Om Prakash Yadav vs State Of U.P.
2021 Latest Caselaw 5627 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment reserved on 17.03.2021
 
Judgment delivered on	21.05.2021 
 
Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 854 of 2006
 
Appellant :- Om Prakash Yadav
 
Respondent :- State of U.P.
 
Counsel for Appellant :- T.N.Tiwari, Banwari Lal, Farooq Ayoob, Mukesh Shukla, Pankaj Kumar Srivastava, Rakesh Kumar Chaudhary, Ran Vijay Singh, Shashank Bhushan Singh, Shishir Pradhan
 
Counsel for Respondent :- Govt. Advocate
 
with
 
Case :- CRIMINAL APPEAL No. - 962 of 2006
 
Appellant :- Uday Raj Yadav
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Shishir Pradhan, Farooq Ayoob, Kishan Mohan, Kunwar Ravi Prakash, Manish Kumar Yadav, Mukesh Shukla
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Rajeev Singh,J.

(Per Ramesh Sinha, J. for the Bench)

1. The above two Criminal Appeals have been preferred against the judgment and order dated 24.04.2006 passed by Additional Sessions Judge, Court no.10, Barabanki, in Sessions Trial no.86 of 2002, arising out of Case Crime no.198 of 2000, police station Ram Sanehi Ghat, District Barabanki, whereby the appellants have been convicted for offence under Section 302/34 I.P.C. and sentenced for life imprisonment with a fine of Rs.4,000/- and in default of payment of fine to further undergo four months of rigorous imprisonment, convicted for offence under Section 323/34 I.P.C. and sentenced for one month of simple imprisonment with a fine of Rs.500/- and in default of payment of fine to further undergo fifteen days of simple imprisonment and convicted for offence under Section 506 I.P.C. and sentenced for one month of simple imprisonment with a fine of Rs.500/- and in default of payment of fine to further undergo fifteen days of additional simple imprisonment and all the above mentioned sentences are to run concurrently.

2. Aggrieved by his convictions and sentences, Om Prakash Yadav preferred before this Court Criminal Appeal No.854 of 2006, whereas Uday Raj Yadav preferred Criminal Appeal No.962 of 2006.

3. As the above mentioned two criminal appeals have been preferred against the same judgment and order for the same offence, hence, with the consent of both the parties, the same are hereby heard and decided together by this common judgment.

4. The prosecution case as set out in the First Information Report, which has been lodged by the informant Bal Govind Yadav (PW1) at the police station Ram Sanehi Ghat on 31.10.2000 at 9.30 am., is that on 30.10.2000 the brother of the informant, namely, Dashrath Lal (PW2), and his son Ambresh Kumar (deceased) had gone to guard his boring and were sleeping under the roof (chhappar) where a lantern was burning and around 11.45 p.m. the brother of the informant Dashrath Lal (PW2) came running from the boring towards the village raising alarm. After hearing his brother's scream the informant and one Awadh Ram (PW4), who were lying in the barn (khalihan), rushed towards the boring with a torch. In the torchlight he saw his brother Dashrath Lal (PW2) getting chased by Om Prakash Yadav, who was armed with a knife and Uday Raj Yadav, who was armed with lathi. Both of them were of his village. Seeing this, he and others raised alarm on which the appellants escaped towards the western direction of the farm threatening informant and Awadh Ram (PW4) of their lives. The brother of the appellant Dashrath Lal (PW2) told the informant that Om Prakash Yadav has stabbed his son Ambresh Kumar by inflicting him with knife in his abdomen and he is lying in an injured condition at the boring. Dashrath Lal (PW2) also told the informant that the accused appellants were saying to Ambresh Kumar that he was warned several times by them but he did not break his ties with Radhika due to which he has been put in such a condition. The informant then went to the boring along with his brother Dashrath Lal (PW2) and Awadh Ram (PW4) and saw his son lying in an injured condition and on being asked he was informed by Dashrath Lal (PW2) that at 11.45 p.m. in the night by the time he woke up, he saw Om Prakash Yadav had assaulted Ambresh Kumar with knife and Uday Raj Yadav had pressed Dashrath Lal (PW2) with lathi. The informant brought his son to his house and was about to take him to the hospital but Ambresh Kumar succumbed to his injuries.

5. The inquest proceedings were conducted. The inquest of the dead body of the deceased Ambresh Kumar was conducted by Sub Inspector Sobhnath Mishra (PW7) who thereafter sealed the dead body and handed it over to the Police Constable for being sent to post-mortem. After due investigation the Investigating Officer submitted charge sheet against the appellants under Sections 302, 323, 506 I.P.C. before the competent Court. The learned Magistrate committed the case to the Court of Sessions and the trial Court framed charges against the accused appellants under Sections 323/34, 302/34, 506 I.P.C. The accused appellants denied the charges and claimed their trial.

6. The prosecution in order to prove his case has filed a voluminous documentary evidence, such as, written report (Ext. Ka 1) , inquest report (Ext. Ka 2), injury report (Ext. Ka 3), chik report (Ext. Ka 4), copy of the GD dated 31.10.2000 (Ext. Ka 5), post-mortem report (Ext. Ka 6), report of police station Ram Sanehi Ghat (Ext. Ka 7 and 8), photo nash (Ext. Ka 9), police Form-9 (Ext. Ka 10), seal sample (Ext. Ka 11), recovery memo of old blood stained bed sheet (Ext. Ka 12), recovery memo/ Fard of blood stained and plain earth (Ext. Ka 13), recovery memo of one blood stained knife (Ext. Ka 14), recovery memo of one lathi (Ext. Ka 15), recovery memo of old used lantern (Ext. Ka 2), site plan (Ext. Ka 16), charge sheet (Ext. Ka 17) and serologist report (report of the Forensic Science Lab) (Ext. Ka 18).

