# Arvind & Anr. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 2189 of 1990
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-19
- **Case number:** Criminal Appeal No. 2189 of 1990
- **Bench:** Arvind Kumar Mishra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-anr-in-jail-v-state-of-u-p-46453
- **Pages:** 10

## Headnote

Criminal law- Indian Penal Code- Section
449-Section 302/34 - Appeal against
conviction.

Trivial contradiction in statements-

Held :- Trivial contradiction in statements
are liable to be ignored as ocular testimony of
prosecution witnesses supported by the
medical evidence. (Para 34)

Appeal rejected. (E-2)

List of Cases Cited:-

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES
Ext.Ka-1 it is mentioned that fire arm
injury hit the left leg of Deshraj. Seat of
injury is on the thigh which is not a vital
part. Injured and other witnesses have
improved their statement that with intention
to kill the accused fired upon the injured, it
was not the case of the prosecution that
with intention to kill the shot was fired by
the accused Gopal targeting a vital part but
injury was caused on a non-vital part. As
per evidence of the injured also the accused
started beating and at once Gopal fired and
the shot hit the injured on his thigh. In such
a situation it cannot be inferred that
intention of the accused was to kill the
injured. Therefore, charge under Section
307 I.P.C. is not proved. Causing fire arm
thigh injury by accused Gopal is proved,
therefore, offence under Section 324 I.P.C
against him is made out and for the same he
is liable.

35. On a conspectus of facts and
circumstances of the case and close
scrutiny of the evidence available on
record, as discussed above, we find that
prosecution evidence is consistent, trust
worthy, and corroborated by medical
evidence. Fire arm injury by Gopal was not
caused in furtherance of common intention
of all the accused persons. Therefore, for
causing fire arm injury he is alone liable for
his act. Injury was not caused with
intention to kill, therefore, he is not liable
for punishment under Section 307 I.P.C. but
fire arm injury on thigh is proved, for
which he is liable to be punished under
Section 324 I.P.C. Punishment of appellants
Rakesh, Gopal and Mohan under Section
307/34 I.P.C is not proper and is liable to
set aside. Consequently, they are liable to
be acquitted under Section 307/34 I.P.C. So
far as offence under Sections 323, 504
I.P.C. is concerned, prosecution evidence in
this regard is consistent, corroborative to
each other. Therefore, conviction and
sentence is liable to be affirmed.

36. The appeal is, therefore, partly
allowed. The impugned judgment and order
convicting and sentencing the appellants
Rakesh, Gopal and Mohan under Section
307 I.P.C. is set aside and they are acquitted
for the offence under Section 307/34 I.P.C..
Appellant Gopal is convicted under Section
324
I.P.C.
and
in
the
facts
and
circumstances of the case he is sentenced to
rigorous imprisonment for a period of two
years. The appellant no.1 Rakesh, appellant
no.2 Gopal and appellant no.3 Mohan are
on bail. Their bail bonds are cancelled.

The court concerned is directed to
take the appellants into custody to serve out
the sentences awarded to them by the trial
court under Sections 323, 504 I.P.C. and
appellant Gopal under Section 324 I.P.C. as
aforesaid.

Office is directed to communicate
this decision to the court concerned
forthwith and also send back the record.
----------
(2020)03-05ILR A630
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 2189 of 1990

Arvind & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri M. Islam, Sri Nazrul Islam Jafri

Counsel for the Opposite Party:
D.G.A.
3-5 All. Arvind & Anr. Vs. State of U.P.
631
Criminal law- Indian Penal Code- Section
449-Section 302/34 - Appeal against
conviction.

Trivial contradiction in statements-

Held :- Trivial contradiction in statements
are liable to be ignored as ocular testimony of
prosecution witnesses supported by the
medical evidence. (Para 34)

Appeal rejected. (E-2)

List of Cases Cited:-

1. Criminal Appeal No. 291 of 2010,

2. Subhash Vs. St. of U.P. decided on 2nd
November, 2017.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.
&
Hon'ble Gautam Chowdhary, J.)

