DAYA SHANKER DUBEY AND ANOTHERversusSTATE OF U.P.

                                           RESERVED ON: 24.07.2026
                                          DELIVERED ON:16.09.2026
                HIGH COURT OF JUDICATURE AT ALLAHABAD

                     CRIMINAL APPEAL No. - 1544 of 1984

Daya Shanker Dubey And Another
                                                                .....Appellant(s)
                                     Versus
State of U.P.
                                                              .....Respondent(s)

Counsel for Appellant(s)         :   Bhavya Sahai, Brijesh Sahai(Senior Adv.),
                                     Shirish Kumar Dwivedi, T.Rathore
Counsel for Respondent(s)        :   A.G.A.

Court No. - 90
                       HON'BLE ABDUL SHAHID, J.

1. Heard learned counsel for the appellants and learned A.G.A. for the State.
2. The learned counsel for the appellant submitted that the alleged incident
took place on 14.09.2018 at 12:00 noon, and the F.I.R. was lodged on
14.09.2018 at 2:00 P.M. The appellants have been convicted and sentenced
under Section 304 Part I/34 I.P.C. for a period of five years, and under
Section 323 I.P.C. for a period of six months. He submitted that P.W.-1 and
P.W.-2 are eye-witnesses, while P.W.-4 is the injured witness who turned
hostile. He further submitted that the F.I.R. was lodged against Daya
Shankar, Onkar Nath, Dev Narain, and Hiramani.
3. The present appeal was filed by Daya Shankar and Onkar Nath. Daya
Shankar (appellant No. 1) died during the pendency of the present appeal;
hence, the proceedings of the criminal appeal against him stand dismissed as
abated.
4. Now, only the appellant Onkar Nath remains alive. He further submitted
that there is no explanation for the injuries on the accused, and no
independent witness to the alleged incident has been examined. P.W.-1 and
P.W.-2 are interested witnesses, rendering their statements inadmissible.
P.W.-4 (Girija Shankar), who is alleged to be the injured witness in the
incident, turned hostile and did not support the prosecution's version.
Finally, he submitted that the prosecution failed to prove the injuries caused
to the accused, which is fatal to the prosecution's case.
5. Learned counsel for the appellant further submitted that Ram Krishna
Pandey, who is the son-in-law of the deceased, was not an eye-witness,
although he was presented as an eye witness. His statement under Section
161 Cr.P.C. was recorded after a significant delay of 24 to 25 days,
rendering his testimony unreliable.
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                                   2

6. Learned counsel for the appellant has relied upon the law laid down by the
Supreme Court in Nand Lal and others v. State of Chhattisgarh (Criminal
Appeal No. 1421 of 2015, decided by a Three-Judge Bench on
14.03.2023). He specifically relied upon paragraphs 26 and 27 of the
aforesaid judgment, which are quoted hereinbelow:"
     "26. We will first consider the issue with regard to non- explanation of injuries
     sustained by accused No. 11 Naresh Kumar. In the case of Lakshmi Singh and
     Others v. State of Bihar, (1976) 4 SCC 394 which case also arose out of a
     conviction under Section 302 read with Section 149 of the IPC, this Court had
     an occasion to consider the issue of non-explanation of (1976) 4 SCC 394
     injuries sustained by the accused. This Court, after referring to the earlier
     judgments on the issue, observed thus:
     "12. …….It seems to us that in a murder case, the non-explanation of the
     injuries sustained by the accused at about the time of the occurrence or in the
     course of altercation is a very important circumstance from which the court can
     draw the following inferences:
              "(1) that the prosecution has suppressed the genesis and the origin of the
              occurrence and has thus not presented the true version;
              (2) that the witnesses who have denied the presence of the injuries on the
              person of the accused are lying on a most material point and therefore
              their evidence is unreliable;
              (3) that in case there is a defence version which explains the injuries on
              the person of the accused it is rendered probable so as to throw doubt on
              the prosecution case."
     The omission on the part of the prosecution to explain the injuries on the person
     of the accused assumes much greater importance where the evidence consists of
     interested or inimical witnesses or where the defence gives a version which
     competes in probability with that of the prosecution one. In the instant case,
     when it is held, as it must be, that the appellant Dasrath Singh received serious
     injuries which have not been explained by the prosecution, then it will be
     difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more
     particularly, when some of these witnesses have lied by stating that they did not
     see any injuries on the person of the accused. Thus neither the Sessions Judge
     nor the High Court appears to have given due consideration to this important
     lacuna or infirmity appearing in the prosecution case. We must hasten to add
     that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 :
     1975 SCC (Cri) 384] there may be cases where the non-explanation of the
     injuries by the prosecution may not affect the prosecution case. This principle
     would obviously apply to cases where the injuries sustained by the accused are
     minor and superficial or where the evidence is so clear and cogent, so
     independent and disinterested, so probable, consistent and creditworthy, that it
     far outweighs the effect of the omission on the part of the prosecution to explain
     the injuries. The present, however, is certainly not such a case, and the High
     Court was, therefore, in error in brushing aside this serious infirmity in the
     prosecution case on unconvincing premises."
     27. A similar view with regard to non-explanation of injuries has been taken by
     this Court in the cases of State of Rajasthan v. Madho and Another, 1991 Supp
     (2) SCC 396, State of M.P. v. Mishrilal (Dead) and Others, (2003) 9 SCC 426,
      and Nagarathinam and Others v. State (Represented by Inspector of Police),
     (2006) 9 SCC 57."
7. Learned counsel for the appellant submitted that the prosecution
miserably failed to prove its case beyond reasonable doubt. The prosecution
failed to explain or prove the injuries sustained by the accused. Furthermore,
the prosecution has miserably failed to offer any explanation for the delay in
recording the statement of the alleged eye-witness Ram Krishna Pandey,
who deposed as P.W.-5. Consequently, the judgment and order passed by the
                                                          CRLA No. 1544 of 1984
                                3

learned trial court are perverse and liable to be set aside, and the criminal
appeal deserves to be allowed.
8. Learned A.G.A. has opposed the criminal appeal and submitted that the
site plan of the incident is absolutely clear. The eye-witnesses have
supported the prosecution's story, and the prosecution has proved its case
beyond reasonable doubt. Therefore, the criminal appeal is liable to be
dismissed.
9. The genesis of the present case arose from criminal complaint Ext. Ka-1,
dated 14.09.1980. The complainant is Sangam Lal Dwivedi. He submitted a
written complaint to the Station In-charge, Police Station Karchhana,
District Allahabad, stating that at 12:00 noon, towards the eastern side of his
village near the mango tree of Umadutt Vaishya and behind the said tree, his
cousin Girija Shankar was beaten by Daya Shankar, Onkar Nath, Dev
Narain, and Hiramani over a dispute regarding a halwaha (ploughman).
10. In a nearby orchard, his grandfather Brij Kishore was grazing animals.
He reached the spot and scolded Daya Shankar. Thereupon, Daya Shankar,
Onkar Nath, Hiramani, and Dev Narain started beating his grandfather.
Onkar Nath, Hiramani, and Daya Shankar were armed with katwasas
(chopping blades), and Dev Narain was holding a lathi (heavy stick). When
his grandfather screamed, the complainant, along with his brother Dhananjay
Lal and Ram Krishna Pandey (the son-in-law of his grandfather), reached the
spot. Several co-villagers also ran over, exhorted the assailants, and
witnessed the assault, whereupon all four accused persons fled towards the
east.
11. When they reached the spot, they saw that his grandfather had sustained
head injuries caused by lathis and katwasas. His grandfather collapsed at the
scene and died. Girija Shankar also suffered injuries to his head and body.
They brought the dead body of their grandfather, along with the injured
Girija Shankar, to their doorstep. The complainant requested the police to
register the case and initiate legal proceedings.
12. On the basis of this written complaint (Ext. Ka-1), a check F.I.R. was
registered on the same day, i.e., 14.09.1980 at 14:15 hours against all four
accused persons.
13. After completion of the investigation, a charge-sheet was filed against all
four accused. The accused Dev Narain absconded, and in his absence, the
charge-sheet was filed against him as well.
14. The learned trial court framed charges against three accused, namely,
Daya Shankar, Onkar Nath, and Hiramani, under Sections 323 and 304
I.P.C. Girija Shankar suffered simple injuries. His injury report, marked as
Ext. Ka-5 and dated 14.09.1980, details the following injuries.
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                                  4