7. The prosecution in support of his case has examined PW1- Bal Govind, PW2- Dashrath Lal, PW3- Dr. Suresh Mehta, PW4- Awadh Ram, PW5- Sub-Inspector Kateshwar Prasad, PW6- Dr. Vinay Kumar Asthana, PW7- Inspector Sobhnath Mishra, PW8- M.K. Pandey and PW9- Dinesh Pratap.

8. The statement of the accused appellants- Om Prakash Yadav and Uday Raj Yadav were recorded under Section 313 Cr.P.C. by the trial Court. In their statement they denied the incident and have stated that no recovery has been made from their houses and the same is a fabricated and concocted recovery which has been prepared at the police station and the witnesses have falsely deposed against them on account of enmity and they have been falsely implicated in the present case by submitting a false charge sheet against them.

9. Bal Govind (PW1), in his deposition before the trial Court, has reiterated the prosecution case as narrated in the FIR lodged by him, hence, for the sake of brevity the same is not reiterated. He stated that his brother Dashrath Lal (PW2) and his son Ambresh Kumar were sleeping at his boring, which is situated at a distance of half a furlong from his house, i.e. the tube-well was at a distance of around four agricultural fields from his house, and he was sleeping at his house. He further deposed that he along with Awadh Ram (PW4), relative of the informant, had gone to meet some relative on a motorcycle and had returned to the village at that point of time. In the night at around 11.45 p.m. he heard the scream of his brother Dashrath Lal (PW2) and he met him at his barn (khalihan). He was having a stick (danda) and a torch. When he and Awadh Ram (PW4) reached there he saw Om Prakash Yadav was assaulting Ambresh Kumar (deceased) with a knife and Uday Raj Yadav was assaulting with lathi. But as soon as they reached the place of occurrence, the accused persons fled away towards the western direction. At his tube-well a lantern was burning and he identified the accused persons in the torchlight. When he came close to his son he saw that his son was lying in an injured condition. He along with Awadh Ram (PW4) brought Ambresh Kumar to his house. As they were going to the police station to lodge a report about the incident, his son succumbed to his injuries on the way when he reached about a kilometer, so he returned and brought his son back to his house.

10. The report of the incident was written by him through the village Pradhan Satan Lal Shukla, who had read over the same to him, and he affixed his thumb impression on it and gave it to the police station for registration of FIR. The informant identified the written report as Ex. Ka 1 which he had given at the police station. After the registration of the FIR, the police arrived at his house and the Sub-Inspector conducted inquest of the dead body of the deceased. He signed the inquest report after the same was read over to him and identified the inquest report as Ex. Ka 2.

11. He also stated that a lantern was burning at the place of incident and its recovery memo was also prepared by the Sub-Inspector Kateshwar Prasad (PW5) and the same was read over to him and thereafter, he put affixed his thumb impression and proved it as Ex. Ka 3 which is material Ex.1. He next stated that in the said incident his brother Dashrath Lal (PW2) had received injuries and he was medically examined and he has given his statement to the Investigating Officer.

12. In his cross examination the witness has stated that his son was unmarried. One Chandrika, resident of Jehripurwa, is his saadu (sister-in-law's husband) and has no son but only a daughter. Prior to his murder Ambresh Kumar used to live in the house of Chandrika. He was unaware of the fact that whether Awadh Ram (PW4) and Mayaram liked about living of Ambresh Kumar in the house of Chandrika or not. Chandrika was having landed property. He denied the suggestion that Chandrika was about to give his land property to Ambresh Kumar. The informant had brought Ambresh Kumar from the house of Chandrika two months prior to the incident of murder.

13. It was further stated by the witness in his cross examination that every evening Ambresh Kumar used to go to tube-well and he did not go there alone but along with brother of the witness namely, Dashrath Lal (PW2). Dashrath Lal (PW2) used to live separately from him. Both of them have got partition of their respective agricultural fields. The boring was at a distance of one furlong from his house. The boring belonged to his middle brother Laxmi Prasad. Laxmi Prasad also used to live separately from the informant but lived with his younger brother Dashrath Lal (PW2). Both Laxmi Prasad and Dashrath Lal (PW2) have no issue.

14. It has then been deposed by the witness that Ambresh Kumar used to go to the boring in the evening at about 9 p.m. In between house and tube-well only one temple is situated and there is no populace (abaadi). At the time of the incident there were big standing crops and no garden or groves were there. It takes about fifteen to twenty minutes to reach boring from his house. The Police arrived in the morning on the next day. The Sub-Inspector then made the spot inspection of the place of occurrence, i.e., tube-well, along with Pradhan Satan Lal Shukla, Sarpanch and Block Pramukh. The Pradhan of the village had already given a written report. The witness had affixed his thumb impression on the said report in the presence of Sub-Inspector and thereafter, the dead body was sent for post-mortem.

15. The witness then stated that he knew Ram Kishore, who is the brother of Om Prakash Yadav. Ram Kishore is a very old person. In the elections for Pradhani, wife of Ram Kishore contested against the Pradhan Satan Lal Shukla. Ram Kishore had three sons and all of them were younger to Om Prakash Yadav. Ram Kishore is mausiya of Uday Raj Yadav. Prior to the incident a case under Section 507 IPC was there between the informant and family of Uday Raj Yadav.

