# Awadhesh & Ors v. State of U.P

- **Citation:** J. Criminal Appeal No. 14 of 1985
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-20
- **Case number:** J. Criminal Appeal No. 14 of 1985
- **Bench:** Ritu Raj Awasthi, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-ors-v-state-of-u-p-46181
- **Pages:** 22

## Headnote

G.A., Dheeraj Srivastava, Girijesh Sharan
Srivastav, Munni Lal Yadav, Rajesh Kumar
Gupta,
Shivendra
Pratap
Singh
3-5 All. Awadhesh & Ors. Vs. State of U.P.
37
A.
Criminal
law-Code
of
Criminal
Procedure, 1973- Section 154-F.I.R- Every
minute detail is not required to be
mentioned in the FIR as the FIR is only an
information given to the police regarding
occurrence of a crime and the person
giving the said information may not be in
his best frame of mind to give all details of
the
occurrence
while
submitting
the
report to the police.

Settled law that F.I.R is not an encyclopaedia of
facts and absence of all details in the F.I.R will
not dent the case of the prosecution.

B. Evidence law- Indian Evidence Act,
1872 - Section 3- Section 118- Testimony
of
related
witnesses-
It
is
settled
proposition of law that the testimony of a
prosecution witness cannot be merely
rejected on the ground that he was a
relative of the deceased. However, the
Court is required to be cautious and
careful while examining the evidence of
such a witness. Non-production of an
independent witness by the prosecution
would not weaken the case of the
prosecution in case testimony of the
prosecution witness produced by the
prosecution, may be relative of the
deceased, is consistent and trustworthy.

The testimony of a related witness, if he is a
natural witness, can be relied upon by the Court
provided
the
evidence
is
credible
and
trustworthy
and
non-examination
of
independent witnesses will not dent the case of
the prosecution.

C. Criminal law- Indian Penal Code, 1860 -
Section 149 - In case an offence is
committed by any member of an unlawful
assembly in prosecution of the common
object
and
such
members
of
that
assembly knew the purpose with which
they had assembly; then, every person
present at the time of committing of that
offence is a member of that assembly and
is guilty of that offence. The common
object of unlawful assembly to cause
death
of
the
deceased
was
well
established. There was nexus between
common
object
and
the
offence
committed and, as such, every accusedappellants were liable for the same

Indian Penal Code, Section 1860- Section 149-
Section 149 of the IPC fixes the vicarious liability
of each member of the unlawful assembly
participating in the commission of the offence
with a common object of doing the said act.

The act of accused appellants collectively
amounts to culpable homicide amounting to
murder and punishable under Section 302 IPC
bringing all of them under joint liability of the
offence. The conviction and sentence of
appellants under Section 302/149 is confirmed.
( Para 43, 47, 56, 65,66)

Criminal Appeal dismissed. (E-3)

List of case cited:-

## Text

_Characters 0–39,894 of 74,891. This is a partial read: ask again with offset=39894 for what follows._

36 INDIAN LAW REPORTS ALLAHABAD SERIES
burden is on the prosecution to prove the
guilty beyond all reasonable doubts. If two
views of the matter are reasonably possible,
golden thread of rule which runs through
the web of administration of justice in
criminal cases is that the view which is
favourable to the accused should be
adopted. The accused is entitled to the
benefit of doubt. The doubt should,
however, be reasonable and should be such
which
rational
thinking
men
will
reasonably, honestly and conscientiously
entertain and not a timid mind which fights
shy - though unwittingly it may be - or is
afraid of the logical consequences, if that
benefit was not given. It other words, it is
"not the doubt of a vacillating mind that has
not the moral courage to decide but shelters
itself in a vain and idle scepticism". The
rule does not warrant acquittal of the
accused by resorting to surmises and
conjunctures or fanciful considerations.
[See The State of U.P. vs. Samman
Dass26 and Yogesh Singh vs. Mahabeer
Singh and others27 ]

34. Having carefully scrutinized/sifted
the entire evidence produced in this case
and the surrounding circumstances, we are
satisfied that the prosecution had not been
able to prove its case beyond all reasonable
doubts, arose in the minds of the Court as
discussed in the preceding paragraphs of
this judgment. The prosecution evidence is
not such which would bring home the
guilty persons. The benefit of doubt
certainly has to go to the accused persons.
The three (3) surviving accused persons
are, therefore, entitled to be acquitted of all
the offences of which they were charged.
Their conviction is liable to be set aside.

35. Accordingly, the judgment and
order dated 22.12.1995 passed by the
Additional Sessions Judge, Muzaffarnagar
in Sessions Trial No. 51 of 1993 (State vs.
Sher Singh and others) convicting and
sentencing the accused-appellants namely
Sher Singh (appellant no. 1), Sahendra
(appellant no. 2) and Gulab (appellant no.
4) for offence under Section 302 readwith
Section 34 IPC, registered at Police Station
Kandhala, District Muzaffarnagar, is set
aside.

The appeal is hereby allowed.

The appellants are on bail. Their
sureties shall stand discharged.

The office is directed to send
back the lower court record along with a
certified copy of this judgment for
information and necessary action.

