# Aman Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Criminal Appeal No.2682 of 1982
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aman-singh-ors-in-jail-v-state-of-u-p-48831
- **Pages:** 26

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302/149, 147, 148 , The Code of
criminal
procedure,
1973
-
Section
161,164 - Indian Evidence Act, 1872 -
Section 134 - Number of witnesses -
conviction can be based on the evidence
of sole witness in a criminal trial as quality
of evidence matters not the quantity.
(Para -63 )

Five accused - unlawful assembly alongwith
another associate - agricultural field - common
object to commit murder of deceased (brother of
the first informant) - committed offence of rioting -
intentionally causing death on the relevant date
and time of the incident on the spot of the incident
- attempted to commit murder of first informant -
firing at him in pursuance of common object -
committed dacoity - allegedly snatched licensed
gun alongwith 25 cartridges and automatic wrist
watch - armed with deadly weapons namely axes
and sickle at the time of committing the offence of
rioting - committed theft of the gun alongwith 25
cartridges and automatic wrist watch - committed
killing of deceased .(Para -4 )

(B) Criminal Law - Indian Evidence Act,
1872 - Section 8 - Motive , preparation
and previous or subsequent conduct -
suspicion of accused persons over deceased of
having murdered their family members is,
proved by the witness P.W.1 - motive as
640 INDIAN LAW REPORTS ALLAHABAD SERIES
setforth in the written information and the first
information report is, thus, proved and is a
relevant fact .(Para - 18)

(C) Criminal Law - Relevant date and time
of the incident - no enmity between first
informant (P.W.1) and accused appellants -
planting of dead body on spot of incident by
informant (P.W.1) is not acceptable - when
spot of incident is proved satisfactorily by all
witnesses of fact as well as formal witnesses.
(Para - 19)

(D) Criminal Law - About witnesses -
prosecution witnesses of fact are rustic villagers,
not highly educated, even illiterate or simply
literate - incident of murder in a rural area
where the witnesses to the case were rustic -
their behavioural pattern perceptive and unperceptive habits have to be judged as such.
(Para - 24,25)

(E) Criminal Law - evidentiary value of
the statement of the hostile witnesses,
with regard to the facts deposed by
them and the effect of the portion of
their
statement
not
supporting
the
prosecution case - in a criminal trial,
evidence of a hostile witnesses can form the
basis of conviction - In the matter of
appreciation of evidence of witnesses - it is
not the number of witnesses but the quality
of their evidence matters. (Para -26,27 )

(F) Criminal Law - Reliance on the
hostile witnesses - corroborated part of
evidence of hostile witness regarding
commission of offence is admissible -
probability of presence of deceased, with the
first informant, P.W.1 on the spot of the
incident on the relevant date and time
corroborated by the fact that the incident had
occurred at the time of the sunset, as

## Text

_Characters 0–39,864 of 86,692. This is a partial read: ask again with offset=39864 for what follows._

6 All. Aman Singh & Ors. Vs. State of U.P.
639
namely appellant nos. 2 and 6 have been
found guilty of rioting, their conviction
under Section 147 IPC cannot be said to
suffer from any error of law. The sentence
awarded to the appellants herein for the
offences under Sections 147 and 323 is
appropriate in view of the gravity of the
offence. The sentence awarded under
Section 302 IPC is minimum.

41. For the above discussion, no
interference is required in the judgment
and order dated 14.12.1989 passed by the
IVth Additional District & Sessions
Judge, Saharanpur in Sessions Trial No.
597 of 1987 (State vs. Chandra), under
Section 147, 148, 302/149 and 323/149
IPC, Police Station Laksar, District
Saharanpur which is hereby affirmed.

The
appeal
is
dismissed,
accordingly.

Both the appellants Dharm Pal
and Jagpal are in jail.

The
office
is
directed
to
transmit back the lower court record
along with a certified copy of this
judgment for information and necessary
compliance.

Necessary steps shall be taken
by the Court below to notify this
judgment to all concerned.

The compliance report be furnished
to this Court through the Registrar
General, High Court, Allahabad.
----------
(2022)06ILR A639
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No.2682 of 1982

Aman Singh & Ors. ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri G.S.Hajela, Sri A.N. Misra, Sri Anuj Bajpayee,
Sri Dinesh Kumar Sony, Sri K.R.Yadav, Sri R.K.
Singh Rajput, Sri Zafar Abbas , Sri Satyendra
Kumar Mishra, Sri Sanjay Kumar Dubey, Sri
Neeraj Mishra

Counsel for the Respondent:
A.G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302/149, 147, 148 , The Code of
criminal
procedure,
1973
-
Section
161,164 - Indian Evidence Act, 1872 -
Section 134 - Number of witnesses -
conviction can be based on the evidence
of sole witness in a criminal trial as quality
of evidence matters not the quantity.
(Para -63 )