(1) Heard Sri Nazrul Islam Jafri, learned
senior counsel assisted by Sri M. Islam, learned
counsel for the appellant, Sri Krishan Pahal,
learned A.A.G. for the State assisted by Sri
Bhanu Prakash Singh learned brief holder and
perused the record of the appeal.

(2) By way of instant criminal appeal,
challenge has been made to the validity and
sustainability of the judgement and order dated
03.12.1990 passed by II Additional Sessions
Judge, Rampur in Sessions Trial No.9 of 1989,
(State Vs. Arvind and another), Case Crime
No.88 of 1988, police station- Patwai, district-
Rampur, whereby the appellant- Arvind- has
been convicted and sentenced to undergo ten
years R.I. and life imprisonment for offence
under Sections 449 IPC and 302/34 IPC,
respectively.

(3) Appropriate to mention that during the
course of appeal, appellant no.2 Sita Ram
expired, therefore, his appeal stood abated
against him, vide order of this Court dated
03.12.2018.

(4) Facts engraved in the first information
report- Exhibit Ka-1- reflect that there was
pending civil litigation between father of the
informant- Nem Chand- and accused- Arvind
and Sitaram- both sons of Baburam- in respect
of some landed property. It is stated that in the
night intervening 17/18.6.1988 informant's
father- Nem Chand, his uncle Mishri and
Hemraj were sleeping in the courtyard of their
house, it was around 1.30 a.m. that it started
drizzling, therefore, the informant and his
family members started moving inside the
house holding their respective cots, at the same
time miscreants standing at their portal outside
flashed torch lights upon them, when Hemraj
and Mishri too flashed their torches towards
them and spotted co- accused- Arvind and
Sitaram. Accused- Arvind and Sitaram- were
possessing country-made gun and two others
possessing swords were standing over there. All
the miscreants rushed into the courtyard and
asked
informant's
uncle-
Hemraj-
the
whereabouts of Nem Chand. At that point of
time, Nem Chand (father of the informant)
emerged from inside the house. Thereupon, the
accused- Arvind and Sitaram- fired on him
(Nem Chand) with their country-made guns,
which caused gunshot pellet injuries on the
chest and stomach of the deceased. Alarm was
raised, whereupon, Harprasad s/o Khyali and
Kundan s/o Ishwari from the neighbourhood
and the other co- villagers holding torches in
their hands arrived on the spot, due to which, all
the four assailants escaped away towards the
west of the village towards the canal. Accused
were identified in the torch light. Laden on a cot
victim- Nem Chand- was (then) taken to the
police station by the informant and his uncle,
but Nem Chand breathed his last on the way
near the police station. The informant wrote the
FIR- Exhibit Ka-1- and lodged it at the Police
Station.
632 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) Contents of the written report
were taken down in the concerned check
FIR at Case Crime No.88 of 1988, under
Section 302 IPC at Police Station- Patwai,
District- Rampur at 2.30 a.m. on 18.6.1988.
The copy of check FIR is Ex. Ka.13 and
relevant
entries
were
made
in
the
concerned G.D. at serial no.3 at 2.30 A.M.
on 18.6.1988 whereby case was registered
against the accused. Copy of G.D. is Ext.
Ka.-14.

(6) After registration of the case,
Investigating Officer- Umesh Chandra
Mishra P.W.9 swung into action and tookover
investigation
on
18.6.1988.
He
recorded the statements of Gajram Singh,
Hemraj and Mishri at the police station.
The dead body was lying in the police
station but on account of it being night
hours,
proceedings
for
inquest
were
postponed until the following morning. On
the next day (18.6.1988) at 6 A.M. the
Investigating Officer appointed inquest
witnesses and prepared the inquest report,
which is Ext. Ka.-5. In the opinion of
witnesses, it was thought proper to send the
dead body of Nem Chand for post-mortem
examination for ascertaining real cause of
death.

