1

AFR

Reserved on:- 13.04.2022

Delivered on:- 30.05.2022

Court No. - 46

Case :- CRIMINAL APPEAL No. - 3952 of 2012

Appellant :- Pawan Kumar Pandey @ Bablu And Others

Respondent :- State of U.P.

Counsel for Appellant :- Sheshadri Trivedi,Ajay Kumar

Pandey,Anand Kumar Pandey (Amicus Curie),Pratik

J.Nagar,Rajrshi Gupta,Satish Trivedi

Counsel for Respondent :- Govt. Advocate,Rahul

Mishra,Satyendra Narain Singh

Alongwith

Case :- CRIMINAL APPEAL No. - 3239 of 2012

Appellant :- Shyam Narain Pandey

Respondent :- State of U.P.

Counsel for Appellant :- Rajeev Misra,Anand Kumar

Pandey,Durgesh Kumar Singh,Prashant Kumar Tripathi

Counsel for Respondent :- Govt. Advocate,Rahul

Mishra,Rajeev Upadhyay

Alongwith

Case :- CRIMINAL APPEAL No. - 3404 of 2012

Appellant :- Laxmi Narain Pandey And Others

Respondent :- State of U.P.

Counsel for Appellant :- Sheshadri Trivedi,Ajay Kumar

Pandey,Anand Kumar Pandey (Amicus Curie),Rajrshi Gupta,Satish

Trivedi

Counsel for Respondent :- Govt. Advocate,Rahul Mishra

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Kunvar Srivastav,J.

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(Delivered by Justice Sunita Agarwal)

1. Heard Sri Dileep Kumar, learned Senior Advocate

assisted by Sri Rizwan Ahmad, learned counsel for the

appellants, Sri Durgesh Kumar Singh, learned counsel

appearing for appellant-Shyam Narain Pandey in the connected

Criminal Appeal No.3239 of 2012 as also Sri Rahul Mishra and

Sri Rajeev Upadhyay, learned counsels for the first informant,

Sri Roopak Chaubey, learned AGA for the State.

Introduction:-

2. These appeals are directed against the judgement and

order dated 07.08.2012 passed by the Additional Sessions

Judge, Court No.2, Azamgarh in Sessions Trial No.435 of 2006

arising out of Case Crime No.65 of 2006 under Section 147,

148 149, 302, 120-B, 504, 506 IPC and Section 7 Criminal Law

Amendment Act, Police Station Atraulia, District Azamgarh

whereby the appellants (7 in number) have been convicted for

the offence under Section 147, 148, 302 read with Section 149,

120-B IPC and 7 Criminal Law Amendment Act. They have

been acquitted for the offence under Section 504 and 506 IPC.

Two appellants namely Rajesh Kumar Pandey and Amit Kumar

Pandey in the connected Sessions Trial No.436 of 2006 and

Sessions Trial No.437 of 2006 have been acquitted for the

offence under Section 3/25 Arms Act.

3. The sentence awarded to the appellants are under

Section 147 for one month rigorous imprisonment and fine of

Rs.1000/-, the default punishment is one month additional

rigorous imprisonment; under Section 148 the sentence for two

years rigorous imprisonment and Rs.3000/- as fine, the default

punishment is six months additional rigorous punishment;

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under Section 7 Criminal Law Amendment Act sentence for six

months additional rigorous imprisonment. Under Section

302/149 read with Section 120-B, the appellants have been

sentenced for imprisonment for life and Rs.25,000/- each

towards fine, the default punishment is three years additional

rigorous imprisonment. All the punishments are to run

concurrently.

PROSECUTION CASE:-

4. The prosecution story unfolded with the first

information report lodged on 28.02.2006 at about 19.45 hrs. by

Sri Atul Tripathi son of deceased Rajendra Prasad Tripathi

resident of P.S. Atraulia, District Azamgarh. The written report

given by Sri Atul Tripathi narrates that he and his deceased

father were resident of P.S. Atraulia District Azamgarh. On

28.02.2006, the first informant (Atul Tripathi), alongwith Arun

Kumar Pandey, Krishna Kumar Tiwari, Rajkumar Tiwari and

Ram Shiromani Shukla, was waiting at the 'Kesari Chauraha'

for the arrival of his father from Azamgarh. While they were

standing, his father alighted from a bus and moved to the

pavement towards the East-South side of the crossing (Kesari

Chauraha) to go to his house alongwith the first informant and

other witnesses.

5. At that point of time, suddenly from a Bolero car,

Sons of Laxmi Narain Pandey namely Rajesh Kumar Pandey,

Pawan Kumar @ Babloo, Amit Kumar Pandey, Umesh and

Ramesh alighted carrying weapons in their hands. They

encircled his father and Rajesh Kumar Pandey, Pawan Kumar

@ Babloo and Amit Kumar Pandey killed his father by firing

from their weapons, Umesh and Ramesh also fired. Laxmi

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Narain Pandey and Shyam Narain Pandey were sitting in the

car and exhorting the assailants that the deceased should not be

spared as he wanted to become the Principal. While firing, all

the assailants ran away in the said car towards the west side.

Crowd was collected on the spot.

6. While leaving the dead body of his father, the first

informant went to the police station to lodge the report. The

time of the incident as noted in the Check report is 28.02.2006

at about 06.00 PM and the report was lodged on 28.02.2006 at

19.45 hrs, the distance of the police station from the place of

the incident which is 'Kesari Chauraha', Kasba Atraulia noted

therein is half (½) kilometer. The original report and original

G.D. were brought in the Court and G.D. entry of Rapat No.35

was proved to have been prepared on the same date, the carbon

copy of which was filed on record. The G.D. entry and the

check report were proved to be in the handwriting and signature

of PW-6, which were marked as Exhibit Ka-16 & 17. It was

stated by PW-6 in his examination-in-chief that the special

report of the crime was sent through Constable 694 Ram Surat

Yadav on 28.02.2006 itself and entry of the same was made at

G.D. No.40 in his handwriting and signature, which was

marked as Exhibit Ka-18. The paper No.129 of the special

report being in his handwriting and signature was produced in

the Court which was noted and proved as Exhibit Ka-18. In

cross, PW-6 was contradicted about several inconsistencies

pointed out in the entries made by him which would be

discussed at the appropriate place of this judgement.

7. At this stage, while noting the police papers, it may

be recorded that the Investigating Officer proved the memo of

collection of blood stained and plain earth from the spot as

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Exhibit Ka-10. On 28.02.2006, another memo was prepared of

recovery of a bag besides the dead body as Exhibit Ka-2. It was

noted in the recovery memo of bag that one bag Rexin, brown-

black was found lying besides the dead body. It was seized and

opened, a typed application signed by deceased Dr. Rajendra

Prasad Tripathi dated 25.02.2006, a service book of the

deceased and a letter dated 17.02.2006 addressed to the District

Inspector of Schools, Azamgarh wherein prayer for

determination of salary was made and the date certified as

17.02.2006 was mentioned, were found and seized. It is further

recorded therein that the application dated 25.02.2006 was

addressed to the Commissioner Azamgarh, Division,

Azamgarh, District Magistrate, Additional District Magistrate

(Revenue and Finances) and Superintendent of Police,

Azamgarh, wherein it was mentioned that the accused persons

namely Manager Laxmi Narain Pandey and his sons were

giving him threat to kill him. The application was seized by the

police for including it in the investigation, whereas bag and

service book were handed over to the first informant with the

direction that he should keep it preserved and would produce it

whenever needed in the investigation.

8. The arrest of three accused persons namely Rajesh

Kumar Pandey, Umesh Kumar Pandey and Ramesh Kumar

Pandey who were travelling in the Bolero Car and the seizure of

Bolero Car without registration number used in the occurrence,

was made on 05.03.2006, memo of which was prepared and

exhibited as Exhibit Ka-11. It was noted therein that a country

made pistol 315 bore in working condition, with the description

mentioned in the recovery memo was recovered from the

possession of Rajesh Kumar Pandey. In the chamber of the

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pistol one empty cartridge of 315 bore was found and two live

cartridges 315 bore from the clothes of Rajesh Kumar Pandey

were recovered. The recovered articles were sealed but no

independent witness could be found as no-one was ready to be a

witness.

9. The arrest of Laxmi Narain Pandey and Pawan

Kumar Pandey @ Babloo and Amit Kumar Pandey was made

on 06.03.2006 from a public place. Two country made pistols

of 315 bore and 303 bore were recovered from the possession

of Amit Kumar Pandey, wherein one-one live cartridge was

found in the chambers of each weapon. The description of both

the weapons has been given in the recovery memo proved and

exhibited as Exhibit Ka-12. It was noted therein that both the

weapons were in working condition.

10. The inquest of the body was conducted on the same

day i.e. on 28.02.2006 commencing at 21.10 hrs and ended at

22.25 hrs. The postmortem of the body was conducted on

01.03.2006 at about 11.30 AM. The proximate time of death

mentioned therein was about half (½) day. On external

examination, Doctor had recorded that:-

“An average built body, eyes, mouth closed, clotted blood

present over face and head. Blood oozing out from the nose.

Rigour mortis present in both extremities. The postmortem

staining present in different parts.”

11. On internal examination, the doctor has reported

that:-

“Temporal, parietal and frontal bone of right and left side of the

head were fractured, brain lacerated, clotted blood present, right

lung lacerated, about 500 ML blood present in the chest cavity.

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Right chamber of heart was full, left chamber empty. Semi

digested food about 100 ML was present in the stomach; small

intestine filled by gases and pasty matter. Large intestine had

faecal matter.”

12. One copper colour metallic bullet of 3 cm in length

recovered from liver was handed over to the Constable in a

sealed envelope with sample seal. The clothes of the deceased

were sealed in another bundle and handed over to the police.

The cause of death was hemorrhage and shock due to ante-

mortem injuries. The postmortem report was proved as Exhibit

Ka-4 by the doctor PW-3, being in his handwriting and

signature. The charge sheet was submitted by the Investigating

Officer on completion of the investigation and on committal,

charges under the above noted sections were framed against the

accused persons who had denied the same and demanded trial.

13. The weapons recovered from the possession of the

accused persons were sent to the ballistic expert, the forensic

laboratory report is on record. The finding therein indicate that

presence of nickle was noted in two weapons of 315 bore

marked as 1/06 and 2/06 whereas in the 303 bore pistol marked

as 3/06, remnants of firing, led, copper and nickle was present.

The used cartridges marked as EC-1 could not be tallied with

two weapons of 315 bore marked as 1/06 and 2/06. The bullet

recovered from the dead body marked EB-1 could not be tallied

with the weapons 1/06 and 2/06, whereas in the country made

pistol of 303 bore marked as 3/06, cartridges of 315 bore could

not be loaded. The result is that the weapons recovered from the

accused could not be connected to the crime. The accused

persons, thus, had been acquitted under Section 3/25 of the

Arms Act.

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14. The prosecution had produced 10 witnesses to prove

its case and the defence produced 16 witnesses in their support.

Ocular version of Eye-witnesses :-

15. Amongst the witnesses of fact, PW-1, the first

informant, in the examination in chief, had described the

topography of the place of the incident namely Kesari Chauraha

and stated that his father (the deceased) was a teacher in Maruti

Vidyalya Inter College and was appointed as a Lecturer in

Social Science in the said institution in the year 1979. He

remained on the said post till July 1997 when he was appointed

as the Principal being the senior most Lecturer on the

retirement of the then Principal Sri Paras Nath Mishra.

Accused-appellant Laxmi Narain Pandey was the Manager of

the institutions in the year 2000-01 when Rs.10 lacs were

received from the M.P. Funds in the account of the Principal

Rajendra Prasad Tripathi for development and construction of

building. Laxmi Narain Pandey, the Manager and his sons were

trying to misappropriate the money and the deceased had

confronted them. On the pressure created by the Manager the

said money was returned by his father to the Chief

Development Officer, Azamgarh through cheque. Later on, the

said money was got transferred by the Manager of the

institution in the account of the degree college which had

resulted in a dispute between his father and the Manager and

the Manager started conspiring to remove his father from the

post of Principal. The appellant Shyam Narain Pandey was

appointed as Principal in April 2003 on forged educational

testimonials just in order to remove the deceased from the post

of Principal. Despite the said fact, his father was working in the

institution as a teacher and the Manager Laxmi Narain Pandey

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and his sons, the accused herein, had threatened him and

thrown him out of the institution.

16. A writ petition was filed by his father (the deceased)

in the High Court wherein educational testimonials of Shyam

Narain Pandey were found forged. After enquiry on the

complaint of the deceased, Shyam Narain Pandey was removed

from the post of Principal by the Commission. It is stated

therein that in the year 2005, his father was again appointed as

Principal and his signatures were attested, however, that order

was withdrawn by the Manager by illegal means. The salary of

the deceased was also stopped since 2003 and after much

efforts, his father (the deceased) got the post of Principal.

17. PW-1 stated that the incident had occurred on

28.02.2006 at about 06.00 PM. His father went to the office of

the District Inspector of School, Azamgarh to collect Board

copies and the first informant also accompanied him but he

came back early after his work was completed. While coming

back, his father told to wait for him at the Kesari Chauraha

where he would reached around 06.00 PM and that he would

bring copies. The first informant alongwith the persons named

in the first information report was waiting for his father at the

crossing and they were at a “Takht” on the southern pavement,

which was at the west of the crossing. As soon as his father got

down from the bus and moved to the tea stall of Ram Singh

towards east, the bus moved ahead, he and the witnesses moved

towards his father, a Bolero car came from right behind the bus

at the centre of the road on the northern side of his father, the

accused Rajesh, Amit, Pawan @ Babloo, Ramesh and Umesh

alighted from the car carrying weapons like country made pistol

in their hands. Pawan @ Babloo, Rajesh and Amit encircled his

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father and fired, while his father was felling down being hit by

the fires, Ramesh and Umesh also fired at his father. Laxmi

Narain Pandey and Shyam Narain Pandey were exhorting them

to kill while sitting in the car saying that “kill that bastard,

wanting to become Principal.” His father fell down on

sustaining injuries and died. The Bolero Car belonged to Laxmi

Narain Pandey. The first informant got shocked on seeing the

incident. The accused persons fled away in the car towards the

West.

18. PW-1, in his examination-in-chief, further stated that

on 01.03.2006, the District Inspector of School was about to

handover the charge of the Principal of the institution to his

father as Board examinations were to commence on 04.03.2006

and it was the reason for conspiring to commit the murder of

his father.

19. PW-1 stated that the report of the incident was

written by him and given in the police station, his signature and

the contents of the report were proved by PW-1 in the Court,

which was marked as Exhibit Ka-1. PW-1 stated that the

Investigating Officer recorded his statement. The bag of his

father found besides the dead body was seized by the police and

was given in his custody. One application addressed to the

Commissioner, District Magistrate and Superintendent of Police

taken out from the bag was seized and a memo was prepared on

which his signature and that of Ramakant Mishra were taken.

Paper No.9 Ka/1, memo taking possession of the bag and

Superdiginama was proved by him bearing his signature,

marked as Exhibit Ka/2. The recovered letter, paper No.11

Ka/2, was shown to this witness wherein he had proved the

signature and stamp of his father and stated that it was in the

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handwriting and signature of his father which he could identify

and that the same was seized by the police on the spot, it was

marked as Exhibit Ka-3. The bag was marked as Material

Exhibit-1.

20. The cross-examination of PW-1 was made about the

narration by him of the dispute between his father and Laxmi

Narain Pandey, the Manager of the institution; i.e. the motive

assigned by him to commit the murder. PW-1 reiterated that the

appointment of Shyam Narain Pandey though was made by the

Commission but it was a result of fraud and his father got a stay

order from the High Court about the appointment of Shyam

Narain Pandey. Shyam Narain Pandey remained Principal from

2003 till 2005. Further, when Rs.10 lacs were received from

M.P. fund, his father was the Principal and Laxmi Narain

Pandey was the Manager. The said grant was for Intermediate

institution. Laxmi Narain Pandey was also the Manager of a

Degree College and both the institutions were located nearby.

The money came in the account of his father but could not be

utilized for the intermediate institution. He then stated that he

cannot say much about the accounts of the institution. The

suggestion that his father had misappropriated the money and

on the said dispute it was returned to the Chief Development

Officer, Azamgarh, had been categorically denied. It was

admitted by PW-1 that his father was removed from the post of

Principal in April 2003. Further suggestion that a charge of

misappropriation of Rs.10 lacs was levelled against his father

and that is why another Principal was appointed was denied.

21. As to the identity of the accused person, PW-1 stated

that Rajesh, Pawan, Amit, Umesh and Ramesh are sons of

Laxmi Narain Pandey and he had no knowledge about the

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education and occupation of those persons. Shyam Narain

Pandey is not related to Laxmi Narain Pandey and is resident of

Ballia. On a question put to PW-1 about the identity of accused

Pawan Kumar, he categorically stated that he knew Pawan

Kumar by name and face and also that he was son of the

Manager Laxmi Narain Pandey and that he knew Pawan Kumar

since 2001. PW-1 also identified accused Pawan Kumar

standing in the Court and stated that the said accused hit a

bullet in the head of his father.

22. PW-1 stated that his house in Atraulia was at a

distance of half a kilometer towards north-east side of the

Kesari Chauraha. His father, mother and sister were occupants

of the house. Giving details of the incident, PW-1 stated that the

Bolero car stopped at the east of the crossing facing towards

west. He was at a distance of ten paces from the car towards

south-west. Laxmi Narain Pandey was sitting inside the car in

the middle seat at the southern gate and the gate was open and

he could clearly see Laxmi Narain Pandey from the place where

he was standing. Laxmi Narain Pandey was taking his body out

of the car while exhorting other accused persons to kill. He

knew Laxmi Narain Pandey for the last about ten years.

23. He further stated that there was a day light at the time

of the incident, electric light was not on by then and he made no

mistake in identification of Laxmi Narain Pandey. A suggestion

was given that Laxmi Narain Pandey and Pawan Kumar were

lodged in the District Jail, Lucknow few days from prior to the

incident till the date of the incident, had been categorically

denied by PW-1.

24. In cross, PW-1 was confronted about the presence of

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crowd at the Kesari Chauraha in the evening hours and that the

police usually remain present for checking purpose. He though

accepted that Kesari Chauraha used to become crowded by 3.00

PM and it was a crossing for the big and small vehicles running

on Azamgarh-Faizabad road but stated that police was not

present on the spot. He further stated that there was no jam like

situation and that the Bolero Car stayed for 5-6 minutes at the

site of the incident and that no members of public threw stones

on Bolero car. He further stated, on confrontation, that when

bus stopped, his father got down alone and bus moved ahead,

his father was not caught and fired but the accused surrounded

him and then opened fire. All five accused persons gheraoed his

father. PW-1 also gave the direction in which the accused

persons were standing while encircling his father and the

distance of them from the deceased. He further stated that as

per his knowledge, total five fires were made but it could be

more than that. His father fell down after being hit by the bullet,

facing downwards. The incident was witnessed by him from a

distance of ten paces and while he was about to move forward

towards his father, Ramesh and Umesh opened fire and that

time deceased was falling. After the accused left in the car, he

went near his father but crowd did not allow him to touch the

deceased.

25. On a query made from PW-1 as to whether his

clothes were soaked with the blood of his father, he stated that

he could not hug his father though he wanted to, people were

holding him while he was sitting besides the dead body of his

father for about 10-15 minutes. After 15 minutes, when people

left him, he kept on crying for 5-10 minutes but did not touch

his father. In the meantime, his mother and sister also reached

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the spot. His house was at a distance of half a kilometer on the

southern side from the police station Atraulia. His mother and

sister became unconscious and remained lying as such for about

10 minutes but the police of the Police Station Atraulia did not

reach by then.

26. PW-1 stated that he then wrote the report while

sitting at a Samadhi Sthal Balakdas which was about 10-12 feet

on the northern side of the place of the incident. It took about

20 minutes to write the report and then he went to the police

station, by that time even the police of the Police Station

Atraulia did not reach there. It took him about 15 minutes to

reach the police station as he went on foot and when he gave

the report, the police came to know that a murder had been

committed on the spot.

27. After lodging of the report, police personnel came on

foot with him, they were 3-4 in number. The Investigating

Officer reached after half an hour of reaching other police

personnel on the spot and he came by an official Jeep. After 2-4

minutes of coming to the place of the incident, the Investigating

Officer started inquest. The body was then moved from the

place of the incident and it must be about 10.30 PM when the

police took the body to Azamgarh. PW-1 stated that by the time

body was sealed and sent away, the police of many police

stations reached at the spot and some officers also came. They

took the sealed body towards east and then put it in a vehicle

which he could not see. PW-1 stated that he remained at the

place of the incident even after the body was taken away and he

was there till 12.00 hrs.

28. In cross, PW-1 was confronted about the proof of his

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father travelling by bus on the fateful day. He stated that his

father alighted from a Roadways bus. The bag of his father was

given in his custody by the police after preparation of the memo

and no bus ticket was found inside it. About Rs.250/- were

found in the pocket of pant of his father which was given to him

without any paper work. Neither the bus ticket nor any pass of

traveling by the bus was recovered from the clothes of his

father (the deceased). On further confrontation, he stated that

the fact that his father was about to receive the charge of

Examination Controller on 01.03.2006 could be known to him

from his father and his father told him that he was going to

bring Board copies from the office of the District Inspector of

School, Azamgarh. He says that he also accompanied his father

but he came back early and could not know as to whether

copies were received by his father. He had denied the

suggestion that his father did not alight from the bus at the

Kesari Chauraha on the date of the incident.

