# Babadeen (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Case number:** J. Criminal Appeal No. 125 of 2000
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babadeen-in-jail-v-state-of-u-p-45717
- **Pages:** 14

## Headnote

A. Criminal Law-Indian Penal Code -
Section 302- Appeal against conviction.

Law is well settled that even if acquittal is
recorded in respect of the co-accused on the
ground that there were exaggerations and
embellishments yet conviction can be recorded
in respect of the other accused if the evidence
is found cogent and reliable against him. (Para
28)

If prosecution case is based on direct evidence
of eyewitnesses and the law is settled that in
such cases presence or absence of motive is
not relevant. Motive is not a sine qua non for
the commission of a crime. Moreover, it takes a
back seat in a case of direct ocular account of
the commission of the offence by a particular
person. In a case of direct evidence the
element of motive does not play such an
important role so as to cast any doubt on the
credibility of the prosecution witnesses even if
there be any doubt raised in this regard. (Para
40)
If the eye-witnesses are trustworthy, the
motive attributed for the commission of crime
may not be of much relevance. Failure to prove
motive or absence of evidence on the point of
motive would not be fatal to the prosecution
case when the other reliable evidence available
on record establishes the guilt of the accused.
(Para 42)

FIR has been lodged promptly without any
delay. Three eye-witnesses including informant
have proved the prosecution case. There is no
contradiction, improvement or discrepancy in
their statement with regards to time, date,
place and manner of commission of offence by
accused. The injury report and postmortem
report fully corroborate the time, date and
manner of incident and it has been found that
both died by gunshot injuries. The prosecution
has succeeded in proving the charge under
Section 302 IPC beyond shadow of any doubt.
(Para 46)

Criminal Appeal rejected. (Para 47)

List of cases cited:-

## Text

_Characters 0–39,996 of 47,625. This is a partial read: ask again with offset=39996 for what follows._

2 All. Babadeen Vs. State of U.P.
651
shall be sent to jail for execution of their
sentences.
----------
(2020)02ILR A651

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE PRADEEP KUMAR SRIVASTAVA,
J.

Criminal Appeal No. 125 of 2000

Babadeen ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.K. Gupta, Sri K.D. Tewari, Sri Jitendra
Singh

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

A. Criminal Law-Indian Penal Code -
Section 302- Appeal against conviction.

Law is well settled that even if acquittal is
recorded in respect of the co-accused on the
ground that there were exaggerations and
embellishments yet conviction can be recorded
in respect of the other accused if the evidence
is found cogent and reliable against him. (Para
28)

If prosecution case is based on direct evidence
of eyewitnesses and the law is settled that in
such cases presence or absence of motive is
not relevant. Motive is not a sine qua non for
the commission of a crime. Moreover, it takes a
back seat in a case of direct ocular account of
the commission of the offence by a particular
person. In a case of direct evidence the
element of motive does not play such an
important role so as to cast any doubt on the
credibility of the prosecution witnesses even if
there be any doubt raised in this regard. (Para
40)
If the eye-witnesses are trustworthy, the
motive attributed for the commission of crime
may not be of much relevance. Failure to prove
motive or absence of evidence on the point of
motive would not be fatal to the prosecution
case when the other reliable evidence available
on record establishes the guilt of the accused.
(Para 42)

FIR has been lodged promptly without any
delay. Three eye-witnesses including informant
have proved the prosecution case. There is no
contradiction, improvement or discrepancy in
their statement with regards to time, date,
place and manner of commission of offence by
accused. The injury report and postmortem
report fully corroborate the time, date and
manner of incident and it has been found that
both died by gunshot injuries. The prosecution
has succeeded in proving the charge under
Section 302 IPC beyond shadow of any doubt.
(Para 46)

Criminal Appeal rejected. (Para 47)

List of cases cited:-

1. Balraje Vs. St. of Maha., 2010 (70) ACC 12
(SC),

2. Kallu Vs. St. of M.P., 2007 (57) ACC 959
(SC),

3. Amzad Ali Vs. St. of Assam, (2003) 6 SCC
270,

4. Om Pal Singh Vs. St. of UP, AIR 2011 SC
1562,

5.Kalika Tewari vs St of Bihar, JT 1997(4) SC
405,

6.Ram Gulam Chowdhary Vs St. of Bihar,
2001(2) JIC 986 (SC),

7. Sheoraj Bapuray Jadhav v St. of Kar., (2003)
6 SCC 392,

8. St. of UP v Sheo Lal, AIR 2009 SC 1912,

9. Durbal v St. of UP, 2011 CrLJ 1106 (SC),

10. Hari Singh v St. of UP, AIR 2011 SC 360,
652 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Abu Thakir v State AIR 2010 SC 2119,