Five accused - unlawful assembly alongwith
another associate - agricultural field - common
object to commit murder of deceased (brother of
the first informant) - committed offence of rioting -
intentionally causing death on the relevant date
and time of the incident on the spot of the incident
- attempted to commit murder of first informant -
firing at him in pursuance of common object -
committed dacoity - allegedly snatched licensed
gun alongwith 25 cartridges and automatic wrist
watch - armed with deadly weapons namely axes
and sickle at the time of committing the offence of
rioting - committed theft of the gun alongwith 25
cartridges and automatic wrist watch - committed
killing of deceased .(Para -4 )

(B) Criminal Law - Indian Evidence Act,
1872 - Section 8 - Motive , preparation
and previous or subsequent conduct -
suspicion of accused persons over deceased of
having murdered their family members is,
proved by the witness P.W.1 - motive as
640 INDIAN LAW REPORTS ALLAHABAD SERIES
setforth in the written information and the first
information report is, thus, proved and is a
relevant fact .(Para - 18)

(C) Criminal Law - Relevant date and time
of the incident - no enmity between first
informant (P.W.1) and accused appellants -
planting of dead body on spot of incident by
informant (P.W.1) is not acceptable - when
spot of incident is proved satisfactorily by all
witnesses of fact as well as formal witnesses.
(Para - 19)

(D) Criminal Law - About witnesses -
prosecution witnesses of fact are rustic villagers,
not highly educated, even illiterate or simply
literate - incident of murder in a rural area
where the witnesses to the case were rustic -
their behavioural pattern perceptive and unperceptive habits have to be judged as such.
(Para - 24,25)

(E) Criminal Law - evidentiary value of
the statement of the hostile witnesses,
with regard to the facts deposed by
them and the effect of the portion of
their
statement
not
supporting
the
prosecution case - in a criminal trial,
evidence of a hostile witnesses can form the
basis of conviction - In the matter of
appreciation of evidence of witnesses - it is
not the number of witnesses but the quality
of their evidence matters. (Para -26,27 )

(F) Criminal Law - Reliance on the
hostile witnesses - corroborated part of
evidence of hostile witness regarding
commission of offence is admissible -
probability of presence of deceased, with the
first informant, P.W.1 on the spot of the
incident on the relevant date and time
corroborated by the fact that the incident had
occurred at the time of the sunset, as stated
in the F.I.R.(Para - 29,33,)

(G) Criminal Law - Relative witness - spot
of the incident - written information and
delayed F.I.R. - relationship is not a factor to
effect the credibility of a witness - spot of the
incident proved to be boundary (med) of the
'jowar' field - written information of the incident
given to the police station with reasonable
promptness - no extraordinary delay to raise
any doubt as to the genuineness of the F.I.R. .
(Para - 47,52,58,)

(H) Criminal Law - Medical Evidence -
Mode and manner of the commission of
offence - reliance can be based on the
solitary statement of a witness if the court
comes to the conclusion that his statement is
true and correct version of the case of the
prosecution - witnesses turned hostile except
P.W.1 as eye witness of incident - death
proved by anti mortem injuries - nature of
injuries - caused by some sharp edged and
pointed weapons - depth of the injuries upto
muscle deep or bone deep confirms the
weapon assigned to the accused namely axe
(Kulhari)
and
sickle
(hasiya).(Para
-
59,60,66 )

(I) Criminal Law - minor contradictions
or
inconsistency
are
immaterial,
irrelevant details which are not in the
capacity
in
anyway
corrode
the
credibility of witness cannot be labelled
as omission or contradictions - evidence
as to the presence on the spot of incident at
the relevant time and date of the incident
proved to be probable and natural, free from
contradictions,
exaggeration
or
embellishment. (Para - 68)

HELD:- No error in the judgment of conviction
and order of sentence passed by the trial court.
No intereference is required. (Para -69 )

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Prabhash Kumar Vs St. of Har., (2013) 82
ACC (SC) 401

2. Iyappa & ors. Vs St. of T.N., (2011) 72 ACC
(SC) 988

3. Zahira Habibullah Sheikh & anr. Vs St. of
Guj., 2006 3 SCC 374

4. Sheo Shankar Singh Vs St. of Jharkh. & anr.,
(2011) 3 SCC 654

5. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj.,
(1983) 3 Supreme Court Cases 217
6 All. Aman Singh & Ors. Vs. State of U.P.
641
6. Shivaji Sahab Rao Bobade Vs St. of Mah.,
(1973) 2 Supreme Court Cases (801)