(7) In the process relevant papers
were also prepared by the Investigating
Officer viz. Photonash (Exhibit Ka-6),
challan
dead
body
(Exhibit
Ka-7),
specimen seal (Exhibit Ka-8), letter to
C.M.O. and R.I. (Exhibits Ka-9 and 11,
respectively) etc. The dead body was sealed
and was entrusted to S.I. Bhojraj Singh and
Dharmveer
Singh
for
post-mortem
examination.

(8) Post-mortem examination on the
cadaver of the deceased was conducted on
18.06.1988 at 01.45 P.M. by Dr. S.P. Singh
P.W.11, wherein the following ante-mortem
injuries were noted at the time of
examination:

Ante mortem injuries

1. Gun shot wound of entry 3 cm
x 3 cm x chest cavity deep over middle of
sternum, margin lacerated and inverted. No
blackening or scorching.

2. Multiple firearm wounds of
entry, each measuring 1/2cm x 1⁄2 cm x left
side of abdomen, margins lacerated and
inverted, just below sub coastal margins.

3. Gun shot wounds of exit four in
number, each measuring 2 cm x 2 cm x
back of communicate injury no.2 on the
back of abdomen (right side back of
abdomen), margins lacerated and everted.

In the opinion of doctor, cause of
death was stated to be haemorrhage and
shock as a result of ante-mortem injuries.
The post-mortem report is Exhibit Ka-15.

(9) The copy of the post-mortem
report was obtained by the Investigating
Officer on 20.6.1988. Blood stained clothes
of the deceased- Nem Chand were sent for
Chemical
Examination
at Agra. The
Chemical Examiner's report is Exhibit Ka16.

(10) Consequent whereupon the
Investigating Officer also inspected the
spot and prepared the site plan- Exhibit Ka12. He also took sample of simple and
blood stained clay-roll from the spot in two
separate containers and prepared a memo
of the same- Exhibit Ka-4. One empty
cartridge .12 bore and three pellets were
recovered from the spot, a memo of the
same was also prepared as Exhibit Ka-3.
Besides, he recorded statement of Omwarti
(wife of the deceased- Nem Chand) and
Niranjan, Bhawani Prasad. On 19.6.1988,
he arrested the accused- Arvind and Sita
3-5 All. Arvind & Anr. Vs. State of U.P.
633
Ram- and interrogated them. He also
recovered the torches and prepared the
memo of the same as Exhibit Ka-2.

(11) After completing the necessary
formalities the Investigating Officer filed
the charge-sheet against the accused under
Section 302 IPC.

(12) The case of the appellant was
committed to the court of Sessions from
where it was made over for trial and
disposal to the aforesaid trial court. The
trial court, after hearing the accused and the
prosecution on point of charge, was
satisfied with prima facie case for the
offence under sections 449, 302/34 I.P.C.,
consequently it framed charges against
accused under the aforesaid sections of
I.P.C. The charges were read over and
explained to the accused, who abjured the
charges and claimed to be tried.

(13) In turn, prosecution was asked to
adduce its testimony in order to prove the
guilt. The prosecution produced in all 11
witnesses.
Brief
reference
of
the
prosecution witnesses is ut-infra:-

(14) Gajram Singh P.W. 1 is the first
informant
and
eye-witness
of
the
occurrence. He has proved the written
report Ext. Ka.-1. Hemraj P.W.2 and Mishri
P.W.3 are the eyewitnesses and brothers of
the deceased. Har Prasad is P.W.4, he has
been declared hostile, similarly Kundan Lal
P.W.5 has not supported the prosecution
case. Smt. Omwati is P.W.6. She is also the
eye witness and wife of the deceased. Nem
Chand is P.W.7. He is witness of fact of
recovery of empty cartridge and pellets.
Sompal is P.W.8. Umesh Chandra Mishra is
P.W.9 is the Investigating Officer of this
case. Constable Bhojraj Singh is P.W.10.
Dr. S.P. Singh P.W.11 has conducted post-
mortem examination (Exhibit Ka-15) on
the dead body of the deceased.

