# Annu Khatik & Ors v. State of U.P

- **Citation:** (2025) 1 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-22
- **Case number:** Criminal Appeal No. 351 of 2005
- **Bench:** Mrs. Sangeeta Chandra, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/annu-khatik-ors-v-state-of-u-p-53081
- **Pages:** 31

## Headnote

A. Criminal Law - Murder - Indian Penal
Code, 1860 - Section 302 - Indian
Evidence Act, 1872 - Section 8 - Motive -
In cases based on the direct evidence of
witnesses, the same should be decided on
the basis of the quality and probative
value of such eye-witnesses. Where the
direct evidence is worthy of credence and
can be believed, the question of motive
becomes more or less academic. Motive
does not have a major role to play in cases
based on eye-witness account of the
incident. It assumes importance only in
cases that rest on circumstantial evidence.
Mere absence of proof of motive for the
commission of a crime cannot be a ground
to presume the innocence of an accused if
his involvement is otherwise established.
Prosecution is not obliged to prove those
facts which are either impossible to prove
or are locked up in the mind of the
accused as to what made them commit
the crime. In the instant case, the family
of the deceased and the accused were
having enmity regarding a land. The
accused had made hindrance in the access
of the informant to the said land, and
altercations had occurred many times
regarding the same. (Paras 28, 29)

B. Criminal Law - Credibility of Related
Witnesses - Natural witness - Indian
Evidence Act, 1872 - Sections 3, 118 &
134 - Merely because the witnesses are
close
relatives
of
the
victim,
their
testimonies
cannot
be
discarded.
Relationship with one of the parties is not
a factor that affects the credibility of a
witness. A relative would not conceal the
actual
culprit
and
make
allegations
against
an
innocent
person.
If
the
prosecution witnesses, who claim to have
seen the incident, are natural witnesses
and their presence at the place of
occurrence is natural and cannot be
doubted, then their relationship with the
deceased or the informant is not of much
importance. However, the Court has to
adopt a careful approach and analyse the
evidence to find out whether it is cogent
and credible. (Para 39)

C. Criminal Law
- Murder
- Indian
Evidence Act, 1872 - Independent witness
- If an independent witness has not been
produced by the prosecution, the same
may not be sufficient to discard the
evidence of other prosecution witnesses,
who in the opinion of the Court, appears
to be the natural witnesses of the
incident. (Para 43)

D. Criminal Law - Murder - Indian
Evidence
Act,
1872
-
Credibility
of
Witnesses contradictions, embellishments
in
the
evidence
of
the
prosecution
witnesses - Court must bear in mind the
set up and the circumstances in which the
crime
is
committed,
the
quality
of
evidence, nature and temperament of the
witnesses, the level of understanding and
power of perception and examination of
individual
witness
and
probability
in
1 All. Annu Khatik & Ors. Vs. State of U.P.
75
ordinary course of nature about the act
complained
of
as
might
have
been
witnessed by the witnesses. Endeavour
must be to find out the truth from the
evidence on record. At the same ti

## Text

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74 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 1 ILRA 74
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 351 of 2005
And
Criminal Appeal No. 532 of 2005
And
Criminal Appeal No. 402 of 2005

Annu Khatik & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
C.L.Yadav, A A Zaidi, Bipin Kumar Rai,
Mohd. Shahnawaz Khan, Nagendra Kumar
Dwivedi,
P.K.
Mishra,
R
K
Dwivedi,
S.K.Srivastava, Sagar Singh, Shatrughan
Yadav, Shri Ram Maurya

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Murder - Indian Penal
Code, 1860 - Section 302 - Indian
Evidence Act, 1872 - Section 8 - Motive -
In cases based on the direct evidence of
witnesses, the same should be decided on
the basis of the quality and probative
value of such eye-witnesses. Where the
direct evidence is worthy of credence and
can be believed, the question of motive
becomes more or less academic. Motive
does not have a major role to play in cases
based on eye-witness account of the
incident. It assumes importance only in
cases that rest on circumstantial evidence.
Mere absence of proof of motive for the
commission of a crime cannot be a ground
to presume the innocence of an accused if
his involvement is otherwise established.
Prosecution is not obliged to prove those
facts which are either impossible to prove
or are locked up in the mind of the
accused as to what made them commit
the crime. In the instant case, the family
of the deceased and the accused were
having enmity regarding a land. The
accused had made hindrance in the access
of the informant to the said land, and
altercations had occurred many times
regarding the same. (Paras 28, 29)

B. Criminal Law - Credibility of Related
Witnesses - Natural witness - Indian
Evidence Act, 1872 - Sections 3, 118 &
134 - Merely because the witnesses are
close
relatives
of
the
victim,
their
testimonies
cannot
be
discarded.
Relationship with one of the parties is not
a factor that affects the credibility of a
witness. A relative would not conceal the
actual
culprit
and
make
allegations
against
an
innocent
person.
If
the
prosecution witnesses, who claim to have
seen the incident, are natural witnesses
and their presence at the place of
occurrence is natural and cannot be
doubted, then their relationship with the
deceased or the informant is not of much
importance. However, the Court has to
adopt a careful approach and analyse the
evidence to find out whether it is cogent
and credible. (Para 39)

