# Veerpal & Ors v. State of U.P

- **Citation:** (2023) 5 ILRA 979
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Criminal Appeal No. 4774 of 2016
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/veerpal-ors-v-state-of-u-p-50432
- **Pages:** 26

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860- Sections 147 &
302/149-Challenge
to-Conviction-
the
testimony of P.W.-1 has to be viewed in
light of the testimony of eyewitness,
P.W.-3
as
well
as
all
the
other
eyewitnesses, including the brother of the
P.W.-1 (i.e., the P.W.-5) who all negated
the case of the prosecution regarding the
guilt
of
the
accused-Though
leading
questions
were
put
to
the
hostile
witnesses
regarding
their
testimony
against the prosecution to the effect that
due to threat or a compromise they were
giving such a testimony, the witnesses
denied the same-P.W.-5, the witness who
turned hostile, was the real brother of the
deceased and no such circumstance or
motive has been demonstrated as proved
by the prosecution that would lead to a
finding that his testimony is unbelievableThe testimony made by the P.W.-3 and
P.W.-8 as hostile witnesses that the
deceased was found impaled on the knife
like grille behind the shape of the
deceased has not been explored by the
trial court. The doctor conducting the
post-mortem examination (PW-4) that the
injuries of the deceased were not stab
wounds to create a doubt as to the cause
of the injuries- neither the P.W.-1 nor the
P.W.-3 nor the P.W.-8 were present at the
site when the accused allegedly reached
the site of the incident on their vehicles.-
It were only the independent witnesses
who could have testified the factum of the
accused reaching the site and advancing
towards the deceased-The location of the
P.W.-1 at the time of the incident is itself
under cloud in view of the testimonies of
P.W.-3
and
P.W.-8.
The
P.W.-8
has
testified the reason for the police directing
their investigation against the accused
that the police were angered by the
behaviour of the accused towards them
during an incident some days prior to the
death of the deceased- the police had
stated that since foreigners were involved,
the case would be difficult to be proved-
There is an important element with regard
to lack of adequate lighting at the site and
so it is doubtful that the P.W.-1 could have
actually seen the faces of the accused
from a distance of 67 steps on a winter
night-Given
the
entire
facts
the
circumstances, the accused persons are
entitled to benefit of doubt-The case of
the prosecution has not been proved
beyond reasonable doubt.

The criminal appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,928 of 92,153. This is a partial read: ask again with offset=39928 for what follows._

5 All. Veerpal & Ors. Vs. State of U.P.
979
learned Sessions Judge shall stand modified
to the aforesaid extent. Record and
proceedings be sent back to the Court
below forthwith.
----------
(2023) 5 ILRA 979
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Criminal Appeal No. 4774 of 2016

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

Counsel for the Appellants:
Sri Rajiv Lochan Shukla, Sri Ankur Singh
Kushwaha, Sri Bhishm Pal Singh, Sri J.B. Singh,
Sri Jai Prakash Singh, Sri Rudra Pratap Mishra,
Sri Ajay Kumar, Sri V.P. Srivastava(Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Pradeep Kumar Bhardwaj

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860- Sections 147 &
302/149-Challenge
to-Conviction-
the
testimony of P.W.-1 has to be viewed in
light of the testimony of eyewitness,
P.W.-3
as
well
as
all
the
other
eyewitnesses, including the brother of the
P.W.-1 (i.e., the P.W.-5) who all negated
the case of the prosecution regarding the
guilt
of
the
accused-Though
leading
questions
were
put
to
the
hostile
witnesses
regarding
their
testimony
against the prosecution to the effect that
due to threat or a compromise they were
giving such a testimony, the witnesses
denied the same-P.W.-5, the witness who
turned hostile, was the real brother of the
deceased and no such circumstance or
motive has been demonstrated as proved
by the prosecution that would lead to a
finding that his testimony is unbelievableThe testimony made by the P.W.-3 and
P.W.-8 as hostile witnesses that the
deceased was found impaled on the knife
like grille behind the shape of the
deceased has not been explored by the
trial court. The doctor conducting the
post-mortem examination (PW-4) that the
injuries of the deceased were not stab
wounds to create a doubt as to the cause
of the injuries- neither the P.W.-1 nor the
P.W.-3 nor the P.W.-8 were present at the
site when the accused allegedly reached
the site of the incident on their vehicles.-
It were only the independent witnesses
who could have testified the factum of the
accused reaching the site and advancing
towards the deceased-The location of the
P.W.-1 at the time of the incident is itself
under cloud in view of the testimonies of
P.W.-3
and
P.W.-8.
The
P.W.-8
has
testified the reason for the police directing
their investigation against the accused
that the police were angered by the
behaviour of the accused towards them
during an incident some days prior to the
death of the deceased- the police had
stated that since foreigners were involved,
the case would be difficult to be proved-
There is an important element with regard
to lack of adequate lighting at the site and
so it is doubtful that the P.W.-1 could have
actually seen the faces of the accused
from a distance of 67 steps on a winter
night-Given
the
entire
facts
the
circumstances, the accused persons are
entitled to benefit of doubt-The case of
the prosecution has not been proved
beyond reasonable doubt.