(15) Except as above, no other
evidence was adduced by the prosecution,
therefore, evidence for the prosecution was
closed and the statement of the accused was
recorded under section 313 Cr.P.C. wherein
they have claimed to have been falsely
implicated in the case on account of enmity.

(16) The defence did not lead any
evidence, whatsoever.

(17) The learned trial court after
hearing both the sides on merit and after
appraising
the
facts
and
evaluating
evidence on record returned finding of
conviction and sentenced the appellant to
ten years R.I. and life imprisonment for
offence under Section 449 IPC and under
Section 302/34 IPC, respectively.

(18) Resultantly, this appeal by the
accused- appellant.

(19) Arguments advanced by the
learned senior counsel Sri Nazrul Islam
Jafri are manifold, the probability of
commission of the offence by the present
appellant- Arvind- is highly bleak on
account of various facts and attendant
circumstances
of
this
case
and
the
testimonial description of the prosecution
witnesses of fact. The F.I.R. is ante- timed.
How is it possible that the incident
occurred at 1.30 a.m. in the night
intervening 17/18.6.1988 and the matter
was reported at the Police Station- Patwai,
district- Rampur at 2.30 A.M. and the
description about the lodging of the F.I.R.
is quite dramatic and it is claimed that one
shop was open around 2.30 a.m. from
where help was sought by purchasing
certain articles thereafter report was scribed
634 INDIAN LAW REPORTS ALLAHABAD SERIES
outside the police station then it was
lodged. It has emerged in the testimony of
the prosecution witnesses that at the time of
the lodging of the FIR, daroga ji was inside
the police station which aspect goes to
show police interference and deliberation in
scribing and lodging the written report-
Exhibit Ka-1. The source of light on the
spot is absolutely missing. Under what
circumstances when the accused were
known and resident of the same village still
they will not hide/conceal their faces while
committing the offence has not been
properly explained. In support of his claim
on point of non- concealment of faces,
learned senior counsel (for the appellant)
has placed reliance on the law laid down in
Criminal
Appeal
No.291
of
2010,
Subhash vs. State of U.P. decided on 2nd
November, 2017.

(20) The memo of torch was
deliberately and belatedly prepared by the
Investigating Officer after one month of the
occurrence itself. Moreover, the source of
light- the torch in question has not been
produced before the trial court and the
concerned witness Sompal P.W.8 has not
whispered even a single word regarding the
use of the torch and taking possession of
the same by the Investigating Officer. Fact
is that the matter was deliberated upon with
the help of the police and on account of
pending civil litigation involving landed
property/will a false case has been thrusted
upon the appellant for no worthy reason.
There are material contradictions occurring
in the statement of the prosecution
witnesses. They are wholly unreliable,
partisan and interested witnesses. Their
testimony on the whole, does not inspire
confidence. The circumstances when taken
as a whole point out that no one infact saw
the occurrence and the incident was caused
by some unknown assailant, who was not
identified till the inquest was prepared and
the relevant entries were kept empty at the
police station and after the matter was
deliberated and sorted out by the informant
side and the police, things were tried to be
filled up in a casual manner. The charges
under Sections 449, 302/34 IPC have not
been proved beyond reasonable doubt.

(21) While retorting to the aforesaid
argument, learned A.A.G. has submitted
that in this case the main incident of
shooting down the father (Nem Chand) of
the informant has been proved profusely by
the consistent testimony of the prosecution
witnesses- i.e. particularly P.W.1 Gajram
Singh and P.W.2 Hemraj. Their presence on
the spot cannot be doubted. They are the
natural persons present on the spot.

(22) The learned A.A.G. also engaged
our attention to the testimony of P.W.5
Kundan Lal and claimed that by virtue of
his testimony, it trickles out that Arvind
was one among the assailants and he was
sighted on the spot. Albeit, he turned
hostile and resiled from his statement and
he is not willing to come out specifically
against the appellant. However, in the
cross- examination participation of the
present appellant- Arvind- in the incident
cannot be ruled out as he has been spotted
on the spot by the witnesses.