C. Criminal Law
- Murder
- Indian
Evidence Act, 1872 - Independent witness
- If an independent witness has not been
produced by the prosecution, the same
may not be sufficient to discard the
evidence of other prosecution witnesses,
who in the opinion of the Court, appears
to be the natural witnesses of the
incident. (Para 43)

D. Criminal Law - Murder - Indian
Evidence
Act,
1872
-
Credibility
of
Witnesses contradictions, embellishments
in
the
evidence
of
the
prosecution
witnesses - Court must bear in mind the
set up and the circumstances in which the
crime
is
committed,
the
quality
of
evidence, nature and temperament of the
witnesses, the level of understanding and
power of perception and examination of
individual
witness
and
probability
in
1 All. Annu Khatik & Ors. Vs. State of U.P.
75
ordinary course of nature about the act
complained
of
as
might
have
been
witnessed by the witnesses. Endeavour
must be to find out the truth from the
evidence on record. At the same time, it
must not be forgotten that there cannot
be a prosecution case with a cast iron
perfection in all respects. Obligations lies
upon the courts to analyze, sift and assess
the evidence on record, with reference to
trustworthiness and truthfulness of the
prosecution
case,
by
a
process
of
dispassionate judicial scrutiny adopting an
objective and reasonable appreciation of
the evidence without being obsessed by
an air of total suspicion about the case of
the prosecution. The contradictions,
infirmities, that might have been pointed
out in prosecution case must be assessed
with the yardsticks of probabilities of the
existence of a fact or not. Unless,
infirmities and contradictions are of such
nature as to undermine the substratum of
the evidence and found to be tainted to
the core of the prosecution case, over
emphasis may not be applied to such
contradictions and infirmities. To judge
the credibility of the evidence of witness,
one has to look to his evidence, and if any
discrepancies found in the ocular account
of the witnesses not affecting the root of
the say of the witness, the witness may
not be labeled as not credit worthy. At the
same time, seeking rule of corroboration,
mathematical
niceties
may
not
be
expected. The account of the witnesses
must be read as a whole and once the
impression is formed that the account
contains ring of truth, jettisoning whole of
the evidence would amount to doing
injustice to a reliable and honest witness.
Even honest and truthful witnesses may
differ in some details, which may not be
related to the main cause of prosecution
case, and their evidence therefore must be
appreciated keeping in mind the power of
observation, retention and reproduction of
the same by the witness to be judged by
human standard. (Par 46)

E. Criminal Law - Murder - Indian Penal
Code, 1860 - Section 302 - Code of
Criminal Procedure, 1973 - Section 157 -
Where the F.I.R. is recorded without delay
and investigation has started on its basis,
delay in dispatch of its copy to the
Magistrate cannot, by itself, justify a
conclusion that the investigation was
tainted. Delay under Section 157 Cr.P.C.
for doubting the authenticity of the F.I.R.
is
not
just
any
delay
but
only
extraordinary
and
unexplained
delay.
Delay which is properly explained cannot
be said to be fatal to the prosecution. In
the instant case, the deceased, who was
injured at that time, was first taken to the
police station and thereafter to the
District Hospital, Faizabad. Only after that,
P.W.-1 again went to the police station
and lodged the F.I.R. The same cannot be
termed either ante-timed or lodged with
delay. The prosecution has explained the
little delay which occurred in lodging of
the
F.I.R.
properly
and
with
documentation. The Court held that the
prosecution's case could not be doubted
only on this score. (Paras 32, 33, 34)

F. Criminal Law - Murder - Indian Penal
Code, 1860 - Sections 34 & 149 -
Constructive
Criminality
-
Common
Intention and Common Object. Sections
34 & 149 of the IPC both deal with the
concept of constructive criminality, i.e.,
vicarious liability of one person for the
acts of others. However, a clear distinction
exists between common intention u/s 34
and common object u/s 149. Common
intention requires a pre-arranged plan and
concerted action, supported by evidence
of prior meeting of minds. In contrast,
common object under Section 149 does
not
necessitate
prior
concert
or
preplanning. While Section 34 requires
active
participation
in
the
crime,
especially where physical violence is
involved, Section 149 imposes liability
merely by virtue of membership in an
unlawful assembly sharing a common
object, even without active participation.
Existence of common intention must be
established
by
the
prosecution
with
credible evidence. Notably, Section 34 is
not attracted by mere common intention
unless some act is done in furtherance of
that intention. In cases where fewer than
76 INDIAN LAW REPORTS ALLAHABAD SERIES
five accused are finally convicted under
Section 149 due to acquittals, the Court
may invoke Section 34 instead, depending
on the facts. However, substitution of
Section 34 for Section 149 should not
prejudice the accused unless the common
object necessarily involves a common
intention. In the present case the
evidence
established
that
the
three
appellants arrived together, assaulted the
deceased inside his house, dragged him
outside and assaulted him again in front
of the temple, and then fled together.
Their coordinated actions demonstrated a
pre-designed plan and shared common
intention. Therefore, they were rightly
convicted under Section 34 IPC in place of
Section 149 IPC. (Para 64)

