# Vinay Kumar Jaiswal v. State of U.P

- **Citation:** (2024) 4 ILRA 1176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-10
- **Case number:** Criminal Appeal No. 1995 of 2012
- **Bench:** Arvind Singh Sangwan, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-jaiswal-v-state-of-u-p-51780
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 307, 506 & 504 - Arms Act,
1959 - Sections 3, 25 & 27 - Code of
Criminal Procedure, 1973 - Sections 161
&
313
-
Criminal
Appeal
Against
Conviction and Sentence - Murder -
Attempt to Murder - Criminal Intimidation
- Illegal Arms Possession - Eye-Witness
Testimony - Recovery of Weapon -
Forensic Evidence - Motive - Reliability of
Witnesses
The appellant, Vinay Kumar Jaiswal, challenged
the
judgment
dated
16.05.2012
by
the
Additional
Sessions
Judge,
Court
No.
2,
Maharajganj, in Sessions Trial No. 9 of 2010,
convicting him under Section 302 IPC (life
imprisonment, Rs. 10,000 fine, 6 months
additional imprisonment in default), Section 307
IPC (7 years rigorous imprisonment, Rs. 5,000
fine, 6 months additional imprisonment in
default),
Section
506
IPC
(2
years
imprisonment), and Section 3/25 Arms Act (1
year imprisonment, Rs. 1,000 fine, 6 months
additional
imprisonment
in
default),
with
sentences to run concurrently. The prosecution
alleged that on 07.05.2009 at 5:30 AM, the
appellant shot his brother, Dileep Kumar Jaiswal
(deceased), in the head and his mother,
Durgawati Devi, in the chest, due to disputes
over a saw mill and a Rs. 5,00,000 loan, killing
Dileep and injuring Durgawati, who later died.
The FIR was lodged by PW-1 (Sarita Jaiswal,
deceased's wife), supported by PW-2 (Ashok
Kumar Jaiswal, her brother), medical evidence,
forensic reports, and recovery of a countrymade pistol and cartridges. The appellant
claimed false implication, alleging PW-1 and
PW-2 were absent and the recovery was
fabricated. Held: (1) The appeal was dismissed,
upholding the convictions and sentences. (2)
PW-1 and PW-2 were reliable eye-witnesses,
providing consistent details despite rigorous
cross-examination; defence claims of their
absence were unsupported, as DW-1 and DW-2
(Pradeep Kumar Jaiswal, appellant's brother,
who married PW-1) lacked credibility due to
inconsistencies and bias. (3) The recovery of the
pistol and cartridges, corroborated by forensic
reports (Ex. Ka-19, Ka-20), confirmed the
weapon's use in the crime. (4) Motive was
established
through
PW-1's
testimony
of
disputes over the saw mill and the appellant's
financial
demands.
(5)
Medical
evidence,
including the postmortem (Ex. Ka-2) and
medico-legal report (Ex. Ka-5), supported
firearm injuries with blackening and charring,
consistent
with
prosecution
claims.
(6)
Durgawati's Section 161 Cr.P.C. Statement(Ex.
Ka-15), though not admissible as evidence, was
unchallenged by the appellant under Section
313 Cr.P.C. (7) Defence witnesses (DW-1, DW2) were unreliable, and the trial court correctly
evaluated the evidence, proving guilt beyond
reasonable doubt.

## Text

_Characters 0–39,913 of 43,570. This is a partial read: ask again with offset=39913 for what follows._

1176 INDIAN LAW REPORTS ALLAHABAD SERIES
statement to her. The dying declaration
was not even attested by the doctor. As
stated earlier, though the Magistrate had
stated that the statement had been made in
mixed dialect of Hindi and Punjabi and the
statement was recorded only in Hindi.
Another important aspect is that there was
evidence that Kamlesh Rani was under the
influence
of
Fortwin
and
Pethidine
injections and was not supposed to be
having normal alertness. In our view, the
trial Court rightly rejected the dying
declaration
altogether
shrouded
by
suspicious circumstances and contrary to
the story of prosecution and acquitted the
appellant."
(Emphasis supplied by us)
70. We also find substance in the
submission made by the learned counsel for
the accused-appellant that there is a delay
in lodging of the first information report. It
is clear from the first information report
that the alleged incident took place at 06:00
p.m. (evening) on 26th August, 1989,
whereas the first information report was
registered on 27th August, 1989 at 04:00
a.m. (morning), for which there is no
explanation, which also cast a dent in the
prosecution version.

71. It is also not clear from the
prosecution version as to where the
deceased has been done to death because of
inconsistency in the testimony of P.W.-1
Lalji Yadav and P.W.-3 Hari Shanker
Yadav.

72. In such circumstances, we are
of the view that the court below has not
examined
the
evidence
led
by
the
prosecution in correct perspective and the
finding returned by it that the prosecution
has succeeded in proving its case beyond
reasonable doubt cannot be sustained. The
prosecution has failed to establish the guilt
of the accused-appellant on the basis of
evidence led at the stage of trial by the
prosecution. The conviction and sentence
of
accused-appellant
is
consequently
reversed.