7. Mrinal Das Vs St. of Tripura, (2011) 9 SCC
479

8. Siddharth Vashisth @ Manu Sharma Vs St. of
N.C.T., Delhi, (2010) 69 SCC 833

9. Babu @ Balasubramaniam & arn.. Vs St. of
T.N., (2013) 8 SCC 60

10. Ashok Kumar Chaudhary Vs St. of Bihar,
(2008) 12 SCC 173

11. Sucha Singh Vs St. of Punj., (2003) 7 SCC
643

12. Vijendra Singh Vs St. of U.P. with Mahendra
Singh Vs St. of U.P., (2017) 11 Supreme Court
Cases 129

13. Sucha Singh & anr. Vs St. of Punj., (2003) 7
Supreme Court Cases 643

14. Shyam Babu Vs St. of U.P., (2012) 8
Supreme Court Cases 651

15. Lallu Manjhi Vs St. of Jharkhand, AIR 2003
SC 254

16. Veer Singh Vs St. of U.P., (2014) 2 SCC 455

17. Brahm Swaroop & anr. Vs St. of U.P., (2011)
6 Supreme Court Cases 288

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The instant criminal appeal is
directed against the judgment of conviction
and order of sentence dated 18.10.1988
passed by the Special Judge, Lalitpur in
Session Trial No.15 of 1980 (State Vs.
Aman Singh, Hallu and Bhaiyan) and
Session Trial No.23 of 1980 (State Vs.
Kishora), convicting the accused persons
under
Section
302/149
I.P.C.
and
sentencing them to suffer imprisonment for
life and further convicting the appellant
Bhaiyan under Section 147 I.P.C. and
sentencing
him
to
undergo
rigorous
imprisonment for six months. Rest of the
appellants namely Aman Singh, Hallu and
Kishora have been convicted under Section
148 I.P.C. and sentenced to suffer rigorous
imprisonment for a period of one year. All
the sentences are to run concurrently.

2. The aforesaid two Sessions Trial
Nos. 15 of 1980 and 23 of 1980 were
connected by the trial judge as they have
arisen from crime case no.53 of 1979,
Police Station Saujana, District Lalitpur
and the evidences against the accused in
both the cases being the same, recorded in
the leading Sessions trial No. 15 of 1980.

The accused Karan Singh S/o
Majboot Singh Thakur was separately tried
as he was absconding in Sessions Trial
No.47 of 1983 under Sections 302, 147,
149 I.P.C., Police Station- Saujana, District
Lalitpur.

Factual Matrix

3. The prosecution case as emerged
from the written information given by the
first informant, Kashiram on 22.11.1979 in
the Police Station- Saujna, District Lalitpur,
the evidence on record both documentary
and oral to state briefly as follows:-

The first informant Kashiram
alongwith his real brother Ramphal both
S/o Motilal R/o Village Agodi, Police
Station Saujna, District Lalitpur went to
their agricultural field of 'jowar' to take
care and protection of the crops. The first
informant (Kashiram) handed over his
licensed gun no.1516 of 12 bore with 25
cartridges to his brother ''Ramphal' and
went himself into the field to cut grass.
After cutting the grass at about 5:00 p.m. in
642 INDIAN LAW REPORTS ALLAHABAD SERIES
the evening, when the day light was still
existing, the first informant lift the +bundle
of grass and moved on the way to his house
with his brother ''Ramphal' ahead of him.
About ten paces away from their field on
the way to their home, when they reached
near the agricultural field of Baldu Lodhi,
the accused persons Karan Singh S/o
Majboot Singh Thakur armed with axe
(kulhari), Amaan Singh S/o Majboot Singh
Thakur armed with sickle (hasiya), Kishora
S/o Kamatua Nai armed with axe (Kulhari),
Hallu S/o Kamatua Nai armed with axe, all
residents of Agodi Police Station Saujana,
District Lalitpur with brother-in-law of
Kishora namely ''Bhaiyan Nai' R/o Village
Rangaon,
Police
Station
Mandwara,
District Lalitpur, came out from the crops
of 'jowar' in aforesaid field of Baldu Lodhi.
They caught hold the informant's brother
Ramphal and tossed him on the earth. They
inflicted blows of axe (Kulhari) and sickle
(Hasiya) on him. Informant's brother
Ramphal
began
to
scream
and
the
informant was also raising alarm for help,
upon which Pooran, Pragi, Jagan, Sunnu,
all residents of Village Agodi rushed to the
spot, but after killing Ramphal, all the five
assailants fled from the spot snatching the
licensed gun, cartridges and the wrist watch
from the hands of the deceased. When the
witnesses began to gather near the spot of
the incident, Kishora Nai made a fire from
the licensed gun of the informant. The dead
body
of
Ramphal
(deceased),
the
informant's brother was lying in the
agricultural field of Baldu Lodhi and some
of the villagers stayed near the dead body.

This written information dated
22.11.1979 was given by the informant in
the police station Saujana at about 8:00
a.m. The first information report was
lodged accordingly, on the basis of written
information under Section 396 I.P.C. The
distance of the spot of the incident from the
Police Station Saujana is shown as about 13
k.m. in the F.I.R. towards south west from
the police station.

After registering the F.I.R., police
reached at the spot of the incident and
started the proceeding of inquest, prepared
site map on the orientation of witnesses,
collected the blood stained soil and plain
earth soil from the spot of the incident,
prepared memo thereof and sent the body
for post-mortem. After getting the post
mortem report, charge sheet was submitted
before the court.

