# Arbind Singh & Anr v. State of U.P

- **Citation:** (2025) 12 ILRA 438
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Criminal Appeal No. 1992 of 1984
- **Bench:** J.J. Munir, Sanjiv Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arbind-singh-anr-v-state-of-u-p-52933
- **Pages:** 17

## Text

_Characters 0–39,917 of 59,643. This is a partial read: ask again with offset=39917 for what follows._

438 INDIAN LAW REPORTS ALLAHABAD SERIES

56. Let a copy of this order be
forwarded to the Trial Court concerned
along with the Trial Court record for
information and necessary compliance.
----------
(2025) 12 ILRA 438
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.
THE HON'BLE SANJIV KUMAR, J.

Criminal Appeal No. 1992 of 1984

Arbind Singh & Anr. ...Appellant
Versus
State of U.P. ...Respondents

Issue for consideration
Testimony of relative witness

Headnotes
Relative witness- merely on account of being
related to the deceased-evidence of the witness
cannot not be discarded- testimony of such
witnesses
should
be
examined
carefully-
material contradictions in ocular and medical
evidence- prosecution has failed to prove its
case beyond reasonable doubt- conviction and
sentence set aside.
Appeal allowed. (E-9)

Case Law Cited
1. Thulia Kali Vs. State of Tamil Nadu 1972 (3)
SCC 393
2. Mohd. Muslim Vs. State of Uttar Pradesh
(now Uttrakhand) 2023 (7) SCC 350
3. Meharaj Singh (L/Nk.) v. State of U.P., (1994)
5 SCC 188
4. Seeman @ Veeranam Vs. State, Inspector of
Police, 2005 SCC (Cri) 1893
5. Baliraj Singh Vs. State of Madhya Pradesh,
2017 AIR (SCW) 2114

List of Acts
Indian Penal Code,1860

List of Keywords
material contradictions, relative witness
Appearances of parties
Counsel for Appellant(s) : Sri Desh Ratan
Chaudhary, Sri Shobh Nath Pandey, Sri Vijaya
Nand Singh Counsel for Respondent(s) : A.G.A.

(Delivered by Hon'ble Sanjiv Kumar, J.)

1. The instant Criminal Appeal has
been preferred by the appellants/ convicts
Arbind Singh son of Bishwanath Singh and
Bhola Nath Dubey son of Deo Narain
Dubey,
both
residents
of
Village-
Bhaiswar,
Police
Station-
Ghorawal,
District- Mirzapur, against the judgment
and order dated 20.07.1984 passed by the
Additional Sessions, Judge, Mirzapur in
Session Trial No. 101 of 1983, State Vs.
Arbind Singh and Another.

2. By the impugned judgment and
order, the learned Trial Judge has convicted
and sentenced the appellant Bhola Nath
Dubey to undergo imprisonment for life,
finding
him
guilty
of
the
offence
punishable under Section 302 read with 34
IPC and the appellant Arbind Singh to
imprisonment
for
life
for
offence
punishable under Section 302 IPC.

3. The present Criminal Appeal in
regard to accused appellant no. 2 Bhola
Nath Dubey son of Deo Narain has abated,
by an order of the Court dated 22nd
August, 2025. Therefore, the present
Criminal Appeal now proceeds on behalf of
appellant No. 1/convict, Arbind Singh,
only.

4. The brief facts of the prosecution
case are that the informant Ram Murat son
of Bihari Singh, resident of Village-
Bhaiswar,
Police
Station-
Ghorawal,
District- Mirzapur submitted a written
information (tehrir) dated 15.09.1982 (Ext.
Ka-2) before Incharge, Police Station-
Ghorawal,
District-
Mirzapur,
stating
12 All. Arbind Singh & Anr. Vs. State of U.P.
439
therein that on 14/15.09.1982 at about 12
midnight the informant's father Bihari
Singh son of Jhuri Singh, aged about 60
years, was sleeping on a cot in the living
room (Baithka) situate towards northern
side of his house. On the other cots, two in
number, the informant, his cousin Shiv
Murat (fufera bhai), and Gauri Shankar,
were sleeping. Upon hearing (aahat) some
one's footsteps the informant got up. He
woke up Shiv Murat and Gauri Shankar.
Four miscreants came near the door of the
Baithka. The informant flashed his torch to
spot them. One of the miscreants shot at his
father, leading the informant to raise alarm.
The miscreants made good then escape as
were chased. Meanwhile, Ram Surat son of
Lalji a resident of the adjacent house, came
out of (his house) with his torch. The
miscreants were chased across some
distance but they fled away towards the
south. One of the miscreants was identified
as Arbind Singh son of Biswanath Singh
and other was Bhola Pandit both residents
of Village- Bhaiswar, Police Station-
Ghorawal. He had identified the rest of the
two miscreants, by face. When they
returned to the living room (Baithka), the
informant found his father lying dead on
the cot.

