# Ashok Kumar v. The State

- **Citation:** (2016) 7 ILRA 715
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-20
- **Bench:** Surendra Vikram Singh Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-v-the-state-44203
- **Pages:** 11

## Headnote

Penal Code, 1860 - S. 302 - Murder - Conviction - Ocular evidence -

Held, conviction justified where prosecution case proved by reliable eyewitnesses - PW-1 and PW2 natural witnesses; their presence established and testimony consistent with medical evidence - Relationship
of witness not a ground to discard evidence (paras 15-18, 25).

Evidence Act, 1872 - S. 134 - Sole witness -

Held, conviction can be based on testimony of a single reliable witness - It is quality and not
quantity of evidence which is material (para 17).
716 INDIAN LAW REPORTS ALLAHABAD SERIES

Inquest report - Scope -

Held, inquest report is not substantive evidence - Minor discrepancies or delay in postmortem/inquest
do not affect prosecution case (paras 20-21).

Motive - Direct evidence -

Held, in cases based on direct evidence, motive loses significance - Absence of motive not fatal when
ocular evidence is reliable (para 26).

Result- Appeal dismissed - Conviction under S. 302 IPC affirmed - Bail cancelled (para 29).

Cases cited

Nand Kumar versus State of Chhatisgarh (2015) 1 SCC 766
Namdev versus State of Maharashtra (2007) 14 SCC 150
Sudip Kr. Sen and Others V. State of West Bengal and Others MANU/SC/0013/2016
Prithipal Singh and Ors. V. State of Punjab and Anr. MANU/SC/1292/2011 : (2012) 1 SCC 10
Vadivelu Thevar V. State of Madras AIR 1957 SC 614
Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC 367
Namdeo V. State of Maharashtra (2007) 14 SCC 150
Bipin Kumar Mondal v. State of W.B. (2010) 12 SCC 91
Deny Bora V. State of Assam (2014) 14 SCC 22
Madhu alias Madhuranath and Another versus State of Karnataka (2014) 12 SCC 419
Pedda Narayana v. State of A.P. (1975) 4 SCC 153
Rameshwar Dayal v. State of U.P. (1978) 2 SCC 518
Kuldip Singh v. State of Punjab 1992 Supp (3) SCC 1
George v. State of Kerala (1998) 4 SCC 605
Suresh Rai v. State of Bihar (2000) 4 SCC 84
Munshi Prasad v. State of Bihar (2002) 1 SCC 351
Gopal Singh versus State of U.P. (1978) 3 SCC 327
Bhagwan Dass versus State of Rajasthan (1974) 4 SCC 781
Habib versus State of Uttar Pradesh (2013) 12 SCC 568
Subodh Nath and Another versus State of Tripura (2013) 4 SCC 122
Darbara Singh versus State of Punjab (2012) 10 SCC 476
Sanjeev versus State of Haryana (2015) 4 SCC 387

## Text

7 All. Ashok Kumar Vs The State
715
37. In the entirety of the facts and circumstances, we are satisfied that applicant is a person,
who has not only acted with mala fide against opposite party by going to any extent but even
otherwise is a mischievous person and his attitude, conduct and action constitute a serious
apprehension for smooth and impartial functioning of judiciary. He is a person, who has filed this
application, which clearly lacks bona fide and, therefore, it deserves to be dismissed with
exemplary costs for the reason that he has tried to malign not only image of a Judicial Officer,
whose integrity was not doubted even by advocates at District Judgeship at Jalaun at Orai, where
the incident, as noticed above, took place but this also is likely to create a bad precedent, if not
checked at this stage, and nipped at bud.

38. The application, therefore, is dismissed with costs of Rs.2,50,000/- (Rupees Two lakhs
fifty thousand only). The cost shall be deposited by applicant within six months from today in
District Treasury, Jalaun failing which District Magistrate concerned shall be entitled to recover the
said amount as arrears of land revenue from applicant.
------------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.07.2016

BEFORE

THE HON'BLE SURENDRA VIKRAM SINGH RATHORE, J.
THE ANIL KUMAR SRIVASTAVA-II, J.

