# Arvind Singh (In Jail) v. State of U.P. 3-5 All. Arvind Singh Vs. State of U.P

- **Citation:** Criminal Appeal No. 318 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-28
- **Case number:** Criminal Appeal No. 318 of 1996
- **Bench:** Pankaj Mithal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-singh-in-jail-v-state-of-u-p-3-5-all-arvind-singh-vs-state-of-u-p-46390
- **Pages:** 11

## Headnote

A Evidence Law - Evidence Act (1 of
1872)-Section 3 - Rule of Presumption
ofinnocence of accused - Guilt should be
proved beyond shadow of any doubt - by
cogent and reliable evidence - trial courts
should give finding on the basis of legal
proof after making objective assessment
of the evidence - Guilt is nota matter of
inference - Serious and heinous crime
requires more strict proof- seriousness of
offence itself is no ground for conviction -
Held - Trial court wrongly swayedaway by
the factof murder of the deceased (Para
25)

 B. Criminal law-Indian Penal Code (45 of
1860)-Section 302 - Murder - Evidence Act
(1 of 1872)- Section 8 - Motive - Absence
of
motive
-
Motive
isanecessaryelementofcrime
-
where
allegedeyewitnesses is not credible &
presenceof the witness is doubtful - not
alleging any motive, even a small
reason
forthe
offence,certainly
goestotherootoftheprosecution
case
-
Held
-
none
of
the
fact
witnesses
examined by prosecutionwere present and
had seen the incident - absence ofmotive
forthe offencebecomessignificant (Para 21)

C. Evidence Law- - Evidence Act (1 of
1872)-Section 118 - Chance witness -
Reliability - Murder case - Reasonfor
achance
witnessbeing
presentonthespotandhistestimonyrequires
cautious and close scrutiny. (Para 20)

D. Evidence Law- - Evidence Act (1 of
1872)-
Section
3
-
Appreciation
of
evidence of eye witness - the court should
consider the entire testimony of the
witness and look for the factors such as -
whether the witness was present on the
spot - whether the witness had seen the
incident - whether the witness is credible
(Para 19)

PW3 & PW5Akhilesh(brother of deceased)
examinedaseyewitnesses - Both claim that they
came togetherto Rurafrom Kanpur bysame train
together withthedeceased - PW5 Akhilesh, the
brother ofthedeceaseddidnothimselflodgetheFIR
and went back to Kanpur - Held - Not lodging
the
FIR
and
not
coming
for
cross
examinationandalsotheconduct that he did not
stay there and went backtoKanpurissounusual
that his presence appears tobe suspicious atthe
time of incident - PW5 evidence isnot readable
againsttheaccused (Para 18, 19)

Appeal allowed (E-5)

List of cases cited :

## Text

192 INDIAN LAW REPORTS ALLAHABAD SERIES
injury in the incident was not family
member
of
the
informant.
He
was
neighbour, proved to rushed to the scene of
incident on hearing the noise of fire and
hue and cry of injured witnesses. The
Investigating Officer was not asked any
question about any different cause of his
death than reported by the informant. In
this way it cannot be said that atleast on
preponderance of probabilities the accusedappellants have shown their case set in
defence as probable. As such the accusedappellants could not cast any doubt as
against the proved case of prosecution.

54. We therefore in answer to the
second
point
framed
by
us
for
determination in appeal, hold that accusedappellants against the proved case of
prosecution beyond all reasonable doubt
remained unsuccessful to show even on
preponderance of probabilities the case of
defence that dacoity was committed on the
date and time of incident i.e., 21/22.6.1985
in the house of informant and they were
falsely implicated by the informant by
reason of enmity. Thus, they failed to cause
any reasonable doubt against the case of
prosecution.

55. We are therefore, of the opinion that
the case of prosecution, proved by its
witnesses beyond all reasonable doubt, is
found sufficient to record conviction by the
Trial Judge and award of sentence of life
imprisonment under Section 302/34 I.P.C. and
imprisonment for three years under Section
307 I.P.C. read with Section 34 I.P.C. to the
accused-appellants.

56. Criminal Appeal No. 313 of 1986
(Jata Shanker & Ors. Vs. State of U.P.) and
Criminal Appeal No. 459 of 1986 (Raju @
Chandra Prakash Vs. State of U.P.), both
arise out of the judgment and order dated
03.05.1986 passed by learned Special Judge,
Unnao in Sessions Trial No. 406 of 1985, are
dismissed, Conviction and sentence of
accused-appellants,
namely,
Jatashanker,
Mukesh, Rakesh and Raju @ Chandra
Prakash for life imprisonment under Section
302/34 I.P.C. and rigorous imprisonment for
three years under Section 307/34 I.P.C. is
hereby confirmed. The accused-appellants,
namely, Jatashanker, Mukesh, Rakesh and
Raju @ Chandra Prakash are on bail. Their
bail bonds and surety bonds are rejected and
sureties are discharged.

