Yogesh vs State Of U.P. on 19 May, 2026

Allahabad High Court

Yogesh vs State Of U.P. on 19 May, 2026

Author: Siddhartha Varma

Bench: Siddhartha Varma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 

 
A.F.R.
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
CRIMINAL APPEAL No. - 5319 of 2021
 

 
Yogesh
 

 
..Appellant(s)
 

 

 

 

 
Versus
 

 

 

 

 
State of U.P.
 

 
..Respondent(s)
 

 

 
Counsel for Appellant(s)
 
:
 
Arya Suman Pandey, Ashutosh Singh, Ayush Mishra, Rajiv Lochan Shukla, Saurabh Pandey, Sunil Kumar Misra, Suresh Chandra Pandey
 
Counsel for Respondent(s)
 
:
 
G.A.
 

 

 
Along with :
 
1.	Criminal Appeal No. 5365 of 2021:
 
	Ragvendra @ Kaalu
 
Versus
 
	State of U.P.
 
2.	Criminal Appeal No. 5307 of 2021:
 
	Roby Alias Sanjeev Kumar
 
Versus
 
	State of U.P.
 

 
Court No. - 42
 

 
HONBLE SIDDHARTHA VARMA, J.

HONBLE PRASHANT MISHRA-I, J.

1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Neeja Srivastava, learned counsel for the appellant in Criminal Appeal No. 5307 of 2021; Sri Sagheer Ahmad, learned Senior Advocate assisted by Sri Tripurari Pal, learned counsel for the appellant in Criminal Appeal No. 5365 of 2021 and Sri Suresh Chand Pandey along with Sri Saurabh Pandey, learned counsel for the appellant in Criminal Appeal No. 5319 of 2021; Sri Naseeruzzaman, learned counsel appearing for the informant and Sri C.B. Dhar Dubey, learned A.G.A. for the State were extensively heard.

SPONSORED

2. These three Criminal Appeals have been filed by the three convicted accused persons namely Roby @ Sanjeev Kumar, Raghvendra @ Kaalu and Yogesh against the judgment and order dated 24.09.2021 passed by the Sessions Judge, Aligarh in Session Trial No. 109 of 2003 arising out of Case Crime No. 307 of 2002, under Section 302/34 of I.P.C., Police Station Gandhi Park, District Aligarh. A fine of Rs. 20,000/- had also been imposed and they had to go additional rigorous imprisonment for six months in default of the payment of fine.

3. Upon an incident that had occurred on 27.04.2002 at around 07:00 AM, a first information report was lodged at 07:45 AM by one Balveer Singh, Advocate R/o Press Colony, Police Station Civil Lines, District Aligarh alleging that on 27.04.2002 in the morning, he had gone to drop his son Sanjeev Chaudhari at Dharm Samaj Mahavidyalaya (hereinafter called the D.S. Mahavidyalaya) on his Maruti car (UP 81 D 7155). He had stated that it was the last paper of the B.A. final year and that along with him his nephew, Ramesh, Vimal and Jugendra, had also accompanied him. He had stated in the first information report that when at 07:00 AM they had reached the D.S. Mahavidyalaya gate then his son got out of the car and went inside the college. At that moment Roby @ Sanjeev Kumar son of Bhupendra Singh, Kaalu son of Shailendra and Yogesh son of not known to the complainant, were waiting inside the college and they, from their country made pistols with an intention to kill the son of the applicant Sanjeev Chaudhari, fired upon him. It has been stated that because of the firing done on the son of the complainant, he died on the spot. This incident, he had stated, he had himself seen and was also witnessed by the persons who were accompanying him in the car. He had also given the motive for the firing that the three assailants because of some enmity owing to some land dispute etc. had committed the murder. He had stated that the dead-body of his son was lying at the spot and he had prayed for action.

4. Upon having lodged the report, police had got into action and from the spot in question recovered one live cartridge of 315 bore and one country made pistol of 315 bore from the pocket of the pant (jeans) worn by the deceased, Sanjeev Chaudhari. A description of the pistol was also given. From the right pocket of the pant, three cartridges of 315 bore were also recovered. The 315 bore pistol alongwith the four cartridges were recovered and sealed and also a recovery memo of them was prepared as Exhibit Ka-9. From the spot, where the dead-body was lying, the plain soil and the soil which had blood stains was collected and recovery memo of it was prepared as Exhibit Ka-3. From the possession of the deceased, one pen of Renault (white colour) was also recovered. An empty cartridge of 315 bore which was found at the site was also recovered and the recovery memo of the pen and the cartridge was prepared as Exhibit Ka-4. The inquest report (panchayatnama) was also prepared. The proceeding of the panchayatnama commenced at 08:55 AM and was completed at 10:45 AM. The witnesses of the panchayatnama were Narendra Singh, Satish Singh, Ram Bhool, Karan Pal Singh and Ravindra Pal Singh. Upon the preparation of the panchayatnama, the dead-body along with all the required documents was sent for post-mortem immediately at 10:45 AM. For the post-mortem, it is evident, that the body reached the Office of the Reserve Inspector at 03:40 PM. Thereafter, it reached the hospital where the post-mortem had to be conducted at 04:10 PM. Upon the conclusion of the investigation, charge-sheet was submitted by the police on 28.05.2002 and thereafter the court framed charges against the accused persons namely Roby @ Sanjeev Kumar, Raghvendra @ Kaalu and Yogesh. Charges were read out to the accused persons and when they denied the same, trial commenced.

5. From the side of the prosecution, as many as five witnesses were produced. PW-1 and PW-2 were the witnesses of fact.

6. The PW-1, Balveer Singh, was the father of the deceased. He, in his statement-in-chief, had submitted that he practiced in Aligarh Civil Court as a lawyer and that at the time of the incident his son, Sanjeev Chaudhari, was appearing as a student in the D.S. Mahavidyalaya for the final year exam. On 27.04.2002, he had stated that he had taken his son, Sanjeev Chaudhari, in his Maruti car (UP 81 D 7155) from his house at Press Colony to the college in the morning. Accompanying the father and the son was the real nephew of Balveer Singh, Ramesh. Other family members namely Vimal and Jugendra also accompanied the PW-1. He had stated that when he had reached the College D.S. Mahavidyalaya at 07:00 AM, his son got out from the car and went inside the gate of the college. He had further stated that he, alongwith the three persons who had accompanied him, was watching the son of the applicant, Sanjeev Chaudhari, going inside the college. He further stated that at the moment when his son Sanjeev Chaudhari had entered the gate and had walked a little distance inside the college, Roby @ Sanjeev Kumar, Raghvendra @ Kallu and Yogesh were waiting for his son, Sanjeev Chaudhari. They fired upon his son with their country made pistols and because of the injuries sustained by Sanjeev Chaudhari by the firing, he fell down and died on the spot. He had stated that the entire incident had been seen by him and the accompanying persons. He thereafter shouted for help and all the accused persons ran away. He had very categorically stated that the accused had enmity with his son because of some plot of land and therefore they had killed him. Continuing with his statement, he told in detail about the first information report lodged at the Police Station Gandhi Park. Also the details of the dates was given by him. He looked at the tehrir and stated that it was that very document which he had written and had signed upon. He had thereafter stated that the accused persons were criminals who had earlier also committed various crimes and cases against them were going on. In his cross-examination, he had stated that he had been practicing since 1980 and that he was satisfied with his profession. He had thereafter stated that he could not with certainty say that all his clients were satisfied with him. However, he prepared all his cases earnestly. He had stated that on the preceding two occasions when the examination of his son was going on, he had gone to drop him. He had stated that his son had told him about the enmity with the accused persons and that was the reason he accompanied him to the college. He had stated that whenever he used to go to the college, he was always accompanied by some acquaintance or by his family members. On that day also he was accompanied by the relatives. Before the last paper, his son had already appeared in all the papers on the scheduled dates from 07:00 AM to 10:00 AM. He had stated that at the relevant point of time his son did not have any license to carry firearm. None of the family members also had any license to carry firearms. The nephews who had accompanied him did not stay with him at Aligarh. As and when they were required they were called by phone. Prior to the date of incident, he had called them and they had reached at 06:00 PM in the previous evening. Jugendra was the son of his real brother-in-law (sala). He had also reached the house one day prior to the incident. At the time of the incident, PW-1 was staying in mohalla Press Colony, Police Station Civil Lines, District Aligarh. He had stated that even though the accommodations in the Press Colony were given to government employees, because of some acquaintance he was staying there. The house in which he was staying had only two small rooms. At the time of the incident, he along with his wife and three sons was staying there. On the night preceding the day when the incident had occurred, in the quarter there were eight members. He had very categorically stated that Sanjeev Chaudhari did not have any country made pistol or cartridges and that on the date of incident also he did not have any firearm or cartridges and that only after the panchayatnama, he came to know that from the possession of his deceased son a country made pistol and cartridges were recovered. Apart from the country made pistol and cartridges, one mobile phone, one pen, one gold chain and one purse were the articles which were recovered. He had stated that he had no knowledge of the fact that as to whether any identity card or admit card was recovered from the possession of his son. He had stated that it was not correct that before the examination commenced, the answer books were given to the students 15 minutes prior to the commencement of the exams. When he had reached the college only 2 to 3 motorcycles were parked outside the gate of the college. He had further stated that the entire gate was open on the date of incident. There was a Post Office on one side of the gate and on the other side there was a branch of the State Bank. At the time of the incident, there was no college staff or police personnel present. He had stated that he had parked his car absolutely at the gate of the college. All the motorcycles and scooters which were parked at the gate were so parked on the Eastern side. He had stated that he had reached the college from the Western side. The road running in front of the college was the G.T. Road and it was running from East to West direction. He had stated that upon reaching the college he had parked his car in the North-South direction and that the car was facing the gate. He had stated that he along with his companions had got out of the car and they were all standing against the car. This they had done for only 2 to 3 minutes. He had very categorically denied the suggestion that it was difficult to see the place of incident from the place where they had parked their car and at that relevant point of time many students were entering and exiting the college. He had stated that he had seen the accused from around 35 to 36 paces. Before the incident had occurred, he had not raised any hue and cry. However after the firing was done, he had raised a lot of hue and cry along with the companions who had accompanied him. Because of the shouting which was done by him and his companions, one or two persons had stopped on the road. At the time of the firing, no police personnel had reached the college. He had stated that the accused persons had run away from the same gate where he along with his companions had arrived. He along with his companions had tried to apprehend the accused persons. However, they could not do so as they were in possession of country made pistols. He had further stated that the accused had not fired upon him or his companions. The fact that he along with his companions had tried to apprehend the accused and that they had run away by flaunting their country made pistols was not mentioned in the first information report. He had stated that the Investigating Officer had taken his statement after the first information report was lodged.