          "Injury report
          Examined Shri Girija Shankar aged about 30 years s/o Shri Ram Pragas
          R/o Vill Manaiya, P.S. Karchhana Allahabad on 14.09.1980 at 2:45 PM.
          Brought by Sri Jagan Nath Mishra, C.P. No. 20 P.S. Karchhana Alld.
          M.I.- a black til on lt. side of face distance 3cm from lt. angle of mouth.
          No. of Injuries:- (1) lacerated wound 3.5 cm x ½ cm x ½ cm on lt. side of
          head distance 8 cm from top of lt. ear with irregular margins and blood
          oozing out.
          (2) Incised wound 1.5 cm x ¼ cm x ½ cm in between little and ring finger
          of lt. hand with regular margins and blood oozing out.
          (3) Bruise 11 cm x 2 cm on lt. side of back in scapular region distance 2
          cm from spine.
          (4) Bruise 1 cm x 1 cm on lt side of back distance 12 cms below post fold
          of axilla.
          (5) Complaint of pain and tenderness on lt. side of back in lumbar region
          just above iliac crest.
          (6) Bruise 4 cm x 3.5 cm on outer surface of lt. thigh distance 30 cm above
          knee joint.
          All injuries No.1 to 6 are simple and caused by blunt object except injury
          no. (2) which is caused by sharp edged object.
          Duration- About ¼ days old."
15. The post mortem report of the deceased Brij Kishore is Ext. Ka-6. He
was aged about 75 years at the time of the incident. The cause of death is
shown as died due to shock and hemorrhage due to head injury. The post
mortem report is dated 15.09.1980. The ante mortem injuries which were
found on his dead body are as follows:
          (i) I.W.- 6 cm ¾ cm x bone deep on the left side of head in the middle
          parietal bone fracture below the injury. Brain material coming out.
          (ii) I.W.- 4/2 cm x ½ cm x below deep on the left side of head ¼ cm left to
          injury no. (1).
          (iii) Abrasion 1 cm x1 cm on the back of the right elbow."
16. Sangam Lal (complainant) deposed as P.W.-1. He is the complainant as
well as an eye-witness to the incident. He deposed that he knows the accused
present in the court, namely, Daya Shankar, Onkar Nath, and Hiramani. The
accused Hiramani is the halwaha (ploughman) of accused Daya Shankar.
Girija Shankar (witness) and accused Daya Shankar are real brothers. Girija
Shankar has now colluded with his brother and is not interested in recording
his deposition in this case.
17. The incident took place on 14.09.1980 at around 12:00 noon. Sangam
Lal, his brother Dhananjay Lal, and Sri Ram Krishna Pandey (the son-in-law
of the deceased) were sitting under a neem tree near their dera
(farmhouse/shelter) in Manaiya Village. His grandfather (his father's elder
brother, namely, Brij Kishore) was grazing his animals in a nearby field.
Girija Shankar was cutting fodder in the khalihan (threshing floor), which is
adjacent to the agricultural field. At that time, all four accused persons,
namely, Daya Shankar, Onkar Nath, Dev Narain, and Hiramani suddenly
arrived, initiated a conversation with Girija Shankar and started beating him.
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                                5

The beating commenced under Umadutt's mango tree, located near their
dera towards the south. Dev Narain was armed with a lathi, while the other
accused persons Daya Shankar, Onkar Nath, and Hiramani were carrying
katwasas (chopping blades).
18. The motive behind the dispute was regarding the halwaha. Girija
Shankar had engaged a halwaha, and Daya Shankar insisted that he wanted
to keep the halwaha. On this issue, an altercation ensued. Thereupon, the
complainant's grandfather, Brij Kishore (the deceased), reached the spot and
tried to mediate, telling them not to quarrel with each other. Upon this, all
four accused turned on his grandfather and began beating him. Onkar Nath
struck his grandfather on the head with a katwasa, and thereafter Dev Narain
hit him with a lathi. His grandfather sustained injuries, fell to the ground,
and died immediately.
19. This witness specifically stated that Onkar Nath struck the head of the
deceased with a katwasa, which is a sharp/incised weapon. As noted in the
ante-mortem injury report, the deceased suffered incised wounds on his
head. The injuries were grave: the middle parietal bone was fractured, the
brain material oozed out, and there were two bone-deep incised wounds on
his head. Due to these severe injuries, he died instantaneously.
20. He further stated that the incident was witnessed by Shesh Narain,
Ambika Prasad, Siddh Narain, Ram Aadhar, Girija Shankar, Rajaram, and
others, besides himself. They all raised an alarm, exhorted the assailants, and
chased them, whereupon all the accused persons fled towards the east.
Thereafter, Ram Aadhar, Dhananjay Lal, and the complainant brought the
dead body of Brij Kishore to their doorstep. The complainant then prepared
a written report of the incident at his house and submitted it at the police
station. He verified the written complaint as Ext. Ka-1. He also stated that
Girija Shankar accompanied him to the police station, having sustained
injuries himself. This witness fully supported the prosecution's story in his
examination-in-chief.
21. In his cross-examination, he stated that the witness Dhananjay Lal is his
real brother. The wife of Brij Kishore (deceased) executed a registered deed
of his entire property in favor of the complainant, Dhananjay Lal, and Girija
Shankar. This registry was executed after the terahavi (thirteenth-day post-
death ritual) of Brij Kishore. Girija Shankar is the same person with whom
the quarrel took place and is a witness in this case. Altercations had occurred
several times between Girija Shankar and Daya Shankar regarding the
halwaha, but both halwahas had not left their employment with Daya
Shankar to join Girija Shankar.
22. After the assault, the complainant spoke to Girija Shankar and asked him
to contest the case, but Girija Shankar avoided it, stating that Daya Shankar
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                                 6