73. In view of the discussions and
deliberations held above, the present
appeals succeed and are allowed. The
judgment and order of conviction and
sentence dated 25th March, 2004 passed
by the Additional Sessions Judge/F.T.C.-
IV, Jaunpur in Sessions Trial No. 41 of
1990 (State of U.P. Vs. Jwala Prasad &
Others), arising out of Case Crime No. 110
of 1989, under Sections 148, 149 and 302
of I.P.C., Police Station-Baxa, DistrictJaunpur against the accused appellant, is
set aside.

74. The accused appellant Shanker
Yadav, who is reported to be in jail, shall be
released forthwith, unless he is wanted in
any other case on compliance of Section
437-A Cr.P.C.

75. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Jaunpur,
henceforth,
for
necessary
compliance.
----------
(2024) 4 ILRA 1176
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1995 of 2012

Vinay Kumar Jaiswal ...Appellant
Versus
State of U.P. ...Respondent
4 All. Vinay Kumar Jaiswal Vs. State of U.P.
1177
Counsel for the Appellant:
Sri B.K. Tripathi, Sri Anil Kumar, Sri Arun
Srivastava, Sri Manish Jaiswal, Sri Naveen
Kumar
Yadav,
Sri
Sheshadri
Trivedi,
Sri
Sriprakash Dwivedi, Sri Vijay Kumar Mishra

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 307, 506 & 504 - Arms Act,
1959 - Sections 3, 25 & 27 - Code of
Criminal Procedure, 1973 - Sections 161
&
313
-
Criminal
Appeal
Against
Conviction and Sentence - Murder -
Attempt to Murder - Criminal Intimidation
- Illegal Arms Possession - Eye-Witness
Testimony - Recovery of Weapon -
Forensic Evidence - Motive - Reliability of
Witnesses
The appellant, Vinay Kumar Jaiswal, challenged
the
judgment
dated
16.05.2012
by
the
Additional
Sessions
Judge,
Court
No.
2,
Maharajganj, in Sessions Trial No. 9 of 2010,
convicting him under Section 302 IPC (life
imprisonment, Rs. 10,000 fine, 6 months
additional imprisonment in default), Section 307
IPC (7 years rigorous imprisonment, Rs. 5,000
fine, 6 months additional imprisonment in
default),
Section
506
IPC
(2
years
imprisonment), and Section 3/25 Arms Act (1
year imprisonment, Rs. 1,000 fine, 6 months
additional
imprisonment
in
default),
with
sentences to run concurrently. The prosecution
alleged that on 07.05.2009 at 5:30 AM, the
appellant shot his brother, Dileep Kumar Jaiswal
(deceased), in the head and his mother,
Durgawati Devi, in the chest, due to disputes
over a saw mill and a Rs. 5,00,000 loan, killing
Dileep and injuring Durgawati, who later died.
The FIR was lodged by PW-1 (Sarita Jaiswal,
deceased's wife), supported by PW-2 (Ashok
Kumar Jaiswal, her brother), medical evidence,
forensic reports, and recovery of a countrymade pistol and cartridges. The appellant
claimed false implication, alleging PW-1 and
PW-2 were absent and the recovery was
fabricated. Held: (1) The appeal was dismissed,
upholding the convictions and sentences. (2)
PW-1 and PW-2 were reliable eye-witnesses,
providing consistent details despite rigorous
cross-examination; defence claims of their
absence were unsupported, as DW-1 and DW-2
(Pradeep Kumar Jaiswal, appellant's brother,
who married PW-1) lacked credibility due to
inconsistencies and bias. (3) The recovery of the
pistol and cartridges, corroborated by forensic
reports (Ex. Ka-19, Ka-20), confirmed the
weapon's use in the crime. (4) Motive was
established
through
PW-1's
testimony
of
disputes over the saw mill and the appellant's
financial
demands.
(5)
Medical
evidence,
including the postmortem (Ex. Ka-2) and
medico-legal report (Ex. Ka-5), supported
firearm injuries with blackening and charring,
consistent
with
prosecution
claims.
(6)
Durgawati's Section 161 Cr.P.C. Statement(Ex.
Ka-15), though not admissible as evidence, was
unchallenged by the appellant under Section
313 Cr.P.C. (7) Defence witnesses (DW-1, DW2) were unreliable, and the trial court correctly
evaluated the evidence, proving guilt beyond
reasonable doubt.

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. The present appeal arises out of
judgment of conviction dated 16.5.2012
passed by Additional Sessions Judge,
Court No. 2, Maharajganj in Sessions
Trial No.9 of 2010 holding appellant-
Vinay Kumar Jaiswal guilty of offence
under Section 302, 307 & 506 of IPC
read with Section 3/25 of Arms Act. Vide
order of sentence dated 17.5.2012, the
accused-appellant
was
awarded
imprisonment for life under Section 302
IPC with fine of Rs.10,000/-. Under
Section 307 IPC, he was sentenced to
seven years of rigorous imprisonment
with fine of Rs. 5000/-, under Section
506 of IPC, imprisonment for two years
and under Section 3/25 of the Arms Act,
the appellant was sentenced to one year
imprisonment with fine of Rs.1000/-. It
was directed that in case of default in
payment of fine, the appellant would
further undergo imprisonment for six
months. All the sentences were directed
to run concurrently.
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
2. It is worth noticing that the
Supreme Court of India vide order dated
16.12.2022 had directed the High Court to
decide the appeal expeditiously. Paper book
is complete and trial court's record has
been received.