The compliance report be furnished to this
Court through the Registrar General, High
Court, Allahabad.
----------
(2020)03-05ILR A36
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.05.2020

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV,
J.

Criminal Appeal No. 14 of 1985

Awadhesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Ram Naresh Singh, Abhishek Audichya,
Amit Kumar Awasthi, Nagendra Mohan,
Vinod Misra

Counsel for the Respondent:
G.A., Dheeraj Srivastava, Girijesh Sharan
Srivastav, Munni Lal Yadav, Rajesh Kumar
Gupta,
Shivendra
Pratap
Singh
3-5 All. Awadhesh & Ors. Vs. State of U.P.
37
A.
Criminal
law-Code
of
Criminal
Procedure, 1973- Section 154-F.I.R- Every
minute detail is not required to be
mentioned in the FIR as the FIR is only an
information given to the police regarding
occurrence of a crime and the person
giving the said information may not be in
his best frame of mind to give all details of
the
occurrence
while
submitting
the
report to the police.

Settled law that F.I.R is not an encyclopaedia of
facts and absence of all details in the F.I.R will
not dent the case of the prosecution.

B. Evidence law- Indian Evidence Act,
1872 - Section 3- Section 118- Testimony
of
related
witnesses-
It
is
settled
proposition of law that the testimony of a
prosecution witness cannot be merely
rejected on the ground that he was a
relative of the deceased. However, the
Court is required to be cautious and
careful while examining the evidence of
such a witness. Non-production of an
independent witness by the prosecution
would not weaken the case of the
prosecution in case testimony of the
prosecution witness produced by the
prosecution, may be relative of the
deceased, is consistent and trustworthy.

The testimony of a related witness, if he is a
natural witness, can be relied upon by the Court
provided
the
evidence
is
credible
and
trustworthy
and
non-examination
of
independent witnesses will not dent the case of
the prosecution.

C. Criminal law- Indian Penal Code, 1860 -
Section 149 - In case an offence is
committed by any member of an unlawful
assembly in prosecution of the common
object
and
such
members
of
that
assembly knew the purpose with which
they had assembly; then, every person
present at the time of committing of that
offence is a member of that assembly and
is guilty of that offence. The common
object of unlawful assembly to cause
death
of
the
deceased
was
well
established. There was nexus between
common
object
and
the
offence
committed and, as such, every accusedappellants were liable for the same

Indian Penal Code, Section 1860- Section 149-
Section 149 of the IPC fixes the vicarious liability
of each member of the unlawful assembly
participating in the commission of the offence
with a common object of doing the said act.

The act of accused appellants collectively
amounts to culpable homicide amounting to
murder and punishable under Section 302 IPC
bringing all of them under joint liability of the
offence. The conviction and sentence of
appellants under Section 302/149 is confirmed.
( Para 43, 47, 56, 65,66)

Criminal Appeal dismissed. (E-3)

List of case cited:-

1. Gurmail Singh Vs. St. of Punj. & anr., ( 2013)
4 SCC 228

2. Chanakya Dhibar (dead) Vs. St. of W.B &
ors., ( 2004) 12 SCC 398

3. Jivan Lal and ors Vs. St. of M.P., (1997) 9
SCC 119

4. Yakub Ismailbhai Patel Vs. St. of Guj., ( 2004)
12 SCC 229

5. Main Pal Vs. St. of Har., (2004) 10 SCC 692

6.
Animireddy
Venkatramana
Vs.
Public
Prosecutor High Court A.P., ( 2008) 5 SCC 368 (
f&d)

7. Betal Singh Vs. St. of M.P., 1996 Crl.J. Page
4006 (SC)

8. Babu Singh Vs. St. of Punj., 1996 ( 33) ACC
474 SC

9. Baldev Singh Vs. St. of Punj., 1995 ACC 752 (
SC)

10. Bijay Singh Vs. St. of Bih., 2003 SCC ( Crl.)
1093

11. St. of U.P. Vs. Sheo Sanehi, ( 2004) 12 SCC
347
38 INDIAN LAW REPORTS ALLAHABAD SERIES
12. St. of Raj. Vs. Hanuman, AIR 2001 SC 282

13. Banti @ Guddu Vs. St. of M.P, AIR 2004 SC
261

14. Yogesh Singh Vs. Mahabeer Singh, (2017)
11 SCC 195

15. Vijendra Singh Vs. St. of U.P., (2017) 11
SCC 129

16. Dev Karan Vs. St. of Har., ( 2019) 8 SCC
596

17. Shambhu Nath Singh & ors. Vs. St. of Bih.,
AIR 1960 SC 725 : MANU/SC/0214/1959

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard Mr. Nagendra Mohan,
learned counsel for appellant as well as Mr.
Pankaj Kumar Tiwari, learned Additional
Government Advocate on behalf of State
and perused the record including lower
Court records.