was his real brother and he would not testify against him. The complainant
further clarified that the name 'Dev Shankar' mentioned earlier was a human
error and should be read as 'Dev Narain'. Dev Narain and Hiramani are
father and son (Dev Narain being the father and Hiramani the son) and
belong to the Kol caste. Dev Narain and Hiramani had left Girija Shankar's
employment as halwahas approximately 2 to 5 months prior to the incident
and had joined Daya Shankar. Girija Shankar tried to persuade them to work
for him, but they did not agree. At the time of the incident, Dev Narain and
Hiramani were going to work as halwahas with Daya Shankar. It is true that
Girija Shankar did not pay proper wages to Dev Narain and Hiramani and
threatened them, which led them to leave him and join Daya Shankar.
23. The deceased, Brij Kishore, had no sons and only one daughter, Angur
Devi. She is married to the witness Ram Kishun (Ram Krishna Pandey) at
Village Nidauri, which is approximately 5 to 6 miles away from Manaiya
Village (the place of incident). The deceased was the exclusive owner of 10
to 11 bighas of agricultural land. It is belied to state that Brij Kishore
intended to give his land to Onkar Nath, as his wife and daughter were alive.
After the death of Brij Kishore, the complainant's father, Ram Chander, and
Girija Shankar obtained a registered sale deed from the widow of the
deceased. The sale deed was executed in favor of the complainant's six
brothers and Girija Shankar. The complainant, his brothers, and Girija
Shankar paid the consideration amount for the deed. Daya Shankar did not
pay any money; hence, his name is not in the sale deed.
24. The population area of Manaiya Village is located approximately 500
yards east of the place of incident. The accused are also residents of Manaiya
Village. On the day of the incident, the complainant and others had been
sitting at the dera since 10:00 A.M. The complainant and his brother were
cutting fodder using a machine, while his brother-in-law, Ram Krishna
Pandey, was sitting nearby. He did not mention in his report that he and his
brother were cutting fodder and Ram Krishna was sitting, as it was omitted
due to an oversight. (It is settled law that an F.I.R. is merely the baseline of
the prosecution's case and need not contain every detail).
25. Brij Kishore was grazing his animals (cows, buffaloes, and calves) 10
paces away from the spot. When the Investigating Officer came to the scene,
the complainant showed him the location where they were cutting fodder
and where the machine was installed. He did not specifically point out the
exact spot where he and Dhananjay were standing while cutting fodder, but
he showed him the overall place of incident.
26. The accused persons arrived and initially beat Girija Shankar. An
altercation and beating occurred between the accused and Girija Shankar
without any prior conversation. All four accused started beating Girija
                                                        CRLA No. 1544 of 1984
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Shankar with the weapons they carried. Girija Shankar sustained several
injuries from katwasas and lathis, as detailed above, receiving katwasa
/incised wounds on his head and lathi injuries on his body.
27. The complainant and Dhananjay started running from the location where
they were cutting fodder, and Ram Krishna ran alongside them. Ram
Krishna had arrived at their place after taking a bath in the River Ganga. He
had inquired about them at their home and, upon learning they were at the
dera, came over. Brij Kishore ran from the spot where he was grazing
animals, carrying a lathi. The complainant, Dhananjay, and Ram Krishna ran
towards the spot unarmed. Brij Kishore fell to the ground, and 4 to 5 paces
away from him, Girija Shankar also collapsed after sustaining injuries.
Blood oozed onto the ground at both spots where they fell, and the
complainant showed both bloodstained spots to the Investigating Officer.
28. In his examination-in-chief, the complainant stated that the incident was
witnessed by himself and several others, including Shesh Narain, Ambika
Prasad, Siddh Narain, Ram Aadhar, Girija Shankar, and Rajaram. He
explained that he did not record all these names as eye-witnesses in his
initial report because he considered two witnesses to be sufficient. (This
omission is not fatal to the prosecution's case, as it is not a mandatory
requirement for every minute detail to be mentioned in the F.I.R.). The
Investigating Officer recorded his statement regarding the incident, and the
complainant provided the names of all the persons who saw the occurrence.
However, those names were not recorded by the Investigating Officer, for
which the complainant could offer no specific explanation.
29. The complainant forgot to mention the names of Dhananjay and Ram
Krishna as witnesses during his examination-in-chief. He also forgot to show
the Investigating Officer the exact spot from where he and the other
witnesses observed the incident. When Brij Kishore (deceased) arrived, he
scolded all the accused and asked why they were beating Girija Shankar.
The complainant informed the Investigating Officer that Brij Kishore had
scolded the accused for the assault. Brij Kishore did not do anything else
apart from telling them to stop and scolding them. As soon as Brij Kishore
scolded them, accused Onkar Nath Dubey, Daya Shankar Dubey, and
Hiramani struck him with katwasas, and Dev Narain hit him with a lathi.
30. The complainant was unable to state specifically how many times Brij
Kishore was struck with katwasas. The lathi was swung only once, but it
struck the katwasa held by Onkar Nath rather than hitting Brij Kishore's
body directly. The complainant observed two katwasa injuries on Brij
Kishore's head—one caused by Onkar Nath, and the other caused either by
Hiramani or Daya Shankar, as both were armed with katwasas. He had
explicitly mentioned in his report that Brij Kishore sustained head injuries
                                                           CRLA No. 1544 of 1984
                                 8

due to Onkar Nath's katwasa blow. However, when confronted with the
written complaint, it was pointed out that the specific allegation that Onkar
Nath caused the head injury was not explicitly mentioned in the written
complaint, for which the complainant could offer no explanation. When Brij
Kishore was attacked with katwasas and lathis, he wielded his lathi in self-
defense. When the complainant first saw the accused persons, they were
beating Girija Shankar. All the accused persons beat Girija Shankar for a
duration of 3 to 4 minutes. Girija Shankar was holding a khurpa and a lathi,
and he used his lathi for 2 to 3 minutes in defense. Meanwhile, the
complainant's grandfather arrived at the spot.
31. The complainant noticed blood oozing from the head of accused Daya
Shankar as he fled. He admitted that he did not state in his report or in his
statement to the police officer that Daya Shankar had sustained a head injury
and was bleeding, explaining that this detail was inadvertently omitted. After
the incident, the accused persons fled towards the east. The complainant did
not mention to the Investigating Officer that villagers arrived from the west
side.
32. It is belied to state that Brij Kishore wanted to give his entire property to
Onkar Nath because of his affection for him or because Onkar Nath was
caring for him. It is further belied to state that Girja Shankar and I were
annoyed with Brij Kishore for this reason. It is also belied to state that on the
day of the incident, Girja Shankar and I initiated a quarrel with Brij Kishore.
33. It is belied to state that Girja Shankar and I assaulted Brij Kishore with a
lathi and a khurpa, or that Brij Kishore used a lathi in self-defense causing
injuries to Girja Shankar. In fact, as per the Injury Report of Girja Shankar
(Ext. Ka-5), he sustained six distinct injuries comprising one lacerated
wound, one incised wound, three bruises, and a complaint of pain which
stand duly proved and identified.
34. It is belied to state that after Brij Kishore's death, we colluded with the
police to file a false report against the accused persons due to prior enmity. It
is completed belied to state that no incident took place at the time and place
mentioned by me.
35. Dhananjay Lal Dwivedi deposed as P.W.-2. He is an eyewitness to the
said incident. He stated that on 14.09.1980, at around 12:00 noon, he was at
his dera in Manaiya village. He, along with his brother Sangam Lal and
brother-in-law Ram Krishna, was sitting under a neem tree near his dera. His
Dada (paternal grandfather) was grazing his cattle approximately 30 paces
south of the dera. At that time, Girja Shankar was cutting fodder 20 paces
west of their dera. Meanwhile, Daya Shankar, Onkar Nath, Dev Narain, and
Hiramani arrived from the south. Dev Narain was armed with a lathi, while
Daya Shankar, Onkar Nath, and Hiramani were armed with katwasas
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                                9