Criminal Appeal No.- 555 Of 1981

Ashok Kumar ...Appellant
Versus
The State ...Respondent

Counsel for the Appellant:
Mayank Mishra, U.P. Singh

Counsel for the Respondent:
Govt. Advocate

Penal Code, 1860 - S. 302 - Murder - Conviction - Ocular evidence -

Held, conviction justified where prosecution case proved by reliable eyewitnesses - PW-1 and PW2 natural witnesses; their presence established and testimony consistent with medical evidence - Relationship
of witness not a ground to discard evidence (paras 15-18, 25).

Evidence Act, 1872 - S. 134 - Sole witness -

Held, conviction can be based on testimony of a single reliable witness - It is quality and not
quantity of evidence which is material (para 17).
716 INDIAN LAW REPORTS ALLAHABAD SERIES

Inquest report - Scope -

Held, inquest report is not substantive evidence - Minor discrepancies or delay in postmortem/inquest
do not affect prosecution case (paras 20-21).

Motive - Direct evidence -

Held, in cases based on direct evidence, motive loses significance - Absence of motive not fatal when
ocular evidence is reliable (para 26).

Result- Appeal dismissed - Conviction under S. 302 IPC affirmed - Bail cancelled (para 29).

Cases cited

Nand Kumar versus State of Chhatisgarh (2015) 1 SCC 766
Namdev versus State of Maharashtra (2007) 14 SCC 150
Sudip Kr. Sen and Others V. State of West Bengal and Others MANU/SC/0013/2016
Prithipal Singh and Ors. V. State of Punjab and Anr. MANU/SC/1292/2011 : (2012) 1 SCC 10
Vadivelu Thevar V. State of Madras AIR 1957 SC 614
Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC 367
Namdeo V. State of Maharashtra (2007) 14 SCC 150
Bipin Kumar Mondal v. State of W.B. (2010) 12 SCC 91
Deny Bora V. State of Assam (2014) 14 SCC 22
Madhu alias Madhuranath and Another versus State of Karnataka (2014) 12 SCC 419
Pedda Narayana v. State of A.P. (1975) 4 SCC 153
Rameshwar Dayal v. State of U.P. (1978) 2 SCC 518
Kuldip Singh v. State of Punjab 1992 Supp (3) SCC 1
George v. State of Kerala (1998) 4 SCC 605
Suresh Rai v. State of Bihar (2000) 4 SCC 84
Munshi Prasad v. State of Bihar (2002) 1 SCC 351
Gopal Singh versus State of U.P. (1978) 3 SCC 327
Bhagwan Dass versus State of Rajasthan (1974) 4 SCC 781
Habib versus State of Uttar Pradesh (2013) 12 SCC 568
Subodh Nath and Another versus State of Tripura (2013) 4 SCC 122
Darbara Singh versus State of Punjab (2012) 10 SCC 476
Sanjeev versus State of Haryana (2015) 4 SCC 387

(Delivered by Hon'ble Anil Kumar Srivastava-II, J.)

1. Heard Shri U.P. Singh, learned counsel for the appellant and Shri Izhar Husain learned
A.G.A. for the State.

2. Instant appeal has been preferred against the judgment of learned Sessions Judge Unnao
dated 05.8.1981 in Session Trial No. 496 of 1980, State versus Ashok Kumar, under Section 302
I.P.C., case crime no. 279 of 1978, Police Station Achalganj, District Unnao whereby learned trial
court has convicted accused appellant under section 302 I.P.C. and sentenced him to imprisonment
for life.
7 All. Ashok Kumar Vs The State
717
3. According to the prosecution version, complainant Jag Mohan and deceased Ramadhin
are real brothers. Litigation is pending between Ramadhin and Mahadeo, Raja Ram Pasi, Shiv Das
Pasi, Ramesh Chandra Tewari. Proceeding under section 107 CrPC are also pending in the Court.
Ramadhin has lodged a complaint under section 133 CrPC against Mahadeo and proceedings for
removal of encroachment in the galiyara were pending in court. 11.9.1978 was fixed for hearing in
that case. Ramadhin had gone to attend the case alongwith Sheo Charan and Mohan Nai. Since the
opposite parties were trying to attack the Ramadhin, hence, as and when Ramadhin goes to Unnao
complainant Jag Mohan used to go to the station to receive him.