The accused appellants are directed
to surrender before the court of Chief Judicial
Magistrate, Unnao within 15 days from the
date of order. In case, they do not surrender
within the aforesaid time, the Chief Judicial
Magistrate, Unnao in order to ensure
compliance shall adopt all coercive measures
in accordance with law and send them to Jail
for undergoing sentence of imprisonment.

Copy of the judgment be sent to
Sessions Judge, Unnao to ensure compliance
under intimation to this Court. Copy of the
judgment be also provided to the accusedappellants.

Office is directed to enter the
judgment in compliance register maintained
for the purpose in the Court.
----------
(2020)03-05ILR A192
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.05.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 318 of 1996

Arvind Singh ...Applicant(In Jail)
Versus
State of U.P. ...Opposite Party
3-5 All. Arvind Singh Vs. State of U.P.
193
Counsel for the Applicant:
Sri G.C. Saxena, Sri N.K. Singh, Sri
Devendra Pratap Singh[A.C]

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

A Evidence Law - Evidence Act (1 of
1872)-Section 3 - Rule of Presumption
ofinnocence of accused - Guilt should be
proved beyond shadow of any doubt - by
cogent and reliable evidence - trial courts
should give finding on the basis of legal
proof after making objective assessment
of the evidence - Guilt is nota matter of
inference - Serious and heinous crime
requires more strict proof- seriousness of
offence itself is no ground for conviction -
Held - Trial court wrongly swayedaway by
the factof murder of the deceased (Para
25)

 B. Criminal law-Indian Penal Code (45 of
1860)-Section 302 - Murder - Evidence Act
(1 of 1872)- Section 8 - Motive - Absence
of
motive
-
Motive
isanecessaryelementofcrime
-
where
allegedeyewitnesses is not credible &
presenceof the witness is doubtful - not
alleging any motive, even a small
reason
forthe
offence,certainly
goestotherootoftheprosecution
case
-
Held
-
none
of
the
fact
witnesses
examined by prosecutionwere present and
had seen the incident - absence ofmotive
forthe offencebecomessignificant (Para 21)

C. Evidence Law- - Evidence Act (1 of
1872)-Section 118 - Chance witness -
Reliability - Murder case - Reasonfor
achance
witnessbeing
presentonthespotandhistestimonyrequires
cautious and close scrutiny. (Para 20)

D. Evidence Law- - Evidence Act (1 of
1872)-
Section
3
-
Appreciation
of
evidence of eye witness - the court should
consider the entire testimony of the
witness and look for the factors such as -
whether the witness was present on the
spot - whether the witness had seen the
incident - whether the witness is credible
(Para 19)

PW3 & PW5Akhilesh(brother of deceased)
examinedaseyewitnesses - Both claim that they
came togetherto Rurafrom Kanpur bysame train
together withthedeceased - PW5 Akhilesh, the
brother ofthedeceaseddidnothimselflodgetheFIR
and went back to Kanpur - Held - Not lodging
the
FIR
and
not
coming
for
cross
examinationandalsotheconduct that he did not
stay there and went backtoKanpurissounusual
that his presence appears tobe suspicious atthe
time of incident - PW5 evidence isnot readable
againsttheaccused (Para 18, 19)

Appeal allowed (E-5)

List of cases cited :

1.
Raj
Kishore
Jha
Vs
St.
of
Bihar
2003(47)ACC1068(SC)

2. Chittarlal Vs. St. of Raj. (2003)6SCC397

3. Kallu Vs. St. of Har. AIR2012SC3212

4. Ramesh Vs St. of UP 2010 (68)ACC219(SC)

5.
JarnailSingh
Vs
St.
of
Punjab
2009
(67)ACC668(SC)

6.
Rang
BahadurSingh
Vs
St.
of
UPAIR2000SC1209

7. St. of UP Vs Ram Veer Singh 2007 (6)
Supreme164

(Delivered by Hon'ble Pankaj Mithal, J.
&
Hon'ble Pradeep Kumar Srivastava, J.)

1. Heard Sri Devendra Pratap Singh,
learned Amicus Curiae for the appellant,
Sri Ajit Ray, learned AGA and perused the
record.

2. This criminal appeal has been
preferred against the judgment and order
dated
20.02.1996,
passed
by
Vth
194 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Sessions Judge, Kanpur Dehat,
in Sessions Trial No. 26/89 (State v Arvind
and others), under Sections 302 and 120B
IPC, Police Station Roora, District Kanpur
Dehat by which the accused-appellant
namely Arvind Singh has been convicted
and sentenced for the offence under Section
302 IPC for life imprisonment along with
fine of Rs. 1000/- and in default of fine one
year additional rigorous imprisonment,
whereas he has been acquitted from the
charge under Section 120B IPC.