(chopping blades). These accused persons came towards Girja Shankar to
assault him. Girja Shankar also used his lathi in defense. The accused
reached him and commenced beating him; all four accused persons assaulted
Girja Shankar.
36. Brij Kishore ran to intervene and restrain the accused persons from
beating him. Thereupon, the accused turned towards the witness's
grandfather and started beating him. Onkar Nath struck the grandfather on
his head with a katwasa, and Dev Narain hit him with a lathi. The
grandfather screamed and fell to the ground, dying instantaneously. He
succumbed to his injuries under the mango tree of Uma Dutt Vaidya. This
incident was witnessed by the deponent, his brother Sangam Lal, and his
brother-in-law Ram Krishna. They exhorted the assailants unarmed and
rushed towards them, whereupon the accused persons fled the scene. Other
individuals working in nearby fields also saw the accused persons running
away. Daya Shankar and Onkar Nath are present in court today. Hiramani is
absent, and Dev Narain is absconding. The ploughman (halwaha) of Girja
Shankar had left his service and joined Daya Shankar, due to which Girja
Shankar frequently lodged complaints with the accused persons
37. We brought the dead body of Brij Kishore and the injured Girja Shankar
to our house. Thereafter, my brother Sangam Lal prepared the written report
of the incident. We went to the police station along with the injured Girja
Shankar, where my brother lodged the report. The injured Girja Shankar and
the accused Daya Shankar are real brothers.
38. In his cross-examination, this witness stated that Brij Kishore (the
deceased) was the real uncle of the accused Daya Shankar. Brij Kishore had
no son. The accused Onkar Nath is the son of Daya Shankar. There was no
dispute between Daya Shankar and Brij Kishore, nor did Brij Kishore have
any enmity with the accused Hiramani and Dev Narain. The witness further
stated that his dada (grandfather) was grazing his seven animals from 8:00
A.M. on the day of the incident. The Inspector recorded the witness's
statement on the date of the incident at 5:00 P.M.
39. The witness stated that he had informed the Inspector that 'the halwaha
(ploughman) of Girja Shankar had left his service and joined Daya Shankar.'
He offered no explanation as to why this statement was not recorded by the
Inspector. He added that Girja Shankar consistently complained to the
accused persons regarding this matter, and that this fact was also disclosed to
the Inspector. He could not explain why it was omitted from his recorded
statement. Finally, the witness testified that no quarrel had taken place
between Girja Shankar and the accused persons prior to the date of the
incident.
40. A katwasa is an instrument used to cut tree leaves. It features an incised
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                                 10

blade, slightly tilted, which is fixed onto a bamboo pole. A katwasa is a
heavy weapon. All four accused were holding weapons in their hands and
beat Girja Shankar, who sustained injuries as a result of the beating. When
Brij Kishore arrived at the scene, all four accused struck him with their
respective weapons. I saw Onkar Nath's katwasa hit Brij Kishore (the
deceased) on the head, and Dev Narain's lathi also struck him along with the
katwasa.
41. P.W.-1 and P.W.-2 both specifically stated that it was the accused, Onkar
Nath, who struck the head of the deceased with his katwasa. The katwasa is
a sharp-edged, incised weapon that struck Brij Kishore's head. His skull was
fractured, brain matter oozed out, and he sustained two incised wounds to
the head.
42. The incident involved a sharp-edged weapon, which was in the hands of
Onkar Nath. The eyewitnesses explicitly testified that Onkar Nath struck the
deceased, Brij Kishore, on the head, causing severe injuries. The incised
head wounds, fractured skull, and oozing brain matter fully corroborate both
the eyewitness testimony and the ante-mortem/injury reports of the
deceased. The other injured person, Girja Shankar, suffered lacerated
wounds, bruises, and body pain, which also aligns with the medical report
and eyewitness statements.
43. The widow of Brij Kishore executed a sale deed for his entire property in
favor of Girja Shankar, Dhananjay Lal, Sangam Lal, Sri Kant, Brahm Dutt
Murari, Shyam Murari, and Krishna Murari. Thereafter, it was stated that
some property still remained. Daya Shankar was excluded from the sale deed
because he had committed the murder of Brij Kishore. The widow of Brij
Kishore stated, 'I will not execute the sale deed in favour of Daya Shankar.'
44. Chatur Singh Mishra deposed as P.W.-3. He was posted as Head
Moharrir. He verified the written complaint (Ext. Ka-1), the check F.I.R.
(Ka-2), and the General Diary (Ka-3). He further stated, 'In the General
Diary (G.D.), I recorded the arrival of the injured Girja Shankar, noted his
injuries, and dispatched him for a medical examination accompanied by
Constable No. 20, Jagannath Mishra, to PHC Karchhana. In the same G.D., I
also recorded the departure (rawanagi) of the Investigating Officer (I.O.).'
He also recorded the arrival of the I.O. on September 15, 1980, at 8:15 A.M.
under Report No. 17 to enter the recovered material, which he verified as
Ext. Ka-4. He is a formal witness.
45. In his cross examination, he has stated that the distance between the
village Manaiya and police station Karchhana is about 3 miles. There is only
one way of going to Manaiya from the Police Station.
46. It is belied to state that prior to the registration of the FIR at the police
                                                             CRLA No. 1544 of 1984
                                 11

station, information regarding the incident had already been received without
mentioning the names of the accused. The Investigating Officer (I.O.) in this
case was Sripal Singh. It is belied to state that upon receiving the aforesaid
information, the Sub-Inspector (S.I.) left for the place of the incident. It is
further belied to state that the S.I., after having the report written by the
complainant, personally brought both the written complaint and the
complainant to the police station. It is also belied to state that the registration
of this case is ante-time.
47. Girja Shankar, who is stated to be the injured party in the said incident,
has deposed as P.W.-4. He has not supported the prosecution's version.
According to the prosecution, he is the real brother of the accused, Daya
Shankar, and is fully aware of the facts. The injury report of Girja Shankar,
as mentioned hereinabove, is dated 14.09.1980. It is corroborated by the
statement of the Head Moharrir (P.W.-3), who recorded Girja Shankar's
injuries in the General Diary (G.D.) and sent him for a medical examination
to PHC Karchhana. The Medical Officer of PHC Karchhana, Allahabad,
submitted Girja Shankar's injury report, dated 14.09.1980, having examined
his injuries at 2:45 P.M.
48. Girja Shankar (P.W.-4) stated: "The accused, Daya Shankar, is my real
brother. The accused, Onkar Nath, is my real nephew, and Brij Kishore was
my uncle. The incident occurred just after sunrise near a mango tree by the
nala of Manaiya village, where the murder took place. I did not see anyone
commit the murder of Brij Kishore. It is belied to state that at the time Brij
Kishore (deceased) was murdered, I was also beaten and sustained
injuries."
49. The prosecution declared him hostile, and he was cross-examined by the
Public Prosecutor. He further stated: "It is belied to state that on the day Brij
Kishore was murdered, the accused persons present in court beat me at
around 12:00 noon near the mango tree of Uma Dutt Vaidya with a katwasa
and lathis over a halwaha dispute. I did not go to the police station with
Sangam Lal to register the F.I.R."
50. Whereas, the P.W.-1 Sangam Lal has stated that he has gone to the
police station and it is also verified by P.W.-3 who has prepared the general
diary (G.D.) and recorded the arrival of this witness and sent him for
medical examination for the registration of his injuries. It is belied to state
that the police report was registered before myself and thereafter I had been
sent for medical examination at PHC Karchhana. There is no other person in
the village bearing my name and my father's name. The doctor has not
examined myself at PHC. The Inspector did not record any statement from
me regarding the incident; he recorded my name on his own to support the
prosecution's case. I never gave any statement. I had not recorded the
                                                          CRLA No. 1544 of 1984
                                12