4. On 11.9.1978 complainant Jag Mohan reached Rawatpur railway station at about 05.00
P.M. Train arrived at Rawatpur railway station at about sunset time. Complainant, his brother
Ramadhin, Mohan Nai and Sheo Charan proceeded together for their village through left patri of
Itauli minor canal. When they reached near the Har of Pancham where a trunk of tree was kept on
the canal for the purpose of crossing it, accused Ashok Kumar also joined them. Ashok Kumar was
behind Ramadhin. When they reached near the field of Bhabhuti Kori then Ashok Kumar fired two
shots upon Ramadhin with pistol. Complainant alongwith Sheo Charan, Mohan got frightened and
fled away when the accused again fired a third shot from his pistol. Complainant reached Bhadohi
and narrated story. Thereafter he came on the place of occurrence alongwith some other people.
Complainant gave the written report at the police station on 11.9.1978 at 11:45 PM which was
recorded and case under section 302 I.P.C. was registered against the accused. Investigation was
handed over to the Investigating Officer. Inquest proceedings began on 12.9.1978 at 09.00 A.M.
and concluded at 11.30 A.M. Dead body was sent for postmortem which was conducted on
13.9.1978 at 03.00 P.M. Kurta baniyan Angauchha baton were collected from the dead body. Blood
stained and plain earth was also collected from the place of occurrence. An empty cartridge and
tikli were also recovered from place of occurrence. Statement of witness were recorded and site
plan was drawn. Accused surrendered in court on 15.9.1978. After conclusion of the investigation
charge sheet was filed against the accused.

5. Charge under section 302 I.P.C. was framed against the accused who pleaded not guilty
and claimed trial.

6. In order to prove its case, prosecution has produced PW-1 Jagmohan brother of the
deceased and complainant PW-2 Sri Mohan who is one of the persons who were accompanying the
deceased to Unnao on the date of occurrence and was returning with him when the incident took
place.

7. PW-3 Dr S.M. Tripathi had conducted the postmortem on the body of the deceased on
13.9.1978 at 03.00 P.M. and found following ante mortem injuries on the body :-

(i) Circular lacerated wound 1 " in diameter on the right side back in outer scapular
region. Margins inverted. Blackening and charring present.
718 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Circular lacerated wound 1" in diameter on right side back lower part of right
scapular region, chest cavity deep. Margins inverted. Blackening and charring present.

(iii) Multiple abrasions in an area of 2" x 1/2" on left back scapular region.

(iv) Four cicculare lacerated wounds each 1/5" in diameter. Margins everted. No
blackening or charring present on the chest 2" above the right nipple in an area of 2 1/2". It was exit
wound of injury no.2.

On internal examination the trachea was found full of b lood and right lung was
lacerated by shots. The stomach was empty but the small intestine contained digested food and the
large intestine contained faecal matter. During postmortem 42 small pellets, two large pellets and
two pieces of wadding were recovered from the body. In the opinion of the doctor death was
caused due to shock and haemorrhage resulting from the injuries.

8. According to Dr. Injury no.1 and 2 were caused by firearm from a close range within
three or four feet, injury no.4 was exit wound of injury no.2 while injury no.3 could have been
caused by fall on some hard surface. According to doctor, duration of death was about two days.

9. PW-4 S.I. Ran Vijai Singh is Investigating Officer. In the statement under section 313
CrPC accused has stated that he has been falsely implicated in the case. Deceased was a hardened
criminal who was involved in different cases. DW-1 Ramesh Chander is produced in defence who
has stated that a Train No. 2 RC reached Tikli Rawatpur at 07.15 P.M. and departed at 07.18 P.M.

10. After conclusion of the evidence on the application of prosecution CW-1 B.N. Basak
Station Master Bighapur Railway Station was produced who has stated that on 11.9.1978 Train
No.2 RC arrived at Bighapur station at 06.45 PM and left at 06.55 P.M. A passenger train takes
about 25 minutes time to reach Bighapur from Rawatpur Tikauli.

11. After appreciation of evidence on record learned trial court had given categorical
finding that the prosecution has proved the case beyond reasonable doubt. Evidnece of witnesses is
fully reliable. Accordingly learned trial court convicted and sentenced the accused appellant.

