stood explained; their ocular account
of accused Umesh firing a close-range shot on
exhortation by Mahesh and Gore Lal was fully
corroborated by medical evidence showing
firearm entry wound with tattooing, consistent
with firing from close proximity. [Paras 35-37,
85-87]

Existence of motive was proved by prior
altercation regarding breaking of a coal furnace
972 INDIAN LAW REPORTS ALLAHABAD SERIES
and immediate provocation at the liquor vend
shortly before the incident. In cases resting on
direct ocular evidence, proof of motive is not
indispensable;
nevertheless,
motive
stood
established. [Paras 33-35]

Common intention under Section 34 IPC can be
inferred from conduct before, during and after
the occurrence. Mahesh and Gore Lal were
aware that Umesh was armed; they exhorted
him to kill the deceased, did not attempt to
prevent the act, and fled together thereafter.
Their conduct clearly established sharing of
common intention. Acquittal by the trial court on
the ground that they were unarmed or lacked
prior planning was perverse. [Paras 38-47, 50]

Recovery of the country-made weapon at the
instance of Umesh was proved in accordance
with Section 27 of the Evidence Act. Even
assuming absence of scientific linkage between
the recovered weapon and the bullet found at
the spot, conviction could still be sustained on
the strength of trustworthy ocular evidence.
Recovery of weapon is not sine qua non for
conviction. [Paras 73-84]

Omission to mention source of light in FIR or
site plan, or alleged lapses by Investigating
Officer, did not vitiate the prosecution case. FIR
is not an encyclopaedia; witnesses who were
well acquainted with the accused could also
identify them by voice. Defence evidence
regarding absence of electricity supply was
unreliable. [Paras 59-66]

Ingredients of Sections 504 and 506 IPC were
satisfied by proof of intentional abuse and
threats at the liquor vend with knowledge of
likely provocation; absence of verbatim abusive
words was immaterial. Acquittal of Umesh under
Sections 504 and 506 IPC was erroneous. [Paras
52-58]

Conviction of Umesh under Sections 302 IPC
and 25 Arms Act affirmed; Government Appeal
allowed - acquittal of Mahesh and Gore Lal
under Section 302/34 IPC and of Umesh under
Sections 504 and 506 IPC set aside; Mahesh
and Gore Lal convicted and sentenced. [Paras
89-93]

Appeal
of
the
accused
dismissed
and
Government Appeal allowed. (E-14)

Case Law Cited
Rajkishore Purohit v. State of M.P., (2017)
9 SCC 483 - relied on; Damodar v. State
of U.P., (2005) 1 SCC 543 - applied;
Gulab v. State of U.P., (2022) 12 SCC 677
- followed; Boby v. State of Kerala,
(2023) 15 SCC 760 - considered; Rakesh
v. State of U.P., (2021) 7 SCC 188 - relied
on; State v. Laly @ Manikandan, 2022 SCC
OnLine SC 1424 - followed; B.V. Ram
Kumar v. State of Telangana, (2025) 3 SCC
475
-
applied;
Babu
Sahebagouda
Rudragoudar
v.
State
of
Karnataka,
(2024) 8 SCC 149 - referred.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872; Arms
Act, 1959.

List of Keywords
Murder; Firearm injury; Common intention;
Exhortation;
Independent
witnesses;
Prior
enmity; Recovery under Section 27; Ballistic
evidence; Source of light; Criminal intimidation;
Intentional insult; Appeal against acquittal;
Perverse finding.

Case Arising From
Judgment and order dated 14.09.2005 and
15.09.2005 passed by the Additional Sessions
Judge, Court No.1, Hamirpur in Sessions Trial
No. 246 of 2004 (State v. Umesh and others)
and Sessions Trial No. 247 of 2004 (State v.
Umesh), arising out of Case Crime Nos. 167 of
2004 and 169 of 2004, Police Station
Muskura, District Hamirpur.

Appearance for Parties
For
the
Appellants:

Rakesh
Chandra
Upadhyay,Meenendra
Tripathi,Ram
Kishore
Gupta,Ram
Milan
Dwivedi,Ravindra
Kumar
Mishra,Shyam Sunder Tripathi,Tarun Kumar
Tripathi
For the State: Govt. Advocate

(Delivered by Hon'ble Sandeep Jain, J.)
8 All. Umesh Vs. State of U.P.
973

1. Criminal appeal No.4773 of 2005
has been preferred by the convicted
accused
Umesh
against
impugned
judgement and order dated 14.09.2005 and
15.09.2005 passed by Sri Yogesh Kumar,
Additional Sessions Judge, Court No.1,
Hamirpur whereby he has been convicted
in Sessions Trial No.246 of 2004 (State vs.
Umesh and others), P.S. Muskura, District
Hamirpur, arising out of Case Crime
No.167 of 2004, under Section 302 I.P.C.
and sentenced to undergo rigorous life
imprisonment with a fine of Rs.1,000/- and
in default of payment of fine to further
undergo simple imprisonment for a period
of 2 months. Besides this, accused Umesh
has also been convicted in Sessions Trial
No.247 of 2004 (State vs. Umesh), arising
out of Case Crime No.169 of 2004, P.S.
Muskura, District Hamirpur, under Section
25 of Arms Act and sentenced to undergo
two years rigorous imprisonment. Both the
sentences have been ordered to run
concurrently.