2. This Criminal Appeal has been
filed under Section 374 (2) Code of
Criminal Procedure against the judgment
and order dated 09.01.1985 passed by the
Ist Additional Sessions Judge, Sitapur in
Sessions Trial No. 117 of 1982 arising out
of case Crime No. 152 of 1981, under
Sections 147, 148, 149, 302, 201 Indian
Penal Code, Police Station Laharpur,
District Sitapur, whereby the accusedappellants, Avadhesh Kumar, Patrakhan,
Sheo Poojan, Uma Shanker alias Dalla and
Kalloo have been convicted and sentenced
to undergo rigorous imprisonment for life
under Section 302/149 Indian Penal Code.
They have been further convicted and
sentenced
to
undergo
rigorous
imprisonment for one year under Section
147 Indian Penal Code. The accusedappellants, Avadhesh Kumar, Patrakhan,
Sheo Poojan have been convicted and
sentenced
to
undergo
rigorous
imprisonment for two years under Section
148 Indian Penal Code. The accusedappellants, Avadhesh Kumar and Sheo
Poojan have been further convicted and
sentenced
to
undergo
rigorous
imprisonment for two years under Section
201 Indian Penal Code. All the sentenced
are directed to run concurrently. Accused,
Purushottam and Pankaj Kumar have been
acquitted giving them benefit of doubt.

3. The prosecution case, in brief, is that
Mahadeo who was grandfather of the
informant, Jagdish (PW-1) had two sons,
namely Ram Dayal and Ram Asrey. Ram
Dayal had one son, namely, Sri Sarjoo
Prasad whereas Ram Asrey had three sons,
namely, Roop Narain, Jagdish and Chhail
Behari. Sarjoo Prasad was murdered and
Roop Narain had lodged the report in that
connection in which Gokaran and Ram
Mitra were also named as accused along
with others. The said case ended in
acquittal. Muneshwar was the grandfather
of Gokaran. Muneshwar had two sons
Misri Lal and Mewa Lal. Gokaran and
Patrakhan were the sons of Mishri Lal and
he had also one daughter Maya. Maya was
married to Chukki alias Pankaj who is an
accused in this case. Shyam Murari and
Avadhesh were the sons of Gokaran who
had also one daughter Rajpati. Rajpati is
the wife of accused Sheo Poojan. Avadhesh
is also accused. The daughter of Mewa Lal,
namely, Bishuna was married to Ram Mitra
who was also an accused in the murder of
Sarjoo Prasad. Kalloo, Mahesh Prasad and
Uma Shanker alias Dalla are also accused
in the present case. All the accused persons
were on friendly terms with each other. It is
alleged that the whereabouts of Gokaran
were unknown and a report about his
disappearance was lodged by Mishri Lal
and in that report Jagdish (PW-1) and
3-5 All. Awadhesh & Ors. Vs. State of U.P.
39
Chhail Behari were named as accused. No
prosecution was launched on the basis of
the said report, therefore, the accused
persons were displeased. The wife of
Gokaran used to say that she would not
take off her bangles for 12 years. The
accused Avadhesh and Patrakhan (sons of
Gokaran) used to say that they would
wreck vengeance. It is alleged that on
15.7.1981 at about 6PM the informant PW1 (Jagdish) had gone to shahpur market.
Deceased,
Roop
Narain
(brother
of
Jagdish), had also gone to the said market
for purchasing goods and selling foodgrains. Roop Narain had sold some of his
food-grains while he was yet to dispose of
his remaining food-grains, Purushottam
alias Khattoo fired at him, at that time the
deceased Roop Narain was seated and he
was hit by the shot. Thereafter Patrakhan
fired from half-gun as a result of which
Roop Narain fell down. Thereafter the
accused persons, Kalloo, Sheo Poojan,
Dalla, Avadhesh and Pankaj assaulted the
deceased Roop Narain. Kalloo and Dalla
were armed with lathi, Sheo Poojan and
Avadhesh were armed with Banka while
Pankaj was armed with a Chhuri. Patrakhan
took out the spent cartridge and kept the
same in his pocket and thereafter he fired
second shot. The accused Patrakhan also
said that he was avenging the murder of his
brother and if anyone would advance then
he would also be killed. The accused
persons lifted Roop Narain and after
covering a distance of ten steps the accused
Sheo Poojan and Avadhesh severed his
head and went away towards the west.

3. The report of the occurrence
Ext.Ka-1 was written by Indra Prakash on
the dictates of PW-1 (Jagdish Prasad).
Gokaran, Indra Prakash, Chhabi Nath and
others
had
also
witnessed
the
said
occurrence. The case was registered against
accused persons at G.D. No. 27, Ext.Ka-3
on the same day at 8.45PM and the special
report was also sent on 15.7.1981 vide GD
report No. 23 at 10.05PM.

4. PW-5, Jagdish Prasad Sharma took
up the investigation of the case. He
recorded the statements of the witnesses
and started for the place of occurrence. On
account of night, he stayed and on next day
he prepared the inquest report of the body
of the deceased Roop Narain Ext.Ka-7
along with photo of dead-body, challan
dead-body, specimen seal etc. Exts.Ka-8 to
Ka-12. He also prepared the site plan
Ext.Ka-5 of the place of occurrence. Sri
Jagdish Prasad Sharma (PW-5) also took
possession of plain earth and blood stained
earth in separate containers from the spot
which were sealed and memo Ext.Ka-6 was
prepared in that connection. The dead body
of Roop Narain was sent for postmortem
examination in a sealed condition. After
completion of investigation, the accused
were charge-sheeted. The accused persons
did not plead guilty to the charges framed
against them and prayed for trial.