(23) He further submitted that lodging
of the FIR is prompt. There is no point in
claiming it to be ante- timed and there was
no reason as such. The motive imputed for
committing the crime is also specific and
direct. In so far as the task of hiding faces
by the assailants are concerned, then the
mind set of the assailants cannot be taken
to work uniformly in all cases and it is not
a case that the assailants attempted to
commit dacoity and in the process
3-5 All. Arvind & Anr. Vs. State of U.P.
635
murdered the victim. The ill- will of the
appellant was of such degree that they
dared commit the offence in the presence of
the other inmates of the house.

(24) We have considered the rival
submissions and also considered the rival
claim made by both the parties. In view of
above, the point for adjudication of this
appeal
relates
to
fact
whether
the
prosecution has been successful in proving
charges against the appellant beyond all
reasonable doubt?

(25) The genesis of the prosecution
case is reflected from perusal of the first
information report, Exhibit Ka-1, which,
iner-alia,
contains
facts
in
form
of
allegation that some litigation regarding
landed property was pending between the
informant side and the present appellant. At
the time of the occurrence, the deceased
along with his family members was
sleeping in the courtyard of his house at
night, it was around 1/1.30 a.m. some
drizzle took place and due to drizzle, his
other family members sleeping over there
in the courtyard took their cots and were in
the process of moving inside the house
when some persons, who were standing at
the door (of the house) flashed their torches
towards the informant side, whereupon,
informant's uncles- Hemraj and Mishri-
also flashed their torches towards them,
then they saw the appellant (Arvind)
possessing countrymade gun in company
with others. The miscreants arrived in the
courtyard asked about Nem Chand and in
the meanwhile, informant's father Nem
Chand arrived in the courtyard coming out
of his house, when Arvind and other co-
accused
fired
on
him
with
their
countrymade gun, which caused gunshot
injury on the chest and stomach of the
deceased. Alarm was raised, whereupon,
the neighbours and the co- villagers
possessing torches in their hands arrived on
the spot, due to which, the assailants
escaped away from the scene. The incident
is stated to have been seen in the torch light
and the assailants identified. It was also
stated that two unknown persons were also
among
the
assailants,
who
can
be
identified, as and when they are seen. In the
concluding description, the written report
entails description that the informant and
his uncle were carrying the deceased on a
cot to the police station, but the deceased
succumbed to his injuries on way near the
police station. The dead body was stated to
be lying on the cot. The contents of the FIR
have been entered in the concerned Check
FIR and the relevant entries made in the
General Diary on 18.6.1988 at 2.30 a.m. at
Case Crime No.88 of 1988 and case was
registered at Police Station- Patwai against
the appellant in district- Rampur. The time
of the occurrence was stated to be 1.30 a.m.
on 18.6.1988.

(26) The basic contention raised on
the point of occurrence relates to fact that
the incident was not seen by anybody and
the incident was caused by some unknown
persons, but on account of pending civil
litigation, the name of the appellant has
been falsely involved in this case. It has
also been claimed that there was no motive
for the appellant to commit the offence.
Further contention is that some unknown
dacoits raided the village and they killed
Nem Chand.

(27) We carefully scrutinized the
testimony of the prosecution witnesses of
fact and particularly the informant Gajram
Singh P.W.1, Hemraj P.W.2, Mishri P.W.3,
Har Prasad P.W.4, Kundan Lal P.W.5 and
Omwati P.W.6 etc. They have given in their
description
of
the
occurrence
every
636 INDIAN LAW REPORTS ALLAHABAD SERIES
particular of the occurrence. All have stated
about the accused that he (Arvind)
participated in the offence and he in
company with other co- accused opened
fire on Nem Chand. It has also been
claimed n behalf of the appellant that
certain witnesses were not present- say- the
presence of Omwati P.W.6 is doubtful. But,
we are not impressed with the argument for
the reason that merely because the presence
of Omwati P.W.6 on the spot if doubtful,
what about the presence of the other
witnesses of fact- say- P.W.1 Gajram Singh,
P.W.2 Hemraj and P.W.3 Mishri etc.