16. The witness also stated that in the incident Dashrath Lal (PW2) had also received injuries apart from Ambresh Kumar. The Investigating Officer had taken his statement after two days of the incident. He gave his statement to Investigating Officer that when he and Awadh Ram (PW4) reached the place of occurrence he saw Om Prakash Yadav, who was armed with knife and Uday Raj Yadav, who was armed with lathi, were assaulting Ambresh Kumar (deceased). He also stated that a lantern was burning at his tube-well. If the Investigating Officer had not recorded the aforesaid statements of the informant then he cannot tell the reason for the same.

17. The witness further deposed that on the date of occurrence he had gone to purchase medicines. He had no enmity with any other family of the village except with Om Prakash Yadav and Uday Raj Yadav. He also stated that when Ambresh Kumar was at his mausa's house, he had no relationship with any girl and he denied the suggestion that Ambresh Kumar due to his bad conduct and habits was done to death at an unknown place, and the informant because of his enmity with the accused appellants has falsely implicated them in the case.

18. Dashrath Lal (PW2) in his deposition before the trial Court has stated that he was at his tube-well along with his nephew Ambresh Kumar and at about 11.45 p.m. in the night, as they were lying under the roof of boring and lantern was burning, Om Prakash Yadav and Uday Raj Yadav, who belonged to his village, came near them. Om Prakash Yadav was armed with knife and Uday Raj Yadav was armed with lathi. Om Prakash Yadav started assaulting Ambresh Kumar with his knife and Uday Raj Yadav tried to stop him with lathi on his chest because of which the ribs of his chest broke. Upon his scream his brother Bal Govind (PW1), Awadh Ram (PW4), Kallu and Bhagole came for rescue carrying lathis and torch. On seeing them approaching the accused appellants fled away towards western direction. He further deposed that they recognized the accused appellants in the light of lantern and torch. Then they took Ambresh Kumar to his house. As injured Ambresh Kumar was being taken to the hospital, after reaching about one kilometer from the village, Ambresh Kumar succumbed to his injuries. Dashrath Lal (PW2) then along with his brother went to police station and his brother reported the incident there. His medical was conducted at Banikodar. The Investigating Officer also investigated about the incident from them.

19. On cross examination Dashrath Lal (PW2) deposed that he and Ambresh Kumar lived separately and partition of their ancestral land had already been done. His share of land was situated in northern direction to the village. Boring farm belonged to him. He had four brothers and all of them had their separate lands. All of them used to plough their own land. There is a small roof over boring and there is a space only for its engine. There is a takhat for lying or sitting down.

20. The witness further deposed in his cross examination that prior to the incident, Ambresh Kumar used to reside at his mausa's house at Jehripurwa. His mausa had no son. His mausa were three brothers. He wanted to give his land to Ambresh Kumar and the said fact was either liked or not by his brothers, the witness had no idea about it. One month prior to the incident Ambresh Kumar came back from his mausi's house. He was unmarried. He used to loiter around the village and guarded the boring. He further stated that he too had no son so he had to guard his house too. He had one ox and two cows. He also stated that he has been beaten about six to seven times during his life time and once his bones were broken. Once when his elder brother had beaten him his skull cracked and his sister had also beaten him. His other brothers had also been beaten up twice. Their skull also cracked because of the same. There are around 4-5 houses in his village and all the families belonged to his community and he had no enmity with any of them.

21. The witness also stated that Ambresh Kumar received four lathi blows on his person. The Investigating Officer had taken in possession the blood stained bed-sheet from the place of occurrence and the said bed-sheet was torn at one place because of the injury caused to the deceased by knife. At the police station, in all, ten to twelve people went there and the Pradhan of the village and his brother also accompanied them and lodged the report. After lodging of the report the dead body was taken for post-mortem. His brother and three to four other people accompanied the dead body to the police station.

22. The witness further stated that his brother had gone for medical examination along with him and the police had not accompanied them and the expenses of the doctor was given by his brother. He showed his unawareness about the fact that his nephew Ambresh Kumar (deceased) had some bad conduct and habits. He denied the suggestion that Ambresh Kumar (deceased) due to his bad conduct and habits was done to death at an unknown place, and further denied the suggestion that he at the behest of Pradhan Sattan Lal Shukla has falsely deposed against the accused appellants on account of enmity.

23. Doctor Suresh Mehta (PW3) in his deposition before the trial Court deposed that on 06.11.2000 he was posted as Medical Officer at Community Health Centre, Ram Sanehi Ghat, Barabanki. At around 5.10 p.m. in the evening injured Dashrath Lal (PW2), who was accompanied by Constable Ramdhari, came there for medical examination. Identity mark on the body of the injured was a small mole on the left side of the chest, 5 cm below the nipple, and following are the details of injuries on the person of injured (Dashrath Lal) :-

(1)      Complain of pain on left side behind the chest.
 
(2)	Complain of pain below the knee joint on the left leg.
 

 
    24. The doctor opined that if anyone sits on top of the injured person then injury no. (1) is possible. The above injury report is in his handwriting and signature and proved as Ex. Ka-4. Since the above injuries were just complaint of pain therefore, calculation of its duration was not possible. He also opined that there was no apparent injury on the person of the injured and it was also possible that he didn't get hurt at all.
 
       
 

25. Awadh Ram (PW4) deposed before the trial Court that he knew Bal Govind (PW1) who is the resident of Ram Sanehi Ghat, Barabanki. He stated that around three and a half years ago when he was sleeping at the barn (khalihan) with Bal Govind (PW1), which was at a distance of 150 steps from tube-well, at around 9.30 p.m. he heard hue and cry coming from the place where engine of tube-well was kept, on which he and Bal Govind (PW1) reached the tube-well. Bal Govind (PW1) was holding a torch and he was carrying a lathi. A lantern was burning at the tube-well. When they reached there they saw that Uday Raj Yadav was holding back brother of Bal Govind (PW1) whose name he did not know. Om Prakash Yadav was assaulting Bal Govind's (PW1) son Ambresh Kumar with knife. As soon as they arrived the place of occurrence, the accused appellants fled away. Ambresh Kumar was injured.