2. Government Appeal No.114 of
2006 has been preferred by the State of
U.P. against the judgment and order
dated 14.09.2005 passed by Sri Yogesh
Kumar,
Additional
Sessions
Judge,
Court No.1, Hamirpur in Sessions Trial
No.246 of 2004 (State vs. Umesh,
Mahesh and Gore Lal), arising out of
Case Crime No.167 of 2004, P.S.
Muskura, District Hamirpur, whereby
accused Umesh has been acquitted of the
charge under section 504 and 506 I.P.C
and Mahesh and Gore Lal have been
acquitted of the charge framed against
them under Section 302/34 I.P.C.

3. Since both the above appeals arise
out of a single judgment and order, hence,
they were connected and are being decided
by a common judgment.

4. Factual matrix giving rise to these
criminal
appeals
is
that
the
First
Information Report was lodged by Sushil
Kumar (P.W.-1 at the trial) at Police
Station Muskura, District Hamirpur. He
submitted an application (Ex.Ka-1 at the
trial), stating that a dispute had occurred
about one and a half months prior to the
incident between his brother, Ram Sharan
Tiwari and the accused Umesh, concerning
a coal furnace situated in village Kharela.
Since then, Umesh had harboured enmity
towards Ram Sharan Tiwari.

5. On 08.09.2004, Rakesh Kumar
(P.W.-3 at the trial) and Ram Sajivan
(P.W.-2 at the trial), had gone towards a
liquor shop where Umesh was present.
Umesh began to abuse and threaten Ram
Sharan Tiwari. Subsequently, Ram Sharan
Tiwari, Rakesh Kumar and Ram Sajivan
left that place. Around 10:30 p.m., as they
were passing in front of the house of
Vasudev Kachi, intending to go there for a
Ramayana recitation, Umesh along with his
brother Mahesh and another person Gore
Lal, surrounded Ram Sharan Tiwari.
Umesh then shot Ram Sharan in the chest,
resulting in his instantaneous death. Rakesh
Kumar and Ram Sajivan then went to the
house of Sushil Kumar and informed him
of the incident.

6. Based on the application of Sushil
Kumar, the FIR regarding this incident was
registered on 09.09.2004, at 00:15 hours, as
Case Crime No.167 of 2004, under
Sections 302, 504 and 506 I.P.C. at P.S.
Muskura, District Hamirpur, against the
accused Umesh, Mahesh and Gore Lal. The
investigation
was
assigned
to
S.O.
Shailendra Singh (P.W.-6 at the trial). The
check FIR is Ex.Ka-3 at the trial. A
corresponding entry of FIR registration was
also made in the G.D. at serial No.2 at
974 INDIAN LAW REPORTS ALLAHABAD SERIES
00:15 hours, a carbon copy of which is
Ex.Ka-4 at the trial.

7.
The
'Panchayatnama'
of
the
deceased,
Ram
Sharan
Tiwari,
was
prepared under the direction of S.O.
Shailendra Singh (P.W.-6 at the trial)
between 6:30 a.m. and 8:30 a.m. on
09.09.2004. This document is Ex.Ka-7 at
the trial.

8. The Investigating Officer (P.W.-6)
also recovered plain soil and blood-stained
soil from the spot. The Recovery Memo for
these items is Ex.Ka-11 at the trial. Further,
315 bore bullet found near dead body of
Ram Sharan Tiwari, was recovered by
P.W.-6 on 09.09.2004. Its Recovery Memo
is Ex.Ka-12 at the trial.

9. On the same day, a pair of black
slippers(size 8 number), blood-stained
pocket diary, a paper, pen and Rs.155/-
(including four coins) belonging to the
deceased
Ram
Sharan
Tiwari,
were
recovered from the spot. The Recovery
Memo for these items is Ex.Ka-13 at the
trial. Further, a pair of size seven black
slippers and a white 'angocha' (towel),
allegedly belonging to the accused Gore
Lal were also recovered from the spot by
P.W.-6 in the presence of witnesses Ram
Sajivan, Rakesh Kumar and others. The
Recovery Memo for these items is Ex.Ka14 at the trial.

10. The post-mortem examination of
the deceased Ram Sharan Tiwari was
conducted by Dr. D.C. Tiwari (P.W.-4 at
the trial) on 09.09.2004 at about 3:00 p.m.
The following ante-mortem injuries were
found on the body:-

(i)"Gunshot wound of entry 1cm
x 1cm on the centre of chest between two
nipple margins of wound are inverted and
abraded collar present. There is tattooing
on the chest over an area of 14cmX14cm
around the wound clotted blood present.

(ii)Gunshot wound of exit 1.5cm x
1.5cm on the left side of back of chest just
below the angle of scapula(left) bone,
margins of wound are everted and clotted
blood present around the wound."

11. According to the Doctor (P.W.-4),
Ram
Sharan
Tiwari
died
due
to
haemorrhage resulting from the antemortem injuries, about one day prior to the
post-mortem examination.

12. On 14.09.2004, accused Umesh
was arrested at about 6:00 a.m. based on
information from an informer. Following
his arrest, Umesh disclosed to S.O.
Shailendra Singh (P.W.-7) that he had
murdered
Ram
Sharan
Tiwari
on
08.09.2004 and could lead them to the
country-made weapon used in the crime.
Later, at his pointing out, a 315 bore
country-made weapon(tamancha) and an
empty 315 bore cartridge lodged in its
muzzle were recovered at about 7:00
a.m., which was concealed in a strawfilled room, of his dilapidated house in
village Pahadi Bhetari. This recovery
was made in the presence of public
witnesses Ram Bodh and Jagmohan
Yadav. As accused Umesh could not
produce the requisite license under the
Arms Act, Case Crime No. 169 of 2004,
under Section 25 of the Arms Act was
registered against him at P.S. Muskura,
District Hamirpur, on 14.09.2004 at
about 9:15 a.m.

13. The recovery memo for the
country-made weapon and empty cartridge
is Ex.Ka-16 at the trial.
8 All. Umesh Vs. State of U.P.
975

14. During investigation, various items
were
sent
to
the
Forensic
Science
Laboratory(FSL), Agra. These included the
plain soil and blood-stained soil, the bullet
recovered from the spot, currency notes,
coins, a diary, a pen, a pair of slippers and a
handkerchief belonging to the deceased,
Ram Sharan Tiwari. Further, a pair of
slippers and an 'angocha' (towel) allegedly
belonging to accused Gore Lal along with
Ram
Sharan
Tiwari's
pant,
shirt,
vest(baniyan), underwear, 'kalawa' (sacred
thread) and other items, were also sent to
the FSL. The FSL report, dated 16.05.2005
is Ex.Ka-22 at the trial. This report
confirmed the presence of human blood on
the blood-stained soil, currency note, diary,
pen, a pair of slippers, pant, shirt, vest,
underwear, 'kalawa' and one other item
belonging to the deceased, Ram Sharan
Tiwari. However, no blood was found on
the bullet, handkerchief of the deceased,
slippers
and
the
'angocha'
allegedly
belonging to accused Gore Lal.

15. The country-made weapon and the
empty 315 bore cartridge, recovered at the
pointing out of accused Umesh, were also
sent to the FSL, Agra. It's report dated
03.06.2005 is Ex.Ka-23 at the trial.
According to this report, the empty
cartridge found in the muzzle of the
country-made weapon, was indeed fired
from it.

16. After the investigation, charge
sheet in Case Crime No.167/04 was
submitted
by
S.H.O.
Aditya
Kumar
Dwivedi (P.W.-9 at the trial) against
accused Umesh, Mahesh and Gore Lal
under Sections 302/34, 504 and 506 I.P.C.
on which cognizance was taken. Besides
this, charge sheet under Section 25 Arms
Act was submitted against the accused
Umesh Chandra by S.I. Geetam Singh
(P.W.-8), on which cognizance was taken
by the trial court. The trial court framed
charges against the accused Mahesh and
Gore Lal, under Section 302 read with 34
I.P.C. and against accused Umesh under
Sections 302, 504, 506 I.P.C. and Section
25 Arms Act. All the accused pleaded not
guilty and claimed trial.

17. During trial, the prosecution
examined the following witnesses, who
proved the following documents/material
objects:

S.No.
Witnesses
Document
Proved
1.
First informant Sushil
Kumar examined as
P.W.-1
Proved
the
'Tehrir'
as
Ex.Ka-1
2.
Ram
Sajivan
examined as P.W.-2
Not proved any
document
3.
Rakesh
Kumar
examined as P.W.-3
Not proved any
document
4.
Dr.
D.C.
Tiwari
examined as P.W.-4
Proved the postmortem report of
the
deceased
Ram
Sharan
Tiwari as Ex.Ka2 and pant, shirt,
baniyan,
underwear,
sacred
thread
(janau)
and
kalawa
of
deceased
as
material Ex-1 to
material Ex-6.
5.
H.C.P
Shyam
Swaroop examined as
P.W.-5
(i)
Proved
the
check
FIR
of
Case Crime No-
167/2004
as
Ex.Ka-3
and
carbon copy of
G.D. Entry No.2
as Ex.Ka-4.
(ii) Proved the
check
FIR
of
Case Crime No169/2004
as
Ex.Ka-5
and
carbon copy of
G.D. Entry No.12
976 INDIAN LAW REPORTS ALLAHABAD SERIES
as Ex.Ka-6.
6.
S.I. Shailendra Singh,
1st
Investigating
Officer, examined as
P.W.-6
(i)
'Panchayatnama'
of the deceased
as Ex.Ka-7 and
prosecution
papers prepared
for post mortem
examination
as
Ex.Ka-8
to
Ex.Ka-10.
(ii)
Recovery
Memo of plain
and blood-stained
soil from the spot
as Ex.Ka-11 and
the
Recovery
Memo
of
315
bore
bullet
as
Ex.Ka-12
and
these objects as
material Ex-12 to
14.
(iii)
Recovery
Memo of pair of
black
slippers,
blood-stained
diary, baniyan, a
pen and Rs.155/-
(including
four
coins) belonging
to the deceased
as Ex.Ka-13 and
these objects as
material Ex-7 to
11.
(iv)
The
Recovery Memo
of
a
pair
of
slippers
and
'angocha'
belonging
to
accused Gore Lal
as Ex.Ka-14 and
these objects as
material
Ex-15
and 16.
(v) Site Plan of
Case
Crime
No.167/2004
as
Ex.Ka-15.

7.
S.O.
Shailendra
Singh,
2nd
Investigating Officer
(i)
Proved
the
Recovery Memo
of country-made
examined as P.W.-7.
315 bore weapon
and
empty
cartridge
recovered at the
pointing out of
accused
Umesh
as Ex.Ka-16 and
these
objects,
including
three
test cartridges as
material Ex-17 to
19(corrected
number
according to trial
court judgment)
(ii) Site plan of
the recovery spot
as Ex.Ka-17.
8.
S.I.
Geetam
Singh
examined as P.W.-8.
He
is
the
Investigating Officer
of
Case
Crime
No.169/04
against
accused Umesh under
Arms Act.
Proved the Site
Plan
of
Case
Crime
No.169/2004, as
Ex.Ka-18,
the
sanction granted
by the District
Magistrate under
the Arms Act as
Ex.Ka-19 and the
charge
sheet
submitted against
the
accused
Umesh Chandra
under the Arms
Act as Ex.Ka-20.
9.
S.O. Aditya Kumar
Dwivedi,
3rd
Investigating Officer
of Case Crime No167/2004 examined as
P.W.-9.
Proved
the
charge
sheet
submitted against
the accused in
Case Crime No.
167/2004 as Ex.
Ka- 21.

18. The accused in their statements
under Section 313 Cr.P.C. have admitted
that the first informant Sushil Kumar along
with witnesses Ram Sajivan and Rakesh
Kumar are residents of their village Pahadi
Bhetari, police station Muskura but they
have denied the prosecution story of
murder of Ram Sharan Tiwari. The accused
have submitted that they have been falsely
implicated in this case due to enmity.
8 All. Umesh Vs. State of U.P.
977

19. Learned counsel for the convicted
accused-appellant and acquitted accusedrespondents
submitted
that
the
first
informant Sushil Kumar P.W.-1 is not an
eye witness of the alleged incident. The
F.I.R. in this case has been registered antetime. In reality, it was registered in the next
morning,
which
makes
the
whole
prosecution case doubtful, which is proved
from the 'Panchayatnama' and prosecution
papers prepared for getting post-mortem
examination of the body of deceased Ram
Sharan Tiwari. It was further submitted that
P.W.-2 Ram Sajivan and P.W.-3 Rakesh
Kumar are not reliable witnesses, who have
given evidence against the accused persons
due to enmity. It was further submitted that
the statement of P.W.-2 and P.W.-3, under
Section 161 Cr.P.C., was recorded with
considerable delay making their whole
testimony unreliable. P.W.-2 and P.W.-3
stated that they identified the accused
persons in electric light, but from the
evidence of D.W.-3, it was proved that at
the time of the alleged incident, there was
no electric supply in the village, there was
no source of light, it was pitch dark and as
such it was impossible for P.W.-2 and
P.W.-3 to identify the assailants. It was
further submitted that the alleged recovery
of country-made weapon and cartridge
from accused Umesh was doubtful because
his disclosure statement was not recorded
and proved in accordance with law, by
P.W.-7 and further no independent witness
in support of the alleged recovery was
examined by the prosecution. Further, it
was not proved from the report of FSL that
the
alleged
recovered
country-made
weapon, was used in the commission of
offence. It was further submitted that the
prosecution failed to prove the motive of
the crime, as well as the existence of
common intention on the part of the
accused Mahesh and Gore Lal with accused
Umesh, as such, they had been rightly
acquitted by the trial court.

20. With these submissions, it was
prayed that the Criminal Appeal preferred
by accused Umesh be allowed and the
Government Appeal against the acquittal
filed by the State, against accused Mahesh
and Gore Lal be dismissed.

21. Learned A.G.A. for the State
submitted that the incident took place at
10:30 p.m. on 08.09.2004, which was
witnessed by P.W.-2 and P.W.-3, who
informed
the
first
informant
P.W.-1
regarding
the
incident
promptly
and
thereafter F.I.R. regarding the incident was
lodged on the night of 08/09.09.2004 at
00.15 hours at police Station Muskura
against all the three accused Umesh,
Mahesh and Gore Lal and in this F.I.R.
P.W.-2 and P.W.-3 were named as eye
witnesses. He further submitted that F.I.R.
in this case was promptly registered in
which all the material facts relating to the
incident were narrated and the F.I.R.
version was proved in accordance with law
by the prosecution witnesses. He further
submitted that the spot of occurrence was
proved from the recovery of blood stained
soil, objects belonging to deceased, bullet
of 315 bore and a pair of slippers and
'angocha' of accused Gore Lal. Further
P.W.-2 and P.W.-3 proved that accused
Mahesh and Gore Lal jointly gave an
exhortation
to
co-accused
Umesh
to
commit the crime and after the commission
of crime, both Mahesh and Gore Lal fled
from the spot, who were chased. The
conduct of accused Mahesh and Gore Lal
before and after the commission of crime
proved that they had common intention
with
convicted
accused
Umesh,
for
committing the murder of Ram Sharan
Tiwari, but the trial court recorded a
978 INDIAN LAW REPORTS ALLAHABAD SERIES
perverse finding that the prosecution failed
to prove any motive on the part of the
accused Mahesh and Gore Lal. Learned
A.G.A.
further
submitted
that
the
prosecution proved the motive on the part
of the accused persons for committing the
crime. Just before the incident, in the
presence of P.W.-2 and P.W.-3, an
altercation took place between the deceased
and accused Umesh, in which Umesh
abused and threatened the deceased with
dire consequences. Prior to this, a dispute
took place between the deceased and
accused Umesh regarding breaking of a
coal furnace, due to which accused Umesh
bore enmity towards deceased Ram Sharan.
Learned A.G.A. further submitted that in a
case based on direct ocular evidence,
prosecution is not required to prove motive
of the offence, but in this case prosecution
proved the motive of the offence. He
further submitted that P.W.-2 and P.W.-3
are independent and unrelated witness, who
were having no enmity with the accused
persons. Further P.W.-2 and P.W.-3 and all
the accused are residents of the same
village Pahadi Bhetari, who were known to
each other, as such, there is no dispute
regarding the identification of the accused
persons.
P.W.-2
and
P.W.-3
had
specifically mentioned that they saw and
recognized the accused persons in the torch
and electric light. Further since accused
Umesh openly expressed his displeasure
towards the deceased for showing his
attitude(rangbazi) at the liquor vend and
accused Mahesh and Gore Lal made an
exhortation at the spot, as such, the accused
persons were also recognized by their voice
by P.W.-2 and P.W.-3. It was further
submitted that only one conclusion is
possible in the facts and circumstances of
the case, that all the accused had common
intention to murder Ram Sharan Tiwari and
in furtherance of that common intention,
accused Umesh shot dead Ram Sharan
Tiwari with a country-made weapon. In
view of this uncontroverted and reliable
evidence, the trial court committed grave
error by recording a perverse finding that
the prosecution failed to prove its case
against acquitted accused Mahesh and Gore
Lal. Learned A.G.A. submitted that in the
light of the above evidence on record, the
Criminal Appeal filed by convicted accused
Umesh be dismissed and the Government
Appeal filed against acquittal of accused
Umesh(for acquittal under Section 504,506
I.P.C), Mahesh and Gore Lal(for acquittal
under Section 302/34 I.P.C) be allowed and
thereafter, they also be convicted.

22. We have heard, learned counsel
for both the parties and perused the record.

23. First informant Sushil Kumar
(P.W.-1) deposed in his examination-inchief that on 08.09.2004 at about 10:35
p.m. Ram Sajivan (P.W.-2) and Rakesh
Kumar (P.W.-3) came to his house and
informed him about the incident. He
claimed that he was awake at that time.
Thereafter he along with his uncle Ram
Sanehi, Sunil and Manikchand etc. reached
in front of the house of Vasudev where he
saw the dead body of his brother Ram
Sharan. He further deposed that he left
Santram etc. near the dead body and
returned to his house, where he dictated the
application to his younger brother Vimal,
which he proved as Ex. Ka-1 during trial,
and thereafter he gave the application at
Police Station Muskura, on the basis of
which F.I.R. was registered in this case.
P.W.-1 further deposed that accused Umesh
used to visit Raju Mishra of village Kharela
where work of coal furnace used to take
place and regarding the same furnace, an
altercation took place about one and half
months prior to the incident, between
8 All. Umesh Vs. State of U.P.
979
deceased Ram Sharan and accused Umesh
and due to this, accused Umesh bore
enmity towards Ram Sharan. He further
deposed in his examination-in-chief that his
brother Ram Sharan, P.W.-2 and P.W.-3
had gone in night at about 9:00 p.m.
towards a liquor vend, where they met
accused Umesh, who abused Ram Sharan
and threatened him with dire consequences,
thereafter Ram Sharan, P.W.-2 and P.W.-3
went towards Chamardha pond to defecate
and accused Umesh had also gone to his
house. He further deposed that after
defecating, the above three persons, were
going to participate in Ramayana recital at
the house of Babbu Pandit.

24.
P.W.-1
deposed
in
crossexamination that police station Muskura is
at a distance of about 7 Km from his village
and by cycle he can reach the police station
in about 45 minutes. He further deposed
that the incident occurred in front of the
house of Vasudev Kachi, who resides
therein with his family members. He
admitted that he had scribed the application
(Ex.Ka-1) at his house from Vimal Kumar.
He
claimed
that
he
received
the
information regarding the incident at about
10:35 p.m. and at that time he was viewing
television and was present at his house and
on getting this information, he went to the
spot where the dead body was lying and at
that time Santram was present near the
dead body and after seeing the dead body,
he returned to his house and thereafter had
got the Ex. Ka-1 scribed by Vimal. He
further stated that the spot of occurrence is
at a distance of about 300 meters from his
house. He remained at the spot for about 10
to 15 minutes. It took about half an hour to
get the Ex.Ka-1 scribed and thereafter he,
Manikchand and Sunil proceeded to the
police station on a horse cart, where they
reached in about half an hour. After getting
the F.I.R. registered they waited at police
station for about one and half hours,
thereafter, the police personnel along with
them returned to the village. He returned
with the police personnel in jeep. P.W.-2
and P.W.-3 met the police personnel in the
morning when Panchayatnama of the dead
body was conducted at about 8:30 a.m. He
had not accompanied the dead body to the
police station, but had gone to the place
where the post mortem examination was
conducted. He further admitted that the
altercation regarding the coal furnace
between deceased Ram Sharan and accused
Umesh had not occurred in his presence. It
occurred at Kharela which is at a distance
of about 12-13 k.m. from his village. He
further claimed that the coal furnace neither
belonged to deceased Ram Sharan nor to
accused Umesh, rather it belonged to Raju
Mishra. He denied the suggestion that Ram
Sharan was murdered in the night at about
11-12 p.m. and he became aware of it in the
morning.

25. From the evidence of Sushil
Kumar (P.W.-1) it is evident that he is not
an eye-witness of the incident. At the time
of the incident, he was awake at his house
viewing television then at about 10:35 p.m.
he was informed about the incident by Ram
Sajivan (P.W.-2) and Rakesh Kumar (P.W.-
3). Then he went to the spot where he saw
his brother Ram Sharan lying dead. Then
he returned back to his house and thereafter
dictated the application to Vimal, which he
later proved as Ex.Ka-1. Later on, on the
basis of which, F.I.R. in this case was
registered at police station Muskura.

26. From the evidence of P.W.-1 it is
also evident that prior to the incident, an
altercation took place between the deceased
Ram Sharan and accused Umesh about one
and half months back, regarding the coal
980 INDIAN LAW REPORTS ALLAHABAD SERIES
furnace and since then, accused Umesh
bore enmity towards Ram Sharan. It is
further proved that on the day of the
incident, at about 9:00 p.m. Ram Sharan,
Ram Sajivan (P.W.-2) and Rakesh Kumar
(P.W.-3) had gone towards a liquor vend
where they met accused Umesh, who had
abused Ram Sharan and threatened him
with dire consequences and thereafter Ram
Sharan, Ram Sajivan (P.W.-2) and Rakesh
Kumar
(P.W.-3)
had
gone
towards
Chamardha
pond
for
defecating
and
accused Umesh had proceeded towards his
house. It is true that the above altercations
did not occur in the presence of P.W.-1 but
still he was having knowledge about them
and as such, proved that accused Umesh
bore enmity towards his deceased brother
Ram Sharan.

27. Ram Sajivan (P.W.-2) deposed in
his examination-in-chief that he knew
accused Umesh and Mahesh, who are
residents of his village besides accused
Gore Lal, who is a resident of another
'mohalla' but Gore Lal used to remain in
the company of accused Umesh and
Mahesh. He deposed that he knew the first
informant's brother Ram Sharan who was
murdered in the night of 08.09.2004 at
about 10:30 p.m. in front of the house of
Vasudev Kachi. He further deposed that
Ram Sharan was murdered by shooting in
the chest by accused Umesh from a country
made weapon (tamancha). He further
deposed that at the time of incident, he and
Rakesh Kumar(P.W.-3) were with Ram
Sharan
and
were
returning
from
Chamardha pond after defecation and were
going to attend recital of Ramayana being
held at the house of Babbu Pandit and
when they reached near the house of
Vasudev Kachi then accused Umesh,
Mahesh and Gore Lal met. Accused Umesh
was armed with 'tamancha', who said to
Ram
Sharan
that
he
was
showing
attitude(rangbazi) at the liquor vend and
then, jointly accused Gore Lal and Mahesh
exhorted that Ram Sharan be killed and
acting on this exhortation accused Umesh
fired from 'tamancha' on Ram Sharan, who
died on the spot. He further claimed that he
identified the accused in the light of bulb
hanging on an electric pole situated in front
of the house of Vasudev, as well as, in the
light of the bulb hanging in front of the
house of Ramphal. Beside this, accused
Mahesh was also lighting a torch. He
further stated that Santram had also
witnessed this incident and he had left
Santram on the spot, before he and Rakesh
Kumar (P.W.-3) proceeded to inform
Sushil Kumar (P.W.-1/ first informant)
about the incident. He further proved that
prior to the above incident, on the same day
at about 9:00 p.m. he, Ram Sharan and
Rakesh Kumar (P.W.-3) had gone towards
a liquor vend where they met accused
Umesh, who threatened Ram Sharan
because previously he had a hand in
breaking the coal furnace. He further
proved that all the three persons i.e. he,
Ram Sharan and Rakesh Kumar had
proceeded to Chamardha pond and accused
Umesh had also proceeded to his house. He
also proved that a month prior to the above
incident, in Kharela Village, an altercation
occurred between Ram Sharan and Umesh
regarding a coal furnace and since then,
accused Umesh bore enmity towards Ram
Sharan. He further claimed that they had
challenged the accused persons after the
incident, then accused Umesh and Mahesh
fled. They had a scuffle with accused Gore
Lal due to which a pair of slippers and
'angocha' belonging to him, was left behind
before he fled. This witness identified his
signature on the recovery memo of the pair
of slippers and 'angocha' belonging to the
accused
Gore
Lal,
prepared
and
8 All. Umesh Vs. State of U.P.
981
subsequently proved by P.W.-6 Shailendra
Singh as Ex.Ka-14.

28. P.W.-2 denied the suggestion in
the cross-examination that accused Gore
Lal was not having any friendship with
accused Umesh and Mahesh. He stated that
he was present in the village Kharela when
the altercation took place between accused
Umesh and Ram Sharan, regarding the coal
furnace, which occurred in front of the gate
of Badshah Singh at Charkhari Road, from
which Badshah Singh's house is at a
distance of about 500 meters and at that
time, Badshah Singh was not present at the
spot. He claimed that he along with Umesh
and Ram Sharan were present at that time,
but neither any assault took place during
the altercation nor any complaint was made
at the police station. He admitted that his
statement was recorded by the Investigating
Officer about a month after the incident at
the police station in which, he had told him
that the incident at village Kharela occurred
in his presence, but if this has not been
mentioned in his statement, then he cannot
specify it's reason. He further stated that if
the Investigating Officer has mentioned
that the incident in Kharela took place 2-2
1⁄2 month prior to the incident then he
cannot specify it's reason. He further
denied the suggestion that no altercation
occurred in village Kharela between Umesh
and Ram Sharan Tiwari. He further stated
that on the day of the incident, they neither
took liquor from the liquor vend nor
reached the shop of Udal, but returned from
the liquor vend and then proceeded towards
Chamardha pond for defecation. After
defecation, they remained present at a well
situated near the pond for about 1-1.15
hours and continued talking, after which
they proceeded to attend the Ramayana
recital which was being held at the house of
Babbu Pandit, which is at a distance of
about 300 meters from the well. The
Ramayana recital was going on since 5-6
days, which was organized by the villagers,
but there was no festival. He further stated
that the house of the first informant is at a
distance of about 100 meters from the
house of Babbu Pandit. He further stated
that when the altercation occurred in front
of liquor vend, then besides them, none was
present. The salesman of the liquor vend
was sitting inside the vend, after closing it.
The vend closes at about 10:00 p.m. He
was not aware that the vend remained open
the whole night. He disclosed that it took
them about 10 minutes to reach the spot
from the well, which is at a distance of
about 40-45 meters from the well. He
proved that he saw the accused from a
distance of 2-3 hands, and at that time they
had crossed the door of Vasudev Kachi's
house and had reached the chabutara. He
further
proved
that
he
had
heard
them(accused) talking about the allegation
of showing attitude (rangbazi) levelled
against them at the vend, but he was neither
afraid of its consequences nor they had
attempted to flee. Accused Umesh fired
from a distance of about 2-3 hands and at
that time, Umesh and Ram Sharan Tiwari
were facing one another. Ram Sharan
Tiwari fell instantly after being shot, he
could not run. He further proved that only
one shot was fired at the spot and
thereafter, the accused fled in the direction
from which they had arrived at the spot. He
further stated that they tried to apprehend
accused Gore Lal and chased him, but he
fled. He further stated that they proceeded
towards the house of first informant(Sushil
Kumar) one minute after the incident and it
took them 4-5 minutes to reach there and at
that time Sushil Kumar was watching T.V.
He
and
P.W.-3
remained
at
first
informant's house for about ten minutes
and after informing P.W.-1 about the
982 INDIAN LAW REPORTS ALLAHABAD SERIES
incident, he and P.W.-3 had left for their
house. He further stated that from the house
of Vasudev Kachi towards east at a
distance of about 8-10 paces, there is an
electric pole on which a bulb was lit and in
its light, they witnessed the incident. He
further stated that he had not told this to the
Investigating Officer because he had not
enquired about this. He further admitted
that he had not told the Investigating
Officer that at the time of the incident
accused Mahesh was having a torch in his
hand because this was not asked from him
by the Investigating Officer. He stated that
he met the Investigating Officer on the spot
at about 6:00 - 6:30 a.m. and at that time
the 'Panchayatnama' proceedings were
going on. The dead body was sealed and
taken in a tractor. He remained present in
the village. Thereafter, on the second day
of the incident he proceeded to his sister's
matrimonial house situated in village
Bagra, Tehsil Sarila, District Hamirpur due
to fear and he returned after about 15 days
to his village and thereafter, he remained
present in his village.

29. Rakesh Kumar P.W.-3 deposed in
his examination-in- chief that he knows
accused Umesh, Mahesh and Gore Lal.
Umesh and Mahesh are real brothers
whereas accused Gore Lal is having good
terms with them. He also knows Sushil
Kumar, who was the brother of the
deceased Ram Sharan, who was murdered
about 7-8 months back in the night at 1010.30 p.m., on the way, in front of the
house of Vasudev Kachi. Ram Sharan was
shot dead by Umesh from a country made
weapon and at that time, he and Ram
Sajivan were with Ram Sharan. He further
deposed that they were returning after
defecation from Chamardha pond and were
going to participate in the Ramayana recital
being held at the house of Babbu Pandit
and during this, when they reached near the
house of Vasudev Kachi, then accused
Umesh, Mahesh, Gore Lal came, Umesh
was armed with 'tamancha', who said to
Ram
Sharan
that
he
was
showing
attitude(rangbazi) at the liquor vend and at
that moment, accused Mahesh and Gore
Lal exhorted accused Umesh by saying that
"it is a good opportunity, he should not
escape, shoot him dead" and on this
exhortation, Umesh shot Ram Sharan in the
chest with a 'tamancha'. He further
deposed that they challenged the accused,
then accused Mahesh and Umesh fled and
they tried to apprehend accused Gore Lal,
but in the scuffle he fled leaving his
slippers and 'angocha' behind. He further
deposed that he identified accused in the
light of electric bulb hanging from the pole
and also in the torch light held by accused
Mahesh. He further claimed that the
incident was also witnessed by Santram. He
further stated that on that day before the
incident, at about 09:00 p.m. he, Ram
Sajivan and Ram Sharan had gone towards
the liquor vend, where they met Umesh,
who abused Ram Sharan and threatened
him with dire consequences on the pretext
that he was involved in breaking the
furnace
and
thereafter
Umesh
had
proceeded towards his house and they had
gone to Chamardha pond for defecation.
This witness identified his signature on the
recovery memo Ex.Ka-14 prepared by
P.W.-6 while taking into possession the
slippers and 'angocha' of accused Gore Lal.

30. P.W.-3 admitted in his crossexamination that he was aware that in
village Kharela a coal furnace had been
broken about one and a half months prior to
the incident, but he was not present at that
time. He was not aware that regarding the
above coal furnace, any report was
registered or not. He further stated that he
8 All.