3. Learned counsel for the
appellant and learned AGA for the State
have addressed their respective arguments
and with their assistance, the entire
evidence
is
re-scrutinized
and
reappriciated.

4. As per the prosecution,
informant-Sarita Jaiswal, PW-1 (wife of
deceased-Dileep Kumar Jaiswal), gave a
complaint (Ex.Ka-1) that her husband runs
a saw mill which is in the name of her
mother-in-law, Smt. Durgawati Devi. Her
mother-in-law is residing with her husband.
The
elder
brother
of
her
husband,
appellant-Vinay
Kumar
Jaiswal,
had
separated after the death of their father and
used to demand money from her husband.
On 7.5.2009, at about 5.30 in the morning,
the appellant fired on the head of his
brother (deceased-Dileep Kumar Jaiswal)
and when his mother-Durgawati Devi tried
to intervene, the appellant also fired upon
her which hit her on chest and by abusing
and threatening, he ran away from the spot.
The informant and other brother of her
husband namely Ashok alias Raju Jaiswal
and other family members took the injured
to Medical College, Gorakhpur, where
Dileep Kumar Jaiswal died and Durgawati
was
admitted.
On
receiving
the
information,
the
formal
F.I.R.
was
registered.

5.

During
the
course
of
investigation, the police recovered the
weapon of offence from the appellant along
with live cartridges. From the spot,
bloodstained earth was also recovered and
a bullet was recovered from the head of the
deceased during the postmortem which was
also taken into possession by the police.
The cartridges both empty and live were
sent to F.S.L. for examination. Thereafter,
charge-sheet was presented before the Trial
Court and charges under Section 307, 302,
504 & 506 of IPC read with Section
3/25/27 of the Arms Act were framed.

6. The appellant did not plead
guilty and claimed trial.

7. In prosecution evidence, the
informant (PW-1) reiterated her version. It
was stated by her that her husband, Late
Dileep Kumar Jaiswal, were four brothers.
The eldest is Ashok alias Raju Jaiswal,
younger to him is Vinay Jaiswal (accusedappellant), at number three was her
husband
(deceased
Dileep)
and
the
youngest is Pradeep Kumar alias Chhotu.
She further stated that after the death of her
father-in-law namely Shiv Kumar Jaiswal,
her husband separated from his two
brothers, Ashok alias Raju and Vinay
Kumar Jaiswal who had got their share
separated
and
started
their
separate
business. It was further stated that her
mother-in-law and youngest brother of her
husband, Pradeep alias Chhotu were
staying with her husband and they were
working on saw mill which was in the
name of her mother-in-law and this
property was not divided. She further stated
that accused-Vinay Kumar had taken
Rs.5,00,000/- from her husband and spent
this amount on bad habits.

8. On 7.5.2009, when she was
getting ready to go to her parental home
and her husband was sleeping, suddenly
she heard a noise of firing. She along with
her brother-Ashok (PW-2), brother-in-law,
4 All. Vinay Kumar Jaiswal Vs. State of U.P.
1179
Raju and mother-in-law, Durgawati Devi,
went towards the room where her husband
was
sleeping.
Accused-appellant
was
carrying a revolver and before they could
understand anything, he fired upon her
mother-in-law, Durgawati, on her chest. By
extending threat, accused-Vinay Kumar
Jaiswal, ran away. In the meantime, many
people gathered. Injured persons were
taken to Medical College, Gorakhpur
where Dileep died and her mother-in-law
was admitted.

9. In cross examination, the
defence tried to prove that PW-1 was not
present at the spot. However, in her cross
examination, PW-1 has given complete
details of the manner in which the incident
took place, the manner in which the injured
persons were taken to the hospital, the
manner in which the information was given
to the police and the investigation carried
out by the police at the spot. This witness
categorically stated that her brother (PW-2)
was there at her matrimonial home as on
previous day i.e. 6.5.2009, he had come to
take her back for attending some function
at her parental home. One suggestion was
given to this witness that at the time of
incident she was at her parental home and
was not present in matrimonial home,
however, she denied the suggestion that she
along with her brother was not present at
the spot.

10. Ashok Kumar Jaiswal (PW-2)
narrated the incident as stated by PW-1. He
has also given the complete details of
giving complaint to the police and taking
the injured persons to the hospital. In cross
examination, the defence tried to prove that
he was not present on the spot. However,
this witness was consistent in giving details
of the incident. He has also denied the
suggestion by defence that on the date of
incident, he along with his sister (PW-1)
had gone to their parental home and on
receiving information from the brother of
the deceased, they reached the medical
college.

11. Sanjay Jaiswal (PW-3), is the
neighbour of the deceased as well as the
accused. This witness also gave the
description of the incident by saying that
when he reached the house of Dileep
(deceased), he found both Dileep and his
mother-Durgawati lying injured due to
bullet injuries. This witness also stated that
there used to be panchayat between Vinay
Kumar (appellant) and Dileep Kumar
(deceased) regarding partition of saw mill.
However, this witness stated that on
24.5.2009, the Investigating Officer, in his
presence, did not record any confession of
accused (Vinay Kumar) or effected any
recovery from the accused. Qua this part of
statement, this witness was declared
hostile. He was cross examined by
government pleader. In cross examination,
he stated that after 5-6 moths, Durgawati
died and Vinay Kumar had surrendered
before the Court. This witness further
denied the suggestion as incorrect about the
deposition made by him that after 4-5 days
of the incident, the SHO came and took
him and Raju (brother of accused) to the
house of accused-Vinay Kumar, from
where, his wife-Rekha produced a revolver
wrapped in a newspaper and memo was
prepared by SHO which was exhibited as
Ex.15-Kha/2. In further cross examination
by the defence, this witness again stated
that the revolver was recovered from Rekha
vide recovery memo 15Kha/2 and he had
signed on the same which he identified.
However, he stated that, on 24.5.2009, the
Investigating Officer, after taking order
from the Court had taken Vinay Kumar
Jaiswal to the police station where
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
signature of PW-3 was taken on a blank
paper. This witness further deposed that
PW-1 & PW-2 were not present at the spot
and also stated that nobody knew as to who
had fired upon Dileep Kumar (deceased)
and his mother and he had given
information to PW-1 & PW-2 on mobile
phone.

12. Ganesh Jaiswal (PW-4) is a
witness of Panchayatnama (Ex.Ka-21). In
cross examination, this witness stated that
both, PW-1 and PW-3, were not present on
the spot.

13. Shiv Raj (PW-5) submitted that
he was witness of recovery of the
bloodstained earth collected by S.H.O.
However, he denied having made any
recovery in his presence. This witness was
declared hostile.

14. Dr. Mukesh Kumar Srivastava
(PW-6) conducted the postmortem of
Dileep Kumar Jaiswal (deceased) and
found that there was an entry wound on
right parietal region with blackening and
charring of size 1 x 1 cm bone deep. The
bone was fractured and bullet was found
inside the brain. He also stated that another
injury wound with blackening and charring
was present below the injury No.1 on the
right parietal region of 1 x 1 cm with
inverted margin. The bone was fractured
and a bullet was recovered from the left
side of parietal bone. He opined that death
was due to shock and haemorrhage on
account of receiving gunshot injuries. He
prepared the postmortem report (Ex.Ka-2).
This witness stated that two bullets which
were retrieved from the wound of the
deceased were sealed along with clothes
and were handed over to the constable who
had brought the dead body for postmortem
and copies were sent to Chief Medical
Officer,
Gorakhpur
and
Senior
Superintendent of Police, Gorakhpur. In
cross examination, this witness stated that
the weapon of offence was not produced
before him at the time when his statement
was recorded.

15. Head Constable Dileep Kumar
Singh (PW-7) stated that on 7.5.2009,
informant-Sarita Jaiswal gave a written
complaint in the Police Station, upon
which, he registered the F.I.R. (Ex.Ka-3)
and copy of the same in the original G.D.
was entered at 9.15 a.m. In cross
examination, this witness stated that he has
not brought the original G.D.

16. Dr. A.K. Srivastava (PW-8)
prepared
the
medico-legal
report
of
Durgawati Devi and found that injury No.1
is on the left side of the chest with inverted
margin of 1 x 0.8 cm which is six
centimetre towards the centre from nipple
with blackening. Injury No.2 was on the
left lower side of the chest .8 cm x .8 cm
having inverted margins. He opined that the
injuries were caused with firearm. This
witness produced the original record and
the medico-legal report was exhibited as
Ex.Ka-5.

17. Rafiq Ahmad (PW-9), the
Investigating
Officer,
deposed
about
investigation carried out by him. He proved
the site plan and recovered the bloodstained
earth which was sealed vide recovery
memo (Ex.Ka-7) . Bloodstained bed sheet
along with bloodstained mattress cover
were recovered vide recovery memo
(Ex.Ka-8 and Ex. Ka-9) . Thereafter, this
witness went to B.R.D. Medical College on
8.5.2009 where Durgawati was admitted in
emergency ward. There, he met Constable
Moharir who gave him carbon copy of
postmortem report, one sealed packet in
4 All. Vinay Kumar Jaiswal Vs. State of U.P.
1181
which the bullets recovered from the body
of the deceased were kept and copy of
Panchayatnama. This witness stated that he
tried to arrest the accused, however, on
15.5.2009, the accused surrendered before
the Court of Chief Judicial Magistrate and
thereafter, he was taken in custody. On
19.5.2009, his custody was taken from
District Jail, Gorakhpur, where he recorded
his confession statement about purchase of
country made pistol along with cartridges
and committing murder of his brother and
causing injuries to his mother. This witness
stated that the accused had concealed the
country made pistol near Lehra Station.
Thereafter, by taking permission from the
Court on 24.5.2009, weapon of offence was
recovered at the instance of accused. This
witness further stated that in his confession,
the accused admitted that he has committed
murder of his brother and caused injuries to
his mother. The confession statement of
accused was exhibited as Ex.Ka-11. The
country
made
pistol
was
taken
in
possession vide recovery memo Ex.Ka.12
and the site plan as Ex.Ka.13. After coming
back to the Police Station, this witness
added Section 3/25/27 of the Arms Act in
Original G.D. and this was exhibited as
Ex.Ka-14. This witness stated that on
6.7.2009,
he
reached
the
house
of
Durgawati where he recorded a statement
which was also recorded in Case Diary.
Statement of Durgawati under Section 161
Cr.P.C. in toto was recorded in the Case
Diary and was attested which is Ex.Ka-15.
On the same date, the memo was attested
by Deepak Agarwal and Shivraj and
statements of other witnesses were also
recorded. This witness stated that after 4-5
months, Durgwati Devi died. This witness
further proved sending of weapon of
offence
along
with
live
cartridges,
bloodstained clothes and earth, to Forensic
Science Laboratory. This witness produced
the case property as noticed above which
were exhibited before the Trial Court.

18. This witness has also proved
the country made pistol, live cartridges and
empty cartridges which were inspected by
Forensic Science Laboratory and were
marked as 'Report of F.S.L.' This witness
also stated that country made pistol along
with empty cartridges and two live
cartridges were the same which were
recovered from accused-appellant.

19. This witness was subjected to
lengthy cross examination. With regard to
Ex.Ka-15, this witness stated that statement
of Durgawati was recorded at her residence
and the same was recorded in the Case
Diary, however, there were no witness to
her statement.

20. Further, with regard to
recovery of country made pistol on
24.5.2009, a suggestion was given that the
same was not recovered on the spot,
however, this witness denied the same and
stated that the country made pistol and
cartridges were recovered under the Mango
Tree, concealed with the dry grass and no
one had access to that place.

21. S.H.O. Harish Chandra (PW10) stated that he had verified the
investigation conducted in the case and the
case property along with other records were
sent to Forensic Science Laboratory by
preparing a docket through Constable
Naval Kishore Sharma.

22. S.I. Ajit Kumar Mishra (PW11), who had also conducted part of
investigation,
stated
that
during
his
investigation, he received ballistic report
and forensic report from the Forensic
Science Laboratory which were the part of
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
Charge-sheet and were exhibited as Ex.Ka19 & Ex.Ka-20 respectively. In cross
examination, he stated that while seeking
permission from the District Magistrate to
conduct the case under the Arms Act, he had
mentioned the details of recovery in the Case
Diary.

23. S.I. Ambika Prasad Tiwari (PW12) is a witness who had prepared the
Panchayatnama
(Ex.Ka-21)
along
with
statements Ex.Ka-22 to Ex.Ka.25. In cross
examination, this witness stated that he could
not tell whether wife of the deceased and her
brother were present there or not.

24. Thereafter, statement of accused
under Section 313 Cr.P.C. was recorded and
all the incriminating evidence was put to him.

25. In majority of the questions
relating to Ex.Ka-1 to Ex.Ka-4, it was stated
that fake reports were prepared. With regard
to postmortem report, the accused replied that
no postmortem was conducted. Regarding
recording of statement of Durgawati (Ex.Ka15) which was proved by PW-9, again a reply
was given that the entire proceeding is fake
and not done as per law. Regarding F.S.L.
Report of country made pistol and cartridges,
again he replied that the same is incorrect.
Regarding another forensic report i.e. Ex.Ka20 of bloodstained clothes and earth, the
accused replied that he has nothing to say.

26. While putting all the statements
of PW-1 to PW-12, the accused stated that
they (prosecution witnesses) have made
incorrect statements. The accused further
stated that he want to lead defence witness.

27. In defence, Ashish Kumar
Jaiswal (DW-1) appeared and stated that
his house abutting the house of Dileep
Kumar Jaiswal (deceased). On 7.5.2009, at
about 5.30 a.m., he heard the voice of
weeping and he went to the house of Dileep
along with his brother- Sanjay and found
that Dileep Kumar Jaiswal and his motherDurgawati were injured and blood was
oozing from their body. He along with his
brother-Sanjay
and
Pradeep
Jaiswal
(another brother of deceased-Dileep) took
Dileep and his mother to Medical College,
Gorakhpur where Dileep died and his
mother was admitted. This witness stated
that Sarita (PW-1/wife of deceased) and
Ashok Kumar Jaiswal (PW-2/brother of
Sarita) were in village Naua Bari, Police
Station - Jhangaha, District - Gorakhpur
and they were not present at the house of
the deceased. This witness stated that he
and his brother-Sanjay intimated the same
to them on mobile phone and thereafter,
they came to the hospital and started
crying.

28.

He
further
stated
that
thereafter, Panchayatnama was conducted
and postmortem of dead body was done.
He stated that when he and other people
enquired about the incident, the people who
were present at the place of incident and at
Medical College said that they had no
knowledge
of
the
person
who
had
committed the offence.

29. This witness further stated that
Sarita (PW-1) has performed marriage with
brother of deceased namely Pradeep Kumar
Jaiswal according to Hindu rites and
ceremonies.