5. Upon this information a chik FIR
(Ext. Ka-16) under Section 302 IPC,
bearing Case Crime No. 51 of 1982, was
lodged at police station Ghorawal, District
Mirzapur, against accused Arbind Singh,
Bhola Pandit and two unknown men. The
investigation of the case was entrusted to
Station Officer of the Police Station,
Diwakar Mishra. The inquest report was
prepared alongwith connected papers. The
post-mortem examination of the deceased
was done, whereupon it was found that the
deceased had sustained firearm injures and
the cause of death was opined as shock and
hemorrhage as a result of the ante-mortem
injuries. The investigating officer inspected
the torch and prepared its supurdaginama
marked (Ext. Ka-4). He prepared a fard
baramadgi of one lungi, found after a few
days towards southern side of the house,
which he proved as (Ext. Ka-5). The
Investigating Officer prepared site-plan of
the place of recovery, marked Ex. Ka-22.
The I.O. also collected a sample each of
plain earth and blood stained earth, a bullet,
bloodstained clothes and blood stained
strap (baandh) from the place of occurrence
and prepared its fard baramadgi (Ext. Ka19). He recorded the statements of the
informant and other witnesses. The sample
of blood stained earth, one bullet, bedsheet,
strap (baandh), and dhoti were sent for
chemical examination. According to the
chemical examination report (Ext. Ka-25)
human blood was found on all the items
and the blood group was also ascertained.
The I.O. inspected the place of occurrence
and prepared its site-plan which he proved
as Ext. Ka-18. After completion of
investigation, the Investigating Officer filed
a charge-sheet (Ext. Ka 23) against
appellants/ convicts Arbind Singh and
Bhola Nath Dubey under Section 302 IPC,
before Chief Judicial Magistrate, Mirzapur.

6.
The
learned
Magistrate
took
cognizance of the offence and summoned
the accused. The accused appeared before
the Court. The Magistrate furnished copies
of the relevant prosecution papers under
Section
207
Cr.P.C.,
and
thereafter,
committed the case for trial to the Court of
Sessions on 25.10.1983.

7. The Court of Sessions summoned
the accused. A charge under Section 302
IPC was framed against the appellant
Arbind Singh whereas a charge under
Section 302 read with 34 IPC was framed
440 INDIAN LAW REPORTS ALLAHABAD SERIES
against the appellant Bhola Pandit. Both the
appellant pleaded not guilty and claimed to
be tried.

8. The prosecution examined five
witnesses before the Court in support of
their case, to wit, P.W.1- Ram Murat
(informant and eye-witness)), P.W. 2-
Gauri Shankar (eye-witness), P.W. 3- Dr.
S.K. Gupta (conducted post-mortem of the
deceased),
P.W.
4-
Constable
Fateh
Bahadur Singh (carried dead body for postmortem to Mirzapur) and lastly P.W. 5-
Diwakar Mishra, the investigating officer
of the case.

9. P.W. 1- Ram Murat, is the son of
deceased Bihari. He is the informant and an
eye-witness of the case. He has said on oath
that he knows appellants Arbind Singh and
Bhola Pandit. There was enmity between
him and the appellants ante-dating the
incident.
He
originally
hailed
from
belonged to District Varanasi. In the year
1971, his father had purchased 11 Bigha of
land in Village- Bhaiswar and after
migrating from Varanasi started living
here. In 1969, while his father was
irrigating his agricultural land by Chakra
Nala of river Nakhar, Arbind Singh
blocked the flow of water and upon
objection Arbind Singh had battered his
father employing sticks. Thereupon, the
informant had lodged a complaint before
the Collector and the Superintendent of
Police, a carbon copy whereof he has
proved as (Ext. Ka-1). He has further
testified that since a year before the incident,
on account of the village Pradhan election
both parties were not on good terms. In
Village Bhaiswar his house is located
towards northern side with a courtyard
(sehan) adjacent to it and to the north of
courtyard there is a living room (Baithka),
with a door towards the east. On the fateful
day at about 12 midnight, his father was
sleeping on a cot inside this living room
(Baithka), where the informant was also
sleeping on a separate cot. He had a with him.
On the third cot Gauri Shankar and Shiv
Murat were sleeping. Upon hearing some
aahat (sound of footsteps), the informant
woke up and saw four persons at the door. He
then woke up Shiv Murat and Gauri Shankar.
The informant flashed his torch and identified
Arbind Singh and Bhola Pandit. Arbind was
holding a revolver in hand whereas Bhola
Pandit was carrying a ballam. The rest of the
two miscreants were wielding lathis, whom
he could not identify. The appellant Arbind
Singh shot his father causing injuries to his
head and the right eye. He raised alarm,
whereupon, Ram Surat and others reached
there, carrying a torch. The appellants fled
towards south. They who were chased
through some distance, but they fled away.
Thereafter, the informant returned to the
living room (Baithka) where he found his
father Bihari lying dead with blood on his cot
and some blood had also spilt on to the earth.
Due to fear he did not go anywhere and
stayed in the house. The next morning he
wrote down an application in his own hand
and took it to Police Station Ghorawal, at
about 08.30 a.m., which he gave to the
constable. The witness has proved his tehrir
as (Ext.-Ka-16). He has further stated that the
I.O., after recording his statement at the
Police Station, came over to the deceased's
village for investigation. During investigation
the informant and Ram Surat had shown him
their respective torches of which he prepared
a supurdagi nama (Ext. Ka-3). There was a
torch lying on his father's cot, which was
inspected by the I.O. and he wrote down its
supurdagi nama as (Ext. Ka-4).