statement that, "Meanwhile, my real brother Daya Shankar, nephew Onkar
Nath, Hiramani, and Dev Narain arrived carrying a katwasa and lathis, and
began beating me due to a dispute regarding a servant. My grandfather
objected to the beating and scolded them, whereupon they turned on him and
began beating him as well. Onkar Nath struck my grandfather on the head
with the katwasa, and at the same moment, Dev Narain hit him with a lathi
just above the wound, forcing the katwasa into his head. He collapsed,
screaming, and died."
51. I had not given this statement to the inspector. The inspector has
recorded his statement immediately after the incident, and he supported the
entire prosecution story in his statement under Section 161 Cr.P.C. However,
before the court, he denied this entire statement, even though the
documentary evidence and circumstances contradict his testimony, showing
that he went to the police station with the complainant, Sangam Lal, and was
sent for a medical examination for injuries at PHC Karchhana. He stated that
2 to 3 days after the incident, he came to know that his name was falsely
mentioned as an eyewitness, but he did not take any action to have his name
removed as a witness to the incident. It is probable that being the real brother
of Daya Shankar, he had colluded with his brother to give a false statement
to save him.
52. When he was cross-examined by the learned counsel for the accused, he
stated that his uncle, Brij Kishore, did not have any sons; he had only one
daughter. At the time of Brij Kishore's murder, his age was approximately
73 to 74 years. His nephew, Onkar Nath, was residing with Brij Kishore,
looking after his agricultural fields, serving him, and taking care of him. Brij
Kishore had immense love and affection for Onkar Nath for this reason. Brij
Kishore owned personal property totaling 9 to 10 bighas in Manaiya village
and Mungari village. On previous occasions, Brij Kishore used to say that he
would give his property to Onkar Nath.
53. It is belied to state that for this reason, he, Sangam Lal, Dhananjay Lal,
and Brij Kishore's son-in-law (Ram Krishna Pandey) were annoyed with the
deceased, Brij Kishore. We all told Brij Kishore that since we were his
successors, he should not give his property exclusively to Onkar Nath. It is
belied to state that on the day of the incident, he was cutting animal fodder in
the field. Fodder is cut using a Hasiya, Gadasa, or Khurpa, all of which
cause incised wounds. On the date of the incident, Ram Krishna (Brij
Kishore's son-in-law) had not visited their village, Manaiya; he was not seen
in the village that day. Dev Narain and Hiramani belong to the Kole caste,
and Hiramani is the son of Dev Narain. Dev Narain and Hiramani were
working as halwaha (ploughman) for Daya Shankar. Even prior to the
incident, no dispute had taken place between him and Dev Narain or
                                                          CRLA No. 1544 of 1984
                                13

Hiramani regarding their work as halwaha, nor had any dispute occurred
between him and Daya Shankar.
54. After the death of Brij Kishore, Sangam Lal, Dhananjay, and others
without paying any consideration and after threatening Brij Kishore's widow
had a sale deed for the entire property executed in their favor. He claimed
that if his name was included in that sale deed, he was unaware of it. It is
completely unbelievable that his name was included in the sale deed without
his knowledge, especially when other witnesses specifically stated that Girja
Shankar's name was also included in it. Subsequently, he admitted that his
name was indeed included in the sale deed, suggesting he sought to protect
Sangam Lal and gave a false statement after concealing the truth.
55. He stated that while he was cutting fodder, Brij Kishore was grazing his
animals a short distance away. It is belied to state that he and Sangam Lal
had engaged in any quarrel with the deceased, Brij Kishore, over his
property. It is also belied to state that during the quarrel, he and Sangam Lal
were on one side while Brij Kishore was on the other side. Furthermore, it is
belied to state that he beat Brij Kishore with a Khurpi and Sangam Lal hit
him with a lathi, or that Brij Kishore simultaneously hit him with a lathi,
causing him to suffer injuries. He claimed he did not suffer any injuries on
the date of the incident; however, this is demonstrably false, as his injuries
were proven by the medical examination report from that date, which was
also discussed. The inspector arrived at the scene of the incident at 12:00 PM
on the day of the occurrence. Brij Kishore had already died by that time. The
inspector talked with him, Sangam Lal, and Dhananjay about the incident. In
consultation with the inspector, the report against the accused persons was
prepared in the village. It is correct that the inspector then took him and
Sangam Lal to the police station. His statement is self-contradictory.
Previously, he stated that he had not visited the police station. He then
further stated that the documentation took place at the police station, and he
was sent for a medical examination from the police station to PHC
Karchhana. He claimed his injuries were not examined because he had
suffered none, which directly contradicts both documentary and
circumstantial evidence. If the inspector recorded something, he claimed he
was unaware of it.
56. Ram Krishna, who is the son-in-law of the deceased Brij Kishore, was
produced by the prosecution as an eyewitness (P.W.-5). In his examination,
he stated that the incident occurred on September 14, 1980, which was a
Sunday, at around 12:00 noon. At the time of the incident, he was sitting
under a neem tree alongside Sangam Lal and Dhananjay Lal. His father-in-
law, Brij Kishore, was grazing animals approximately 30 paces away from
where they were sitting. Girja Shankar was about 20 paces away from them,
                                                          CRLA No. 1544 of 1984
                                14