The criminal appeal is allowed. (E-6)

List of Cases cited:

1. Subramanya Vs St. of Karn.

2. Ramanand @ Nandlal Bharti Vs St. of U.P.

3. Pulukuri Kottaya & ors.. Vs The King Emperor

4. Harjinder Singh @ Bhola Vs St. of Punj.
980 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Ganapathi & anr.. Vs St. of T.N.

6. Amrik Singh Vs St. of Punj. (2022) 9 SCC 402

7. Pramila Vs St. of U.P.(2021) 12 SCC 550

8. Krishan Kumar Malik Vs St. of Har. (2011) 7
SCC 130

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Jayant Banerji, J.)

1. This criminal appeal arises against
the judgment of conviction and sentence
dated 31.08.2016 passed by the First
Additional Sessions Judge, Gautam Budh
Nagar in Sessions Trial No. 248 of 2013
(State of U.P. Vs. Veerpal and three others)
arising out of Case Crime No.1007 of 2012
under Sections 147, 302/149 IPC, P.S.
Kasna, District Gautam Budh Nagar,
whereby, all the appellants have been
convicted for offences under Sections 147,
302/149 IPC and sentenced to go one year
rigorous imprisonment under Section 147
IPC and to undergo life imprisonment and
fine of Rs. 10,000/- each under Section
302/149 IPC and in default of payment of
fine one year of additional imprisonment
has been awarded. All the above mentioned
sentences have been directed to run
concurrently.

2. An FIR (Exhibit Ka-2) was lodged
on 16.11.2012 on the basis of information
(Exhibit Ka-1) received on that day at
22:30 hours bearing FIR No.786 under
Sections 147/302, 34 I.P.C., Police StationKasna, District Gautam Budh Nagar. The
informant, Vedpal s/o Shobha Ram r/o
Village-Chuhadpur, Police Station-Kasna,
District Gautam Budh Nagar, stated that on
the previous day, that is 15.11.2012, there
was an altercation between Ved Prakash @
Kalu with Pammi @ Ram Autar s/o
Veerpal and they had a fight, and with that
ill feeling, on 16.11.2012 at 8:30 p.m. in
the night, Veerpal and his brother Kalu @
Balraj and his sons namely Pammi @ Ram
Autar and Bhura and two other people
came in their Swift car and one Pulsar
motorcycle to the shop of his brother Ved
Prakash @ Kalu when his brother was
sitting in his shop. Immediately on coming,
Veerpal hurled abuses and said kill Ved
Prakash and he should not escape. To save
his life, his brother ran towards the
highway and Veer Pal and his brother Kalu
@ Balraj, Pammi @ Ram Autar and Bhura,
chased him to the open space near his shop
and caught him and, they assaulted him
with knives and belt, due to which his
brother fell on the spot. On hearing shouts,
the complainant and his brother Chetram,
Devendra, Mahendra, Sahamal ran to save
him, but seeing them approach, those
people fled away on their Swift car and
motorcycle. It was stated that his brother's
corpse was lying at the site.

3. An inquest report (Exhibit Ka-3)
was prepared on 17.11.2012 and a
postmortem examination was conducted
and a report (Exhibit Ka-4) was also
prepared on the same day. The complainant
P.W.- 1 proved his written complaint
(Exhibit Ka-1). The FIR (Exhibit Ka-2)
was proved by the P.W.-2, Balraj Singh,
the FIR writer. The inquest report (Exhibit
Ka-4) was proved by P.W.-6, Anand Pal
Singh, the Inspector who conducted the
inquest. The postmortem report was proved
by P.W.-4, Dr. Sant Ram Verma, who had
conducted the postmortem examination.
The inquest was concluded on 17.11.2012
at 2:00 a.m. in the presence of five
witnesses. The inquest report reflects that
on receiving the information regarding the
incident and that the corpse of Ved Prakash
was lying on the road, the officer who
conducted the inquest noted that for want
5 All. Veerpal & Ors. Vs. State of U.P.
981
of light at the site and in order to maintain
law and order, as per directions of the
Station House Officer, the corpse of the
deceased was sent by a police vehicle to
Kailash Hospital for the inquest. The
opinion of the witnesses to the inquest was
that
the
deceased-Ved
Prakash
was
murdered by causing knives wounds and
that
a
postmortem
examination
be
conducted. The postmortem examination
was conducted on 17.11.2012 at 2:00 p.m.
by the P.W.-4 and the following injuries
were noted :-

i. Incised wound size 3 X 2 cm cavity
deep present on right axilla.

ii. Incised wound size 3 X 3 cm bone
deep present on right upper arm medially
and situated 2 cm below right axilla.

iii. Incised wound size 6 X 4 cm X
bone deep present on right upper arm
situated 12 cm below right shoulder
acromion joint.

iv. Incised wound size 14 X 4 cm X
muscle deep present on right elbow joint
medially.

v. Incised wound size 6 X 4 cm X
bone deep present on right elbow joint
laterally.
vi. Incised wound size 3 X 1 cm X cavity
deep present on back of left lower abdomen
situated 2 cm above the iliac crest.