10. In his cross-examination P.W. 1,
Ram Murat has said that he had sent the
application to the Superintendent of Police
12 All. Arbind Singh & Anr. Vs. State of U.P.
441
and the Collector by registered post, one or
two months prior to the festival of Nag
Panchami in 1979. Witness Gauri Shankar's
house is adjacent to his house and Gauri
Shankar would sleep at Ram Murat's house
occasionally. The lantern was lit in the
Baithka and it was a dark night. Upon
hearing the noise of footsteps, he woke up
but did not raise alarm and went over
quietly to Shiv Murat's and Gauri Shankar's
cots woken them up, otherwise the
intruders would have fled. The miscreants
opened fire after the informant had flashed
his torch. He forgot to write in his first
information that appellant Arvind Singh
was carrying a revolver and Bhola Pandit a
ballam. His father was shot from a distance
of one foot and the bullet hit his head and
passed through his right eye. The assailant
had shot him a in bending position. None of
the accused had covered their faces. He
went to the Police Station on a bicycle. He
had asked Ram Surat and Gauri Shankar,
whether
they
would
depose
before
mentioning their names in the FIR. On
15.09.1982, there was a case pending in the
Mirzapur Court where he was an accused.
About two to three years prior to this
incident a case was lodged against him,
Ram Surat, Gauri Shankar and others in
which both the accused (of this case) had
deposed against them. There was a case
regarding one Prabhawati's murder lodged
against him at the behest of Arvind Singh.
There was another case of maarpeet lodged
against him and his father. Teju Kaal has
also lodged a case against him, Ram Surat,
Shiv Murat and Gauri. Prior to this incident
Premanand had lodged a case regarding the
theft against this witness which was
compromised. In that case, Inspector Pachmi
Ram had come along with Arvind Singh and
Baba to arrest them. In that case there were
other accused, to wit, Vullu, Sharda and Ram
Surat, alongside him. While being arrested by
the Inspector, they obstructed. He has
admitted that there are many cases pending
against them.

11. P.W. 2- Gauri Shankar is another
eye-witness of the incident. He has said that
he knows the appellant Arbind Singh and
Bhola Pandit. The deceased Bihari was his
Mama (maternal uncle). About one and a half
years ago at about 12 midnight, Bihari was
asleep on a cot in front of the door to his
baithaka whereas the witness himself, Shiv
Murat and Ram Murat were sleeping on two
other cots. Ram Murat and Shiv Murat woke
him up, and when Ram Murat flashed his
torch, they saw the appellants Arbind Singh,
Bhola Pandit besides two other persons
standing at the Baithaka of door. Arbind
Singh was wielding a revolver and Bhola, a
ballam and the two others had danda on
them. As soon as, Ram Murat flashed his
torch, Arbind Singh shot Bihari with his
revolver which hit Bihari on the back side of
head, behind the ear passing through the right
eye of the deceased; and, after hitting the
earthen (लमटटी का) pillar the bullet dropped
onto the deceased's cot. Upon their alarm
Ram Surat came over with a torch. The
appellants fled towards southwards. They
were chased through some distance but they
fled away. Thereafter, P.W. 2 returned to the
Baithaka and saw Bihari lying dead. There
was blood over his bed, cot and also
splattered on the earth. At the time of this
incident, the appellant Arbind Singh was
wearing a kurta and lungi and the lungi
present before the Court is the same, which
Arbind Singh was wearing at the time of
incident. The aforesaid lungi was found on
16.09.1982 at about 04.00 p.m. towards the
southern side of the informant's house in a
drain. The I.O. had collected this lungi and
prepared a fard baramadgi, which he proved
as (Ext. Ka-5).
442 INDIAN LAW REPORTS ALLAHABAD SERIES