26. On cross examination this witness Awadh Ram (PW4) deposed that Bal Govind (PW1) was close relative of his younger brother and not his. The barn (khalihan) where they were sleeping was at a distance of 190 steps from the house of Bal Govind (PW1). His village, Bandhaipurwa, is at a distance of 3 km from the village of Bal Govind (PW1). On the day of incident he went to Bandhaipurwa to look for buffalo and came back late at night. On the night of incident they were fast asleep and woke up on the hue and cry and after waking up they saw many people of the village gathered there saying that Ambresh Kumar has been murdered. Family members of Ambresh Kumar were weeping and he also wept seeing the dead body. When they reached the place of occurrence Ambresh Kumar was not dead and Ambresh Kumar did not tell anything to him.

27. The witness further deposed that other people of the village went to police station but he did not go. Early in the morning police came and lay down the dead body on the floor. On the dead body of Ambresh Kumar there was a shirt. Blood was also there where the body was kept. He also stated that he saw the dead body of Ambresh Kumar at the boring engine and also at the door step of the house. There was injury on the person of Ambresh Kumar and when he fist saw the dead body only he and Bal Govind (PW1) saw it and then many other people of the village gathered there and everyone around there was wondering how the murder could have taken place. When the police arrived they took away the dead body to the police station and the dead body was accompanied by many relatives of Ambresh Kumar and the necessary proceedings took place there. The police arrested Om Prakash Yadav who was armed with karauli. The day after Om Prakash Yadav was arrested statement of the witness was recorded. He stated to the Investigating Officer that after the incident all the accused appellants fled away towards eastern direction. He also denied the suggestion that he was not there at the time of incident and being relative of the deceased he is giving false statements.

28. Kateshwar Prasad (PW5) has deposed before the trial Court that while he was posted as Head Constable at police station Ram Sanehi Ghat, on 31.10.2000 the informant Bal Govind (PW1) came with a report written by village Pradhan Sattan Lal Shukla, on which the informant has affixed his thumb impression, about the incident and submitted the same at the police station at about 9.30 a.m., on the basis of which Fard no.138 was prepared and case crime no. 198 of 2000 under Section 302, 506 IPC was registered against Om Prakash Yadav and Uday Raj Yadav. He proved the Chik Report Paper no. A-6 in his hand writing and signature and proved the same as Ex. Ka 4. He proved the G.D. no.14 at 9.30 dated 31.10.2000 at police station Ram Sanehi Ghat and carbon GD as Ex. Ka 5. He has also proved the original GD of the same before the trial Court.

29. This witness in his cross examination has denied the suggestion that under the instructions of Station Officer he has registered the FIR anti-timed.

30. The post-mortem of the dead body of deceased Ambresh Kumar was conducted on 01.11.2000, at 2:30 p.m., by Dr. Shri Vinay Kumar Asthana (PW6), who found on his person ante-mortem injuries enumerated hereinafter :-

"Incised stab wound of size 2.5 cm x 1.2 cm present over abdomen x Abd cavity deep, 9 cms (left) side of abdomen above the umbilicus, on opening the abdomen, cavity is full of blood, with puncture of Stomach, Spleen, and tear of Diaphragm."

The cause of death spelt out in the autopsy reports of the deceased person was shock and hemorrhage as a result of ante-mortem injuries, which he had suffered.

31. It is significant to mention that in his deposition before the trial Court, Dr. Shri Vinay Kumar Asthana (PW6) has stated that on 1.11.2000, he was posted as R.D.M.O. at District Hospital, Barabanki. On the said date, at 2:30 p.m., he had conducted the post-mortem of the dead body of deceased Ambresh Kumar, son of Bal Govind (PW1), which was brought by Constable Dinesh Pratap (PW9) of police station Ram Sanehi Ghat in a sealed condition. He stated that on the internal examination of the abdomen, he found cavity full of blood. Diaphragm was torn with puncture of stomach and spleen of the deceased. In the opinion of the Dr. Shri Vinay Kumar Asthana (PW6), the cause of death was shock and haemorrhage as a result of ante-mortem injuries. The duration of injuries was about one and a half day old. The injuries found on the deceased was sufficient in the ordinary course of nature to cause his death, which could have been caused on 30/31.10.2000 at 11.45 p.m. The injury no.1 could be caused by a long knife.

32. Dr. Shri Vinay Kumar Asthana (PW6), in his cross examination, stated that the contusion found on the buttocks could have been caused because of lying of the dead body on the ground. He could not say that after receiving injuries the deceased remained alive for how much time or died instantly.

33. Sobhnath Mishra (PW7) deposed before the trial Court that on 31.10.2000 he was posted as Sub-Inspector at police station Ram Sanehi Ghat and on that day at the report of Bal Govind (PW1) Case Crime no.198 of 2000 under Section 302 and 506 IPC was registered. He accompanied Station Officer Sri N.K. Pandey (PW8) at the place of occurrence for investigation. He took copy of the chik, G.D. and panchayatnama form from the police station with Station Officer. He on the instructions of Station Officer conducted the panchayatnama of the deceased Ambresh Kumar (PW1) by appointing Panch and filled the panchayatnama. He proved the same as Ex. Ka 2 which was in his hand writing and his signature. He prepared the police papers in his hand writing and signature and proved the same as Ex. Ka 7 to 10. He sealed the dead body and sent it for post-mortem through Constable Dinesh Pratap (PW9) and Chaukidar Bharat. He also took in possession a blood stained bed sheet which was lying at the place of occurrence and prepared its recovery memo in his handwriting and signed and proved the same as Ex. Ka 12. He prepared the said memo in the presence of Station Officer. He also took blood stained plain earth from the place of occurrence and prepared its recovery memo in his handwriting and signed and proved the same as Ex. Ka 13. He was shown a lantern at the place of occurrence by the informant in the presence of witness which was returned to the informant to keep it safely with him and if the Court summons for it he would produce the same. The recovery memo of it was prepared and proved by him as Ext. Ka 3.