5. The prosecution examined PW-1
Jagdish the informant, PW-2 Indra Prakash,
PW-3 Gokaran, PW-4 Constable Sri Sipte
Hasan, PW-5 Sri Jagdish Prasad Sharma,
Investigating Officer and PW-6 Dr. P.C.
Pandey to prove the prosecution case.

6. The autopsy of the deceased Roop
Narain was performed by Dr.P.C.Pandey on
16.07.1981 at 5PM and he had found the
following ante-mortem injuries on the body
of
the
deceased
vide
postmortem
examination report Ext.Ka-12:

i. Multiple gunshot wound on the
anterior lateral end of the right thigh,
lower portion in an area of 8 cm x 7 cm
40 INDIAN LAW REPORTS ALLAHABAD SERIES
each measuring 0.3 cm x 0.3 cm x muscle
deep. Six gunshot recovered.

ii. Multiple gunshot would o the
other part of the axilla in an area of 8 cm x
9 cm each measuring 0.3 cm x 0.3 cm x
muscle deep. Seven gunshot recovered.

iii. Incised wound 12 cm x 12 cm
x
through
and
through
3
cm
in
circumference at the level of the 5th
cervical vertebra. A portion of the 5th
cervical vertebra is also cut away. Jags of
chin present and the wound (at the margin)
of the wound.

iv. Incised wound 4 cm x 1⁄2 cm x
muscle deep, about the mid portion of left
clavicle.

v. Two incised wound both placed
transversally, 5 cm x 11⁄2 cm cavity deep, 12
cm right to the muscle end, second would is
3 cm behind the first wound size 3 cm x 1⁄2
cm x muscle deep.

vi. Incised wound 8 cm x 1 cm x
muscle deep, on the right axillery line, 12
cm below the
 right axilla.

vii. Incised wound 6 cm x 2 cm x
muscle deep on the posterior side of the
right upper arm mid-portion.

viii. Incised wound 11⁄2 cm x 1⁄2 cm
x muscle deep on the front side of the right
upper arm mid-portion.

ix. Incised wound 2 cm x 1 cm x
muscle deep on the back of the right
forearm, mid-portion.

x. Incised wound 1 cm x 1⁄2 cm x
muscle deep on the back of right wrist.

xi. Incised wound on the left side
back lower portion, 3 cm x 1 cm x muscle
deep.

xii. Abrasion on the middle of
back 3 cm x 3 cm in eye.

7. Dr. P.C. Pandey, PW-6, who had
performed the postmortem of the deceased
opined
that
the
antemortem
injuries
sustained by the deceased were sufficient in
the ordinary course of nature to cause
death, that the injuries no. 1 and 2 were
gun-shot injuries while injuries no. 3 to 11
were caused by sharp edged weapon while
injury no. 12 was possibly caused by
friction against some hard blunt objection
such as banka. The injuries could have
possibly been inflicted on 15.7.1981 at
6PM.

8. The Trial Court of learned
Additional Sessions Judge, Sitapur framed
charges against the appellants for offences
punishable under Sections 147, 148, 149,
302, 201 IPC. The accused-appellants
pleaded not guilty and claimed trial. The
Trial Court recorded the statement of
prosecution witnesses as well as statements
of appellants under Section 313 Cr.P.C.

9. The accused-Avadhesh alleged that
he has been implicated on account of his
uncle. The accused-Patrakhan alleged his
implication on account of his enmity with
Jagdish. The accused Sheo Poojan alleged
that he had enmity with Putti Lal and Ram
Dhani, there was enmity between them and
his grandfather, Jagdish is his Samadhi so
he has been implicated.

10. The accused-Uma Shanker
alleged that his brother-in-law Pahari used
to live in village Gursariya, that Indra
Prakash had opened an outlet for the flow
of water from his nala as a result of which a
quarrel took place between them, he with
the help of 5 to 10 persons had closed the
said outlet so he has been falsely
implicated.

11. The acused-Purushotam alleged
that the village Pradhan Ram Pal had
murdered his real brother Sri Ram, the
Village Pradhan was in the party of the
3-5 All. Awadhesh & Ors. Vs. State of U.P.
41
informant
so
he
has
been
falsely
implicated. The accused-Kalloo alleged
that his sister was married with Pahari in
Gursariya village, he had helped his
brother-in-law Indra Prakash in connection
with a nala so he has been implicated.

12. The accused-Pankaj alleged that
he had gone to village Umariya, Jhabboo
had agreed to purchase his bullock and the
deal was struck at Rs. 1000/-, he had also
paid Rs. 100/- as advance. Jhabboo did not
purchase his bullock so he demanded Rs.
100/- back from him as a result of which an
altercation had taken place so he has been
implicated.