3. Brief facts of the case is that a first
information report was lodged by Munnu Singh
(Home Guard) in respect of a criminal incident
dated 24.08.1988 at 08:45 PM. The informant
is a Home Guard in the village Maizu Mau,
Police Station Roora, was on surveillance duty
with Home Guards Ghasite Lal, Pancham Lal
and Govind Singh in the town and when they
were coming from the side of canal to the
railway station, at about 08:45 PM, reached in
front of town area office on the road. They
heard somebody crying Bachao-Bachao from
the side of shop of Naresh Kumar. All ran
towards the sound raising alarm. They saw that
on the road side two persons having Gandasa
and axe were assaulting a person. They
challenged and seeing them, both the persons
ran towards the north of the street and despite
efforts made by them, they could not be caught.
They saw two persons in the light of torch and
electricity and can identify them if they come
before them. They saw that a person was lying
dead on the spot sustaining injuries. The injuries
were bleeding. Many persons reached there and
seeing the deceased they said that the deceased
person was Aditiya Kumar son of Krishna
Bihari Dixit of town Roora. The informant,
leaving behind the other Home Guards there,
gave an oral information in the police station
and on the basis of it, the offence was registered
under Section 302 IPC against two unknown
persons. On investigation, names of accused
persons Arvind Singh, Babua and Sunil Singh
came in light. The dead body was taken into
possession, inquest report and necessary papers
for postmortem was prepared, the dead body
was sealed and sent to the District Hospital,
Kanpur Nagar for postmortem. The torch of the
guard was taken into possession, memo was
prepared and the torch was delivered back to
him. Blood stained and plain earth was
collected from the spot and was kept in two
separate containers which were sealed and
memo was prepared. After taking the evidence
of
the
witnesses
and
completing
the
investigation, charge sheet was submitted
against all the three accused persons for the
offence under Sections 302 and 120B IPC.
Charges were framed for the aforesaid offences
against all the accused persons who denied
charges and claimed trial. It appears from the
impugned judgment that after six witnesses
were examined, accused Jaipal Singh @ Bauwa
absconded and the trial court separated his file
by order dated 29.01.1993, registered as ST No.
26A/89 and thereafter the statement of other
witnesses were recorded. On completion of the
prosecution evidence, the Statement of the two
accused persons were recorded under
Section 313 CrPC who put forward the case
of denial and stated that they have been
falsely implicated in the case due to enmity
and with the consultation of the police, the
report was lodged. In defence, the accused
persons have filed Ext. Kh-1 which is copy
of FIR under section 171/332 IPC against
Sone Lal, lodged by accused Ramswaroop
for committing marpeet and causing
obstruction in election process. The learned
trial court has noted that accused is neither
named nor it has any relation with him.

4. After perusing the evidence and
hearing the counsel of both the parties, the
learned trial court acquitted accused Sunil
for the offence under Sections 302/120B
IPC and also acquitted accused Arvind for
3-5 All. Arvind Singh Vs. State of U.P.
195
the offence under Section 120B IPC.
Accused Arvind was, however, convicted
and sentenced for the offence under Section
302 IPC.

5. Feeling aggrieved by the impugned
judgment, the appellant has filed this
criminal appeal challenging the impugned
judgment stating that to be against the
weight of evidence on record. The
prosecution failed to prove the guilt beyond
reasonable doubt and the awarded sentence
is too severe, therefore, the impugned
judgment is liable to be set aside and the
accused-appellant is entitled for acquittal.

6. The prosecution has examined as
many as seven witnesses in support. PW1 Munnu Singh (informant) has proved
his oral report and has given the evidence
about the incident. PW-2 Govind Singh,
Home Guard and PW-3 Rakesh Kumar
Gupta are the witnesses of fact. PW-4 SI
S.B. Mishra has proved the inquest report
and other papers which were prepared for
the purpose of sending the dead body for
postmortem. He has also proved the
memo of two slippers of the deceased and
memo of blood stained and plain earth.
PW-5 Akhilesh Kumar is also a witness
of fact. PW-6 Dr. A. Rahman (Senior
Medical
Officer)
has
proved
the
postmortem report. PW-7 Inspector R.P.
Singh is the Investigating Officer. All
these witnesses have proved chik FIR
Ext. Ka-1, inquest report Ext. Ka-2,
challan dead body Ext. Ka-3, photo nash
Ext. Ka-4, letter to CMO Ext. Ka-5, letter
to RI Ext. Ka-6, sample seal Ext. Ka-7,
memo of sleepers Ext. Ka-8, memo of
blood stained and plain earth Ext. Ka-9,
postmortem report Ext. Ka-10, site map
Ext. Ka-11, memo of torch Ext. Ka-12,
charge sheet Ext. Ka-13 and Material
Exts. 1 to 3.

