# Virendra v. State of U.P

- **Citation:** (2025) 12 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-01
- **Case number:** Criminal Appeal No. 2849 of 1987
- **Bench:** J.J. Munir, Sanjiv Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-v-state-of-u-p-52940
- **Pages:** 17

## Text

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12 All. Virendra Vs. State of U.P.
865
(2025) 12 ILRA 865
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.
THE HON'BLE SANJIV KUMAR, J.

Criminal Appeal No. 2849 of 1987

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

Issue for Consideration
Matter pertains to whether the prosecution had
proved beyond reasonable doubt that the
surviving appellant Onkar, along with the coaccused, committed the murder of Rajendra
under S. 302 read with S. 34 of the IPC, in view
of the delay in lodging the F.I.R., presence of
the police at the place of occurrence during the
night, existence of village partybandi arising out
of Gram Pradhan election, and the evidentiary
value of interested witnesses.

Headnotes
Indian Penal Code, 1860 - S. 302/34 -
Criminal Trial - Murder - Appreciation of
Evidence - Common intention - Conviction
challenged - Enmity and Party-bandi -
Unexplained delay in lodging FIR, despite
police presence at the spot during the
night, held to cast serious doubt on
prosecution
version
-
Evidence
-
Interested Witnesses - Conviction based
solely on testimony of related witnesses
without independent corroboration held
unsafe, particularly where material facts
are concealed - Investigation - Partybandi
and
Village
Rivalry
-
Existence
of
partybandi arising from Gram Pradhan
election considered relevant in assessing
false implication - Benefit of Doubt -
Acquittal - Where prosecution fails to
establish guilt beyond reasonable doubt,
accused entitled to benefit of doubt.
Held: The FIR lodged belatedly with no
explanation for the delay casts a serious doubt
over the prosecution case - denial by P.W.1 and
P.W.2 regarding police presence during the
night, contrary to police evidence, "appears
unnatural, which goes to show that they are
hiding true facts from the Court - existence of
partybandi due to Gram Pradhan election
furnished
motive
for
false
implication
-
Prosecution witnesses being only close relatives,
and non-examination of independent witnesses
despite availability, rendered their testimony
unreliable - prosecution failed to explain
material inconsistencies regarding second part
of incident, use of ballam, setting fire, and
conduct
of
villagers
and
police
-
The
involvement of appellant/convict in the offence
appears to be highly doubtful" and prosecution
"failed to prove its case beyond reasonable
doubt - Appeal allowed; conviction and sentence
set aside; surviving appellant Onkar acquitted
under Section 302 read with 34 IPC. (Paras 37
,40-43,48-49,54-57) (E-7)

Case Law Cited
Thulia Kali v. State of Tamil Nadu, (1972) 3
SCC 393; Meharaj Singh (L/Nk.) v. State of
U.P., (1994) 5 SCC 188

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Arms Act, 1959

List of Keywords
Delay in F.I.R.; Partybandi; Interested Witness;
Common Intention; Benefit of Doubt; Countrymade Pistol; Unknown Dacoits; Gram Pradhan
Election

Case Arising From
APPELLATE JURISDICTION: Criminal Appeal
arising out of judgment and order dated
02.12.1987 passed by the Special/Additional
Sessions Judge, Bulandshahar, in Sessions Trial
No. 61 of 1986, Police Station Ahmad Garh,
District Bulandshahr.

Appearances for Parties
Advs. for the Appellant:
Mr. Krishna Kant Dubey
Advs. for the Respondents:
Mr. Ghanshyam Kumar, learned A.G.A.-I for the
State

(Delivered by Hon'ble Sanjiv Kumar, J.)
866 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This criminal appeal has been
preferred
by
the
appellants,
namely,
Virendra, Onkar and Ajab Singh @ Bali,
against the judgment and order dated
02.12.1987 passed by Mr. N.P. Verma, the
then learned Special/Additional Sessions
Judge, Bulandshahar, in Sessions Trial
No.61 of 1986, under Section 302 read with
Section 34 of the Indian Penal Code (for
short I.P.C.), Police Station Ahmad Garh,

2. By the impugned judgment and
order, the appellant Virandra has been
convicted
and
sentenced
to
undergo
imprisonment for life and a fine of
Rs.2000/- for the offence punishable under
Section 302 I.P.C. In default of payment of
fine, he has been ordered to undergo
rigorous imprisonment for one year. The
other appellants, Onkar and Ajab Singh @
Bali have been convicted and sentenced to
undergo imprisonment for life and a fine of
Rs.2000/- each for the offence punishable
under Section 302 I.P.C. read with Section
34 I.P.C. In default of payment of fine, they
have been directed to undergo rigorous
imprisonment for one year each.