(28) We have to scrutinize the fact
from particular angle whether, the presence
of the witnesses of fact on the spot is
natural and their testimony regarding the
occurrence is worthy of credence and their
version can be taken as truthful version or
not?

(29) With that view in mind, we have
also scrutinized the entire facts and
circumstances of the case. Now, the
admitted prevailing/existing circumstance
is that the occurrence took place in the
night intervening 17/18.6.1988 and it so
happened that the deceased along with his
family members was sleeping on the cot in
the courtyard of the house and this house is
inhabited by a number of family members
of the deceased- Nem Chand. It Drizzled in
the night around 1.30 a.m. (on 18.6.1988),
when the family members, sleeping in the
courtyard, were awakened and they tried to
move inside the house with their cots when
the incident is stated to have been caused
by the appellant by opening fire on the
deceased after arriving in the courtyard of
the house.

(30) Sri N.I. Jafri, learned senior
counsel has earnestly urged that it so
happened that all the family members, who
were sleeping in the courtyard had by that
time moved inside the house in their
respective rooms when the incident was
caused by some unknown persons and
nobody could see the real assailants.

(31) We are not ready to accept this
piece of argument in the wake of the
specific testimony of the prosecution
witnesses of fact- say- P.W.1 Gajram Singh
and P.W.2 Hemraj. They have in their
examination-in-chief as well as in crossexamination, consistently and satisfactorily
detailed about the very manner in which the
incident commenced and culminated into
death of Nem Chand. As per their
testimony, it started drizzling around 1.30
a.m. On 18.6.1988 while the deceased
along with Gajram Singh P.W.1 and Hemraj
P.W.2 and other members of the family
were sleeping in the courtyard and they
tried
to
move
inside
their
house,
simultaneously, it so happened that four
persons flashed their torch lights on them
(prosecution side) and they entered in the
courtyard, when the informant- Gajram
Singh P.W.1, Hemraj P.W.2 and Mishri
P.W.3 also flashed their torch light on the
miscreants, when they saw accused- Arvind
and Sitaram- possessing countrymade gun
in company with two others and one of the
two unknown possessing sword. The
miscreants asked P.W.2 Hemraj and P.W.3
Mishri
about
Nem
Chand,
in
the
meanwhile, the informant's father- Nem
Chand also came out of the room in the
courtyard, when fire was opened by the
appellant and one co- accused on him,
which fire hit Nem Chand on his chest and
stomach.

(32) This piece of testimony virtually
goes
unimpeachable.
Merely
because
certain trivial aberrations occur in the
3-5 All. Arvind & Anr. Vs. State of U.P.
637
testimony of the prosecution witnesses-
say- P.W.3 Mishri and P.W.6 Omwati; that
alone would not be suffice for over
throwing the entire prosecution case. For
the shake of argument, we can assume and
hold that even P.W.6 Omwati was not
present on the spot, even then the presence
on the spot of the other prosecution
witnesses- say- Gajram Singh P.W.1 and
Hemraj P.W.2 is proved satisfactorily
beyond doubt. Their conduct on the spot is
natural, it has emerged in the cross-
examination of Mishri P.W.3, as appearing
on page No.33 of the paper book that the
family members had gone inside their
rooms, but that is a casual and isolated
statement. No further cross- examination
on this aspect done. His testimony virtually
proves the presence of P.W.1 Gajram on the
spot and may be that few members of the
family were inside the house at the time of
the occurrence, but the presence of P.W.3
Mishri in the courtyard is very much there
and his testimony regarding the occurrence
is innocuous and inaccessible.