13. PW-1, Jagdish had explained the
relationship between his family and that of
accused persons. According to which there
was old enmity between them. There is no
evidence to contradict the same. PW-1,
Jagdish stated that Sarjoo Prasad son of
Ram Dayal was murdered nearly 25-26
years back regarding which a complaint
was lodged by his deceased brother, Roop
Narain. When Gokaran son of Mishir Lal
disappeared about 12-13 years back and his
whereabouts were not known, Mishri Lal
had lodged a report with the police in
which he and his brother Chhail Behari
were named as accused persons, however,
no prosecution was launched due to lack of
evidence, as such, the accused-persons
were annoyed and the wife of Gokaran
used to say that she would not remove her
bangles for 12 years and she would avenge
for the disappearance of Gokaran. In fact,
the accused persons used to say that they
would take revenge for the same. He
further stated that nearly two and half years
back at about 6PM he had gone to Shahpur
market, deceased Roop Narain had also
gone there for selling food-grains, that he
had disposed of some of his food-grains but
some quantity remained. He had also gone
to purchase certain goods after selling
food-grains. Purushottam alias Khattoo
fired at Roop Narain and at that time Roop
Narain was seated. The time was 6 PM. On
being hit by shot Roop Narain moved one
or two steps and at that time Patrakhan
fired from his half gun and Roop Narain
fell down, that thereafter the accusedpersons, Kalloo, Sheo Poojan alias Dalld,
Avadhesh Kumar and Pankaj started
assaulting the deceased. Kalloo and Dalla
were armed with Lathi, Sheo Poojan and
Avadhesh Kumar were armed with banka
and Pankaj was armed with knife. The
accused Patrakhan took out the spent
cartridge from the gun and kept in his
pocket and he again fired second shot and
also said that if anyone would come
forward; then, he would also be killed. It
was also said that he was avenging for his
brother. Thereafter, the accused persons
lifted Roop Narain and after covering a
distance of 10 steps, Sheo Poojan and
Avadhesh Kumar severed the head of Roop
Narain. He also stated that the report of the
occurrence was written by Indra Prakash on
his dictates. PW-1 Jagdish proved the FIR
(Ext. Ka-1).

14. PW-1 Jagdish also stated that on
account of fear he did not wish to go to the
police station so he handed over the written
report to the village Chowkidar. He also
stated that he had mentioned in the report
that Patrakhan had fired in the air. He,
however, could not assign any reason as to
why the said fact was not noted in the FIR.
He also stated that he did not visit village
Chandasuwa and according to his memory
he had not visited the said village. He had
known the name of 2-4 persons resident of
village Chandasuwa. He had known the
village Pradhan Jagdish and his brother
Bishal, Shyam Pandey, Rampal, Pooran
42 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumhar and the accused persons. He also
stated that the villagers had told him the
name of Khattoo as Purushottam. That after
murder of Roop Narain he had enquired
about the name of Khattoo and someone
from the persons in the village had told the
name of Khattoo as Purushottam.

15. From the statement of PW-1
Jagdish it appears that he had not known
the accused person Purushottam who was
resident of Chandasuwa. Some persons
present in the market had disclosed the
name of Purushottam.

16. PW-2 Indra Prakash was the
scribe of FIR lodged by the PW-1. He had
stated that three years back his father-inlaw (deceased) was murdered in his village
but thereafter he added that he was
murdered in village Umariya. Village
Umariya was at a distance of one kilometer
from his village Gursariya. He had stated
that Roop Narain (deceased) was his fatherin-law. Shahpur market was at a distance of
2 kilometer from village Muriya towards
the south. In the evening of 15.7.1981 at
about 6PM his father-in-law Roop Narain
was murdered in Shahpur market, his
father-in-law had gone there to sell Masoori
(Pulse) and rice for meeting out his
household expenses. He further stated that
he had reached Shahpur market at about
5PM and thereafter he added that he
reached there at about 4.30PM. He had
gone there to take medicine for his ailing
mother. When he reached Shahpur market
he had talks with his father-in-law Roop
Narain who was selling food-grains.
Raghunath and Putwa Mishra were also
selling food-grains there and Jagdish was
selling food-grains towards east, that when
after talking with his father-in-law he had
started walking and gone 2-3 steps Khattoo
fired at his father-in-law by his countrymade pistol. Khattoo was also known by
the name Purushottam. His father-in-law
(deceased) ran towards north for 2 to 3
steps, that Patrakhan had also fired from his
half gun. Purushottam alias Khattoo was
the resident of village Chandasuwa. His
father-in-law after being hit by shots fell
down, that Patrakhan took out the spent
cartridge from his barrel and again filled
his gun with another cartridge. That Kalloo
alias Daya Shanker, Dalla alias Uma
Shanker, Sheo Poojan, Avadhesh, Pankaj
Kumar alias Chukki started assaulting
Roop Narain. Kalloo and Dalla were armed
with lathi, Avadhesh and Shop Poojan were
armed with banka and Chukki alias Pankaj
Kumar was armed with a knife. That
thereafter all the accused person lifted
Roop Narain and took him upto a distance
of 5-6 steps where Sheo Poojan and
Avadhesh severed the head of Roop Narain
and kept the same in their bag. Patrakhan
was also saying that if anyone would
advance; then, he would also be killed. He
had also fired in the air. He also stated that
he had scribed the FIR on the dictates of
Jagdish (PW-1).