3. During the course of the hearing of
this criminal appeal, appellants Virendra
and Ajab Singh @ Bali have died, and the
appeal stands abated against them vide
order dated 17.07.2018. This appeal has
been heard at the instance of the surviving
appellant, Onkar Singh, alone.

4. Brief facts of the prosecution case
are that the informant, Ram Ji Lal, son of
Leeladhar, resident of village Satbara,
Police Station Ahmad Garh, District
Bulandshahr,
filed
a
written
first
information (Ex.Ka-1) on 11.02.1985 at
6:30 a.m. at Police Station Ahmad Garh,
stating therein that the marriage of
Dayawati, daughter of Rajpal and grand
daughter of Devi Ram, was to be
solemnized on 13.02.1985. On 10.02.1985,
Devi Ram (brother of the informant) went
to Bulandshahr to purchase articles for the
marriage. In the night at about 8:45 p.m.,
the informant was lying in the Dewari,
while his nephew Rajendra was lying in a
room (kotha). In the courtyard, Smt.
Shakuntla (wife of Rajendra), Smt. Mehar
Shri (wife of Rajpal), Smt. Dayawati
(daughter of Rajpal) and some other
women of the locality were singing
wedding songs. A lantern was lit there, and
the main door of the house open. The
convits Virendra, Onkar, and Ajab Singh
alias Bali entered the informants house.
Virendra
Singh
caught
hold of
the
informant and asked about the gun
belonging to his brother Devi Ram. The
informant replied that Devi Ram had taken
it
along
with
him
to
Bulandshahr.
Meanwhile, Onkar and Ajab Singh alias
Bali caught hold of Rajendra and Ajab
Singh alias Bali, attacked him with a lathi.
The women ran inside the room. The
informant, Rajendra and others raised
alarm and caught hold of the assailants, but
they managed to free themselves and ran
outside. In the process, a woolen coat and a
woolen sheet from the convicts was
snatched. In the pocket of the said coat, a
loaded country-made pistol was kept. They
bolted the door from inside. Shortly
thereafter, all the three accused climbed on
their roof through the adjacent house of one
Tirkhi. The informant also climbed on the
roof. Virendra pulled the dried grass from
thatch and set it afire near the staircase.
Hearing the commotion, villagers arrived at
the spot. Some of them opened fire using
their licensed weapons and surrounded the
informants
house
to
approach
the
miscreants. Ram Avtar Singh, Kunwar Sen,
Hari Singh, Kanti Prasad, and others raised
alarm. Rajendra fired two shots from the
12 All. Virendra Vs. State of U.P.
867
jangla (window) and said from within the
house that no miscreants were inside,
asking them to open the door (from the
outside) and save him. In the meantime,
Onkar attacked Rajendra with a spear
(bhala) from the munder (roof edge) but it
was caught by Rajendras wife. Thereafter,
Virendra fired at Rajendra with his
country-made pistol from the roof-top,
causing him injuries. He fell down and died
on the spot. After murdering Rajendra, the
appellants fled towards the south. The
informant went to the police station with
the snatched woolen coat, woolen sheet,
country-made pistol and cartridges which
were taken in custody and a memo
(Ext.Ka-2)
was
prepared.
Upon
the
information laid an FIR was registered as
Case Crime No.13 of 1985, Section 302
I.P.C and Section 25 Arms Act, at Police
Station Ahmad Garh.

5. The investigation was carried out by
P.W.4, Kalyan Singh Yadav, Station
Officer (S.O.) P.S. Ahmad Garh, who
prepared the inquest report of the deceased
and sent the body for post-mortem
examination.
The
Investigating
Officer
inspected the place of occurrence and
prepared its site-plan (Ext. Ka-10). He also
collected plain earth and blood-stained earth
from the place of occurrence and prepared its
memo (Ext.Ka-11). In addition, he collected
dried grass stems and kept them in separate
sealed boxes, marked as Exhibits 9, 10, and
11. He further collected ash from the fire at
the spot and sealed them in a separate box
and prepared its recovery memo (Ext. Ka12). He also prepared the supurdagi nama
(Ext. Ka-13) for the lantern, which was stated
to have been lit in the house at the time of the
incident.

6. P.W.3, Dr. D.B. Singh, conducted
the post-mortem examination on the
deceaseds cadaver on 12.02.1987 at 3:30
p.m. He found five ante-mortem injuries on
the dead body and opined that the cause of
death was shock due to excessive bleeding.

7. After recording the statements of
witnesses and collecting other evidence, the
Investigating Officer filed a charge-sheet
under Section 302 IPC against Virendra,
Onkar and Ajab Singh @ Bali before the
competent court.