Dismissed. (E-5)

List of Cases cited:

1. Marudanal Augusti Vs St. of Kerala; 1980 SCC
(Cri) 985

2. Ishwar Singh Vs The St. of U.P. AIR 1976 SC
2423

3. Lakhsmi Singh & ors. etc. vs St. of Bihar AIR
1976 SC 2263

4. Arjun Marik Vs St. of Bihar reported in
MANU/SC/1037/1994 : 1994 Supp (2) SCC 372

5.
Sukhram
Vs
St.
of
Mah.
MANU/SC/3346/2007 : (2007) 7 SCC 502

6. Sunil Clifford Daniel (Dr.) Vs St. of Pun.
MANU/SC/0740/2012 : (2012) 8 SCALE 670

7. Pannayar Vs St. of T.N. by Inspector of
Police MANU/SC/1462/2009 : (2009) 9 SCC 152

8.
Molu
&
ors.Vs
St.
of
Har.
MANU/SC/0143/1976 : AIR 1976 SUPREME
COURT 2499

9. Praful Sudhakar Parab Vs St. of Mah.,
MANU/SC/0689/2016 : AIR 2016 SUPREME
COURT 3107

10. Ishwar Singh & ors. Vs St. of U.P.
MANU/SC/0120/1976 : AIR 1976 SC 2423

11.
Anil
Rai
Vs
St.
of
Bihar,
MANU/SC/1586/2001

12. Sucha Singh & ors. Vs St. of Pun.,
MANU/SC/0527/2003

13. Dharnidhar & ors. Vs St. of U.P. & ors.,
MANU/SC/0480/2010

14. Gangabhavani Vs Rayapati Venkat Reddy &
ors. (04.09.2013 - SC) : MANU/SC/0897/2013

15. Bhagaloo Lodh & ors. Vs St. of U.P. reported
in MANU/SC/0700/2011

16. Bharwada Bhoginbhai Hirjibhai Vs St. of
Guj. as
reported
in
AIR
1983,
753,
MANU/SC/0090/1983

17. Mahendran & ors. Vs St. of T.N. and Ors.
Reported in MANU/SC/0257/2019

18. Baljinder Singh & ors. Vs St. of Pun.,
MANU/SC/1063/2024

19. Madhusudan & ors. Vs St. Of M.P., Criminal
Appeal No.1509 of 2010 dt 05.05.2024

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard Shri Rajesh Kumar Dwivedi,
learned Amicus for appellant- Chunni Lal
and Raj Kumar Yadav, who have been
released from the prison after remission has
been granted to them in Criminal Appeal
Nos. 351 of 2005 and 532 of 2005, Shri
Chandra Shekher Pandey for appellant-
Sanjay Yadav in Criminal Appeal No. 402
of 2005 and Shri Bipin Kumar Rai for
appellant- Annu Khatik and Shri A.A.
Zaidi for appellant- Munna Khatik in
Criminal Appeal No. 351 of 2005 and Shri
Prabhat Adhaulia, learned A.G.A. for the
State and perused the record.
1 All. Annu Khatik & Ors. Vs. State of U.P.
77

2. All these appeals have been
preferred by the convict appellants against
the same impugned judgment and order and
thus for the sake of convenience all these
three appeals are being disposed off by this
common judgment.

3. These criminal appeals have been
preferred by appellants- Annu Khatik, Munna
Khatik and Chunnilal in Criminal Appeal
No.351 of 2005, appellant- Raj Kumar Yadav
in Criminal Appeal No. 532 of 2005
appellant- Sanjay Yadav in Criminal Appeal
No. 402 of 2005, under Section 374(2)
Cr.P.C. against the judgment and order dated
18.02.2005
passed
by
Special
Judge
(S.C./S.T. Act), Faizabad convicting and
sentencing the appellants under Sections 147
IPC for one year rigorous imprisonment each,
under Section 452 IPC for three years
rigorous imprisonment with fine of Rs.
1000/- each and under Section 302 read with
Section 149 IPC for life imprisonment with
fine of Rs. 500/- each, the appellant
no.3/Chunni Lal in Criminal Appeal No. 351
of 2005 under Section 3(1)(X) SC/ST Act for
two years rigorous imprisonment with fine of
Rs. 1000/- and in default of payment of fine
the rigorous imprisonment for one year year
each, acquitting the appellants no.1 and 2
under Section 3(1)(X) of SC/ST Act and
acquitting the appellants under Sections 504
and 506 IPC each in S.T. No. 400/1996,
arising out of Case Crime No. 1747/1991,
under Sections 147, 452, 506/149, 504/149,
302/149 IPC and 3(1) (X) SC/ST Act, Police
Station Kotwali Nagar, District Faizabad.