29. PW-1 was further confronted about the place of the

residence of other witnesses and that is how about the presence

of the witnesses on the spot. PW-1 stated that when the

Investigating Officer recorded his statement, all four witnesses

were not with him and they went with his mother and sister and,

thereafter, he did not know where they had gone and that they

did not meet the Investigating Officer in front of him. Affidavit

of four witnesses given in the office of the District Magistrate

were put to PW-1 to confront that those affidavits were filed to

put undue pressure on the witnesses. Suggestion about the

enmity of the deceased with other persons was also given to

PW-1 in order to project that some unknown persons had

committed the offence on account of land dispute and the

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appellants had been falsely implicated due to enmity. It has also

come in the evidence of PW-1 that on the date of the incident,

the Ex-Principal of the institution namely Sri Paras Nath Mishra

had died. The suggestion that he went to the house of Sri Paras

Nath Mishra was denied by him.

30. On a suggestion that Rajkumar Tiwari, who is

witness in the instant case, was peon in the institution and his

salary was withheld by accused Shyam Narain Pandey when he

was Principal as Rajkumar Tiwari used to remain absent and

did not work properly, PW-1 showed his ignorance. He was

again confronted on various missing details in the description

given in the first information report and his previous statement

under Section 161 Cr.P.C. which he replied and stated that the

report was written by him on his own and no-one was helping

him nor he asked anyone. A suggestion was also given to PW-

1 that a bus stand was there on the eastern side at a distance of

about half kilometer from the Kesari Chauraha and buses used

to stop there.

31. About the posting of his father in the institution

concerned, when confronted, PW-1 reiterated that his father

was a Lecturer in the institution since the year 1979. When

confronted about the nature of his appointment and the post that

whether his father was about to become Principal or the

Examination Controller, PW-1 stated that whatever had been

stated by him was informed by his father and he did not know

much about the post held by his father. The suggestion that his

father was absent from the institution for a long time i.e. from

14.04.2003 was denied by PW-1. He further stated that he did

not know as to whether another Senior Lecturer Sri Ram Naval

Pandey was the Principal of the institution on the date of the

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incident. About knowing the witnesses Krishna Kumar Tiwari

and Arun Kumar, he stated that he knew them as they were

appointed in place of their father on compassionate ground. All

other witnesses Ram Shravan Pandey and Rajkumar Tiwari

were Peons in the institution and were close to his father. He

denied that the name of accused Shyam Narain Pandey was

added at the instance of witnesses Rajkumar Tiwari and Ram

Siromani Pandey.

32. On a query made by the Court that the post of

Principal and Examination Controller were two different posts

and in the examination-in-chief PW-1 stated that on

01.03.2006, the District Inspector of School was about to

handover charge of the Principal to his father whereas in the

cross he stated that it was the charge of the post of Examination

Controller, PW-1 explained that it might have been stated

because of the confusion but the correct fact was that his father

was to be handed over the charge of the post of Examination

Controller by the District Inspector of School. The suggestion

that accused Shyam Narain Pandey had sworn an affidavit

before the Oath Commissioner, High Court in a case at about

07.10 PM, on the date of the incident, was repelled by PW-1

saying that he had no knowledge of the same but he had

categorically denied the suggestion that Shyam Narain Pandey

was falsely implicated at the instance of Krishna Kumar Tiwari

and Raj Kumar Tiwari. PW-1 categorically denied the

suggestion that he was not present on the spot. PW-1 lastly

denied that his father was coming back from the house of the

Ex. Principal Sri Paras Nath Mishra and then the incident had

occurred.

33. PW-2 Rajkumar Tiwari, a resident of P.S. Atraulia

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District Azamgarh stated on oath that he was working as Peon

in Matruti Inter College since 1970-71 and had superannuated

on 30

th

April 2006. In the year 1996-97, Sri Paras Nath Mishra

was the Principal of the institution. After retirement of Sri Paras

Nath Mishra on 30.06.1997, Sri Rajendra Prasad Tripathi who

was the Senior-most Lecturer became officiating Principal in

July 1997 and he continued to work as such for about three

years, his tenure was about 7 years and there was no dispute in

the initial three years. PW-2 pointing to the accused Laxmi

Narain Pandey present in the Court, stated that he was the

Manager of the institution who had created an atmosphere of

corruption and fear in the institution, he was a man of criminal

nature and became Manager by illegal means.

34. PW-2 stated that accused Laxmi Narain Pandey was a

convict in the murder case of 5-6 persons in Village Hatdiya in

the year 1970-71 and was sentenced for life imprisonment by

the Sessions Court. Apart from that, 7-8 cases in P.S. Atraulia

were against the said accused. He stated that the accused Laxmi

Narain Pandey was in the habit of realizing money by illegal

means from the students of the college and doing bungling in

the scholarship of Harijan students. He had also manhandled

one peon of the institution about three months prior to the

incident.

35. In the year 2001-02, Rs.10 lacs were received from

M.P. fund for construction of building and other purposes. With

a view to misappropriate that money, the Manager wanted to

get signature of deceased Rajendra Prasad Tripathi in a blank

cheque which he had denied and thereafter Manager and his

sons used to exert a lot of pressure on the deceased. Because of

the pressure, the deceased (Principal) had returned the money to

19

the Chief Development Officer, Azamgarh. Being annoyed by

the said fact, the Manager was hatching conspiracy with his

sons to kill the deceased. In order to remove the deceased from

the post of Principal, co-accused Shyam Narain Pandey was

appointed as Principal on the basis of forged papers through the

Commission. The deceased, the then Principal namely Rajendra

Prasad Tripathi gave an application against the appointment in

the Commission and on enquiry, the testimonials of Shyam

Narain Pandey were found forged and his appointment was

cancelled. After removal of Shyam Narain Pandey, the

deceased again became Principal and, thereafter, the Manager

and Shyam Narain Pandey jointly hatched conspiracy to kill

him and in furtherance of their intention, the accused persons

namely the Manager Laxmi Narain Pandey, his sons and the co-

accused Shyam Narain Pandey committed the murder.

36. Narrating the occurrence, PW-2 stated that the

incident had occurred at about 06.00 PM on 28.02.2006 when

sun was being set and sky was clear. He was present at the

Atraulia Kesari Chauraha alongwith Krishna Kumar Tiwari,

Arun Kumar and Atul Kumar Tripathi (PW-1) and they were

waiting for the Principal Rajendra Prasad Tripathi while sitting

on a Chawki. On a day before, the Principal had instructed them

to wait for him at the Kesari Chauraha as he would go to the

office of the District Inspector of School, Azamgarh on

28.02.2006 (the next date) to bring Board copies and other

material. On the day of the incident, the Principal (the

deceased) went to Azamgarh and all the witnesses were waiting

for him at the Kesari Chauraha. At around 06.00 PM, a bus

stopped at the crossing and the Principal (deceased) alighted.

The bus moved ahead to the West, while the Principal Sahab

20

was going towards the east, he stopped at the tea Stall of Ramu

Singh, they moved towards him. They were directed by sign, by

the deceased to move towards north and at that time, a Bolero

Car (without number) came and stopped on the opposite side.

The accused persons namely Rajesh Pandey, Ramesh Pandey,

Umesh Pandey, Amit Kumar Pandey and Pawan Kumar Pandey

got down from the car, all carrying country made pistols. In the

front seat of the car accused Shyam Narain Pandey and in the

middle seat accused Laxmi Narain Pandey were sitting and both

the persons while sitting inside the car were exhorting the

accused persons to kill the deceased by saying that "

बडा िपंिसपली

करनेचला हैबचनेना पाए

". The accused Amit, Rakesh, Babloo,

Umesh and Ramesh gheraoed the Rajendra Prasad Tripathi,

Amit fired at the back of the right earlobe whereas Babloo fired

at the back of left earlobe, Rakesh fired at the back and

thereafter the deceased started falling down and then Umesh

and Ramesh also fired. The deceased fell down and died

instantly. Both Laxmi Narain Pandey and Shyam Narain

Pandey were also challenging the witnesses that if they moved

ahead, they would also met the same fate. All the accused then

sat in the car and fled towards the west. Lot of commotion had

occurred on the spot because of the incident. After sometime,

wife and daughter of the deceased came on the spot, they

became unconscious and then PW-2 alongwith Krishna Kumar

and Arun Kumar took them to the village. PW-2 stated that he

was interrogated by the Investigating Officer.

37. In cross, PW-2 narrated that prior to the incident he

was going to the school daily and was putting his signatures on

the attendance register. He admitted that his salary was stopped

from 19.01.2005 but stated that the reason for stopping of the

21

salary was not his absence. He admitted that the withheld salary

was not received by him till date though proposal in that regard

had been sent. PW-2 further stated that he had retired on

attaining the age of superannuation of 60 years and admitted

that Shyam Narain Pandey and Laxmi Narain Pandey were

behind all his problems, i.e. for stoppage of salary but he never

went to the deceased to seek help.

38. On further confrontation, PW-2 denied that he was

terminated on account of long absence and also submitted that

he read in the newspaper that his services were terminated four

days prior to his superannuation. A suggestion that he was very

close to the deceased Rajendra Prasad Tripathi was denied by

PW-2 who reiterated that even after the incident till 30.04.2006

i.e. till the date of his superannuation, he was continuously

going to the school and since thereafter he remained at his

house. PW-2 stated that the Investigating Officer reached his

home after 20-25 days of the incident but he could not

remember the date. He stated that he gave statement to the

Investigating Officer for the first time on the day when he came

his home. On confrontation about the affidavit given in the

office of the District Magistrate, PW-2 stated that the said

application was dictated by him in the Collectorate Kachehri

and after attestation of the same by an Advocate it was given by

him in the Court. He stated that he narrated the same fact in the

affidavit given to the District Magistrate as stated in the Court

and before giving the said affidavit, the Investigating Officer

did not meet him.

39. On confrontation, PW-2 stated that he did not

mention the said fact to the family members of the deceased as

he did not find any purpose to do so and admitted that he was

22

told that his Advocate was brother of Bajrang Tripathi who was

real brother of deceased Rajendra Prasad Tripathi. Various

questions were put to PW-2 on the affidavit given by him in the

office of the District Magistrate to which he gave categorical

replies. The affidavit given by him was shown in the Court and

he admitted the same.

40. On further confrontation about the post which the

deceased was holding, PW-2 reiterated that the deceased

became officiating Principal in the year 1997 after retirement of

Paras Nath Mishra. He had reiterated the criminal antecedents

of accused Laxmi Narain Pandey who was the Manager of the

institution. It has come in the evidence of PW-2, in cross, that

in the murder case of five persons, he alongwith Laxmi Narain

Pandey and other persons was convicted by the Sessions Court

and they all had been acquitted by the High Court. PW-2,

however, explained that he was implicated being brother in law

of Laxmi Narain Pandey. The suggestion that he was not related

to Laxmi Narain Pandey was denied by him.

41. PW-2 further stated that two days after he gave

affidavit to the District Magistrate, the Investigating Officer

came to his house to record his statement. The Investigating

Officer also interrogated him about the affidavit given by him.

It has come in the evidence of PW-2, in cross, that the

investigation of the case was transferred from the police station

Atraulia to the police station Mubarakpur. He, however, stated

that he did not know the reason as to why the investigation was

transferred. PW-2 denied that his name was included amongst

the witnesses for the reason that he was a victim at the hands of

the accused and the prosecution was sure that he would give

evidence against them. The suggestion that PW-2 had not

23

witnessed the incident had been categorically denied and that he

gave the testimony after making a deal with the family

members of the deceased.

42. PW-2 further stated that he was not sure as to

whether the deceased was the Principal on the date of the

incident and the date when he became the Principal He,

however, heard that when Shyam Narain Pandey was removed

from the post of Principal because of forged testimonials, the

deceased Rajendra Prasad Tripathi was appointed.

43. In a gruelling cross-examination running into several

pages, continued for about two months on several dates, PW-2

narrated the manner in which the deceased was killed and

categorically stated that he had identified both the accused

namely Laxmi Narain Pandey and Pawan Kumar Pandey and

there was no doubt about the same. As to whether the deceased

got the Board copies and the reason why they were present on

the spot of the incident, PW-2 reiterated, in cross, that the

reason given by him to wait for the deceased at the crossing

was correct. He stated that he alongwith other witnesses had

witnessed the incident while standing at the same place and

when accused ran away they went near the deceased. He denied

the suggestion that he was not present at the place of the

incident and was in Atraulia market and that no incident had

occurred in his presence and he was making deposition due to

enmity.

44. PW-2 admitted that Shyam Narain Pandey was the

Principal during his service period and his appointment in the

institution was made by the then Principal Paras Nath Mishra.

He admitted that Paras Nath Mishra had died on the date of the

24

incident and the distance between the house of PW-2 and Paras

Nath Mishra was 1 KM. PW-2, however, stated that he did not

participate in the last rites of Paras Nath Mishra though he went

to his house after hearing the news. PW-2 stated that he could

not tell as to whether college was closed when condolence

meeting was held and that he did not participate in the

condolence meeting. PW-2 further stated that he went to the

institution on the date of the incident and made his signature on

the register at about 09.00 AM. The college was open till 04.00

PM and he also performed his duties on the said date. PW-2

reiterated that he was present in the institution till 03.00 PM

and till the college was open no condolence meeting was held

in his presence. He then stated that Sri Paras Nath Mishra died

at the dawn and categorically denied that the college was closed

due to condolence and every teacher and employee of the

institution went to the house of Sri Paras Nath Mishra and that

he also participated in the cremation ceremony.

45. On confrontation, PW-2 denied that he was

suspended by Shyam Narain Pandey on account of long

absence from duty though he admitted that his salary was

stopped and that had caused annoyance and further when he

applied for the loan from GPF account, Shyam Narain Pandey

was the Principal and that he could not get the loan. PW-2 also

admitted that he did not get pension till date though he had

denied termination of his services.

46. Queries were made from PW-2 about his criminal

antecedent and that he remained in jail in the murder case in

which he was one of the accused alongwith Laxmi Narain

Pandey. A suggestion was also given about enmity with Laxmi

Narain Pandey because of the election of Gram Pradhan

25

contested by his wife against the wife of Laxmi Narain Pandey

which he denied. Another suggestion of enmity of grabbing of

land of his brother by Laxmi Narain Pandey which was also

denied. PW-2 further admitted that his mother Sundari Devi

contested election against the wife of Laxmi Narain Pandey for

the post of Gram Pradhan and had lost but stated that the said

election was held much prior to the incident.

47. Further suggestion was given to PW-2 that he

remained absent for a long time and on account of the said fact,

show cause notice was given by the District Inspector of School

and he managed forged entries in the attendance register.

48. At this stage, one document namely the notice dated

09.02.2004 was shown to PW-2 upon which he had denied his

signature and handwriting on the receiving. Certain portions of

his examination-in-chief was put to PW-2 to confront that no

such submission was made by him in his previous version

under Section 161 Cr.P.C. PW-2 stated that all those facts were

narrated by him to the Investigating Officer but why it was not

written therein, was not known to him. He was also confronted

about the time when sun was set on the date of the incident.

PW-2 was also confronted that he did not show the Chowki

(wooden bench) whereupon they were sitting at the crossing.

He was also confronted that the reason to remain present on the

spot was not narrated by him to the Investigating Officer in his

statement under Section 161 Cr.P.C., i.e. that the deceased told

him to wait at the crossing as he went to bring the Board copies.

On further confrontation, PW-2, in cross, stated that when the

Principal (deceased) alighted from the bus he was empty hand,

no Board copies were with him. He was further confronted that

he was giving oral testimony on the condition that his pension

26

would be released.

49. Lastly PW-2 had denied the suggestion that he was

not present on the spot and was giving evidence against Shyam

Narain Pandey due to enmity. Apart from these two witnesses

of fact, all the other witnesses are formal witnesses.

Formal Witnesses:-

50. PW-3 is the doctor who had conducted the

postmortem of the dead body. PW-3 proved the injuries, noted

above, on the person of the deceased. PW-4 is the first

Investigating Officer who proved the police papers prepared

uptil inquest.

51. PW-5 is the second Investigating Officer to whom the

investigation was handed over on 02.03.2006. PW-6 is the

Constable clerk who proved the preparation of check FIR and

G.D. entry of the same. PW-7 is the police officer who proved

the collection of recovered articles and sending them to the

forensic laboratory. PW-10 is the officer posted in CBCID, to

whom the investigation was handed over on 05.05.2006 on an

order passed by the State Government. He conducted the

investigation and filed the charge sheet. Amongst the formal

witnesses, PW-3 had proved the injuries noted above found on

the person of the deceased.

DEFENCE SUBMISSION:-

52. Placing the prosecution evidence, it is vehemently

argued by Sri Dilip Kumar learned Senior Advocate that this is

a case of false implication of accused persons because of

admitted enmity of private witnesses PW-1 and PW-2, one of

27

whom is the son of the deceased and another an employee of

the institution against whom disciplinary action was taken by

the co-accused Shyam Narain Pandey as Principal of the

institution. Further, there are material contradictions in the

testimony of PW-1 who is stated to be an eye witness of the

incident.

53. The question is as to whether the story of the first

informant with regard to the place of the incident and the

manner of occurrence could be proved, with the presence of

other eye witness, in as much as, the prosecution could not even

prove the fact that the deceased had travelled by a Roadways

bus on that day. It is vehemently argued that the entire story

narrated by PW-1 from the beginning was concocted, in as

much as, the narration by PW-1 of the reason of enmity of the

deceased with accused Laxmi Narain Pandey for Rs.10 lacs

received from M.P. Fund, could not be proved by the

prosecution. In cross, it has come that the said money was

though transferred by the deceased to the Chief Development

Officer, Azamgarh but it was again refunded to the accused

Laxmi Narain Pandey for degree college. The enmity suggested

by the prosecution because of the dispute relating to the money

(Rs. 10 lacs), therefore, falls. The story of the pressure created

by Laxmi Narain Pandey upon the deceased to handover money

to him was creation of the witnesses PW-1 & PW-2.

54. It is argued that PW-1 was not sure as to whether the

deceased (his father) was to be given charge of the post of

Principal or the Examination Controller on the next date of the

incident, i.e. 01.03.2006. In view of the apparent contradictions

in his statement-in-chief and cross, his version that the deceased

went to the office of the District Inspector of School to bring

28

the Board copies and that being the reason of the presence of

the witnesses on the spot, therefore, is proved to be false.

Besides the apparent contradictions in his testimony, no

material such as answer books were found near the dead body

nor noted in the inquest, the said fact was also admitted by PW-

2 that the deceased did not bring answer books with him. No

copy or no other material was found besides the dead body. No

bus ticket or pass to travel by the roadways bus was found

either in the pocket of clothes of the deceased or in the alleged

bag found by the Investigating Officer besides the dead body.

There is no memo of alleged money recovered from the pocket

of the pants of the deceased. In the inquest report, the column

for noting the things found besides the dead body is blank

which further proves the stand of the defence that nothing was

found besides the dead body. As per the evidence of PW-1, the

deceased had alighted from the roadways bus. A presumption,

thus, has to be drawn in the ordinary course of business that he

was travelling with ticket or a pass but no such material was

found near the dead body. The entire theory of prosecution of

the deceased having alighted from the roadways bus, thus, falls

short of evidence. There is, thus, no evidence on record to

prove that the deceased went to the office of the District

Inspector of School, Azamgarh and was coming back from the

said office by a Roadways bus as narrated by the prosecution

witnesses. The reason for their presence given by the

prosecution witnesses (PW-1 & PW-2) to receive the deceased

at the Kesari Chauraha as he was bringing the Board copies,

therefore, proved to be wholly concocted story. The presence of

prosecution witnesses (PW-1 & PW-2) on the spot, therefore, is

belied.

29

55. It is then argued that once the reason for presence of

PW-1 and his companion (PW-2) on the spot could not be

proved by the prosecution, the presence of witnesses on the

spot becomes highly doubtful. The direction wise details given

by PW-1 as to which accused fired in which manner, further

goes to show that the prosecution had concocted the entire

version of PW-1 about his presence on the spot. There is

apparent contradictions in the testimony of PW-1 about the

number of fires from the medical evidence wherein only three

firearm injuries of entry wounds were found on the person of

the deceased. Two other firearm injuries as indicated in the

postmortem report are exit wounds corresponding to two entry

wounds. According to the learned Senior Counsel, PW-1

having counted the number of firearm injuries as indicated in

the postmortem report without understanding its impact, stated

that all the accused persons had fired at the deceased and that

total 5 fires were made by assigning firearm in the hands of

each accused.

56. It is clear in his version that PW-1 though stated that

Umesh and Ramesh also fired but did not explain as to whether

their fire hit the deceased.

57. PW-2 Rajkumar Tiwari conspicuously absented from

the spot soon after the occurrence and did not meet the police

officer as is evident from his testimony and that of PW-4. His

statement was recorded after about 20-25 days of the

occurrence and the admitted fact that he gave an affidavit to the

District Magistrate to record his testimony show that the

prosecution had pressurized the witnesses to give a false

testimony. The statement under Section 161 Cr.P.C. of PW-2

was recorded only after he gave affidavit to the District

30

Magistrate on 20.03.2006. It is admitted to this witness (PW-2)

that he did not meet the Investigating Officer before giving

affidavit to the District Magistrate. It is further argued that, in

cross of PW-2, it has come that Ex. Principal Paras Nath Mishra

died on the same day and it was suggested that PW-1 was

coming from his house, which was near the place of the

incident, when this murder was committed. This suggestion

given to the witnesses could not be successfully refuted by PW-

1 or PW-2 which fact coupled with the above noted facts makes

it evident that the prosecution had suppressed the truth, i.e. the

reason for the presence of the witnesses on the spot.