cutting fodder with his khurpa. He stated that he saw Dev Narain, Heera
Mani, Daya Shankar, and Onkar Nath coming from the south. Dev Narain
was armed with a lathi, while the other three were carrying katwasas. All the
accused, except Dev Narain, were present in court. Upon seeing these men,
Girja Shankar grabbed his lathi, whereupon the accused began beating him.
Seeing this, his father-in-law, Brij Kishore, came over and scolded them.
The accused persons then turned towards Brij Kishore and began beating
him instead. Onkar Nath struck Brij Kishore on the head with a katwasa.
Dev Narain, who had a lathi, struck the upper part of the katwasa. He noted
that he was unsure where else the lathi blows landed.
57. His father-in-law died instantly at the scene under the mango tree of
Uma Dutt Vaishya. He was murdered on that spot. When they saw the
assault, they ran towards the scene, prompting the accused persons to flee
towards the east. Girja Shankar was lying about 4 to 5 paces away, having
also sustained injuries. They brought Brij Kishore's body to the doorstep of
his house. Sangam Lal drafted the report at his house and subsequently left
for the police station, accompanied by Girja Shankar, Dhananjay, and Ram
Aadhar. Girja Shankar was carried on a cot. The dera (farmhouse/shelter) of
Sangam Lal and Brij Kishore is the same. The incident occurred in Manaiya
village.
58. He clarified that he is a resident of Nidauri village, located
approximately 5 miles south of Manaiya. On the day of the incident, his wife
and children were at Nidauri. He mentioned that he used to visit Manaiya
village every Sunday to take a bath in the Ganga, on that day, he had come
solely for that purpose. After his bath, he went to Brij Kishore's house, had
breakfast, and inquired about the whereabouts of Sangam Lal and Dhananjay
Lal. Upon being informed that they were at the dera, he went there as well.
59. He further stated that Daya Shankar and Girja Shankar are both his
cousin brothers-in-law. He was sitting on a cot conversing with Sangam Lal
and Dhananjay Lal when the incident began. He noted that Girja Shankar
was not beaten at the exact spot where he was cutting fodder; after spotting
the accused, Girja Shankar had moved 4 to 5 paces east to grab his lathi. The
Investigating Officer recorded his statement under Section 161 of the
Cr.P.C. approximately 24 to 25 days after the incident. Consequently, it is
argued that he is not a genuine eyewitness and his statement is highly
belated.
60. He is not the sole witness to the incident. There are several eyewitnesses,
and the circumstances are further corroborated and verified by the injury
report and medical records. Merely recording a statement after a delay of a
few days cannot form the sole basis for the fatality of the entire prosecution
case. He specifically stated: "My father-in-law, Brij Kishore, was grazing
                                                          CRLA No. 1544 of 1984
                                15

animals with a lathi. All four accused persons struck him with their weapons
for 1 to 2 minutes. Whether he suffered injuries from the weapons of all four
accused, I am unable to give a specific reply, but he did suffer injuries. Girja
Shankar had kept his lathi under the mango tree of Uma Dutt. When he went
to collect it, he was beaten at that location and fell to the ground. The
accused persons then ran toward Girja Shankar. When the four accused ran
to beat Girja Shankar, we did not immediately run to save him. Even when
they began beating him, I, Sangam Lal, and Dhananjay did not run to his
rescue. Girja Shankar did not raise an alarm, shout, or call for help because
everything happened so suddenly that he had no time to react. However, Brij
Kishore raised his voice to save himself. Brij Kishore, who was grazing
animals nearby, rushed from that spot with his lathi to save Girja Shankar.
As Brij Kishore arrived to save him, all the accused turned and began
beating Brij Kishore with their weapons. At that point, myself, Dhananjay
Lal, and Sangam Lal ran to save him; we exhorted the assailants and ran
toward them, scolding them. When Girja Shankar and Brij Kishore were
being beaten, no other person was present in the nearby fields. When the
accused began beating Brij Kishore, Brij Kishore did not raise an alarm.
However, when we raised an alarm, the villagers heard the noise and rushed
to the spot; by that time, the accused persons had fled. Those villagers saw
the accused persons as they were fleeing. We brought the dead body to the
house, after which I returned to my own home. I returned to the spot on the
same day at 6:00 PM after bringing my wife (the daughter of the deceased,
Brij Kishore). When I returned, the Inspector was not present in Manaiya
village, though the dead body of Brij Kishore was still there. The Inspector
did not visit that night. Around 7:00 PM on the same day, four constables
took the dead body of Brij Kishore, which had been sealed.
61. He further stated in his cross-examination: "I met the Inspector after 24
days. In the meanwhile, I did not meet him. The police neither came to my
house nor sent anyone to summon me. Brij Kishore was beaten by all four
accused persons for 1 to 2 minutes. It is belied to suggest that I was not
present at the dera of Sangam Lal on the day and time of the incident or that
I did not witness it. It is equally belied to stated that Sangam Lal and
Dhananjay Lal, in consultation and conspiracy with the police personnel,
fabricated the report against the accused persons and recorded false
statements."
62. Dr. A.K. Kochhar, who examined Girja Shankar on 14.09.1980, stated
that he medically examined the injuries of Girja Shankar on 14.09.1980 at
2:45 P.M. at PHC Karchhana. He also verified the fact that the injured was
brought by Constable Jagannath Mishra (C.P. No. 20) of the police station.
This is corroborated by the statement of P.W.-3 (Head Moharrir), who sent
                                                              CRLA No. 1544 of 1984
                                 16

the injured for medical examination. Jagannath (C.P. No. 20) specifically
mentioned all the injuries of the injured, as recorded in Ext. Ka-5, and
verified the following injuries:
          "Injury report
          Examined Shri Girija Shankar aged about 30 years s/o Shri Ram Pragas
          R/o Vill Manaiya, P.S. Karchhana Allahabad on 14.09.1980 at 2:45 PM.
          Brought by Sri Jagan Nath Mishra, C.P. No. 20 P.S. Karchhana Alld.
          M.I.- a black til on lt. side of face distance 3cm from lt. angle of mouth.
          No. of Injuries:- (1) lacerated wound 3.5 cm x ½ cm x ½ cm on lt. side of
          head distance 8 cm from top of lt. ear with irregular margins and blood
          oozing out.
          (2) Incised wound 1.5 cm x ¼ cm x ½ cm in between little and ring finger
          of lt. hand with regular margins and blood oozing out.
          (3) Bruise 11 cm x 2 cm on lt. side of back in scapular region distance 2
          cm from spine.
          (4) Bruise 1 cm x 1 cm on lt side of back distance 12 cms below post fold
          of axilla.
          (5) Complaint of pain and tenderness on lt. side of back in lumbar region
          just above iliac crest.
          (6) Bruise 4 cm x 3.5 cm on outer surface of lt. thigh distance 30 cm above
          knee joint.
          All injuries No.1 to 6 are simple and caused by blunt object except injury
          no. (2) which is caused by sharp edged object.
          Duration- About ¼ days old."
63. He opined that all the injuries were simple in nature. Except for injury
No. 2, which was caused by a sharp-edged/incised weapon, all other injuries
were caused by a hard, blunt object. At the time of examination, all the
injuries were approximately 6 hours (¼ day) old. These injuries could have
been caused to the victim at around 12:00 noon on September 14, 1980.
Injury No. 2 was possibly caused by a katwasa, whereas all the other injuries
appeared to have been caused by a blunt object, such as a lathi.
64. During cross-examination by the learned counsel for the accused, he
stated that he had prepared the injury report on plain paper provided by the
police station, rather than on a printed form. The requisition received from
the police station mentioned neither a case number nor a crime number. He
further admitted that the injuries could have occurred 2 to 3 hours prior to
12:00 noon and injury No. 2 could also have been caused by a sharp piece of
iron, tin, or glass. He had not asked the injured person how he sustained
these injuries. He verified the injury report of Girja Shankar as Exhibit Ka-5,
which corroborates the statements of the eyewitnesses and the overall
prosecution narrative.
65. Jagannath Prasad was examined as P.W.-7. He stated that he was posted
as a constable and on September 14, 1980, at 2:45 P.M., he took the injured,
Girja Shankar, to the Primary Health Center (PHC) for a medical
examination. He further identified and verified the injured Girja Shankar
before the doctor.
                                                              CRLA No. 1544 of 1984
                                 17