12. Learned counsel for the appellant argued that the prosecution has failed to prove the
case against the accused beyond reasonable doubt. First information report is ante time and ante
dated. No independent witness has been examined. Rather interested witnesses have been examined
whose evidence could not be believed. It is further submitted that there was no motive for the
accused to commit murder of the deceased. Prosecution story as narrated is fully unreliable.
Deceased died during dead hours of night by some unknown person because he was a man of
criminal nature and was hardened criminal, that is why inquest proceedings were conducted on the
next day at 09.00AM and the postmortem was conducted on third day,i.e., 13.9.1978 at 03.00 P.M.
It is further submitted that if there would have been any motive for accused to commit the murder
7 All. Ashok Kumar Vs The State
719
of the deceased then there was no reason to believe that deceased would walk with the accused on
his side.

13. Per contra learned A.G.A. has submitted that the prosecution has successfully proved
the case against the accused beyond reasonable doubt. Statements of PW-1 and PW-2 are fully
reliable. There is no delay in lodging F.I.R. It is a case of direct evidence wherein there is no
requirement to prove the motive. Nonetheless, motive is proved by the prosecution. There was
sufficient light to identify the accused at the time of occurrence.

14. Before proceeding with the case we would like to deal with the medico legal aspect of
the matter. Occurrence had taken place on 11.9.1978 at about 11:45 PM. Postmortem examination
of the body of deceased was done on 13.9.1978 at 03.00 P.M. by PW-3 Dr. S.M. Tripathi. The two
shots which hit the deceased were fired from a very close range. Right lung was completely
lacerated. One of the shot had crossed the body through and through which was an exit wound of
injruy no.2. According to Dr. Tripathi duration of death was about two days. Injury no.1 and 2 were
caused by a firearm from a close range within three or four feet while injury no.4 was the exit
would of injury no.2 From the nature of injuries it is clear that the deceased died due to gun shot
injuries caused with intention to cause the death of deceased.

15. Now, it is to be seen as to whether the evidence of PW-1 Jag Mohan and PW-2 Sri
Mohan is worth reliance and fully reliable or not. Learned trial court has given a finding that the
evidence of these two witnesses is fully reliable. Learned counsel for the appellant argued that PW1 is the real brother of the deceased who is an interested witness while the PW-2 Sri Mohan is a
partisan and chance witness. Their evidence could not be relied upon.

16. Before dealing with these two witnesses, we would like to refer the relevant legal
proposition on the subject. In Nand Kumar versus State of Chhatisgarh (2015) 1 SCC 766 Hon'ble
the Apex Court has held that evidence of eyewitnesses could not be disbelieved merely on the
ground that they are the close relatives of the deceased. Hon'ble the Apex Court has referred in
Namdev versus State of Maharashtra (2007) 14 SCC 150 wherein it was held in para 38 that :-

"38.............. it is clear that a close relative cannot be characterized as an
'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinised carefully.
If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and
wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close
relationship of witness with the deceased or victim is no ground to reject his evidence. On the
contrary, close relative of the deceased would normally be most reluctant to spare the real culprit
and falsely implicate an innocent one."

17. If we examine the evidence of PW-1 Jag Mohan it is admitted that he is the real brother
of the deceased. Definitely he is an interested witness but his evidence has to be scrutinized with
caution. It is clear that at the time of incident Jag Mohan, Sri Mohan and one Sheo Charan were
accompanying the deceased when accused also joined them. It has come in the evidence that there
720 INDIAN LAW REPORTS ALLAHABAD SERIES

was no independent witness present at the place of occurrence. Out of the three persons present
prosecution has produced Jag Mohan and Sri Mohan. At this stage, we would like to infer that even
if Sheo Charan is not produced by the prosecution it will not adversely affect the prosecution
version because even if Sheo Charan would have been produced by the prosecution it could have
just multiplied the number of witnesses. It is settled legal position that it is not the quantity but the
quality of the evidence has to be looked into by the Court. On this point reference may be made to
the pronouncement of Hon'ble Apex Court in the case of Sudip Kr. Sen and Others V. State of
West Bengal and Others reported in MANU/SC/0013/2016 and has observed in para 12 as
under:-