58. It is then argued that the suggestion of enmity of the

deceased with other persons on account of lodging of the first

information report by him was admitted. Further there was a

considerable delay in sending the dead body to the police lines.

As per the statement of PW-1, the body was sent for

postmortem from the place of the incident at about 10.30 PM

but as per the entries in Form 13, which records movement of

the dead body, the body was dispatched from the place of the

incident at 10.25 PM but received in the police lines in the

morning at about 11.15 AM. The postmortem commenced at

about 11.30 AM and the doctor (PW-3) admitted that he had

received the body in the mortuary at 11.15 AM. Similar entries

could be seen from two documents maintained at the police

lines which are the postmortem register and GD proved by the

defence as Exhibit Kha-1 and Kha-2. The entries in the said

documents do tally with the postmortem report (Exhibit Ka-4)

and the time of arrival and dispatch of the dead body to the

mortuary recorded therein is 10.45 PM. The first Investigating

Officer namely PW-4 was cross-examined on the issue of

31

arrival of the body in the mortuary and he also admitted that as

per his information, the body had reached the mortuary at about

6.00-7.00 AM though it was asserted by PW-4 that the body

was straightway sent to the mortuary from the place of the

incident for postmortem.

59 The defence witness DW-1, clerk of the police

Headquarter, Azamgarh brought the original postmortem

register and G.D. and as per the entries therein, it was proved

by DW-1 that the dead body of Rajendra Prasad Tripathi

(deceased) had reached at the police lines on 01.03.2006 at

about 10.45 AM.

60. With the statement of DW-1, learned Senior Counsel

for the appellant vehemently argued that the entries in both the

documents namely Kha-1 and Kha-2 were of 10.45 AM. There

is no corresponding entry in Form 13 wherein a column exist

for noting the time of arrival of the dead body in the police lines

and also of sending it to the mortuary. The contention is that

since only one time namely 22.25 hrs dated 28.02.2006 has

been mentioned in the relevant column in Form 13 with regard

to which the relevant entry in the postmortem register at serial

No.82 Rapat number 50 time 10.45 AM dated 01.03.2006 exist,

it can be inferred that the dead body reached the police station

only in the morning at about 10.15 AM. It is argued that the

distance of the police lines from the place of the incident was

about 33 KM. In any case, dead body could not have been

received in the police lines at about 10.25 PM as noted in the

relevant column of form 13 as it was proved to be the time of

dispatch of the dead body. Looking to the distance of the

police Headquarter from the place of the incident, only

entry of the postmortem register and Rapat No.15 in G.D.

32

(Kha-1 and Kha-2) have to be considered to ascertain the

time when the body was received in the police lines,

Headquarter Azamgarh. The doctor had proved that the body

was received by him for the postmortem at about 11.15 AM on

01.03.2006 alongwith police papers and he conducted

postmortem at 11.30 AM.

61. In light of the above evidence on record, no

explanation could be offered by the prosecution witnesses

specially the Investigating Officer to explain the gap of 12 hrs

in transportation of the dead body to the police lines. The

Constables carrying the dead body were not examined on the

vital delay of arrival of the dead body in the police station and

then to the mortuary. As per the opinion of the Doctor, the

proximate time of death estimated by him was ½ day that

means 12 hrs. From the above opinion of the expert also the

death could not have been caused at around 06.00 PM, as

projected by the prosecution witnesses of fact (PW-1 & PW-2).

It seems more probable that the death was caused sometimes

around midnight and for that reason, the body was received in

the police lines/mortuary in the morning. The statement of the

Investigating Officer (PW-4) also becomes significant when he

says that he had received information that the body was

received in the mortuary at about 06.00-07.00 AM.

62. In view of the above circumstances, two probabilities

arise, firstly, that the incident had occurred in the dead of night

and no-one had seen the murder and secondly that some

unknown person who were carrying ill will against the deceased

on account of lodging of the first information report against

them under Section 307 IPC had killed him and for that reason,

the body was received in the police lines and the mortuary

33

during morning hours on the next day i.e. 01.03.2006. As a

consequence to that, the first information report becomes Ante-

time. By preponing the time of lodging of the first information

report, the prosecution tried to build a case of the presence of

alleged eye witnesses (PW-1 & PW-2) at the site of the

incident. The special report of the incident was also sent with

considerable delay and as per the endorsement on the same, it

was received by the Judicial Magistrate on 04.03.2006.

63. All the above facts taken together prove the

improbability of the deceased having alighted from the bus at

the Kesari Chauraha at the time which was fixed by the

prosecution witnesses. According to the defence, in fact, PW-1

was present in his house which was at a short distance from the

place of the incident and the deceased had gone to the house of

Paras Nath Mishra, the Ex-Principal who had died on the same

day. While coming from the house of Paras Nath Mishra, the

deceased was killed by unknown assailants and PW-1, who

came from his house projected himself as an eye witness in a

motivated manner to falsely implicate the accused persons

because of enmity. The reason for presence of the witnesses

namely PW-1 on the spot was not narrated in his previous

statement under Section 161 Cr.P.C. which fact further proves

that PW-1 is lying.

64. It is further argued that when it was put to PW-1 that

a bus stand was nearby, only 250 paces towards the west from

the place of the incident, he admitted the same and this

admission would be further proof of the fact that there was no

reason for the roadways bus to stop at the Kesari Chauraha

which was a busy place. In fact the place of the incident as

narrated by PW-1 and the reason for his presence at the said

34

place all are concocted story which could not be proved by the

prosecution. The falsity in the testimony of PW-1 is further

proved from the fact that he gave a false affidavit in the bail

matter against accused Shyam Narain Pandey.

65. On motive, it was vehemently argued by the learned

Senior counsel for the appellants that there is no evidence of the

suggested motive and PW-1 could not even prove the motive in

his oral testimony. It is lastly argued that both the witnesses are

interested and partisan witnesses, PW-1 being son of the

deceased and PW-2 having grudges against the co-accused

Shayam Narain Pandey. No independent witnesses was

produced though the incident allegedly had occurred at a

crowded place at a time (in the evening) when lot of crowd was

collected on the spot. Strict scrutiny of the prosecution

evidences, therefore, would be required and it becomes

important to ascertain as to whether the deceased had actually

travelled by bus.

66. To prove the said doubt in the prosecution story bus

ticket was a significant evidence which could not be found by

the prosecuting officer. The bag which was allegedly found

near the dead body was a planted one. The prosecution

witnesses were put to cross on the evidence of proof of

traveling of the deceased by bus but none of them could give

any satisfactory answer. This fact itself completely ruled out the

story of traveling of the deceased by the roadways bus.

67. It is argued by the learned Senior Counsel for the

appellant that in the statement of the second Investigating

Officer (PW-5) though it has come that he had interrogated the

District Inspector of School and recorded his statement but the

35

said statement was neither produced in the evidence nor

exhibited. Without proving the evidence of the District

Inspector of School, the substance of the statement of the

second Investigating Officer in that regard would be liable to be

thrown away.

68. The Material Exhibit-12, the bullet recovered from

the dead body, could not be matched with the weapons

allegedly recovered from the accused persons. This again show

the falsity in the case of the prosecution about the weapons in

the hands of the accused persons and the offence committed by

them. The appellants had been acquitted for the offence under

the Arms Act as the recovery of weapon was planted.

69. It is urged that PW-2 admittedly had motive to falsely

implicate the co-accused Shyam Narain Pandey. Further

investigation of the case was done by the CBCID under the

order passed by the State Government. The PW-10, the third

Investigating Officer of CBCID, though collected evidence for

the offence under Section 120-B but did not produce any

witness in the Court and, thus, allegation of conspiracy could

not be proved. There is no transparency in the investigation.

The material improvement in the testimony of PW-2 were put

to the Investigating Officer namely PW-5 who could not

explain the same. The offence under Section 7 Criminal Law

Amendment Act, which was indicated in the first information

report had not been mentioned in any of the police papers

prepared by the Investigating Officer.

70. The Investigating Officer did not ascertain the post

which the deceased was holding on the date of the incident.

There are several flaws in the investigation which were pointed

36

out to the Investigating Officer to dispute the presence of eye

witnesses and no satisfactory reply could be obtained. From the

entry in the case diary dated 28.02.2006, it was pointed out by

the learned Senior Counsel that there was interpolation in the

case diary about the bag seized as the case property. This

interpolation was put to the Investigating Officer namely PW-4

who could not give any satisfactory answer. It was also

observed by the trial Court that there was an interpolation in the

case diary and the word “bag” was later introduced.

71. Sri Dilip Kumar learned Senior Counsel for the

appellants places reliance on various judgements of this Court

and the Apex Court, Nem Singh Vs. Emperor

1

, Guchun

Misir & others Vs State

2

, State of U.P. Vs. Moti Ram

& another

3

, Sahib Singh Vs. State of Haryana

4

,

Malempati Pattabi Narendra etc. Vs. Ghattamaneni

Maruthi Prasad & others

5

, State of Uttar Pradesh Vs.

Babu Singh,

6

Jumni & others Vs. State of Haryana

7

,

Ayodhaya Prasad Namdeo Receiver Vs. Babu Ram

Prasad

8

, Chhanga & others Vs. State of U.P.

9

to

buttress his arguments.

72. It is argued by Sri Durgesh Kumar Singh learned

counsel for appellant Shyam Narain Pandey that the accused

persons Laxmi Narain Pandey and Shyam Narain Pandey were

wrongly convicted in the offence of murder with the aid of

Section 149 when admittedly they did not step out of the car.

1.1934 AIR (ALL) 908

2.1956 Law Suit (All) 245

3.1990 (4) SCC 389

4.1997 (7) SCC 231

5.2000 (5) SCC 226

6.1998 (2) ACR 1654

7.2014 (85) ACC 650

8.AIR 1954 V.P

9.Criminal Appeal No.2927 of 1982

37

Only role of exhortation had been assigned to these appellants

as per own case of the prosecution itself. The accused Laxmi

Narain Pandey and Shyam Narain Pandey cannot be said to

have committed any offence in prosecution of the common

object of the assembly which was projected as unlawful

assembly. Reference has been made to the decision of the Apex

Court in Roy Fernandes Vs. State of Goa

10

to assert that

the conviction of two appellants namely Laxmi Narain Pandey

and Shyam Narain Pandey for the offence under Section 302

IPC with the aid of Section 149 IPC is a result of

misapplication of law. Further, PW-1 did not even assign the

role of exhortation to Shyam Narain Pandey in his statement

under Section 161 Cr.P.C., his version before the Court,

therefore, is a material improvement. As established from the

record, PW-2 had motive to falsely implicate Shyam Narain

Pandey. He, therefore, is liable to be acquitted.

73. It is lastly argued by Sri Durgesh Kumar Singh

learned Advocate that appellant Shyam Narain Pandey could

not have been present on the spot, in as much as, he was in

Allahabad and sworn an affidavit before the Oath

Commissioner in the High Court. Two witnesses, DW-7 a

litigant and DW-12, a lawyer were produced in the Court to

prove the plea of alibi. Even PW-1 in his testimony admitted

that he had never seen Shyam Narain Pandey prior to the

incident and could not explain as to how he knew him.

74. This fact shows that PW-1 could not identify Shyam

Narain Pandey at the time of the incident. His implication was

later made on deliberations at the instance of PW-2 who was

having enmity with Shyam Narain Pandey. This fact further

102012 (3) SCC 221

38

proves the falsity in the statement of the prosecution witnesses

and the case of prosecution falls on account of all the material

contradictions found in the testimony of the prosecution

witnesses.

DEFENCE EVIDENCE:-

75. To press the plea of alibi of accused Laxmi Narain

Pandey, Pawan Kumar Pandey and Shyam Narain Pandey

following evidence has been placed before the Court by the

defence.

76. For Laxmi Narain Pandey and Pawan Kumar Pandey,

their statement under Section 313 Cr.P.C. were placed wherein

Laxmi Narain Pandey stated that he was lodged in the District

Jail, Lucknow on the date and time of the incident. Similar plea

was taken by appellant Pawan Kumar Pandey that he was

lodged in the District Jail, Lucknow alongwith his father on the

date and time of the incident. In support of this plea of alibi, the

witnesses from the District Jail, Lucknow and the office of the

Railway Police Force had been brought in the Court.

77. DW-2 came from the District Jail, Lucknow and

deposed that he brought the gate book register and register No.1

(Kaidi register) register No.7 Doctor Mulaiza register in the

Court. This witness had simply brought the document noted

above and did not say anything beyond that, he was not cross-

examined by the prosecution.

78. DW-3, the Head Constable posted in RPF Post,

Charbagh (NR) Lucknow brought the original G.D. from the

date 14.02.2006 till 27.02.2006 under the orders of the Court

and proved the G.D. entries dated 24.02.2006, 16.26 hrs and

39

25.02.2006 as Exhibit Kha-3 and Kha-4. It was stated by DW-3

that as per the entries in the General Diary, two persons namely

Laxmi Narain Pandey and Pawan Kumar Pandey were caught

by the T.C. (Ticket Collector) and were handed over to RPF

post (NR), Charbagh Lucknow alongwith two chargesheets.

The entry in that regard exists at serial No.60 of G.D. When the

case was registered against these persons, Constable Gauri

Shankar Singh was on duty and according to DW-3 these

entries might be in the writing of Gauri Shankar Singh. It was

further stated that as per the entries in G.D. 25.02.2006 at 00.10

hrs, Laxmi Narain Pandey and Pawan Kumar Pandey were in

the RPF lock-up under the supervision of Constable Gauri

Shankar Singh and they were handed over to Constable Shiv

Raj Prasad who made entries at G.D. No.4, 00.10 hrs of

handing over the accused persons to him. Constable Shiv Raj

Prasad was on duty till 08.15 AM on 25.02.2006 and these two

accused alongwith 15 other persons were handed over to

another Constable at about 08.15 AM on 25.02.2006, entry of

which could be seen at serial No.25 of the G.D. This witness

stated that all the above entries and signatures might be of

Constable Shiv Raj Prasad. As per the G.D. entries dated

25.02.2006 rapat No.47, two accused persons alongwith 15

others were taken to the Court of ACJM North Railway

Charbagh Lucknow by the RPF Constables and they were

brought back on the same day at about 18.00 hours, entries of

which was made in the G.D. at rapat No.57. In the entries of

return of the accused persons in the Lock-up, out of 17 persons,

4 persons were released as they had deposited the requisite fine.

79. These two accused persons namely Laxmi Narain

Pandey and Pawan Kumar Pandey did not pay the fine of

40

Rs.880/- per person imposed upon them and, therefore, they

were inflicted punishment of 15 days imprisonment. The result

was that 13 remaining accused including two persons namely

Pawan Kumar Pandey and Laxmi Narain Pandey were lodged

in the District Jail, Lucknow.

80. DW-3 in his testimony stated that all the above noted

G.D. entries could be found in the original copy of the same.

81. In cross, he further stated that the names of the

appellant Laxmi Narain Pandey and Pawan Kumar Pandey

could be found in the list of those persons who did not deposit

the requisite fine. On recall, DW-3 filed original Khuraki

register, RPF Charbagh, Lucknow for the period from

03.11.2005 to 17.11.2006 and refuted the suggestion of the

prosecution that all the documents were forged and prepared in

order to provide undue benefit to the accused appellants. One

register known as Jama Talashi register dated 24.02.2006 was

also brought in the Court by DW-3 and it was stated that during

frisking of the accused persons, one mobile charger was found

which was not returned to him and as such there was no

signature of the accused appellant Laxmi Narain Pandey

therein, the copy of the Jama Talashi register was proved as

Exhibit Kha-6. The original Khurakhi register was proved as

Exhibit Kha-7, wherein it was indicated that meals of two times

were given to the accused appellants namely Laxmi Narain

Pandey and Pawan Kumar Pandey in the RPF locker. One

sealed envelope addressed to the Additional District and

Sessions Judge, Court No.3 Azamgarh sent by the Additional

Chief Judicial Magistrate (N.R.) Lucknow was produced by

DW-3 in the Court, seal of which was opened therein. Five

papers found in the envelope were marked as Exhibit Kha-9,

41

Kha-10, kha-11 and kha-12 and kha-13. Kha-12 pertains to

case No.1440 of 2006 arising out of case No.787 of 2006 under

Section 137 Railway Act, Laxmi Narain Pandey son of Shiv

Kumar Pandey, resident of Adilpur, P.S. Atraulia, District

Azamgarh.

82. In cross DW-3 admitted that none of the entries in the

register filed by him were made in his presence.

83. DW-4 is the Deputy Jailer, District Jail, Lucknow

who brought, on the direction of the Court, the record of

proforma for health screening and reasons of admission of the

accused in jail, which is the record of the jail hospital. He stated

that the entire record of the District Jail, Hospital Lucknow was

destroyed in a fire outbreak on 15.03.2006 and the copy of the

available record was being filed in the Court as certified by the

present Jailer, District Jail, Lucknow as Exhibit Kha-5. He

categorically stated that the record which was summoned by the

court had been destroyed in the fire incident and was not

available in the hospital of the District Jail. Original register

No.7, Hospital Mulaiza Register for the period from 21.02.2006

till 04.03.2006, gate register from 24.02.2006 till 18.03.2006

and Kaidi register No.1 dated 28.02.2006 till 07.03.2006 were

shown to him and he stated that he was not authorized to send

these documents to the Court which were brought by the

Constable Ram Nayan Tiwari examined as DW-2.

84. DW-4 categorically stated that for sending those

document only the Jailer, District Jail was authorized.

85. DW-5 is the Jailer, District Jail, Lucknow who stated

on oath that the above noted documents were sent by him

through the Constable Ram Nayan Tiwari (DW-2) as they were

42

summoned by the Court. He further stated that those registers

were not sent sealed as there was no such order of the Court.

DW-5 narrated that the register noted above bears signatures of

two accused appellants namely Pawan Kumar Pandey and

Laxmi Narain Pandey in the relevant columns.

86. He was crossed by the prosecution on various

discrepancies such as overlapping in the thumb impression and

incomplete description of the accused appellants against their

names.

87. DW-6 is the Jailer, posted in the District Jail,

Lucknow between 07.02.2006 till 20.12.2006. He had identified

the entries in the register gate book of the District Jail,

Lucknow for the period from 24.02.2006 till 18.03.2006,

original of which was brought in the Court and stated that as

per the entries therein of dated 22.02.2006 at 17.31 hrs, two

accused appellants Pawan Kumar Pandey and Laxmi Narain

Pandey were lodged in the District Jail, Lucknow at serial No.2

& 3 alongwith other 11 persons. He stated that the said entries

were made by the then Bandi Rakshak on duty. The certified

photostat copy of the gate book/gate register was filed by DW-6

under his signature as Exhibit Kha-14.

88. He stated that on 02.03.2006 at 11.36 hrs, 11

prisoners were released from the jail and amongst whom the

name of accused appellant Pawan Kumar Pandey was entered at

serial No.1 and Laxmi Narain Pandey at serial No.4. The

attested photo copy of the said entries was filed by DW-6 under

his signature as Exhibit Ka-15. He explained that in Kaidi

register No.1, original of which was before him in the Court,

the entries of lodging and release of the convicted accused

43

persons were made and, according to the said Register, at serial

No.964 of 25.02.2006, the factum of lodging of Laxmi Narain

Pandey son of Shiv Kumar Pandey resident of Village Adilpur,

District Azamgarh was noted whose release was made on

02.03.2006 on deposit of fine of Rs.880/- through receipt

No.406814. The copy of the said receipt was pasted in the

register and the identification marks of Laxmi Narain Pandey

had also been noted therein.

89. Similarly, the name of the accused appellant Pawan

Kumar Pandey was entered at serial No.965 in register No.1

and the name of his father was mentioned as Laxmi Narain

Pandey. His date of lodging in the jail was mentioned as

25.02.2006 with the description of his age, weight, height and

identification marks. The names of his relatives had also been

indicated therein and he was released on 02.03.2006 on deposit

of Rs.880/- by the Railway Court, receipt of which was pasted

as receipt No.406815. It was stated that both the receipts were

received from the office of the Additional Chief Judicial

Magistrate, (NR) Lucknow. However, he could not identify the

signature of the Deputy Jailer on the said entries. The photostat

certified copy of the register No.7 (release register) dated

02.03.2006 filed by DW-6 under his signature was exhibited as

Exhibit Kha-6 wherein the accused appellant Pawan Kumar

Pandey and Laxmi Narian Pandey were shown as having been

released at serial No.12 & 13; respectively.

90. Two photostat copies of register No.1 (kaidi register)

were filed by DW-6 under his signature as Exhibit Kha-17 and

Kha-18.

91. In cross, DW-6 had admitted that none of the entries

44

were made in his presence as they did not pertain to the period

of his posting in the District Jail, Lucknow. On a suggestion, it

was admitted by DW-6 that whenever some prisoner is lodged

in the jail, information is being given to his family members.