7. The submission of the learned
Amicus Curiae for the appellant is that all
the prosecution witnesses have given false
evidence
and
the
discrepancy
and
improvement made by them goes to show
that they are not consistent and reliable.
PW-5 is the brother of the deceased and has
been examined as eye witness. He has not
been produced for cross-examination and
instead of lodging any FIR, he went back to
Kanpur. It has also been submitted that the
informant was declared hostile. Accused
Sunil has been already acquitted by the
learned trial court. On the other hand,
learned AGA has submitted that the learned
trial court on the basis of evidence on
record has convicted the accused and there
is no illegality in the impugned judgment.

8. At this stage, it appears necessary
to look at the evidence of prosecution in
this case. PW-1 Home Guard Munnu Singh
(informant) has stated that on 24.08.1988,
he was on surveillance duty in the town
Roora with Home Guards Ghaseta Lal,
Pancham, Ram Prasad and Govind. When
they were coming back from the side of
canal to the railway station through road, at
about 09:00 PM, in the night, they heard
the sound of Bachao-Bachao near the town
area. They rushed towards the sound,
whereupon, the assailants ran away. It was
raining and in the dark night he could not
see the assailants. After the incident, 5 to
10 persons gathered there and they
recognized the deceased to be the son of
Pandit Ji. This witness has been declared
hostile.

9. PW-2 Home Guard Govind Singh
has also stated that on 24.08.1988, when he
along with Home Guard Munnu Singh,
Ghaseta Lal, Pancham and Ram Prasad was
coming from the side of canal and was
going towards the town area, they heard the
196 INDIAN LAW REPORTS ALLAHABAD SERIES
voice of Bachao-Bachao. It was 09:00 PM
and on hearing the voice, they rushed
towards the voice making sound of PakdoPakdo. He saw that Arvind with axe and
Bauwa Singh with gandasa were assaulting
the deceased Aditiya. They tried to catch
them but they ran away from there. The
witness has also stated that besides these
two, accused Sunil Kumar was also there,
who ran away towards the house of Ram
Swaroop. They came back and found that
Aditiya was lying dead. They saw the
incident in the light of torch and electricity.
Home Guard Munnu Singh went to give
information to the police station.

10. PW-3 Rakesh Kumar Gupta has
stated that on 24.08.1988, Aditiya Kumar
was killed. On that day, he had come from
Kanpur to Roora by Shatal (train) and was
going to his house from Roora Station with
Aditiya Kumar and Akhilesh. When they
reached in front of the clinic of Dr. Naresh,
accused Sunil stopped and started talking to
Aditiya. At that time Arvind, Bauwa singh
and Ram Swaroop Singh were also present.
Accused Arvind having an axe, Bauwa
with gandasa started assaulting Aditiya by
gandasa and axe. Ram Swaroop exhorted
to kill the deceased. This incident took
place at about 08:45 PM. On being
assaulted, Aditiya fell down. The incident
was seen by him, Akhilesh and Prakash
Gupta and the five Home Guards who
challenged the assailant, whereupon, the
accused persons ran away and behind them
accused Sunil also rushed away on his
cycle. The Home Guards chased them. The
deceased died on spot and he went to his
house. In the light of bulb and torch, he saw
the incident and identified the accused
persons.

11. PW-4 SI S.B. Mishra has stated
that on 24.08.1988, he along with SO R.P.
Yadav went to the place of occurrence and
he prepared the inquest report and sealed
the dead body. He also prepared necessary
papers for postmortem and with the papers,
handed over the dead body to Constables
Rama Shanker and Brahama Nand for
postmortem.

12. PW-5 Akhilesh Kumar is the
brother of deceased. He has stated that on
24.08.1988, he and the deceased were
coming from Kanpur by Shatal train to
Roora and were going to their house.
Rakesh and Prakash were also on the train
who were also accompanying them. When
they reached to the clinic of Dr. Naresh,
accused Sunil stopped the deceased and
started talking. Accused persons Arvind
Singh,Bauwa Singh and one Ram Swaroop
were also present there. Arvind Singh and
Bauwa with axe and gandasa started
assaulting the deceased. Ram Swaroop
exhorted them to kill the deceased. The
deceased
was
crying
Bachao-Bachao,
whereupon the Home Guards came and in
the light of torch they saw the accused and
the incident. Accused Sunil ran away
towards the house of Ram Swaroop and
remaining accused persons ran away
towards the north. This incident took place
at 08:45 PM. He has stated that his brother
had died. He came back to Kanpur to
inform his father.