4. It was noted in the postmortem
report that brain was congested and the
right lung was lacerated on three sides.
There was blood in the right lung and the
left lung was congested. Right chamber of
the heart was filled with blood and the left
chamber was empty. There was 100 ml.
Liquid in the stomach. The time since death
was noted to be about 3⁄4 days. The cause of
death was mentioned as hemorrhage and
shock as a result of the wounds.

5. A recovery memo dated 19.12.2012
(Exhibit Ka-8) reflects recovery of two
weapons on the pointing of each of the two
accused, namely Veerpal and Kalu @
Balraj.
Another
recovery/arrest
memo
dated 20.11.2014 (Exhibit Ka-9) reflects
that Pammi @ Ram Autar s/o Veerpal was
arrested on whose pointing out a knife was
recovered. Another recovery-cum-arrest
memo dated 02.12.2012 (Exhibit Ka-10)
reflects the arrest of one Om Kumar @
Omi, on whose pointing out a knife was
recovered. Yet, another recovery memo
dated 23.12.2012 (Exhibit Ka-15 reflects
that on the pointing out of accused-Sumit
@ Bhura, a knife was recovered. On
17.11.2012 from the site of the incident,
bloodstained soil was taken and sealed.
Normal soil of a nearby area was also taken
in a different box and sealed. This recovery
memo is Exhibit Ka-17. The aforesaid
Exhibit Ka-8, Exhibit Ka-9 and Exhibit Ka10 were proved by P.W.-6, Anang Pal
Singh, Inspector, and Exhibit Ka-15 and
Exhibit Ka-17 were proved by P.W.-9,
Shyama Kant Tripathi, the Investigating
Officer. A site plan dated 17.11.2012
(Exhibit Ka-11) was prepared by Shyama
Kant Tripathi, Inspector-in-Charge, Kotwali,
Kasna, District Gautam Budh Nagar who also
prepared the site plans of the recovery of
weapons used for murder bearing Exhibit
Ka-12, Exhibit Ka-13, and Exhibit Ka-14,
which were proved by him. On record is a
report of the Forensic Science Laboratory,
U.P., Agra dated 21.06.2014 (Exhibit Ka-19).
After conducting the investigation, the
Investigating Officer filed a charge-sheet
dated 30.12.2012 (Exhibit Ka-18), which
was proved by the P.W.-9, under Sections
147, 302 and 34 I.P.C, implicating the five
accused, namely Veerpal, Kalu @ Balraj,
Pammi @ Ram Autar, Bhura @ Sumit and
Om Kumar @ Omi.
982 INDIAN LAW REPORTS ALLAHABAD SERIES

6. On 06.09.2013, the First Additional
Sessions Judge, Gautam Budh Nagar
charged four of the accused namely, (1)
Veerpal, (2) Kalu @ Balraj, (3) Pammi @
Ram Autar, and (4) Om Kumar @ Omi
under the provisions of Section 147 and
302/149 I.P.C. It appears that one of the
accused namely, Bhura @ Sumit was tried
by
a
Juvenile
Court
in
separate
proceedings.

7. The complainant/ eye-witness, Ved
Pal (P.W.-1), testified on 20.11.2013 and
again, pursuant to a recall application filed
by the defense, on 17.01.2014. He
supported the case of the prosecution as an
eye-witness of the
incident.
P.W.-3,
Mahendra, deposed on 09.01.2014 and on
that day, he supported the case of the
prosecution. However, when he again
testified on 15.10.2015, he turned hostile
and whereafter, he was cross-examined by
the
Additional
District
Government
Counsel (Criminal).

8. On 24.02.2015, Chetram (P.W.-5),
the brother of the deceased, gave his
deposition and denied having witnessed the
incident. Since he turned hostile, he was
cross-examined by the ADGC (Criminal).

9. Another witness, Devendra (P.W.-
7), deposed on 10.03.2015, turned hostile
and was cross-examined by the ADGC
(Criminal)

10. Another eye-witness, Shahmal,
(P.W.-8), who deposed on 14.12.2015, also
turned hostile and was cross-examined by
the ADGC (Criminal).

11. Statements under Section 313 of
the Code of Criminal Procedure, 19731 of
all the four accused were recorded on
20.05.2016 wherein they denied their
culpability and said that a false case was set
up against them due to factions in the
village and for exacting revenge.