92. DW-8 is an officer of RPF, Lucknow who stated that

two accused namely Laxmi Narian Pandey and Pawan Kumar

Pandey were arrested and handed over to him. He lodged them

in jail on the basis of the charge sheets which were submitted as

Case No.7787 of 2006 and 708 of 2006 under Section 137 and

138 of the Railways Act. At that point of time, Constable Gauri

Shankar Singh was on lock-up duty and all the entries in the

G.D. dated 24.02.2006 and 25.02.2006 shown to him were

made by Constable Gauri Shankar Singh. DW-8 had identified

the signature and handwriting of Constable Gauri Shankar

Singh and stated that two accused appellants, named above,

were lodged in the RPF lock up. He stated that 13 accused

including two accused appellants herein were lodged in the

District Jail, Lucknow on 25.02.2006 and their return was also

entered in the G.D. He has further stated, in the cross, that the

information of lodging of the accused appellants Laxmi Narain

Pandey and Pawan Kumar Pandey was sent to their home on

the said date itself, i.e. 25.02.2006.

93. DW-9 is Constable Gauri Shankar Singh who was

posted in R.P.F. Post (NR) on 24.02.2006 and 25.02.2006. He

proved the GD no.60 dated 24.02.2006 and GD No.4 dated

25.02.2006 being in his handwriting and signatures and stated

that when accused persons were lodged in the RPF lock-up, he

was on duty of writing the G.D. He had entered two accused

and one mobile charger found in their frisking in the G.D.

No.60 of 24/25.02.2006. He handover the charge of the accused

45

person to Constable Shiv Prasad, entry of which was at G.D.

No.4 dated 25.02.2006. All other G.D. entries were not made

by him nor he could identify the signature of those persons who

maintained the same. DW-9, however, identified his signatures

on the entries made in G.D. 57 dated 25.02.2006.

94. In cross, DW-9 stated that when an accused is

brought in RPF custody, his family members are being

intimated and from the entries in the G.D. dated 24.02.2006 he

stated that information was given to the family members of the

accused persons on the number given by them which was

entered in the G.D.

95. DW-10 is Constable Ram Surek posted in the police

station RPF (NR) Charbagh, Lucknow and stated that he

alongwith five other Constables took 17 accused persons to the

Court of Additional Chief Judicial Magistrate (NR) Charbagh,

Lucknow for their appearance in the said Court, out of which

four were released whereas 13 accused persons including

Laxmi Narain Pandey and Pawan Kumar Pandey were lodged

in the District Jail, Lucknow. The entry of the jail gate book at

serial No.63 was shown to this witness who had identified his

signature therein as Exhibit Kha-19. He than stated that his

return alongwith other Constable in the Police Station RPF,

Charbah was entered in G.D. 57 at 18.00 hrs, which also bears

his signature.

96. In cross, DW-10 admitted that he could not identify

the accused persons and he had stated their names on the basis

of the entries in the documents proved by him.

97. DW-11 is the T.C. Sarvendra Singh who stated that

he was posted at the Railway Station Charbagh. Two persons

46

namely Laxmi Narain Pandey and Pawan Kumar Pandey

residents of village Adilpur, Police Station Atraulia, District

Azamgarh were caught at the first entry gate of Charbagh

Railway Station being without ticket and when brought before

the concerned officer they were asked to deposit Rs. 130/- as

tariff and Rs.250/- (Total rs.380/-) as penalty per person. When

they did not deposit the said money, the concerned officer had

filled their charge sheet and handed over to them to the Police

Station RPF, Charbagh, Lucknow.

98. The attested photostat copy of the said charge sheets

had been filed in the Court by DW-11 under his signature as

Exhibit Kha-20 and Kha-21. In cross, DW-11 stated that his

duty was at the first class entry gate of train No.3075 Jammu

Tavi Howrah which reached at Charbagh railway station at

about 15.15 hrs at platform No.1. He, however, did not

remember as to on which platform, the said train had stopped

on 24.02.2006. However, he stated that his duty was at the first

class entry gate when he caught the accused-appellant Laxmi

Narain Pandey and Pawan Kumar Pandey. He could not

remember as to whether they were empty hands and also as to

why they were caught. However, he stated that since they were

charge sheeted that would mean that they were traveling

without ticket. He did not remember anything told to him by the

accused on that day. He further stated that the accused persons

were charge sheeted for the general Bogey. He then stated that

on 24.02.2006 apart from these two accused persons at gate

No.1 of the platform, no other passenger was caught without

ticket.

99. In cross, DW-11, however stated that he could not

identify the accused persons if they were brought before him.

47

100. DW-13 is Deputy Jailer posted in the District Jail,

Lucknow on the date of the incident and was shown various

registers maintained in the jail as noted above. He stated that

there were overlapping in the thumb impression of accused

persons in the relevant register No.1 wherein their release was

entered and stated that in case of any doubt about the thumb

impression, the prisoner would not be released. He admitted

that in the relevant column of register No.1, 4 thumb

impressions of Laxmi Narain Pandey and Pawan Kumar

Pandey were there, where there was a lot of overlapping and in

a entry like this, release could not be ordered. He then stated

that when he directed for release of the accused persons, the

entries in the register were not like as they are. He then stated

that the registers which were produced in the Court were very

important documents and that they are being kept in the custody

of jail officer and no-one can touch, see or write anything on

the said registers. The suggestion that all the entries in the

register of the thumb impressions were made in a forged

manner was denied by DW-13.

101. DW-14 Bandi Rakshak, District Jail, Lucknow had

proved the entries in the hospital Mulaiza register and the

identification marks of physical appearance of the accused

persons noted in the gate book. He stated that according to the

original hospital Mulaiza register, on physical examination of

these accused persons on 26.02.2006, age, sex, weight and

height and other specific identification marks were noted in the

register. The attested photostat copies of the register was filed

by DW-14 under his signature as Exhibit Kha-22. We may

record that the identification marks noted in the relevant

column of the register were tallied from the identification marks

48

found on the persons of two accused namely Laxmi Narain

Pandey and Pawan Kumar Pandey in the Court and it was noted

therein that all identification marks mentioned in the register

tallied with the marks on the body. On a suggestion, DW-14

admitted that he could not explain the overlapping in the thumb

impression of the accused persons at the time of release and in

case such a situation existed, their release from the jail was not

possible. He had denied the suggestion that all these entries

were made in connivance of the jail official in a forged manner

and admitted that he could not identify the accused appellants

namely Laxmi Narain Pandey and Pawan Kumar Pandey, apart

from the record.

102. DW-15 is the Doctor posted in the Jail who had

tallied the identification marks of the accused person in the

hospital Mulaiza register and stated that his signature were

therein. This witness (DW-15) was recalled and he had tallied

the identification marks noted in the register from the 4

identification marks found on the person of the accused

appellants in the Court.

103. DW-16 is the handwriting and fingerprint expert who

had taken specimen signatures and thumb impressions of the

accused person namely Laxmi Narain Pandey and Pawan

Kumar Pandey as Exhibit Kha-25, Kha-26, Kha-27 and Kha-28

and tallied them with their thumb impression and signature on

the relevant documents. The report submitted by him was

proved as Exhibit Kha-33. The affidavit filed by DW-16

wherein his report, photos and negative of the thumb

impression and signatures were filed and proved was exhibited

as Exhibit Kha-34. In a gruelling cross-examination by the

prosecution, DW-16 was questioned on various aspects of the

49

report given by him to demonstrate that the thumb impression

and signature of the accused persons did not tally with their

thumb impression and signatures on various documents filed in

defence as noted above.

104. To prove the plea of alibi of accused Shyam Narain

Pandey, two witnesses DW-7 namely Sadanand Pandey and

DW-12 namely Sudhakar Pandey were produced by the

defence. Sadanand Pandey, a resident of District Ballia, in the

witness box, stated that he came to the High Court, Allahabad

in relation to his case and was staying in the City between

26.02.2006 till 28.02.2006 and on 28.02.2006 at about 7.15 PM

he had signed the affidavit before the Oath Commissioner and

before his affidavit was prepared, the accused appellant Shayam

Narain Pandey also got his affidavit prepared in another case.

105. In cross, DW-7 stated that he knew accused appellant

Shyam Narain Pandey very well as they used to meet in the

High Court Allahabad when they came for Pairvi of their cases

and that he met accused Shyam Narain Pandey in the chamber

of an Advocate about five years prior to the date of his

deposition.

106. DW-12 is Sudhakar Pandey, an Advocate of the High

Court at Allahabad, who stated that accused-appellant Shyam

Narain Pandey was staying in his house while doing Pairvi of

his case from 26.02.2006 till 01.03.2006 and, on each day, he

used to come to his house in the night at about 08.00-09.00 PM.

A suggestion was given to this witness that he was resident of

Ballia which was the place of residence of accused appellant

Shyam Narain Pandey and since he knew him well he was

making a false statement.

50

107. Placing the above evidence filed by the defence, it is

vehemently argued by Sri Dilip Kumar, learned Senior Counsel

appearing on behalf of the appellant Laxmi Narain Pandey and

Pawan Kumar Pandey that the onus to prove the plea of alibi

had been discharged by the appellants by bringing cogent

documentary and oral evidence. It is proved that the said

appellants when were traveling on 24.02.2006 from Train

No.3074 Jammu Tavi and reached at the first entry gate of the

platform No.1 of the Railway Station, Lucknow, were caught

by the T.C. (Ticket Collector) Savendra Singh and brought to

the office of Incharge who charged them for the ticket of the

general bogey with penalty, for traveling without ticket. As the

appellants could not deposit the fine, they were charged by the

officer concerned. The charge sheet No.35257 and 35258 for

two appellants namely Laxmi Narain Pandey and Pawan Kumar

Pandey; respectively had been submitted and proved as Exhibit

Kha-20 and Kha-21. The said charge sheets contain the

description of the appellants such as their parentage, residence,

post, police station and the district concerned. The time of

arrest has been indicated as 15.15 hrs dated 24.02.2006. They

were handed over to the RPF office, Charbagh, Lucknow on

24.02.2006 at about 16.40 hrs and the entry in that regard exists

in the general dairy, Jama Talashi and Khana Khuraki register

of the Railway Police Force. It was proved by DW-3 that the

appellants were sent to the lock-up and from there they were

also produced in the Court of Railway Magistrate under

custody. On 25.02.2006, sentence of 15 days imprisonment

was inflicted upon them. The entries in the Jama Talashi

register (Exhibit Kha-4) proved that a mobile charger was

found from Pawan Kumar Pandey in his personal search. Link

evidence of DW-3 based on the G.D. entry produced by the

51

defence is the proof of the fact that the appellants were in the

custody of RPF and lodged in the lock-up from 24.02.2006 till

25.02.2006. The Constable Gauri Shankar Singh who was In-

charge of lock-up proved that the appellants were in his custody

till the midnight of 24-25.02.2006 and further in the custody of

Constable Shiv Raj Prasad from midnight till 08.15 AM on

25.02.2006.

108. The crime numbers allotted to the cases lodged

against the appellants were also proved. The entries by RPF

(NR) Charbagh further prove that 15 other accused persons

alongwith two appellants were produced in the Court of

Railway Magistrate in the custody of Constable Kesar Bux

Singh on 25.02.2006. The G.D. entry in that regard had been

proved as Exhibit Kha-4. The entries in Khana Khuraki register

which is maintained about the food of the people in the lock-up

prove that all the appellants were given two time meal while

lodged in the lock-up. All the documents noted above were

summoned by the trial court and produced by the persons in

whose custody they were kept. Signatures and thumb

impression of the appellants were found at the relevant places

in the documents and they were tallied from the specimen

signatures taken in the Court by DW-16, handwriting expert

who proved that signatures and thumb impressions of both the

appellants on the documents filed in defence matched with the

specimen signatures and thumb impressions. The report of the

Additional Chief Judicial Magistrate (NR) Charbagh, Lucknow

was accompanied with register No.9 (Kha-12) and fine register

(kha-13) which further prove that case No.1440 of 2006 (Case

Crime No.780 of 2006) and Case No.1444 of 2006 (Case Crime

No.788 of 2006) under Section 137 of the Railways Act were

52

registered against the appellants Laxmi Narain Pandey and

Pawan Kumar Pandey; respectively.

109. Register No.9 Exhibit Kha-12 contain the description

such as name, parentage and residents of the accused-appellants

and it is noted therein that the total penalty of Rs.880/- each

was not deposited by the appellants and, therefore, they were

awarded 15 days simple imprisonment. It is proved from the

above document that the RPF police handed over the appellants

to the District Jail, Lucknow where they were lodged till

02.03.2006. The gate book entry (Exhibit Kha-14) till

25.02.2006 at 17.31 hrs is proof of the said fact.

110. To verify the factum of admission of the appellants in

the District Jail, Lucknow, the jail records were summoned

which included register No.1, admission register of the convict,

the register of screening of the health of the prisoners, the

register No.7 release register and the gate books dated

25.02.2006 and 02.03.2006. The jail records produced before

the trial court were proved by the officers who were responsible

to maintain the said records. The entries in the register

maintained in the jail contain the admission time and tallied the

description for securing identity of the accused appellants. The

identification marks noted in the jail record were tallied

physically from the accused-appellants present in the trial

Court.

111. DW-15, the Jail Doctor proved the record for keeping

track of health of prisoners. DW-14, Bandi Rakshak proved

continuous physical presence of both the appellants in the

District Jail, Lucknow from 25.02.2006 till 02.03.2006. The

description of relations of accused-appellants mentioned in

53

register No.1 can be tallied from the Pariwar register which was

filed in evidence by the defence as Exhibit Kha-33. Exhibit

Kha-15, Kha-17 and Kha-18 on record are receipt of payment

of penalty and fine which were pasted in register No.1. The date

of deposit of fine as indicated therein is 02.03.2006 for both the

appellants Laxmi Narain Pandey and Pawan Kumar Pandey

who were physically released only on 02.03.2006. Exhibit Kha-

14 contains the names of the appellants Pawan Kumar Pandey

and Laxmi Narain Pandey at serial No.1 and 4; respectively and

the time of release mentioned therein is 11.36 hrs dated

02.03.2006.

112. The submission, thus, is that the defence has proved

the plea of alibi with cogent evidence. All the documents

produced in defence are public documents and no doubt can be

raised about the genuineness of the same. In the light of steel

clay plea of alibi put forth by the defence, it is proved that PW-

1 and PW-2 who are related and interested witnesses are

perjured witnesses as they had specifically stated the presence

of two appellants namely Laxmi Narain Pandey and Pawan

Kumar Pandey at the place of the incident and specific role had

been attributed to them in the entire occurrence. No

independent witness was produced nor any residuary evidence

was filed by the prosecution. Once the plea of alibi is accepted,

the entire prosecution evidence has to be thrown away as

unbelievable and manufactured.

113. Pressing the plea of alibi of two appellants namely

Laxmi Narain Pandey and Pawan Kumar Pandey, it is

vehemently argued by the learned Senior Counsel that ample

material on record had been brought by the defence and the plea

of alibi had been proved. The fact that two accused appellants

54

proved to be not present on the spot itself demolishes the entire

prosecution case on the ground that the prosecution had not

presented its case in a truthful manner. In a criminal trial, it is

the duty of the prosecution to bring all circumstances of the

case in a fair and transparent manner as any falsity in the

prosecution case which goes to the root of the matter would

demolish its case as a whole.

114. It is argued by Sri Dilip Kumar learned Senior

Counsel for the appellants that the principle of falsus in uno

falsus in omnibus though has no application in India but it can

be taken into consideration as a rule of caution. The Court,

therefore, is required to examine the evidence of the

prosecution witnesses with extra caution as the presence of two

appellants namely Laxmi Narain Pandey and Pawan Kumar

Pandey at the place of the incident had been successfully

disputed by the defence. A categorical plea of alibi had been

taken on behalf of these appellants and the same was also

proved by production of cogent documentary and oral evidence.

115. Adopting the argument of the learned Senior

Counsel, Sri Durgesh Kumar Singh learned counsel for the

appellant Shyam Narain Pandey also urged that the plea of alibi

of Shyam Narain Pandey is proved from the testimony of DW-7

and DW-12 which evidence cannot be discarded by the Court.

116. Sri Rahul Mishra learned counsel for the

complainant/first informant, in rebuttal, argued that the

presence of first informant namely Atul Tripathi and another

eye witnesses PW-2 namely Rajkumar Tiwari on the spot of the

incident cannot be discarded for the minor

contradictions/inconsistencies pointed out in their testimonies.

It was proved by the eye witness PW-1 that three accused

55

persons namely Rajesh Kumar Pandey, Pawan Kumar Pandey

and Amit Kumar Pandey shot the deceased to kill him whereas

other two accused persons namely Umesh and Ramesh also

opened fires from their weapons while two other accused

namely Laxmi Narain Pandey and Shyam Narain Pandey were

exhorting them to kill sitting in the Bolero Car. From the oral

testimony of PW-1 or his statement in the first information

report, it cannot be said that all five fires opened by the accused

persons hit the deceased. The statement of PW-1 that two other

accused namely Umesh and Ramesh also fired at the deceased

while he was falling down should be read in this context only.

117. It is urged that the contention of the learned counsels

for the appellants that there were material improvements in the

testimony of PW-1 with regard to the reason of his presence on

the spot is without any substance, in as much as, the first

informant (PW-1) was confronted with his statement in the first

information report and Section 161 version only to the extent

that he did not narrate that his father (the deceased) told him to

wait at the Kesari Chauraha. The contention is that the first

information report is only an information of the incident and

cannot be treated as complete narration of the occurrence. The

discrepancy noted above is not so material so as to discard the

testimony of PW-1 recorded in the Court. The names of all the

accused persons were categorically indicated in the first

information report and any suggestion otherwise is liable to be

rejected.

118. The entire testimony of PW-1 is unshaken version of

the incident. He has categorically assigned the role of each

accused persons explaining the motive for commission of the

crime. It was proved by PW-1 that he went with his father to

56

Azamgarh but returned back early. The said statement of PW-1

is proof of the deceased having gone to the office of the District

Inspector of School (DIOS). Mere fact that Board copies were

not found on the spot cannot be a reason to discard the

testimony of PW-1 about the reason of presence of the deceased

and the witnesses on the spot. PW-2, the Peon of the institution

also gave the same reason of his presence on the spot and

proved it as well.

119. It is further argued that the fact that there are some

inconsistencies about the post being held by the deceased at the

time of his death is not relevant. It is, however, proved from the

record that on a challenge made by the deceased, the

appointment of accused Shyam Narain Pandey on the post of

Principal was cancelled as his experience certificate was found

invalid and the Board had removed him from the post of

Principal. The motive assigned to accused Shyam Narain

Pandey is evident from the aforesaid proven fact. The first

information report and the oral evidence is proof of the

existence of old dispute between the parties. The recovery

memo exhibited Ka-2 of recovery of bag and Supurdiginama

contains signature of the first informant (PW-1) Atul Kumar

Tripathi. The letter found in the bag produced in the Court

marked as Exhibit Ka-3 also contain the narration of motive

assigned to the accused persons.

120. The defence has not been able to dispute the said

letter as the writing or signature of the deceased over the same

were proved by the prosecution. It is further submitted by the

learned counsel for the first informant that in a writ petition

filed by accused Shyam Narain Pandey, the deceased was a

party and the said writ petition was dismissed on 25.07.2005. It

57

is further proved that after cancellation of the appointment of

Shyam Narain Pandey, the deceased became officiating

Principal and his signature were attested by the District

Inspector of School. The said fact is corroborated from the

testimony of PW-1 and PW-2 and the defence has failed to

discredit the said witnesses in cross.

121. The presence of PW-1, the first informant on the spot

is further proved by injuries in the postmortem report and the

contention of the defence that five shots assigned by PW-1 to

five accused persons only in view of five firearm injuries

(which included three entry and two exit wound) mentioned in

the postmortem report, is unacceptable. It is argued that since

all the accused persons were surrounding the deceased from

four sides it was possible that PW-1, the first informant, could

not count the exact fires and noted the details as to whose fire

hit the deceased. However, the version of PW-1 as to how the

deceased was killed cannot be discarded.

122. It is proved from the testimony of police witnesses

that the Investigating Officer namely the Station House Officer

of the police station concerned was not present in the police

station when the report was lodged as he was in the field doing

investigation and reached after about ½ an hour of the lodging

of the report. The police station though was only 1 KM away

but the version of PW-1 that the police could not reach the spot

also stood explained by the police witness. The time taken in

lodging the first information report is because of the fact that

the first informant, son of the deceased took time to recover

from the shock and, moreover, the first information report

lodged at about 07.45 PM is a prompt report. No delay can be

attributed to PW-1 in lodging of the said report and there was

58

absolutely no scope of deliberations.

123. As regards the time of receiving of the dead body at

the police lines, Headquarter, Azamgarh, heavily agitated by

the learned Senior Counsel for the appellants, it is argued by Sri

Rahul Mishra learned counsel for the first informant that the

police papers proved that the body was taken from the site of

the incident at about 10.30 PM. PW-4, the Investigating Officer

was consistent on this issue and had denied the suggestion that

the body had reached the police lines at 10.25 AM in the next

morning, and further stated that as per the information received

by him, the dead body reached the mortuary at about 06.00-07.00 AM. It is further argued by the learned counsel for the

first informant, that from amongst the two constable namely

Janardan Singh and Komal Yadav who took the dead body to

the Police Lines, Headquarter, Azamgarh from the spot of the

incident, one namely Komal Yadav was summoned by the

Court on the application moved by the appellants as a defence

witness. However, for the reasons best known to the appellants,

they got him discharged and his evidence was not recorded. The

contention of the learned Senior Counsel for the appellants that

the prosecution did not produce the Constables who carried the

dead body to the Police Lines Azamgarh to explain the delay in

receipt of the dead body at the police lines, thus, is liable to be

rejected.