(33) Now, the point of FIR being
ante- timed is merely an argument not
whispered by any cogent evidence or
circumstance. The dead body was taken to
the police station and the FIR was scribed
outside the police station. No infirmity or
inconsistency of any sort giving rise to any
adverse circumstance is perceptible in the
testimony of the prosecution witnesses.

(34) Major thrust has been given to
the entire testimony of Omwati P.W.6 that a
wholesome reading of her testimony
negates
the
presence
of
the
other
prosecution witnesses of fact on the spot.
We have also scrutinized carefully the
entire testimony of P.W.6 Omwati as
forthcoming
about
the
occurrence.
Obviously, she is vacillating on certain
points, but she is not vacillating on the
point of the commission of the offence and
her deviation is minor, trivial and cannot be
treated to be of dubious nature. She is
partly reliable on point of occurrence, but
because
of
certain
deviations
and
contradictions in her statement in court and
recorded
under
Section
161
Cr.P.C.
Contradictions in the statement of the P.W.1
Gajram Singh, P.W.2 Hemraj and P.W.3
Mishri with the statement under Section
161 Cr.P.C. are also there but all these
contradictions are of minor and trivial
nature
but
the
substantive
evidence
regarding the occurrence being caused by
appellant is established beyond doubt.

(35) The ocular testimony of the
prosecution witnesses also finds support
from the medical testimony on record. The
post-mortem examination on the body of
the deceased was done on 18.6.1988 at 1.45
P.M., wherein, Dr. S.P. Singh P.W.11 noted
the three ante- mortem injuries and all these
three ante- mortem injuries have been
found in the shape of gunshot wounds.
Injury no.1 and injury no.3 are the gunshot
wound of entry and gunshot wound of exit.
Thus, resembling to one shot and the injury
no.2 is multiple firearm wound of entry;
each measuring 1/2 cm x 1/2 cm x left side
of abdomen. Injury no.2 must have been
caused by diffraction of pellets. There is no
blackening and tattooing found in the antemortem
injuries.
The
post-mortem
examination report has been prepared by
Dr. S.P. Singh, and it is Exhibit Ka-15. In
the opinion of doctor, the injuries caused on
the deceased could have been caused
around 2 A.M. in the concerned night (of
the occurrence).

(36) Now, the overall outcome is that
the testimony of the prosecution witnesses
regarding participation of the present
638 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant- Arvind- in the occurrence at the
relevant point of time has been innocuously
proved and established by the consistent
testimony of P.W.1 Gajram Singh, P.W.2
Hemraj and P.W.3 Mishri and the court is
duty bound to concentrate on the point of
actual occurrence and in case, actual
occurrence is found to have been proved
after evaluating the entire evidence, then to
claim that by virtue of certain minor
inconsistencies appearing in the testimony
of the prosecution witnesses, the case of the
prosecution becomes opaque and doubtful,
is not an acceptable contention under
prevailing facts and circumstances of this
case.

(37) Here the incident has been
proved beyond reasonable doubt. The
presence of the prosecution witnesses at the
time of occurrence, on the spot, is most
natural though it has been claimed that
there was no motive for committing the
offence, but we come across evidence that
some enmity on account of pending
litigation was going on and apart from that
certain light discrepancy also took place
between the informant side and the accused
prior to the incident. Moreover, it is case of
eye- account testimony where gravity or
triviality of the motive imputed shall not
create much difference in the commission
of the offence amply proved by the
testimony of the prosecution witnesses.
There is no specific suggestion to the
prosecution witnesses that they were inside
the house when the occurrence took place
and they did not see the occurrence.

(38) We further notice that the
lodging of the FIR is prompt and Sri
Umesh Chandra Mishra P.W.9- who entered
the relevant GD entry (Exhibit Ka-14) and
lodged the case against the accused has
proved the check FIR (Exhibit Ka-13).