8.
The
concerned
court
took
cognizance of the offence and summoned
the accused. They appeared before the
Court and the court furnished them copies
of relevant prosecution papers under
Section
207
Cr.P.C.
and
thereafter
committed the case to the Court of Sessions
on 29.01.1986.

9. The accused persons appeared before
the Court of Sessions, where Virendra was
charged with the offence punishable under
Section 302 of the Indian Penal Code (IPC),
and Onkar and Ajab Singh @ Bali were
charged with the offence punishable under
Section 302 read with Section 34 of the IPC.
All the accused persons pleaded not guilty
and claimed to be tried.

10. The prosecution examined six
witnesses in support of the prosecution
case: P.W.1, Ramji Lal (brother of the
deceased), P.W.2, Shakuntla (wife of
Rajendra), P.W.3, Dr. D. B. Singh
(conducted
post-mortem
examination),
P.W.4, Kalyan Singh Yadav (Investigating
Officer), P.W.5, Constable Daya Chand
(scribe
of
Chik
F.I.R.)
and P.W.6,
Constable Bishambar Singh (carried dead
body to post- mortem house).

11. P.W.1, Ramji Lal, is uncle of the
deceased Rajendra and also the first
868 INDIAN LAW REPORTS ALLAHABAD SERIES
informant in this case. He has said in his
testimony that he was present at the time of
the incident. It has come in his statement
that there was enmity between the accused
and the informant with regard to election of
the Gram Pradhan. In that election, Aidal,
father of accused Virendra, contested and
Devi Ram had supported his rival Bahori,
who won the election. Therefore, the
accused bore grudge against the informant
and his family. P.W.1 further deposed that
the marriage of Rajpals daughter was fixed
for 13.02.1985. On 10.02.1985, at about
8:45 p.m., Devi Ram had gone to
Bulandshahr, and the informant was lying
in his Dubari, while the door of the house
was open. Rajendra was inside the house in
the eastern Kothri. In the courtyard,
Shakuntla, Mohar Shree and other women
of the locality were singing wedding songs
and a lantern was lit there. The appellants
Virendra, Onkar, and Bali entered their
house. Virendra caught hold of the
informant and asked for the gun belonging
to Devi Ram (his brother). The informant
said that Devi Ram had taken the gun along
to Bulandshahr. Thereafter, Bali and Onkar
went inside the house. Bali was carrying a
lathi, Onkar had a country-made pistol on
him, concealed in his coat and Virendra
was also armed with a country-made pistol.
Bali struck Rajendra with the lathi and
dragged him into the courtyard. Thereupon,
Rajendra, his wife Shakuntala, and Mohar
Shree caught hold of Onkar and Bali.
Virendra also ran inside and they caught
hold of all three appellants. The appellants
tried to run away and in the process,
Onkars coat and Balis shawl (chadar) were
snatched. The accused then ran outside the
house. The informant bolted the door from
inside and climbed onto the roof from the
staircase. The appellants also climbed on
the roof through the house of Tirkhi. Upon
hearing the alarm, the villagers gathered
outside the house. Thereafter, all the
appellants took some dried grass (phoos)
and set it on fire on the staircase. Rajendra,
from inside the house, told the villagers
that there were no miscreants inside and
also fired 2-3 rounds from the jangla
(window). When Rajendra saw fire on the
staircase, he shouted for help and came out
into the courtyard. Then Onkar attacked
him with a ballam (spear), which was
caught by Rajendras wife. The informant
told Virendra that Virendra Bhai, he is not
a miscreant, he is my nephew, Rajendra.
Dont shoot him. Even then, Virendra shot
him, and thereafter, the appellants fled.

12. P.W.1, Ramji Lal, has also
deposed that he identified all the accused in
the light of a lantern and the light from the
fire. Rajendra died on the spot. At about
4:00 a.m., he got a written report scribed by
Ram Avatar and put his thumb impression
on it. The witness has proved the written
information (Tahrir) (Ex. Ka-1) and has
stated that he brought the tehrir, as well as
the snatched coat, the shawl (chadar),
country-made pistol, and cartridges to the
police
station,
where
the
concerned
constable took them into his possession and
completed the necessary formalities. He
also proved the coat and shawl (chadar) and
said that these belonged to the appellant,
Onkar, and the country-made pistol and
cartridges were found inside the pocket of
his coat.