34. The witness also stated that the accused appellant Uday Raj Yadav, who was arrested on 31.10.2000, got a blood stained knife recovered from the house of accused appellant Om Prakash Yadav by which the death of deceased was caused. He proved recovery memo of knife as Ext. Ka 14, which was prepared in his handwriting and signature in the presence of Station Officer. He also prepared a recovery memo of lathi which was recovered at the pointing out of accused appellant Uday Raj Yadav from his house and proved the same as Ext. Ka 15 and deposited the same in police Malkhana.

35. In his cross examination the witness stated that he was not aware of the fact that any case was separately registered against Uday Raj Yadav for the recovery of knife. He admitted that in the recovery memo of lathi there is no signature of appellant Uday Raj Yadav. He denied the suggestion that he had done all the proceedings at the directions of Station Officer at the police station.

36. M.K. Pandey (PW8) in his deposition before the trial Court has stated that he was posted as Station Officer of police station Ram Sanehi Ghat on 31.10.2000. He took the copy of chik and report of Case Crime no.198 of 2000. He recorded the statement of police personnel under Section 161 Cr.P.C. and reached the place of occurrence. He took in custody the dead body of the deceased at the instance of the informant. He got the inquest proceedings prepared by SSI Sobhnath Mishra (PW7). He prepared the site plan of the place of occurrence and proved the same as Ext. Ka 16. He proved the Ext. Ka 12 and 13 prepared by SSI Sobhnath Mishra (PW7). He also proved the recovery memo of knife and lathi recovered at the pointing of appellant Uday Raj Yadav from the house of appellant Om Prakash Yadav and his house, respectively. He recorded the statement of witnesses Awadh Ram (PW4), Dashrath Lal (PW2), Bihari Lal and Sri Ram. He further recorded the statement of appellant Om Prakash Yadav in jail on 12.11.2000. He further sent the recovered items to Forensic Science Lab for its examination.

37. He in his cross examination has stated that he reached the place of occurrence in the morning at 10.30 a.m. He denied the suggestion that he reached the place of occurrence by the time the sun has set. He got the dead body of the deceased at the door of the informant Bal Govind (PW1) while he kept on cot. He did not find any blood on the cot. He found on the dead body a blood stained bed sheet and whether the bed sheet was torn or not he could not remember as he did not mention the same in the recovery memo. He had not mentioned in the site plan about the recovery of the blood from the place of occurrence. He had also not mentioned in the site plan about the lantern burning and takhat in the site plan at the place of occurrence. He has shown in the site plan of the place of occurrence that the deceased Ambresh Kumar and Dashrath Lal (PW2) who were lying separately at the place of occurrence. He stated that he made inspection of boring at the pointing out of informant Bal Govind. He denied the suggestion that inspection of the place of boring was done by him in presence of village Pradhan, Sarpanch and Block Pramukh. He also stated that there was no signature of appellant Uday Raj Yadav on the recovery memo of lathi Ext. Ka 15. On the recovery memo of knife Ext. Ka 14 there is no signature of appellant Om Prakash Yadav. He denied the suggestion that the recovery of knife and lathi is fabricated and a false case has been registered against the accused appellants.

38. Constable Dinesh Pratap (PW 9) who is also a formal witness has stated that after the panchayatnama of the deceased Ambresh by SSI Sobh Nath Mishra (PW7) the dead body was given to him in seal condition for being taken to post-mortem and alongwith other police paper. He took the dead body to mortuary and handed it to the Doctor who opened the seal in his presence.

39. Heard Shri Farooq Ayub, learned counsel appearing on behalf of the appellant- Om Prakash Yadav in Criminal Appeal no.854 of 2006 and Shri Kunvar Ravi Prakash, learned counsel appearing on behalf of the appellant Uday Raj Yadav in Criminal Appeal no. 962 of 2006 and Shri Pankaj Tripathi, learned AGA for the State of U.P. and perused the record.

40. Learned counsel for the appellant submitted that incident had taken place in the night and the deceased, who was sleeping under a chappar along with one Dashrath Lal at the boring in agricultural field, was done to death by some unknown miscreants by inflicting a single blow in his abdomen. Dashrath Lal (PW2), who was also stated to be sleeping with Ambresh Kumar (deceased), was assaulted by the accused appellant Uday Raj Yadav with lathi, who pressed the same on his chest, but Dashrath Lal (PW2) did not receive any injury on his person, though he claimed that the ribs in his chest were broken because of the act of Uday Raj Yadav. Dashrath Lal (PW2) somehow managed to escape from the place of occurrence and ran away raising alarm, on which his brother Bal Govind (PW1) along with one Awadh Ram (PW4), who was sleeping at the house, saw the accused appellants following Dashrath Lal (PW2) with lathi and knife. Though the witnesses saw the incident in the torchlight but no torch was recovered by the Investigating Officer and no recovery memo of the same was prepared. It was argued by counsel for the appellant that though Bal Govind (PW1), who is the father of the Ambresh Kumar (deceased) and brother of the injured Dashrath Lal (PW2) and Awadh Ram (PW4), claimed to be eye witnesses of the occurrence, but infact they have not witnessed the incident which had taken place in dark hours of the night.