30. In cross examination by Public
Prosecutor, this witness stated that he had
no knowledge, when Sarita (PW-1) had
gone to her parental home and he informed
them (PW-1 & PW-2) through the mobile
phone of his brother-Sanjay. However, this
witness stated that after giving information,
4 All. Vinay Kumar Jaiswal Vs. State of U.P.
1183
he did not remember if before or thereafter,
he received any telephone call. On asking
whether he can tell the mobile number of
Sarita (PW-1) or her brother Ashok (PW-2),
this witness stated that he cannot tell the
same and denied that accused-appellant had
committed the offence.

31. Pradeep Kumar Jaiswal (DW2) stated that some unknown person had
committed the murder of his brother and
had also caused injuries to his mother by
using firearm. He along with his brother
accused-Vinay
Kumar
Jaiswal
were
sleeping about half kilometre away from
the place of incident and Ganesh Jaiswal
who lives in front of his house told him and
Vinay that somebody had fired upon Dileep
and, thereafter, he and Vinay Kumar went
there and found that their brother-Dileep
and mother-Durgawati were lying in
injured condition. This witness further
stated that he along with Ashish Kumar
Jaiswal and Sanjay Jaiswal took his brother
and mother to Medical College, Gorakhpur
in a Maruti Car. This witness further stated
that he told Sanjay Jaiswal to inform Sarita
(PW-1) regarding the incident and to come
to Medical College as a day prior to the
incident, his sister-in-law, Sarita Devi (PW1), had gone to her parental home to attend
some function. When police conducted the
Panchayatnama, both PW-1 and PW-2
reached there.

32. This witness further stated that
four months before making his statement
before the Court i.e. 27.4.2011, he had
performed marriage with Sarita Devi (PW1). This witness stated that he did not know
as to who had committed murder of his
brother-Dileep and further stated that he did
not know as to why his statement was not
recorded by the Investigating Officer and
why he was named as a witness.
33.

Lastly,
he
denied
the
suggestion that being brother of accusedVinay Jaiswal, he was making false
statement.

34. Jairam Shah (DW-3), an
employee of the Medical College, admitted
and proved the record relating to admission
of Dileep Kumar Jaiswal and Durgawati
which is at page Nos. 42 & 43 of the
original register. As per the record, they
were admitted by Ashish Jaiswal.

35. Hasim Ali (DW-4), an
employee of the Office of C.O. Farenda,
who brought the Z register in the Court and
proved on record the chik report relating to
F.I.R. (Ex.Ka-3).

36. Thereafter, the Trial Court vide
impugned judgment of conviction and
order of sentence held the appellant guilty
and sentenced him for life imprisonment.

37. Counsel for the appellant has
firstly argued that presence of PW-1 and
PW-2,
the
eye-witnesses,
are
highly
doubtful. Counsel has placed reliance upon
the statement of Sanjay Jaiswal (PW-3) to
submit that he has stated that Sarita (PW-1)
had gone to her parental home and even
PW-2 was not present at the spot. Counsel
further submits that in cross examination,
S.I. Ambika Prasad (PW-12) has also stated
that at the time of conducting the
Panchayatnama, wife of the deceased (PW1) and his brother-in-law (PW-2) were
present or not, he could not state. Counsel
further relied upon the statement of Ashish
Kumar Jaiswal (DW-1) that at the time of
incident, PW-1 and PW-2 were not present
at the place of occurrence and he and his
brother gave information to them on mobile
phone which was informed by Pradeep
Kumar Jaiswal. Counsel has also stated that
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
Pradeep Kumar Jaiswal (DW-2/brother of
deceased and accused-Vinay Kumar) had
also stated that PW-1 and PW-2 were not
present at the spot and he along with
Ashish Jaiswal and Sanjay Jaiswal took
the injured persons to the hospital.
Counsel submits that it has also come in
the statement of DW-3 that the injured
persons were admitted in the hospital and
if PW-1 and PW-2 were present, they
would have admitted them in the hospital.

38. It is next argued that recovery
of the country made pistol was not
proved. Counsel relies upon the statement
of PW-3 who has stated that after 4-5
days, the S.H.O. came at the house of
Vinay Kumar and took him and Ashok
Kumar alias Raju (brother of accusedVinay Kumar) to the room of Vinay
Kumar where his wife-Rakhi produced a
country made pistol wrapped in a
newspaper
and
Investigating
Officer
prepared
some
document
regarding
recovery, on which, they have signed
which was tagged with the records.

39. Counsel submits that later on
as per the prosecution, some recovery
was effected at the pointing of accused on
24.5.2009 from an open place concealed
under dry grass near Lehra Station and,
therefore, recovery from the appellant is
not proved.

40. It is next argued that no
motive has been proved as to why the
appellant has committed murder of his
brother and caused injuries to his mother.
Counsel has next argued that as per
prosecution version, the firearm injuries
were caused from close range but as per
the
Postmortem
report,
there
was
blackening and charring on the wound
which occurs if the firearm is used from
some distance.

41. Counsel further submitted that
mother of the appellant was not examined
as witness though she was a natural witness
and the Trial Court has not given due
weightage to defence evidence.

42. In reply, learned A.G.A. for the
State has however submitted that both PW1 and PW-2 are the natural witnesses and
PW-1 being wife of the deceased was
present in the house when the accident took
place
and
despite
lengthy
cross
examination, the defence could not put a
dent to prove that she was not present at the
spot as she has replied to every minute
question put to her from the time of
incident till recovery. It is further stated that
she denied that she or her brother was not
present on the spot. Similar is the evidence
of PW-2 who was remained consistent with
regard to his presence on the spot and the
manner in which murder of Dileep was
committed by the appellant.

43. Learned A.G.A. has also
referred to the recovery effected from the
appellant i.e. country made pistol, bullets
retrieved from the body of the deceased,
empty cartridges and live cartridges.
Counsel has referred to the report of
Forensic Science Laboratory (Ex.Ka-19 &
Ex. Ka.20) wherein a categorical report
was given that the cartridges sent for
examination were matching with the
weapon of offence and were fired upon by
the same weapon.

44. Counsel has referred to the
conclusion part of this report wherein it
was stated that the disputed cartridges
marked as EC-1, EC-2 & EC-3 were fired
4 All. Vinay Kumar Jaiswal Vs. State of U.P.
1185
upon by pistol of .32 (point thirty two) bore
marked as 1/10.

45. It is next argued that the
recovery was effected from the accused on
24.5.2009 on his pointing out and no
recovery was effected from the wife of
accused.

46. Learned A.G.A. submits that had
there been any such recovery at the instance
of Rekha, the defence would have produced
her as witness and, therefore, the statement of
PW-3 to this effect is not relied upon as this
witness was declared hostile as he was
witness before whom the recovery was
effected and this witness has admitted that his
signatures are there on the recovery memo.

47. Learned A.G.A. has further
argued that postmortem report of deceasedDileep and medico-legal report of injuredDurgawati clearly suggest that both of them
received firearm injuries because as per the
injuries, the wounds were having blackening
and charring.

48. Counsel further submitted that
there was motive attributed to the accused as
it has come in the statement of PW-3 that
even on previous occasions, deceased-Dileep
and accused-Vinay, both brothers, had
convened Panchayat for partition of saw mill
which was in the name of their motherDurgawati.

49. Learned A.G.A. for the State
further stated that it has come in the statement
of PW-1 that accused-Vinay was spending
money on his vices and had taken Rupees
Five Lakhs from deceased-Dileep and,
therefore, motive is proved.

50. Learned A.G.A. has referred to
Ex.Ka-15 which is proved by PW-9, the
Investigating Officer. This document is the
copy of G.D. report wherein statement of
Durgawati recorded under Section 161
Cr.P.C. was entered. It is submitted that
in this statement Durgawati stated that
her son - Vinay Kumar committed
murder of her another son-Dileep Kumar
Jaiswal and also tried to commit her
murder.

51. Learned A.G.A. submits that
though statement under Section 161
Cr.P.C. is not admissible, however, in
cross examination was offered to PW-9,
the
Investigating
Officer
regarding
Ex.Ka-15 by suggesting that same was
recorded
in
presence
of
two
eyewitnesses and, therefore, in the absence
of any statement of Durgwati recorded by
Court, as she died within six months of
incident, no adverse inference can be
drawn.

52. Learned A.G.A. has lastly
argued that all the incriminating evidence
including Ex.Ka-15 was put to the
appellant in his statement under Section
313 Cr.P.C. but he could not give any
explanation. Learned A.G.A. argued that
Pradeep Kumar Jaiswal (DW-2) had
stated
that
he
accompanied Ashish
Jaiswal and Sanjay Jaiswal to the Medical
College but, this statement is an after
thought as neither this witness lodged the
First
Information
Report
regarding
murder of his own brother and injury to
his mother nor he was a witness to
Panchayatnama and even he did not get
the injured admitted in the hospital which
suggests that he was not present at the
spot.

53. Learned A.G.A. submits that
since
this
witness
had
performed
marriage with Sarita (PW-1), he has made
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
false statement in order to save his
brother-Vinay Kumar Jaiswal.