13. PW-6 is Dr. A. Rahman has stated
that on 25.08.1988, he was posted as
Medical Officer, T.B. Isolation Hospital
and at 02:10 PM, he conducted postmortem
of the dead body of Aditiya Kumar and
prepared the postmortem report which is
Ext. Ka-10. The deceased must have died.
The deceased must have died 3/4 day
before and there may be six hours
difference in either side. On external
examination, it was found that the deceased
3-5 All. Arvind Singh Vs. State of U.P.
197
was average built, rigor mortise was
present in the upper and lower limb. Mouth
was closed but the right eye was open. The
following ante-mortem injuries were found
on the body of the deceased:

(1) 8 cm. X 1 1⁄2 cm. X underline
bone clean cut on right side of head, 7 cm.
above
right
ear,
directed
downwards,
backwards + to right, right parietal bone found
clean cut. Edges clean cut. no fiver or tissue in
the gap of wound.

(2) Incised wound 9 cm. X 1 1⁄2 cm. X
bone deep, 1 1⁄2 cm. below + parallel to injury
no. 1, same nature of wound.

(3) Incised wound 7 cm. X 1 1⁄2 cm. X
bone deep, 2 cm. above + behind right ear
oblique downwards + backwards, edges clean
cut.

(4) Incised wound 8 cm. X 1⁄2 cm.
horizontal on back of head, underlying bone
found clean cut, 3 cm. behind the injury no. 3.

(5) Incised wound 10 cm. X 2 1⁄2 cm.
X cavity deep, 4 cm. above injury no. 4 +
parallel to it, edges clean cut.

(6) Incised wound 8 cm. X 2 cm. X
on back of head vertically crossing the injury
no. 5, edges + bone clean cut.

(7) Incised wound 8 cm. X. 2 cm.
horizontally 2 cm. above back of left ear, edges
+ bone clean cut.

(8) Incised wound 16 cm. X 3 cm. X
cavity deep of left side of head from the mid line
of the forehead, 2 cm. down to mid line, edges
+ bone (temporal + left perital clean cut).

(9) Incised wound 3 1⁄2 cm. X 2 cm. X
alna side of right forearm, alna found cut,
edges + bone clan cut.

(10) Incised wound 7 cm. X 3 cm. X
bond deep of outside of left knee, clean cut,
edges clean cut horizontally.

(11) Incised wound 2 1⁄2 cm. X 1 1⁄2
cm. X muscle deep, 2 cm. below injury no. 10,
edges clean cut horizontally.

(12) Incised wound 4 cm. X 2 cm. X
muscle deep in middle of left pop on literal
region horizontally, edges clean cut.

The doctor has said that all wounds
were clean cut edges and there was no
interlocutory tissue in the gaps of the wound. In
the internal examination, it was found that right
parietal, left parietal + frontal bone were found
clean cut under above lying injuries as
mentioned. Membranes cut under injury nos. 5
and 8. Brain tissues out from injury no. 8. Both
chambers of the heart were found empty.
According to doctor, the death was due to shock
and hemorrhage resulting out of ante-mortem
injuries.

14. PW-7 R.P. Singh (Investigating
Officer) has stated that on 24.08.1988 at 09:10
PM, in the night, the offence was registered on
the oral report of Home Guard Munnu Singh
and the chik was prepared by Head Constable
Ram Baran. He went to the spot and took the
statement of Munnu. Inquest report was
prepared by SI S.D. Mishra on his direction and
necessary papers were also prepared. The dead
body was sealed and sent for postmortem. The
statement of the inquest witnesses was
recorded. By the statement of Home Guard
Govind Singh, the name of accused persons
came in light and on his identification the site
map was prepared. The statements of other
witnesses namely Bhagwan Singh, Om
Prakash, Akhilesh and Rakesh Kumar etc. were
recorded by him. The statement of Home
Guards Ghasita Lal, Ram Prasad, Pancham Lal
was also recorded. The torch of Home Guard
Govind Singh was taken into possession and
memo was prepared and torch was given back
to him. On 05.12.1988, he was transferred and
the investigation was given to SI T.P. Singh
who submitted charge sheet against the accused
persons. The witness has proved the charge
sheet and GD report as he had seen SI T.P.
Singh writing and signing.
198 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Coming to the FIR which has
been lodged by HG Munnu Singh orally in
the concerned police station. On 24.8.1988,
the incident allegedly took place at 8.45
PM and the FIR has been lodged on the
same day at 9.10 PM and there appears to
be no delay as the police station is situated
at a distance of only 2 furlong. The place of
occurrence as shown by IO is according to
FIR and the same has been proved by all
the fact witness. Place where dead body
was found as described in the inquest report
and from where blood stained and plain
earth was taken also corroborated the place
of occurrence. In the postmortem report, it
has been mentioned that the deceased died
at the time and date alleged by prosecution
because of the twelve serious injuries found
on the body of deceased which were caused
by sharp weapon. The only thing which
was to be determined by the trial court was
whether the accused persons including
appellant caused death of the deceased.