"Observing that there is no impediment for recording conviction based on the
testimony of a single witness provided it is reliable in Prithipal Singh and Ors. V. State of Punjab
and Anr. MANU/SC/1292/2011 : (2012) 1 SCC 10, it was observed as under:

49. This Court has consistently held that as a general rule the court can and may
act on the testimony of a single witness provided he is wholly reliable. There is no legal
impediment in convicting a person on the sole testimony of a single witness. That is the logic of
Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on
corroboration. In fact, it is not the number or the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be weighed and not counted. The test is whether the
evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has
laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or
plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a
solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony
of several witnesses if it is not satisfied about the quality of evidence. [See Vadivelu Thevar V. State
of Madras reported in AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of Delhi reported in
(2003) 11 SCC 367, Namdeo V. State of Maharashtra reported in (2007) 14 SCC 150 and Bipin
Kumar Mondal v. State of W.B. reported in (2010) 12 SCC 91]."

46. On this point reference may also be made to the pronouncement of Hon'ble
Apex Court in the case of Deny Bora V. State of Assam reported in (2014) 14 SCC 22 and has
observed in para 14 as under:-

"As we find, the conviction wholly rests on the sole testimony of PW-14. It is well
settled in law that conviction can be based on the testimony of a singular witness. It has been held
in Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC 367 that as a general rule the court
can and may act on the testimony of a single witness provided he is wholly reliable. There is no
legal impediment in convicting a person on the sole testimony of a single witness. That is the logic
of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts
will insist on corroboration. The same principle has been reiterated in Namdeo V. State of
Maharashtra reported in (2007) 14 SCC 150 by stating that it is open to a competent court to fully
and completely rely on a solitary witness and record conviction, if the quality of the witness makes
the testimony acceptable."
7 All. Ashok Kumar Vs The State
721
18. PW-1 Jag Mohan has stated that whenever Ramadhin used to go to Unnao in
connection with his cases and used to return in the evening by train Jagmohan used to reach
Rawatpur Tikauli Railway Station to receive him and to accompany him to home. This is because
he was having an apprehension that something wrong may be done with Ramadhin as he was
involved in number of cases. On the fateful day also Jag Mohan went to the railway station to
receive Ramadhin. So far as question of Jag Mohan is concerned, it was a natural conduct that
being the brother of the deceased he was seriously concerned about his well being. He was having
full knowledge that certain criminal cases and other cases are pending against Ramadhin and he
may be attacked by anyone if he is found all alone. This was the reason that Jag Mohan used to
accompany the deceased whenever he goes to Unnao and returned in the evening by train. On the
fateful day also Jag Mohan was not knowing that Sri Mohan and Sheo Charan were also
accompanying the deceased in the train and they would also come back to their houses alongwith
Ramadhin deceased. Hence, presence of Jag Mohan at the railway station is quite natural. Learned
trial court has given a categorical finding that the train which was scheduled to reach Rawatpur
Tikauli at 06.10 P.M. had reached by 06.15 PM or 06.20 PM. Learned trial court has also taken a
judicial notice of the fact that on the fateful day as shown in the 'jantri' sunset time was 06.30 PM.
It means that at the time of arrival of the train at the railway station sun was not set. Just after
reaching at the station Jag Mohan alongwith Sheo Charan, Sri Mohan and deceased proceeded for
village. It took about 20-25 minutes to reach at the place of occurrence, which means that they
reached the place of occurrence at about 06.40 PM but even if the sun might have accordingly set at
that time, there would be sufficient light to enable the witnesses to see and recognize the accused,
particularly when he is also a resident of same village and had walked with them for about 150
paces before firing the shots from the pistol.

19. First information report was lodged on the same day at 11.45 PM while the distance of
police station was six miles. According to PW-1, Jag Mohan after the incident he ran away from
the place of occurrence and went to his village and again came back with villagers then he got the
report scribed from Krishna Kumar Shukla and handed over the same at the police station. Inquest
proceedings began on 12.9.1978 at 09:00 AM and concluded on 12.9.1978 at 11:30 AM.
Thereafter, dead body was sealed and sent for postmortem which took place on next day at 03:00
PM. PW-4 Shri Ran Vijai Singh, Investigating Officer has stated that he was busy in the
investigation of Case Crime No.278 under section 302, 201 I.P.C. When first information report
was lodged at the police station. He was not present at the police station at that time. Papers of this
case were handed over to him on 12.9.1978 at about 4 AM by Satyendra Kumar Shukla then he
reached at the place of occurrence and recorded the statement of complainant and conducted the
inquest proceedings. Hence there was no delay in conducting the inquest proceedings.