12. After hearing the learned counsel
for the prosecution and the defence, the
assailed judgment dated 31.08.2016 was
passed whereby the accused Omi @ Om
Kumar was given the benefit of doubt and
was acquitted. As far as the accused
Veerpal, Kalu @ Balraj and Pammi @ Ram
Autar are concerned, the charges against
them were found to be proved beyond any
doubt
and
they
were
sentenced
to
imprisonment and fine.

13. Shri V.P. Srivastava, learned
Senior Advocate assisted by Shri J.P.
Singh, learned counsel for the appellants,
submitted that the prosecution has placed
reliance on the testimonies of P.W.-1 and
P.W.-3. It is submitted that all the accused
were allegedly armed with knives who had
given knife blows to the deceased. It is
submitted that the P.W.-1 and P.W.-3 were
not present at the time of incident and in
any view of the matter, they were chance
and partisan witnesses being relatives of
the
deceased
and,
therefore,
their
testimonies have to be seen very cautiously
by the court. It is urged that as per the FIR,
the deceased took his last breath at the site
of the incident which is corroborated by the
FIR, but the inquest was admittedly done at
Kailash Hospital, Gautam Budh Nagar and
the inquest memo was proved by the P.W.-
6. It is submitted that in the inquest report,
there is overwriting on the date of inquest
and it is reflected therein that there was
insufficient light on the spot and also to
maintain law and order, under orders of the
SHO, the P.W.-6 carried the dead body in a
police vehicle to Kailash Hospital where
the inquest was conducted. It is contended
that there is no valid reason for conducting
5 All. Veerpal & Ors. Vs. State of U.P.
983
the inquest at a place other than the site of
the incident. It is urged that as per the
prosecution case itself, there was ample
light at the site and as per Regulation 132
of
Chapter-XII
of
the
U.P.
Police
Regulations read with Section 174 Cr.P.C.,
the police was required to conduct the
inquest at the site. The learned counsel has
stated that the P.W.-6 has failed to specify
the time of commencement of the inquest.
It is stated that the only plausible reason for
transfer of the deceased to Kailash Hospital
was that the deceased was alive when the
P.W.-6 visited the site and he rushed to him
to the Hospital accordingly.

14. It is further urged by the learned
counsel for the appellants that as revealed
in the FIR, the deceased was also assaulted
with a belt, but there is no allegation that
belt was tied on the neck of the deceased. It
is submitted that in the entire postmortem
report, there is no injury that can be said to
be caused by a belt. It is stated that Pammi
@ Ram Autar was arrested on 20.11.2012
and a knife was recovered on his pointing
out that was hidden underground. Om Kumar @
Omi was arrested on 02.12.2012 and a knife was
recovered on his pointing out from a bush near
the underpass. Bhura @ Sumit (who was a
juvenile) was arrested on 20.03.2012 and on his
pointing out, the knife was recovered from Zero
Point from a bush. All these recovered knives
were blood stained and blood on them was found
disintegrated as reflected in the report of the
Forensic Science Laboratory. The two other
accused Veerpal and Kalu were arrested on
19.12.2012 and one knife each was recovered
from near a shop and from a bush on which no
bloodstains were found. These recoveries, it is
submitted, have been made purportedly under
Section 27 of the Indian Evidence Act, 1872.

15. The learned counsel for the
appellants has referred to the site plan
(Exhibit Ka-11) and submitted that the
Investigating Officer has not shown where
the P.W.-1 and P.W.-3 and other witnesses
were present at or during the incident. He
states that even the FIR is silent as to where
the
witnesses
were
present.
The
postmortem report reflects six injuries of
which, five wounds were found on the right
side and one wound is on the left side of
the deceased. While referring to the report
of Serologist (Exhibit Ka-19), the learned
counsel for the appellant has stated that the
bloodstains that were found on the exhibit
reflect that other than the item nos.1, 2, 3
and 4 (which are pant, shirt, underwear and
handband [kalava]), none of the bloodstains
found on the other item have been
identified as human blood. It is contended
that the consequence of this is in favour of
the defence.

16. Learned counsel for the appellants
has referred to the provisions of Sections
25, 26 and 27 of the Indian Evidence Act,
1872 to contend that the word 'deposed'
appearing in Section 27 denotes words
"taken down in writing" which are the
actual words spoken by accused in the
presence
of
the
two
independent
respectable witnesses who would sign on
that deposition. It is stated that it is evident
from the recovery memos of each of the
alleged weapons of murder, namely knives,
that it is not in accordance with the
procedure
prescribed
for
taking
the
deposition
of
the
accused
persons.
Therefore, in the absence of such a
deposition appearing in the recovery
memos, no proof of the alleged confession
is
permissible.
In
support
of
his
contentions, the learned counsel for the
appellants has referred to the judgments of
the Supreme Court in the case of
Subramanya vs. State of Karnataka2;
Ramanand @ Nandlal Bharti vs. State of
984 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P.3 and the judgment of the Privy
Council in the case of Pulukuri Kottaya &
Ors. vs. The King Emperor4.