(39) The two witnesses P.W.4 Har
Prasad and P.W.5 Kundan Lal though
named in the description of the FIR, have
not supported the prosecution case, but they
have been confronted with their statement
regarding the occurrence as noted by the
Investigating Officer under Section 161
Cr.P.C. A cumulative reading of their
testimony also establishes fact that the
incident took place in the night intervening
17/18.6.1988 and P.W.5 Kundan Lal has
specifically stated in his cross- examination
that he saw the assailants scampering away
from the house of the deceased- Nem
Chand. It appears that these two witnesses
(P.W.4 and P.W.5) have been won- over by
the defence and they are not telling the real
story. However, their testimony would not
minimise the significance of the testimony
of the other prosecution witnesses and
particularly P.W.1 Gajram Singh and P.W.2
Hemraj, who have given immaculate and
innocuous version of the incident and have
proved fact of participation of the appellant
in the incident beyond all reasonable doubt.

(40) So far as the claim of the
appellant regarding fact that the assailants
had not concealed their faces while
committing the offence is concerned, we
may observe that it is not a case where the
intention was to commit robbery or dacoity,
but here the intention was to kill Nem
Chand; and it being so the mind- set of the
assailants cannot be interpreted and judged
from their gesture while they did not hide
their faces. Further, there is no point or
circumstance
in
disbelieving
the
prosecution witnesses on the point of
occurrence, on the contrary we find that the
testimony
of
witnesses
profusely
establishes participation of the appellant in
the offence. There is no plausible reason
that the prosecution witnesses will leave
the real culprit and falsely implicate the
3-5 All. Naseem Ahmad Vs. State of U.P.
639
present appellant. Therefore, the above
contention loses significance and is not
helpful to the appellant.

(41) We have also perused carefully
the afore-cited judgement placed by the
learned senior counsel for the appellant.

In all humbleness, we may submit
that the facts of this case in hand, after
evaluation of the entire testimony is found
to be highly distinguishable from the one
referred by the learned senior counsel.
Therefore, the same is not applicable to the
given facts and circumstances of the case in
hand.

(42) It is cardinal principle of criminal
jurisprudence that prosecution would have
to prove its case beyond all reasonable
doubt
by
producing
convincing
and
clinching testimony in order to prove guilt
of the accused. Here in this case testimony
of witnesses of fact is consistent, clinching
and creditworthiness of the witnesses of
fact is found to be intact and inspiring
confidence.

(43) The above critical scrutiny
regarding
the
evidence,
facts
and
circumstances of the case goes to unravel
the truth in favour of the prosecution that it
has successfully proved the incident to
have been caused by the appellant in the
night intervening 17/18.6.1988 at 1.30
A.M. at village- Patwai, district- Rampur,
whereby, appellant- Arvind murdered Nem
Chand
by
using
countrymade
gun;
consequently, the conviction recorded and
the sentence awarded by the learned trial
Judge in Sessions Trial No.9 of 1989,
(State Vs. Arvind and another), Case
Crime No.88 of 1988, police station-
Patwai, district- Rampur is wholly justified.

(44) Arguments advanced in support
of the appellant sans merit and in the final
outcome this appeal is dismissed.

(45) Appellant- Arvind is on bail. His
bail bonds and surety bonds are hereby
cancelled. He shall be taken into custody
forthwith for serving out the sentence.

(46)

Let
a
copy
of
this
order/judgement be certified to the court
below for necessary information an follow
up action.
----------
(2020)03-05ILR A639
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crimianl Appeal No. 2546 of 2006

Naseem Ahmad ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vijay Gautam, Sri B.K. Tripathi, Sri
Mohammad Parvez, Sri Mohd. Ashraf, Sri
N.I. Jafri, Smt. Chandra Kala Chaturvedi,
Sri Manisha Chaturvedi.

Counsel for the Opposite Party:
A.G.A.

Dowry Prohibition Act, 1961- Sections
498-A, 304-B I.P.C. - Section 4 - Appeal
against conviction.

Held :- Death of wife caused by setting her
ablaze by husband - 3rd degree burns -