13. P.W.2, Smt. Shakuntla, wife of
Rajendra (deceased), has supported the
prosecution case and stated that on the
fateful night, at about 8:45 p.m., she, along
with her sister-in-law (Jethani) Mohar
Shree, her niece Dayawati, and other
women of the locality were singing
wedding songs in the courtyard of her
house. A lantern was lit there. Her father-
12 All. Virendra Vs. State of U.P.
869
in-law, Ramji Lal, was in the Debari and
her husband was lying down in the Kothari.
The appellants, Virendra, Bali, and Onkar
came over there. Virendra asked Ramji Lal
for Devi Rams gun, to which he said that
Devi Ram had taken it along with him to
Bulandshahr. Then Onkar dragged her
husband out of the Kothari, and accused
Bali assaulted her husband with three lathi
blows on his head. Thereafter, she, her
husband, and Ramji Lal caught hold of the
appellants. They tried to run away, and in
the process, a coat and a shawl (chadar)
was snatched away from them. The accused
ran outside the house, and her father-in-law
bolted the door from inside. The women of
the locality, who were singing wedding
songs ran inside the kotha. The appellants
climbed onto their roof from Tirkhis
kothari. Her father-in-law, Ramji Lal,
also climbed onto the roof from the
staircase. Her husband fired two round of
shots from the jangla. The villagers
surrounded the house, and someone
bolted the door from outside. Thereafter,
all the appellants collected some dried
grass (phoos) and set it a fire on the
staircase. The appellant, Onkar assaulted
her husband with a spear (ballam), but
she caught hold of it, due to which it did
not hit him. Then Virendra shot her
husband, as a result of which he fell to
the ground and died. She identified the
appellants by the light of the lantern and
the burning fire.

14. P.W.3 Dr. D. B. Singh, has
conducted the post-mortem examination
upon the deceased Rajendras body on
12.02.1987 at 3:30 p.m., and found the
following ante-mortem injuries:-

(i) Lacerated wound measuring
1" 1⁄3" scalp deep on the left side of the
head, 4" above the left eyebrow.

(ii) Two abraded contusions,
each measuring " ", situated " apart on the
left side front of the head, about " above
injury no. 1.

(iii) Multiple gunshot wounds of
entry present over an area of 11" 5"
towards the right and left sides of the upper
front of the chest, extending downwards to
the front of the neck and left shoulder. One
large wound measuring 2" 1" chest cavity
deep was found near the middle of the left
collar bone, surrounded by several small
wounds, each about " ", skin to muscle
deep.

(iv) Abrasion measuring 2" 2" on
the front lower part of the right knee.

(v) Abrasion measuring 2" 2" on
the front lower part of the left knee.

During the internal examination,
the left collar bone and second rib were
found fractured, and both pleura were
lacerated. The upper and middle lobes of
the right lung were also lacerated.

15. In the opinion of the doctor, the
cause of death was shock as a result of
excessive
bleeding
from
ante-mortem
injuries. He recovered eleven pellets from
the lungs, which he sealed in an envelope
and handed over to the constable. Dr. D. B.
Singh proved the post-mortem report (Ext.
Ka-3) and the clothes of the deceased (Ext.
5, 6, and 7). He opined that injuries No. 1
and 2 could have been caused by a lathi,
Injury No. 3 was caused by a gunshot, and
Injuries No. 4 and 5 were caused by
friction.

16. P.W.4, Kalyan Singh, Station
Officer, is the Investigating Officer of this
case. He has stated that he recorded the
870 INDIAN LAW REPORTS ALLAHABAD SERIES
statements of the informant and other
witnesses. Upon reaching the spot, he
found the dead body of the deceased lying
in the informants courtyard. He further said
that he recorded the statements of Smt.
Shakuntala and Ramji Lal and prepared the
inquest report, which he proved as Ext. Ka5. He also prepared the photo nash, challan
nash, letter to the C.M.O., a letter to the
R.I., and a sample seal, which he proved as
Ext. Ka-6 to Ext. Ka-9. He further stated
that he inspected the place of occurrence
and prepared the site plan, which he proved
as Ext. Ka-10. From the place of
occurrence, he collected plain earth, bloodstained earth, and dried grass (phoos),
which were proved as Ext. 9, 10, and 11
respectively. He also collected ashes from
the staircase and the roof, which he proved
as Ext. 12. The supurdaginama of the
lantern, recovered from the place of
occurrence, was proved as Ext. Ka-13.
After completing the investigation, he
submitted the charge-sheet against the
appellants, which he proved as Ext. Ka-14.
He further said that a separate case was
registered under Section 25 Arms Act, but
as no evidence was found in support, he
submitted a final report therein. P.W.4 has
also deposed at the trial that on 10.02.1985,
at about 10:30 p.m., Aidal Singh, son of
Pope Singh, who is the father of the
accused Virendra and Jogendra son of
Maharaj Singh, arrived at the police station
by truck and provided certain information,
which was entered in G.D. No. 28 at 10:30
p.m. He has proved a copy of the said G.D.
entry as Exhibit Kha-1. On the basis of this
information,
Sub-Inspector
Lal
Singh
Tomar, Constables Dayanand Tyagi, Tope
Singh, and Ramesh Chand were sent to
village Satbara by the same truck. When he
himself reached the house of the informant,
the aforesaid police officials were already
present there. He has admitted that in the
year 1982, there was party-bandi in village
Satbara due to the Gram Pradhan election,
one party belonged to Bahori Pradhan and
the other to Aidal Singh.