17. On the issue of testing the veracity
of the evidence of the P.W.-1 and P.W.-3, it
is submitted by the learned counsel for the
appellants that they are partisan and chance
witnesses and their testimonies have to be
strictly and carefully considered in view of
the judgments of the Supreme Court in the
case of Harjinder Singh @ Bhola vs.
State of Punjab5 (Paras 6 and 14) and in
the case of Ganapathi & Anr. vs. State of
Tamil Nadu6. It is contended that in view
of the facts and circumstances, the accused
deserve to be acquitted.

18. On behalf of the State, it has been
urged by Shri Rupak Chaubey, learned
Additional Government Advocate that for
proving the offence, the prosecution has to
prove (i) the place of occurrence; (ii) time
of incident; and (iii) the participation of the
accused. It is submitted that subsequent
events that do not directly affect the
outcome of the investigation, may not be
looked into by the courts.

19. It is submitted by the learned
AGA that the General Diary entry and FIR
were duly proved by the P.W.-2. With
regard to the inquest report, it is submitted
that the purpose of inquest is only to assess
the apparent cause of death and for no other
reason.
Certain
minor
irregularities
appearing in the inquest report would have
no affect on the merit, where other aspects
are proved. It is contended that the
witnesses turned hostile for the first time
only in the year 2015 whereas the
deposition of the witnesses had started in
the year 2013. It is urged that the P.W.-1 is
not a partisan witness but he is a related
witness. P.W.-1 is not a chance witness
inasmuch as the usage of the road and time
is regular for the P.W.-1. The village of the
P.W.-1 is near the site of the incident and,
therefore, it was natural for him to visit. It
is
contended
that
no
adverse
suggestion/leading question was put to the
P.W.-1 by the defence. Learned AGA has
referred to the testimony of P.W.-7 who
was examined as a prosecution eyewitness
who turned hostile later, to contend that
this witness has testified having seen the
dead body of the deceased at the site. It is
contended that the postmortem report
corroborates the testimony of the P.W.-1. It
is submitted by the learned AGA that the
FIR was promptly lodged and the accused
persons were named. It is submitted that
the time of incident took place in the winter
season and, therefore, it is quite unlikely
that belt injury marks would appear due to
clothes worn by the deceased. It is urged
that in any view of the matter, it is a minor
contradiction which would have no bearing
on the case of the prosecution. It is stated
that there is no material discrepancy in the
testimony of the P.W.-1. It is further stated
that suggestion put to the witness regarding
his presence would have no bearing as it
does not affect the merit of the case.

20. It is further urged by the learned
AGA that P.W.-3 is also a natural witness
as he regularly passed that way. Two of the
witnesses went to lodge the FIR. It is
submitted that the benefit of Section 27 of
the Indian Evidence Act may not be
available to the prosecution but other facts
that are material to ensure conviction of the
accused have been duly proved. While
referring to the provisions of Section 134 of
the Evidence Act, the learned AGA has
submitted that even one witness is
sufficient to prove the case of the
prosecution and the P.W.-1 has proved the
case of the prosecution.
5 All. Veerpal & Ors. Vs. State of U.P.
985

21. The point that arises for
consideration
is
that
whether
the
prosecution has been able to prove the guilt
of the accused beyond reasonable doubt.

22. The prosecution case is primarily
based on eye witnesses account. The FIR
dated 16.11.2012 was lodged by the PW-1
as eye witness.

23. In his testimony (examination-inchief) on 20.11.2013, the PW1-Vedpal
supported the case of the prosecution. He
has stated that near about the time of the
crime, he had gone to the office of the
under-construction building (Durga Green),
for his business of supply of building
materials. When he suddenly heard shouts,
he came out of the building and he saw five
people whom he could identify as Veerpal,
Kalu, Pammi, Bhura and Om Prakash, who
had caught hold of his brother, Ved
Prakash, and were stabbing him with
knives. During his testimony, the PW1
identified Veerpal, Kalu and Pammi who
were present in Court and said that they
were present at the time of incident. He
further stated that two persons were not
present in Court, one of whom Omi @
Omkar had his presence exempted and
another Bhura @ Sumit was declared a
juvenile. He stated that all five of them
were stabbing his brother with knives and
had held his neck with belt. He saw all of
them in the light of electricity as at the site
the work of building construction were
going on and lights were on. He has stated
that on hearing the shouts, his two brothers
Chet Ram and Mahendra (Mahendra stated
to be not his real brother but a family
relation) came to the site and saw the
incident as they were returning after selling
bricks in Greater Noida. When the PW1
shouted in order to save his brother, the
accused persons threatened him. Thereafter
they ran away from the site in their Swift
car and one Pulsar motor bike and
thereafter his brother died at the spot after
much agony. Thereafter PW1 came to the
police station and lodged the report. He
identified his report Exhibit Ka-1. The
PW1 further stated that the police came
along with him and took the corpse to
Kailash Hospital in order to maintain law
and order. The inquest report was prepared
at the hospital in the presence of five
witnesses. After seeing the record of the
inquest, the PW1 said that it is the same
inquest report which was prepared in the
presence of five witnesses and the PW1
identified his signature thereon. Thereafter
the police sealed the corpse and took it for
post-mortem. The PW1 further stated that
he had shown the site of incident to the
police officer who had questioned him and
he had told them the truth.