4. Brief facts necessary for disposal of
the instant appeals are in terms that the
informant Nirmala lodged a First Information
Report at Police Station Kotwali Nagar
Faizabad on 25.11.1991 at 22.30 hours by
moving a written application alleging therein
that she is resident of Mohalla Khurdabad
and on 25.11.1991 at about 6.00 p.m. accused
persons Raj Kumar Yadav, Chunnilal Kahar,
Sanjay, Munna, Annu and others came to her
house and called her son Raju and when
she replied that he is coming in a while,
accused Raj Kumar entered into her house,
hurling filthy abuses and assaulted her son
and on an alarm raised by her, her son
Putti Lal and many others persons of the
locality arrived and at that moment
accused persons dragged her son outside
the house and started assaulting him with
lathi and hockey on his head with the
intention to kill him and thinking that he is
died they all fled away. The head of her
son was fractured from many places, he
became unconscious. It is also stated in
the end that she had admitted her son in a
hospital.

5. On the basis of above written
information an FIR at case Crime No. 1747
of 1991, under Sections 147, 452, 323, 308,
504, 506 IPC and 3(1) (X) of the SC/ST
Act was registered and the investigation
was entrusted to Sub Inspector Shri
Santosh Kumar Yadav.

6. The injured Raju was taken to
District Hospital Faizabad and following
injuries were found on his person by Dr.
K.N. Kaushal:-

"(i) Lacerated wound on left side
of skull 2 c.m.x 5 c.m. x muscle deep 4 c.m.
above left eye brow bleeding present.

(ii) Lacerated woud 4 c.m. x 5
c.m. bone deep on the left side, 1 c.m.
above injury no.1, bleeding present.

(iii) Lacerated wound 7c.m. x 5
c.m. x bone deep on right side of skull 6
c.m. of above right eye brow.

(iv) Lacerated wound 1.5 c.m. x
0.5 c.m. muscle deep on right side of
forehead 3.5 c.m. above eye brow.
78 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Lacerated wound 2.5 c.m. x
0.5 c.m. bone deep on right side of head 2
c.m. above the injury no.2.

(vi) Lacerated wound 3.5 x 1.0
c.m. x bone deep on right side of head 9
c.m. above right eye bleeding present.

(vii) Contused swelling 2x1 c.m.
on middle of forehead 3 c.m. above bridge
of nose.

(viii) Abrasion 1.5 c.m. x 1 c.m.
on the bridge of the nose."

All these injuries were fresh and
kept under observation x-ray of skull was
advised and in the opinion of the doctor these
injuries had been caused by hard and blunt
object. The injured was found conscious and
he was bleeding from his injuries.

7. The deceased died during the course
of treatment and as Sub Inspector Santosh
Kumar Yadav was not present at the Police
Station, Sub Inspector of Police Indra
Prakash Singh proceeded to spot and
prepared inquest report of the deceased and
also necessary papers for the purpose of
postmortem and forwarded the dead body
of the deceased for the purpose of
postmortem.

8. The postmortem on the dead body
of the deceased was conducted by Dr.
Santosh Kumar Singh on 27.11.1991 at
4.15 p.m. and following injuries were
found on the dead body of the deceased:-

"(i) Stitched wound 2 c.m. long 1
stitched present on the left side of the head,
4 c.m. above left eye.

(ii) Stitched wound 7 c.m. long 4
stitches present at right side of skull, 6 c.m.
above of right
eye brow.

(iii) Stitched wound 4 c.m. long 2
stitches present left side of the head, 1 c.m.
above injury no.1.

(iv) Stitched wound 10 c.m. long
5 stitches present on right side of forehead
4 c.m. above eye brow.

(v) Stitched wound 2.5 c.m. long
1 stich present on right side of skull, c c.m.
above injury no.3.

(vi) Stitched wound 3.5 c.m. long
2 stitches present right side of skull.

(viii) contusion 2 c.m. x 1 c.m. on
middle of nose.

viii) Abrasion 1.5 c.m. x 0.1 c.m.
on the bride of the nose.

(ix) Black discoloration of right
eye."

9. On internal examination parietal,
occipital and frontal bones of the skull were
found fractured. The membranes were
found lacerated and 3 ounce clotted blood
was also found in the skull and 4 ounce
liquid has been found abdominal cavity and
as per the opinion of the doctor the death of
the deceased had occurred due to shock on
account of 'ante- mortem' injuries.

10. The second Investigating Officer
of the case Sub-Inspector Pannalal prepared
site plan of the spot and also recorded the
statement of the witnesses and thereafter
the investigation of the case was transferred
to Sub Inspector Santosh Kumar Yadav
who also recorded the statement of various
witnesses and also moved an application
for
recording
the
statement
of
the
witnesses, namely, Nirmala, Putti Lal and
Tara under Section 164 Cr.P.C. and after
finding sufficient material/ evidence, he
forwarded charge sheet against all the
accused persons except Munna Khatik
under Sections 147, 149, 452, 504, 506,
302 IPC and Section 3(1) (X) of the SC/ST
Act.
The
Investigating
Officer
has
submitted a separate charge sheet under the
same penal section against Munna Khatik
separately.
1 All. Annu Khatik & Ors. Vs. State of U.P.
79

11. The trial court framed charges
against the accused persons under Sections
147, 452, 506/149, 504/149, 302/149 IPC
and under Section 3(1) (X) of the SC/ST
Act. All accused persons denied the
charges and claimed trial.