54. After hearing the counsel for
the parties, we find no merit in this appeal
for the following reasons :

A.
Counsel
for
the
accusedappellant
could
not
substantiate
his
arguments
that
Sarita
Jaiswal
(PW-
)/Informant/wife of deceased-Dileep, was
not present at the place and time of incident
and is not an eye-witness.
A perusal of the examination-inchief of PW-1 reveals that she has given a
complete detail of incident as stated in the
F.I.R. and investigated by the police. This
witness stated that her husband (deceasedDileep Jaiswal) had four brothers and, after
the death of her father-in-law, the elder
brothers namely Ashok alias Raju Jaiswal
and
accused-Vinay
Kumar
Jaiswal
separated and started their independent
business. However, mother and younger
brother-Pradeep alias Chhotu were residing
with deceased-Dileep. This witness has also
stated that the accused was addicted to
vices and even previously had taken
Rupees Five Lakhs from his deceased
brother-Dileep. She has further stated that
her brother-Ashok (PW-2), a day prior to
the incident, had come to her matrimonial
house as she was to accompany him to
attend some function at her parental home.
However, on 7.5.2009 in the morning at
about 6.00 a.m., the accused came with a
revolver and murdered her husband and
caused grievous injuries to her mother-inlaw,
Durgawati.
Even
during
cross
examination of both PW-1 and PW-2,
nothing has come on record that they were
not present at the spot as both the witnesses
have replied to every minute cross
examination regarding the manner of
incident,
the
investigation,
the
Panchayatnama, postmortem report as well
as further investigation.
Similarly, defence could not prove
that Ashok Kumar Jaiswal (PW-2) who is
real brother of PW-1 was also not present at
the spot when the incident took place.
In order to prove that PW-1 and
PW-2 were not present at the spot, the
defence examined Ashish Kumar Jaiswal
(DW-1), a neighbour, who stated that he
had taken the deceased and his mother to
hospital along with his own brother-Sanjay
Jaiswal and brother of deceased namely
Pradeep Jaiswal. However, this witness
could not give satisfactory explanation
about phone number used by him and
Pradeep Jaiswal (DW-2) by which the
alleged information was given to PW-1 and
PW-2 to prove that they were not present at
the spot and were at Village Naua Bari
where DW-1 informed them.
Even Pradeep Kumar Jaiswal (DW2) stated that he along with Ashish Jaiswal
and Sanjay Jaiswal took his brother-Dileep
and mother-Durgawati to Medical College.
This witness also stated that PW-1 reached
Medical
College
after
the
incident.
However, this witness stated that four
months prior to his statement before the
Trial Court i.e. 27.4.2011, he performed
marriage with Sarita (PW-1) who is widow
of
deceased-Dileep.
Therefore,
it
is
apparent that in order to save his brother
(accused-Vinay
Kumar
Jaiswal),
he
appeared as defence witness. If this witness
had gone to Medical College, his presence
should have been marked in the record as
well as the Panchayatnama which is
missing.
Jairam Shah (DW-3), an employee
of the Medical College, has proved that
deceased-Dileep
and
injured-Durgawati
were admitted by Ashish Jaiswal (DW-1).
This statement also falsified the deposition
of
Pradeep
Kumar
Jaiswal
(DW-2).
4 All. Vinay Kumar Jaiswal Vs. State of U.P.
1187
Therefore, we uphold the finding of the
Trial Court that PW-1 and PW-2 are the
eye-witnesses of the incident.
B. Next argument raised by the
counsel for the appellant is that the
recovery of weapon from the appellant is
not proved is also without any substance.
Counsel for the appellant has heavily relied
upon the statement of PW-3 who was partly
declared hostile with regard to recovery of
weapon as he stated that 4-5 days after the
incident, the Investigating Officer came to
the house of accused-Vinay Kumar and in
presence of Sanjay Jaiswal (PW-3) and
Ashok Kumar Jaiswal alias Raju (brother
of accused-Vinay Kumar), Rakhi (wife of
accused)
had
produced
the
revolver
wrapped
in
the
newspaper.
The
Investigating Officer prepared recovery
memo at spot which was signed by PW-3
and other witnesses. However, this witness
stated that later on when accused-Vinay
surrendered
before
the
Court,
the
Investigating Officer had shown recovery
on a subsequent date by changing date on
the memo of recovery of weapon which
was signed by PW-3 and other witnesses 4
- 5 days after the incident when Rakhi
handed over the weapon. This aspect of
PW-3 is without any substance as Rakhi,
wife of Vinay Kumar, was never cited as
defence to prove that she had handed over
the weapon of offence to the Investigating
Officer 4-5 days after the incident as it is
the case of prosecution that Vinay Kumar
surrendered before the Court of Chief
Judicial Magistrate on 15.5.2009 and
thereafter,
as
per
the
statement
of
Investigating Officer (PW-9), by taking
permission from the Court, the accused was
taken to the place of recovery and on his
pointing out, the recovery of firearm was
effected and recovery memo was prepared.
Even there is no cutting on this record. This
version
of
PW-3
has
been
rightly
disbelieved by the Trial Court that the
recovery was not effected from the house
of the accused 4-5 days after the incident as
accused was arrested after about 20 days of
incident.
C. The argument raised by the
counsel for the appellant that no motive is
proved is also without any force as it has
come in the statement of PW-1 that after
the death of her father-in-law, two elder
brothers of her husband had separated
including appellant-Vinay Kumar. It has
also come in the statement that Vinay
Kumar was putting pressure on her
husband for the partition of saw mill which
was in the name of her mother-in-law
namely Durgawati and he had even taken
Rs.5,00,000/- from deceased-Dileep which
he had spent on his bad habits. Therefore,
he came with a premeditated motive to put
pressure on deceased-Dileep and her
mother-in-law in whose name the saw mill
was
there.
However,
having
been
unsuccessful, he committed murder of
Dileep and made murderous assault on his
mother-Durgawati who later on died after
4-5 months.
D. The next argument of counsel for
the appellant is that as per prosecution, the
firearm injuries were caused from close range
but as per the postmortem report there was
blackening and charring of the wound which
occur if the firearm is used from some
distance.