41. It has next been submitted that the informant Bal Govind (PW1) has categorically stated that when the alarm was raised by his brother Dashrath Lal (PW2), who was being chased by the accused persons, he along with Awadh Ram (PW4) raised alarm on which the accused fled away and the Bal Govind (PW1) along with Awadh Ram (PW4) went at his boring and saw his son in injured condition and on a query being made from him he informed that at about 11.45 p.m. Om Prakash Yadav and Uday Raj Yadav had entered in his chappar and when he woke up, the appellant Om Prakash Yadav stabbed him in his abdomen and Uday Raj Yadav pressed lathi on his chest. When Bal Govind (PW1) brought his son Ambresh Kumar to his house and was about to take him to the hospital Ambresh Kumar (deceased) succumbed to his injuries, but the fact that the deceased had told about the involvement of the appellant in the murder of the deceased is absolutely false, frivolous and cooked up story as the deceased, who received injuries in his abdomen by knife, could not narrate the incident to Bal Govind (PW1) as the nature of the injury shows that he would have died instantly.

42. He further argued that from the first information report it is evident that Bal Govind (PW1) and Awadh Ram (PW4) are not the eye-witnesses of the incident of the murder of the deceased as Dashrath Lal (PW2) the brother of Bal Govind (PW1) was seen by them being chased by the appellants and when they raised alarm the accused fled away and Dashrath Lal (PW2) informed Bal Govind (PW1) and Awadh Ram (PW4) about the incident.

43. He next argued that Dashrath Lal (PW2) has categorically stated in his evidence that the deceased Ambresh Kumar was inflicted with four lathi blows on his person but the deceased did not receive any injury from hard and blunt object and he received a single blow in his abdomen by knife. He further contended that Dashrath Lal (PW2) has categorically stated that till Awadh Ram (PW4) and others did not reach the place of occurrence the accused were assaulting the deceased with knife and lathi. It was then pointed out from the evidence of Dashrath Lal (PW2) that he in his cross examination has admitted that he and Ambresh Kumar (deceased) used to live separately as there was partition of the ancestral land and he was having four brothers. Partition of the ancestral land has been done and all the brothers used to do ploughing on their respective share of land. Hence, there was no occasion of Dashrath Lal (PW2) to be sleeping with the deceased under the chappar.

44. He further submitted that Awadh Ram (PW4) the alleged eye witness was also not present at the place of occurrence as his village is three kms away from the place of occurrence, as such, there was no occasion for him to be present along with Bal Govind (PW1).

45. The appellants have no motive to commit the murder though it was stated that while the deceased was being murdered the appellants were saying that the deceased was told by them on various occasions that he did not break up his relationship with Radhika on account of which he was done to death. It was also argued that no evidence has been produced by the prosecution to proof that the appellant had any relationship or concern with Radhika.

46. The counsel for the appellants further argued that the presence of Dashrath Lal (PW2) at the place of occurrence is highly doubtful and the injuries which have been sustained by him are only complain of pain and have been examined after six days of the incident which itself shows that it is fabricated and concocted and just to create the presence of said witnesses at the place of occurrence.

47. The doctor did not find any injury by hard and blunt object on the person of Dashrath Lal (PW2). Moreover, the recovery of knife (kalari), which is stated to have been used by the appellant Om Prakash Yadav to assault the deceased, has been made only after pointing out by Uday Raj Yadav from the house of the appellant Om Prakash Yadav on 31.10.2000 which is a false recovery as the recovery memo/ Fard shows that it does not bear the signature of the accused appellant Uday Raj Yadav.

48. It is next submitted that so far as recovery of lathi at the pointing out of informant Uday Raj Yadav from his house is concerned, the same is a false recovery as no blood, etc. was found on the same. The accused appellant Uday Raj Yadav being related to the appellant Om Prakash Yadav has been roped in the present case and also because of the previous enmity with Bal Govind (PW1) as there was a case under Section 507 IPC between Bal Govind (PW1) and Uday Raj Yadav prior to the incident.

49. It is further submitted that the recovery of knife (kalari), on which human blood was found, which has been made at the pointing out of Uday Raj Yadav is a false recovery as it is quite unnatural that the appellant Uday Raj Yadav would get the knife recovered from the house of co-appellant Om Prakash Yadav and just to create evidence against the appellant Uday Raj Yadav the said recovery shown is false and fabricated one and no independent witnesses have been produced before the trial Court to prove the said recovery being made at the pointing out of the appellant Uday Raj Yadav. It was urged that the incident was witnessed by Bal Govind (PW1) in the torchlight but neither any recovery of it was made nor any recovery memo was prepared by Investigating Officer. It was also submitted that the appellant Om Prakash Yadav has been implicated in the present case because of the fact that the wife of the elder brother of the appellant Om Prakash Yadav had contested an election of Pradhani against the Pradhan Sattan Lal Shukla.

50. Thus, it has been argued by learned counsel for the appellants that the trial Court misread the evidence on record and has convicted the appellants by the impugned judgment and order passed on 24.04.2006 and the same is liable to be set aside by this Court and the appellants be acquitted.

51. Learned AGA on the other hand has opposed the arguments of learned counsel for the appellants and has submitted that though the incident had taken place in the night but there is an injured witness Dashrath Lal (PW2) who was present with the deceased and has witnessed the incident in which the appellant Om Prakash Yadav has assaulted and inflicted knife blow in the abdomen of the deceased Ambresh Kumar and the appellant Uday Raj Yadav had pressed lathi on chest of Dashrath Lal (PW2), but he managed to escape from the place of occurrence and raised alarm and the accused chased him but on alarm being raised by Bal Govind (PW1) and Awadh Ram (PW4) the accused appellants fled away from the place of occurrence. It was further argued that from the house of the appellant Om Prakash Yadav a knife (kalari) has been recovered on 31.10.2000 at the pointing out of Uday Raj Yadav on which human blood was found as is evident from the report of Forensic Science Laboratory which goes to show that the appellant Om Prakash Yadav has inflicted injuries on deceased Ambresh Kumar who succumbed to his injuries.

52. He next submitted that Bal Govind (PW1) and Awadh Ram (PW4) who reached the place of occurrence on the alarm raised by Dashrath Lal (PW2) who ran towards the house of Bal Govind (PW1) from the boring as he was being chased by the appellants and the two eye witnesses Bal Govind (PW1) and Awadh Ram (PW4) also saw the accused in the torchlight and thereafter when they arrived the place of occurrence the deceased who was lying in an injured condition informed Bal Govind (PW1), his father, that the appellant Om Prakash Yadav has assaulted him in his abdomen with knife and appellant Uday Raj Yadav has pressed on his chest with lathi. The blood stained bed sheet on which the deceased was sleeping was also recovered by the Investigating Officer from the place of occurrence. Thus it has been argued that the prosecution has proved its case beyond reasonable doubt against the appellants hence the conviction sentenced by the trial Court does not require any interference by this Court and the appeal accordingly be dismissed.

53. We have given thoughtful consideration to the rival submissions advanced by learned Counsel to the parties and also examined the prosecution and defense evidence led by respective parties and perused the lower Court record.

54. It is admitted fact that the incident has taken place on 30.10.2000 at 11.45 p.m. in the night when the deceased Ambresh Kumar was sleeping under a chappar at the boring of tube-well in agricultural field. The deceased died on account of single injury received in his abdomen as it is evident from his post-mortem report.

55. This Court is seized with the adjudication of the fact whether the evidence led by the prosecution on the basis of which the trial Court has convicted and sentenced the two accused appellants requires interference by this Court or not.

56. As it is apparent from the prosecution evidence that Bal Govind (PW1), who is informant and father of the deceased, and Awadh Ram (PW4), who is relative of his younger brother, are not eye witnesses of the incident, that is, murder of deceased Ambresh Kumar. They are only the witnesses who have seen in the torchlight the accused appellants chasing Dashrath Lal (PW2), who was running towards the house of Bal Govind (PW1) by raising alarm. On seeing Bal Govind (PW1) and Awadh Ram (PW4) who ran towards Dashrath Lal (PW2) to rescue him the accused appellants fled away. Dashrath Lal (PW2) informed Bal Govind (PW1) about the incident and stated that the accused appellant Om Prakash Yadav assaulted Ambresh Kumar (deceased) with knife and Uday Raj Yadav pressed with lathi on his chest when he tried to save the deceased Amresh Kumar by which his ribs were broken. On this Bal Govind (PW1) and Awadh Ram (PW4) went to the place of occurrence and saw Ambresh Kumar lying in injured condition and Ambresh also repeated the same version as informed by Dashrath Lal (PW2) to Bal Govind (PW1). The said witnesses brought the injured Ambresh Kumar to the house of Bal Govind (PW1) but while they were about to take the injured Ambresh Kumar to the hospital he succumbed to his injuries.

57. It is to be noted that the fact that deceased Ambresh Kumar while being injured informed Bal Govind (PW1) and Awadh Ram (PW4) about the incident and involvement of the accused appellants in the incident referred above does not appear to be true particularly seeing his injury in abdomen, further on internal examination shows that his stomach and spleen were punctured and diaphragm was torn. Both left and right lungs were congested and both chambers of heart were empty. He was lying at the place of occurrence in a pool of blood as was also stated by Bal Govind (PW1) when he reached the place of occurrence. Thus, Ambresh Kumar (deceased) was not at all in any condition that he could inform Bal Govind (PW1), his father about the incident and the involvement of the accused appellants.

58. Now, we come to examine the evidence of Dashrath Lal (PW2) who is the injured and eyewitness of the occurrence. Though he in his deposition before the trial Court has stated that he was sleeping with the deceased Ambresh Kumar at the place of occurrence in the night and has seen that the appellant Om Prakash Yadav has assaulted the deceased with knife and inflicted single injury in his abdomen and when he tried to intervene to save him the appellant Uday Raj Yadav, who was armed with lathi, pressed with lathi on his chest due to which his ribs were broken. He further deposed that the incident was witnessed by him in the lantern light which was burning under the chappar. But testimony of this witness does not appear to be reliable one as when the same is examined in the light of his medical report which shows that his medical examination was conducted at Community Health Centre after six days of the incident, i.e., on 06.11.2000 at 5.10 p.m., whereas the incident took place on 31.10.2000 at 11.45 p.m. Moreover, he received two injuries on his person which only states about complain of pain on back of chest on right side and on left leg below knee joint. The doctor has given no opinion of any injury. The presence of injuries on Dashrath Lal (PW2) raises suspicion about his presence at the place of occurrence as the injuries of the said injured are not such of a nature which establish his presence at the place of occurrence. Moreover, he categorically he has stated that when Uday Raj Yadav pressed lathi on his chest due to which ribs of his chest were broken which completely belies his medical report as no fracture was found in his ribs.

59. This witness has also stated in his cross examination that the deceased was also given four lathi blows on his person by the accused but no injury of blunt object was found on the person of the deceased as is apparent from the post-mortem of deceased as the deceased received one single stab injury on his person.

60. It further transpires from the statement of Dashrath Lal (PW2) that there was partition of ancestral agricultural property between him and his brother. He was living separately with the deceased hence there was no occasion for him to sleep with the deceased. Moreover, the place where the boring engine was installed there was no sufficient place but only a takhat was kept, as it is further revealed from his evidence, for lying down. He further stated in his cross examination that the deceased Ambresh Kumar was vagabond and he only guarded the place of boring as Dashrath Lal (PW2) did not have any son to guard his house. Thus, it is apparent that the deceased was all alone at the boring in the agricultural field and he was done to death by some unknown miscreants in the dark hours of the night and the appellants were falsely involved in the present case as has been argued by the learned counsel for the appellants appear to have substance.

61. So far as the reliability of the evidence of Bal Govind (PW1) who is the informant and father of deceased Ambresh Kumar is concerned as has been discussed above he is not an eye-witness of the incident of assault and murder of the deceased Ambresh Kumar and he was only informed about the said fact by Dashrath Lal (PW2) and also by deceased when he reached the place of occurrence. But as this Court has come to conclusion that the information which has been given by the deceased about the assault on him is not true as the deceased was not in a position to give such information because of his severe injuries as he would not have survived by the moment Bal Govind (PW1) and Awadh Ram (PW4) reached the place of occurrence.

62. This Court has further also found that the presence of Dashrath Lal (PW2) also appears to be doubtful. Thus, in such a situation the evidence of Bal Govind (PW1) is only to the extent that they saw the accused appellants running after Dashrath Lal (PW2) who fled from the place of occurrence raising alarm on which Bal Govind (PW1) and Awadh Ram (PW4) saw Dashrath Lal (PW2) being chased by accused appellants who then fled away. This part of evidence of Bal Govind (PW1) is also not trustworthy that in the dark hours of the night in the torchlight he and Awadh Ram (PW4) could have seen the accused appellants appears to be doubtful. It further transpires that no torch was recovered by Investigating Officer from Bal Govind (PW1) and no recovery of the same was prepared by him.

63. Similarly, evidence of Awadh Ram (PW4) is on the same pattern as of Bal Govind (PW1). This witness was not the resident of the village of Bal Govind (PW1), where the incident has occurred. His village was about three kilometers away from the village of Bal Govind (PW1). He had no occasion to be present with Bal Govind (PW1) on the day of incident. Moreover, he is also not an eye-witness of the incident of assault and murder of deceased. He too has witnessed like Bal Govind (PW1) that the accused appellants were chasing Dashrath Lal (PW2) from the place of occurrence who ran to save his life towards the house of Bal Govind (PW1) and a challenge made by him and Bal Govind (PW1) the accused appellants fled away. This part of evidence of this witness is not a credible one as his presence is also doubtful.

64. Now comes the recovery of knife (kalari) made from the house of accused appellant Om Prakash Yadav at the pointing out of accused appellant Uday Raj Yadav on 31.10.2000 on which human blood was also found. It is to be noted here that this recovery is not at all admissible and reliable particularly on account of the fact that the same was made at the pointing out of accused appellant Uday Raj Yadav and there was hardly any occasion for him to know about the concealment of knife by appellant Om Prakash Yadav. The serologist report though states that human blood was found on the knife (kalari) but whether the blood which was found on it belong to the same group that of the deceased Ambresh Kumar was not clear. No independent witnesses of the said recovery was produced by the prosecution except police witness, namely, Sobhnath Mishra (PW7) and M.K. Pandey (PW8).

65. Likewise, the recovery of lathi at the pointing out of accused appellant Uday Raj Yadav from his house is also not of much significance as in the village lathi is commonly found in the houses. Moreover, no lathi injury was found on the person of deceased. The accused appellant Uday Raj Yadav used lathi to press the chest of Dashrath Lal (PW2) who too did not had any injury of lathi on his person.

66. The learned Counsel for the accused appellant has vehemently argued that it was a blind murder and Bal Govind (PW1) got the report lodged at the instructions of village Pradhan Satan Lal Shukla who wrote the written report and the said Pradhan was highly enemical with the family of appellant Om Prakash Yadav as the wife of his brother (Ram Kishore) was contesting against the Pradhan Satan Lal Shukla. So far as Uday Raj Yadav is concerned, a case under Section 507 I.P.C. was between Bal Govind (PW1) and accused appellant Uday Raj Yadav. Thus, it is apparent that false implications on the two appellants cannot be ruled out in the present case as is evident from the evidence of Bal Govind (PW1).

67. In view of the foregoing discussions, it is evident that the prosecution has failed to prove its case beyond reasonable doubt against the appellants Om Prakash Yadav and Uday Raj Yadav and the conviction and the sentence of the appellants is against the evidence on record and the impugned judgment and order passed by the trial Court is liable to be set aside as the appellant is entitled to benefit of doubt which is given to them. Hence, the judgment and order passed by the trial Court is set aside and they are acquitted of the charges.

68. The appellant Uday Raj Yadav is on bail. He need not surrender his bond and sureties are discharged. The appellant Om Prakash Yadav is in jail since 24.04.2006, i.e., from the date of his conviction and sentenced by the trial Court. He shall be released forthwith if not wanted in any other criminal case.

69. Both the appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure, 1973.

70. Both the appeals as such stand allowed.

71. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

72. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/ Authority/ Official.

73. The concerned Court/ Authority/ Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Rajeev Singh, J.) (Ramesh Sinha, J.)

Order Date :- 21.05.2021

Arnima