124. So far as the entry in Form-13 of date and time

namely 28.02.2006 at 22.25 hrs (10.25 PM), it is urged that it

has to be read as the time of dispatch of the dead body from the

place of the incident and it is clear that the time of reaching of

the body at the Headquarter had not been mentioned therein, as

admittedly the distance of Headquarter from the place of the

59

incident was about 33 KM. The suggestion of the learned

counsel for the appellants that the time mentioned in the entry

in the postmortem register and G.D. of 10.45 AM dated

01.03.2006 is the time of reaching of the dead body at the

police Headquarter, is without any substance, in as much as,

there is no basis of the said suggestion.

125. The contention of the first information report being

ante-time is without any basis, in as much as, all police papers

prepared on the same date contain the proof of the first

information report being lodged and the details of the case

registered against the appellants can be found therein. Section

161 Cr.P.C. Statement of PW-1 (the first informant) was also

recorded on the same date and the inquest report indicate that

the inquest was completed by 10.25 PM. The special report

under Section 157 Cr.P.C. was sent on the date of the incident

i.e. on 28.02.2006 as was proved by PW-6, the Constable

Moharir with the G.D. entry No.40 exhibited as Exhibit Ka-18.

It was also proved that the Constable 694 Ram Surat Yadav

who went to serve the special report came back on the next date

and the return of the said Constable was noted in G.D. 21/

01.03.2006 at about 15.45 hrs, which was proved by PW-6.

126. The endorsement of receiving of the special report by

the Chief Judicial Magistrate dated 04.03.2006 would,

therefore, be of no relevance. It is stated that the copy to the

Chief Judicial Magistrate was sent through the Circle Officer

and no suggestion otherwise had been given to PW-6 to

confront him on the said fact. The contention of the learned

Senior Counsel for the appellants about the first information

report being ante-time on the basis of alleged delay in sending

the special report under Section 157 Cr.P.C is, thus, liable to be

60

rejected.

127. On the issue of delay in sending the special report,

reference has been made to the judgement of the Apex Court in

Ombir Singh Vs. State of U.P.

11

to argue that even the

alleged delay in receiving the report by the judicial Magistrate

is not fatal to the prosecution case.

128. It is, thus, argued that the prosecution has proved the

place, date and time of the incident as also the manner in which

the murder was caused by production of two eye witnesses who

remained intact throughout their deposition in the Court. The

involvement of the appellants in the crime in question is, thus,

proved by the prosecution beyond all reasonable doubt.

129. On the plea of alibi, it is urged by Sri Rahul Mishra,

the learned counsel for the first informant that the timing of the

appellants traveling ticket-less and then going to the prison for

non-deposit of the meager amount of Rs.380/- each, as fine to

the Ticket Collector, is noteworthy. The route of travel taken by

the appellants is not proved. No luggage was found from the

possession of the appellants in frisking except one mobile

charger. No evidence could be produced by the defence to

explain the said fact. There is no evidence that the appellants

were bereft of money or their pockets were snatched. The

appellant Laxmi Narain Pandey who claimed the plea of alibi is

a very well-off person who owned one intermediate college and

one degree college it is difficult to believe rather it is simply

unbelievable that he would prefer not to deposit the meagre

money of Rs.380/- to invite imprisonment for 15 days. For a

respectable person of his stature, this story cannot be believed.

11. 2020 AIR SC 2609

61

It is also not explained as to why family members of appellants

Laxmi Narain Pandey and Pawan Kumar Pandey did not come

forward to deposit the fine, in case, it is accepted without

admission that they were bereft of money, and when it has

come in the evidence of defence witness that the information of

the arrest was given to the family members of the appellants.

130. He contends that it is further noticeable that the fine

which the appellants did not deposit earlier either before the

Ticket Collector or before the Railway Magistrate and prefer to

go to the prison, was deposited on the very next day of the

incident i.e. 02.03.2006. Further the first information report, in

the instant case, was lodged on 28.02.2006 naming both the

appellants. Had they been in prison they could have brought the

said fact before the Investigating Officer. No application had

been given before the Investigating Officer. No plea of alibi

was taken by the said appellants during the course of

investigation nor any application for discharge was moved

before the Court concerned at any point before the

commencement of trial.

131. There is nothing on record that the plea of alibi was

taken by appellants Laxmi Narain Pandey and Pawan Kumar

Pandey in any proceeding prior to the submission of the charge

sheet in the Court and their committal to the Sessions Court,

though they had ample opportunity to do so. For the first time,

plea of alibi was taken in their statement under Section 313

Cr.P.C. recorded on 01.05.2008. It is, thus, argued that the plea

of alibi taken after two years of the lodging of the first

information report in itself is proof of the fact it was an

afterthought.

62

132. Further, no application was moved before the

Railway Magistrate to secure the file of the case or the order of

release of the appellants passed by him and the said records

could not be secured by the trial Court on account of belated

plea. None of the defence witnesses had identified the accused-

appellants and the identification by them on the basis of papers,

which were manufactured for the case, will not take the case in

favour of the defence. The interpolation and overlapping in the

documents proved in defence had been suggested to the defence

witnesses and they could not come out with any plausible

explanation. The matching of signatures and handwriting of the

accused appellants Laxmi Narain Pandey and Pawan Kumar

Pandey by DW-16 is of no relevance, in as much as, the

matching of signatures and thumb impressions of the accused

persons were not made from the admitted thumb impression or

signature. The comparison made from sample signature and

thumb impression taken in the Court after their accusation for

involvement in the commission of murder was a baseless

exercise. Even otherwise, the credibility of DW-16, the

handwriting expert, had been impeached in the cross. His

testimony is liable to be rejected as such.

133. Learned AGA adding to the arguments of Sri Rahul

Mishra learned counsel for the first informant submits that the

recovery memo of bag and Supurdiginama Exhibit Ka-2 proved

by the prosecution witnesses cannot be discarded for any doubt

about the entry in the case diary. The letter which was found in

the bag was part of the case diary. There is no suggestion of

plea of alibi to PW-1, the eye witness and the plea was taken

for the first time during the course of the examination of the

accused appellants under Section 313 Cr.P.C.

63

134. It is urged that from the version of DW-16, it is

evident that he took sample signature in the Court and not much

can be said about the report of matching of the said signature

and thumb impression from the document presented in the

defence. In any case, the plea of alibi of the defence is not

proved by cogent positive evidence and the documentary

evidences produced cannot be attached credence as it is

admitted to the defence witnesses that none of the documentary

evidences brought in the Court from the District Jail, Lucknow

were sent in sealed cover. The possibility of interpolation,

forgery in the defence documents, therefore, cannot be ruled

out. Learned AGA has relied upon the judgement of the Apex

Court in Rajesh Singh & others Vs. State of U.P

12

.

135. In sum and substance, it was argued by both the

counsels for the first informant and the learned AGA that the

judgement of the trial court being exhaustive appreciation of the

evidence on record cannot be interfered and the appeal deserves

dismissal.

136. In rejoinder, Sri Dilip Kumar learned Senior counsel

for the appellants has reiterated his previous contentions about

the testimonies of prosecution witnesses and the documentary

evidences prepared by the formal witnesses during the course of

investigation. He again presses the plea that the first

information report and all other related papers including inquest

were prepared ante-time for two reasons, firstly, that the

prosecution had utterly failed to explain the delay in reaching of

the dead body at the Police Headquarter; i.e. at about 10.45

AM, inference of which can be drawn from the material on

record. And secondly, the corroborative argument for the first

122011 (11) SCC 444

64

information report being ante-time is the delay in sending the

special report which was received by the Magistrate on

04.03.2006. It was urged that no definite reason of presence of

the witnesses on spot of the incident could be given by the

prosecution. The fact that the deceased alighted from the bus at

the site of the incident is also not proved by any material such

as bus ticket or the answer books which were supposed to be

brought by the deceased. The bag allegedly found besides the

dead body was introduced in the case diary and not noted in the

inquest in the relevant column. The recovery memo of the bag

was subsequently prepared document and had been introduced

at the instance of the first informant (PW-1) only to show that

the deceased was traveling. The Investigating Officer (PW-4)

was confronted about the interpolation in case diary of the word

“Bag” which he could not explain.

137. It is contended that the defence plea of alibi is proved

by the official document summoned by the Court. The report

received from the Court of Railway Magistrate, Exhibit Kha-10

& Kha-11 contain entries of the criminal case registered against

the appellants and their lodging in the District Jail, Lucknow.

The fine register Exhibit Kha-13 is an attested copy which

again proves the criminal case registered against the appellants

and the proceedings undertaken against them. The identification

marks on the person of the accused-appellants had been tallied

in the Court. The handwriting expert report is in favour of the

appellants. No fault could be attributed to his report on account

of tallying of sample signature which was taken in the Court.

138. It is vehemently argued by Sri Dilip Kumar learned

Senior counsel for the appellants that watertight proof of

steelclay plea of alibi negates the whole prosecution case.

65

139. Lastly, it was added by Sri Rahul Mishra learned

counsel for the first informant that none of the registers

produced by the defence witnesses, were sealed when they were

brought in the Court. There were overlapping in the thumb

impressions of the accused-appellants in all the defence

documents especially the release register. Had this been the

situation, their release from the jail was not possible which fact

was admitted by the defence witnesses on confrontation.

140. Tallying of the specimen signatures of the accused

persons by DW-16 will not be read in their favour as the said

report cannot be a proof of the fact of genuineness of the entries

in defence documents. In any case, the defence while taking the

plea of alibi has to stand on its own leg and prove by cogent

evidence that the accused-appellants could not be present at the

place of the incident in all probabilities. There is no record of

the registration of the alleged criminal case under Section 137

of the Railways Act of the Court of Railway Magistrate and the

alleged release order on deposit of fine is also not on record.

The manufactured documents produced by the defence are

liable to be thrown as such.

Analysis:-

141. Having heard learned counsel for the parties and

perused the record, in light of the arguments of the learned

counsel for the parties and the material on record, following

issues arise for consideration and pointwise analysis of the

evidence on the same is as under:-

A. The first information report being ante-

time:-

66

142. First ground of challenge to the conviction of the

appellants is that the case of the prosecution is full of falsity

since the very inception. The first information report which set

the criminal action into motion itself was ante-time. To buttress

this submission, the defence documents namely Exhibit Kha-1

and Kha-2, the postmortem register and the G.D. of the police

lines (Headquarter) filed by D.W-1, the clerk posted in the

police lines are pressed into service to assert that the body of

the deceased Rajendra Prasad Tripathi was received in the

police Headquarter on 01.03.2006 at about 10.45 AM. The

corresponding entry has to be seen in the police paper form-13,

(

चालान लाश

) (Exhibit Ka-5) wherein the relevant column is to

record the time of reaching of the dead body at the police

Headquarter and of sending the same to the

dispensary/mortuary for the postmortem. As per the statement

of PW-1, after half an hour of lodging of the first information

report, the Investigating Officer reached the spot and started

inquest within 2 to 4 minutes of arrival. The body was removed

from the place of the incident at about 10.30 PM. The first

Investigating Officer Kamlesh Narayan Pandey (PW-4) who

prepared the inquest stated that he could not tell as to when the

dead body was sent to the mortuary from the spot of the

incident and stated that he gave the responsibility of sending the

dead body to the mortuary, to his subordinate S.I. Lalta Yadav

and left the place to arrest the accused. PW-4 further stated that

he did not know as to whether the body was sent or it remained

at the place of the incident throughout the whole night. In the

morning, however, he got the information that the body was in

the mortuary and the said information was received by him

through a staff of the police station at about 06.00-07.00 AM.

67

143. The postmortem doctor PW-3 stated that the papers

relating to the postmortem were received by him on 01.03.2006

at about 11.15 AM and the postmortem was conducted by him

at about 11.30 AM. The estimated time of death as recorded by

the doctor was about ½, that means 12 hours. In the postmortem

report, it was indicated that rigour mortis was present in the

body. Two Constables namely Janardan Singh and Komal

Yadav who took the body for postmortem were the best persons

to prove as to when they had deposited the body in the police

lines and how much time they had taken to cover the distance

of 33 KM from the place of the incident to the police

Headquarter. None of them was produced in the witness box

and in view of the statement of the doctor coupled with the

entry in Exhibit Kha-1 and Kha-2, it is clear that the body was

sent to the mortuary at about 10.45 AM . As per the statement

of PW-1, the body was dispatched from the place of the

incident at about 10.30 PM, it cannot be accepted that the

Constables carrying the dead body took 12 hours to travel the

distance of only 33 KM. Further from the condition of the body

and the opinion of the doctor, the gap in the postmortem and the

time of death was about 12 hours which means that the death

could be caused either around 11.30 PM or thereafter.

144. The above facts put together with the entry in form-

13 Exhibit Ka-5 clearly prove that the incident had occurred

around midnight or after 11.30 PM. The first information report

lodged at 19.45 PM (07.45 PM), thus, becomes ante-time. All

related police papers to the case prepared by the Investigating

Officer, also, became ante-time at one go. As the prosecution

had changed the time of the incident, its entire story becomes

false. Further the check report was received by the concerned

68

Magistrate on 04.03.2006. The delay in sending the special

report in contravention of Section 157 Cr.P.C. further

strengthen the case of the defence about the first information

report being ante-time. The prosecution has utterly failed to

establish the time of reaching of the dead body in the police

Headquarter. Only inference, thus, can be drawn is that the dead

body reached at the police Headquarter at 10.45 AM, in the

morning of 01.03.2006 and it was straightway sent to the

mortuary where it was received at 11.15 AM by the doctor who

conducted the postmortem. This discrepancy in the prosecution

case creates a deep dent in the prosecution story, which is liable

to be thrashed away.

145. Considering the said submissions and the rebuttal by

Sri Rahul Mishra learned counsel for the first informant, we

may first record that in the relevant column of form-13 (Exhibit

Ka-5), the time of arrival of the dead body at the police

Headquarter and the time of sending it to the mortuary was

required to be recorded. These entries are in the nature of check

and balance to ensure transparency in the process of

investigation. As per the procedure in the Criminal Procedure

Code during preparation of the inquest, in accordance with

Section 174 Cr.P.C., the Investigating Officer has to draw the

report of the apparent cause of death describing such wounds

and marks of the injuries as may be found on the body and

stating in what manner or by what weapons or instrument (if

any) such marks appeared to have been inflicted. After drawing

up the said report (inquest report) he has to forward the body,

with a view to it being examined, to the nearest civil surgeon or

other qualified medical man appointed in this behalf by the

State Government. While sending the body, the state of weather

69

and distance and other factors have to be kept in mind so as to

avoid the risk of putrefaction of the body on the road which

would render such examination useless. In order to check any

mishandling of the dead body during its transportation from the

place of the incident to the mortuary, the procedure of sending

the dead body to the police Headquarter and making entry of

the same in form-13 (police papers) has been prescribed, so that

in case of any mishandling of the dead body during the course

of transportation, responsibility can be fixed on the erring

officials and any factor which may arise on account of such

eventuality may be explained.

146. Section 157 Cr.P.C. mandates that the report of the

commission of an offence, which an officer In-charge of the

police station is empowered under Section 156 to investigate,

shall be sent forthwith to a Magistrate empowered to take

cognizance of such offence. The purpose for forthwith sending

the report to the concerned Magistrate is to keep the concerned

Magistrate informed of the investigation of the cognizable

offence so that he may be able to control the investigation and

if required, to issue appropriate directions. The Criminal

Procedure Code, thus, provides for internal and external checks;

one of them being the sending of the copy of the first

information report to the concerned Magistrate at the earliest.

Failure to send the copy of the first information report to the

Magistrate may cast a shadow on the case of the prosecution,

may raise a suspicion that the first information report was a

result of consultation and deliberations and it was not recorded

on the date and time mentioned in it, and may result in holding

that the investigation is not fair and forthright.

147. However, the settled law in a matter of delay in

70

sending the copy of the first information report to the

Magistrate, i.e. violation of Section 157 Cr.P.C. is, that the said

circumstance alone would not demolish the other credible

evidence on record. It would only show the laxity or

carelessness on the part of the Investigating Agency and that it

was not prompt as it ought to be. However, it would depend

upon the facts of the particular case that an unexplained delay

may affect the prosecution case adversely. Such an adverse

inference may drawn on the basis of the attending

circumstances involved in a case.

148. Reverting to the facts of the instant case, we may note

that the entries in form-13 Exhibit Ka-5 police paper was

prepared and proved by the Investigating Officer Kamlesh

Narayan Pandey who entered in the witness box as PW-4. A

suggestion was given to PW-4 that at the time of preparation of

the inquest, the first information report was not in existence

which was categorically denied by him. Further, as noted above

from the statement of PW-6, Constable Awdhesh Kumar,

posted as Constable Moharir in the police station concerned, the

first information report, i.e. the check report Exhibit Ka-16 was

prepared on a written report given by PW-1 Atul Tripathi at

about 19.45 hours (07.45 PM). The G.D. entry of the check

report at Rapat No.35 was proved by bringing the original G.D.

and tallying it with the carbon copy prepared in the same

process, by PW-6 marked as Exhibit Ka-17. The Investigating

Officer namely PW-4 who conducted the proceedings on

28.02.2006, i.e. the date of the incident, proved that the entries

in form No.13 Exhibit Ka-5 were made by S.I. Lalta Yadav on

his dictation at the place of the incident and the body was sent

for the postmortem alongwith this paper and other related

71

documents.

149. A perusal of form-13 indicates that in the relevant

column, name of the officer who sent the dead body is mentioned

as K. N. Pandey. The date and time of sending of the dead body,

noted in the relevant column is 28.02.2006 at 22.25 hours (10.25

PM). The names of two Constables, the Constable No.28

Janardan Singh and Constable 484 Komal Yadav, Police Station

Atraulia, District Azamgarh are also indicated in the relevant

column of form-13. In the same writing, in the column for arrival

of the dead body in the police Headquarter, the date 28.02.2006,

time 22.25 hours is mentioned, whereas the distance of the police

Headquarter from the place of the incident is indicated as 37 KM

in the relevant column therein. It was noted therein that the dead

body was sealed in a cloth and sent for postmortem with the

police personnel alongwith relevant papers and the result be

intimated.

150. This paper (form-13) is countersigned by the Inspector

Police lines, Azamgarh on 01.03.2006 and besides his signature

the entries of the postmortem register and G.D. report No.15

dated 01.03.2006 at 10.45 AM have been noted in the relevant

column of noting the time of receipt of the dead body at

the Police lines and sending it to the Mortuary. The

column of receipt of the body in the police Headquarter and

dispatch of the same to the dispensary was obviously required to

be noted by the concerned police officer posted at the

Headquarter. It seems that the concerned officer instead of

making the correct entry casually extracted the entries in the

postmortem register and G.D. Rapat putting his signature on the

form-13, while sending the dead body for the postmortem. The

time gap in receipt of the body at the police lines and sending of

72

the same to the mortuary, thus, cannot be explained from the

entries in form-13 Exhibit Ka-5.

151. However, the said lacuna found in preparation of this

document Exhibit Ka-5 form 13 चालान लाश does not become a

proof of the fact that the body was received in the police

Headquarter at 10.45 AM or it was not dispatched from the place

of the incident after inquest at about 10.25 PM as recorded in the

relevant entry in form-13 signed by the Investigating Officer,

(PW-4), proved to have been prepared in the handwriting of S.I.

Lalta Prasad, This fact is further corroborated from the statement

of PW-1, the first informant, who stated that the body was

dispatched from the place of the incident at about 10.30 PM after

it was sealed. The entries in the postmortem register and G.D. of

the police Headquarter Exhibit Kha-1 and Kha-2 cannot be read

as a proof of the time of receiving of the dead body at the police

Headquarter. Those entries only show that the body was sent for

postmortem from the police Headquarter at about 10.45 PM and

was received by the doctor alongwith the papers at about 11.15

AM as has been proved by the Doctor PW-3 in his deposition in

the Court.

152. As regards the submissions of the learned Senior

Counsel for the appellants that the prosecution had failed to

explain the time taken in transportation of the dead body from

the place of the incident to the police Headquarter by producing

the best evidence in the shape of two Constables who carried

the dead body, relevant is to note that the trial court had

considered this aspect and noted in its order that the accused-

appellants moved an application for summoning of Constable

Komal Yadav, one of the two Constables who carried the dead

73

body. On the said application, the trial court had summoned the

said witness to depose on behalf of the accused-appellants.

However, the said witness who could throw any light on this

issue as he was got discharged from the Court on another

application of the defence. The contention of the learned

counsel for the appellants that the prosecution had suppressed

the best evidence in the shape of the statement of the Constable

who carried the dead body, therefore, is liable to be thrown as it

is.

153. Further contention of the learned counsel for the

appellant is that though the said witness namely Constable

Komal Yadav was present in the Court who could throw light

on the above noted fact of the case but he was not cross-

examined by the Court even after he was discharged as a

defence witness and it was always open for the Court to

examine him as a Court witness when the witness was

available.