12. In his cross-examination, the P.W.
2 has said that the Lungi was found in a
drain and it was not taken to the police
station the same day. Except for the rainy
seasons, he sleeps in his own house, but in
the rainy season he would sleep in Bihari's
Baithka, because it has many windows. To
the north of his own house, there is Oshara
having windows. When they returned after
chasing the appellants the bullet was found
lying on the deceased's cot. Ram Murat was
not attacked when he flashed the torch.
Ram Murat had awakened them saying that
get up, let us see who are these persons.
After the appellants had fled away 25-50
persons of the village visited at the place of
occurrence. He has admitted that there is a
dispute regarding the irrigation of land
between him and the appellant Arvind
Singh. He lodged a complaint regarding
maarpeet against Arvind Singh and others,
which was dismissed. In a case under
Section 304 I.P.C. he was accused along
with Uma, Ram Murat and others. The
appellant Bhola did not reside in village
Bhaiswar, but would frequent it.

13. P.W. 3 Doctor S.K. Gupta, is an
expert witness who has conducted the postmortem examination of the deceased cadaver
on 16.09.1982 at 03.00 p.m. in District
Hospital, Mirzapur. He has said that the
deceased was aged about 60 years. Rigor
mortis had passed away from the upper part
of the body and was passing through the
lower parts. Blood was oozing from the nose
and right ear. There were blisters over the
nose. Mouth was open and the entire body
was swollen. He found following antemortem injuries over the body:-

(i) Fire-arm wound of entry 1cm x
1cm x cranial cavity at right back side of the
head. The margins of wound were inverted
and lacerated.

(ii) The right eye ball was torn and
bulging out and bleeding.

(iii) Right occipital bone was
fractured, corresponding with injury no. 1,
caused by fire-arm.

Brain towards right side of injury no. 1
was lacerated and it was corresponding to
injury no. 1. About one ounce of blood and
clotted blood was present. Superior plate of
the orbit of right eye was fractured. There
was semi-digested food in the stomach. The
small intestine was filled with gases and there
was fecal matter in the large intestine. The
gall bladder was empty. In the opinion of the
doctor the cause of death was shock and
hemorrhage as a result of injury no. 1. In his
opinion injury no. 1 was caused by a shot
from a revolver. The exit of injury no. 1 was
corresponding to the eye ball of the right eye.
The assault could have occurred from a
distance of 3 to 4 feet or more than that
distance. The death of the deceased would
have occurred at about 12 midnight on
14/15.09.1982. He has proved the postmortem report as Ext. Ka-6.

14. In his cross-examination, P.W. 3 Dr.
S.K. Gupta, has said that the above injury
could be caused by gun shot from a distance
of more than 4 feet because there was no
blackening and scorching around the margins
of the injury. The direction of the above
injury was parallel to the body of deceased,
while in the lying position.

15. P.W. 4- Constable, Fateh Bahadur
Singh, is a formal witness who took the dead
body of the deceased for post-mortem to
Mirzapur, after the inquest report was
prepared.

16. P.W. 5- S.O., Diwakar Mishra, is
the Investigating Officer of this case. He
has proved the chik FIR, Ext. Ka-16 as
12 All. Arbind Singh & Anr. Vs. State of U.P.
443
secondary witness of Head Constable, Shiv
Shankar Singh, the scribe of the FIR. He
has also proved G.D. No. 6 as Ext. Ka-17.
He has said that he recorded the statements
of witnesses. The inquest report of the
deceased was prepared along with relevant
connected papers. He has proved inquest
report as Ext. Ka-10, related papers photo
nash, challan lash, letter to the CMO and
the letter to the R.I. sample seals etc. as
Ext. Ka-7 to 13. He has also stated that he
inspected the place of occurrence and
prepared a site-plan which he proved as
Ext. Ka-18. He collected samples of plain
earth and blood stained earth from the place
of occurrence and kept it in sealed boxes
which he proved as Ext. 2 and 3. He
recovered
a
bullet
lying
under
the
deceased's cot which he proved as Ext. 4.
He has also taken sample of blood stained
bedsheet (Kathari), Ext. 5, blood stained
pillow, Ext. 6, plastic box, Ext. 7, the strap
(baandh) of the cot, Ext. 8, blood stained
baniyan, Ext. 9 and prepared a fard
baramadgi, marked as Ext. Ka-19. He has
also prepared a recovery memo (supurdagi
nama) for the torch kept on the deceased's
cot marked as Ext. Ka-4. He also inspected
torches of witness, Vikram and Bullu
which were in running condition and he
proved it as Ext. 3. He raided houses in
search of the appellants but they were not
found. On 17.09.1982, Shiv Murat handed
him over the lungi, Ext. 1, which was left
by accused at the place of occurrence and
prepared its fard baramadgi which he
proved as Ext. 5. After completion of
investigation he submitted a charge-sheet,
Ext. Ka-23, before learned Magistrate.