24. In his cross-examination, the PW1 stated that he was sitting at a distance of
60 to 70 steps away from the site of
incident in the office regarding supply of
building material. In that office the door is
situated outside and contains glass and the
door was open at the time of incident. On
the query made to him regarding nonmentioning of existence of light in the FIR,
the PW1 stated that at the time of lodging
of the FIR he was consumed with grief. He
denied the suggestion that on the basis of
legal advice he stated in his testimony
regarding presence of electric light. With
regard to non-mentioning in the FIR about
the belt being used on the neck of the
deceased, the PW-1 stated that at that point
of time he was consumed with grief. He has
stated that each of the five accused had
knives. He stated that Pammi had stabbed
his brother twice and others had stabbed his
brother once each. He stated that other than
his four brothers there were some other
986 INDIAN LAW REPORTS ALLAHABAD SERIES
people
also.
The
PW-1
denied
the
suggestion that he was not present at the
site of the incident and that therefore he
could not save his brother. He stated that at
the time of making of the site plan by the
Investigating Officer, he had pointed out
the electricity lights that were lit at the time
of the incident. The PW-1 has stated that
there were three shops at a little distance
from his brother's shop and people from
Bihar and Bengal who were mostly
labourers used to come and purchase items
from his brother's shop.

He stated that he did not take his
brother to the hospital because he had
already died. He further stated that he had
no hope and, therefore, he had not taken
him to the hospital. He also stated that
neither he nor any of his other brothers
touched or held the deceased. However,
later he stated that he had touched his
brother to see whether he was breathing but
his brother was not breathing.

He denied the suggestion that due to
dispute
regarding
money
transactions,
people from Bihar and Bengal had
murdered his brother. He further denied the
suggestion that he had falsely implicated
the accused on the basis of village partisan
politics and enmity. The PW-1 stated that
the belt was held by two persons namely
Om Pal and Bhura in one hand each and in
the other hand they held knives. He has
stated that six injuries were inflicted on his
brother. He stated that perhaps one knife
injury was on the elbow, one on the upper
arm, one of the abdomen and three to four
knife wounds on the right side of his chest.
He further stated that he could not see who
stabbed his brother on the elbow as he was
at a little distance. The PW1 has further
stated that in his presence one knife was
recovered from the site which had fallen as
the accused were running away and one
belt was also recovered. He identified Om
Pal and Bhura as the accused who fled on
the motor bike and the rest of the accused
had fled by car.