154. We do not find any substance in this submission, in

as much as, according to us, on perusal of the entries in form-13

and the other corroborative evidence on record, though the

correct time of arrival of the dead body in the police

Headquarter cannot be ascertained but the said fact in itself

would not create any dent in the prosecution story. The lapse on

the part of the officer posted in the Police Headquarter in not

making correct entries in the relevant column of form-13

Exhibit Ka-5, in itself, would not make the first information

report ante-time or demolish the prosecution case.

155. For the proven facts of lodging of the first informant

report at 19.45 hours (07.45 PM) on the basis of the written

74

report given by PW-1, no contrary suggestion could be given to

PW-6, Constable Moharir who prepared the check report and

made G.D. entries of lodging of the first information report at

the police station at 19.45 hours.

156. Further, PW-6, in the examination-in-chief proved

that the special report of the case was sent to the Senior Officer

on 28.02.2006 through Constable 694 Ram Surat Yadav and

entry of the same was made in G.D. No.40 which was proved

being in his handwriting and signature as Exhibit Ka-18. The

paper No.129 of the special report prepared by him being in his

handwriting and signature was also proved as Exhibit Ka-18.

PW-6 was confronted on the entries of G.D. by making

suggestions of overwriting on the same which was explained by

PW-6 by saying that the overwriting was made to make

necessary correction and it was done by him. He proved that the

G.D. dated 28.02.2006 from 19.45 hours on 28.02.2006 till the

morning was prepared by him. The certified photo copy of the

G.D. of the registration of the case was filed by PW-6 and

marked as Exhibit Ka-19. It was categorically stated by PW-6,

in cross, that the special report was sent to the District

Magistrate, Azamgarh, Superintendent of Police, Azamgarh,

Additional Superintendent of Police, Azamgarh, Sub Divisional

Magistrate, Budhanpur and Circle Officer, Budhanpur,

Azamgarh.

157. He further proved, in cross, that Constable Ram Surat

Yadav with whom the special report was sent, returned to the

police station on 01.03.2006 at 15.45 hours and entry in that

regard had been made at G.D. No.21. The original G.D. dated

01.032006 was forwarded to the Circle Officer on 02.03.2006

by the Station House Officer. On the statement made by PW-6

75

the Constable Moharir who himself sent the special report to

the Senior Officials, that the Constable returned to the police

station on 01.03.2006 and the entries in G.D. No.21 proved by

him, no contrary suggestion had been given by the defence. In

fact this witness was not confronted on this issue.

158. From the statement of PW-6, noted above, it is, thus,

proved that the special report of the incident was sent to the

Senior Officials on the date of the incident itself i.e. 28.02.2006

and the entry in that regard had been made in G.D. No.40 which

also could not be confronted by the defence.

159. It was brought before us by the prosecution that as per

practice the special report to the concerned Magistrate is being

sent through the Circle Officer. Once the special report was sent

on the same day by the police official of the police station

concerned (PW-6) to his Senior Officials, any delay on the part

of the Circle Officer to forward the report to the concerned

Magistrate or delay on the part of the Magistrate in making

endorsement on perusal of the special report, would not amount

to non-compliance of the provisions of Section 157 Cr.P.C.

which cast a mandate on the officer In-Charge of the police

station to forthwith send the report of the commission of an

offence to the concerned Magistrate. In the fact of this case, it is

proved by the prosecution that in compliance of Section 157

Cr.P.lC., the special report was immediately forwarded to the

Senior Officials including the Circle Officer on the same day,

i.e. on 28.02.2006 through the Constable of the police station

concerned. Any further delay which had resulted in the

endorsement of the date 04.03.2006 by the Magistrate cannot be

attributed to the officer In-charge of the police station

concerned.

76

160. Both the above arguments made by the learned

counsels for the appellants to challenge the date and time of

lodging of the first informant report or terming the first

information report as ante-time, are liable to be rejected. From

the evidence of PW-6 and PW-4 as also the relevant papers

produced and proved in the Court, it is established that the first

information report of the incident was registered at the police

station, Atraulia, District Azamgarh on 28.02.2006 at about

19.45 hours, which was at a distance of 1/2 KM from the place

of the incident. On receipt of the said report, police reached at

the place of the incident and the Investigating Officer who was

in the field also reached at the spot and conducted inquest of the

dead body. The inquest and all other relevant papers were got

prepared by the Investigating Officer (PW-4) through his

assistant S.I. Lalta Yadav, under his supervision.

161. The dead body was then sealed and sent for the

postmortem through Constable 484 Komal Yadav and

Constable 28 Janardan Singh to the police Headquarter at about

10.25 PM. The dead body in sealed state alongwith police

papers was received by the doctor namely PW-3 who conducted

autopsy at about 11.15 AM on the next date i.e. 01.03.2006.

The postmortem was conducted on 01.03.2006 itself at about

11.30 AM. The opinion of the doctor in the postmortem report

about the estimated time of death being half day does not fix

the time of death to 11.30 PM or thereafter rather the doctor

who conducted the postmortem namely PW-3 stated that the

proximate time stated by him was only estimated time and the

death could have been caused on 28.02.2006 at about 06.00

PM.

162. On this submission of the doctor in his examination-

77

in-chief, he was confronted in cross, wherein he had

categorically denied that his statement that the death could have

been caused at about 06.00 PM on 28.02.2006 was wrong and

was made only to give shape to the instant case.

163. The contention of the learned counsel for the

appellants that even as per the postmortem report, the death

could not have been caused at about 06.00 PM as per the noting

in the check FIR, therefore, is liable to be rejected.

164. In the entirety of the evidence on record, all

arguments pertaining to the FIR being ante-time are liable to be

turned down.

B. Presence of the witnesses on the spot:-

165. There are two eye witnesses of the incident. PW-1

Atul Tripathi is the son of deceased Rajendra Prasad Tripathi

whereas PW-2 Rajkumar Tiwari was a peon in Maruti Inter

College, the institution wherein deceased Rajendra Prasad

Tripathi was a lecturer. Both the witnesses stated that they were

present on the spot and described the occurrence having seen

from their own eyes.

166. To demolish the presence of eye witnesses on the

spot, it is argued by the learned Senior counsel for the

appellants that the reason for the presence of the witnesses

(PW-1 & PW-2) near the Kesari Chauraha, the place of the

incident, was not proved by the prosecution. As per the

statement of these witnesses, the deceased went to the office of

the District Inspector of School, Azamgarh on the fateful day

and while returning from the said office by a roadways Bus he

alighted at the Kesari Chauraha. The witnesses namely PW-1

78

and PW-2 were present on the spot on the instructions of the

deceased as they were to help him alighting the bus with answer

books of the Board examination. From the record as also the

statements of these witnesses, it is evident that no answer book

was found besides the dead body. In the inquest report, there is

no mention of any article found besides or from the dead body.

As per the prosecution, the deceased was traveling by a

roadways bus, the bus ticket or pass to prove the factum of

traveling was also not brought in evidence by the prosecution.

PW-1, in cross, admitted that no bus ticket was found from the

bag allegedly recovered besides the dead body by the police

and no travel pass was found from the clothes of the deceased,

PW-1 stated only Rs.250/- were taken out by the police from

the pocket of pant of his father but no memo was prepared of

the said recovery. Further, PW-1 was not even sure as to the

post which his father was holding on the fateful day or the

charge of which was about to be given to him on 01.03.2006. In

one breath, PW-1 stated that his father was supposed to be

given the charge of the Examination Controller and, in the

second, that he was given the charge of the Principal of the

institution. It is admitted by PW-1 that he had not seen any

certificate or any document pertaining to handing over charge

of the office to his father. He admitted that he could not come

to know as to whether the Board copies or any other material

was received by his father from the office of the District

Inspector of Schools.

167. Allegedly, a memo of recovery of bag found besides

the dead body had been prepared by the Investigating Officer

and proved as Exhibit Ka-2. The recovery memo records that

one typed application signed by deceased Rajendra Prasad

79

Tripathi dated 25.02.2006 and one service book as also a letter

dated 17.02.2006 addressed to the District Inspector of School,

Azamgarh were found inside the bag. All these documents

including the bag were handed over to the son of the deceased

namely PW-1. It has come in the evidence of PW-4 that the

relevant column No.6 in the inquest of description of articles

found besides the dead body was blank, only explanation given

by him was that it was left by mistake. PW-4 was also

confronted that there was an interpolation in the case diary

dated 28.02.2006 about the recovery of bag and the application

found in it as they were not mentioned in the case diary initially

and an interpolation about these articles, no plausible

explanation could be furnished by PW-4, Investigating Officer.

It is urged that the Court had also observed that the word “bag”

was interpolated in between two words namely “

िमटी

”

कबजे

in the

case diary which made no sense and this fact further proves that

the memo of recovery of bag Exhibit Ka-2 was prepared later as

an afterthought and entered in the case diary by interpolation so

as to give color to the case of the prosecution by adding the

proof of the deceased alighting from the bus at the Kesari

Chauraha.

168. The contention is that the blank space in the inquest

which was to be mandatory filled up by the Investigating

Officer to corroborate the recovery of the bag from besides the

dead body creates a serious doubt about the presence of the eye

witnesses. Once the prosecution has failed to prove the reason

of presence of the eye witnesses on the spot, the entire story of

the deceased alighting the bus and the prosecution witnesses

present on the spot to receive him falls short of relevant details.

In any case, the prosecution had not brought any evidence on

80

record to prove that the deceased went to the office of the

District Inspector of Schools and returned by a roadways Bus at

the time when the incident had occurred. The statement of PW-

1 that he accompanied to his father to Azamgarh and returned

back early had also been made just to fill the blanks noted

above.

169. It is submitted that PW-1 was further confronted as to

the residence of other two witnesses namely Krishna Kumar

Tiwari and Arun Kumar Pandey who allegedly accompanied

the eye witnesses PW-1 & PW-2. It has come in the evidence

of PW-1, in cross, that the witnesses were residents of different

villages and no plausible reasons of their presence on the spot

could be given by the prosecution. Even otherwise, those two

persons who allegedly accompanied the eye witnesses (PW-1 &

PW-2) did not enter in the witness box.

170. Much emphasis has been laid to the fact that there

was a bus stop about 250 paces towards the west from the

Kesari Chauraha and there was no reason for the bus to stop at

the busy crossing. It was also argued that on the date of the

incident someone else was holding the charge of the Principal

and hence the suggestion of enmity of the accused persons

including Shyam Narain Pandey with the deceased was without

basis.

171. For another motive brought by PW-1 i.e. for enmity

of the deceased with accused Laxmi Narain Pandey about

money received from M.P. fund, it was argued that the

allegation about the said dispute was a concocted story. It is

known to all that any amount received in the college account

from the government or from a public fund would be deposited

81

in the joint account of the Manager and the Principal which is

to be operated with their joint signatures. It was, thus, not

possible for the deceased Rajendra Prasad Tripathi to transfer

the said money on his own to the Chief Development Officer.

This story was created by PW-1 only to implicate the Manager

Laxmi Narain Pandey.

172. The defence had also given a suggestion in the cross-

examination of PW-1 that the deceased went to the house of

Paras Nath Mishra, Ex-Principal, who died on the same date

and while he was returning back, some unknown persons out of

enmity had caused his murder. It was placed by the learned

Senior Counsel for the appellants that the house of Paras Nath

Mishra was nearby the place of the incident.

173. With regard to PW-2, another eye witness, it was

argued that his credentials are doubtful in as much as, he

admitted that he was a life convict in a case alongwith the

accused Laxmi Narain Pandey. It is urged by Sri Durgesh Singh

learned Advocate that PW-2 had been brought in picture by the

prosecution in order to falsely implicate Shyam Narain Pandey

who was previously Principal of the institution and with whom

PW-2 had grudges. On confrontation, in cross, PW-2 admitted

that his salary was stopped by the accused appellant Shyam

Narain Pandey and he was suspended and finally four days

before his superannuation, he was terminated on account of

long unauthorized absence. It is submitted that the reasons for

false implication of appellant Shyam Narain Pandey at the

instance of PW-2 are reflected in the cross-examination of PW-

2. Further, PW-1 admitted that PW-2 was very close to the

deceased. Being an interested and inimical witness, the

testimony of PW-2 is liable to be discredited.

82

174. The record also indicates that PW-2 was pressurized

by the family members of the deceased to depose against the

appellants and he had entered in the witness box after receipt of

money. Several contradictions in the testimony of PW-2 were

brought before the Court to vehemently argue that the presence

of PW-2 was highly improbable at the spot of the incident and

no plausible reason could be given by PW-2 for his presence on

the spot. There is also a suggestion of political rivalry of PW-2

with appellant Laxmi Narain Pandey on account of election for

the post of Gram Pradhan held in the year 1999-2000. PW-2

was also contradicted with his statement under Section 161

Cr.P.C to demonstrate that he did not state therein the motive of

causing murder or enmity of Laxmi Narain Pandey with the

deceased. The contention is that the statement of PW-2 that

Laxmi Narain Pandey used to pressurize the Principal of the

institution namely the deceased herein, in money matters is

nothing but an improvement on material facts. Further, the

place where the witnesses were allegedly waiting for the

deceased though had been shown in the site plan but the

Chowki or wooden bench on which they were sitting according

to PW-2, was not shown by the Investigating Officer therein.

PW-2 admitted that he did not meet the Investigating Officer at

the spot soon after the incident and his statement was recorded

after 20-25 days of the occurrence.

175. With the above, it was vehemently argued by the

learned Senior Counsel for the appellants that the statements of

eye witnesses PW-1 and PW-2 were lacking in material details

as to the reason of their presence on the spot. It is further

contended that PW-1 had given a detailed description of the

manner in which his father was killed but did not give the

83

registration number of the vehicle which was allegedly used in

the killing. The place of the incident which was Kesari

Chauraha was main Chauraha of Atraulia town and the police

station was nearby, about 1 KM from the place of the incident,

when the accused persons were carrying grudges and planned to

kill the deceased, they could have chosen some other place

rather than a busy crowded place to commit the crime in such a

daring manner, exposing themselves. The entire family, father

and five sons, had been implicated in order to eliminate the

whole family because of the alleged enmity of the deceased

with two co-accused, appellants Laxmi Narain Pandey and

Shyam Narain Pandey.

176. The oral testimonies of the eye witnesses, therefore,

are full of embellishments, exaggerations and improbabilities,

their presence on the spot is liable be discarded as such.

177. To deal with the submissions on the issue of presence

of eye witnesses at the spot, we may record, at the outset, that

from the own version of the defence, there is no dispute about

the place of the occurrence where the dead body of Rajendra

Prasad Tripathi was found, which was Kesari Chauraha,

Atraulia located at a distance of about ½ KM from the police

station Atraulia wherein the first information report was lodged.

The place of the incident is also proved from the suggestion

given by the defence that the deceased was killed while he was

coming from the house of Paras Nath Mishra, the Ex-Principal

of the institution who died on the same date, and that his house

was nearby the place of the incident.

178. As concluded in the preceding paragraphs, the first

information report of the incident was a prompt report lodged

84

by the son of the deceased namely Atul Tripathi who had

entered in the witness box as PW-1. The written report given in

the handwriting of PW-1 was proved as Exhibit Ka-1. The first

information report was lodged within 1 hour and 45 minutes of

the occurrence and the period taken in lodging the report had

been explained by PW-1, in cross, when he stated that he went

near his father after the accused persons fled away in the Bolero

car and the people present on the spot kept hold of him for

about 10-15 minutes while he was crying. His mother and sister

then came on the spot and they also kept crying. He then went

to the place known as Samadhi Sthal Balakdas which was about

10-12 feet on the north side of the road from the place of the

incident. It took about twenty minutes to scribe the report and

then he left for the police station on foot where he reached

within 15 minutes. The police personnel came to know about

the murder only when he gave the report and after lodging the

same they came alongwith him to the place of the incident.

Nothing contrary could be brought in the testimony of PW-1

about writing the report and going to the police station to lodge

the same. For the son who had witnessed the murder of his

father, this explanation, in cross, about the time taken in going

to the police station seems convincing. In a categorical

statement, PW-1 stated as to how the murder had been caused.

He had given categorical details as to how the accused persons

came in a Bolero Car and five of them got down, gheroed the

deceased and killed him while two of the appellants were

exhorting others to kill.

179 It has come in the evidence of PW-2 that the Bolero

car was without a number plate and the said fact is further

corroborated from the statement of the Investigating Officer

85

recorded in the recovery memo where he stated that the

confiscated Bolero car, which was the case property exhibited

as material Exhibit Ka-8, did not carry any number plate, i.e. it

had no registration number.

180. Appreciating the testimony of PW-1, it may be noted

that he had given orientation of the place of the incident, the

motive for causing the murder, reason of his presence and that of

other witnesses on the spot and the manner in which the murder

was committed by the appellants. The manner of occurrence

narrated by PW-1, son of the deceased is corroborated from the

testimony of PW-2 to whom the suggestion of enmity is with

one of the appellants namely Shyam Narain Pandey. The motive

stated by PW-1 for commission of the crime had been reiterated

by PW-2 in his own way. The fact that the salary of PW-2 was

withheld or he was suspended or he was terminated prior to his

superannuation had nothing to do with six other appellants

namely Laxmi Narain Pandey and his five sons. There was no

suggestion of enmity of PW-2 with any of these appellants

except appellant Shyam Narain Pandey. Even it has come in the

cross-examination of PW-2 that he was someway related to

accused Laxmi Narain Pandey and had been his accomplice in a

crime wherein he was convicted alongwith appellant Laxmi

Narain Pandey and later acquitted in an appeal by the High

Court. There is no reason for PW-2 to falsely implicate the

accused persons namely Laxmi Narain Pandey and his sons. The

suggestion of political rivalry of Laxmi Narain Pandey with

PW-2 Rajkumar Tiwari is too remote.

181. The contradictions in the testimonies of PW-1 and

PW-2, pointed out by the learned counsel for the appellant, are

minor which do not go to the root of the matter and cannot be

86

given undue credence. Both the witnesses namely PW-1, son of

the deceased and PW-2, the Peon of the institution concerned

stated that they were present on the spot of the incident on the

instructions of the deceased and were waiting for him when he

alighted from the roadways bus and was killed by the accused

persons near the Kesari Chauraha. Mere fact that no bus ticket or

pass to prove the factum of traveling of the deceased by

roadways bus or no recovery memo of money was prepared by

the Investigating Officer would not be a reason to disbelieve the

factum of the deceased alighting from the roadways bus on the

spot. It is possible that in the entire commotion, the Investigating

Officer did not notice to confiscate the bus ticket as admittedly,

he did not notice the articles found besides the dead body in the

relevant column of the inquest.

182. This crucial evidence might have been left from

being noticed by the Investigating Officer because of lack of

promptness or agility on his part but for this reason it cannot be

said nor it can be accepted that the deceased did not travel from

the roadway bus or did not go to Azamgarh. The fact that the

prosecution could not establish the reason for the deceased

going to Azamgarh on the fateful day as no answer book was

found besides his dead body is not so material so as to thrash-

away the entire prosecution case. The suggestion that the

recovery memo of bag was prepared as a afterthought is not

acceptable as it was proved by PW-4, the Investigating Officer

that the recovery memo Exhibit Ka-2 that one rexin bag was

found besides the dead body, was prepared in the presence of

witnesses including PW-1. It was proved that when the bag was

opened a service book, a typed letter dated 17.02.2006 and also

an application dated 25.02.2006 were inside. After preparation

87

of the memo of recovery, the bag and the service book were

given in the custody of the first informant (PW-1). The bag was

produced in the Court and was shown to PW-4 who identified

the same which was found besides the dead body, it was

marked as Material Exhibit Ka-1. PW-2 also proved that the

application found inside the bag as Material Exhibit Ka-3.

183. On confrontation, PW-4, the Investigating Officer

stated that he did not think it wise to deposit the bag as case

property in the Maalkhana and that is why a सुपुदरगीनामा was

prepared and it was handed over to the first informant with the

instruction to produce it in the Court whenever summoned.

184. As regards the interpolation in the case diary about

the recovered articles being bag, PW-4 stated that the

suggestion that bag was added later by interpolation was wrong.

Further from the articles found inside the bag, it seems that a

letter was written by the deceased to the District Inspector of

School for release of his salary which was withheld for

sometime as also stated by PW-1. It was also proved by PW-1

that a dispute about Principalship was going on between the

accused Shyam Narain Pandey and the deceased. The

appointment of accused Shyam Narain Pandey on the post of

Principal was cancelled on account of the complaint made by

the deceased, whereafter, Shyam Narain Pandey was removed

by the Commission. No inconsistency in the statement of PW-1

& PW-4 could be found with regard to the recovery of bag

besides the dead body and preparation of its recovery memo

and handing over the same to the eye witness PW-1.

185. For the arguments of the learned Senior Counsel for

the appellants, the genuineness of recovery memo Exhibit Ka-2,

88

for the mere reason that no entry of the bag was made in the

inquest or the bag was given in the Supurdigi of PW-1, cannot

be doubted.

186. Be that as it may, mere fact that the reason as to why

the deceased traveled to Azamgarh or whether he had gone to

the office of the District Inspector of School, Azamgarh on the

fateful day could not be established by the prosecution by the

evidences such as bus ticket or any material brought from the

office of the District Inspector of School, would not be fatal to

the prosecution story. It is proved that there was a dispute

related to holding of the post of the Principal in the institution

concerned and the deceased was trying hard to get appointment

on the post of Principal being the Senior-most Lecturer in the

institution concerned. The description in the testimony of PW-1

& PW-2, the eye witnesses of the occurrence, corroborated by

the surrounding circumstances of the case such as lodging of

the prompt report by PW-1 and the description given by him

about the occurrence supported by the testimony of PW-2 is

categorical proof of the presence of these two witnesses on the

spot.