17. In his cross-examination he has
said that the office of the Circle officer,
Churk, was about 40 km away from the
police station and there is vehicular
connectivity between the two. The chik
report is sent the same day to the Circle
Officer, if it is lodged before 12 noon, and
in other cases, the next day. The date is
17.09.1982 endorsed on the chik under
C.O.s signature. The date of receipt at the
office of Circle Officer is not mentioned in
the G.D. of 15.09.1982.There was (लमटटी
का) pillar in the middle of the Baithka, 6-7
steps away from eastern wall. The
deceased's cot was two and half balisht (a
measure of man's palm and fingers from
thumb to the little finger, outstretched) way
from the pillar. There was a bullet mark at
the height of about 5 balisht on the earthen
pillar, which was about two and half balisht
higher that the placing of the deceased's
cot. The informant had not told him that
due to fear he did not go to the police
station the same night. Gauri Shankar had
not told him that appellant Shiv Murat's
lungi was recovered in his presence.

18.
The
following
documentary
evidence has been produced by the
prosecution to prove its case; Exhibit Ka-1,
Tehrir dated 29.08.1982, Exhibit Ka-2,
Tehrir dated 15.09.1982,,Exhibit Ka-3 and
Exhibit
Ka-4,
Recovery
memo
and
supurdginama of torch, Exhibit Ka-5,
Recovery memo of Lungi, Exhibit-Ka-6
post-mortem report, Exhibit Ka-7 Letter to
R.I., Exhibit Ka-8 Letter to the C.M.O.,
Exhibit Ka-9 Report regarding postmortem, Exhibit Ka-10 Inquest report,
Exhibit Ka-11 Copy of Chik FIR, Exhibit
Ka-12 naksha laash, Exhibit Ka-13 Challan
laash, Exhibit Ka-14 Sample of Seal,
Exhibit Ka-15 G.D. No.22, Exhibit Ka-16
Chik FIR, Exhibit Ka-17 G.D., Exhibit Ka18 site-plan, Exhibit Ka-19 Recovery
memo of blood stained and plain earth and
bullet blood stained, Exhibit Ka-20 Search
memo of Arbind Singh, Exhibit Ka-21
Search memo of Bhola Nath Dubey,
444 INDIAN LAW REPORTS ALLAHABAD SERIES
Exhibit Ka-22 site-plan of the place where
the Lungi was recovered, Exhibit Ka-23 the
charge-sheet, Exhibit Ka-24 Chemical
Examination Report, Exhibit Ka-25 report
of the chemical examiner, Material Exhibit1 Lungi, Material Exhibit 2 and 3 sample of
blood stained and plain earth, Exhibit 4
Bullet, Exhibit 5 blood stained Kathri,
Exhibit 6 pillow, Exhibit 7 tobacco dibia,
Exhibit 8 blood stained baandh, and Exhibit
9 blood stained baniyan.

19. After the closure of prosecution
evidence, statements of the appellants were
recorded
under
Section
313
Cr.P.C.
wherein they denied the prosecution case
and stated that false evidence has been
adduced against them and that due to
enmity they have been falsely implicated in
the present case.

20. The accused did not produce any
evidence in their defence.

21. After hearing both the parties and
perusal of record, the learned Trial Judge
convicted the appellant- Arbind Singh
under Section 302 and appellant Bhola
Nath Dubey under Section 302 IPC read
with 34 IPC. The Trial Court observed that
there was motive for the appellants to
commit Bihari's murder, because Bihari
had purchased a land in the village and
there was dispute with regard to its
irrigation with Arbind Singh. There was a
factional dispute relating to election of the
Gram Pradhan which served as a motive as
well. Though, the incident had occurred in
the dark of night but a torch was flashed
across the faces of the appellants, leading
the assailants to be recognized by the
witnesses. The presence of Gauri Shankar
in the deceased Bihari's Baithka is well
explained
and
the
FIR
was
lodged
promptly. There is no inordinate delay in
lodging the FIR. The learned Trial Judge
also observed that the FIR was not antetimed. P.W. 1, Ram Murat and P.W. 2,
Gauri Shankar had proved the occurrence.
There are no material contradictions in
ocular and medial evidence. In view of the
above, the Trial Court convicted the
appellants and sentenced them as indicated
above.