7. The cross-examination continued on 27.08.2010. He had stated upon a question being put to him as to whether the accused were at the gate when he had reached, he had replied that none of the accused was at the gate. He had further stated that his statement under Section 161 of Cr.P.C. which was got recorded that the accused persons were sitting inside the college and were waiting for his son to come, was correct. He had stated that when his son (deceased) after coming out of the car had started going towards the college and when the accused had fired upon him then, he had seen the accused persons for the first time. He had stated that he along with his companions had seen the incident while standing beside the car. He had stated that he had not given any statement to the effect that he along with his companions who were sitting inside the car had seen the accused properly and had recognized them. How that statement was recorded by the investigating officer was not known to him.

8. In the further cross-examination, he had stated that he originally belonged to Village Usrah Rasoolpur, Police Station Tappal. He had stated that Roby @ Sanjeev Kumar belonged to Village Kalai, Police Station Harduaganj and resided 60 kilometers away from his village. Village Kalai where the accused Roby @ Sanjeev Kumar lived, was at a distance of around 15 kilometers from Press Colony. He had further stated that he had come to know about the enmity between his son and Roby @ Sanjeev Kumar, one of the accused, 15-20 days prior to the date when the incident had occurred. He, however, stated that he had never thought that the enmity between the children would result in the death of his son and he had never reported the matter anywhere. While continuing with his statement, he testified, he used to accompany his son simply because he was afraid that children might not fight on the way. He had further stated that against his son, there were few cases pending and that in them some compromises had been arrived at. He however stated that he had no knowledge that any criminal case was pending in any court of law. Further upon a question being asked that he had got his son bailed out then he had answered that in one or two cases he had got him bailed out. He then had stated that he had no knowledge of the fact that against his son in the year 2001 in Police Station Civil Lines, three cases under Section 307 of I.P.C. were registered. He had also stated that he had no knowledge that in the year 2000 a case under Sections 147/342/323/506 of I.P.C. had been got registered at Police Station Civil Lines. He had thereafter stated that he had also no knowledge that in the year 2002 a case under Section 307/504/506 had been got registered against his son. About the other case which was pending at the Police Station Quarsi under Section 307 of I.P.C., he had stated that the same was not known to him.

9. He had thereafter continued to face the cross-examination and he had stated that he had no knowledge of the fact that in Harduaganj his son had any partnership with regard to some liquor establishment. At the Ramghat road there was some land of a farmer belonging to the village Quarsi. His son had taken some land there and that on a few plots of that land the accused always wanted to take possession and because of this desire of the accused persons to take possession over that land, they had enmity with his son. He further had stated that he had no knowledge as to when that particular land was purchased by his son which was around 14 bighas and it belonged to a farmer by the name Raushan Singh. He again stated that the plot number, etc. he did not remember. He also stated that there was no registered agreement between the farmer and his son. With regard to one Meena Devi, he had stated that there was some registered agreement vis-a-vis his son. He however had no knowledge if there was any agreement even with Meena Devi. In a nutshell, what he had stated in the cross-examination was that he had no document etc. with regard to the various lands which could be the cause of enmity. He had very categorically stated that the age of his son was 22 years at the time of incident. He had no knowledge of any enmity of anyone with his son. He had stated that at the time of firing they (he alongwith his companions) had rushed towards the place of incident but since the accused had flaunted their country made pistols, they did not go anywhere near the place of incident. At that point of time, 3 to 4 firing had been done. However, he did not remember as to how many fire shots had been fired before he had rushed to save his son. He had then stated that he could not enter the college. However, when the accused persons had run away then he reached near the dead-body of his son. He had tried to move the body of his son but he had seen that the son had died on the spot and he was convinced that his son had died. He had stated that on his hand and on his clothes there was no blood. There was lot of blood oozing out from the head and shoulder of his son and that he was in a great shock but he had not lost his mind. After having remained for 4 to 5 minutes near the dead-body of his son, he had gone to the Police Station Gandhi Park to get the report lodged. However, before reaching the police station he had informed his acquaintances and his family about the incident. The information was given by the telephone which was at the bus stand. He had stated that he, along with the persons who had accompanied him to the college had gone to the police station on a rickshaw. After the incident, they were also in a panic and they did not know as to who had the car key. He had then stated that he had driven the car from his house to the college. About half an hour after the incident, when he found the key of the car in his pocket then he had given the key to Jugendra for bringing the car. When the incident had occurred none of the persons who had gone to the place of incident had waited near the dead-body. He had stated that till such time he was there, the police had not reached. He was not aware that as to whether the college authorities had informed the police. He, upon a question being put to him as to whether he had got the information about the death of his son from the police, had answered that it was wrong to say that he got the information from the police. He had stated that his companions had gone to the police station on two rickshaws. To begin with all the four had reached the bus stand and had tried to make phone calls and thereafter all the four had gone to the police station. He had stated that he had scribed the first information report at the bus stand itself while sitting at a shop near the bus stand. The paper on which the first information report was written was brought for by him from the house of one advocate friend of his. Other advocates known to him were not living at his Press Colony. Rather they were living at Saroj Bye Pass which was 2 kilometres away from the bus stand. By the time when the advocate friend reached the bus stand, the PW-1 had waited for him at the bus stand. He had stated that he had not taken the advice from anyone to get the first information report lodged.

10. Continuing with the cross-examination, the PW-1 had further answered that the paper which was brought was so brought by one Subhash Chandra Chauhan. From the bus stand, he had called 5 to 6 persons but those who reached were Satendra Chauhan, Advocate, Satish Kumar Singh and Ravendra Pal Singh. Apart from ringing up the lawyer, he had also informed his people at the village. At that point of time, there was a phone in his house. He had stated that he did not remember whether the office of proctor in the college was near the place of incident. However, he had stated that the office of the proctor was around 50-60 steps away. He had thereafter stated that at the place of incident, he had a danger to his life and therefore he did not call from the office of proctor. He had stated that the accused had run away in the eastern direction after coming out from the gate. Beside the gate there was the G.T. Road and the accused had run towards the direction of the district Etah. He had stated that it was wrong to say that he had introduced a story of reaching the bus stand as there was some delay in the lodging of the first information report. From the place of incident, the bus stand was nearer as compared to the distance between the place of incident and Police Station Gandhi Nagar. From the bus stand to Police Station Gandhi Nagar, the distance was around 100 meters. He had thereafter explained the topography of area and had stated that from the place of incident, the bus stand and the Gandhi Park could be reached after crossing the chauraha. The chauraha was on the left side of the bus stand. At the relevant point of time at the bus stand, there were Subhash Chandra Chauhan, Satendra Chauhan and two more persons. The nephews after having stopped at the bus stand for sometime went to the complainants house to give the information. From the bus stand, complainant had gone to the police station to get the first information report lodged. He had then categorically stated that he had not gone to the place of incident along with the police. The nephews had stayed at the bus stand for 10-15 minutes and thereafter they had taken the car and had gone to the house at Aligarh. The car was brought back about 15 minutes later by his nephew Jugendra. Immediately after the incident, nobody had stopped near the dead-body of his son. He had however stated that the others had reached the place of incident around half an hour or 45 minutes later. He had stated that his nephews had for the second time reached the place of incident around after half an hour. He however categorically stated that he had never gone back to the place of incident. He had stated that it was wrong to say that he had not gone to the place of incident because he had known that the dead-body of his son had proceeded towards the mortuary after the completion of the panchayatnama. He had however stated that he had reached the mortuary straight from the police station and there he had met his nephew and the son of his brother-in-law. He had stated that he had reached the mortuary at around 11:00 to 11:15 AM. He had stated that from Aligarh his village was around 45 kilometers away and therefore it was wrong to say that upon getting the information, his nephew and the son of his brother-in-law had straight away gone to the mortuary. In the cross-examination, he had stated that on many occasions earlier also he had accompanied his son to the college. He had further stated that he had not remembered as to when it was the last time that he had gone before the date of incident to the college. However, he had stated that it might have been around 8-10 days prior to the date of incident that he had gone to the college along with his son. He had then stated that before the incident had occurred, he had gone to the college for some work around one or two months back. He had stated that it was wrong to say that one day prior to the date of incident, he was at Allahabad. He had then stated that he was not aware that there was a police chauki near the D.S. Mahavidyalaya. He had stated that he did not remember as to what time he had reached the Police Station Gandhi Park. He had stated that he did not remember as to who had accompanied him to the police station. He had stated that he had reached the police station on the vehicle of someone. To whom the vehicle belonged he did not remember. He had stated that after reaching the mortuary, he had again visited the police station, where his statement was already recorded by the investigating officer. He further stated that it was correct to say that he had not mentioned the name of the father of Yogesh in the first information report. However, he had given the name of the father of Yogesh in the statement recorded under Section 161 of Cr.P.C. as he by that time had enquired about the name of the father of Yogesh from his village. He then specifically had stated that from the village Kalai, one Manveer Chaudhari had given the name of the father of Yogesh.

11. In the cross-examination vis-a-vis Raghvendra @ Kaalu, he had stated that he had not known him. Even his son Sanjeev Chaudhari never used to visit him. The accused Raghvendra @ Kaalu had never visited his house also. He had then stated that he had never recognized Raghvendra @ Kaalu either during the investigation or in the jail. He had also stated that he was not aware as to in what direction Raghvendra @ Kaalu had fired. He had stated that he had come to know the name of Raghvendra @ Kaalu as a few students told about the name and therefore he had mentioned the name of Raghvendra @ Kaalu in the first information report. The names of the students who had told the name of Raghvendra @ Kaalu, of course he did not know.

12. PW-2 was the nephew, Ramesh, who also claimed to be an eye-witness of the incident. In his examination-in-chief, he had stated that on 27.04.2002 he himself, his uncle Balveer Singh and the other two relatives (Vimal and Jugendra) along with Sanjeev Chaudhari had gone in a Maruti car to the D.S. Mahavidyalay to drop Sanjeev Chaudhari for the examination in which he was to appear. When all of them reached the college at around 07:00 AM, Sanjeev Chaudhari went out of the car and went inside the college. He, however, had stated that they stood outside the college as they were waiting for one Dr. Gajendra Singh who was a Lecturer in the college and that around 07:00 to 07:15 AM they heard the sound of firing. Upon hearing the sound, they went inside the college and found that Roby @ Sanjeev Kumar, Yogesh and one more unknown person, who were all having country made pistols had fired upon Sanjeev Chaudhari, who had fallen on the ground because of the firing. They all shouted for help and went inside the college. The accused persons ran away flaunting their country made pistols. He had stated that these accused persons were dreaded criminals and against them there were various other cases of murder etc. He had stated that he had seen the entire incident himself along with all the accompanying persons. He had thereafter stated that he had known Roby @ Sanjeev Kumar and Yogesh from before because he had himself stayed in the Press Colony while he was studying and the accused used to visit him at the Press Colony.

13. In the cross-examination by the defence vis-a-vis Roby @ Sanjeev Kumar, he had stated that he was a farmer and was living in village Usra Rasoolpur and that he was doing agriculture work.

14. Balveer Singh was his real uncle who was in the Court standing beside him and that he had stated that he had been brought to the Court by his uncle. However, he was not tutored. He also stated that he did not have any license of any firearm but his uncle had one. He had thereafter stated that Balveer Singh was older to him by 25 years and he called him chacha ji. The deceased was around 15 years younger to him. He had stated that 14 to 15 years prior to the date of incident when he was living in the Quarter No. 27 of the Press Colony and was studying, in the other block one Gulab Singh used to stay and probably Sanjeev @ Roby used to visit him there and that the age of Sanjeev Chaudhari at the time when the PW-2 stayed at the Press Colony was around 10 to 12 years. He had thereafter stated that Sanjeev Chaudhari at the relevant point of time when he was staying at the Press Colony, was around 09 to 10 years of age. He had stated that one day prior to the date of incident, he was called by his uncle as the deceased was having some enmity and therefore he along with the other relatives had reached Aligarh. He had stated that a day prior to the incident, he had got the information at about 02:00 to 03:00 PM that he had to reach Aligarh. He had no telephone in his village but Vimal had a telephone and therefore he had got the information on it. He then had stated that on an earlier occasion when he had stated that he had informed Vimal that they had to go to Aligarh then it was a wrong statement and that in fact it was Vimal who had told him to go to Aligarh. He had stated that Vimal who had accompanied them to the college was studying in D.S. Mahavidyalaya, Aligarh and in the evening prior to the date when the incident had occurred, he also had a paper and that he used to come from his village to appear in the paper. The previous day, he had stated that he i.e. PW-2 and Vimal had reached Aligarh at around 06:00 PM and that he was staying at Balveer Singhs house. He had also stated that the deceased Sanjeev Chaudhari had no country made pistol or any cartridges etc. Later on, of course he had stated that he came to know that the deceased was having a country made pistol and was also having live cartridges. On the date of incident, there was no police personnel on the gate of the college. He had stated that whenever a student entered the college, he had to produce the identity card and the admit card and without those documents no one was allowed to go inside the college. On the date of incident, they could not meet Professor Dr. Gajendra Singh. He thereafter had denied the suggestion that he had come up with the story of meeting Professor Dr. Gajendra Singh because he had to give a reason to wait after the deceased had gone inside the college. He had stated that the incident had occurred at around 07:15 AM. The examination started at 07:00 AM and that the students had to reach the centre 15 minutes prior to the exam. He had then stated that he had parked his car outside the gate and that all persons coming in and going out of the college were getting their ingress and egress through the wicket gate i.e. the small gate which was carved out in the bigger gate. He had stated that he had seen the accused from 35-36 steps away. The moment the firing was done, the PW-2 had stated that he had rushed to save his brother but because the accused threatened them with their country made pistols, he could not reach near the deceased. He had also tried to apprehend the accused persons unsuccessfully. He had gone near the dead-body of the deceased but did not touch him. He had stayed there for 3-4 minutes but had thereafter proceeded for the bus stand. From the college, the police station was around half a kilometer away and that the bus stand was around 10-15 steps before the police station. No one stayed back with the deceased. The four persons had reached the bus stand after the firing was over. The car was also left at the gate and they had gone to the bus stand on a rickshaw. From the bus stand he himself, Vimal and Jugendra had proceeded for Press Colony and thereafter they had gone to the college again at around 10:45 AM. At that point of time, panchayatnama was being filled up. The police had questioned him around five days after the incident. He had also stated that he was not aware of the fact that there were other criminal cases pending against the deceased. He was also not knowing that the deceased was earlier jailed. He however had stated that he was aware of the fact that he was dealing in land. He also did not know if there was any dispute with regard to any land. On the date of incident, Vimal had returned to the village along with him. He did not appear in the examination which Vimal was required to appear at Aligarh. The PW-2 was also cross-examined on behalf of the accused Yogesh and had stated that on the date when the incident had occurred, he had reached the D.S. Mahavidyalay when the panchayatnama preceedings were going on. Professor Dr. Gajendra Singh was of course not there. In all there were 80-90 persons. No one known to him was present. There were only Vimal and Jugendra who were known to him. Thereafter they had stayed there for 4-5 minutes only. On behalf of Raghuvendra, no one cross-examined the PW-2.

15. PW-3, S.I.Y. Bhardwaj, was the doctor who had conducted the post-mortem. He had stated that he had conducted the post-mortem at around 04:15 PM. The dead-body was sent by the Police of the Police Station Gandhi Park alongwith constables No. 03 Ashok Verma and C.P. 120 Ramveer Singh and thereafter he had proved the injuries and the post mortem report. One bullet was recovered from the stomach. With regard to the injury no. 5, he had stated that it could have been inflicted by some blunt object and then had stated that the cause of death could not have been the injury no. 5. He had stated that the injury no. 1 was chiefly responsible for the death of the deceased.

16. PW-4 was the Investigating Officer, R.K. Sharma. He had described the method in which the investigation was done and what was recovered and how the recovery memos were prepared. He had narrated the method in which the accused persons were arrested. He had also narrated the method in which the statements were recorded. The panchayatnama was also proved by him. On 20.10.2014, PW-4 had stated that he could not prove the recovery which was made from the deceased as the same had got lost and with regard to that a report had already been lodged and was on record as paper no. 345. He had stated very categorically that at 07:45 AM after the first information report was lodged, the copy of the same was given to the first informant and thereafter his statement was recorded and that took around 20 minutes and he thereafter proceeded for the place of incident by his jeep and the complainant/informant had reached the place of incident by his car. The panchayatnama, he had stated, was prepared on his direction by Sub-Inspector R.P. Singh. The panchayatnama did not contain the signatures of the PW-4. The recovery memos of the articles recovered from the deceased were prepared by him. He had stated that the case diary of that particular date was not recorded by him but was so recorded on his dictation as his hand was aching. The investigation was done by him in between 27.04.2002 and 28.05.2002. Thereafter, the charge-sheet was submitted. He had stated that the recovery memo of the articles recovered from the deceased was signed by the witness, Ram Bhool, who was the chaprasi (peon) of the college. This very chaprasi was also signatory in the panchayatnama. He had stated that even though Ram Bhool was a signatory in the panchayatnama and also in the recovery memo, however, his name was not included in the list of witnesses in the charge-sheet. He had stated that he had not made any effort to get the accused identified as it was stated in the first information report that the dispute was there with regard to some land and therefore he had presumed that the complainant was knowing the accused persons. He had further stated that he had not made any effort to get the country made pistol, by which the firing was done in which the deceased had died, recovered. No efforts were made to send the recovered bullet etc. to the Forensic Science Laboratory. He had thereafter stated that he had not made any effort to find out as to which was the land because of which there was enmity between the deceased and the accused persons. He had thereafter stated that when he had reached the place of incident, he had not found the informant or the other eye-witnesses. He had very categorically stated that the distance between the place of incident and the police station which was given in the panchayatnama was different from the one which was given in the first information report. However, he denied the suggestion that the proceedings of panchayatnama were done prior to the lodging of the first information report. He had stated that the accused persons had stationed themselves as per the site plan near the Geography Department and that this place was around 38 steps inside the college from the gate. The entire spot map was got prepared on the pointing of the complainant/informant. On 21.07.2016, the PW-4 was once again called for the recording of his statement-in-chief. He had stated after his statement-in-chief, the charge-sheet which he had submitted in the Court was in his hand writing and that he had missed out to give the names of Ram Bhool and Satendra Kaushik in the list of witnesses in the charge-sheet inadvertently. He again reiterated that the entire site plan was got prepared in the presence of the first informant.

17. PW-5, Keshav Dev, was the Head Moharrir on the relevant date and he had proved the chik. He had also stated that on the relevant date, along with the complainant two other persons, one of whom was Subhash Chauhan, Advocate had come. Subhash Chauhan was known to him from before.

18. Thereafter, the statements of the accused persons under Section 313 of Cr.P.C. were got recorded, wherein they denied having committed the crime and pleaded innocence and also the accused Raghvendra had stated that because of there being enmity between two groups of D.S. Mahavidyalaya, the case had wrongly been registered against them. Yogesh and Sanjeev Kumar @ Roby had stated that they were implicated on account of some enmity.

19. Thereafter, the statement of one DW-1, Karan Pal Singh, was got recorded. Karan Pal Singh was also a witness of the panchayatnama but he was not made a witness by the investigating officer in the charge-sheet. He had stated in his examination-in-chief that he was a chaukidar in the D.S. Mahavidyalaya on the relevant date i.e. on 27.04.2002. On that date he had reached the college at 06:00 AM as the examinations were going on. In between 07:15 to 07:30 AM, the main gate of the college was closed and only a small wicket gate was kept open. Thereafter, he had gone to open the other class rooms of the college. When he was opening the rooms for the practical examination then he heard some sound of firing and when he reached the Geography Department then he saw a student laden with blood and therefore he ran towards the examination office where he informed the proctor and the proctor rang up the police. The police thereafter reached within 15 to 30 minutes and the police itself informed the family members of the deceased and they thereafter reached the place of incident in half an hour time and in the meantime, panchayatnama proceedings were undergone. The panchayatnama had taken place in his presence i.e. in the presence of DW-1. When the dead-body was frisked/inspected then a loaded country made pistol with three live cartridges and Rs. 300/- were recovered. Along with these articles, a mobile phone was also recovered. Ram Bhool the other employee of the college was also a witness of the panchayatnama. He had stated very categorically that the father of the deceased reached the spot after the panchayatnama was drawn.

20. Upon a question being asked by the court as to whether the PW-1 had witnessed the incident, he had clearly given an answer in the negative. While answering the question he had very categorically stated that he had not seen the incident and he had also stated that he had never seen the accused persons who were present in the Court. The informant thereafter cross-examined the DW-1, wherein he had stated that he was working in the college since 1992. He had further stated that before he reached the place of incident the accused had run away from the place of incident. When the Court asked him as to whether the deceased was alive at the time when he had reached the place of incident, he had categorically replied that when he had reached the place of incident, the deceased was dead. He did not touch the dead-body. He had also stated that he had never seen the deceased or known his name. He had also stated that he did not know the names of the family members or of the father of the deceased. He only knew the name of Ram Bhool who was a witness in the panchayatnama. He had also stated that the police had recorded his statement on the date of the incident and that he had categorically informed the investigating officer that when he was opening the class rooms for the practical examination then he had heard the sound of firing and he therefore reached the spot. He also reiterated the same story as was narrated how the police was informed. He had again reiterated that after the incident, the family members of the deceased including his father had reached the spot. Thereafter, upon conclusion of the trial when the judgment and order dated 24.09.2021 was passed, the instant Appeal was filed.

21. Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Neeja Srivastava, learned counsel for the appellant in Criminal Appeal No. 5307 of 2021; Sri Sagheer Ahmad, learned Senior Advocate assisted by Sri Tripurari Pal, learned counsel for the appellant in Criminal Appeal No. 5365 of 2021 and Sri Suresh Chand Pandey along with Sri Saurabh Pandey, learned counsel for the appellant in Criminal Appeal No. 5319 of 2021 had appeared. Sri V.P. Srivastava, learned Senior Advocate made the following submissions:

(i) Learned counsel for the appellant in the very beginning submitted that if the documents namely the Chik F.I.R. and the panchayatnama are seen then it becomes evident that there was ante timing done while reporting the first information report. The Chik F.I.R. shows that the distance between the place of incident i.e. D.S. Mahavidyalaya and the Police Station was one and half kilometre. The police station was on the Eastern side. Whereas if the panchayatnama is seen, he submitted that the distance given between the place of incident and the police station was one kilometre. Learned counsel for the appellant further submitted that if the first information report is perused then we find that the names of Roby @ Sanjeev Kumar son of Bhoopendra Singh, Raghvendra @ Kaalu son of Sheelendra Singh and Yogesh son of not known to the first informant were given out as names of the accused in the first information report. In the cross-examination, at page 22 of the paper book the PW-1, first informant, had stated that जब मै गेट के पास पहुँचा तो उसके थोड़ी देर बाद जब मेरा लड़का संजीव कालिज की तरफ अन्दर जाने लगा और जब मुलजिमों ने उसके उपर फायर किए तब पहली बार गेट के अन्दर ही मुलाजिमों को मैंने देखा था। Learned counsel for the appellant therefore states that the PW-1 had seen the appellants for the first time inside the college gate. Learned counsel for the appellant submits that the PW-1 at the time of getting his statement recorded under Section 161 of Cr.P.C. had stated at page no. 22 of the paper book इस घटना को मैने व मेरे साथ कार में बैठे व्यक्तियो ने गोली मारने वाले बदमाशों को अच्छी तरह देखा व पहचाना।. However, he changed his statement in the court and had stated मै व मेरे साथ के लोगो ने कार के सहारे खड़े होकर घटना देखी।. In the cross-examination done by the defence counsel of Yogesh, the PW-1 had stated that the name of the father of Yogesh was not written in the first information report. However, in the statement recorded under Section 161 of Cr.P.C. he had given the name of his father as he had talked to certain people of Village Kalai and from there he had got the name of the father of Yogesh. So far as the Raghvendra @ Kaalu was concerned, learned counsel for the appellant states that the PW-1 had not known the name of the accused Raghvendra @ Kaalu and he says so in his cross-examination at page no. 31-32 of the paper book मुलजिम राघवेन्द्र उर्फ कालू से घटना से पहले से मेरा कोई व्यवसाय अथवा आना जाना नही था मेरे बेटे संजीव चौधरी (मृतक) का भी आना जाना उसके साथ नही था। राघवेन्द्र उर्फ कालू घटना से पहले मेरे घर कभी नही आया। यह बात सही है कि मैं घटना से पहले राघवेन्द्र को नही जानता था। यह कहना भी सही है कि मैने राघवेन्द्र उरफ कालू की शिनाख्त न तो विवेचना के दौरान की और न जेल में की है। मैं यह नही देख पाया कि अभियुक्त राघवेन्द्र ने किस दिशा से फायर किया अभियुक्त राघवेन्द्र का नाम मुझे घटना स्थल पर कालिज के कुछ छात्रो ने बताया था इस लिए मैने इसका नाम प्रथम सूचना रिपोर्ट मे लिखा दिया। जिन छात्रो ने अभियुक्त राघवेन्द्र का नाम बताया मै उनके नाम नही जानता। यह बात सही है कि मैने राघवेन्द्र उर्फ कालू को रिपोर्ट में नामित किया था इस लिए मैंने उसके द्वारा गोली चलाने वाली बात अपने ब्यान में कही थी।. Learned counsel for the appellant further states that if we perused the statement of PW-1 throughout then it was indicative of the fact that the entire gate of the college was open and that he could see what was happening 35 to 36 paces inside the gate, whereas the PW-2 in his statement had stated in the following manner घटना मेरे द्वारा सुबह सवा सात बजे की बताई गयी है। परीक्षा सात बजे से प्रारम्भ होनी थी। परीक्षार्थी को परीक्षा होने से करीब 15 मिनट पहले कक्ष में पहुचना होता है। मैने डी० एस० कालिज देखा है। कालिज के गेट के एक तरफ डाकघर है और गेट के पास दूसरी तरफ स्टेट बैंक थी। कार हमने गेट के सामने खडी थी। कालिज क गेट के सामने गाड़ी खड़ी करने को मौजूद स्टाफ ने मना नही किया हमलोग कार के बाहर खड़े होकर इंतजार कर रहे थे। ये आने- जाने वाले कालिज के छोटे गेट से आ जा रहे थे।. He therefore in effect had stated that the main gate was closed and people were going in and coming out from the wicket gate i.e. the small gate which was opened for the egress and the ingress of the students. Learned counsel for the appellant further has stated that even the DW-1 who was a witness of the panchayatnama but was not named in the list of witnesses in the charge-sheet submitted by the police had appeared in the Court as DW-1 and he had also stated in his examination-in-chief at page no. 77 of the paper book मैं घटना वाले दिन प्रातः छः बजे महाविद्यालय में अपनी डियूटी पर आ गया था। उस समय महाविद्यालय में परिक्षायें/प्रक्टीकल चल रहे थे। करीब 7.15 व 7.30 के बीच में कोलेज का मैन गेट बन्द करके छोटा गेट खोल कर कालेज के अन्दर प्रक्टीकल के लिए दूसरे कमरे खोलने चला गया।.

(ii) Learned counsel for the appellant has therefore stated that the PW-1 who had lodged the first information report had in fact not known the names of the accused persons and there was contradiction in their statements that the PW-1 had seen the incident while the main gate was opened, while the PW-2 had stated that the main gate was closed and the wicket gate was being used. This definitely would have meant that an incident which happened 35 to 36 paces inside the main gate could not have been seen by the PW-1. He thereafter had submitted that the PW-1 in the first information report had stated that he had gone to the college in his Maruti car (UP 81 D 7155). However, when the incident had occurred he had gone to the police station on a rickshaw from the place of incident. At page no. 25 of the paper book he had stated that he had left the car but had gone along with all his companions on a rickshaw कालिज से बस अड्डे तक मैं व मेरे साथी रिक्शे से गए थे।. Learned counsel for the appellant has still further, relying upon Form-13, submitted that the dead body, after the panchayatnama, had proceeded towards the mortuary at 10:45 AM and as per this Form-13 had reached the Reserve Inspectors Office at 15:40 PM on 27.04.2002. Thereafter, as per the doctors signature on this Form-13, the body was received at 04:15 PM in the mortuary. The Form-13 had clearly stated that the dead-body when was sent for the post-mortem, it was accompanied by Constable No. 03 Ashok Verma and Constable No. 162 Ramveer Singh. Learned counsel for the appellant states that why the dead-body reached the Office of the Reserve Inspector at 03:40 PM on 27.04.2002 was a mystery and to solve this mystery the only way out was that the two constables who had accompanied the dead-body ought to have been brought in the witness box. They would have testified as to why the dead-body reached late. Learned counsel for the appellant therefore states that the time which the dead-body took to reach the Reserve Inspectors Office and thereafter to the mortuary shows that the police and the other prosecution witnesses, chiefly PW-1 was waiting to get the names of the accused and therefore it could safely be said that the first information report was ante timed.

(iii) He further submits that even the Investigating Officer had stated at page no. 57 of the paper book यह भी सही है कि पंचनामे में थाने से घटना स्थल की दूरी जो दर्शाई गई है व चिक FIR में दिखाई गई दूरी से भिन्न है।.

Learned counsel for the appellant therefore relying upon the judgment of this Court in (1979) Criminal Law Journal 236; (Jagdeo Singh and others versus State) has submitted that a difference in the distance given in the first information report and the inquest report was indicative of the fact that there was ante timing done. He further relied upon a judgment again of this Court reported in 1984 All LJ 1303; Shyama Charan versus State of U.P. and he relied upon specifically paragraph 8 of this judgment and therefore the same is being reproduced here as under:

8. The first-information-report in this case is said to have been lodged at 12.30 p.m., the distance of police station as mentioned in the F.I.R. is two miles. The incident is said to have taken place at 10.30 a.m. and prima facie this report appears to be quite prompt. The defence in this case has suggested that the first-informant Ram Kumar P.W. 1 is a clerk to a lawyer practising at Jalalabad and did not witness any incident and was called later on and this report came into existence much later and had been ante-timed. The argument advanced appears to have some force when we examine the inquest report. In the inquest report in the column of the person who informed about the death, the name of Ram Kumar is mentioned. Then in the column of distance of the village from the police station, entry made is 3 miles to the south. If this F.I.R. had come into existence at 12.30 p.m. the distance given in that report namely two miles would have also been found in the inquest report and not three miles. The distance given in the F.I.R. does not tally with the First-Information-Report. Further the inquest report examined as a whole goes to show that on the third page where the Holia Lash has been described, there is a column for the opinion of the Panches and in this column writing has been given in a different pen with a different thickness which suggests that impressions of Panches must have been obtained earlier and the writing done later on. Not only that after this opinion of the Panches, there is final opinion of the Sub-Inspector and in that opinion after the word DHARA figures 147, 148, 149, 302 I.P.C. have been added subsequently. This is apparent from an examination of the inquest report. The Sub-inspector when asked whether he made this addition of the sections, he stoutly maintained that he did not add these subsequently. As we have observed earlier the addition is absolutely apparent on occular examination. From this we can infer that by the time the inquest report was prepared namely the evening of 11-5-1976, the F.I.R. had not come into existence and in the inquest report space for the crime No, and the sections was left to be filled later on and was actually filled later on. In the case of Jagdeo Singh v. State reported in 1979 Cri LJ 236 a Division Bench of this Court in similar circumstances held at page 241 para 25 that the discrepancy in the distance given in two documents namely F.I.R. and inquest report gives rise to an inference that the F.I.R. came into existence later on.

(iv) Learned counsel for the appellant further submitted that the conduct of the PW-1 also showed that there was every effort being made to hunt out the names of the accused persons namely Roby @ Sanjeev Kumar, Raghvendra @ Kaalu and Yogesh. When he had lodged the first information report at 07:45 AM then it does not stand to reason that when the body had not reached the mortuary why he had gone from the police station to the mortuary. Also what makes his behaviour slightly doubtful is that after he reached the mortuary what exactly was he doing there. This all goes to show that he was hunting out the names which he had specifically got reported in the first information report.

(v) Learned counsel for the appellant further states that when the son of the appellant had got shot dead and as per the first information report he was shot dead in front of PW-1 then it seems strange that when he had gone to the college to drop his son along with three of his relatives namely Ramesh the PW-2 (real nephew), Vimal and Jugendra Singh (relatives) then all four would leave the dead-body at the place where the deceased had been shot at and they would go to the police station. At least one person should have stayed back. Learned counsel for the appellant therefore submits that this goes very strongly to show that the appellants were never there at the spot but had tried to show that they were all there at the spot. He further submits, to bolster the case of the appellants, that the PW-1, the PW-2, Vimal and Jugendra Singh (the other relatives) had in fact never been at the spot. He submits that as per the first information report, they had all gone to the place of incident on a Maruti car but after the incident they went to the police station via a bus stand on a rickshaw. He submits that this does not appeal to reason at all. The further statement of the PW-1 that there was no blood either on his hands or on his clothes shows that he had not even cared to find out if the deceased had actually died and this had happened because he was actually not there on the spot. At page no. 24 of the paper book he had stated that मैंने इधर उधर हिलाकर लड़के को देखा था किन्तु वह मौके पर ही खत्म हो गया था। मुझे मौके पर ही उसकी मृत्यु की तसल्ली (का०फटा) हो गयी थी। मेरे हाथो पर व कपड़ो पर कोई खून नहीं लगा था। मेरे बेटे के सिर (का०फटा) आंख व कन्धे से काफी खून निकल रहा था।. Learned counsel for the appellants submits that if the PW-1 had touched the dead-body then definitely there would have been some blood on his body or on his clothes.

(vi) To further bolster the case of the appellant that the prosecution witnesses no. 1 and 2, who had actually claimed themselves as eye-witnesses and had also appeared before the court as witnesses of fact, had actually not been on the spot, learned counsel for the appellant pointed out to certain contradictions:

(a) He submits that the PW-1 in his statement at page no. 22 of the paper book had stated that he and his companions had seen the incident standing against their car. He had virtually stated that he had seen the incident while the gate was wide open. However, the PW-2 at page no. 40 of the paper book had stated that all going in and coming out of the college were using the small gate. The actual sentence which he uttered was at page no. 40 of the paper book आने- जाने वाले कालिज के छोटे गेट से आ जा रहे थे।

(b) The PW-1 had in his statement at page no. 28 of the paper book stated घटना के तुरन्त बाद बेटे की लाश के पास कोई नही रूका था बल्कि बाद में करीब आधा पौन घण्टा बाद पहुँचे थे। मेरे साथ जो मेरे भतीजे थे वे सभी घटना स्थल पर घटना के आधा पौन घण्टा बाद दोबारा पहुँच गए थे। मैं घटना स्थल पर दोबारा नही गया था।. However, the Investigating Officer, PW-4, at page 57 of the paper book had stated that यह सही है कि नक्शा नजरी में मेरे द्वारा अभियुक्त गण के पूर्व से खड़े होने का स्थान भूगोल विभाग के सामने दर्शाया है तथा कौलिज के गेट से यह दूरी 38 कदम दूर दर्शाई गई है। नक्शा नजरी मेरे द्वारा वादी की निशान देही पर बनाया गया था।. Thus the statements of PW-1 and PW-4 were contradictory to each other vis-a-vis the presence of PW-1 at the site after lodging the F.I.R.

(c) Further learned counsel for the appellant relied upon page no. 43 of the paper book and has submitted that even the PW-2 had stated in his cross-examination that he had reached the place of incident when the panchayatnama was going on. The actual sentence which PW-2 uttered at page no. 43 of the paper book was जब मैं घटना वाले दिन डी० एस० कालिज पहुंचा उस समय पंचनामा की कार्यवाही चल रही थी। Learned counsel for the appellant states that in fact the PW-2 was confused as he did not know what exactly he had to state. The first information report had stated that even the PW-2 was there at the relevant point of time but in the cross-examination the truth came out and he had stated that he had reached the place of incident when the panchayatnama proceedings were going on. Learned counsel for the appellant further states that even this statement of the PW-2 regarding his reaching the site at the time of panchayatnama appears to be unbelievable as the name of the PW-2 does not find place in the panchayatnama and had he been there, his name would definitely have figured in the panchayatnama. Learned counsel for the appellant further states that the PW-2 in his examination-in-chief despite the fact that he was aware of the first information report which had been lodged in the year 2002 had stated in his statement-in-chief that he had seen at the place of incident Roby @ Sanjeev Kumar, Yogesh and one more unknown person. Learned counsel for the appellant therefore states that in fact the PW-2 was not there at the spot and fortunately or unfortunately he did not remember the name of the third appellant i.e. Raghvendra @ Kaalu at all and therefore in his examination-in-chief he states that one unknown person was there.

(d) The PW-1 had stated that they had waited outside the gate to see that the deceased went inside and that no harm was done to him. However, the PW-2 had stated that after the deceased had gone inside the college they were waiting to meet one Professor Dr. Gajendra. He submits that this was a major contradiction which cannot be ignored as PW-2 was trying to carve out a fresh reason for the PW-1 and the PW-2 to remain outside the gate even after the deceased had gone inside the college.

(vii) Learned counsel for the appellant had argued much with regard to ante timing of the first information report. He had also elaborated as to why the dead-body had reached the mortuary very late. He submitted that in the year 2002 when everything was fairly modernized and vehicles etc. were available then it did not stand to reason that a 7 kilometre distance was travelled in such a long time. He submits that the body, after the panchayatnama, started for the mortuary at 10:45 AM, reached the office of the Reserve Inspector at 15:40 PM and thereafter was handed to the mortuary at 04:10 PM. He submits that there might have been a backlog of dead-bodies for post-mortem etc. and therefore the hospital might have received the dead-body at 04:10 PM. However, why the dead-body had reached the Office of the Reserve Inspector after almost five hours remained a mystery. He therefore submits that the entire prosecution story becomes false. It all the more becomes unbelievable when the two constables namely Constables No. 03 Ashok Verma and C.P. 120 Ramveer Singh, who had proceeded with the dead-body after the panchayatnama, were not brought into the witness box to explain the case of the prosecution with regard to the delay in bringing the dead-body to the Reserve Inspector and thereafter for the post-mortem.

(viii) Learned counsel for the appellant further took the Court through the entire order-sheet of the trial and submitted that the prosecution never recognised/identified the accused persons either in the court or in the jail during investigation. The recording of the statement of prosecution witnesses commenced on 26.08.2010 and concluded on 27.06.2017.

(ix) The charges were framed on 15.10.2004 and on that date the accused had appeared and thereafter they had appeared only on 08.08.2014, 20.10.2014, 24.11.2014, 02.12.2014, 05.12.2014, 02.01.2015, 16.03.2015, 24.03.2015, 02.04.2015 and 05.05.2015. However, on those dates as is clear from page nos. 51, 52 and 77 of the paper-book neither the PW-1 nor the PW-2 who were the witnesses of fact gave their statements-in-chief nor were they cross-examined. Learned counsel for the appellant, Sri Sageer Ahmad, submitted that as per the judgment of the Supreme Court in the case of Tukesh Singh and others versus State of Chhatisgarh reported in 2025 AIR SC 2666, the entire trial becomes vitiated if the accused are not identified in the court. Since, learned counsel for the appellant Sri Sageer Ahmad took the Court through the paragraph nos. 21, 22, 23 and 24 of the judgment and the same are being reproduced here as under:

21. In a case where there are eyewitnesses, one situation can be that the eyewitness knew the accused before the incident. The eyewitnesses must identify the accused sitting in the dock as the same accused whom they had seen committing the crime. Another situation can be that the eyewitness did not know the accused before the incident. In the normal course, in case of the second situation, it is necessary to hold a Test Identification Parade. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable. Identification of the accused sitting in the Court by the eyewitness is of utmost importance. For example, if an eyewitness states in his deposition that “he had seen A, B and C killing X and he knew A, B and C”. Such a statement in the examination-in-chief is not sufficient to link the same to the accused. The eyewitness must identify the accused A, B and C in the Court. Unless this is done, the prosecution cannot establish that the accused are the same persons who are named by the eyewitness in his deposition. If an eyewitness states that “he had seen one accused assaulting the deceased with a sword, another accused assaulting the deceased with a stick and another accused holding the deceased to enable other accused to assault the deceased.” In such a case, the eyewitness must identify the accused in the open Court who, according to him, had assaulted the accused with a stick, who had assaulted the deceased with a sword and who was holding the deceased. Unless the eyewitnesses identify the accused present in the Court, it cannot be said that, based on the testimony of the eyewitnesses, the guilt of the accused has been proved.

22. In the present case, in case of two eyewitnesses, in the cross-examination, it is brought on record that the accused persons named by them were sitting in the Court. However, they did not identify a particular accused by ascribing him a role. None of the eyewitnesses has specifically identified any of the accused in the Court.

23. In this case, the failure of the eyewitnesses to identify the accused in the court as the accused they had seen committing the crime is fatal to the prosecution’s case. There are material omissions brought on record in the cross-examination of the eyewitnesses. They are so relevant that the same constitute contradictions in view of the explanation to Section 162 of the Code of Criminal Procedure, 1973. The appellants/accused, before they were enlarged on bail, had undergone a minimum of nine to ten years of actual sentence. They have been on bail for about twelve years.

24. Considering the discussion made above, it is not possible to come to a conclusion that the guilt of the appellants/accused is proved beyond a reasonable doubt. As stated earlier, the versions of the eyewitnesses differ.

(x) Learned counsel for the appellant further submitted that even though from the reading of the first information report, it appeared that PW-1 was recognizing the accused persons and had tried to give their names but upon going through the statements of the PW-1 and PW-2 it could with some certainty be said that the accused persons were not known to the PW-1 and PW-2. The name of the father of one of the accused, namely Yogesh was not given in the first information report. The PW-2 had in fact, while mentioning about Raghvendra @ Kaalu, had stated that he was an unknown person. Learned counsel, therefore, submits that in fact even before the dock identification was attempted at, the test identification parade ought to have been undergone. Learned counsel for the appellant relied upon the judgments of Supreme Court in Amrik Singh vs. State of Punjab reported in (2022) 9 SCC 402, Bollacaram Pedda Narsi Reddi & Ors. vs. State of Andhra Pradesh reported in (1991) 3 SCC 434 and in Gireesan Nair and Ors. vs. State of Kerala reported in (2023) 1 SCC 180 to submit that when the accused were not known to the prosecution witnesses then before they were chargesheeted, test identification was a must.

(xi) Still further learned counsel for the appellant has submitted that the deceased, it was given out, was a student of the D.S. Mahavidyalaya. However, when the incident had occurred, from the possession of the deceased a country made pistol of 315 bore along with four cartridges, certain visiting cards and a pen were recovered. However, no identity card or admit card was recovered from either the clothes of the deceased or from his bag etc. Learned counsel for the appellant has submitted that the trial court in a very strange manner had accepted a certain admit card, a scheme of examination and a bona fide student certificate and had got it numbered as Paper Nos. 636A/2, 636A/3 and 636A/4 and had given a finding of fact to the effect that the deceased Sanjeev Chaudhari was a B.A.-IIIrd year student and on the date of incident i.e. on 27.04.2002 he had to appear for the examination of Military Studies-Paper I (a) or (b). The relevant paragraph of the judgment of the sessions trial with regard to this issue is at page no. 95-96 of the paper book and the same is being reproduced here as under :

In this respect, as regards this contention of the defence it is primarily important to note that PW1 in his cross-examination has stated that his son informed him about his danger from accused persons that was why PW1 along with PW2 used to drop the deceased to his college in support of his statement Exam Admit Card with Roll No. A9917553 Sr. No. 706652, Bonafide Students Certificate dated 10.05.2003 and Scheme of Examination has been filled on record as paper no. 636A/2, 636A/3 and 636A/4 respectively which clearly shows that deceased Sanjeev Chaudhary was a BA IIIrd year student and on the day of incident i.e., 27.04.2002 he has examination of Military Studies-Paper I (a) or (b). Examination timing was also mentioned as 07am to 10am. So, from the totality of evidence filed on behalf of prosecution, it is clear that PW1 & PW2 were available on the site of occurrence. As far as the eye witnesses of the PW1 & PW2 is concerned, it is necessary to note that it is fundamental psychology of a father that when a father used to drop his child to school/college he monitor his movement till he reach the class. In that case the same psychology is applied on PW1 & PW2. Even if the above points are ignored the narration of the story by PW1 & PW2 is almost matches from the narration of the story by DW1. All of the above facts shows that there is no doubt on PW1 & PW2 being eye witnesses.

(xii) Learned counsel for the appellant states that when an effort was made by the defence to bring those papers on record by an application dated 09.08.2019 numbered as 635(kha) then that application was strongly opposed and an endorsement was made by the counsel that the document could not be kept on record outrightly without being proved. No effort was made by the trial court to get the documents proved. It had only considered those documents as proved and had proceeded with the matter. Learned counsel for the appellant therefore states that the entire case becomes doubtful inasmuch as the deceased was at the time of his death in possession of a country made pistol along with three live cartridges and was not possessing either an admit card or an identity card. Learned counsel for the appellant further states that even the DW-1 who was a chaukidar of the college had stated that the possession of those documents was essential to enter the college. Learned counsel for the appellant therefore states that in fact the deceased was a criminal and some unidentified persons had killed him inside the college and therefore while he was trying to hide in the college the murder had taken place. A strong suspicion arises as to whether the appellant was at all a student in the college and whether the PW-1 along with his nephew and two other acquaintances had at all gone to drop the deceased at the college.

(xiii) Learned counsel for the appellants submitted that the prosecution had to stand on its own legs to prove the case that the accused and the accused alone had committed the crime. He submits that when the PW-1 and the PW-2 had not identified the accused persons either by the method of test identification or by dock identification then it could safely be said that the accused were not known to the witnesses of fact and also no effort was made either by the prosecution or even by the court to get them identified. The fact that the accused were not known becomes established when in the first information report itself the name of one of the accused namely Yogesh was mentioned but his fathers name was not mentioned and the PW-1 in his cross-examination had stated that he had come to know of the name of the father subsequently. Also, it became essential that the identification was done and that the prosecution stood on its own legs when the name of the accused Raghvendra @ Kaalu was not known to the PW-1 and his name was only made known to him by certain students, again whose names were not disclosed by the PW-1. He submits that the conviction could not be done on the basis of hearsay evidence and when the name of Raghvendra @ Kaalu was known to the PW-1 in the manner he had narrated i.e. from various students, who were again never produced in the court, then it becomes evident that hearsay evidence was being relied upon to identify the accused. What is more, he submits that even the PW-2 while giving his statement-in-chief in the court had stated that Raghvendra @ Kaalu was not known to him. How the name of the father of the accused Raghvendra was known to the informant also remains a mystery.

(xiv) Learned counsel for the appellants submits that the aspect of motive became important when it was being argued that in fact the eye-witnesses were not present at the spot at all and that everything was being proved by circumstances. He submits that even though some land dispute was mentioned about but no sale deed; number of any civil case pending in any court or any document relating the dispute of any nature was brought on record. Not only that the accused when they were being questioned under Section 313 of Cr.P.C., they were also not confronted by any document. Learned counsel for the appellant therefore states that even the motive aspect was not taken care of either by the prosecution or by the trial court and wrongly it was presumed that the accused had a motive to do away with the deceased.

(xv) Learned counsel for the appellants also submitted that the two very close relatives namely Vimal and Jugendra were never produced in the witness box. If they had accompanied the PW-1 and PW-2 then it was imperative that they too should have been produced to corroborate the evidence of PW-1 and PW-2. It was, he submits, all the more important because the presence of PW-1 and PW-2 was doubtful.

(xvi) Learned counsel for the appellant has further relied upon the statement of the PW-1 at page no. 30 of the paper book and has submitted that in between the time when he reached the mortuary and had left the same, he had on two occasions also gone to the police station. Visit of this could have been used to retrieve the names of the accused persons from the police records. The statement is being reproduced here as under :

मैं करीब शाम के पाँच बजे तक पोस्टमार्टम होने तक चीरघर पर रुका था इस दौरान बीच में एक-दो बार थाना गांधी पार्क भी आया था। गाँधी पार्क थानाध्यक्ष की खबर मिलने पर मैं वहाँ गया था।

22. Sri Naseeruzzaman, learned counsel appearing for the informant has made the following submissions:

(i) A day light murder had taken place in which there were direct eye-witnesses and therefore it could not by any stretch of imagination be said that the appellants were not involved in the case. He has submitted that the incident of murder on 27.04.2002 had taken place at 07:00 AM inside the college campus of D.S. Mahavidyalaya, Aligarh. Thereafter a prompt first information report was lodged by the father of the deceased at 07:45 AM. The first information report was very graphic vis-a-vis how the witnesses had reached the spot.

(ii) Learned counsel for the informant next submitted that after the PW-1 and PW-2 had found that the son of the PW-1 had died then the PW-1 along with the four companions had straight away started off for the bus stand from which place the PW-1 made certain calls and asked his colleagues Subhash Chandra Chauhan, Satendra Chauhan, Satish Kumar Singh and Ravendra Pal to reach the bus stand. At the bus stand, the first information report was scribed and thereafter they all went to the police station to lodge the same. He submits that the cross-examination of PW-1 on 17.09.2010 (page 27) clearly illustrated as to how the PW-1 came from the place of incident and thereafter went to the bus stand where he called his acquaintances Subhash Chandra Chauhan, Satendra Chauhan, Satish Kumar Singh and Ravendra Pal and there he scribed the first information report and subsequently lodged the same at the police station. At the police station, Rapat No. 9 dated 27.04.2009 which finds place in the record of the case was got prepared and in the Rapat No. 9, the names of the persons present along with the PW-1 were mentioned.

(iii) Learned counsel for the informant submitted that the first information report was a prompt one and no question of any ante timing was involved. The informant had reached the police station as was mentioned in the G.D. Rapat No. 9 and had lodged the first information report promptly at 07:45 AM. They had travelled the distance of one and half kilometre very promptly on a rickshaw and if there were differences in the distance given in the first information report, chik F.I.R. and the panchayatnama then it was of no avail as such mistakes are common and no importance ought to be given to them. He submits that the PW-5, Keshav Dev, Head Moharrir in his statement at page no. 62 of the paper book had clearly mentioned about the arrival of the PW-1 and his companions. Learned counsel for the informant submitted that if there was a prompt first information report then as per the judgment of Brahm Swaroop and Anr. versus State of U.P. reported in 2011 Criminal Law Journal 306, the case had to be considered as a believable one and he relied upon paragraph 18 of that judgment. The relevant portion of the judgment is being reproduced here as under :

18. In the instant case, the defence did not put any question in this regard to the investigating officer, Raj Guru (PW 10), thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report. More so, the submission made by Shri Tulsi that the FIR was ante-timed cannot be accepted in view of the evidence available on record which goes to show that the FIR had been lodged promptly within 20 minutes of the incident as the police station was only 1 km away from the place of occurrence and names of all the accused had been mentioned in the FIR. Dr. Nar Singh Bahadur (PW 4) examined Virendra Singh (D-3) on 31-5-2000 itself at 5.40 p.m. and had noted firearm injures on his body and opined that the injuries were fresh in nature. Dr. Anshu Kumar Agrawal (PW 6) had examined Atar Singh (PW 1) on 31-5-2000 itself at 3.50 p.m. and had noted multiple pellet wounds with surrounding charring over anterior surface of left thigh middle part and a single pellet wound over the anterior surface at right arm lower part. Dr. K.K. Saxena (PW 5), Radiologist conducted an x-ray examination of Atar Singh (PW 1) on 31-5-2000 and found three small rounded radio opaque with metallic density and FB shadow on middle of left thigh and right arm.

The prompt lodging of the FIR is proved from the chik report and the statement of the complainant under Section 161 CrPC, which was recorded immediately after lodging the FIR. Any defect in the preparation of the inquest report by the investigating officer cannot lead to an inference that the FIR was not registered at the alleged time. The FIR contains all the essential features of the prosecution’s case including names of eyewitnesses, time and place of incident, names of the victim, motive, name of the accused persons, weapons in their hands and manner of assault. Thus, all these things lend a seal of assurance not only to the presence of eyewitnesses at the place of the incident, but also to the participation of the appellants in the crime. Courts attach great importance to the prompt lodging of FIR and prompt interrogation of a witness under Section 161 CrPC as the same substantially eliminates the chances of embellishment and concoction creeping into the account contained therein.

(iv) So far as the doubting of the eye-witnesses was concerned, learned counsel for the informant submitted as follows:

(a) The leaving of the Maruti car and going by a rickshaw to the bus stand was of no importance at all. There was a possibility that the PW-1 had got so much disturbed that he could not find the ignition key and therefore he had taken the rickshaw to the bus stand and thereafter to the police station. How a person reacts at a certain point of time is always very difficult to predict. To bolster his arguments, learned counsel for the informant relied upon Rana Partap and others versus State of Haryana reported in AIR 1983 Supreme Court 680. Since he heavily relied upon the paragraph no. 6 of the judgment and the same is being reproduced here as under:

6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

(b) He further submits that the presence of the first informant at the police station along with Subhash and Satendra Singh Chauhan (whose presence is evident from Rapat No. 9) definitely went to show that every effort was made to lodge the first information report promptly and the first information report therefore could not be doubted. He submits that even the PW-2 Ramesh was shown to be present at the site of the incident in the first information report and his statement also could not be in any manner be disbelieved.

(c) So far as the identification of the accused persons was concerned, he submitted that the informant had known about the accused persons from before as they used to come to the court in different cases and the PW-1 being a practitioner in the same court had known the accused persons by their names. He submits that the appellants had criminal history which was a heinous one and therefore when they used to attend the court then definitely they could be recognised by the PW-1. He has submitted that Roby @ Sanjeev Kumar had a criminal history of six cases, Yogesh had a criminal history of three cases. He has also submitted that from the first information report itself it could be gathered that the accused persons were known from before. There was no point in getting any identification done. He has submitted that even no dock identification was necessary. He has submitted that if the accused persons were known to the witnesses and were named in the first information report then there was no need for any further identification either in the jail by means of test identification parade or in the court by means of dock identification. Learned counsel for the informant relied upon a judgment of Amit versus State of Uttar Pradesh reported in 2012 Cr. LJ 1791 and has relied upon paragraph 7 of that judgment. The paragraph 7 is being reproduced here as under:

We may now deal with the contention of the learned counsel for the appellant that no test identification parade was conducted during investigation for the witness to identify the appellant as the person who had taken away the child from her lap. Test identification parade would have been necessary if the appellant was unknown to PW 3 but as the appellant was the neighbour of PW 3 and known to her, no test identification parade was necessary for PW 3 to identify the appellant. In fact when PW 1 returned home, he was told by PW 3 that the appellant had taken away Monika on the pretext of giving her biscuits because PW 3 knew the appellant. Moreover, on such information received from PW 3, PW 1 lodged the FIR naming the appellant as the person who had taken away Monika on the pretext of giving her biscuits. Hence, the argument of the learned counsel for the appellant that no test identification parade was conducted for PW 3 to identify the appellant is misconceived in the facts of this case.

(v) So far as the question of the reaching of the dead-body very late to the Reserve Inspectors Office at 03:20 PM was concerned, learned counsel for the informant has submitted that it should be presumed that there was a huge crowd outside the college and the crowd had not allowed the dead-body to move. Further he has submitted that the constables who accompanied the dead-body had known that the mortuary would open only after 02:00 to 03:00 PM so they had, in a very casual manner gone slowly.

(vi) Even if the dead-body reached late, learned counsel for the informant submitted that it mattered little when the post-mortem had been done and a report had been submitted. Learned counsel for the informant had also submitted that during the time the PW-1 had waited at the mortuary after having reached there at 11:00 to 11:15 AM he was waiting for the body to arrive. Still further learned counsel for the informant submitted that no question was ever asked during the trial by the defence as to why the dead-body reached so late and he therefore relying upon Dayal Singh and others versus State of Uttaranchal reported in 2012 Cri. LJ 4323, submitted that minor defects in the investigation were ignorable. He also for this argument of his, relied upon Jai Narain and others versus State of U.P. reported in 2000 Criminal Law Journal 3808, Dhanaj Singh and others versus State of Punjab reported in (2004) 3 SCC 654 (2004 Cr.L.J. 1807 SC). Still further he has submitted that the incident had occurred in the year 2002 and the trial though had commenced in the year 2002 was concluded only in the year 2021 and this was because of the high handedness of the appellants. They used to delay the proceedings by moving transfer applications on different occasions. Learned counsel for the informant further had submitted that the question of motive was evident from the statement of the accused recorded under Section 313 of Cr.P.C. wherein they had admitted enmity. Non production of Vimal and Jugendar would not be of any consequence as two very reliable eye-witnesses were already present.

(vii) Learned counsel for the informant further submitted that if exhibits were not given to paper nos. 636A/2, 363A/3 and 636A/4 it would be of no consequence as Karan Pal Singh the DW-1 himself had stated at page no. 77 of the paper book that the person who had died was a student of the college.

(viii) Learned counsel for the informant has submitted that the submission made by the appellants that the deceased was himself a criminal having been found with a country made pistol and ammunition would not be of much consequence as he might have kept the same for self defence. Also, he has submitted that if there were any lapses on the part of the Investigating Officer, then no reliance could be placed on that and in this aspect he relied upon Dayal Singh and others versus State of Uttaranchal reported in 2012 Cri. LJ 4323. Still further relying upon the judgment of Jai Narain and others versus State of U.P. reported in 2000 Criminal Law Journal 3808, learned counsel for the informant has submitted that even if one particular evidence points towards the involvement of the accused then conviction could be done. He similarly relied upon Dhanaj Singh and others versus State of Punjab reported in (2004) 3 SCC 654 (2004 Cr.L.J. 1807 SC).

(ix) Learned counsel for the informant has submitted that if the PW-1 had visited the police station after lodging the first information report then that could have been for the purpose of getting the site plan etc. prepared. Learned counsel for the informant Sri Naseeruzaman thereafter submitted that when it was a clear day light murder with eye-witness accounts there then minor discrepancies could have to be ignored and no interference was required to be done in a case of conviction.

23. Sri C.B. Dhar Dubey, learned A.G.A. has however submitted that if the inquest report is seen then it becomes clear that the father of the deceased was there at the spot as the gold chain which the deceased was wearing was handed over to the father by the police personnel present at the time of the inquest. Since, learned A.G.A. relied upon point 4 of the inquest report wherein it was provided as to how the recovered articles were dispensed with, the same is being reproduced here as under:

24. Learned A.G.A. further submitted that throughout the case it was evident that there was enmity with regard to some property etc. and therefore motive with regard to the killing by the accused was evident. Still further learned A.G.A. has submitted that at page no. 54 of the paper book, the investigating officer PW-4 had stated that the motive with regard to the crime was evident from the first information report and also it was evident that the PW-1 the first informant was knowing the accused persons and he has therefore submitted that it was not necessary to get the accused identified. The relevant portion of the statement of the PW-4 at page no. 54 of the paper book is being reproduced here as under:

प्रथम सूचना रिपोर्ट में ये तथ्य आया था कि एक जमीन की रंजिश को लेकर विवाद चल रहा था इस कारण मैं समझ गया था कि वादी मुकदमा मुल्जिमान को पहले से जानता होगा इसीलिए मेरे द्वारा मुल्जिमान की कोई कार्यवाही शिनाख्त नहीं की गई।

In this regard learned A.G.A. also took the Court through the cross-examination of the PW-2 wherein he had categorically stated that he had known the accused persons.

25. Having heard Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Neeja Srivastava, learned counsel for the appellant in Criminal Appeal No. 5307 of 2021; Sri Sagheer Ahmad, learned Senior Advocate assisted by Sri Tripurari Pal, learned counsel for the appellant in Criminal Appeal No. 5365 of 2021 and Sri Suresh Chand Pandey along with Sri Saurabh Pandey in Criminal Appeal No. 5319 of 2021, learned counsel for the appellant; Sri Naseeruzzaman, learned counsel appearing for the informant and Sri C.B. Dhar Dubey, learned A.G.A. for the State, we analyze the arguments as follows:

(a) So far as the question of ante timing of the first information report is concerned, we find that the PW-1 had reached the place of incident as per the allegation made in the first information report at around 07:00 AM, when the incident occurred thereafter. There is contradiction in the statements of the PW-1, the PW-2 and the DW-1 with regard to how the incident was seen from outside. The perusal of the statement of the PW-1 gives a definite indication of the fact that the entire gate of the college was opened and there was unhindered view and therefore the PW-1 along with his four companions could see the entire incident which happened 35 paces inside the gate of the college obliquely in between the Geography Department and the place where the car was parked. However if the statement of the DW-1 and PW-2 are perused then it becomes apparent that the main gate was closed but the egress and ingress was allowed through a small wicket gate and if that was the case then definitely the vision from the place where the PW-1 and his companions were standing definitely would have been hindered and they could not have seen the incident which had taken place.

(b) We are of the view that the incident when had occurred, the PW-1 along with four companions had gone to the bus stand where the PW-1 scribed the first information report in the presence of three persons and the PW-2 and the other two relatives were asked to go home. This also appears very strange to the Court. If PW-1 had a car then the natural thing to happen was that they all ought to have gone back in the car. There is a possibility that the PW-1 and his companions reacted in a manner where upon having seen the incident they had forgotten about the car. However it appears extremely surprising that none of them checked their pockets to find the ignition key. If there was a fear to the PW-1 of being spotted by the assailants if he and his companions went by the car then we have no hesitation in saying that if they travelled in a rickshaw, they could have been spotted out even better.

(c) We find that the body of the deceased started from the place of incident at 10:45 AM after the inquest was over and it reached the Reserve Inspectors Office at 03:40 PM. This is getting late by almost five hours. Travelling a distance of 7 kilometres in these modern days in five hours seems to be a strange thing to happen. Also the two constables namely Constables No. 03 Ashok Verma and C.P. 120 Ramveer Singh were not produced in the witness box to give a convincing answer as to why such a delay had occurred. Still further, we find that the Investigating Officer had throughout stated that he had got the site plan prepared with the help of the PW-1 but the PW-1 had stated that he had never gone to the site after lodging the first information report. Not only that, we find that after the PW-1 had gone from the police station at around 11:15 AM and had stayed at mortuary till 05:00 PM then in between twice he had gone to the police station as per his own statement. There was absolutely no requirement for him to go to the police station. The only inference that the court can now draw is that the police and also the complainant were in search of certain names who could be nominated for having committed the murder. This becomes more evident when the distance given in the first information report, chik F.I.R. and the inquest report differed. We thus have no hesitation in saying that the first information report was ante timed.

(i) The question arises as to whether the PW-1 and the PW-2 along with the other nominated eye-witnesses namely Vimal and Jugendar Singh were at all there at the site. From the entire narration, it is clear that the PW-1 had stated that the entire gate of the college was open, so much so that he could see the place of incident which was around 35 paces inside the college from the car where he was standing outside the gate. This was in absolute contradiction to the case taken by the PW-2 and DW-1 that the main gate was closed and that all ingress and egress was allowed through a wicket gate. Also the presence of the PW-1 and other eye-witnesses become doubtful, if we see that the car by which the eye-witnesses had gone along with the deceased to college was not taken by them go to the police station and they had gone on a rickshaw. Also, howsoever much the PW-1 and his other companions might have been shocked by the incident they would definitely have had the sagacity to search for the key and drive down to the police station in a car. This also creates doubt whether the PW-1, PW-2 and his other companions were at all there at the site. From the record we find that the proctor himself had rung up the police and there was every possibility that the police had reached first and thereafter the prosecution witnesses 1, 2 and their companions had reached. At a particular juncture in the cross-examination of PW-2, he had stated that he had reached the place of incident at the time when the panchayatnama was being conducted. In the first blush the argument of the learned counsel for the respondent appears to be correct that by stating so the PW-2 had meant to say that he went again after having come back from the police station and that he had reached the place of incident again when the panchayatnama was going on but when composite reading of the entire evidence is done then the argument of the learned counsel for the appellants appears to be convincing that in fact the PW-2 had reached at the time when the panchayatnama was underway. Still further the very fact that the other two eye-witnesses namely Vimal and Jugendra whom, the PW-1 had claimed, were eye-witnesses were never produced in the witness box, confirms our view that the PW-1, the PW-2 and their companions were not there at the time of incident. So far as the argument of the learned A.G.A. that in the panchayatnama, it had been mentioned that the gold chain and other belonging had been handed over to the father is concerned, suffice to say that it definitely did not mention that the father was at the place where the panchayatnama was being undergone. It is just possible that the belongings were handed over to the father later on when he had reached on the phone call of the police who was informed by the proctor. Also had the father been present at the site he would have definitely been a witness to the panchayatnama. All this convinces us to believe that PW-1 alongwith PW-2 was definitely not there at the site when the incident had occurred.

(ii) Next comes the question of fact as to whether the PW-1 and the PW-2 along with other witnesses namely Vimal and Jogindar Singh were at all there at the spot. The contradiction as have been pointed out earlier coupled with the fact that ante timing had to be done, we are convinced that the PW-1 along with PW-2 were not there on the spot at the time of the occurrence of the incident.

(iii) So far as the identification of the accused is concerned, we find that vis-a-vis the appellant Yogesh, name of his father was not given in the F.I.R. The PW-1 in his statement has clearly mentioned that even Raghvendra @ Kaalu was not known to him and only on the basis of hearsay evidence i.e. from the students present in the college, who were also never produced in the witness box, the name of Raghvendra @ kaalu was known to the complainant. How the name of the father of the Raghvendra @ Kaalu was known to the complainant still remains a mystery. Definitely the students must not have known the name of the father of Raghvendra @ Kaalu. The prosecution has to stand on its own legs and when it did not convincingly prove that how the name of Shailendra, father of Raghvendra @ Kaalu, was known to the first informant on the date of the lodging of the first information report, then the case so far as recognising of Yogesh and Raghvendra was concerned becomes absolutely suspicious. What the Court here intends to further elaborate is that throughout during investigation despite the fact that it was not certain that the accused were known to the first informant, no test identification parade was done. Not only that, the accused were not even recognised ever in the court either by the PW-1 or PW-2 who were the witnesses of fact. All three accused for the first time appeared in the Court at the time of framing of the charges and thereafter if the entire order-sheet of the trial court is seen then it appears that all the three of them appeared together only on 08.08.2014, 20.10.2014, 24.11.2014, 02.12.2014, 05.12.2014, 02.01.2015, 16.03.2015, 24.03.2015, 02.04.2015 and 05.05.2015 and on these dates the PW-1 and the PW-2 were not getting their statements recorded or were even being cross-examined. Thus we are convinced that the appellants were never identified in the court and if that is the case then definitely the prosecution has failed to prove its case beyond all reasonable doubt as it has been held by Apex Court in the case of Tukesh Singh versus State of Chhattisgarh reported in 2025 AIR SC 2666.

(vi) Also, no convincing evidence was brought on record evidencing that the deceased was a student of the college. Definitely the admit card, a scheme of examination and a bona fide student certificate were brought on record as Paper Nos. 636A/2, 636A/3 and 636A/4. However, the court had not cared to get these documents exhibited and proved. Simply bringing on record of the documents as Paper Nos. 636A/2, 636A/3 and 636A/4, could not make one conclude that the deceased was a B.A. IIIrd year student and that on the date of incident he had the examination of Military Studies-Paper I (a) or (b). The trial court had ignored all law to consider the three documents and had proceeded to consider those documents as evidence.

Be that as it may, we find that from the dead-body definitely these documents were not recovered. Had these documents been recovered from the dead-body and had not been exhibited even then the court would have considered that those papers were inadvertently not proved and the deceased was a student. Here we find that from the possession of the deceased, a country made pistol, live cartridges and some cash alongwith a gold chain were recovered. These definitely do not indicate that he was a student of the college. If the DW-1 merely said that he was a student of the college it did not mean that his statement would be taken as a gospel truth to believe that the deceased was a student. He might have looked the age of a student and therefore there was possibility that the DW-1 had addressed him as a student during his evidence. Further being a student could have been proved by the prosecution by the production of Admission/ Attendance Register. This was also not done.

(v) We are also convinced that with the passage of time the prosecution witnesses must have seen the accused on many an occasion. A retrial for the purpose of identification by even dock identification would thus be a futile exercise. However, relying upon Tukesh Singh versus State of Chhattisgarh reported in 2025 AIR SC 2666 we are of the definite view that the trial where the accused were never recognised or even identified even in the court would result in complete acquittal as it goes to show that the prosecution utterly failed to prove its case beyond all reasonable doubt.

(vi) So far as the motive aspect is concerned, we are definitely of the view that it had to be established to the hilt, especially when the eye-witness accounts had been disbelieved. The motive as had been brought forth that there was some dispute with regard to the landed property, also was not proved as neither any sale deed nor any document relating to any case having been filed between the parties in any court was brought on record. Also, when the statement of the accused were being recorded under Section 313 Cr.P.C., no document which could have been replied to by the accused was shown to them.

25. In the ultimate analysis, we feel that this is an extreme case where the trial court proceedings were conducted in absolute ignorance of law. In the first place, the trial court never cared for a proper identification of the accused. The entire testimony showed that at no point of time the accused were identified in the court. We also dare to say that even the investigation was done in the most sloppy manner. When the father of the deceased along with all his companions had left the dead-body (as per the F.I.R. version) and had gone to the police station on a rickshaw then the investigating agency i.e. the police ought to have seen to it as to whether the father had come back again to the site. The PW-1 had said he never had gone to the site where as the I.O., PW-4, had said that he had prepared the site plan with the help of the father. The investigating agency i.e. the police, upon reading of the F.I.R. should have concluded that definitely when Yogendra whose fathers name was not there in the F.I.R. and Raghvendra about whom the father of the deceased was not knowing then a test identification parade should have been got done. Further we find that the trial court had depended while giving its judgment on documents i.e. the Paper Nos. 636A/2, 636A/3 and 636A/4 which were never proved and had not got exhibited. This shows the extreme immaturity of the trial court. When an accused is being tried for murder, trial should be conducted with utmost care. Had this case been a very old one, we would not have ventured to comment on the manner in which the trial had taken place. This is a case which was tried in the year 2021 finally and, therefore, we have ventured to comment on the manner in which the trial was undergone. The courts undertaking sessions trial should be very careful in dealing with the evidence. They should always remember that it is trite law and a settled principle of criminal jurisprudence that 99 guilty persons might escape the clutches of law but one innocent should not be punished wrongly.

26. For all the reasons which have been stated above, we are thus of the view that the judgment and order of the trial court dated 24.09.2021 deserves to be set aside.

27. The Appeals thus stand allowed.

28. The appellants, in all the Appeals namely Criminal Appeal No. 5319 of 2021, Criminal Appeal No. 5365 of 2021 and Criminal Appeal No. 5307 of 2021, are honourably acquitted of the charges as were levelled against them in the instant case. If the appellants are in jail, they be released forthwith.

(Prashant Mishra-I,J.)     (Siddhartha Varma,J.)
 
May 19, 2026
 
M.S. Ansari