16. Five home guards who were on
surveillance duty allegedly saw the incident
and only two of them have been examined.
Allegedly, they saw the assailants and
could recognize them by face. They did not
know the names of assailants. PW-1
Informant Munnu Singh has stated that
after the incident, 10 to 5 persons reached
there and recognized the dead person as
Aditya Kumar s/o Krishna Bihari Dixit of
town Rura. Clearly, no body could tell the
name of the assailants, otherwise, named
FIR must have been lodged. PW-2 Govind
has also stated that after chasing the
assailants, when they came back, 10-20
persons
were
gathered
there
who
recognized and disclosed the name of the
deceased. PW-1 has stated that it was rainy
dark night and he could not see the
assailants. He could not recognize the
assailant as the moment they rushed
towards sound, the accused fled away from
there. He has stated in the crossexamination that despite electric bulb, there
was power cut at the time of incident. The
5-10 persons who reached there came after
the accused persons fled away from there.
He has further stated that after report was
lodged, it was not read over to him. He is
illiterate and he just signed over the chick.
This witness has been declared hostile as he
has disowned the FIR by saying that FIR
was not read over to him and that he did
not see the assailant. Thus, PW-1 has stated
nothing
to
support
prosecution
case
showing involvement of the accused
persons in the commission of the offence.
He has clearly stated that because of
darkness and rain, he could not see and
recognize the assailants. It is clear from the
above discussion that by the time FIR was
lodged, the name of the assailants was not
known and people reached after the
incident.

17. PW-2 Govind Singh brings a shift
and in examination-in-chief, took the name
of accused Arvind with axe and Babua
Singh with gandasa and has stated that they
were assaulting Aditya. With these two
accused persons, accused Sunil was also
there who ran away by cycle from the side
of the house of Ramswarup. It appears
strange. In the FIR accused persons are not
named. People gathered there came after
incident. But, PW-2 has deposed as if he
was knowing the accused persons and the
deceased by their name and he said it to the
informant. If it was so, there should have
been a named FIR as there was nothing to
prevent the informant to lodge named FIR
against the accused persons. This gives a
valid point to determine whether at the time
of lodging FIR, the assailants were known
to the witness. It has been nowhere stated
by the witness that he was acquainted with
3-5 All. Arvind Singh Vs. State of U.P.
199
the accused persons prior to the incident.
He has also not disclosed the name of any
person who might have told the name of
the assailants. During cross-examination,
PW-2 has stated that they heard 'bachao
bachao' when they were at town area office
which was at the distance of 50 to hundred
yards away from the spot and when they
reached there, they found the deceased
lying there. It was a cloudy whether but it
was not raining and they chased the
accused and on return, they found 15-20
persons gathered there and they told that
the deceased is Aditya. He further states
that from town area office, on hearing
sound of 'bachao bachao' they shouted not
to kill the deceased and then the assailants
ran away. They all chased and behind their
back he lit the torch and saw them from
their back but could not see their face. The
witness has tried to cover by saying that
anybody can be recognized from the back.
In our opinion, it is possible only when the
accused is known and acquainted but in
absence of such positive evidence, it cannot
be
believed
that
the
witness
could
recognize the accused persons from the
back in torch light in the cloudy dark night.
The witness has said that when he lit the
torch, the accused persons were not
assaulting but running away. It goes to
show that this witness even did not see the
accused persons assaulting. The witness
has said that at the time of preparing
inquest report, he had disclosed the name
of accused persons and it was mentioned in
the inquest report. We have perused the
inquest report and we find that the name of
the accused persons is not mentioned
therein. Moreover, PW-2 Govind is not a
witness of inquest report. He has stated that
he disclosed the name of the assailants to
the informant. This also appears to be false
as the informant has not named the accused
persons in FIR. On the basis of above
analysis of the evidence and apparent
discrepancy and substantial improvement
in the testimony, we are of the view that
PW-2 is not trustworthy and reliable.