25. On 17.1.2014, the PW1 was
recalled as witness on an application made
by the defense. The PW1 stated that he had
two other brothers, Ved Prakash and Chet
Ram. Chet Ram was a witness in the case.
It was stated that the other witnesses of the
case namely Devendra and Shahmal were
the cousins of the PW1. The PW1 and the
aforesaid two other witnesses stay in
separate houses in the village and they
work
in
different
places.
They
do
agricultural work. The PW1 works in the
field of supply of building material. His
father does agriculture work and dairy
farming. The PW1 denied having any
license for his work for supply of building
material. The PW1 stated that his shop of
building material is outside the village and
is situated on his farm. The name of his
shop is Jai Durga Material which is not
registered. People engaged in construction
used to purchase material from his shop.
He denied the suggestion that at the time of
the incident the PW1 had no work for
supply of building material. He has stated
that his shop is situated towards the
highway at a distance of half to 3/4th
kilometer. The PW1 further stated that
from the site of the incident his brother's
shop was about 20 to 30 steps away in
which he used to run a grocery store. The
shop was temporary, made from tin sheets.
He further stated that the shop of the
deceased would be about 40 to 50 steps
away from the building of Durga Green and
that building was on the same road on
which the shop existed. The PW1 further
stated that when he heard shouts, he was in
the office. The office is along side the road
5 All. Veerpal & Ors. Vs. State of U.P.
987
in which there were one or two people. It
was night time and other people had gone
away. He stated that the person of the
office with whom he had gone to meet was
not present in the office but had gone to the
work site. He stated that around 8 p.m. he
had gone to that office in his vehicle A-Star
which was parked outside the office. He
had gone to the police station in that
vehicle. He stated that when he had gone to
the office he had seen his brother Ved
Prakash in his shop, no conversation took
place between them. One or two customers
were standing in his shop. The PW1
admitted that in the FIR he had not
mentioned that he had gone to the office of
Green Durga to speak to the clerk. He
stated that on 15.11.2023 there was an
altercation between the accused Pammi and
his brother Ved Prakash at the shop of Ved
Prakash and the PW1 was not present at the
spot when the altercation took place. He
stated that Pammi had a business of illicit
liquor at that place which was being
objected to by his brother Ved Prakash.
The PW1 had come to know about the
altercation about one or two hours after the
altercation. He stated that he did not
mention about the altercation that occurred
on 15.11.2012 because the matter was
settled in the village. The PW1 stated that
after hearing the shouts he had come out of
the office and other people present in the
office also came out. When he came out of
the office, his brother was at the same spot
where he was found dead. His brother was
stabbed when he was standing and even
after he fell down he was stabbed. His
brother was being stabbed from the side
and while standing he was being held from
all four sides. After he fell down he was
stabbed twice or thrice with knives. When
his brother was being stabbed, the PW1
was standing outside the office of the
Durga Green about 30 to 40 steps away.
When the accused was stabbing his brother
the Swift car and the Pulsar motorbike were
parked near the shop. The PW1 stated that
he tried to save his brother but the accused
persons threatened him with knives. He
stated that he had shown the spot to the
Investigating Officer where the Pulsar
motorbike and the Swift car were parked.
The PW1 had showed the Investigating
Officer the site after preparation of the
inquest report and the Investigating Officer
had gone to see the site after the
postmortem report. He stated that his
mobile phone was discharged and therefore
he did not attempt to dial no. 100 for
informing the police. He stated that his
servant was there at the site and he was sent
home to inform about the incident and he
alongwith his other brothers went to the police
station to lodge a report. He stated that they had
reached the police station around 9:30 to 10:00 at
night and the report was written at the police
station. He spent nearly one hour in the Police
Station in writing the report. After lodging the
report, the PW1 went in the police vehicle to the
spot of the incident and thereafter were present
along with the Investigating Officer for one to
one and half hours. Thereafter, along with the
Investigating Officer they took the corpse of
the deceased to the hospital where they
reached about 12:30 at night. The PW1 stated
that the Investigation Officer had collected
the soil etc. in the night itself after preparing
the inquest report which inquest report bears
the signatures of the PW1. The PW1 denied
the suggestion that his brother (deceased)
used to sell liquor. He further denied the
suggestion that his brother was killed by
unknown persons and he has filed a false
report against the accused. He further denied
the suggestion that he was not present at the
spot.

26. The testimony of the PW2, Balraj
Singh who was posted as a clerk on
988 INDIAN LAW REPORTS ALLAHABAD SERIES
16.11.2012 at the police station was
recorded on 9.1.2014. He proved the FIR
Exhibit Ka-2. He proved the entries made
in the general diary. He denied the
suggestion that the report was ante-time.

27. The testimony of Mahendra, PW3,
an eye witness, was first recorded on
9.1.2014. He stated that his occupation is
dairy milk business. He stated that on
6.11.2012 at 8:30 PM when he was
returning with Chet Ram then when they
went towards their village from Chuhadpur
underpass at that time the accused were
stabbing the deceased with knives. He
identified Veerpal, Kalu, Pammi, Bhura
and Om Pal @ Om Kumar as the accused.
He stated that he knew them as they belong
to his village and in the village Kalu is
known as Balraj and the Pammi is also
known as Ram Avatar. He stated that all
the accused were stabbing the deceased
with knives and the time of the incident
was 8:30 PM. The PW3 stated that he saw
the incident as there were electricity lights
on the highway. He stated that in view of
the shouting Ved Pal, Devendra and
Shahmal had come to the spot and he saw
the accused stabbing Ved Prakash with
knives and thereafter they went to lodge the
report. He stated that they shouted at the
accused then the accused threatened them
that whatever had happened to the deceased
would happen to them and threatened them
with knives and thereafter, all the accused
fled away in motor bike and car. The PW3
stated that he along with Ved Pal, Shah Mal
and Chet Ram gone to the police station
where they had lodged the report.

28. In his cross-examination, the PW3
stated that his occupation is selling dairy
milk. He collects the milk from his village
and sells them in Noida and Greater Noida.
He named the places where he distributes
milk. He stated that he leaves his house at
5:30 in the evening to distribute the milk.
His village is one kilometer away from the
underpass and from this underpass the site
of the incident would be about 20 to 30
steps away. He stated that after distributing
the milk he returned via the underpass and
not over it. He stated that he had seen the
incident after crossing the underpass. He
stated that his statement was recorded by
the Investigating Officer on 15.12.2012. He
stated that the deceased Ved Prakash as
well as Ved Pal were like brothers to him.
At the time of writing the report he came to
know that he would be called as witness.
He stated that he had gone on his motor
bike to the police station and Ved Pal has
gone to the police station on his car along
with Devendra, Shah Mal and Chet Ram.
He stated that the site of the incident was
four to five Kilometers away from the
police station and the report had been
written sitting outside the police station. To
write the complaint, paper from the car was
taken. He further stated that the complaint
was written in the park within the boundary
of the police station. He stated that he had
first seen the accused from a distance of 10
to 15 steps and at that time he had crossed
the underpass. The accused had surrounded
the deceased. The PW3 stated that after the
accused had left, he did not go to see the
deceased that whether he had died or alive,
it was Ved Pal who had gone to see the
deceased who had shaken the body of the
deceased. He denied the suggestion that the
deceased was taken to the hospital in an
injured state. He stated that it was he who
had first seen the accused stabbing the
deceased and Ved Pal and others had come
later. He stated that Ved Pal and others had
come from the side of the village. He stated
that the Ved Pal and others were standing
on the side of the village around 20 to 25
steps away. He stated that when he and Ved
5 All. Veerpal & Ors. Vs. State of U.P.
989
Pal and others tried to save the deceased,
the accused threatened them with knives.
He stated that the electric lights were on the
highway. The weather was cold but there
was no fog. He denied the suggestion that
the incident had not taken place in front of
him and he also denied that he was giving a
false statement.

29. When the cross-examination of
the PW3 was again held on 15.10.2015,
that is, after more than one year and nine
months from the date of his first initial
testimony, he turned hostile. He stated that
dispute between the deceased and the
accused was not so big due to which
someone could murder somebody else. He
stated that near the grocery shop of the Ved
Prakash, Bengalis, Biharis and Nigerians
used to stay. These people used to purchase
items from the shop of the deceased. He
stated that the deceased used to sell country
liquor from his shop which used to be
purchased by the aforesaid people. This
shop used to remain open till 11 PM at
night. People used to drink liquor at the
shop itself. He stated that near the shop
there is a small boundary wall having iron
grille which look like knives. There used to
be fights at the shop on drinking liquor.
People used to drink liquor in the open
space which was objected by the deceased
and then they used to fight with him. The
PW3 along with Chet Ram and Shahmal
used to come after selling milk and stop for
sometime at the shop and the deceased had
informed them that there used to be fights
between him and Bengalis and Biharis over
drinking and information was given to the
police on several occasions. The police
used to catch them and take them to the
police station. He stated that near the shop
of the deceased, mostly Nigerians used to
stay in apartments. He stated on the basis of
hearsay that the Nigerian people had earlier
taken away an auto driver and stabbed him
to death. He further stated that there was a
Government liquor shop in his village but
these people did not purchase liquor from
there as it was expensive and therefore they
used to purchase liquor from the shop of
Ved Prakash. He stated that there was once
a fight and many people including the PW3
were called to the place by Ved Prakash,
the deceased, and they had beaten the
people who were creating nuisance. This
incident had taken place about 8 to 10 days
prior to 16.11.2012. The PW3 stated that
the deceased had told him that the people
with whom they had fought, used to move
around his shop. He stated that when he
reached the site of the incident, Ved
Prakash was lying dead. He stated that this
testimony is correct and the testimony that
he has given earlier was under pressure. He
stated that his first testimony was dictated
to him by Advocate and thereafter he had
given testimony. He stated that he had not
seen the accused stabbing the deceased. In
the cross-examination of PW3 done by the
ADGC (Criminal), the PW3 admitted that
his testimony was recorded on 9.1.2014 in
which he had also been cross-examined by
the accused. He denied the suggestion that
he was giving his testimony in view of the
settlement before the Panchayat only in
order to save the accused who were of the
same caste. He also denied any pressure or
threat or any inducement.

30. The PW4 was Dr. Sant Ram
Verma, Senior Physician, District Hospital
Gautam Budh Nagar who had performed
the
postmortem
examination
of
the
deceased. He proved the postmortem report
and stated that during the postmortem
examination six incised wounds were found
on the deceased. He stated that the injuries
was possibly caused by a sharp weapon
which could also be a knife.
990 INDIAN LAW REPORTS ALLAHABAD SERIES

In his cross examination, he denied
suggestion that as far as wound no.1 is
concerned, he had not written lacerated
wound. He further stated that he had not
mentioned the state of the edges of any of
the wounds. On the suggestion being put to
him, he admitted that the deceased did not
have any injuries caused by stab wounds.

31. The testimony of another eye
witness Chet Ram, who was the PW5 was
recorded on 24.2.2015 who turned hostile.
He stated that on the date of the incident he
and
Mahendra
had
returned
after
distributing milk. He had not seen the
accused at the site nor he had heard the
shouts or seen anything.