4. All the five accused in above two
sessions trial were charged with the offence
under Section 147 I.P.C. for having formed
an unlawful assembly alongwith another
associate
namely
Karan
Singh
on
21.11.1979 at about 5:00 p.m. near the
agricultural field of one Baldu Lodhi
having crops of 'jowar', situated in village
Agodi, Police Station- Saujna, District
Lalitpur, with a common object whereof to
commit the murder of Ramphal (brother of
the first informant Kashiram) and in
furtherance of their common object of that
unlawful assembly, the accused persons
allegedly had committed the offence of
rioting. They were further charged under
Section 302/149 I.P.C. as they committed
the murder of Ramphal intentionally
causing his death on the relevant date and
time of the incident on the spot of the
incident in furtherance of the common
object of their unlawful assembly. The
accused persons were also charged under
Section
307/149
I.P.C.
for
having
attempted to commit the murder of
Kashiram by firing at him in pursuance of
their common object on the relevant date
and time on the spot of incident. They were
also charged under Section 396 I.P.C. for
6 All. Aman Singh & Ors. Vs. State of U.P.
643
having committed dacoity as they allegedly
snatched the licensed gun alongwith 25
cartridges and automatic wrist watch and in
the course of commission of the dacoity,
murder of ''Ramphal' was committed by
one or some of them. Further, three accused
Aman Singh, Hallu and Kishora were
charged under Section 148 I.P.C. also for
being armed with deadly weapons namely
axes and sickle at the time of committing
the offence of rioting.

5. Kishora, the accused in Sessions
Trial No.23 of 1980 was charged under
Section 379 I.P.C. for having committed
theft of the gun bearing no. 1516 alongwith
25 cartridges and automatic wrist watch by
taking it out from the hands of the deceased
Ramphal on the relevant date and time at
the spot of incident.

6. The prosecution proposed the
following witnesses for oral examination
and documents to prove the case before the
trial court and documents given herein
below in a table for the purpose of easy
reference:-

P.W.1,
Kashiram
(brother
of
the
deceased)
Proved the written report
Ex.Ka.1
Ex.
Ka.2
Receipt
Misil
Ex.(i)
Vest
Ex.(ii)
undergarment
Ex.(iii)
Shirt
Ex.(iv)
Pen
Ex.(v)
Kanthi
Ex.(vi)
Tabeez
Ex.(vii) Ring
P.W.2,
Jainarayan
Dubey,
Constable,
Police
Station
Carried the sealed dead body
of the deceased for post
mortem.
Kotwali,
District
Lalitpur.
P.W.3,
Sunnu
Proved the statement under
Section
164
Cr.P.C.
of
Sunnu as Ex. Ka-11
P.W.4,
Dr.
Suresh
Sakalya
Proved
the
post-mortem
report as Ex.Ka-3
P.W.5,
Lal
Singh
Proved
G.D.
report
as
Ex.Ka.7
P.W.6,
Ghanshsyam
Das
Proved the deposit of sealed
samples of Maalkhana.
P.W.7, Devi
Charan
Shukla
Proved the sealed samples
for examination in hospital.
P.W.8, Jagan Proved Ex. Ka-8 recovery of
blood stained soil and plain
earth
soil.
Ex. Ka-9 recovery of shoes
of the deceased from the
spot
of
the
incident.
Ex. Ka-10 recovery of kanthi
and Mala
P.W.9,
Pooran
Proved the statement under
Section
164
Cr.P.C.
of
Pooran as Ex.Ka-12
P.W.10,
Pragi
Proved the statement under
Section 164 Cr.P.C. of Pragi
as Ex. Ka-13
P.W.11,
Surjan Singh
Proved inquest report as
Ex.Ka-14
Ex.Ka-23
statement
of
Pooran
Ex.Ka-25 Statement of Pragi
Ex.Ka-28 and 29 Charge
sheets against Hallu and
Bhaiyan
P.W.12.,
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Peetam Lal
P.W.13,
Bichitra
Kumar
Gupta,
Railawy
Magistrate
Proved
statement
of
Kashiram under Section 164
Cr.P.C.
as
Ex.Ka-30
Ex.Ka-31 statement of Pragi
Ex.Ka-11
statement
of
Sunnu
Ex.Ka-32 statement of Jagan

7. Appellant no.1, Aman Singh is still
absconding whereas the appellant no.2,
Kishora,
appellant
no.3,
Hallu
and
appellant no.4, Bhaiyan are in jail.

8. Learned counsel Sri Satyendra
Kumar Mishra holding brief of Sri A.N.
Misra Advocate appeared on behalf of the
appellants. Sri Sanjay Kumar Dubey
learned Advocate for the appellant no. 2
Kishora also appeared before the court. Sri
Patanjali Mishra learned A.G.A. for the
State respondents argued the prosecution
case.

Arguments of the learned counsels-

9. Learned counsel for the appellants
contended that the incident as stated by the
prosecution witnesses is not as such and the
deceased was killed somewhere else by
some anonymous enemies earlier to the
alleged date of incident i.e. 21.11.1979. He
further submitted that even the presence of
P.W.1 (first informant, Kashiram) is
doubtful because the first information
report had been lodged with extraordinary
delay without any plausible explanation.
He contended that as alleged in the First
Information Report, the incident of killing
the deceased ''Ramphal' occurred at 5:00
p.m. on 21.11.1979, the spot of incident
was 13 k.m. away from the Police Station
but the First Information Report was
lodged at 8:00 a.m. on the next day i.e.
22.11.1979.

10. The next argument of the learned
counsel for the appellant is with regard to
impossibility
of
hiding
of
accusedappellants allegedly in the field of ''jowar',
the crops whereof were more or less two
feet in height. He further drew the attention
towards the statement of P.W.1 who stated
that the accused appeared out from the field
when the deceased reached near the ''med'
(boundary) of that field of ''jowar', and
submits that the informant could see them
pouncing on the deceased. According to the
learned counsel for the appellant, hiding of
the
accused
between
the
crops
of
approximately 2 feet in height was quite
impossible.

11. Learned counsel for the appellant
further contended that evidence on record
reveals that the deceased ''Ramphal' was
member of a gang of dacoits and he might
have been killed in a bit to commit dacoity
at some other place or by some other rival
gangs or by the villagers. For the reason of
enmity, the first informant has taken undue
advantage to make false implication against
the accused-appellants. It is further argued
that when the deceased was having gun
with 25 cartridges, no one could muster
courage to attack him in the manner as
alleged in the F.I.R.

12. The motive is stated by the
informant
himself
in
the
written
information and the First Information
report establishes the enmity between the
parties to the incident. Learned counsel for
the
appellant
emphasises
that
the
conviction is only based on suspicion,
raised by the informant against the
accused-appellants that the accused were
suspecting the hands of the deceased in the
6 All. Aman Singh & Ors. Vs. State of U.P.
645
killing of their family members in an earlier
incident. It is argued that the suspicion,
however, strong it may be can not take
place of the facts established on the
evidence.

13. Learned counsel for the appellants
lastly argued that the prosecution evidence
itself raised doubt as to the killing of
deceased on some earlier date from the
alleged
date
of
incident
21.11.1979,
somewhere else and, thereafter, the dead
body was planted on the alleged spot of the
incident. The medical evidence (postmortem report) also corroborates the
oldness of the dead body of the deceased
alleged to have been killed on 21.11.1979
at about 5:00 p.m. Learned counsel
submitted
that
since
the
prosecution
remained unsuccessful in proving its case
beyond all reasonable doubts, therefore, the
conviction recorded by the trial judge and
the sentence awarded can not be sustained
in the eye of law.

14. Learned counsel for the appellant-
Kishora, Sri Sanjay Kumar Dubey added
that the eye witnesses were planted in the
case falsely and for this reason which they
had turned hostile and did not support the
case of the prosecution. As such, the
evidence on record was not sufficient and
material for recording the conviction of the
present accused-appellants.

15. In rebuttal, it is argued by the
learned A.G.A. that the contention of
learned counsel for the appellants as to the
doubt about the presence of P.W.1 (first
informant) is not correct because his
presence
is
admitted
by
all
other
prosecution witnesses consistently and
without any contradiction. The prosecution
case which finds support from the oral
evidences of P.W.1 which is un-shaken.
Further, he argued that the arguments of the
learned counsel with regard to the false
implication and concocting a case by the
prosecution, is baseless. P.W.1 in his
statement has explained satisfactorily about
the delay in lodging the F.I.R. He further
argued that the entire prosecution case is
well supported with the direct evidences of
eye witnesses and also the motive setforth
in the written information and the prompt
F.I.R. is well established.

16. Learned A.G.A. lastly drew the
attention towards the statements of the
prosecution witnesses who turned hostile
and contended that they were not under any
coercion,
fear
or
terror
while
their
statements under Section 164 Cr.P.C. was
recorded, as such, the statements of such
witnesses in the course of their examination
in the Court shall not be treated as wholly
unworthy. The statement of such witnesses
to the extent of lagging support to the
prosecution shall be read being reliable as
corroboratory evidence. He further submits
that the principle of "falsus in uno falsus in
omnibus" does not apply in India. He
referred on the case laws (2013) 82 ACC
(SC) 401 Prabhash Kumar Vs. State of
Haryana, (2011) 72 ACC (SC) 988 Iyappa
& Ors. Vs. State of Tamil Nadu and 2006
3 SCC 374 Zahira Habibullah Sheikh &
Anr. Vs. state of Gujarat.

On the basis of above arguments,
learned A.G.A. submitted the impugned
judgment of conviction and order of
sentence is good in law and deserves to be
confirmed, no interference is required in
the impugned judgment under appeal, as
such the appeal is liable to be dismissed.

Discussion

Motive-
646 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In Sheo Shankar Singh Vs. State
of Jharkhand and Anr.1 the principles for
the proof and relevance of motive in
establishing the guilt of the accused and its
varying importance in cases based on
circumstantial evidence and in those of
which are based on the testimony of eye
witnesses, has been discussed. Para 15 of
the
said
judgment
is
being
quoted
hereunder:-

"15. The legal position regarding
proof of motive as an essential requirement
for bringing home the guilt of the accused
is fairly well settled by a long line of
decisions of this Court. These decisions
have made a clear distinction between
cases where prosecution relies upon
circumstantial evidence on the one hand
and those where it relies upon the
testimony of eye witnesses on the other. In
the former category of cases proof of
motive is given the importance it deserves,
for proof of a motive itself constitutes a link
in the chain of circumstances upon which
the prosecution may rely. Proof of motive,
however, recedes into the background in
cases where the prosecution relies upon an
eye-witness account of the occurrence.
That is because if the court upon a proper
appraisal of the deposition of the eyewitnesses comes to the conclusion that the
version given by them is credible, absence
of evidence to prove the motive is rendered
inconsequential.
Conversely
even
if
prosecution succeeds in establishing a
strong motive for the commission of the
offence, but the evidence of the eyewitnesses is found unreliable or unworthy
of credit, existence of a motive does not by
itself provide a safe basis for convicting the
accused. That does not, however, mean that
proof of motive even in a case which rests
on an eye-witness account does not lend
strength to the prosecution case or fortify
the court in its ultimate conclusion. Proof
of motive in such a situation certainly helps
the prosecution and supports the eye-
witnesses."

18. The suspicion of the accused
persons over Ramphal (deceased) of having
murdered
their
family
members
is,
however, proved by the witness P.W.1. In
his cross-examination by the defence he
stated that a criminal case with regard to
the incident of killing of the family
members of the accused-appellants was
instituted against his brother ''Ramphal'
(deceased) and father. Police was searching
his brother (Ramphal) but he could not be
traced
by
them.
Ramphal
ultimately
surrendered
alongwith
other
''baghis'
(dacoits) in District-Chatarpur. He also
stated that he does not know about the gang
of dacoits to which the deceased ''Ramphal'
belonged, however, in the murder case he
was acquitted by the court concerned.

Witness P.W.8, Jagan has also
stated in the cross-examination that the
parents of the accused appellants Aman
Singh and Karan Singh were murdered and
father of the accused-appellants Hallu and
Kishora was also murdered. He further
stated
that
deceased
''Ramphal'
was
prosecuted for the above three murders,
wherein he was acquitted.

P.W.9, Pooran has also stated in
the cross-examination about the murder of
parents of accused Karan Singh, Aman
Singh and father of Kishora and Hallu in
the village. He admitted that the accused
persons had a strong suspicion over the
deceased ''Ramphal' of having committed
their murder. This witness then stated that
he heard that the Ramphal (deceased) had
joined the gang of dacoit of ''Moni Ram
Sahai' and the people from the village were
6 All. Aman Singh & Ors. Vs. State of U.P.
647
witnesses in the murder case against
deceased Ramphal.

P.W.10, Pragi stated that when
the murder of the parents of the accusedappellants had occurred, they were very
young. He himself also young age. As
such, all the witnesses Kashiram (P.W.1)
Sunnu (P.W.3), Jagan (P.W.8), Pooran
(P.W.9), Pragi (P.W.10), even those who
did not support the case of the prosecution
in toto had supported the fact constituting
the motive behind the killing of Ramphal.
The motive as setforth in the written
information and the first information report
is, thus, proved and is a relevant fact under
Section 8 of the Indian Evidence Act, 1872.

Relevant date and time of the incident

19. Though it is argued by the learned
counsel for the appellant that the evidence
on record shows that the deceased might
have been killed somewhere else prior to
the alleged date of the incident 21.11.1979
and the dead body was planted maliciously
by the first informant by reason of enmity
with the accused-appellants. We have gone
through the evidences of P.W.1 and as
discussed above, it may be recorded that
there was no enmity between the first
informant Kashiram (P.W.1) and the
accused appellants. Kashiram (P.W.1), the
first informant himself stated that being the
villagers of the same village, the accused
appellants and he were on normal terms of
visiting each other houses and talking to
each other. None of the witnesses of the
prosecution stated about the ''enmity', if
any, of Kashiram with the accusedappellants nor any suggestion of enmity
had been given to the first informant. So far
as enmity of the accused appellants with
deceased Ramphal is concerned, it is
established
by
the
evidence
of
the
prosecution witnesses that the same was
because of the deceased being the accused
in the murder case of parents of the
accused, who had been acquitted. The
arguments of the learned counsel for the
appellants of planting of the dead body on
the spot of the incident by the informant
(P.W.1) is not acceptable. Particularly
when the spot of the incident is proved
satisfactorily by all the witnesses of fact as
well as the formal witnesses.