66. There is no dispute regarding these statements that Girja Shankar had his
injuries examined by the doctor at PHC Karchhana at 2:45 P.M. on the date
of the incident, September 14, 1980. This is fully corroborated by the
prosecution's story and the testimonies of the eyewitnesses, as well as the
deposition of P.W.-7, who took the injured from the police station to PHC
Karchhana for his medical examination.
67. Despite being given the opportunity to cross-examine, the accused chose
not to cross-examine this witness; hence, this testimony remains
uncontroverted and fully admissible.
68. Dr. K.K. Bhargava (P.W.-8), who conducted the post-mortem
examination of the deceased on September 15, 1980, at 3:20 P.M., observed
the following ante-mortem injuries:
          "A.M. Injury:
          (i) I.W.- 6"x 3/4x bone deep on the left side of head in the middle parietal
          bone fractured below the injury. Brain material coming out.
          (ii) I.W.- 4"/2"x 1/2x below deep on the left side of head ¼" left to injury
          no. (1).
          (iii) Abrasion 1"x1" on the back of the right elbow."
69. He has also stated that the death of the deceased occurred at
approximately 12:00 noon on 14.09.1980. The injuries inflicted on the
deceased by an incised weapon could have been caused by a katwasa,
and Injury No. (3) may have been caused by a blunt object such as a
lathi.
70. In his cross-examination, he stated that there may be a variation of
4 to 6 hours on either side regarding the time of death. The deceased
suffered two separate head injuries, which were caused by two distinct
attacks. The injury to the head of the deceased was inflicted by a heavy
incised weapon, though it could also have been caused by a lighter
incised weapon, such as a katwasa, if used with sufficient force.
71. There is medical corroboration regarding the injuries, the weapon
used, and the statements of the eyewitnesses that the injury could have
been caused by a katwasa if struck forcefully. When explicitly
questioned by the court, the doctor affirmed that Injury No. (1) was
ordinarily sufficient to cause death in the ordinary course of nature.
This point was not disputed by the defense during cross-examination.
Although an opportunity for cross-examination was provided, the
doctor was not cross-examined by the accused persons, and his cross-
examination was accordingly recorded as nil.
72. P.W.-9/Sripal Singh, Investigating Officer (I.O.), conducted the
investigation. He was posted as Sub-Inspector at Police Station Karchhana
                                                            CRLA No. 1544 of 1984
                                 18

on the date of the incident on 14.09.1980. He stated that this case was
registered in his presence and he received information regarding the said
case. He first prepared the inquest report of Brij Kishore (deceased), and
thereafter, he prepared the panchayatnama, challan lash, and chalan photo
lash. These documents were verified by him as Ext. Ka-7 to Ext. Ka-9. He
had also written a letter to the Medical Officer, verified by him as Ext. Ka-
10, and another letter to the Medical Officer for taking possession of the
clothes from the body of the deceased to be sent to the police station. The
entry regarding the receipt of the clothes at the police station was written by
him, which has been exhibited as Ext. Ka-11.
73. He had also prepared the memo of the blood-stained angocha
(towel/cloth) of the deceased, verified by him as Ext. Ka-12. Thereafter, he
recorded the statements of the complainant and other witnesses at Manaiya
village. He then inspected the site of the incident at the pointing out of the
complainant and prepared the site plan, verified by him as Ext. Ka-13. He
collected sample soil and blood-stained soil, kept them in separate
containers/boxes, and verified the memo as Ext. Ka-14. He executed the
attachment warrant against Dev Narain on 18.09.1980 and prepared the
memo, which is verified by him as Ext. Ka-15. Thereafter, upon completion
of the investigation, he submitted the charge-sheet, which is verified by him
as Ext. Ka-16. He had also sent the collected blood-stained clothes of the
deceased as well as the sample soil to the Forensic Science Laboratory
(FSL), Agra, for chemical examination. He further stated that he recorded
the statement of Girja Shankar, who was seriously injured and is the real
brother of the accused Daya Shankar. He recorded the statement on
15.09.1980 at 7:00 A.M. in corroboration of the said incident. He also
verified that after registration of the F.I.R., he sent the injured witness, Girja
Shankar who had arrived along with the complainant to PHC Karchhana for
medical examination accompanied by a constable. He verified the recorded
statement of Girja Shankar, which reads: "इसी बीच मेरा सगा भाई दया शंकर गिरकर
मर गया (is beech mera saga bhai Dayashankar girkar mar gaya)". A copy of
this statement was filed by him and exhibited as Ext. Ka-17. He stated that
he recorded the statement of Ram Krishna Pandey on 09.10.1980 at 7:30
A.M. on the road near the PHC. He further stated that this witness had not
met him prior to that date.
74. In his cross-examination, he stated that the complainant, Sangam Lal,
along with witnesses Dhananjay and Ram Adhar, and the injured Girja
Shankar, came to the police station for registration of the F.I.R. He was
present at the police station at that time. They reached the police station at
2:15 P.M. during the day. He did not record the statements of the
complainant and the witnesses at that time at the police station because he
                                                          CRLA No. 1544 of 1984
                                19

preferred to prepare the inquest report at the earliest. He stated that they
reached village Manaiya at about 3:15 P.M. The dead body of the deceased
was lying in front of the door under a neem tree. He commenced the
preparation of the inquest report at 3:15 P.M. and completed it at 4:15 P.M.
He recorded the statements of the witnesses after the preparation of the
inquest report, which took approximately 1 to 1¼ hours. He did not find any
lathi either at the place of incident or at the house of the deceased, belonging
to either Brij Kishore or the injured Girja Shankar, nor did anyone hand over
a lathi to him. The khurpa (sickle) of Girja Shankar was neither shown to
him by anyone nor did he see it himself.
75. After preparing the inquest report, he recorded the statements of the
complainant, Sangam Lal, and witness Dhananjay, and did not record the
statement of any other eyewitness at that time. He inspected the spot and
prepared the site plan at the pointing out of Sangam Lal and witness
Dhananjay. He did not prepare the site plan at the pointing out of any other
person. He did not mention any agricultural field of chari at the place of
incident, nor did he mark specific locations where the witnesses were
standing or sitting in the site plan. He did not find any fodder-cutting
machine nat the place of incident. He did not show the route or direction
towards the east through which the accused arrived and departed because no
one had informed him about it. He did not mark the place where the
deceased, Brij Kishore, was grazing his animals because no one pointed out
that location to him. The inspection of the place of incident took him
approximately one hour.
76. After inspecting the place of incident, he recorded the statements of 3 to
4 persons; these persons were not eyewitnesses, but were witnesses to the
inquest report and the recovery memo of the blood-stained soil. Between
reaching village Manaiya and leaving the village the next morning, witness
Ram Krishna Pandey did not meet him. He remained in the village until
5:00–5:30 A.M. the following morning, after which he went to the hospital
to record statements. He did not record the statements of Shesh Narain,
Ambika Prasad, Siddh Narain, Ram Adhar, and Rajaram as eyewitnesses. He
had recorded the statements of only Ambika Prasad and Ram Adhar, but
they were not eyewitnesses.
77. He went to the house of Ram Krishna Pandey during the investigation,
but the witness was not found there; however, he did not record this detail in
his case diary. He did not send any constable to the house of Ram Krishna
Pandey to summon him for recording his statement. He asked Sangam Lal
and Dhananjay to provide the names of any other persons who had witnessed
the incident, but they did not mention or provide the names of any other
villagers. He made independent efforts to ascertain who else had witnessed
                                                          CRLA No. 1544 of 1984
                                20