12. Prosecution in order to prove its
case presented before the trial court P.W.1-
Nirmala, P.W.2- Putti Lal, P.W.3- Sub
Inspector Santosh Kumar Yadav, P.W.4-
Inra Prakash Singh, P.W.5- Dr. K.N.
Kaushal, P.W.6- Dr. Santosh Kumar Singh.

13. P.W.1- Nirmala is the informant
of the instant case. She stated before the
trial court that on the relevant day and time
there was a feast in the house of accused
persons- Annu Khatik and Munna Khatik
as a bride had arrived in their house and
accused persons Raj Kumar Singh and
Chunni Lal have arrived in their house to
participate in the ceremony and at about 67 p.m. when she was at her house the
accused persons arrived and asked about her
son Raju and when she informed that Raju is
inside the house, they entered the house and
dragged Raju out of the house and took him
towards the temple and assaulted him brutally
and thinking that he has died they left him there.
She also stated that the deceased was assaulted
by Raj Kumar and Sanjay with 'lathi', while
Chunni Lal was carrying a 'hockey' and Munna
and Annu were carrying 'bottles' and they
assaulted the deceased with the same. She also
stated to have taken the injured/deceased to the
Police Station and also that the police personnel
advised her to take the injured to the hospital
and she after admitting her son in the hospital
came back to the police station and had given
written application on the basis of which the
FIR was lodged.

14. P.W.2- Putti Lal is claiming
himself to be the eye witness of the crime
and he has stated that at the relevant day at
about 6.00 p.m. when he was at his house
the accused persons Raj Kumar, Chunni
Lal and Sanjay arrived and asked about
Raju and when his mother informed that he
is in the house, accused persons Raj Kumar
and Chunni Lal with 'lathi' and Sanjay
Yadav with 'hockey' assaulted Raju in his
house and dragged him out of his house
and on hue and cry made by Raju, Annu
and Munna and many other persons
assembled and after seeing them the
accused persons fled away. He also stated
that injured Raju has sustained many
injuries on his head and was taken to
Kotwali from where they were directed to
take the injured to the hospital and to lodge
the report thereafter.

15. P.W.3- Sub Inspector Santosh
Kumar Yadav is the second Investigating
Officer who has submitted the charge sheet
against the accused persons under the
relevant penal sections and he stated to have
recorded the statement of many witnesses and
to have submitted charge sheet against the
accused persons, Sanjay Yadav, Chunni Lal,
Annu Khatik and Raj Kumar Yadav and also
against Munna Khatik separately. He has also
proved the Chick FIR as well as the copy of
the General Diary by stating that the same
was written by Constable Ram Lakhan and
he is conversant with his hand writing as they
have remained posted together at a police
station.

16. P.W.4- Indra Prakash Singh has
stated to have prepared the inquest report of
the deceased and necessary papers for the
postmortem.

17. P.W.5- Dr. K.N. Kaushal is
stated to have examined the injuries of the
injured Raju at 8.35 p.m. on on 25.11.1991
and the description of his injury has been
80 INDIAN LAW REPORTS ALLAHABAD SERIES
given at the appropriate place in this
jugemnt.

18. P.W.6-Dr. Santosh Kumar Singh
has stated to have prepared the postmortem
report of the deceased and proved the same
as Ext. Ka-16 and the injuries noted by him
as well as internal examination conducted
by him
has
been
recorded
in
the
postmortem
report,
which
has
been
mentioned at an appropriate place in this
judgment herein-before. He has also stated
that the death of the deceased, in his
opinion, was caused by 'shock' as a result
of ante-mortem injuries.

19. Apart from the above mentioned
oral evidence the prosecution has also
relied on various documentary evidence
e.g. written information, Chick FIR, G.D.
Kayami, Site Plan, injury report of the
deceased Raju who at that point of time
was alive, postmortem report, necessary
papers prepared for the purpose of sending
the body to postmortem, inquest report and
charge sheets.

20. After conclusion of the evidence of
the prosecution, the statement of the
accused persons under Section 313 of the
Cr.P.C. was recorded wherein they denied
all
the
evidence
produced
by
the
prosecution and further stated that the
deceased was a person of bad character and
also a police informer and he has been done
to death by unknown persons in the
darkness of night and on the basis of
enmity a false case has been framed against
the accused persons.

21. The trial court after appreciating
the evidence available on record found the
case of the prosecution proved against the
accused persons beyond reasonable doubt
and convicted all of them under Section
147 IPC, 452 IPC and 302 IPC read with
Section 149 IPC and 3(1)(X) of the SC/ST
Act and sentenced accordingly. However,
all the accused persons were acquitted of
the charges framed against them under
Sections 504, 506 IPC.

22.
Learned
counsels
for
the
appellants while challenging the impugned
judgment and order of the trial court,
submitted that the trial court has committed
manifest illegality in appreciating the
evidence available on record and has
passed the judgment of conviction only on
the basis of 'surmises and conjectures'. It is
submitted that the F.I.R. is doubtful as
P.W.-1/Nirmala and P.W.-2/Putti Lal both
have stated that they had first gone to the
police station and from there they were
directed to take the injured to the hospital
and after admitting the injured in the
hospital P.W.-1/Nirmala came back to the
police station for the purpose of lodging the
F.I.R. while there is no G.D. entry with
regard to the same and the F.I.R. appears to
have been interpolated as it has been
written in that F.I.R. with a different ink
that the injured has been admitted in the
hospital.