187. The suggestion of false implication of the appellants

at the hands of PW-1 for the enmity projected by the

prosecution, cannot be read in favour of the defene, in as much

as, two eye witnesses, in the instant case, fall in the category of

wholly reliable witnesses and further the suggestion of false

implication of the appellants for the proved enmity is

unacceptable, in as much as, it is not acceptable that the son of

the deceased who had seen the occurrence would let go the real

assailants scot free so as to falsely implicate the appellants with

whom there is direct enmity of the eye witnesses namely PW-1.

89

The proof of enmity is only with the deceased who was

working on the post of Lecturer in the institution of which one

of the appellant namely Laxmi Narain Pandey was the Manager

and wherein another appellant Shyam Narain Pandey held the

post of Principal for sometime. All other appellants are sons of

Manager Laxmi Narain Pandey who were carrying grudges

with the deceased on account of his actions to hold the post of

the Principal of the institution concerned.

188. In the instant case, the trial court had given an

exhaustive finding on the credibility of evidence of the eye

witnesses. Learned counsel for the appellant pointing out the

discrepancies in the ocular account of two witnesses is invoking

jurisdiction of the High Court being the first appellate court to

reappraise the evidence.

189. In this regard, we would like to refer to the decision

of the Apex Court laying down the legal principle in the matter

of appreciation of evidence of witnesses by the first appellate

court so as to impeach the credit of the witness. The principles

narrated in the celebrated decision of the Apex Court in the

State of UP vs. M.K. Anthony

13

are that while

appreciating the evidence of a witness, the approach must be

whether the evidence of the witness read as a whole appears to

have a ring of truth. Once that impression is formed, it is

undoubtedly necessary for the court to scrutinize the evidence

more particularly keeping in view the deficiencies, draw-backs

and infirmities pointed out in the evidence as a whole and

evaluate them to find out whether it is against the general tenor

of the evidence given by the witness and whether the earlier

evaluation of the evidence is shaken as to render it unworthy of

13. 1985 1 SCC 505

90

belief. Minor discrepancies on trivial matters not touching the

core of the case, hyper-technical approach by taking sentences

torn out of context here or there from the evidence, attaching

importance to some technical error committed by the

investigating officer not going to the root of the matter would

not ordinarily permit rejection of the evidence as a whole. If the

court before whom the witness gives evidence had the

opportunity to form the opinion about the general tenor of

evidence given by the witness, the appellate court which had

not this benefit will have to attach due weight to the

appreciation of evidence by the trial court and unless there are

reasons weighty and formidable it would not be proper to reject

the evidence on the ground of minor variations or infirmities in

the matter of trivial details. Even honest and truthful witnesses

may differ in some details unrelated to the main incident

because power of observation, retention and reproduction

differs with individuals.

190. In the above context, it was held in Leela Ram (D)

Through Duli Chand vs State Of Haryana And another

14

that

the High Court is within its jurisdiction being the first appellate

court to re-appraise the evidence, but the discrepancies found in

the ocular account of two witnesses unless they are so vital,

cannot affect the credibility of the evidence of the witnesses.

There is bound to be some discrepancies between the narrations

of different witnesses when they speak on details, and unless

the contradictions are of a material dimension, the same should

not be used to jettison the evidence in its entirety. Incidentally,

corroboration of evidence with mathematical niceties cannot be

expected in criminal cases. Minor embellishment, there may be,

but variations by reason therefor should not render the evidence

14.1999 (9) SCC 525

91

of eye witnesses unbelievable. Trivial discrepancies ought not

to obliterate an otherwise acceptable evidence.

191. The previous decision in Rammi @ Rameshwar

Vs. State of M.P

15

was taken into account in Leela Ram (D)

Through Duli Chand

14

to note the observations therein as:-

“In a very recent decision in Criminal Appeal

No.   61   of   1999   (Rammi   alias Rameshwar   v.

State of Madhya Pradesh ) with Criminal Appeal

No. 33 of 1999 (Bhura Alias Sajjan Kumar v.

State   of   Madhya   Pradesh)   this   Court

observed :

24. "When eye­witness is examined at length

it   is   quite   possible   for   him   to   make   some

discrepancies.   No   true   witness   can   possibly

escape   from   making   some   discrepant   details.

Perhaps an untrue witness who is well tutored

can   successfully   make   his   testimony   totally

non­discrepant.   But   courts   should   bear   in

mind   that   it  is  only   when   discrepancies   in

the evidence of a witness are so incompatible

with the credibility of his version that the

Court   is   justified   in   jettisoning   his

evidence.   But   too   serious   a   view   to   be

adopted   on   mere   variations   falling   in   the

narration of an incident (either as between

the evidence of two witnesses or as between

two   statements   of   the   same   witness)   is   an

unrealistic approach for judicial scrutiny".

This Court further observed :

25 "It is a common practice in trial courts

to   make   out   contradictions   from   previous

15.1999 (8) SCC 649

14.1999 (9) SCC 525

92

statement   of   a   witness   for   confronting   him

during   cross­   examination.   Merely   because

there is inconsistency in evidence it is not

sufficient   to   impair   the   credit   of   the

witness. No doubt Section 155 of the Evidence

Act provides scope for impeaching the credit

of a witness by proof of inconsistent former

statement. But a reading of the Section would

indicate that all inconsistent statements are

not sufficient to impeach the credit of the

witness. The material portion of the Section

is extracted below :

"   155.   Impeaching   credit   of   witness.   The

credit of a witness may be impeached in the

following ways by the adverse party, or, with

the consent of the Court, by the party who

calls him.....

(1)­(2)

(3)   by   proof   of   former   statements

inconsistent   with   any   part   of   his   evidence

which is liable to be contradicted."

26.   A   former   statement   though   seemingly

inconsistent   with   the   evidence   need   not

necessarily   be   sufficient   to   amount   to

contradiction. Only such of the inconsistent

statement   which   is   liable   to   be

"contradicted"would affect the credit of the

witness. Section 145 of the Evidence Act also

enables the cross­examiner to use any former

statement   of   the   witness,   but   it   cautions

that   if   it   intended   to   "contradict"   the

witness   the   cross­examiner   is   enjoined   to

comply with the formality prescribed therein.

Section 162 of Code also permits the cross­

examiner to use the previous statement of the

witness   (recorded   under Section   161 of   the

93

Code) for the only limited purpose, i.e. to

"contradict" the witness.

27. To contradict a witness, therefore, must

be   to   discredit   the   par­ticular   version   of

the witness. Unless the former statement has

the   potency   to   discredit   the   present

statement, even if the latter is at variance

with the former to some extent it would not

be   helpful   to   contradict   that   witness,

(vide Tahsildar   Singh   and   Anr.   v.   State   of

U.P., AIR (1959) SC 1012)".

192. In paragraph Nos.11 & 12 of Leela Ram (supra),

it was further observed:-

“11.   The   court   shall   have   to   bear   in   mind

that   different   witnesses   react   differently

under   different   situations   :   whereas   some

become   speechless,   some   start   wailing   some

others run away from the scene and yet there

are some who may come forward with courage,

conviction and belief that the wrong should

be remedied. As a matter of fact it depends

upon   individuals   and   individuals.   There

cannot be any set pattern or uniform rule of

human   reaction   and   to   discard   a   piece   of

evidence   on  the   ground   of  his   reaction   not

falling within a set pattern is unproductive

and a pedantic exercise.

12.   It   is   indeed   necessary   to   note   that

hardly   one   conies   across   a   witness   whose

evidence   does   not   contain   some   exaggeration

or   embellishments   ­   sometimes   there   could

even   be   a   deliberate   attempt   to   offer

embellishment   and   sometimes   in   their   over

94

anxiety   they   may   give   slightly   exaggerated

account.   The   Court   can  sift   the  chaff  from

the   corn   and   find   out   the   truth   from   the

testimony   of   the   witnesses.   Total   repulsion

of the evidence is unnecessary. The evidence

is to be considered from the point of view of

trustworthiness   ­   If   this   element   is

satisfied,   they   ought   to   inspire   confidence

in the mind of the Court to accept the stated

evidence though not however in the absence of

the same”.

193. Reverting to the instant case, on evaluation of the

evidence of both the eye witnesses, in entirety, the

discrepancies pointed out by the learned Senior Counsel for the

appellants in their testimonies are found to be minor variations

or infirmities in the matter of trivial details which do not touch

the core of the case so as to reject the evidence as a whole.

Attaching too much importance to the technical errors

committed by the Investigating Officer in not noticing the bus

ticket as a proof of travel of the deceased from Azamgarh or in

not mentioning the bag as an article found besides the dead

body in the relevant column of the inquest, in the attending

circumstances of the present case, is impermissible, in as much

as, absence of these details would not go against the general

tenor of the evidence given by the witnesses which is found

consistent and credible.

194. No inconsistencies from the previous statements of

the eye witnesses (recorded under Section 161 Cr.P.C.) could

be pointed out during their cross-examination by the defence.

The statement of PW-1, the son of the deceased was recorded

by the Investigating Officer soon after completion of the

inquest at the spot of the incident. The narration of PW-1 of the

95

manner of causing the murder of his father by the appellants in

the written report scribed by him, in his first statement recorded

under Section 161 Cr.P.C. and his deposition (both in

examination-in-chief and cross-examination) in the Court is

consistent and is not at variance on any material particular or

details. It cannot be said that the discrepancies pointed out by

the learned counsels for the appellants would make the eye

witnesses especially PW-1, the son of the deceased as an untrue

witness.

195. The testimony of PW-2 is corroborative to the

version of PW-1 both of whom were present on the spot

together to receive the deceased who was coming by a

roadways bus from the District Headquarter Azamgarh. On

consideration of their evidence from the point of view of

trustworthiness of the eye witnesses, it inspires confidence in

the mind of the Court and removes all doubts sought to be

created by the learned counsels for the appellants so as to

disbelieve the evidence of such witnesses who are otherwise

trustworthy. No such discrepancy could be pointed out by the

defence which would shake the basic version of the prosecution

case so as to discard the version of the eye witnesses about their

presence on the spot.

196. The arguments of the learned Counsels for the

appellants noted above to discredit the presence of eye

witnesses (PW-1 and PW-2) at the spot of the incident are, thus,

liable to be rejected.

C. Ocular Vs. Medical Evidence:-

197. It is argued by the learned Senior Counsel for the

appellants that the statement of PW-1 as to the manner of

96

causing firearm injuries to the deceased is in complete

contradictions with the medical evidence, which goes to the

root of the matter so as to discard the presence of PW-1 on the

spot. It is submitted that in the examination-in-chief, PW-1

stated that five accused persons namely Rajesh Kumar Pandey,

Amit Kumar Pandey, Pawan Kumar Pandey @ Babloo, Ramesh

Kumar Pandey and Rajesh Kumar Pandey had encircled the

deceased and all of them were all carrying firearms. Three out

of five namely Pawan Kumar Pandey @ Babloo, Rajesh Kumar

Pandey and Amit Kumar Pandey had opened fires at the

deceased. While the deceased was falling down getting hit by

the fires, two accused namely Ramesh Kumar Pandey and

Umesh Kumar Pandey also fired whereas only three firearm

wounds of entry were found on the person of the deceased as

indicated in the postmortem report, proved by the doctor PW-3.

198. In cross on confrontation, PW-1 stated that total five

fires were opened by the accused persons and accused Ramesh

Kumar Pandey and Umesh Kumar Pandey also opened fires

when the deceased was falling down.

199. As per the submissions of the learned Senior Counsel

for the appellants, the number 5 had been fixed by the

informant PW-1 so as to implicate five accused based on the

number of injuries noted in the postmortem report. Out of 5

injuries in the postmortem report, 3 are entry wounds whereas 2

exit wounds correspond to 2 entry wounds of the firearm. There

is no explanation as to whether fires allegedly opened by the

appellants Ramesh Kumar Pandey and Umesh Kumar Panddy

also hit the deceased. There is no recovery of weapons from the

possession or on the pointing out of the appellants Ramesh

Kumar Pandey and Umesh Kumar Pandey and there is no

97

recovery of empty cartridges from the place of the incident. The

falsity in the statement of PW-1 evident from the records

proves that he was not present on the spot.

200. Placing the statement of PW-1 recorded on

18.09.2006, it is argued that when this witness gave such a

graphic details about the directions in which each assailants was

standing while encircling the deceased, he could not have

missed the number of fires opened by the appellants and that

whose fires hit the deceased.

201. To deal with the above submissions, suffice it to note

that in the statement of PW-1, it has come that all five accused

persons who encircled the deceased after getting down from the

Bolero car, opened fires at the deceased and the first three fires

were made by appellants Pawan Kumar Pandey @ Babloo,

Rajesh Kumar Pandey and Amit Kumar Pandey. Three firearm

entry wounds with blackening and tattooing have been found

near the right and left ear and right shoulder of the deceased.

The position of all three wounds as indicated in the postmortem

report show that three fires were made at the deceased from

both sides and they were close range and his right and left

parietal & temporal bone of the head were found broken and

brain was ruptured.

202. The categorical statement of PW-1 is that while his

father was falling down after being hit by three fires opened by

appellants Pawan Kumar Pandey @ Babloo, Rajesh Kumar

Pandey and Amit Kumar Pandey, two other appellants Ramesh

and Umesh also opened fires. The fact that their fires did not hit

the deceased or no empty cartridges could be recovered from

the spot of the incident would not be a reason to discard the

98

presence of PW-1 who gave a clear and categorical detail as to

whose fires hit the deceased. A careful reading of the statement

of PW-1 makes his version clear that three fires opened by

appellants Pawan @ Babloo and Rajesh and Amit hit the

deceased.

203. Even otherwise, it is settled law that in case of any

inconsistencies or contradiction between medical and ocular

evidence, the ocular testimony of a witness will have greater

evidentiary value vis-à-vis medical evidence and unless the oral

evidence is totally irreconcilable with the medical evidence, the

oral evidence would have primacy. It is only when the

contradiction between the two is so extreme that the medical

evidence completely rules out all possibilities of the ocular

evidence being true at all that the oral evidence is liable to be

discarded. Reference State of U.P. vs. Hari Chand

16

and

Darbara Singh versus State of Punjab.

17

204. In view of the above discussion, we find that the

inconsistencies pointed out by the learned Senior Counsel for

the appellants in the medical evidence vis-a-vis ocular evidence

of PW-1 is not a relevant factor so as to discard or disbelieve

the ocular evidence. The arguments of the learned Senior

Counsel for the appellants in this regard are, thus, liable to be

rejected.

D . Ballistic Report:-

205. Placing the ballistic report, it is submitted by the

learned Senior Counsel that the recoveries made from the

accused appellants Amit Kumar Pandey and Rajesh Kumar

16.2009 (13) SCC 542

17.2012 (10) SCC 476

99

Pandey of the weapons namely 315 bore and 303 bore country

made pistols, live cartridges and empty cartridge found in the

chamber of the weapon could not be proved by the prosecution.

The bullet found from inside the dead body could not be

matched from any of the recovered weapon, even the recovered

cartridges also did not match with the weapons recovered from

the possession of appellants Amit Kumar Pandey and Rajesh

Kumar Pandey. It is, thus, argued that it proves that the

recovery of the firearms was planted by the Investigating

Officer. The ballistic report rather supports the defence theory

that the deceased was hit by some unknown persons in the dead

of night and the implication of the appellants in the crime is

false.

206. To deal with this submission, suffice it to note that

mere fact that the ballistic report did not support the recovery

made by the prosecution would not be a reason to discard the

ocular evidence which is supported by the medical evidence, in

as much as, two firearms wounds brain cavity deep were

through and through as the entry wound 3 cm above left ear

correspond with the exit wound at the right eyebrow which both

were brain cavity deep. Whereas entry wound at 2 cm above

right ear correspond with the exit wound which was 1 cm above

the injury No.1. The bullet which was found from the liver of

the deceased correspond to the entry wound found at 06. cm

below right shoulder margin of which were inverted. It has

come in the evidence that three accused persons had fired at the

deceased and the fact that recovery of the weapons used in

causing murder could not be made or the prosecution could not

connect recovered firearms with the occurrence, cannot be

given undue importance so as to discard the uncontroverted oral

100

testimony of the eye witnesses namely PW-1 and PW-2.

E . Motive:-

207. On the question of motive, it is proved by the

prosecution witness that the deceased was Senior most Lecturer

in the institution concerned and he was trying hard to hold the

post of Principal of the institution concerned. The accused-

appellant Laxmi Narain Pandey was against the deceased and

was supporter of co-accused Shyam Narain Pandey. The

appointment of Shyam Narain Pandey though was made by the

Commission but it was cancelled on the complaint made by the

deceased about the genuineness of his testimonials. It has come

in evidence that the testimonials of appellant Shyam Narain

Pandey, which were the basis of his appointment to the post of

Principal were found forged and hence his appointment was

cancelled in the year 2005 by the Commission. Both the

witnesses of fact proved that there was a dispute between the

Manager Laxmi Narain Pandey and the then Principal Rajendra

Prasad Tripathi, i.e. the deceased herein in relation to some

money received from the M.P. Fund, utilization of which could

not be made as per the wishes of the Manager Laxmi Narain

Pandey.

208. The recovery of bag material Exhibit 1 was proved by

the Investigating Officer PW-4 wherefrom an application

material Exhibit Ka-3 was recovered. The contents of the said

application had been extracted by the trial court in paragraph

No.55 of its judgement. A perusal of which further indicates

that the deceased Rajendra Prasad Tripathi wrote the said

application against the Manager stating that the Manager of the

institution was making all efforts to harass him and prayed that

101

he may be restrained from interfering in the affairs of the

institution concerned. The memo of recovery of bag and

Supurdignama dated 28.02.2006 Exhibit Ka-2 bears signature

of PW-1 namely Atul Kumar Tripathi who in the cross-

examination had proved his signatures on the said document.

The signature and writing of the deceased on Material Exhibit

Ka-3 the application, was also proved by PW-1 by stating that

he was well acquainted with the writing and signatures of his

father and the signatures on document Exhibit Ka-3 were of his

father which was seized by the police on the spot.

209. Nothing contrary could be culled out from the

testimony of PW-1, the son of the deceased and PW-4 as also

the Investigating Officer who proved recovery of bag and the

application as Material Exhibit Ka-1 and Material Exhibit ka-3

found besides the dead body. The correctness of the allegations

made in the application form namely Material Exhibit Ka-3 are

not relevant for our consideration in the present case. The said

document, coupled with other circumstances of the case noted

above, proves the motive for commission of the crime. It is

settled that motive though is not of much importance in a case

of positive ocular evidence, i.e. of eye witnesses account, but

the motive if proved or established is a very relevant and

important aspect to highlight the intention of the accused and is

relevant to show that the person who had the motive to commit

the crime actually committed it. However, it is equally settled

that such evidence (of motive) alone would not ordinarily be

sufficient to record conviction.

E . Flaws in the investigation:-

210. Several flaws in the investigation were pointed out by

102

the learned Senior Counsel for the appellants such as delay in

sending the dead body to the police lines and flaw in

preparation of recovery memo of bag allegedly found besides

the dead body have been dealt with in the foregoing paragraph

of this judgement. Several inconsistencies in the statement of

the IIIrd Investigating Officer namely PW-10 were pointed out

by the learned Senior Counsel to assert that the prosecution had

falsely implicated the accused appellants in a zeal to solve the

crime merely on account of the alleged enmity of the deceased

with the accused persons.

211. Dealing with the same, suffice it to note that it is now

a well settled principle that any irregularities or even an

illegality during investigation ought not to be treated as a

ground to reject the prosecution case and we need not dilate on

this issue. Reference may, however, be made to the decision of

the Apex Court in State of State of Rajasthan vs.

Kishore

18

which laid down the above proposition.

F. Trial Court Finding:-

212. For the above discussion, we do not find any error in

the finding returned by the trial court on the above noted issues,

in holding that the prosecution had proved lodging of the first

information report in a prompt manner, the presence of the

witnesses on the spot and the motive assigned to the accused

appellants to cause the murder. No infirmity could be found in

the finding returned by the trial court on the above issues.

G. Plea of Alibi of the accused-appellants:-

213. We are now left with the plea of alibi taken by three

18.1996 (8) SCC 217

103

appellants.

214. The appellants who have pleaded alibi, are Laxmi

Narain Pandey, Pawan Kumar Pandey and Shyam Narain

Pandey. In his statement under Section 313 Cr.P.C. noted above

Laxmi Narain Pandey stated that he was lodged in the District

Jail, Lucknow on the date and time of the incident whereas

Pawan Kumar Pandey another appellant taking the plea of alibi

stated that he was lodged in the District Jail, Lucknow

alongwith his father on the date and time of the incident. The

appellant Shyam Narain Pandey in his statement under Section

313 Cr.P.C. stated that he left for his village on 03.07.2005

after leaving the college and used to reside therein. Between

26.02.2006 and 01.03.2006 he used to go to Allahabad High

Court and stayed in Allahabad city for the preparation and

pairvi of a rejoinder affidavit.

215. The appellants had produced 15 defence witnesses

(DW-2 to DW-16) and number of documentary evidences in

support of their plea of alibi.