17. P.W.5, Constable Dayanand, is a
formal witness. He has scribed the chik FIR
on the basis of the written report (Ext. Ka1) submitted by the informant and entered
its gist in G.D. No. 6 dated 11.02.1985. He
has proved the chik FIR as Ext. Ka-15 and
the copy of the G.D. as Ext. Ka-16.

18.
P.W.6,
Constable
Bishambar
Singh, is a formal witness, who has taken
the dead body of Rajendra Singh from
Satbara to post-mortem house, Bulandshahr
for autopsy. He reached Bulandshahr in
two hours. It took him some time in police
lines. Thereafter, relevant papers were
handed over to the doctor, belatedly at 12
noon.

19. The prosecution have produced the
following documents during the trial:-

A written report (Exhibit Ka-1),
recovery memo regarding the countrymade pistol, cartridges, woolen coat, and
bed sheet (Exhibit Ka-2), post-mortem
report (Exhibit Ka-3), chik report (Exhibit
Ka-4), inquest report of the deceased
(Exhibit Ka-5), photo nash (Exhibit Ka-6),
challan nash (Exhibit Ka-7), letter to
C.M.O. (Exhibit Ka-8), letter to R.I.
(Exhibit Ka-9), site-plan (Exhibit Ka-10),
recovery memo regarding plain earth and
blood-stained
earth
(Exhibit
Ka-11),
recovery memo regarding ash (Exhibit Ka12), supurdaginama regarding the lantern
(Exhibit Ka-13), charge-sheet (Exhibit Ka14), chik FIR (Exhibit Ka-15), G.D. No.6
dated 11.02.1985 at 6:30 a.m. (Exhibit Ka16), G.D. No.8 dated 11.02.1985 at 7:30
a.m,. (Exhibit Ka-17) and G.D. No.24
12 All. Virendra Vs. State of U.P.
871
dated 11.02.1985 at 19:30 p.m. (Exhibit
Ka-18).

20. The statements of the appellants
were recorded under Section 313 of the
Code of Criminal Procedure (for short the
Cr.P.C.), where they denied the prosecution
case. It was admitted that the marriage of
Dayawati,
daughter
of
Rajpal,
was
scheduled for 13.02.1985. They also stated
that they had been falsely implicated in this
case due to partybandi and that the
Investigating
Officer
had
wrongly
submitted the charge-sheet against them.
They also filed written statements, wherein
it was stated that the village Pradhan and
the informant with the help of police, had
lodged a false report against them.
According to them, the real facts were that
some unknown dacoits came to the house
of Ramjilal, and due to the alarm raised, the
dacoits could not commit any loot. This
information was given by Aidal Singh and
Jogendra Singh at the police station the
same night and the police arrived there at
about 11:00-11:30 p.m. in the night. The
police inquired about the incident, and the
people informed them that it had been
committed by unknown dacoits. It was also
stated that the FIR was lodged belatedly.
The witnesses are inimical to them. Ramji
Lal is on good terms with Pradhan Bahori
and Bahori got them falsely implicated in
this case. The deceased, appellant Bali
stated that he had nothing to do with the
chadar or the gun. He further stated that the
unknown
dacoits
committed
marpeet
(assault) and murder of Rajendra, and upon
information furnished by Jogendra and
Aidal Singh, the police reached the house
of Ramjilal the same night. He was on
inimical terms since 1969 with the
deceased appellant, Virendra due to a land
dispute between him and Chatri Singh @
Chatar Singh, a brother of full blood
Virendras grandfather of accused. Virendra
has stated that he never told Devi Ram that
he would not allow Devi Ram to keep his
gun. Some unknown dacoits entered Devi
Rams house to commit dacoity. Rajendra
and others raised alarm. A gun was fired,
and the villagers surrounded Devi Rams
house confining the dacoits inside. Aidal
Singh and Jogendra Singh informed the
police the same night and the police
reached the spot at about 11:0011:30 p.m.
In the meantime, the dacoits committed
marpeet with Rajendra and shot him dead.
The deceased appellant Virendra also said
that due to partybandi and enmity arising
out of the election of the village Pradhan,
he had been falsely implicated in this case.
The
defence
has
produced
certain
documents in support of this contention.