the incident, but was unable to obtain any further information. He further
stated that during the preparation of the inquest report, he took the blood-
stained clothes from the body of the deceased and sealed them. When the
sealed bundle was opened before him and the angocha of the deceased was
shown to him, he stated that it was the same angocha that had been
recovered by him from the dead body of the deceased, which is exhibited as
Ext. Ka-1. He had also removed the blood-stained ganji, blood-stained janeu
and blood-stained dhoti. These items were produced before him and
identified by him, which are exhibited as Ext. Ka-2, Ext. Ka-3, and Ext. Ka-
4, respectively.
78. During his inspection of the place of incident, he collected blood-stained
soil and plain sample soil, placed them in two separate boxes, and sealed
them. These items were produced before him and identified by him, which
are exhibited as Ext. Ka-5 and Ext. Ka-6. Upon returning on 15.09.1980
from the place of incident to the police station, he deposited the three sealed
bundles in the malkhana vide General Diary (G.D.) Entry No. 17.
79. In his cross examination, he has further stated that he has not taken the
signature of the witnesses on these boxes. The statement of Onkar Nath who
is the sole alive appellant and the person who has hit with katwasa on the
head of the deceased, thereby, the deceased died at the spot. He has stated
that Hiramani was working as ploughman with us. He was not working as
ploughman with Girja Shankar. He has denied all the evidences recorded
against him. He has stated that charge sheet has been wrongly filed against
him. He stated that the evidence was recorded against him due to enmity and
that the prosecution had proceeded against him out of spite. In response to
the general query, he stated that his defense was the same as the statement of
his father, Daya Shankar.
80. Meanwhile, the appellant Daya Shankar (who died during the pendency
of the appeal) had stated in his examination under Section 313 Cr.P.C. that
the deceased, Brij Kishore, was his uncle. He stated that Brij Kishore
intended to give his entire property to his son, Onkar Nath, which caused
annoyance to Girja Shankar, Sangam Lal, and Dhananjay Lal. Consequently,
Girja Shankar and Sangam Lal entered into a quarrel and committed an
assault, during which Brij Kishore sustained injuries and they had been
falsely implicated in the case.
81. In the instant case, Girja Shankar is an injured person who turned hostile
and did not support the prosecution case regarding his injuries. Although he
supported the prosecution version during the investigation, he subsequently
turned hostile and resiled from his earlier statement during the trial stage
before the Sessions Court.
82. The accused, Daya Shankar, and the injured witness, Girja Shankar, are
                                                          CRLA No. 1544 of 1984
                                21

real brothers. It is the specific case of the prosecution that Girja Shankar
turned hostile due to collusion with his real brother, Daya Shankar, as he did
not wish to testify against him. Girja Shankar is not an accused in the present
case; he is only an alleged injured witness.
83. The Hon'ble Supreme Court in State of Haryana Versus Chandvir and
others, 1996 SCC(CRI) 728, has held that the Court has to endeavour to
separate the grain from the chaff and accept that part of the evidence which
is found to be truthful and consistent. The Hon'ble Supreme Court in Mani
@ Udattu Man and others Versus State represented by the Inspector of
Police, 2009(67) ACC 526 (SC) has held that the Court is duty bound to
separate chaff from gain. Evidence not to be disregarded in all respect. Part
of evidence found worthy of acceptance. May be used for conviction of the
accused.
84. The Hon'ble Supreme Court in Sheo Shankar Singh Versus State of
Jharkhand, AIR 2011 SC 1403, has held that the examination of witness
where there is delay of 1 and ½ month in recording the statement of the
witness who had come to the place of occurrence 7-8 minutes after
occurrence, would not ipso facto render testimony of witness suspect or
affect prosecution version. The Hon'ble Supreme Court in Abuthagir vs
The State (represented by the Inspector of Police, Madurai), 2011 (1)
SCC (Cri) 970, has held that, in the matters of criminal trial the approach of
the Court in the appreciation of evidence must be integrated and not tru
ncated or isolated. The court must analyze and assess the evidence of yard
stick of probabilities, its intrinsic value and animus of witnesses and
thereafter reach its conclusion. It is held by the Hon'ble Supreme Court in
Brahm Swaroop and Anr. v. State of Uttar Pradesh and others, AIR
2011 SC 280 that if there is omission in the inquest report to mention crime
number, name of the accused, penal provisions under which offences have
been committed, it is not fatal to prosecution. Some omission do not lead to
inference that F.I.R. is ante timed. Evidence of eye-witness cannot be
discarded if their names do not figure in inquest report. The inquest report is
not substantive evidence, but may be utilized for contradicting witness of
inquest.
85. It is held by the Hon'ble Supreme Court in Animireddy Venkata
Ramana & Ors. v. Public Prosecutor, High Court of Andhra Pradesh,
2008 (2) SCC (Cri) 600 that F.I.R. need not be encyclopaedic. Each and
every
need not be encyclopaedic. Each and every detail of the incident need not be
stated.
86. In view of these facts and circumstances and upon proper appreciation of
the evidence, there is categorical evidence against the accused/Onkar Nath
                                                                                              CRLA No. 1544 of 1984
                                                                    22

                                    that he had hit with katwasa. It has been corroborated by the ante mortem
                                    injuries recorded in the post mortem of the deceased as well as by the
                                    testimony of the eyewitnesses to the incident.
                                    87. The prosecution has proved its case beyond reasonable doubt against the
                                    accused/Onkar Nath Dubey son of Jai Shankar Dubey. The judgment and
                                    order dated 28.05.1984 passed by learned Additional Sessions Judge,
                                    Allahabad in S.T. No. 96 of 1983 against Onkar Nath Dubey is entitled to be
                                    confirmed. It is hereby confirmed.
                                    88. The present criminal appeal filed by the Onkar Nath Dubey/sole living
                                    appellant in the present appeal is liable to be dismissed.
                                    89. The present appeal of still living appellant Onkar Nath Dubey is hereby
                                    dismissed.
                                    90. The appellant is presently on bail. The appellant, Onkar Nath Dubey, is
                                    directed to surrender before the learned Trial Court within 15 days from
                                    today to complete the sentence imposed on him. The previous period spent
                                    in jail will be adjusted. Upon his surrender, his bail bonds and personal
                                    bonds shall stand cancelled and the sureties shall be discharged. If the
                                    appellant fails to surrender within the stipulated period before the learned
                                    Trial Court, the learned Trial Court shall forthwith proceed in accordance
                                    with law to take him into custody to undergo the sentence imposed upon
                                    him.
                                    91. A copy of this order shall be sent to the learned trial court for necessary
                                    compliance.
                                    September 16, 2026
                                    K.K. Maurya
                                                                                               (Abdul Shahid,J.)




Digitally signed by :-
KAMLESH KUMAR MAURYA
High Court of Judicature at Allahabad