17. Another eye-witness of the
occurrence in question is PW-3 Gokaran,
who stated that nearly 3 years back Roop
Narain was murdered in Shahpur market at
about 6PM. That on that day he had gone
from his village to purchase vegetables, etc.
from the said market. After purchasing
some goods he went towards the place
where food-grains were kept for sale. That
Khattoo had fired at Roop Narain. When
Roop Narain wanted to run then Patrakhan
also fired at Roop Narain with his half gun.
He had also fired second time, this time
Roop Narain fell down and then other
accused persons Chukki, Avadhesh, Kalloo,
Dalla ad Sheo Poojan assaulted him. The
accused Chukki had a knife, Sheo Poojan
3-5 All. Awadhesh & Ors. Vs. State of U.P.
43
and Avadhesh had banka while accused
Kalloo and Dalla had lathi in their hands.
The accused persons also lifted Roop
Narain and after going 10 steps Sheo
Poojan and Avadhesh severed the head of
Roop Narain and went away with their bag.
He stated that Shahpur market was at a
distance of three miles from his village. He
also stated that he had started from his
village at 4PM and reached market about
5PM. He further stated that 8-10 more
shopkeepers were also seated at the place
where Roop Narain was seated. He further
stated that none of his relations lived in
village Chandasuwa which is at a distance
of 2 kilometer from his village. He had no
talks
with
the
residents
of
village
Chandasuwa. He had also not enquired
about the names of the accused persons
from the residents of village Chandasuwa.
He further stated that he had merely known
Khattoo. He also stated that he had said
before the Investigating Officer that the
accused had severed the head of the
deceased and kept that in a bag. However,
PW-5, Jagdish Prasad Sharma who was
Investigating Officer in the case in his
cross-examination
stated
the
PW-3
Gokaran had not given any such statement
before him. PW-3 Gokaran also did not
assign any reason as to why Investigating
Officer had not recorded the aforesaid
statement.

18. PW-5, Jagdish Prasad Sharma
(Investigating Officer), in his statement has
stated that he had FIR in his possession
when the inquest report was prepared. He
also stated that Police Sub Inspector, S.K.
Singh had prepared the inquest report on
his dictation. In column no. 3 of the inquest
report (Ext.Ka-7) the date and time are
mentioned as 15.7.1981 and 7.30AM or
7.30PM,
however,
there
is
some
typographical error as the FIR was lodged
on 15.7.1981 at 8.45PM, therefore, the time
7.30AM or 7.30PM mentioned in column
no. 3 of the inquest report was not correct
and that could be due to human error and
sheer inadvertence and oversight. In the
end of the signature of the SI the numeral
15 of the date 15.7.1981 has been
corrected. Below the signature of the IO the
date 16.7.1981 is mentioned. Similarly,
time 7.30AM is clearly mentioned below
the signature of the Sub-Inspector so
discrepancy in column no. 3 of the inquest
report (Ext.Ka-7) has totally become
insignificant.

19. The prosecution had also
produced PW-4, Constable Sibte Hasan
who had recorded the FIR (Ext.Ka-2) on
the basis of written report (Ka-1). He had
confirmed the report no. 27 in the GD and
the FIR (Ka-2). He has denied that the said
report was lodged on the information given
by the Chowkidar. The prosecution had
also produced Dr. P.C. Pandey, who had
conducted the postmortem of the body of
deceased Roop Narain and has confirmed
the same. The prosecution in order to prove
its case had produced certain documentary
evidence such as written report (Ka-1), FIR
(Ka-2), copy of GD report no. 27 (Ka-3),
Site plan (Ka-5) Recovery memo (Ka-6),
Inquest report (Ka-7) and Postmortem
report (Ka-12) in addition to the witnesses
as noted above.

20. Learned counsel for appellants has
vehemently argued that there were strong
contradictions in the statement of PW-1 as
well as PW-2 and they are not trustworthy.
In this regard, it has been argued that PW-1
Jagdish in his statement had stated that due
to fear he did not wish to go to the police
station to lodge the FIR. He also stated that
he had handed over the written report to the
Chowkidar.
44 INDIAN LAW REPORTS ALLAHABAD SERIES

21. It is submitted that the FIR in this
case was not registered on the basis of the
compliant submitted by PW-1 as PW-1 has
himself submitted that he did not wish to
go to police station to lodge the FIR and
handed over the written complaint to
Chowkidar to take it to the police station.
This contradiction in the statement of PW-1
is a material contradiction which creates
doubt about the veracity of the FIR itself,
as such, the entire prosecution case appears
to be on falsehood. It is also contended that
PW-2 in his statement has stated that the
deceased Roop Narain was murdered in his
village but thereafter has added that he was
murdered in village Umariya, however,
subsequently at a later stage, he has stated
that Roop Narain was murdered in Shahpur
market. The statement of PW-2, as such,
was not reliable and the prosecution has
failed to prove its case beyond reasonable
doubt.