21. The Court examined C.W.1
constable Ramesh Chandra and C.W.2 I.O.
Kalyan Singh Yadav (after recalling him).
C.W.1,
Ramesh
Chand
(Constable)
deposed that on 10.02.1985, he was posted
at Police Station Ahmad Garh. On that
date, he himself along with Constables Top
Singh, Dayanand Tyagi, Subhash, and
Davendra had reached village Satwara at
11-12 night. There, they reached the house
of Ramji Lal and found that Rajendra, the
nephew of Ramji Lal, was lying dead.
People were saying that Virendra, Onkar
and Bali had killed him. S.I. Lal Singh
stayed there during the night and kept up
inquiring about the incident. At 8-9 a.m.
the Kotwal reached there after that they
returned to the police station. The villagers
were heard to say that dacoits had come to
the house of Ramji Lal and killed Rajendra
and the appellants were member of the
gang of dacoits.

22. C.W.2 Kalyan Singh Yadav
(Investigating
Officer),
in
his
re-
872 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, stated that at 10.30 p.m. on
the date of incident, Aidal Singh and
Jugendra Singh gave information that
Ramji Lals house has been surrounded and
firing is going on. Thereafter S.I. Lal Singh
Tomar
proceeded
to
the
place
of
occurrence the same night at 10.30 p.m.
vide G.D. No.28 dated 10.2.1985 and
returned at 8:00 a.m. on 11.2.1985 recorded
in G.D. No. 10. He has proved a copy of
the return G.D. as secondary evidence (Ex.
C-1). Aidal Singh is the appellant,
Virendras father and Jugendra Singh is the
appellant, Onkars brother.

23. The learned Trial Court, after
hearing the arguments of both parties and
examining
the
evidence
on
record,
convicted the appellant, Virendra under
Section 302 I.P.C. and appellants, Onkar
and Ajab Singh @ Bali under Section 302
read with Section 34 I.P.C. and sentenced
each of them to the terms already indicated
above.

24.
Feeling
aggrieved
by
the
impugned judgment and order dated
02.12.1987, this appeal has been filed by
all three convicts.

25. During the course of the hearing of
this criminal appeal, appellants Virendra
and Ajab Singh @ Bali have died, and the
appeal was ordered to abate at the instance
vide order dated 17.07.2018. Therefore, the
appeal has been heard at the instance of the
surviving appellant, Onkar alone.

26. Heard Mr. Krishna Kant Dubey,
learned Counsel for the appellant and Mr.
Ghanshyam Kumar, learned A.G.A.-I for
the State and perused the record.

27. Learned counsel for the appellant has
submitted that learned Trial Court has not
properly appreciated the evidence on record,
and thus, the impugned conviction and sentence
are not sustainable. It is further submitted that
the alleged incident occurred in the night of
10.02.1985, and upon receiving information,
some police officials arrived at the place of
occurrence around 11:00-12:00 the same night.
The FIR was lodged the next morning at 6:30
a.m., and there is no explanation for the delay in
lodging the FIR. It is next submitted that there
was also delay in conducting the post-mortem
examination of the deceased, which has not
been explained by the prosecution. This raises
serious doubt about the prosecution case. It is
next contended that some unknown dacoits
committed the offence and fled the place of
occurrence, and later, the informant, with the
help of the village pradhan and the police,
lodged a false report against the appellants due
to partybandi and enmity in connection with
village pradhan election.

28. Learned counsel for the appellant has
also submitted that if according to the
prosecution, the motive of the appellants was to
loot Devi Rams gun and they were informed
that Devi Ram had taken his gun to
Bulandshahr, the appellants would have
returned without event. Moreover, if they had
intention to murder Rajendra, then they would
have done so at the very first instance when,
according to the prosecution, they entered the
informants house and asked about the gun and
beaten Rajendra. Thus, the entire story of the
prosecution is doubtful. It is also submitted that
according to the prosecution, at the time of the
incident some women of the locality were
inside the house singing wedding songs.
However, none of them had been examined in
support of the prosecution case. P.W.1 and
P.W.2 are family members of the deceased and,
therefore, are highly interested witnesses.

29. It is true for a principle that close
family members are not expected to tell
12 All. Virendra Vs. State of U.P.
873
falsehood about the complicity of a man in
the crime, because they would not wish that
the true offender to go unpunished and,
therefore, not speak inculpatory about an
innocent man falsely. This principle,
however, has no application to a case
where the evidence shows that nobody saw
anything, and against the ones implicated,
the family members of the deceased had a
grudge or scores to settle. It is in cases,
such as these, that a family member of the
deceased can verily be called an interested
witness.