22. We have heard rival submissions
of learned counsel for the parties and
perused the record.

23. It is submitted on behalf of the
surviving appellant that the FIR was lodged
belatedly
and
there
is
no
plausible
explanation regarding the delay. It is also
submitted that the FIR is ante-timed and the
date and time of lodging the FIR were
endorsed later showing an earlier time. It is
also submitted that the eye-witnesses are
close relatives of the deceased and they are
highly interested witnesses. Therefore, their
testimony is not reliable. It is further
submitted that the presence of the eye
witnesses at the place of occurrence is also
highly doubtful. It is next submitted that
there are material contradictions in the
testimony of PW-1- Ram Murat and PW-2,
Gauri Shankar, which makes their presence
at the place of occurrence very doubtful.
The prosecution have not produced any
other independent witness which renders
the prosecution case unreliable. It is further
submitted
that
there
are
major
contradictions in the ocular evidence and
medical evidence which does not support
the prosecution case.

24. It is also submitted that the
deceased and the eye witnesses P.W.1 and
P.W.2 had criminal history and the
deceased might have been killed by
someone else in the dark hours of the night,
12 All. Arbind Singh & Anr. Vs. State of U.P.
445
and the appellants have been falsely
implicated in this case due to enmity (party
bandi). It is also submitted that the
appellants had no motive to kill the
deceased,
particularly
an
immediate
motive. Therefore, the prosecution was
unable to prove its case beyond reasonable
doubt and the Trial Court has not
appreciated
the
evidence
on
record
correctly. Thus the impugned judgment is
illegal and the conviction and sentence
awarded to the appellant is not sustainable.

25. On the other hand, it is submitted
on behalf of the State that there is no delay
in lodging the FIR. It was promptly lodged.
PW-1 and PW-2 are natural witnesses who
were present at the time of the incident and
they have supported the prosecution case.
There are no major contradictions in their
testimony. Thus, their testimony was
reliable
and
trustworthy.
It
is
also
submitted
that
there
are
no
major
contradictions in ocular evidence and
medical evidence. There was motive for the
appellants to commit the murder of the
deceased, as earlier there arose a dispute
between the parties and due to the Gram
Pradhan election, there was party rivalry in
the village which led the appellants to
harbor animosity against the deceased.
Therefore, there was motive for the
appellants to commit this murder.

26. It is further submitted that though
it was dark in the night, but the witnesses
had torches in their hands and they had
identified the appellants when the torch
light was flashed across their faces. The
appellants are residents of the same village.
Therefore, they were known to the
witnesses, who flawlessly identified them.
Thus, the prosecution case was proved
beyond reasonable doubt and the Trial
Court has rightly convicted and sentenced
the appellants. Therefore, this appeal is
liable to be dismissed.

27. In the light of submissions of both
parties and evidence on record we have to
see that whether the prosecution has been
able to prove its case beyond reasonable
doubt. It is settled law that in a criminal
case the burden of proof lies upon the
prosecution to prove its case beyond
reasonable doubt. In the present case,
according
to
the
prosecution,
on
14/15.09.1982 at about 12 midnight, the
appellants came to the place of occurrence,
which was the Baithka of the informant,
with an intention to commit the murder of
Bihari, the informant's father, and in
furtherance of their common intention, the
appellant/ convict Arvind Singh shot Bihari
with a revolver, as a result of which Bihari
died on the spot.

28. In the present case, the date and time
of Bihari's death is not disputed. Doctor S.K.
Gupta, PW-3, has conducted the post-mortem
examination of the deceased and found that
the deceased sustained two fire arm antemortem injuries. The one was a firearm entry
wound on the right side of the back of skull,
margins inverted and lacerated. The other
injury was that the right eyeball was lacerated
and bulging out. In his opinion injury no. 1
was caused by fire from a revolver. The exit
of injury no. 1 was corresponding to the eye
ball of the right eye and there was a fracture
of the occipital bone. The deceased's brain
towards right side of injury no. 1 was
lacerated and it was corresponding to injury
no. 1. In view of the medical examination
report, it is clear that the deceased had died
due to a head injury caused by firearm.

29. Further, PW-1, Ram Murat and
PW-2 Gauri Shankar, have said in their
dock evidence that the alleged incident
446 INDIAN LAW REPORTS ALLAHABAD SERIES
took place at 12 midnight of 14/15.09.1982.
In this regard, Doctor S.K. Gupta, who has
conducted the post-mortem examination on
16.9.1982 at 3 p.m., has opined that death
could have taken place about one and a half
day prior to the post-mortem examination.
Thus, the above time tallies, with the time
and date stated by the eye witnesses which
supports the prosecution case. Therefore,
the date and time as well as the death of
deceased Bihari are not disputed and they
are established by the prosecution.