It is further submitted that the
case of the prosecution is that the deceased
was dragged from his house upto the
temple, in front of which he was done to
death, but there was no dragging marks
found by the investigating officer and even
no blood was found by the investigating
officer on spot.

It is also submitted that it is
admitted to the prosecution that the injured
was alive and had died during the course of
treatment after his admission in the
hospital, however, no attempt has been
made to record his dying declaration so the
truth may surface.
1 All. Annu Khatik & Ors. Vs. State of U.P.
81

It is next submitted that there is a
huge delay in lodging the F.I.R. and the
same has not been explained and a copy of
the F.I.R. was also not forwarded to the
magistrate, as required under Section 157
of the Cr.P.C. and no specific weapon has
been assigned to any particular accused
person, to have been used in the assault.

23. Shri Chandra Shekhar Pandey,
learned counsel appearing for the convict-
Sanjay Yadav, vehemently submits that the
improbability in story of the prosecution
would be evident from the fact that though
father of the deceased is alive and was also
present in the village but he was kept
completely out of the scene as he has
neither taken the injured to the hospital nor
he had gone with his wife, namely, P.W.-
1/Nirmala to the police station or hospital
and this itself speaks volumes about the
falsity of the case of the prosecution as
when he was present at the time of inquest
why he did not go to the hospital or police
station.

It is further submitted that even
after lodging of the F.I.R. the investigating
officer has not visited the injured person for
the purpose of recording of his statement
under Section 161 Cr.P.C. It is also
highlighted that it appears to be an admitted
fact that on the day of the incident there
was a ceremony in the house of Munna
Khatik and Annu Khatik as the bride of
Annu Khatik had arrived in his house and
the other three accused persons, namely,
Raj Kumar Yadav, Chunni Lal Yadav and
Sanjay Kumar Yadav had come as guests in
the dinner/get-together and, therefore, there
was no opportunity available to them to
have participated in the 'marpeet' without
there being any reason and it is not clear
from the evidence of the prosecution
witnesses as to why the accused persons
would assault the deceased on that day
when there is a feast organized at the house
of Munna Khatik and there were several
persons of the village attending the same.

It is further submitted that
accused persons Annu Khatik and Munna
Khatik were shown carrying bottles in their
hands and also to have assaulted the
deceased with the same, however, there is
no injury found on the person of the
deceased which may relate to these bottles.

It is also submitted that only two
witnesses of fact have been presented by
the prosecution while the testimony of both
these witnesses is highly suspicious,
contradictory and is not reliable and the
trial court has committed an illegality in
relying on the testimony of these untruthful
witnesses.

It is vehemently submitted that
P.W.-1/Nirmala Devi and P.W.-2/Putti Lal
are mother and son and, thus, no
independent witness has been produced and
apart from the fact that their testimony is
not
reliable
and
having
sufficient
contradictions the same could also not be
accepted as they are related witnesses.

24. Shri Rajesh Kumar Dwivedi,
learned Amicus for the appellants- Raj
Kumar Yadav and Chunni Lal has relied on
following cases propounded by the Hon'ble
Supreme Court;

1-
1980
SCC
(Cri)
985
(Marudanal Augusti vs. State of Kerala)

2- AIR 1976 SC 2423 (Ishwar
Singh vs. The State of U.P.

3- AIR 1976 SC 2263 (Lakhsmi
Singh and others etc. vs State of Bihar).

25. Learned A.G.A. on the other hand
submits that P.W.-1/Nirmala Devi and
P.W.-2/Putti Lal are the natural witnesses
of incident they have seen the incident and
82 INDIAN LAW REPORTS ALLAHABAD SERIES
have given detailed account of the incident
and accused Annu Khatik and Munna
Khatik are sons of the jethani of P.W.-
1/Nirmala and Rajkumar is the person to
whom the disputed land has been given by
jethani Lalli and it is an admitted fact that
the
parties
were
having
inimical
relationship on account of claim and
counter claim on a piece of agricultural
land and also that the prosecution witnesses
have given truthful account of the incident
and keeping in view all the facts and
circumstances of the case, no illegality
appears to have been committed by the trial
court.

26. Perusal of the record in the light of
the submissions made by learned counsels
for the parties would reveal that so far as
submission of Ld counsel for the appellant
with regard to inadequacy of motive is
concerned P.W.-1/Nirmala Devi in her
statement has stated that her husband Ram
Autar and father of accused Munna Khatik
were real brothers and they have divided
their properties and were living separately
since long. She further stated that some
land was lying near her house wherein she
and accused Munna Khatik were having
equal share and some days before the
incident mother of Munna Khatik and
Annu Khatik, namely, Lalli had asked her
not to go towards that land and they were
having enmity with regard to the same
land. She also stated that her jethani Lalli
had given this land to the accused Raj
Kumar Yadav. It is also evident from the
statement of this witness that accused
persons Sanjay and Chunni Lal are the
friends of Raj Kumar while Chuuni Lal is a
resident of Gonda but he had come to
reside in the house of his maternal uncle
Ram Autar 'kahar' and when Lalli Devi had
given the disputed land to Raj Kumar these
all five persons started making hindrance in
the access of the informant on that land and
altercation had occurred many times with
regard to the same.