18. PW-3 Rakesh Kumar Gupta and
PW-5 Akhilesh have been examined as
eyewitnesses. Both claim that they came
together to Rura from Kanpur by same train
together with the deceased. There is no
evidence on record that soon before the
incident some train arrived there. It was
necessary as PW-1 and PW-2 have not
stated that these two witnesses were present
and saw the incident. On the contrary the
people reached there after the incident. Had
they been present, they must have signified
it to the Home Guards. But, there is nothing
as such in the statement of any of the
witnesses.
They
have
stated
the
involvement of not only two accused
Arvind and Babua Singh, but also of
accused Sunil who stopped the deceased
and started talking with him and of
Ramswarup
extorting
the
two
main
accused. On the contrary both have stated
that the assailants ran away from there the
moment the home guards reached. The
most strange and unnatural conduct of
these two witnesses is that PW-3 did not
stay there and returned home, whereas,
PW-5 Akhilesh, the brother of the deceased
did not himself lodge the FIR and went
back to Kanpur. None of them has stated
that they disclosed the names of accused
persons to the Home Guards. PW-5 has not
even appeared nor has been produced for
cross-examination and his evidence is not
readable against the accused. Not lodging
the FIR and not coming for crossexamination and also the conduct that he
did not stay there and went back to Kanpur
is so unusual that his presence appears to
be suspicious at the time of incident. Both
have stated that on being assaulted, when
200 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased fell down, the home guards
reached. If it was so, there was no question
of FIR being lodged against unnamed
persons. PW-1 and PW-2 have not stated
that at the time of incident, the brother of
the deceased was present and he saw the
incident. Had he been present at the time of
incident, there could have been no occasion
for PW-1 to lodge FIR. Normally, FIR is
lodged by police when no one has either
seen the incident or the assailants and
deceased are unknown and not identified.

19. While appreciating the evidence
of a witness claiming to have seen the
incident, the court has to consider the entire
testimony of the witness and look for the
factors such as 1. whether the witness was
present on the spot; 2. whether the witness
had seen the incident and 3. whether the
witness is credible. Pw-1 and PW-2 have
not stated that PW-3 was present there at
the time of incident. But, PW-5, the brother
of the deceased, has not been produced for
cross-examination and his statement cannot
be read to support the claim of PW-3 that
he came with the deceased and his brother
together by the same train.. He did not
come forward at the time of incident to
disclose the name and identity of the
accused persons. He himself has stated that
he did not talk to any of the home guards
and he straight forward moved towards his
home. It is clear that the witness is not
named in FIR nor the IO has marked the
place in the site map from where he saw the
incident. We are conscious of the settled
proposition of law that it is not necessary
that eyewitnesses should be necessarily
mentioned in the FIR. It has been held in
Raj Kishore Jha v State of Bihar,
2003(47) ACC 1068 (SC) and Chittarlal
Vs. State of Rajasthan, (2003) 6 SCC
397, mentioning of names of all witnesses
in FIR or in statements u/s 161 CrPC is not
a requirement of law and non-mentioning
of the name of any witness in the FIR
would not justify rejection of evidence of
the eye-witness. But, in the facts and
circumstances of this case where the name
of accused persons was not known till
lodging of FIR and PW-1 and PW-2 do not
state regarding presence of the witness and
say that people gathered there after the
incident, the non-mentioning of the name
of PW-3 in FIR becomes significant to
support the conclusion that there is no
evidence to establish his presence at the
time of occurrence.

20. There is no evidence that PW-3 or
his family live close to the place of
occurrence or at the alleged time he used to
be there usually. It was rainy and cloudy
season and unless for good reason, the
witness was not supposed to be there. He
came from train from Kanpur is a fact
which is not supported by any evidence.
The brother of the deceased was with him
but as he has not been produced for crossexamination, his evidence cannot be read to
support this fact. It shows that PW-3 was
maximum a chance witness and it has been
held by the Supreme Court in Kallu v
State of Haryana, AIR 2012 SC 3212,
Ramesh v State of UP, 2010 (68) ACC
219 (SC) and Jarnail Singh v State of
Punjab, 2009 (67) ACC 668 (SC) that the
reason for a chance witness being present
on the spot and his testimony requires
cautious and close scrutiny. If considered
from that angle also, since he is a witness
whose very presence at the time of incident
has been found to be doubtful, his evidence
cannot be relied to record conviction.

21. We also find that none of the fact
witnesses have stated any motive for the
offence. There was no quarrel between the
deceased or his family and the accused
3-5 All. Arvind Singh Vs. State of U.P.
201
persons or their family earlier or at the time
of incident. There is no evidence of
community of interest or conflict of interest
between two sides, nor it has been brought
on record that there was any neighborhood
jealous, group or local rivalry between
them. The prosecution has based the
prosecution on the basis of eye-witness
account and direct evidence. It is true that
absence, lack or inadequacy of motive goes
to the back seat and is not significant in the
cases based on direct evidence. But, the
discussion so far shows that none of the
fact witnesses examined by prosecution can
be said to be present and had seen the
incident. Therefore, absence of motive for
the offence is significant. Motive is a
necessary element of crime which prompts
the offender to commit crime and it is not
normal that an offence will be committed
for no reason, small or big. Moreover,
where the account of alleged eye-witnesses
is not credible and the presence of the
witness is doubtful, not alleging any
motive, even a small reason for the offence,
certainly goes to the root of the prosecution
case.