20. It is submitted by the learned counsel for the accused that there are some cuttings in the
time of occurrence mentioned in the inquest report. Apart from it, in the inquest report distance of
the police station from the place of occurrence is shown as ten kilometers while in the first
information report it is mentioned as six miles. It is further submitted that the postmortem was
conducted on the next day which shows that the report is ante time and ante dated. Attention is also
drawn towards challan lash wherein also there are certain cuttings in the time of occurrence. We are
722 INDIAN LAW REPORTS ALLAHABAD SERIES

not impressed with the argument. Purpose of inquest report is very limited. It was held in Madhu
alias Madhuranath and Another versus State of Karnataka, (2014) 12 SCC 419 that "The object of
the inquest proceedings is merely to ascertain whether a person has died under unnatural
circumstances or an unnatural death and if so, what is the cause of death. More so, the inquest
report is not a piece of substantive evidence and can be utilised only for contradicting the witnesses
to the inquest examined during the trial. Neither the inquest report nor the post-mortem report can
be termed as basic or substantive evidence and thus, any discrepancy occurring therein cannot be
termed as fatal or suspicious circumstance which would warran tbenefit of doubt to the accused."
Same view was taken in Pedda Narayana v. State of A.P. (1975) 4 SCC 153, Rameshwar Dayal v.
State of U.P. (1978) 2 SCC 518, Kuldip Singh v. State of Punjab 1992 Supp (3) SCC 1, George v.
State of Kerala (1998) 4 SCC 605, Suresh Rai v. State of Bihar (2000) 4 SCC 84 and Munshi
Prasad v. State of Bihar (2002) 1 SCC 351.

21. Even if distance is mentioned in the kilometers in the inquest proceedings while in the
chik F.I.R. Distance is mentioned in miles it does not make any room for doubt. Certain cuttings
are also there which do not cast any shadow over merit of the matter. According to the postmortem
report duration of death was about two days which coincides with the time of occurrence as alleged
by the prosecution, hence, we do not find any force in the argument that first information report is
ante-timed or ante-dated.

22. PW-1 Jag Mohan has given a very natural statement. He reached at the railway station
to receive his brother who accompanied him alongwith Sri Mohan and Sheo Charan. On the way
accused also joined them who was known to them. It has come in the evidence that accused is
known to them. Parvesh is brother of accused and litigation was pending between deceased
Ramadhin and Pravesh and others. Proceedings under section 107, 116 CrPC were also launched in
that regard, hence, when Ashok Kumar was previously known to the deceased as well as witnesses
and on the way he also joined them, there was nothing abnormal in it. All of a sudden Ashok
Kumar fired a shot from his pistol on the back of deceased who was going ahead of him. Again a
fire was shot and witnesses ran away from the place of occurrence. A third fire was also shot but it
could not hit anyone. Theory of firing two shots by the accused finds full corroboration from the
evidence of Dr. S.M. Tripathi PW-3 and postmortem report. Presence of PW-1 Jag Mohan at the
place of occurrence is also fully corroborated and proved by the evidence on record.