27. Thus, it is evident that the parties
were inimical towards each other on the
basis of above piece of land wherein P.W.-
1/Nirmala Devi and Munna Khatik were
having equal share and the said land was
given by the mother of Munna, namely,
Lalli Devi (jethani of the informant
Nirmala) to accused Raj Kumar Yadav.
The accused in their statements recorded
under Section 313 Cr.P.C. have denied the
fact that they were having enmity with the
informant side. However, they apart from
saying that deceased was a person of bad
character and was also a police informer
and has been done to death by some
unknown person have further stated that
they have been implicated in this case on
the basis of 'ranjish' (enmity). Thus, the
element of enmity has also been admitted
by
the
accused
persons/convicted
appellants. Thus, it was proved before the
trial court that the informant Nirmala and
accused person Munna Khatik and his
family were having inimical relationship
and the basis of this enmity was a piece of
land jointly owned by Nirmala and Lalli,
which was given by the mother of Munna,
namely, Lalli Devi to accused Raj Kumar.

28. In Arjun Marik v. State of Bihar
reported in MANU/SC/1037/1994 : 1994
Supp (2) SCC 372, the Supreme Court
explained that:

"...mere absence of proof of
motive for commission of a crime cannot be
a ground to presume the innocence of an
accused if the involvement of the accused is
otherwise established. But it has to be
remembered that in incidents in which the
only evidence available is circumstantial
1 All. Annu Khatik & Ors. Vs. State of U.P.
83
evidence then in that event the motive does
assume importance if it is established from
the evidence on record that the accused
had a strong motive and also an
opportunity to commit the crime and the
established circumstances along with the
explanation of the accused, if any, exclude
the reasonable possibility of anyone else
being the perpetrator of the crime then the
chain of evidence may be considered to
show that within all human probability the
crime must have been committed by the
accused."

It is fairly well-settled that while
motive does not have a major role to play
in cases based on eye-witness account of
the incident, it assumes importance in cases
that rest on circumstantial evidence. In the
cases of Sukhram v. State of Maharashtra
MANU/SC/3346/2007 : (2007) 7 SCC 502,
Sunil Clifford Daniel (Dr.) v. State of
Punjab MANU/SC/0740/2012 : (2012) 8
SCALE 670, Pannayar v. State of Tamil
Nadu
by
Inspector
of
Police
MANU/SC/1462/2009 : (2009) 9 SCC 152],
this principle has been highlighted.

29. A three Judges Bench Of Hon'ble
Supreme Court in Molu and others v. State
of Haryana MANU/SC/0143/1976 : AIR
1976 SUPREME COURT 2499 opined as
under:-

"11. Finally it was argued by the
appellants, following the reasons given by
the Sessions Judge, that there was no
adequate motive for the accused to commit
murder of two persons and to cause
injuries to others. It is wellsettled that
where the direct evidence regarding the
assault is worthy of credence and can be
believed, the question of motive becomes
more or less academic. Sometimes the
motive is clear and can be proved and
sometimes. however, the motive is shrouded
in mystery and it is very difficult to locate
the same. If, however, the evidence of the
eye-witnesses is credit-worthy and is
believed by the Court which has placed
implicit reliance on them, the question
whether there is any motive or not becomes
wholly irrelevant. For these reasons,
therefore, we agree with the High Court
that the prosecution has been able to prove
the case against the appellants beyond
reasonable doubt."

In Praful Sudhakar Parab v.
State
of
Maharashtra,
MANU/SC/0689/2016
:
AIR
2016
SUPREME
COURT
3107
Hon'ble
Supreme Court stated as under:-

"16. One of the submissions
which has been raised by the learned
amicus curiae is that the prosecution failed
to prove any motive. It is contended that the
evidence which was led including the
recovery of bunch of keys from guardroom
was with a view to point out that he wanted
to commit theft of the cash laying in the
office but no evidence was led by the
prosecution to prove that how much cash
were there in the pay office. Motive for
committing a crime is something which is
hidden in the mind of accused and it has
been held by this Court that it is an
impossible task for the prosecution to prove
what precisely have impelled the murderer
to kill a particular person. This Court in
Ravinder Kumar and another v. State of
Punjab, MANU/SC/0536/2001 : 2001 (7)
SCC 690: (AIR 2001 SC 3570), has laid
down following in paragraph 18:

"18 ........ It is generally an
impossible task for the prosecution to prove
what precisely would have impelled the
murderers to kill a particular person. All
that prosecution in many cases could point
to is the possible mental element which
could have been the cause for the murder.
In this connection we deem it useful to refer
84 INDIAN LAW REPORTS ALLAHABAD SERIES
to the observations of this Court in State of
Himachal
Pradesh
v.
Jeet
Singh
{MANU/SC/0165/1999 : 1999 (4) SCC
370: (AIR 1999 SC 1293)}:

"No doubt it is a sound principle
to remember that every criminal act was
done with a motive but its corollary is not
that no criminal offence would have been
committed if the prosecution has failed to
prove the precise motive of the accused to
commit it. When the prosecution succeeded
in showing the possibility of some ire for
the accused towards the victim, the
inability to further put on record the
manner in which such ire would have
swelled up in the mind of the offender to
such a degree as to impel him to commit
the offence cannot be construed as a fatal
weakness of the prosecution. It is almost an
impossibility for the prosecution to unravel
the full dimension of the mental disposition
of an offender towards the person whom he
offended."