22. It has further been argued that
PW-1 Jagdish in his statement has said that
he had gone to his house in the night, after
lodging of the FIR and reached the place
where the dead body of Roop Narain was
lying for preparation of inquest report next
day, that in normal circumstance one whose
brother has been murdered would not have
slept and it was an unnatural conduct of
PW-1 Jagdish which creates doubt about
his presence at the time of occurrence.

23. It has further been argued by the
learned counsel for the appellants that as
per PW-1, Patrakhan had fired twice and he
had also fired in the air, however, the police
had not recovered any empty cartridge
from the place of occurrence.

24. It has also been argued by learned
counsel for appellants that the alleged
offence said to have been committed in the
market area where several persons were
present, however, the prosecution has not
produced any independent witness to
support its case. PW-1 and PW-2 are
relatives of deceased whereas PW-3 was
known to the deceased, as such, an
interested witnesse. In fact, no one had
witnessed the crime.

25. Learned AGA appearing for the
State, on the other hand while rebutting the
arguments of appellants' counsel has
submitted that the incident had happened in
the course of the day when there was
sufficient day light, at 6 in the evening on
15.7.1981. In the month of July, there is
sufficient sunlight at 6PM, as such, there
was no difficulty for the witnesses to
identify the accused persons. The witnesses
could have faced no difficulty in properly
seeing the incidence taking place and
identifying the accused persons. They did
so with all certainty. The accused were
named in the FIR as they were well known
to the witnesses of facts. He further
submitted that the First Information Report
was lodged promptly by the police on
receiving written complaint from the
informant, Jagdish (PW-1). In this regard,
he read over the relevant paragraph-extract
of the statement recorded by the Trial Court
of
PW-1
and
other
witnesses
like
Investigating Officer and Head Moharrir as
well as another witnesses of facts who were
present at the place of occurrence to
explain the gap of time between the time of
occurrence and lodging of FIR in the police
station. There was no delay in lodging of
FIR.

26. Learned AGA vehemently denied
the arguments of appellants with regard to
lodging of FIR by the informant, PW-1. It
was submitted that the FIR was lodged on
the basis of written complaint submitted by
3-5 All. Awadhesh & Ors. Vs. State of U.P.
45
PW-1 himself. The written complaint and
the FIR have been verified by the PW-1
and PW-4. He further submitted that after
lodging of FIR, the police party moved to
the spot where the dead body of the
deceased, Roop Narain was lying in
Shahpur market. Since it became dark due
to night, as such, the Investigating Officer
waited for the next day morning for getting
the inquest of the deceased done and
prepare the inquest report. The inquest
proceedings before the witnesses of inquest
were performed and inquest report was
prepared.
It
is
submitted
that
the
overwriting in the column No. 3 of the
inquest report was a human error and it was
corrected by the Investigating Officer while
signing the inquest report. After signature
of the IO in the inquest report, the date and
time have been mentioned which clarify the
position.
It
is
submitted
that
after
completion of inquest proceedings, the
dead body was sent for postmortem. The
inquest report contained the case crime no.
and relevant sections. It is very much clear
that the inquest was done after lodging of
FIR. It is also submitted that even memo
along with dead body prepared for sending
it for the postmortem bears the said case
crime number. All these documents have
been duly proved, therefore, the statement
with regard to registration of FIR, its time
and date stand proved and sufficiently
corroborated by documents.

27. It has been argued by the learned
AGA that in the FIR the informant had
given the names of the accused persons and
there was no room for any consultation or
dictation on the part of the Investigating
Officer.

28. Learned AGA has argued that
specific
role
has
been
assigned
to
respective accused-persons, weapons used
by them, time of occurrence and the
presence of ocular witnesses all are proved
by the witnesses of facts without any
contradiction, inconsistency and doubt.
Further, the narration of factual aspect of
the incidence stated by the witnesses find
support with the independent corroborative
evidence like postmortem report, site plan
and other formal witnesses.

29. It has been argued by the learned
AGA that every minutest detail is not
required to be mentioned in the FIR and in
case any relevant facts which have come in
light in the statement of the prosecution
witnesses which were not mentioned in the
FIR, the same cannot be rejected simply for
the reason that they were not mentioned in
the FIR. FIR is simple an information to the
police regarding commission of any crime
and all the relevant material facts come to
the
light
either
during
course
of
investigation by the police or in the
statement of prosecution witnesses. The
opportunity
of
cross-examination
is
provided to the accused-persons and the
Court has to decide about the veracity of
said facts on the basis of evidence on
record. It has also been argued that the
accused-persons have been charged under
Section 302 read with Section 149 IPC. The
presence of accused persons at the place of
occurrence was duly proved by the
prosecution, as such, they have been rightly
convicted under the aforesaid Sections.

30. Learned AGA countering the
arguments of learned counsel for appellants
submitted that the murder of deceased, no
doubt, took place in the market area of
Shahpur where several persons may have
witnessed the crime, however, looking to
the nature of crime when the head of the
deceased was severed in broad day light by
the accused persons and the head of the
46 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased was taken away in a bag by them,
no person could have come forward to give
any evidence against the accused persons.
It is also submitted that it is the discretion
of the prosecution to produce its witnesses
and the defence cannot take advantage in
case only three witnesses of facts have been
produced by the prosecution.