23. At this stage, we examine the veracity of the statement of PW-2 Sri Mohan. We found
that there was some inimical relationship between him and the accused but that was an old issue.
Papers of enmity of PW-2 Sri Mohan with the accused have been filed which shows that Kamlesh
Chandra brother of accused was a witness against Mahabir father of Sri Mohan in a case under
section 183 Z.A. Act but the jdugment of that case shows that the case was between Mahadeo and
Mahabir who were real brothers. In that case Kamlesh Chandra has deposed about the relationship
of Mahadeo, Mahabir and their brother Beni Madhav who died issueless. Kamlesh Chandra has
nowhere deposed anything against father of Sri Mohan.
7 All. Ashok Kumar Vs The State
723
24. Presence of PW-2 Sri Mohan at the place of occurrence is assailed on the ground that
Hari Mohan brother of Sri Mohan was murdered. In that case deceased Ramadhin was an accused,
hence, it is not possible that Ramadhin would accompany Sri Mohan. This argument does not find
favour from the learned trial court. A perusal of the judgment of sessions trial no. 159 of 1964 State
versus Mahadeo and others decided by second Additional Sessions Judge Unnao on 28.11.1964
shows that in that case the main role of murder was assigned to Mahadeo, the brother of Mahabir
and Chaturbhuj and Jagdeo sons of Mahadeo and Sundar Bai wife of Mahadeo. Against Ramadhin
the only allegation was that he was a friend and associate of Mahadeo and was present at the med
of the field with a lathi. This incident took place in 1964 wherein all the accused were acquitted.
Subsequently, proceedings under section 107, 116 Cr.P.C. were launched against Mahadeo and
Ramadhin. Name of Sri Mohan finds place as a witness alongwith Ramadhin in the other party
which was rival to the party of Mahadeo and his sons. Further in the police report dated 10.8.1978,
exhibit kha-7 it is mentioned that Mohan, nephew of Mahadeo was murdered wherein Ramadhin
and others were accused which was acquitted. In the proceedings under section 133 CrPC
Ramadhin and Mahaveer father of Sri Mohan figured together as applicants against Mahadeo and
his sons. It is clear that since 1976 when Ramadhin and Mahabir filed an application under section
133 CrPC jointly against Mahadeo and his sons, Ramadhin and Mahabir and his sons became
friendly with each other. On the date of incident case under section 133 Cr PC was fixed under
hearing. It was quite natural for Sri Mohan to accompany the deceased to Unnao, hence, presence
of PW-2 Sri Mohan alongwith deceased cannot be doubted in any manner. His evidence is also
fully reliable.

25. Presence of PW-1 Jag Mohan and PW-2 Sri Mohan at the place of occurrence is
proved. Apart from this, direct evidence of murder committed by the accused is also on record in
the shape of Statement of PW-1 Jag Mohan and PW-2 Sri Mohan. In Gopal Singh versus State of
U.P. (1978) 3 SCC 327, it was held that :-

"11. ............................ True, they were interested witnesses, related to the
deceased. Far from undermining the circumstances of the case, it guaranteed the truth of their
testimony. Being relations they would be the least disposed to falsely implicate the appellant, or
substitute him in place of real culprit. In short, the murder charges had been proved to the hilt
against the appellant."

39. Further in Bhagwan Dass versus State of Rajasthan (1974) 4 SCC 781 it was
observed in paragraph 11 of the Apex Court that:-

"11...................... It is also difficult to believe that Chunki would spare the real
assailant and falsely mention the name of the accused as a person who was responsible for the
injuries caused to her and the three deceased persons. Chunki, it may be stated, has not been
shown to have any animus against the accused."

Hence, we are of the view that the presence of prosecution witnesses at the place of
occurrence is fully established. Their evidence is fully reliable.
724 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Learned counsel for the accused argued that there was no motive for the commission of
crime by the accused. It is a case of direct evidence. It is settled legal position that in a case of
direct evidence motive loses its importance. It was held in Habib versus State of Uttar Pradesh
(2013) 12 SCC 568, by the Hon'ble Apex Court that if there is direct and trustworthy evidence of
witnesses as to the commission of offence, the motive part loses its significance. Ocular testimony
of witnesses cannot be discarded only by reason of absence of motive, if otherwise, evidence is
worthy of credence. In Subodh Nath and Another versus State of Tripura (2013) 4 SCC 122, it
was held by the Hon'ble Apex Court that motive becomes relevant as an additional circumstance in
a case where prosecution seeks to prove the guilt by circumstantial evidence only. But if there is
direct evidence against the accused having committed offence, motive becomes irrelevant.
Reference may also be made to Darbara Singh versus State of Punjab (2012) 10 SCC 476.

It was held in Sanjeev versus State of Haryana (2015) 4 SCC 387 that "It is settled
principle of law that, to establish commission of murder by an accused, motive is not required to be
proved. Motive is something which prompts a man to form an intention. The intention can be
formed even at the place of incident at the time of commission of crime. It is only either intention
of knowledge on the part of the accused which is required to be seen in respect of the offence of
culpable homicide. In order to read either intention or knowledge, the courts have to examine the
circumstances, as there cannot be any direct evidence as to the state of mind of the accused."

27. Further learned trial court has given a categorical finding that there was sufficient
motive for Ashok Kumar to commit the crime. Learned trial court has held that from the evidence
exhibit kha-7 filed by the accused it appears that in the proceedings under section 107/ 116 CrPC
Parmesh Chandra who is the brother of the accused is also one of the opposite parties alongwith
Mahadeo, Sheo Dass, Raja Ram and others. Real dispute of galiyara was between Ramadhin and
Mahadeo and his sons but the fact remains that from the defence evidence itself it is clear that
proceedings under section 107/116 CrPC were also pending against the brother of the accused and
deceased. Specific motive was alleged in the first information report in the document exhibit kha 7
filed by the accused which is copy of police report under section 107, 116 CrPC. It appears that the
name of Parmesh Chandra Tewari who is brother of the accused is shown as one of the parties.
Although the main dispute of Ramadhin regarding the galiyara was with Mahadeo and his sons but
Parmesh Chandra brother of the accused Ashok Kumar was also arrayed in the party of Mahadeo in
the proceedings under section 107/ 116 CrPC which was drawn up as a consequence of this dispute.
It shows that there was a motive for the accused for commission of the crime.

28. Place of occurrence was mentioned near field of Bhabhuti Kori. In the site plan place of
incident shown by letter 'A' which is on the Northeast side of the Itauli minor canal and towards
South of the field of Bhabhuti. Investigating Officer has recovered the empty cartridges, tikli from
the place of occurrence and prepared the recovery memo. No suggestion was given to the witness
that the place of occurrence has been shown wrongly. We do not find any force in the argument
that place of occurrence has been changed. There is a consistent evidence on record about the place
of occurrence. Further defence in so many words has not changed the place of occurrence during
7 All. M/S Som Distilleries & Breweries Ltd. Thru' Auth. Sign. Vs Commissioner Of Trade
 Tax U.P.
725
trial, rather it is said that the deceased was killed during dead hours of night by some unknown
persons, hence, we are of the view that place of occurrence is also established.

29. After considering all the aspects and evidence on record, we are of the considered view
that the prosecution has successfully proved the charges levelled agianst the accused beyond
reasonable doubt. Learned trial court has rightly appreciated the evidence on reocrd. We do not find
any illegality, in the impugned findings. Accordingly appeal is devoid of any merit and is liable to
be dismissed and is accordingly dismissed. Accused is on bail. His bail is cancelled. He shall be
taken into custody forthwith to serve out the sentence awarded by the learned trial court.

30. Office is directed to certify this order to the learned trial court to ensure compliance.
Office is further directed to transmit the lower court record forthwith.
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REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2016

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Sales/Trade Tax Revision No.- 699 Of 2006

M/S Som Distilleries & Breweries Ltd. Thru' Auth. Sign. ...Revisionist
Versus
Commissioner Of Trade Tax U.P. ...Respondent

Counsel for the Revisionist:
Nishant Mishra

Counsel for the Respondent:
S.C.

U.P. Trade Tax Act, 1948 - S. 28A(6) - Penalty - Non-production of Form-31 - Requirement of
intent to evade tax - IMFL consignments imported with valid permits - Goods intercepted without Form-31
- Tribunal affirming penalty on ground of absence/subsequent submission of Form-31 - Validity -

Held, S. 28A(6) contemplates two conditions: (i) absence of proper documents, and (ii) satisfaction of
authority that transportation was with intent to evade tax - While first condition stood satisfied, second was
not established (paras 3-4) - IMFL being an excise-controlled commodity, its import, storage and movement
are strictly regulated and once goods enter bonded warehouse, assessee loses control and cannot effect sale
without permission (para 5) - Tax not leviable at stage of import but only upon clearance for sale, hence no
occasion for evasion at interception stage (para 5) - Mere non-production or subsequent furnishing of Form31 is a procedural lapse and does not ipso facto establish mens rea (paras 2, 5) - Tribunal erred in presuming
evasion without material evidence - Penalty unsustainable.

Result: Revision allowed - Orders of authorities set aside.