Keeping in view the above stated
law we are of the considered opinion that
the prosecution is not obliged to prove
those facts which are either impossible for
the prosecution to prove or which are
locked up in the mind of the accused
persons, as to what made them to commit
the crime. Therefore, the cases which are
based on direct evidence of the witnesses
should be decided on the basis of the
quality and probative value of the evidence
of such eye witnesses.

30. Learned counsel for the appellants
has also assailed the Judgment of the trial
court on the ground that there is inordinate
delay in lodging of the F.I.R. and also on
the score that F.I.R. is ante-timed as the
copy of the F.I.R. has not been forwarded
to 'Ilaka Magistrate' as provided under
Section 157 of the Code of Criminal
Procedure.

In this regard, learned Amicus
Shri Rajesh Kumar Dwivedi has relied on
the law laid down by the Hon'ble Supreme
Court in MANU/SC/0120/1976 : AIR 1976
SC 2423 (Ishwar Singh and others vs.
State of U.P.).

31. At first, it is to be highlighted that
in the law relied on by learned Amicus, the
extraordinary delay in sending the copy of
the F.I.R. to 'Ilaka Magistrate' was not the
only ground for recording the judgment of
acquittal and for doubting the prosecution
case as there were many other factors also
which have rendered the case of the
prosecution as highly improbable.

32. Hon'ble Apex Court in Anil Rai
vs. State of Bihar, MANU/SC/1586/2001,
held as
under :-

"30. This provision is designed to
keep the Magistrate informed of the
investigation of such cognizable offence so
as to be able to control the investigation
and, if necessary, to give appropriate
direction under Section 159 of the Code of
Criminal Procedure. But where the F.I.R.
is shown to have actually been recorded
without delay and investigation started on
the basis of the F.I.R., the delay in sending
the copy of the report to the Magistrate
cannot by itself justify the conclusion that
the investigation was tainted and the
prosecution insupportable Pala Singh and
Anr.
v.
State
of
Punjab
MANU/SC/0199/1972 : AIR 1972 SC 2679.
Extraordinary delay in sending the copy of
the F.I.R. to the Magistrate can be a
circumstance to provide a legitimate basis
for suspecting that the first information
report was recorded at much later day than
the stated day affording sufficient time to
the prosecution to introduce improvement
1 All. Annu Khatik & Ors. Vs. State of U.P.
85
and embellishment by setting up a distorted
version of the occurrence. The delay
contemplated under Section 157 of the
Code of Criminal Procedure for doubting
the authenticity of the F.I.R. is not every
delay
but
only
extraordinary
and
unexplained
delay.
However,
in
the
absence of prejudice to the accused the
omission by the police to submit the report
does not vitiate the trial. This Court in
Sarwan Singh and Ors. v. State of Punjab
MANU/SC/0169/1976 : AIR 1976 SC 2304,
held that delay in despatch of first
information report by itself is not a
circumstance which can throw out the
prosecution's
case
in
its
entirety,
particularly when it is found on facts that
the prosecution had given a very cogent
and reasonable explanation for the delay in
despatch of the F.I.R."

33. Perusal of the record would reveal
that the F.I.R. of the instant case has been
lodged at 22:30 hours i.e. 10:30 pm. on
25.11.1991 pertaining to an incident which
had occurred at about 6:00 pm. It is the
case of the prosecution that after the
commission of the incident by the accused
persons, the injured was taken to the police
station by P.W.-1/Nirmala with a written
application, however, she was directed by
the police personnels to first make
arrangements for the treatment of her son
as he was not in a good condition and it is
on this basis the informant had taken the
deceased immediately to the hospital and
after admitting him there, She came back to
the police station and lodged the F.I.R. In
this regard, the time when the injured, who
later on died, was examined by Doctor
K.N.
Kaushal
at
district
hospital
Faizabad/Ayodhya is relevant as the
injuries on the person of injured Raju were
examined by Dr. K.N. Kaushal at district
hospital Faizabad on 25.11.1991 at 8:35
pm. Thus, it is evident that before 8:35 pm.
the injured/deceased would have been
admitted in the hospital. The truthfulness of
the fact that the informant was directed by
the police personnel to first go to the
hospital is also evident from the perusal of
the F.I.R. wherein this fact that she had
admitted the injured in the hospital has
been written in a different ink and pen.

Perusal of the Chik F.I.R. would
further reveal that the substance of the
information so given by the informant in
writing has been entered in the General
Diary of the police station, which is also
available on record and has also been
proved by the prosecution.