30. On the other hand, it is submitted
on behalf of the State that the prosecution
story is proved beyond reasonable doubt.
There is no unexplained delay in lodging the
F.I.R. The offence was committed in the
night and the F.I.R. was lodged the next
morning. Due to fear the informant did not go
to the police station to lodge the FIR. The
place of occurrence is established. Rajendra
was killed. P.W.1 and P.W.2 have witnessed
the incident and their testimony is consistent
and reliable. Their testimony can not be
doubted on the ground that they are relatives
of the deceased. There is no reason why the
appellants would be falsely implicated in this
case. The appellants came at the informants
house to commit murder and their relatives
went to the police station in advance to
mislead the police by giving it the color of a
dacoity by unknown men.

31. Upon a consideration of evidence
adduced by both the parties and the rival
submissions,
let
us
see
whether
the
prosecution has been able to prove its case
beyond reasonable doubt. In a criminal case
the burden of proof always lies upon the
prosecution. The prosecution case is that
appellants/convicts
came
over
to
the
informant's house and committed maarpeet,
set the staircase on fire and murdered
Rajendra, the informants nephew, by shooting
him dead inside the house. The defence case is
that it was some unknown dacoits who came
to the informants house to commit dacoity.
They beat up Rajendra and when they failed in
their attempt they shot him dead and fled away
from the spot. Due to party bandi and enmity
arising from the village Pradhan election, the
appellants have been falsely implicated in this
case with the aid of incumbent Pradhan, acting
in connivance with the Police.

32. Thus in the present case murder of
the deceased Rajendra in the informants house
on the fateful night is not disputed by the
defence. The defence case is that they were not
involved in the commission of the offence.
The inquest report of the dead body was
prepared at the spot, the next day i.e.
11.2.1985 at 12.30 p.m. The post-mortem was
conducted on 12.2.1985 at 3.30 p.m. Thus
there is a delay of more than 24 hours in
sending the body for post-mortem and this
delay is not well explained by the prosecution.
According to P.W.3 Dr. D.B. Singh there
were 05 antemortem injuries on the body of
the nature of lacerated wound, abrasions,
multiple gunshot wounds of entry over left
side of chest and the cause of death was
shock and excessive bleeding as a result of
antemortem injuries. In the opinion of the
doctor the death may have been caused on
10.2.1985 at 8.45 or 9 p.m. and gunshot
injury no.3 was sufficient in the ordinary
course of nature to cause death. The I.O. has
collected plain earth and blood-stained earth
from the place of occurrence which
corroborates the ocular testimony regarding
the place of occurrence. In view of the
above, the place of occurrence is established
and the fact that the deceased was murdered
inside the house by firearm injuries.

33.
Let
us
see
whether
the
appellants/convicts committed the offence
874 INDIAN LAW REPORTS ALLAHABAD SERIES
as alleged by the prosecution. As per the
prosecution the incident took place on
10.02.1985 at about 8:45 p.m. at the house
of the informant, Ramji Lal, in village
Satbara, Police Station Ahmad Garh,
District Bulandshahr. The FIR was lodged
the next morning at 6:30 a.m. by the
informant. According to the Chik FIR the
distance from the place of occurrence to the
police station is about 7 kilometers. A
perusal of the FIR shows that it does not
contain any explanation regarding the
delay. The first submission on behalf of the
appellants is that there was delay in lodging
the FIR and no explanation for the delay
has been given which raises serious doubts
about the prosecution case and as the
assailants were unknown to the informant
so he has falsely implicated the appellants
due to partybandi and enmity arising out of
village Pradhan elections.

34. P.W.1 the informant Ramji Lal
has stated that at about 4 a.m. the tehrir
was written by Ram Autar at his dictation
and on that basis he lodged the FIR. On
the other hand the I.O. Kalyan Singh has
stated on oath that the father of the
accused Virendra, namely Aidal Singh,
alongwith one Jogendra, brother of coaccused Onkar, had reached Police
Station Ahmad Garh the same night at
10.30 p.m. by truck and informed the
police that the house of Ramji Lal is
surrounded by miscreants (badmaash) and
there ongoing assault by gunfire. The said
information was duly entered in the
General Diary of the police station and
Sub-Inspector Lal Singh Tomar, along
with
three
other
police
officials,
proceeded by the same truck to village
Satbara. P.W.4, I.O. Kalyana Singh has
stated that S.I. Lal Singh Tomar, Head
Constable Dayanand Tyagi, Constable
Top Singh, and Constable, Ramesh
Chandra were sent from the police station
to the said village, Satbara, the same
night.

35. The Court has examined C.W.-1,
Constable,
Ramesh
Chandra,
who
accompanied S.I. Lal Singh Tomar to
village Satbara. He has stated that they
reached the village at about 11-12 in the
night and went to the house of Ramji Lal,
where his nephew Rajendra was found
lying dead. He further stated that they
stayed in the village throughout the night
and returned to the police station when
the Station Officer (Daroga) arrived there
at about 8-9 a.m., the next morning.

36. In view of the above evidence, it is
clear that after the alleged incident, the
police reached the house of the informant at
about 11:00 p.m. to 12 midnight the same
night, upon information by relatives of the
appellants Virendra and Onkar. The police
remained present in the village throughout
the night and saw the dead man lying in the
informants house. If the assailants were
known to the informant and so to the
Police, then it is quite unusual that neither
the informant lodged any F.I.R. during the
night nor the police started investigation
into this crime till the next morning.
Despite presence of the police in village the
entire night, the informant did not go to the
police station to lodge the FIR the same
night. The presence of police should have
removed the fear, if any, the informant had
in proceeding to police station to lodge an
FIR. It was quite unnatural for him to wait
for the night to be over and lodge the FIR
the next morning.

37. It is also relevant to note that
P.W.1, Ramji Lal and P.W.2, Shakuntala,
the wife of the deceased, are the only two
public
witnesses
examined
by
the
12 All. Virendra Vs. State of U.P.
875
prosecution. Both of them are relatives of
the deceased. Surprisingly, both of them
have denied that the police had reached
their house the same night. P.W.1 has
stated that the police did not reach the
village before the report was lodged. He
has denied that the Police came to his
house at 11:00 or 11.30 p.m. He has
expressed ignorance about the fact that
Aidal Singh and Jogendra went to police
station and called the Police. P.W.2 has
stated that no policeman came to her house
at 11-12 in the night. The Police came the
following morning at 8-9 a.m. The above
statements of P.W.1 and P.W.2 are contrary
to the evidence of Police Officials, who
have said that the Police came to village the
same night at 11-12. So denial of the
Polices presence on the fateful night in the
village by P.W.1 and P.W.2 appears
unnatural, which goes to show that they are
hiding true facts from the Court. Thus,
there is unexplained delay in lodging the
FIR.

38. The effect of delay in lodging the
FIR has been discussed by Supreme Court
in various pronouncements. In Thulia Kali v.
State of Tamil Nadu 1972 (3) SCC 393, it
was held by the Supreme Court that delay in
lodging the First Information Report often
results in embellishment which is a creature
of after-thought. On account of delay the
report not only gets bereft of the advantage of
spontaneity, danger creeps in of the
introduction of coloured version and an
exaggerated account of the correct story as a
result of deliberation and consultation. It is
also held that in order to avoid all criticisms
of the defence, it is therefore essential that the
delay in lodging of the First Information
Report should be satisfactorily explained.

39. Further, the Supreme Court in
Meharaj Singh (L/Nk.) v. State of U.P.,
(1994) 5 SCC 188, has observed in para 12
of the report:

"FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eye
witnesses, if any. Delay in lodging the FIR
often results in embellishment, which is a
creature of an after thought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR, was lodged
at the time it is alleged to have been
recorded, the courts generally look for
certain external checks. One of the checks
is the receipt of the copy of the FIR, called
a special report in a murder case, by the
local Magistrate. If this report is received
by the Magistrate late it can give rise to an
inference that the FIR was not lodged at
the time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
FIR along with the dead body and its
reference in the inquest report. Even
though the inquest report, prepared u/s 174
Cr. P.C. is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR and
the gist of statements recorded during
876 INDIAN LAW REPORTS ALLAHABAD SERIES
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in embryo and had not been
given any shape and that the FIR came to
be recorded later on after due deliberations
and consultations and was then ante timed
to give it the colour of a promptly lodged
FIR."

40. In view of the legal position that
emerges from the above discussion, the FIR
lodged belatedly with no explanation for
the delay casts a serious doubt over the
prosecution case.

41. The Investigating Officer has
stated on oath that since 1982, due to the
election of the village Pradhan, there has
been partybandi in village Satbara. One
faction supports Bahori Pradhan and the
other stands by Aidal Singh, the father of
the appellant, Virendra Singh. It has come
in the statement of P.W.1, Ramji Lal, that
he and Devi Ram had supported Bahori
Pradhan, who won the Pradhan election,
while the appellant Virendras father, Aidal
Singh, lost the election. Therefore, from the
above evidence, it is clear that there is
partybandi in the village, and due to the
election of the Pradhan, both parties were
not on good terms with each other. Thus
there was reason for the informant to
falsely implicate the appellants in this case.

42.