216. Before adverting to the evidence produced by the

defence/appellants, it would be worthwhile to note that in a

criminal case wherein an accused makes an effort to take

shelter under the plea of alibi, it has to be raised at the first

instance and also be subjected to strict proof of evidence by the

Court trying the offence. Such a plea cannot be allowed lightly

inspite of lack of evidence merely with the aid of salutary

principle that an innocent man may not have to suffer injustice

by recording an order of conviction inspite of his plea of alibi.

217. While discussing the law relating to plea of alibi, the

first and foremost principle is that the burden of substantiating

104

such a plea and making it reasonably probable is upon the

accused. The plea of alibi is not one of the general exception

contained in Chapter IV IPC. It is a rule of evidence recognized

under Section 11 of the Evidence Act. Section 11 of the

Evidence Act' 1872 provides that when facts not otherwise

relevant are relevant if they are inconsistent with any fact and

issue or relevant fact if by themselves or in connection with

other facts they make the existence or non-existence of any fact

or issue or relevant fact highly probable or improbable.

218. It is settled that the burden of proving commission of

offence by the accused so as to fasten the liability of guilt on

him remains on the prosecution and would not be lessened by

the mere fact that the accused had adopted the defence of alibi.

The plea of alibi taken by the accused needs to be considered

only when the burden which lies on the prosecution has been

discharged satisfactorily. If the prosecution has failed in the

discharging its burden of proving the commission of crime by

the accused beyond any reasonable doubt, it may not be

necessary to go into the question whether the accused has

succeeded in proving his defence of alibi. But once the

prosecution succeeds in discharging its burden then it is

incumbent on the accused taking the plea of alibi to prove it

with certainty so as to exclude the possibility of his presence at

the place and time of occurrence.

219. Further, when the presence of the accused at the

scene of occurrence has been established satisfactorily by the

prosecution through reliable evidence, normally the court

would be slow to believe any counter evidence to the effect that

he was elsewhere when the occurrence happened. But if the

evidence adduced by the accused is of such a quality and of

105

such a standard that the court may entertain some reasonable

doubt regarding his presence at the scene when the occurrence

took place, the accused would, no doubt, be entitled to the

benefit of that reasonable doubt. An obligation is cast on the

Court to weigh in scales the evidence adduced by the

prosecution in proving of the guilt of the accused and the

evidence adduced by the accused in proving his defence of

alibi. The burden of the accused is undoubtedly heavy. It

follows, therefore, that strict proof is required for establishing

the plea of alibi. This flows from Section 103 of the Evidence

Act which provides that the burden of proof as to any particular

fact lies on that person who wishes the Court to believe in its

existence. However, while weighing the prosecution case and

the defence case, pitted against each other, if the balance tilts in

favour of the accused, the prosecution would fail and the

accused would be entitled to benefit of that reasonable doubt

which would emerge in the mind of the Court.

220. Reference be made to the decisions of the Apex court

in State of Uttar Pradesh Vs. Sughar Singh & others

19

,

Binay Kumar Singh Vs. State of Bihar

20

, Jayantibhai

Bhenkarbhai Vs. State of Gujarat

21

, Jitendra Kumar

Vs. State of Haryana

22

, Darshan Singh Vs. State of

Punjab

23

wherein above stated legal position has been

discussed.

G(i). Plea of alibi of Shyam Narayan Pandey:-

221. In the instant case, plea of alibi of appellant Shyam

19.1978 (1) SCC 178

20.1997 (1) SCC 283

21.2002 (8) SCC 165

22.2012 (6) SCC 204

23.2016 (3) SCC 37

106

Narain Pandey is supported by the evidence of two witnesses

namely DW-7 Sadanand Pandey and DW-12 Sudhakar Pandey.

Sadanand Pandey admittedly, was a resident of District Ballia

which was the native village of the appellant Shyam Narain

Pandey. As per the statement of DW-7, he met appellant Shyam

Narain Pandey between 26.02.2006 till 28.02.2006 when the

latter was staying at Allahabad for doing pairvi in his case filed

in this Court (Allahabad High Court). The statement of DW-7

was recorded on 02.04.2009. His version in his deposition in

the Court is only based on his memory and is not supported by

any material on record. In cross, DW-7 admitted that he never

went with appellant Shyam Narain Pandey for doing pairvi of

his case and he met him in Allahabad only on few days. He also

admitted that he came to know about the present criminal case

about a year prior to his deposition. It is also admitted by PW-7

that he was not related to the appellant Shyam Narain Pandey.

He also did not state that he knew Shyam Narain Pandey from

before he met him at Allahabad in the year 2006 or ever met

him thereafter. In this scenario, it is difficult to believe that

DW-7 who was a litigant in another case could remember after

a period of three years as to whom he met in the chamber of an

Advocate at Allahabad.

222. DW-12 is an Advocate practicing in the Allahabad

High Court. Admittedly he did not file Vakalatnama or

appeared on behalf of appellant Shyam Narain Pandey in any

matter in Allahabad High Court. It is admitted by DW-12 that

some other Advocate was engaged by Shyam Narain Pandey.

The statement of DW-12 that the appellant Shyam Narain

Pandey used to stay in his house from 26.02.2006 till

01.03.2006 cannot be corroborated from any other circumstance

107

or material brought on record. In cross of DW-12, it has come

that his native village was Ballia and appellant Shyam Narain

Pandey was also a resident of District Ballia, DW-12 being

acquaintance of appellant Shyam Narain Pandey as admitted in

his testimony cannot be believed to support the plea of alibi of

Shyam Narain Pandey in absence of any other supporting

evidence or surrounding circumstance to prove that there was

no possibility of presence of appellant Shyam Narain Pandey at

the place of the incident on the date and time stated by the

prosecution witnesses.

223. As noted above, no documentary proof of presence of

appellant Shyam Narain Pandey on the date and time of the

incident in Allahabad had been produced and the statement of

defence witnesses (DW-7 and DW-12) are bereft of any

supporting evidence. It may be noted that neither the Oath

Commissioner who verified the affidavit allegedly sworn by

appellant Shyam Narain Pandey or the Advocate who was

appearing on his behalf in the High Court had been produced in

evidence.

224. For the aforesaid, the plea of alibi of appellant Shyam

Narain Pandey is liable to be rejected. No infirmity in this

regard can be found in the findings of the trial court.

G.(ii). Plea of alibi of Laxmi Narain Pandey and

Pawan Kumar Pandey:-

225. The appellants Laxmi Narain Pandey and Pawan

Kumar Pandey pressed the plea of alibi, i.e. the proof of their

absence on the spot of the incident at the date and time

indicated by the prosecution or in another words to prove their

presence at another place by leading a positive evidence which

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is required to be scrutinized by this Court.

226. The contention is that both the abovenamed

appellants were lodged in the District Jail, Lucknow on

25.02.2006 and were released only on 02.03.2006 and on

24.02.2006 they were lodged in RPF lock-up at the RPF post

Charbagh (NR) Lucknow. This plea is supported by a number

of documentary evidences brought by the defence witnesses

who are police officers of RPF and Jailer of the District Jail,

Lucknow. Some of the documentary evidences brought on

record were summoned by the trial court.

227. DW-11 is the Ticket Collector who stated that while

he was posted at the Railway Station, Charbagh, he caught both

the appellants at the first class entry gate of Train No.3040

Jammu Tavi Howrah which reached at the Charbagh Railway

Station 15.15 hours at platform No.1. From the testimony of

this witness, it is evident that he did not identify both the

appellants personally rather his version is supported by two

documents namely Exhibit Kha-20 and Kha-21. Both these

documents are certified copies of the alleged charge sheets

prepared on 24.02.2006 in the handwriting and signature of one

Atul Kumar who was posted as In-charge CTC in the office of

VICTC. These documents are stated to be photostat copies of

the original charge sheet and had been attested and filed by

DW-11.

228. It is not known as to in what capacity these document

were brought by DW-11 for being filed in the Court in support

of the plea of the defence that two appellants namely Laxmi

Narain Pandey and Pawan Kumar Pandey were arrested by

DW-11 at the Charbagh Railway Station and charge sheeted as

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they were traveling without ticket and that they did not deposit

the charge of general bogey with penalty i.e. Rs.380/- per

person which was demanded by DW-11 for the offence of

traveling without ticket. The Exhibit Kha-20 & Kha-21 for the

above reasons cannot be relied to hold that the appellants were

arrested by DW-11 on 24.02.2006 at the gate No.1 of the

platform No.1 of the Charbagh railway Station, Lucknow.

229. Further documents relied by the appellants in support

of the above plea are G.D. entries dated 24.02.2006 and

25.02.2006 which had been filed as Exhibit Kha-3 and Kha-4

and proved in the Court by DW-3, the Head Constable posted

in RPF. It was stated by DW-3 that those documents were

brought by him pursuant to the order of the Court. DW-8 is a

police personnel of RPF who stated that these two appellants

were arrested and handed over to him and he lodged them in the

District Jail, Lucknow on the basis of the charge sheet prepared

against them under Section 137 and 138 Railways Act.

230. DW-9 is a Constable posted in RPF who proved the

entry in the G.D. Exhibit Kha-3 and Kha-4 being in his

handwriting and signature and stated that when the accused

persons were lodged in the RPF lockup, he was on duty to write

the G.D. and on frisking of the two appellants, one mobile

charger was found from the possession of the appellant Pawan

Kumar Pandey.

231. DW-3 also brought the original Khuraki register from

03.11.2005 to 17.11.2006 and filed it in the Court which was

proved as Exhibit Kha-7. A copy of Jamatalashi register (the

proof of frisking of the accused) before lodging them in the

lockup had also been brought on record as Exhibit Kha-7. It

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may be noted that it has come on record that none of the

documents produced in defence by the officers posted in the

RPF post (brought under the order of the Court) were brought in

sealed cover. G.D. entries dated 24.02.2006 at G.D. No.60

Exhibit Kha-3 records that both the accused who were caught at

the first class entry gate by Ticket Collector Sarvendra (DW-1),

on interrogation could not produce any proof of traveling and

stated that they were traveling from Train No.3074 down, from

Moradabad and as they did not have money and when asked to

deposit the passengers tariff, they denied. From this story

narrated in the G.D. Exhibit Kha-3, pertinent is to note that this

entry cannot be accepted as true as there was no proof of

traveling of the appellants by Train No.3074 down from

Moradabad. The appellants were admittedly residents of District

Azamgarh. They both were well-off persons belonging to a

reputed family as on the date of the incident, appellant Laxmi

Narain Pandey was the Manager of two institutions, one

Intermediate and another Degree College. There is no

explanation as to why these appellants would travel from

Moradabad that too without ticket and how were they bereft of

money.

232. The record brought by the defence show that the

appellants were without luggage as nothing but a mobile charger

could be found in their frisking as is recorded in Exhibit Kha-6,

the alleged register of frisking of appellant Pawan Kumar

Pandey. From a bare perusal of the document filed as Exhibit

Kha-6 it is clear that the entry of the name of Pawan Kumar

Pandey son of Laxmi Narain Pandey is not in chronological

order. This documents filed to prove the arrest and lodging of

the appellants in the RPF lockup at Charbagh, Railway Station,

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Lucknow, therefore, cannot be believed.

233. DW-10 is the Constable posted in RPF, Charbagh who

stated that he took two appellants alongwith 13 persons to the

Court of Additional Chief Judicial Magistrate (NR), Charbagh,

Lucknow for their appearance in the Court and DW-10 stated

that out of 17, 4 accused persons were released as they deposited

the fine and two appellants herein including others (total 13 in

number) were lodged in the District Jail, Lucknow. His

signature on the entry of the Jail gate book had been identified

by DW-10 as Exhibit Kha-19.

234. In cross, it is admitted by DW-10 that he could not

identify the accused persons from their appearance and he could

only depose on the basis of the relevant registers brought in

defence. We may note at this juncture that the entire record of

the Court of Additional Chief Judicial Magistrate (NR)

Charbagh had been weeded out as is evident from the record

and no proof of appearance of the appellants in the Court of

Additional Chief Judicial Magistrate (NR) Charbagh on

25.02.2006 could be brought or found. The evidence of DW-10,

therefore, cannot be believed.

235. Now the remaining documentary evidence and the

defence witnesses had been produced to prove the lodging of

the appellants in the District Jail, Lucknow.

236. Before appreciating the documents relied by the

learned Senior Counsel in that regard, we may note that Exhibit

Kha-5 is the certificate of the Medical Officer, District Jail,

Lucknow which is countersigned by the Superintendent,

District Jail, Lucknow and the said document is dated

31.08.2006. This document was produced by the Deputy Jailer,

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District Jail, Lucknow who entered in the witness box as DW-4.

The certificate dated 31.08.2006 records that in a fire accident

on 15.03.2006 the entire record of the Jail Hospital such as

admission register and all other documents were destroyed.

This certificate was given on 31.08.2006 (as noted above) in

relation to some queries made with regard to another prisoner

who was admitted in the District Jail, in the month of January,

2006.

237. We may further record that DW-2 is Bandi Rakshak,

District Jail, Lucknow who brought the register No.1 (kaidi

register) and register No.7 (Doctari Mulaiza register) in the

Court. It may further be noted that these documents were not

brought in a sealed cover as was admitted by DW-5, the Jailer,

District Jail, Lucknow.

238. DW-6 is the Jailer who was posted in the District Jail,

Lucknow at the relevant point of time. He was produced to

prove the entries in the gate book/ gate register and register

No.1 Kaidi register as also the register No.7 (release register). It

is admitted by DW-6 that none of the entries were made in his

presence as they do not pertain to the period of his posting in

the District Jail, Lucknow.

239. DW-13 is the Deputy Jailer posted in the District Jail,

Luckow on the date of the incident and he was shown various

registers allegedly maintained in the jail and admitted that there

were overlappings in the alleged thumb impressions of the

accused persons in the relevant register No.1, both against the

names of Laxmi Narain Pandey and Pawan Kumar Pandey. On

confrontation about the overlapping of thumb impression found

in the relevant column of register No.1, DW-13 stated that

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when he directed for release of the accused appellants from jail,

the entries in the register were not like this.

240. Hospital Mulaiza register which had been produced

by DW-14, Bandi Rakshak, District Jail, Lucknow was placed

before us to state that all identification marks mentioned in the

said register tallied with the identification marks found on the

body of the accused persons, on comparison in the trial court.

DW-15 is the doctor who stated that he had tallied the

identification marks of the accused persons noted in the

Hospital Mulaiza register. It is not clear as to how this

document which is known as Hospital Mulaiza register,

wherein the health record of the prisoner and their identification

marks were noted could be believed when it was not produced

in the sealed cover. It may be noted that different officers of the

District Jail, Lucknow posted at different point of time were

produced in the Court by the defence to prove the entries in the

documents/registers brought by DW-2 pursuant to the order of

the trial Court.

241. It was admitted by DW-4 that only the Jailer, District

Jail, Lucknow was authorized to produce the document in the

Court and the Jailer, District Jail, Lucknow when entered in the

witness box as DW-5 stated on oath that none of the documents

sent by him through DW-2, as summoned by the Court, were in

sealed cover. The excuse was that there was no such order of

the Court.

242. For the above, none of the documents produced in

defence to prove the plea of lodging of the appellants Laxmi

Narain Pandey and Pawan Kumar Pandey in the District Jail,

Lucknow are believable. Moreover, once we have discarded the

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evidence of proof of arrest, the documents of arrest of the

appellants at the railway Station, Charbagh, Lucknow and the

factum of their lodging in the lockup of the RPF post (NR)

Charbagh, Lucknow on 24.02.2006, all other documents of

proof of their lodging in the District Jail, Lucknow are liable to

discarded.

243. We may further record that none of the defence

witnesses had identified the accused appellants personally and

the entire plea of alibi is based on the documentary evidences,

genuineness of which is highly doubtful and could not be

proved by the defence witnesses. None of the documents are to

be believed as genuine documents so as to accept them as a

strict proof of plea of alibi of the appellants. As regards Exhibit

Kha-12 and Kha-13, the extract of register No.9 and fine

register; respectively, which were sent by the Court clerk of the

office of the Additional Chief Judicial Magistrate, (NR)

Charbagh, Lucknow by the letter dated 16.03.2009 (Exhibit

Kha-11), which were found in the envelope Exhibit Kha-9,

reference of which finds place in the statement of DW-13,

suffice it to note that as per the report of the Court clerk, the

record of cases lodged under Section 137 Railways Act bearing

No.1435 of 2006 to 1448 of 2006 had been weeded out under

the order of the Presiding Officer dated 05.06.2006. As a result

of which, the entries in Exhibit Kha-12 and Kha-13 placed

before us could not be verified from the own showing of the

defence that the record of the office of the Additional Chief

Judicial Magistrate, (NR) Charbagh, Lucknow was not

available when they were summoned by the trial court.

244. For the aforesaid, we are afraid to accept the plea of

alibi raised by the appellants Laxmi Narain Pandey and Pawan

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Kumar Pandey on the basis of documentary evidences filed by

the defence witnesses (DW-2 to DW-15). As regards the

evidence of DW-16, same is liable to be rejected as the

genuineness of the documents brought in the Court in defence

about the arrest and detention of the appellants Laxmi Narain

Pandey and Pawan Kumar Pandey firstly in RPF lockup and

then in the District Jail, Lucknow is found unbelievable.

245. There is one more aspect of the matter. As per the

plea taken by the two appellants named above, they deposited

the fine on 01.03.2006 in the Court of the Railway Magistrate

and were released from the District Jail, Lucknow on

02.03.2006. The incident occurred on 28.02.2006 and named

FIR was lodged on the said date itself. All other co-accused

except Shyam Narain Pandey are immediate family members of

accused Laxmi Narain Pandey and Pawan Kumar Pandey being

sons of Laxmi Narain Pandey. It is noticeable that the plea of

alibi had not been taken at any point of time prior to the

statement of the said accused appellants recorded under Section

313 Cr.P.C. before the trial Court. Neither the plea of alibi was

taken during the course of investigation nor at the stage of

commital. No application for discharge of these appellants had

been filed on the plea of alibi. No application had been moved

before the competent court to plead that the implication of the

appellants in the criminal case was false as they could not

remain present on the spot of the crime having been lodged in

the District Jail, Lucknow. Had it been done, appropriate

enquiry at the inception of this criminal case could have been

conducted and appropriate order could have been passed to

summon or seal the record of the Court of Railway Magistrate

wherein the proceedings under Section 137 Railways Act were

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allegedly conducted.

246. These facts raise a serious doubt about the

genuineness of the plea of alibi.

247. Further, looking to the circumstance and the financial

capacity of the appellants, it is difficult to believe that they

would not deposit the fine of Rs.880/- per person for traveling

without ticket and choose to go to the jail for 15 days. Further it

has come in the evidence of the defence witness DW-3 that the

information was given to the family members of the arrested

accused appellants when they were lodged in jail. It is, thus,

difficult to accept that none of the family members of the

appellants came forward to deposit the fine or they did not take

care to know the whereabouts of the appellants who allegedly

remained in jail for 15 days.

248. The exhaustive findings recorded by the trial court on

each and every issue relating to the plea of alibi are found

justified in the facts and circumstances of the present case in

view of the discussion made above.

249. For the above discussion, the plea of alibi taken by

the appellants Laxmi Narain Pandey and Pawan Kumar Pandey

in their statements under Section 313 Cr.P.C. and the proof

brought in the shape of defence witnesses and the documentary

evidences filed by them is a concocted story, putforth by the

said appellants by carefully constructing the record with the

help of the staff of the Railway Police Force and the District

Jail, Lucknow.

250. The presence of appellants Laxmi Narain Pandey and

Pawan Kumar Pandey at the place of the occurrence on the date

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and time stated by the prosecution witnesses is found proved in

view of the consistent, reliable and trustworthy testimony of

eye witnesses namely PW-1 and PW-2. Rejecting the plea of

alibi of appellants Laxmi Narain Pandey, Pawan Kumar Pandey

and Shyam Narain Pandey, we find that the prosecution had

proved the involvement of all the appellants in the occurrence

beyond all reasonable doubt.

251. No other point has been pressed.

252. The judgement and order dated 07.08.2012 passed by

the Additional Sessions Judge, Court No.2 Azamgarh in

Session Trial No.435 of 2006 arising out of Case Crime No.65

of 2006 under Section 147, 148 149, 302, 120-B, 504, 506 IPC

and Section 7 Criminal Law Amendment Act, Police Station

Atraulia, District Azamgarh is hereby affirmed.

253. The accused appellants Pawan Kumar Pandey @

Bablu, Amit Kumar Pandey and Rajesh Kumar Pandey are in

jail.

254. The appellant Ramesh Kumar Pandey had died in

April, 2021 and the appeal on his behalf has been abated vide

order dated 02.02.2022.

255. The accused persons Shyam Narain Pandey, Laxmi

Narain Pandey, Umesh Kumar Pandey are on bail. Their bail

bonds are cancelled and sureties are discharged. They shall

surrender forthwith before the concerned court and be taken

into custody and sent to jail to serve their sentence.

256. The appeals are, accordingly, dismissed.

257. Certify this judgement to the court below

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immediately for compliance.

258. The compliance report be submitted through the

Registrar General, High Court, Allahabad.

(Vikas Kunvar Srivastav,J.) (Sunita Agarwal, J.)

Order date:- 30.05.2022

Himanshu