22. There is yet another factor. The
offence has been alleged to have been
committed by axe and gandasa. The CD
dated 3.9.1988 makes a mention that the
accused persons were in jail by 30.8.1988,
within 4-5 days from the date of incident. It
appears on record that neither their
statement was recorded by IO nor they
were taken on police remand nor any effort
was made to recover the axe and gandasa
used for the commission of offence. The
medical evidence shows that all the injuries
found on the dead body were incise wounds
and the doctor has stated that edges of all
wounds were clean cut. Axe and gandasa,
normally, are heavy sharp weapons. To
ascertain that the nature of said injuries
were possible by axe and gandasa, the
recovery of weapon could have been
useful. No explanation has been furnished
by the prosecution why no such effort was
made to recover the weapons. It appears to
be a very material lapse committed by the
IO because of which a relevant evidence
could not be placed before the learned trial
court which was necessary to arrive at a
correct conclusion.

23. The criminal jurisprudence in the
country is based on the principle that unless
the guilt is established convincingly on the
basis of evidence on record, none should be
punished. In Rang Bahadur Singh v State
of UP AIR 2000 SC 1209, the Supreme
Court has observed:

"The time-tested rule is that
acquittal of a guilty person should be
preferred to conviction of an innocent
person. Unless the prosecution establishes
the guilt of the accused beyond reasonable
doubt a conviction cannot be passed on the
accused. A criminal court cannot afford to
deprive liberty of the appellants, lifelong
liberty,
without
having
at
least
a
reasonable level of certainty that the
appellants were the real culprits."

24. Similarly, in State of UP v Ram
Veer Singh 2007 (6) Supreme 164 the
Court reiterated the above principle and
remarked as follows:

"The paramount consideration of
the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of
justice, which may arise from acquittal of
the guilty is no less than from the
conviction of an innocent."

25. In this instant case, the learned
trial court appears to have been swayed
202 INDIAN LAW REPORTS ALLAHABAD SERIES
away by the fact of murder of the deceased.
Guilt is not a matter of inference and it
should be proved beyond shadow of any
doubt by cogent and reliable evidence. The
principle which governs the criminal
jurisprudence
is
the
presumption
of
innocence in favour of accused. Serious
and heinous crime requires more strict
proof and seriousness of offence itself is no
ground for conviction. The trial courts have
to give finding on the basis of legal proof
after making objective assessment of the
evidence. The FIR was against unknown
persons and the informant was declared
hostile.
Another
witness
who
was
accompanying the informant could not
convincingly state that he was acquainted
with the accused persons. He only saw the
accused persons from their back and
appears to be more probable that he could
not recognize them. There was no other
witness according to him and therefore, the
presence of PW-3 at the time of incident is
falsified. The own brother of the deceased
has
not
been
produced
for
crossexamination. He did not lodge FIR went
back to Kanpur. Both these witness did not
participate
in
inquest
proceeding
or
disclose their presence to the IO who came
there soon after the incident. Therefore, the
conduct of these witnesses is unnatural and
it gives rise to the probability that they
neither saw anything nor they were present.
No motive has been alleged nor any enmity
has been shown between two sides which
also creates doubt on the prosecution case.

26. On the basis of above discussion,
we find that the learned trial court has
based it's judgment on totally untrustworthy
and unreliable evidence ignoring inherent
infirmities in the prosecution version and
the material contradiction, inconsistencies
and substantial improvement made by the
fact witnesses. The learned trial court has
acquitted the co-accused Sunil which
shows that prosecution version was found
incorrect at least in respect of one accused.
As such there is apparent perversity and
illegality in the impugned judgment and the
same is not sustainable under law and is
liable to be set aside.

27. Consequently, this criminal appeal
is allowed. The impugned judgment dated
20.2.1996 passed in ST no. 26/1989 is set
aside. The accused-appellant Arvind Singh
is therefore acquitted from the charge under
section 302 IPC.

28. Sri Devendra Pratap Singh,
learned Amicus Curiae shall be paid Rs.
Ten Thousands only for the assistance and
legal
service
provided
by
him
in
conducting this appeal for the accusedappellants.

29. Office is directed to transmit the
lower court record along with a copy of this
judgement to the learned court below for
information and necessary compliance.
----------
(2020)03-05ILR A202
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 323 of 1983

Sonpal Singh & Anr.
 ...Appellants on Interim Bail
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Y.K. Shukla, Sri Sudhakar Yadav, Sri
B.K.Tripathi

Counsel
for
the
Respondent: