# Vishwa Nath Tewari & Ors v. State of U.P

- **Citation:** (2026) 1 ILRA 726
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-06
- **Case number:** Criminal Appeal No. 866 of 1988
- **Bench:** Rajiv Gupta, Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwa-nath-tewari-ors-v-state-of-u-p-53982
- **Pages:** 18

## Text

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726 INDIAN LAW REPORTS ALLAHABAD SERIES
302/34 and 307/34 IPC. We do not find any illegality or infirmity in the Trial Court's appreciation of
evidence.

32. The judgment of conviction and sentence dated 17.02.1989, passed by the learned Trial Court under
Sections 302/34 and 307/34 IPC, is fully supported by the evidence available on record. The evidence
conclusively establishes the participation of the surviving appellant, Sanjiv Kumar alias Munmun, in the
crime with premeditation and prior planning, along with the deceased co-accused.

33. Thus, from the above discussions, it is evident that the essential ingredients of Section 34 of the IPC,
namely, pre-planning, premeditation and participation, stand fully established and proved against the
surviving accused-appellant, Sanjiv Kumar alias Munmum. Since the prosecution evidence has conclusively
proved the existence of pre-plan, premeditation and active participation on the part of the accused-appellant,
Sanjiv Kumar alias Munmum, he is consequently liable to be convicted for the offence and charge levelled
against him by the prosecution.

34. Accordingly, the present criminal appeal lacks merit and is hereby rejected.

35. The accused-appellant, Sanjiv Kumar alias Munmun, is presently on bail. His personal bond stands
cancelled, and his sureties are discharged from their liabilities. He is directed to surrender before the Chief
Judicial Magistrate, Shahjahanpur, within one month from today, to undergo the remaining sentence awarded
by the Trial Court vide order dated 17.02.1989.

36. In the event the accused-appellant, Sanjiv Kumar alias Munmun, fails to surrender before the Chief
Judicial Magistrate, Shahjahanpur, within the stipulated period of one month, the Chief Judicial Magistrate
Shahjahanpur, shall issue a non-bailable warrant to secure his arrest. Upon arrest, he shall be sent to jail to
serve the remaining sentence in accordance with the Trial Court's order dated 17.02.1989.

37. The Chief Judicial Magistrate, Shahjahanpur, is directed to intimate this Court regarding compliance
of this order.

38. Office is directed to certify the judgment to the learned Trial Court forthwith along with lower court record.
---------
(2026) 1 ILRA 726
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2026

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Appeal No. 866 of 1988

Vishwa Nath Tewari & Ors. ...Appellants
Versus
State of U.P. ...Respondent
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
727
Issue for Consideration
The prosecution case arose out of an incident on 20.10.1986. The seven accused entered informant's house,
assaulted inmates and committed dacoity. Trial court convicted all accused under section 396 IPC.

Headnotes
A. Indian Penal Code,1860-Section 396, Criminal Procedure Code,1973-Dacoity with murderInjured witnesses-Evidentiary value-not wholly reliable due to material contradictionsinconsistency regarding source of light-contradiction in number of shots fired-Hostile
independent witnesses-no corroboration available-medical evidence-injury report and postmortem report not proved by examining doctor-recovery-no looted articles recovered-no empty
cartridges recovered-evidence indicates possibility of assault arising out of political rivalrybenefit of doubt-conviction unsustainable.(Para 42 to 73) (E-6)
Held
The court ruled that where independent witnesses turned hostile and injured witnesses gave inconsistent
statement regarding number of assailants, source of light, specific role of surviving accused. non-proof of
medical evidence weakend prosecution. role of surviving appellants not specifically established. Conviction set
aside. appeal allowed.

Case law Cited
Abdul Sayeed Vs State of M.P., (2010) 10 SCC 259, Ramji Lal & Anr. Vs State of U.P.,

List of Acts
Indian Penal Code,1860, Criminal Procedure Code,1973.

List of Keywords
Dacoity, Injured witnesses, hostile witness, Political enmity, non-proof of medical evidence, benefit of doubt,
vicarious liability, reversal of conviction, surviving appellants.

Case Arising from
CRIMINAL JURISDICTION: CRIMINAL APPEAL No. - 866 of 1988

Vishwa Nath Tewari & Ors. Vs. State of U.P.

From the Judgment and Order dated 06.01.2026 of the High Court of Judicature at Allahabad.

Appearances for Parties
Advs. for Appellant(s):-
S.K. shukla, Ashok Kumar Verma, Manju Gupta, Pradeep Kumar Tripathi, Ripu Daman Shahi
Adv. for Respondent(s):- G.A.,

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard Shri R.D. Shahi, learned counsel for the appellant no. 3 Mangoo Lal & appellant no.
5 Maqbool, Ms. Manju Gupta, learned counsel for the appellant no. 2 Bhai Lal, and Shri H.P.
Maurya, learned AGA for the State.

2. At the very outset, it was brought to our notice by the learned counsel for the appellants that
appellant Nos. 1, Vishwa Nath Tewari, 4, Lallu, and 6, Jagatoo, have since died. Therefore, the
appeal against them has already been abated vide order dated 17.02.2022. This appeal, therefore,
728 INDIAN LAW REPORTS ALLAHABAD SERIES
survives and is being adjudicated only in respect of the three surviving appellants: appellant nos. 2
Bhai Lal, 3 Mangoo Lal, and 5 Maqbool.

3. The instant appeal has been preferred against the impugned judgment and order dated
17.12.1988 passed by the learned I Additional Sessions Judge, Lakhimpur Kheri, in Sessions Trial
No. 40 of 1988 (State Vs. Vishwa Nath Tewari and others), arising out of Case Crime No. 123 of
1986 dated 21.10.1986, under Section 396 IPC, Police Station Isha Nagar, District Lakhimpur
Kheri, whereby the learned Trial Court convicted the accused appellants for the offence under
Section 396 IPC and awarded the sentence of imprisonment for life.

Factual Matrix

4. The brief facts of the case are that the prosecution case is based on the FIR lodged by the
informant, Brij Mohan (PW-1). The incident is stated to have occurred on the night of 20.10.1986
at about 08:30 PM at the informants house in Village Hasanpur-Katauli, Police Station Ishanagar,
District Kheri. The family was taking dinner when a group of seven accused persons, including the
appellants, all residents of the same village and well-known to the informant, forcibly entered the
house. The house was illuminated by a lantern and a '' (small kerosene oil lamp). The accused were
allegedly armed with deadly weapons, specifically Banka (curved knife), Lathi (stick), Danda
(cudgel), and a Tamancha (country-made pistol). It is alleged that accused Shesh Tiwari opened
fire on the informant's father, Puttu Lal, and inflicted a fatal blow with a Banka on Smt. Munni
(informant's mother), who tragically succumbed to her injuries. The informant, Brij Mohan, and his
son, Rajendra Prasad (PW-5), also sustained injuries. It is also alleged that the miscreants
proceeded to loot valuable items, including a silver 'Kardhani' (waist chain), other silver jewellery,
and a nose ring. The informant claimed to have clearly identified all the miscreants in the available
light of the lantern, , torches, and moonlight.

5. On the very next day, 21.10.1986, informant Brij Mohan (PW-1) presented a written a
report (Tehrir, Exhibit Ka-1) regarding the incident before the Police Station Isha Nagar. The FIR
(Exhibit Ka-2) was consequently lodged on 21.10.1986 at 08:15 AM (8:15 hours) against the seven
accused persons, namely: Shesh Tiwari, Vishwa Nath Tewari, Mangoo Lal, Bhai Lal, Jassu, Lallu,
and Maqbool.

6. During the course of the investigation, the Investigating Officer (I.O.) prepared the Inquest
Report (Exhibit Ka-4) and sent the deceased, Smt. Munni's body for post-mortem. The I.O. also
visited the place of occurrence, collected blood-stained, simple earth and prepared (Memo Exhibit
Ka-5), and prepared the Site Plan (Exhibit Ka-6). The lantern (Memo Exhibit Ka-7) and a torch
(Memo Exhibit Ka-8) were taken into possession. The injured, Rajendra Prasad (PW-5), Brij
Mohan (PW-1), and Puttu Lal, were medically examined.

7. The following injuries were found on the person of the injured Brij Mohan:

1. Incised wound 8 Cm. x 1 cm. x bone. 6 Cm. of the root of the nose.

2. Abraded contusion of 3 cm x 1.5 cm on left mastroid regions.
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
729

3. Contusion of 8 cm x 2 cm below lateral aspect of left fore arm .10 cm below the elbow
joint.

8. On the same date, another injured, Rajendra (PW-5), was also examined, and the following
injuries were found:

1. Incised wound 9 cm x 2 cm x bone above post skull 7 cm above right mastroid.

2. Incised wound 5 x 5 cm x 1 cm x bone on postero right skull 1 cm.

3. Incised wound 6.5 cm x 1.5 cm x bone post.

4. Incised wound 5 cm x 1.5 cm x bone 2 cm. above mastoid right skull.

5. Incised wound 5 cm x 2 cm x bone on dorsum of right.

6. Incised wound 6.5 cm x 2 cm x muscle deep on post. Right.

7. Incised wound 13 cm x 6 cm x bone deep on back of right elbow.

All the injuries were kept under observation and advice was given for an X-Ray. The
Doctor's opinion was that all injuries were caused by a sharp-edged weapon and duration was half
to one day old.

9. As per the autopsy report, the following injuries were found on the body of the deceased
Smt. Munni:

1. Incised wound: 9 cm x 2 cm x bone deep, on the front side of the head, 4 cm above the
right eyebrow, extending obliquely towards the upper end of the right ear. The underlying right
frontal bone was cut, and the underlying membrane was also found cut.

2. Incised wound: 1.5 cm x 0.5 cm x bone cutting wound 1.5 cm deep, on the aspect of
the left index finger in the middle and distal part, passing through the hand, which resulted in the
finger hanging.

3. Lacerated wound: 3 cm x 1 cm x bone deep, on the back right side of the upper arm, 4
cm from the top of the shoulder, and the underlying humerus (arm bone) was found fractured.

The cause of death was opined to be due to haemorrhage and shock as a result of the
ante-mortem injuries.

10. Puttu Lal Giri also sustained the following injuries:

1. Incised wound: 7 cm x 1.8 cm x Muscle deep on the left side, on the circle of the jaw,
with clotted blood present.
730 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Firearm wound of entry: 3.5 cm x 2 cm on the dorsum of the right hand, 1 cm below
the wrist.

3. Firearm wound of exit: 6 cm x 2.6 cm on the palmar side of the right hand, laterally
situated.

4. Contusion: 7 cm x 2 cm on the back of the chest, left side, 12 cm below the left
Scapula.

11. The Doctor opined that all injuries were ante-mortem, being about half to one day old.
Specifically, Injury No. 1 was caused by a sharp weapon, Injury No. 2 by a firearm, and Injury No.
3 by a blunt object.

12. The Investigating Officer prepared the site plan recorded the statements of the witnesses
and, after concluding the investigation, a charge sheet (Exhibit Ka-21) was submitted against the
seven accused persons under the relevant sections before the Court.

13. Upon the submission of the charge sheet, the learned Chief Judicial Magistrate, Lakhimpur
Kheri, vide his order dated 21.01.1988, took cognizance of the offence. Finding the case to be
exclusively triable by the Court of Session, the same was committed to the Sessions Court, where it
was registered as Sessions Trial No. 40 of 1988 and made over to the court of the 1st Additional
Session Judge, Kheri, for trial.

14. The learned Trial Court framed the charges against the accused-appellants under Section
396 IPC. The said charge was read over and explained to the accused persons, but they denied the
charges leveled against them, pleaded not guilty, and claimed to be tried.

15. On the commencement of the trial, in order to prove the case against the accused persons,
the prosecution examined the following witnesses:

PW-1 Brij Mohan (Informant/Injured), PW-2 Kripa Ram (Hostile Public Witness), PW-3
Bahori Lal (Hostile Public Witness), PW-4 Turri (Hostile Public Witness), PW-5 Rajendra Prasad
(Injured Son), PW-6 Smt. Shyama Devi (Wife of PW-1)

16. Prosecution also adduced the following documentary evidence:

Exh. Ka-1: Written Report (Tehrir), Exh. Ka-2: FIR (Copy of General Diary), Exh. Ka-3: GD
Carbon Copy, Exh. Ka-4: Inquest Report, Exh. Ka-5: Memo of Collecting Simple and BloodStained Earth, Exh. Ka-6: Site Plan, Exh. Ka-7: Memo of Lantern and , Exh. Ka-8: Memo of
Torch, Exh. Ka-9: Letter to CMO, Exh. Ka-10: Challan Form, Exh. Ka-11: Photo Lash
(Panchayatnama), Exh. Ka-12: Sample of Seal Unit, Exh. Ka-13 to Exh. Ka-20: Memo of
Attachment of Property and other reports. & Exh. Ka-21: Charge Sheet. Injury Report of Rajendra
(PW-5): Exhibit Ka-22, Injury Report of Brij Mohan (PW-1): Exhibit Ka-23, Injury Report of Puttu
Lal: Exhibit Ka-24, Post-Mortem Report of deceased Munni: Exhibit Ka-25.
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
731

Testimony of PW-1 Brij Mohan Lal

17. PW-1, Brij Mohan Lal, is the first informant and the son of the deceased, Smt. Munni, is as
follows: He deposed that the accused persons are residents of his village. He knows Buddha Singh.
He further stated that he runs a betel shop and Buddha Singh often used to come to his shop.
Buddha Singh had enmity with Lallu and Shesh Tiwari. Accused Lallu and Shesh Tiwari objected
and asked him that Buddha Singh should not be allowed to come, on this, he stopped Buddha Singh
from coming to his place, and thereafter Buddha Singh did not come to his shop.

18. He further stated that on October 20, 1986, at midnight, dacoits in came to his house. At
that time, he was sitting in the verandah (baramda in local language) at the door. A small lamp
(dibri) was illuminating the area, and his mother and father were present inside the house. He
further stated that his son, Rajendra, was present at the door. There were two lanterns illuminating
inside the house. The night was bright, and moonlight was spreading all around.

19. He further stated that seven miscreants entered into his house to commit dacoity, and they
were villagers of his village. He had seen all the dacoits. Accused Shesh Tiwari was carrying a
Katta (country-made pistol) and a Banka (a type of curved weapon), while accused Vishwanath
was carrying a firearm and a Banka. The other accused were carrying Lathi (sticks), Banka, and
Gupti (swordstick).

20. He further stated that the accused persons opened fire. When he resisted their entry into the
house, accused Vishwanath inflicted a blow with the Banka on his head, and thereafter, the accused
entered the house.

21. He further stated that accused Shesh Tiwari opened fire on his father. When his mother
rushed to rescue him, Shesh Tiwari assaulted her with the Banka. Due to sustaining these injuries,
his mother succumbed. He further stated that accused Shesh Tiwari inflicted a Banka blow on
Rajendra.

22. After hearing the hue and cry, neighbors Bahori Lal, Kripa Ram, and Turri arrived there.
He further deposed that when the witnesses scolded them, the accused persons ran away with the
looted articles. He deposed that he had seen and recognized the accused persons in the light of the
torch and moonlight.

23. He also stated that some of miscreants was carrying a torch in their hand, and when they
were moving from one room to another, they were flashing the torch. He also stated that one
injured, Puttu Lal, is unable to move due to paralysis and is not able to give evidence.

24. Testimony of PW-2 Kripa Ram

Another witness of fact, Kripa Ram (PW-2), deposed that at the time of the alleged incident, at
about 910 PM, he was staying in his house. He had heard the hue and cry and the sound of firing.
He stated that he did not see the dacoits. He further stated that when the dacoits fled away, he
732 INDIAN LAW REPORTS ALLAHABAD SERIES
arrived at Puttu's house. He further stated that when most of the people in the village had arrived,
he also rushed there. He did not support the prosecution version and turned hostile.

25. Testimony of PW-3 Bahori Lal

Another witness, PW-3 Bahori Lal, deposed that he did not know who infact committed
dacoity in Puttu's house. He categorically stated that the accused personsShesh Tiwari, Vishwanath,
Mangoo Lal, Jattoo, Lallu, and Maqbooldid not commit the dacoity. He also turned hostile.

26. Testimony of PW-4 Turri

Another witness, PW-4 Turri, also deposed that he did not know who committed dacoity in
Puttu's house. He categorically stated that the accused personsShesh Tiwari, Vishwanath, Mangoo
Lal, Jattoo, Lallu, and Maqbooldid not commit the dacoity. He also turned hostile.

27. Testimony of PW-5 Rajendra

PW-5, Rajendra, who is the injured son of the informant Brij Mohan Lal, deposed that at about
8:30 to 9:00 PM, dacoity was committed in his house. At that time, he was awake. His father, Brij
Lal, was sitting on the south side at the door, and a small lamp was illuminating inside the door.
The door was open on the north side. He further deposed that some dacoits entered the house.
Among them, Shesh Tiwari, Vishwanath, Bhai Lal, Mangu, Maqbool, Jagatu, and Lallu were
villagers, had no means of light.

28. He further deposed that accused Shesh Tiwari was carrying a Banka and a Katta, while
accused Vishwanath was carrying a Banka, Mangu was carrying a Lathi, and Bhai Lal was carrying
a Gupti. He further stated that Shesh Tiwari inflicted blows with the Banka on him. Thereafter,
Shesh Tiwari inflicted blows upon Brij Mohan, and Shesh Tiwari opened fire on the deceased, who
was his grandmother. After sustaining injuries, she died instantaneously. He also deposed that the
dacoity continued for 2 to 2 and a half hours. Upon his screaming, witnesses Kripa Ram, Bahori
Lal, and Turri arrived there, who were carrying torches. He further stated that at the time of the
occurrence, there was moonlight. He further stated that he recognized the accused persons in the
light of the torch, lantern, small lamp, and moonlight.

29. Testimony of PW-6 Smt. Shyama Devi

PW-6, Smt. Shyama Devi, the wife of the informant Brij Mohan, deposed that at about 89 PM,
dacoits had committed dacoity in her house. At that time, a small lamp was illuminating at the door
and inside the house. The night was bright. Accused persons Shesh Tiwari, Vishwanath, Mangoo,
Lallu, Jattu, Maqbool, and one other accused entered her house. Shesh Tiwari was carrying a fire
arm weapon and a Banka in his hands, while Vishwanath was carrying a Banka, Mangoo was
carrying a Lathi, and other accused persons were also carrying Lathi.

30. She further deposed that the accused persons started to loot goods as they entered the
house. Shesh Tiwari inflicted blows on the deceased, Munni Devi and she succumbed. She further
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
733
deposed that Shesh Tiwari also opened fire over her father-in-law and also inflicted a Banka blow
on Rajendra. She also stated that the dacoits committed dacoity in her house for one hour. When
the villagers arrived there, the dacoits fled away. The dacoits were armed. She also stated that the
accused fired shots at the door to terrorize the villagers.

31. Testimony of PW-7 S.I. Ved Prakash Chaturvedi

PW-7, S.I. Ved Prakash Chaturvedi, who conducted the investigation, deposed that on the
basis of the written report (tahreer), Ex. Ka 1, the checked FIR was lodged by Head Muharrir
Kaushlendra Sharma, who was posted with him, and the same was entered into the General Diary
(GD) by the Head Muharrir.

32. He further stated that he had recorded the statement of the informant, Brij Mohan. After
reaching the place of occurrence, he had recorded the statement of the injured, Rajendra Kumar and
Puttu Lal, and thereafter sent them for medical examination along with an official letter (Majroobi
Chitthi). He further deposed that he had conducted the inquest of the body of the deceased, Munni,
and thereafter sent the dead body for post-mortem through Constable Daya Ram Trivedi.

33. He further stated that he visited the place of occurrence and collected the sample of bloodstained and simple earth from the spot. After getting them sealed, he prepared the seizure memo
(Fard). He also deposed that the lantern and small lamp were also inspected by him and had given
the same to the informant for its safekeeping (supurdagi), and a memo was prepared in this respect.
He also testified to the Police papers which were prepared at the time of the inquest.

34. He further deposed that during the investigation, he recorded the statements of witnesses
Brij Mohan, Kripa Ram, Bahori Lal, Turri, Rajendra, Smt. Shyamu, and others. He also stated that
due to the absconding of the accused persons, he had executed the process of
attachment/confiscation (Kurki) against them. He further deposed that after January 24, 1986, the
investigation was handed over to SHO V.K. Rai, who had made entry of the injury report and postmortem report in the case diary. After concluding the investigation on November 14, 1986, he had
submitted the charge sheet, Ex. Ka 21, against the accused persons.

35. Upon the closure of the prosecution evidence, the statement of the accused persons under
Section 313 of the Code of Criminal Procedure, 1973, was recorded. All the accused persons
denied the prosecution's case and maintained that they were innocent and had been falsely
implicated due to existing political rivalry. The accused, Vishwanath Tiwari, also stated that he
suffered a paralysis attack in his right hand, and therefore, he can neither hold nor eat anything with
his right hand.

36. At the stage of defence evidence, the accused persons did not produce any oral or
documentary evidence.

37. Having heard the learned counsel for both the parties, the trial court considered the
evidence adduced by the prosecution, the statements given by the accused persons, and the material
available on record, found that the accused-appellant had committed dacoity. The court further
734 INDIAN LAW REPORTS ALLAHABAD SERIES
found that the prosecution had succeeded in proving the charge under Section 396 of the IPC
against the accused person beyond reasonable doubt hence convicted them for the offence under
Section 396 of the IPC and consequently sentencing them to imprisonment for life.

38. Being aggrieved by the impugned judgment and order, this instant Criminal Appeal No.
866 of 1988 has been preferred by the six appellants, namely Vishwa Nath Tewari, Bhai Lal,
Mangoo Lal, Lallu, Maqbool, and Jagatoo. However, during the pendency of the appeal, three
appellant accused, namely Vishwa Nath Tewari, Lallu, and Jagatoo, have already passed away, and
their appeals have abated vide order dated 17.02.2022. Now, the instant appeal survives only for
the three remaining accused appellants, namely Bhai Lal, Mangoo Lal, and Maqbool. It is notable
that Shesh Tiwari, who was said to be armed with a Katta (country-made pistol) and a Banka
(curved knife) is not an appellant in this appeal. The appeal now survives against the three accused
persons (Bhai Lal, Mangoo Lal, and Maqbool) against whom it is alleged that they were armed
with a Lathi (stick).

39. It is expedient to mention that the prosecution did not examine the doctor who prepared
the medico-legal report of the injured and the doctor who conducted the autopsy of the deceased
Munni Lal. Nevertheless, the learned trial court proceeded to rely upon the unproven medical and
post mortem report.

40. Submission of the appellants

(i). Learned counsel for the appellants submitted that the entire prosecution story is
unnatural, highly improbable, and concocted, primarily due to political enmity stemming from the
recent Pradhan election, which provided a strong motive for the complainant's family to falsely
implicate their opponents. It was argued that the object of the miscreants who entered the house,
Shesh Tiwari and Vishwanath, appeared to be marpeet (assault) rather than robbery, suggesting the
intention was to wreak vengeance and to settle scores arising from the feud, and making the
allegation of looting a mere embellishment to attract the graver Section 396 IPC.

(ii). Learned counsel for the appellants further submitted that the appellants are not
hardened criminals should be accepted, making the open-face dacoity allegation by known door
neighbours is entirely unnatural and unbelievable. This lack of precaution is considered a
significant factor that creates a rational doubt in the prosecution's version of the facts.

(iii). Learned counsel for the appellants further submitted that the prosecution's case loses
all its credibility because the key independent witnesses named in the FIRPW-2 Kripa Ram, PW-3
Bahori Lal, and PW-4 Turriall turned hostile. They clearly deposed that they did not recognize the
accused persons, as they arrived at the house only after the dacoits had run away. Furthermore, the
statements of the injured prosecution witnesses regarding the source of light are contradictory,
noting that PW-5 Rajendra stated in his cross-examination that the lantern was extinguished.

(iv). Learned counsel for the appellants further submitted that the charge of dacoity is
critically weakened by the absence of recovery of any looted articles and the overall defective
investigation. Moreover, the learned Trial Court made a fundamental error by admitting and relying
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
735
upon the Injury Reports and Post-Mortem Report even though they were not lawfully proved by the
Doctor who prepared them empty cartridge were also not recovered.

(v). Learned counsel for the appellants further submitted that if the sole object of the
miscreants was to commit dacoity and rob the informants, it remains an unexplained factor why
they should have spared the deceased, Smt. Munni Devi, who was wearing silver and gold
jewellery. This contradiction is highly perverse, suggesting the primary motive was vengeance (or
murder) rather than dacoity, and the principles governing dacoity under Section 396 IPC should not
have been attracted.

(vi). On the basis of aforesaid submission, learned counsel for the appellants submitted
that the impugned judgment and order passed by the Trial Court is not sustainable in the eyes of
law and is liable to be set-aside by this Court.

41. Submission of the respondent

(i). Per contra, learned AGA vehemently countered the submissions raised by the
appellants' counsel, asserting the correctness of the Trial Courts judgment. He emphasized the
settled legal position that the testimony of the injured witnesses (PW-1 Brij Mohan, PW-5
Rajendra, and PW-6 Smt. Shyama Devi) stands on a higher pedestal in law, as their presence at the
scene is guaranteed by their injuries, which acts as an in-built guarantee of their presence. He
argued that the deposition of the injured witness should be relied upon unless there are strong
grounds for its rejection based on major contradictions and discrepancies, which he contended are
absent in this case.

(ii). Learned AGA further submitted that non-support of the independent public
witnesses, such as Kripa Ram (PW-2), Bahori Lal (PW-3), and Turri (PW-4), should not be
allowed to demolish the entire prosecution case, contending that their failure to support is often
attributable to the fear, pressure, and terror generated by the accused party in the village.

(iii). He further submitted that the argument regarding the non-concealment of identity is
not absolute. He argued that this incident was driven by deep-seated enmity and village rivalry,
turning it into a desperate act of vengeance, and that when the accused are highly inimical, they
may act like "daredevils" without concealing their identity.

(iv). He next submitted that the identification of the accused was instantaneous and clear
because they were well-known neighbours and were seen in the available light. The light from the
lantern, dibri, torches, and moonlight was sufficient for recognizing known persons.

(v). Learned AGA further submitted that once the factum of dacoity by five or more
persons is established, and a murder takes place during the commission of that dacoity, all the
participants are vicariously liable for the murder under Section 396 IPC.

(vi). He further submitted that the discrepancies pointed out by the defense regarding the
number of fires or who stood outside are minor and natural deviations that do not go to the root of
736 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter or detract from the essential prosecution story, which is consistently supported by the
three injured eyewitnesses.

(vii). On the basis of above, learned AGA submitted that the learned Trial Court has
rightly and in accordance with law convicted and sentenced the appellants. The impugned order
does not suffer from any illegality or error which may call for any interference by this Court.

42. On the basis of the facts and the submissions advanced by the learned counsel for the
parties, we formulate the following Points of Determination:

(A) Whether the prosecution has proved its case beyond reasonable doubt?

(B) Whether the trial court is right in convicting the accused appellants?

43. Point No. (A) Whether the prosecution has proved its case beyond reasonable doubt- On
the basis of this point, it has to be seen whether the prosecution has proved its case beyond a
reasonable doubt?

44. At the outset, it is expedient to mention here that, as per the prosecution version, many
villagers arrived after hearing a hue and cry. Out of them, the villagers named as eyewitnesses,
namely Kripa Ram, Bahori Lal, and Turri, arrived at the place of occurrence.

45. The prosecution examined them, but they did not support the prosecution case and turned
hostile. Therefore, the benefit/weight of their evidence cannot be extended to the side of the
prosecution.

46. Now, there remain three witnesses of fact, and the prosecution strongly relies on their
deposition, as two of them are said to be injured witnesses. It is the case of the prosecution that,
being injured, the statements of PW-1 Brij Mohan, PW-2 Kripa Ram, and PW-5 Rajendra Prasad
cannot be discarded. The law gives high value to the evidence of an injured witness, and the
prosecution also relied on the cases of Honble Apex Court in Abdul Sayeed Vs. State of M.P.,
(2010) 10 SCC 259 that injured testimony is important. However, the rule states such testimony
must be discarded if there are strong grounds for major contradictions and discrepancies. The
Honble Apex Court has emphasized that even injured testimony must be scrutinized for credibility.
The relevant paragraph 30 of the said judgment is extracted herein below:

"30. The law on the point can be summarised to the effect that the testimony of the
injured witness is accorded a special status in law. This is as a consequence of the fact that the
injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because
the witness will not want to let his actual assailant go unpunished merely to falsely implicate a
third party for the commission of the offence. Thus, the deposition of the injured witness should be
relied upon unless there are strong grounds for rejection of his evidence on the basis of major
contradictions and discrepancies therein."
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
737

47. Here, it is to be made clear that the cited case law does not belong to the case of dacoity,
although the principle is laid down regarding the testimonial valuation and veracity of the injured
witness. In view of that, we proceed to analyze the statements given by the witnesses who are said
to be injured in the alleged incident.

48. As per the testimony of Brij Mohan (PW-1), he has specifically stated in his examinationin-chief that the accused Shesh Tiwari and another accused, Vishwanath Tiwari were carrying
Katta and Banka but with regard to the surviving appellant/accused, those witness has not stated
specifically, the one who was having the lathi, and who was having the Banka, and one who was
having the Gupti. From his evidence, it is also apparent that the deceased Smt. Munni Devi
sustained the Banka injuries inflicted by Shesh Tiwari, and Shesh Tiwari also inflicted the blows of
Banka on the person of injured Rajendra. Furthermore, Shesh Tiwari also opened fire on the person
of the informant's father. The informant did not state any single word that the surviving
appellant/accused person also inflicted blows with the Banka or any other weapon to the injured or
deceased. Thus, there is a deviation from the core version of the F.I.R., where averment is made
that all accused persons inflicted blows with lathis, Bankas, and a firearm.

49. Another witness Rajendra (PW-5), the son of the informant, whose examination-in-chief
has already been elicited hereinabove on cross-examination he has stated that, except for
Vishwanath Tiwari and Shesh Tiwari, Mangoo was armed with a lathi and Bhai Lal was armed
with a gupti. However, he did not state that the surviving accused persons, namely Bhai Lal,
Mangoo Lal, and Maqbool, had inflicted blows by using any of these weapons on the person of the
injured or the deceased.

50. On his cross-examination in Paragraph 7, Rajendra (PW-5) has stated that he had not seen
what weapon Mangoo was carrying. He specifically stated that none of the miscreants was carrying
a lathi. Another witness of fact, Smt. Shyama Devi (PW-6), the wife of the informant Brij Mohan,
whose statement has been elicited hereinabove, also restricted her testimony by stating that
Mangoo and Bhai Lal were carrying a lathi. However, she also did not state that the surviving
accused persons, namely Bhai Lal, Mangoo Lal, and Maqbool, participated in the commission of
inflicting blows by using a lathi or with any other weapon on the person of the injured and
deceased.

51. On her cross-examination also, she did not state a single word that the surviving accused
person also inflicted blows. Thus, there are major contradiction in respect of the role attributed to
the surviving accused persons in the FIR and the role attributed in the testimony of this witnesses of
fact.

52. Now, we proceed to consider the other major contradictions in their statements,
particularly with regard to the source of light and the absence of a role for miscreants who caused
the occurrence.

53. On the perusal of the record, it transpires that the prosecution has examined Brij Mohan
(PW-1) and Rajendra (PW-5) as injured witnesses. Brij Mohan (PW-1) has stated that all the
accused persons are residents of his village. He also stated that he has a betel shop in his village,
738 INDIAN LAW REPORTS ALLAHABAD SERIES
where one Budhdha Singh, resident of Betigaon, used to come to chew betel. He admitted that there
is enmity among Lallu, Shesh Tiwari, and Budhdha Singh. Lallu and Shesh Tiwari objected, and
asked him to prevent Budhdha Singh to come to his shop. He further stated that on 20.10.1986, at
about midnight, he was sitting in his Verandah (Baranda), which was on the North side, and a Dibri
was illuminating inside the house. His mother and father were present, and Rajendra was present at
the door. A lantern was illuminating inside the house, and no other source of light was outside the
house, but the night was bright. He further stated that seven accused persons, who belong to the
same place, came to his house to commit the dacoity. Shesh Tiwari was having a Lathi and a
Banka, Vishwanath was also having one firearm and one Banka, and others were having a Lathi,
Gupti, and Banka. He stated that two shots were fired from the firearms, and he resisted them from
entering the house. Vishwanath inflicted a blow of Banka, and Shesh Tiwari opened fire on his
father. When his mother rushed to rescue him, then Shesh Tiwari inflicted a blow of the Banka over
his mother, and she succumbed (died). Shesh Tiwari also inflicted a Banka blow on Rajendra, who
suffered injuries. Thus, the whole of the examination-in-chief of this witness reveals that the blow
of Banka that caused the death was inflicted by accused Shesh Tiwari, and he also inflicted injuries
through a Katta (firearm), and accused Vishwanath inflicted a blow with a Banka. With regard to
other accused persons, he did not state a single word about who inflicted injuries, but he has stated
that the accused persons committed dacoity and robbed the articles.

54. On his cross-examination, this witness stated that he has a licensed gun for his safety, and
at the time of the alleged incident, his gun was kept in the house of Lallan Bihari. He also admitted
that there is enmity between Lallan Bihari and Shesh Tiwari. He further stated that there was an
election of Village Pradhan, where the accused persons were on the side of the winning contestant,
Radhey Shyam, whereas Lallan Bihari was on the side of the defeated contestant, Guru Prasad;
thereafter enmity had taken place between Lallan Bihari and the accused persons (Muljiman). He
also admitted that after the incident, on the very next date, Lallan Bihari came into his house, and
he told Lallan Bihari the names of the accused persons. Then Lallan Bihari asked him that only the
names of those he has witnessed should be mentioned in the FIR. He also stated that his father's
portion of the property was separate from his share. From the cross-examination, it reflects that he
is a license holder of a firearm, and though he admitted he is a betel shop keeper, he did not
disclose why he did not make any effort to obtain his licensed gun, which was kept in the house of
Lallan Bihari, whose house is adjacent to his house at about 200 feet. But he admitted that all the
accused persons did not wear any mask or cover their faces to conceal their identity, and their
mouths were open. He further stated that only two accused persons entered the house, and the
remaining were outside the house.

55. Thus, as per the statement given by this witness in examination-in-chief, accused
Vishwanath and Shesh Tiwari entered inside the house, meaning thereby the present appellants
(Bhai Lal, Mangoo Lal, Maqbool) did not make any effort to go inside the house nor inflicted any
blow to any of the injured witnesses. Although this is a case of dacoity, there is no necessity for
their common intention or common object because they conjointly committed the crime. Therefore,
their presence is verified, then for the purpose of the charge leveled against them, their role would
be considered sufficient. He also stated that he did not clarify in the statement which particular
appellants were outside the house. Thus, from the injured witness, it shows that Shesh Tiwari and
accused Vishwanath came into his house, and when they inflicted blows from a Katta, Lathi, and
1 All. Vishwa Nath Tewari & Ors. Vs. State of U.P.
739
Banka. From the statement of this witness, it does not reflect that the miscreants who came there
first tried to commit robbery or theft or loot of household or jewelry, etc. It also reflects that the
intention of accused Shesh Tiwari and Vishwanath was to commit Marpeet (assault), not to commit
robbery, etc. Otherwise, the miscreants who entered would first look for valuable articles and
money, and bearing that in mind, they would use violence, if resistance occurred.