20. The doctor P.W.4, Dr. Suresh
Sakalya had also not been confronted to
impeach him about his assessment that the
deceased might have died on 21.11.1979 at
about 5:00 p.m. in the evening. No
questions were put to him by the defence
about the condition of the dead body on the
date of the post-mortem examination so as
to relate the same to the oldness of the dead
body and to reach at the proximate time of
death prior to the established date and time
of the incident, i.e. on 21.11.1979 at about
5:00 p.m., It is needless to discuss on this
point.

21. The written information itself
reveals that the accused persons are related
to each other. The accused Karan Singh
and Aman Singh are real brothers, sons of
''Majboot Singh Thakur', accused Kishora
and Hallu are real brothers, sons of
''Kamatua Nai', all residents of Village
Agodi where the incident had occurred and
the first informant P.W.1 resides. The
accused Bhaiyan is related to Kishora and
Hallu being their brother-in-law (sister's
husband) who is resident of Village
Rangaon,
Police
Station
Mandwara,
District
Lalitpur.
P.W.1,
in
his
examination-in-chief, stated that the father
of
accused
Kishora
and
Hallu
was
murdered and parents of Karan Singh and
Aman Singh were also murdered. They all
648 INDIAN LAW REPORTS ALLAHABAD SERIES
were suspecting ''Ramphal' to be the
perpetrator of the crime and, therefore,
hatched
enmity
with
the
deceased
''Ramphal'. Due to the suspicion, out of
vengeance, the accused had killed the
deceased Ramphal. In cross examination,
this witness stated at the very inception that
he is residing in village Agodi and during
his lifetime the parents of the accused
persons were killed. He further stated that
being local resident of the same village, he
had conversations eventually with the
accused persons also. Accused persons also
used to visit the first informant, P.W.1 if
need be in connection with some work. As
such, P.W.1 established that the accusedappellants had no enmity with him (P.W.1).

About witnesses

22. Kashiram, P.W.1 is the brother of
the deceased, Sannu P.W.3, is the eye
witness, Jagan, Pooran, and Pragi are also
the eye witnesses. P.W.-8, 9 and 10
produced by the prosecution had turned
hostile. The witnesses were all residents of
the same village Agodi where the spot of
the incident situates and the informant of
the incident used to reside. They were
agriculturists having their fields in the near
vicinity of the spot of the incident (the field
of Baldu Lodhi).

23. Before going through the
statement of the aforesaid witnesses of fact
we would like to refer para-5 of the
judgment of Apex Court in the case of
Bharwada Bhoginbhai Hirjibhai Vs. State
of Gujarat2 where Apex Court observed
that:-

(1) By and large a witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.

(2) ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of
surprise.
The
mental
faculties
therefore cannot be expected to be
attuned to absorb the details.

(3) The powers of observation
differ from person to person. What one
may notice, another may not. An object
or movement might emboss its image on
one person's mind whereas it might go
unnoticed on the part of another.

(4) By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.

(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of
the
moment
1.1
at
the
time
of
interrogation. And one cannot expect
people to make very precise or reliable
estimates in such matters. Again, it
depends on the time- sense of individuals
which varies from person to person.

(6)
Ordinarily
a
witness
cannot be expected to recall accurately
the sequence of events which take place
in rapid succession or in a short time
span. A witness is liable to get
confused,
or
mixed
up
when
interrogated later on.
6 All. Aman Singh & Ors. Vs. State of U.P.
649

(7) A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing cross
examination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him-Perhaps it is
a
sort
of
a
psychological
defence
mechanism activated on the spur of the
moment.

24. In view of the aforesaid
circumstances and the witnesses' status,
melieu and their normal prudence we think
it proper to observe on the basis of
evidences that the prosecution witnesses of
fact are rustic villagers, not highly
educated, even illiterate or simply literate.

25. In the context of the aforesaid
observation, we further refer to the
judgment of the Apex Court in Shivaji
Sahab
Rao
Bobade
Vs.
State
of
Maharashtra3 which deals with an incident
of murder in a rural area where the
witnesses to the case were rustic and so it
was observed that their behavioural pattern
perceptive and un-perceptive habits have to
be judged as such. The relevant para from
the aforesaid judgment is reproduced
hereunder:-