31. Learned AGA further argued that
the
worthiness
of
the
testimony
of
prosecution witnesses cannot be rejected
simply because PW-1 and PW-2 are the real
brother and son-in-law, respectively of the
deceased and PW-3 was known to the
deceased. The prosecution witnesses have
given the details of the manner in which the
crime was committed by the accused
persons, also giving the specific role and
the specific weapons used by them in the
commission of murder of the deceased
including the place, date and time of
occurrence which clearly goes to establish
their presence at the place of occurrence
and, as such, the evidence of ocular
witnesses
was
fully
trustworthy
of
credence.

32. Learned AGA submitted that the
prosecution has successfully proved its case on
the basis of witnesses, material produced and
proved before the Court beyond all reasonable
doubts. There was sufficient evidence and
corroborative material before the learned Trial
Court for recording conviction of appellants.
The learned Trial Court has rightly convicted
the accused-appellants under Section 302/149
IPC. Accordingly, the sentence of life
imprisonment imposed by the learned Trial
Court is just and proper and there is no error in
law or fact and same deserves to be confirmed.

33. After conclusion of arguments,
learned AGA in support of his contentions cited
certain cases laws. He gave reference of
judgment of the Apex Court in the case of
Gurmail Singh vs. State of Punjab and
another1, where the scope of constructive
liability under Section 149 IPC has been
explained. It was held in that case that murder
of deceased was the common object of the
unlawful assembly. It was also clear from
nature and number of injuries stated in
postmortem report. Injuries on deceased were
severe enough to lead to a reasonable
conclusion that common object of unlawful
assembly was murder of deceased. Hence,
totality of facts and circumstances led to
compelling inference that attack on deceased
was with object of killing him. The accused
were liable to convicted under Section 302/149
IPC.

34. Learned AGA also relied on the
judgment of the Apex Court in the case of
Chanakya Dhibar (dead) vs. State of West
Bengal and others2, where the Apex Court
set aside the acquittal of the accused
persons by the High Court and confirmed
the conviction of the accused awarded by
the Trial Court under Section 304 Part
I/149 and 148 IPC. It was held that even if
only one of the accused persons used the
weapon and definite role of all the accused
persons were not assigned, it cannot be
accepted that Section 149 would not be
applicable.

35. Learned AGA has also placed
reliance on the judgment of the Apex Court
in the case of Jivan Lal and others vs.
State of M.P.3, where the conviction was
upheld on a solitary evidence. It was held
that it is a settled law that conviction can be
based on the sole testimony of an
eyewitness provided that the said testimony
is found to be wholly reliable. Prudence
requires that corroboration of the testimony
of that witness should be sought for from
independent sources to base the conviction.
3-5 All. Awadhesh & Ors. Vs. State of U.P.
47

36. Learned AGA also relies on the
judgment of the Apex Court in the case of
Yakub Ismailbhai Patel vs. State of
Gujrat4, where the Apex Court held that
the conviction can be based on the
testimony of a solitary witness in case the
said testimony inspires confidence. The
Court should be cautious while examining
such evidence. Corroboration of other
evidence can be sought.

37. We have considered the arguments
advanced by learned counsel for appellants
as well as learned AGA.

38. It is to be noted that PW-1 Jagdish
had stated that he had gone to police station
along with Chowkidar. It has also come in
the statement of PW-1 that on account of
fear he did not desire to go to police station
and he had given the FIR to village
Chowkidar. However, from the statement of
PW-1 Jagdish it cannot, at all, be concluded
that he did not go to the police station to
lodge the FIR. He may have apprehended
danger so did not wish to go to police
station in the night, however, from the
statement of other prosecution witnesses
such as PW-2, PW-3 and PW-4, it clearly
goes to establish that the written report
regarding the occurrence was submitted by
PW-1 at the police station on the basis of
which FIR regarding crime was registered.

39. It is to be noted that PW-1 Jagdish
stated that after lodging FIR he had gone
home and stayed at home. It is also stated
that on 16.7.1981 he went to Shahpur
market at 11AM, he had stayed at his house
because several persons including relatives
had started reaching his house after hearing
about the occurrence. The deceased Roop
Narain was murdered in Shahpur market
and the informant Jagdish after submitting
written
report
at
the
police
station
regarding the occurrence of the crime could
have gone to his house and had again
returned to the place of occurrence next day
on 16.7.1981 at 11AM where the body of
Roop Narain was lying. It cannot be said
that there was any unnatural conduct of
PW-1 Jagdish in this regard.

40. In the case of Main Pal v. State of
Haryana5 the Apex Court in paragraphs 10
and 11 has held as under:

10. On a bare perusal of the trial
court's judgment one thing is patently
noticeable. The trial court has merely
referred to the arguments advanced and
has then come to abrupt conclusions
without even indicating any plausible or
relevant reasons therefor. Merely coming to
a conclusion without any objective analysis
relating to acceptability or otherwise of the
rival stands does not serve any useful
purpose in adjudicating a case.