30. So far as the place of occurrence is
concerned, it is also not disputed by the
defence. In this regard, PW-1 Ram Murat
and
PW-2
Gauri
Shankar,
have
categorically stated that the deceased was
murdered while he was sleeping on his cot
in the Baithka. It has also come in evidence
that there were gunshot injuries to the
deceased and he was bleeding. Blood had
also dropped down on deceased's cot as
well as on the floor under the cot.

31. The Investigating Officer, PW-5
Diwakar Mishra, has inspected the place of
occurrence on the morning following the
incident and found that the dead body of
the deceased was lying on the cot in the
Baithka. He also found a bed-sheet, pillow,
and kathri soaked in blood and bloodstained earth under the cot. He also found
that the straps (baandh) of the cot were also
soaked in blood. The Investigating Officer
collected the above articles as well as
samples of plain earth and blood-stained
earth
and
sent
them
for
chemical
examination. In view of the chemical
examination report (Exhibit Ka-24) these
articles carries human blood. Thus, the
ocular evidence as well as the evidence
collected by the I.O. at the place of
occurrence and also the fact that the body
of the deceased was found lying at the cot
of the Baithka, proves that the deceased
was killed at the place of occurrence as
alleged by the prosecution. The defence has
also not suggested any alternative place of
occurrence where the murder of the
deceased
could
have
taken
place.
Therefore, the place of occurrence is
established by the prosecution.

32. It is submitted on behalf of the
appellants that the FIR was lodged
belatedly and it was ante-timed, and thus,
the prosecution case is not believable. In
this regard, the prosecution case is that the
incident occurred on 14/15.09.1982 at 12
midnight, and the FIR was lodged by the
informant Ram Murat, son of Bihari, on
15.09.1982 at 8:30 a.m. at Police Station-
Ghorawal, District Mirzapur.

33. Upon a perusal of the chick FIR, it
is clear that the distance of the police
station from the place of occurrence is eight
miles. The FIR was lodged about 81/2 hours
after the time of incident. In this regard,
PW-1, Ram Murat has said that due to fear,
he did not go to the police station the same
night, and in the morning, he himself wrote
down the application (tehrir) and went to
the police station on a bicycle and lodged
the FIR. The reason shown by the
informant for lodging the FIR, belatedly,
does not appeal to us. Here, it is pertinent
to note that it has come in evidence that
after the incident, many residents of the
village reached the spot, and right through
the night they were visiting the place of
occurrence but, the informant did not ask
any villager to accompany him to go the
police station to lodge an FIR. Here, it is
also noteworthy that according to PW-1
and PW-2, they chased the assailants across
a certain distance and after the assailants
fled away, they returned to the place of
occurrence. It has also come in evidence
12 All. Arbind Singh & Anr. Vs. State of U.P.
447
that there were some criminal cases lodged
against the informant and the deceased. In
one such case, both the appellants of this
case had deposed against the informant and
PW-2 Gauri Shankar, the other witness of
this case. There was one case regarding
theft lodged against the informant, and in
that case, the police inspector came to
arrest the informant, and at that particular
time, the appellant Arbind Singh and Babu,
had accompanied the police personnel. It
has also come in evidence of PW-1 that
when the inspector tried to arrest the
informant Ram Murat in that case, he
obstructed the arrest, and in this regard,
another case was lodged against him.

34. Further, according to PW-2 Gauri
Shankar, in the case under Section 304 IPC
regarding culpable homicide not amounting
to murder, the informant, himself, and
others were accused, and in another case
with regard to attempt to commit culpable
homicide not amounting to murder both of
them along with others were accused.
Therefore, upon looking at the above
evidence, it is clear that both the informant
and PW-2 Gauri Shankar had criminal
antecedents, and the deceased too have
criminal history. It is also clear that in some
such criminal cases the appellants of this
case stood with the other side.