"8. Now to the facts. The scene of
murder is rural, the witnesses to the case are
rustics and so their behavioural pattern and
perceptive habits have to be judged as such.
The too sophisticated approaches familiar in
courts based on unreal assumptions about
human conduct cannot obviously be applied
to those given to the lethargic ways of our
villages. When scanning the evidence of the
various witnesses we have to inform
ourselves that variances on the fringes,
discrepancies in details, contradictions in
narrations and embellishments in inessential
parts cannot militate against the veracity of
the core of the testimony provided there is the
impress of truth and conformity to probability
in the substantial fabric of testimony
delivered. The learned Sessions Judge has at
some length dissected the evidence, spun out
contradictions and unnatural conduct, and
tested with precision the time and sequence of
the events connected with the crime, all on
the touchstone of the medical evidence and
the post-mortem certificate. Certainly, the
court which has seen the witnesses depose,
has a great advantage over the appellate
Judge who reads the recorded evidence in
cold print, and regard must be had to this
advantage enjoyed by the trial Judge of
observing the demeanour and delivery, of
reading the straightforwardness and doubtful
candour,
rustic
naivete
and
clever
equivocation, manipulated conformity and
ingenious unveracity of persons who swear to
the facts before him. Nevertheless, where a
Judge draws his conclusions not so much on
the directness or dubiety of the witness while
on oath but upon general probabilities and
on expert evidence, the court of appeal is in
as good a position to assess or arrive at
legitimate conclusions as the Court of first
instance. Nor can we make a fetish of the trial
Judge's psychic insight."

Evidence as to the status, character
and
profession
of
the
deceased,
Ramphal.

26. In the case before us there are five
witnesses of fact. They are first informant
Kashiram (P.W.1), Sunnu (P.W.3), Jagan
(P.W.8), Pooran (P.W.9), pragi (P.W.10).
650 INDIAN LAW REPORTS ALLAHABAD SERIES
Alongwith P.W.1 (brother of the deceased),
the rest of the witnesses namely Sunnu,
Jagan, Pooran and Pragi were all examined
as eye witnesses of the incident whose
names have been given in the written
information also. It is stated in the written
report by the first informant that at the time
of the incident, hearing the screams of the
deceased and alarm raised by the first
informant P.W.1, the other witnesses came
running on the spot as they were working
in the nearby agricultural fields. On being
challenged by them, the accused Kishora
made a fire towards them and they
succeeded in fleeing away from the spot.
P.W.1 being the brother of the deceased is
a related witness. Learned counsel for the
appellant has raised objection as to his
credibility and reliability for the reason of
his interestedness. Except P.W.1, rest of the
witnesses turned hostile as they denied
having
seen
the
accused
appellants
committing the offence. The question, thus,
would be as to the evidentiary value of the
statement of the hostile witnesses, with
regard to the facts deposed by them and the
effect of the portion of their statement not
supporting the prosecution case.

27. It is well settled that in a criminal
trial, evidence of a hostile witnesses can
form the basis of conviction. In the matter
of appreciation of evidence of witnesses, it
is not the number of witnesses but the
quality of their evidence matters.

Reliance on the hostile witnesses

28. In the case before us, we have
already
noticed
that
the
prosecution
witnesses Sunnu (P.W.3), Jagan (P.W.8),
Pooran (P.W.9), Pragi (P.W.10) were
examined as the prosecution witnesses to
prove the fact in issue as to whether the
accused persons at the relevant date and
time committed the killing of the deceased
''Ramphal' on the spot of the incident,
inflicting blows of lethal weapons like axe,
sickle, etc.

29. The Apex Court in the case of
Mrinal Das Vs. State of Tripura4 in para 67
has held as under:-

67.
It
is
settled
law
that
corroborated part of evidence of hostile
witness regarding commission of offence is
admissible. The fact that the witness was
declared hostile at the instance of the
Public Prosecutor and he was allowed to
cross-examine the witness furnishes no
justification for rejecting en bloc the
evidence of the witness. However, the court
has to be very careful, as prima facie, a
witness who makes different statements at
different times, has no regard for the truth.
His evidence has to be read and considered
as a whole with a view to find out whether
any weight should be attached to it. The
court should be slow to act on the
testimony of such a witness, normally, it
should look for corroboration with other
witnesses. Merely because a witness
deviates from his statement made in the
FIR, his evidence cannot be held to be
totally unreliable. To make it clear that
evidence of hostile witness can be relied
upon at least up to the extent, he supported
the case of the prosecution. The evidence of
a person does not become effaced from the
record merely because he has turned
hostile
and
his
deposition
must
be
examined more cautiously to find out as to
what extent he has supported the case of
the prosecution.
30. In view of the aforesaid guidelines laid
down by the Apex Court, the evidence of
the prosecution witnesses (declared hostile)
is required to be evaluated. In the present
case, since the learned counsel have raised
6 All. Aman Singh & Ors. Vs. State of U.P.
651
objection
as
to
the
credibility
and
reliability
of
P.W.1,
Kashiram
(first
informant) also and blamed him to concoct
the case for false implication of the accused
appellants, we would discuss the evidence
of P.W.1 later, after evaluating the
evidence of hostile witnesses and finding
out which part of their testimony finds
corroboration from other proved facts and
circumstances and as such is admissible
and reliable.

31. In Siddharth Vashisth @ Manu
Sharma Vs. State of N.C.T., Delhi5 it is
held that if the prosecution witnesses
turned hostile, the court may rely upon so
much of his testimony which supports the
case of prosecution and is corroborated by
other evidences.

32. The Apex Court in a series of
decision, (one of such is Babu @
Balasubramaniam & Arn. Vs.