35. In view of the above background,
it is not natural on the informant's part not
to proceed to the police station the same
night to lodge an FIR, though he chased the
assailants with the other villagers, knew
them well and almost all the persons of the
village had reached the place of occurrence,
which they kept visiting the entire night
some coming in and others leaving. In view
of the above, it cannot be said that the
informant would have had any fear in
proceeding to the police station to lodge an
FIR. The informant has not disclosed any
reason for the delay in lodging the FIR in
the written report. In view of the evidence
of the I.O. that the informant did not tell
him, that due to fear he did not go to the
Police Station during the night to lodge the
FIR, this reason put forward to explain the
delay cannot be accepted. Therefore, there
is inordinate delay in lodging the FIR, and
the delay has not been satisfactorily
explained by the prosecution. In Thulia
Kali Vs. State of Tamil Nadu 1972 (3) SCC
393, the Supreme Court has held that on
account of delay, the FIR not only gets
bereft of the advantage of spontaneity,
danger creeps in of the introduction of
colored version, exaggerated account or
concocted story as a result of deliberation
and consultation. Thus, the delay in lodging
the FIR should be satisfactorily explained.
It was also held that if the witnesses
examined
have
given
contradictory
evidence and there is discrepancy on the
point and the prosecution fail to examine
other independent material witnesses then it
would make the Court draw an adverse
inference against the prosecution. In Mohd.
Muslim Vs. State of Uttar Pradesh (now
Uttrakhand) 2023 (7) SCC 350, it has
been held by the Supreme Court that the
FIR in a murder case is vital and valuable
piece of evidence. Infirmities in the FIR
casts doubt on its authenticity, depletes its
evidentiary value and entitles the accused
to the benefit of doubt.

36. It is submitted on behalf of the
appellant that the FIR was ante-timed and
lodged later on with an earlier time
mentioned in it. In this regard, upon a
perusal of evidence, it appears that the
office of the Circle Officer, Robertsganj, is
about 40 kilometers away from the police
station and it has come in evidence that
generally, those chik FIR which are lodged
448 INDIAN LAW REPORTS ALLAHABAD SERIES
before 12 noon are sent to the Circle
Officer the same day, and in case FIRs
lodged after 12 noon, they are sent to the
Office of Circle Officer the next day. In the
present case, the FIR was lodged at 8:30
a.m., which means it was lodged before 12
noon. The record shows that the FIR
reached the Office of the Circle Officer the
next day.

37. The prosecution has not clarified
why the FIR was not sent to the Office of
the Circle Officer the same day, which was
against
the
general
practice,
raising
suspicion that it was anti-timed.

38. The Supreme Court in Meharaj
Singh (L/Nk.) v. State of U.P., (1994) 5
SCC 188, has observed in para 12 of the
report:

"FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eye
witnesses, if any. Delay in lodging the FIR
often results in embellishment, which is a
creature of an after thought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR, was lodged
at the time it is alleged to have been
recorded, the courts generally look for
certain external checks. One of the checks
is the receipt of the copy of the FIR, called
a special report in a murder case, by the
local Magistrate. If this report is received
by the Magistrate late it can give rise to an
inference that the FIR was not lodged at
the time it is alleged to have been recorded,
unless, of course the prosecution can
offered a satisfactory explanation for the
delay in dispatch or receipt of the copy of
the
FIR
by
the
local
Magistrate.
Prosecution has led no evidence at all in
this behalf. The second external check
equally important is the sending of the copy
of the FIR along with the dead body and its
reference in the inquest report. Even
though the inquest report, prepared u/s 174
Cr. P.C. is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in embryo and had not been
given any shape and that the FIR came to
be recorded later on after due deliberations
and consultations and was then ante timed
to give it the colour of a promptly lodged
FIR."

39. In view of the above, there was
inordinate delay in lodging the FIR without
reasonable explanation which raises doubt
over the prosecution case.

40. It is next submitted on behalf of
the appellant that there was no motive for
the appellants to commit the offence. On
the other hand, it is argued on behalf of
prosecution that the appellant had motive
enough to commit the offence because
Bihari had purchased land in the appellant's
village in the year 1971, and thereafter, set
up residence there. In the year 1979 when
he was irrigating his agricultural land the
appellant
Arbind
Singh
had
caused
obstruction and raised some dispute in this
12 All. Arbind Singh & Anr. Vs. State of U.P.
449
regard. Thereupon P.W. 1 Ram Murat had
sent a report to the Office of the
Superintendent of Police and the Collector.
P.W. 1 Ram Murat, has proved this
application as (Ext. Ka-1). There is a postal
receipt alone in this regard and no other
evidence to prove that this application ever
reached the Office of the Superintendent of
Police or the Collector and if so what
action was taken on this application by
these officers, has been produced. Even if it
is assumed, that the above complaint had
reached to the Superintendent of Police,
then all that it shows is that there was a
dispute regarding the irrigation of land and
that too in the year 1979, whereas the
incident in the present case occurred on
15.09.1982 i.e., after about 3 years from the
alleged dispute. There is no evidence to
show that between these three years, the
appellants and the deceased ever reached
grudges against each other or then. The
above dispute is also not of such a serious
nature that it would prompt the appellants
to commit murder of the deceased, after 3
years of the event, in such a manner.

41. Further, it has been argued on
behalf of the prosecution that there was an
election of the village Gram Pradhan where
the
informant
and
appellants
were
supporters of rival parties and this rivalry
had prompted the appellants to commit
murder of the deceased.