12. St. of UP v Nawab Singh AIR 2010 SC
3638,

13. Bipin Kumar Mondal v St. of WB 2005 SCC
(Criminal) 33,

14. Shivraj Bapuray Jadhav v St. of Kar. (2003)
6 SCC 392,

15. Thaman Kumar v St. of UT of Chandigarh
(2003) 6 SCC 380,

16. St. of HP v Jeet Singh; (1999) 4 SCC 370,

17. Gopi Ram v St. Of UP, 2006 (55) ACC 673
SC,

18. R.R. Reddy v St. of AP, AIR 2006 SC 1656,

19. Sucha Singh v St. of Punjab; AIR 2003 SC
1471,

20. St. of Raj. v Arjun Singh AIR 2011 SC 3380,

21. Varun Chaudhry v St. of Raj. AIR 2011 SC
72,

22. Saddik Vs. St. of Guj., (2016) 10 SCC 663,

23. Awdhesh Kumar v St. of UP, 2019 (4)
CRIMES 219 (SC),

24. State of MP v Shivshanker, (2014) 10 SCC
366,

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

1. Heard Sri Jitendra Singh, learned
counsel for the appellant, Sri L.D. Rajbhar
and Mrs. Alpana Singh, learned A.G.A for
the State and perused the record.

2. This criminal appeal has been filed
against the judgment and order dated
10.12.1999, passed by the Sessions Judge,
Mahoba, in Sessions Trial No. 38 of 1996
(State vs. Baba Deen And others), arising
out of Case Crime No. 193 of 1995, under
Section 302 IPC, Police Station Shrinagar,
District Mahoba, whereby the accusedappellant Baba Deen has been convicted
and sentenced for life imprisonment. By
the same judgment, two other co-accused
persons Chhote Lal and Kali Charan have
been acquitted.

3. Brief facts of the case is that the
incident took place on 02.12.1995 at about
06:00 PM in the village Pawa, PS
Shrinagar, Mahoba. At the time of
incident, the informant Prem Narain had
gone to the shop of Gaya babu for
purchasing Bidi and behind him his niece
Raj Kumari aged about 13 years and
nephew Arjun aged about 12 years had
also come to the shop. Accused Baba Deen
came from the side of his house along with
co-accused Kali Charan and Chhote Lal.
Seeing the informant on the shop, Kali
Charan and Chhote Lal exhorted Baba
Deen, whereupon he fired by his country
made gun of 12 bore on the informant, but
he escaped. Unfortunately, the pellets of
the fire hit his niece and nephew who
sustained injuries. After that, all the three
accused persons ran away towards their
house. The nearby people Lakhan Lal
Lodhi and Ashok Kumar Lodhi saw the
whole incident. The informant and his
family members took the injured persons
to the police station by tractor, where he
submitted his written report on the basis of
which the offence was registered under
Section 307 IPC. The informant's niece
namely Raj Kumari was dead by the time
the doctor examined her, about which the
informant also informed to the police.
Inquest report of the dead body was
prepared along with the relevant papers
and the postmortem of Raj Kumari was
conducted on 03.12.1995. On the basis
thereof, the case was converted into
2 All. Babadeen Vs. State of U.P.
653
Section 302 IPC. The injured Arjun was
serious and he was referred to the Medical
College, Gwaliar, where he was provided
treatment and when he was discharged on
14.12.1995 from the hospital and was
being brought to the village, at about 05:30
PM, he also died near the railway station
and the same was also reported to the
police. Inquest report was prepared along
with
the
relevant
papers
and
the
postmortem of Arjun was conducted on
15.12.1995.

4. The police investigated into the
matter, recorded the statements of the
witnesses and prepared the site map. The
accused-appellant Baba Deen was taken
into custody and on his instance a country
made gun of 12 bore was recovered from
the hedges of sugarcane field, which the
accused Baba Deen gave to the police and
stated that by that gun, he fired on Prem
Narain and by mistake the fire hit the
nephew Arjun and niece Raj Kumari.
When asked, he could not show the
license. Offence under Section 25 Arms
Act was registered against him. The police
sent the gun which was recovered from the
accused Baba Deen for forensic report and
finding sufficient evidence against the
accused persons submitted charge sheet
for the offence under Section 302 read
with Section 34 IPC and under Section 25
Arms Act against the accused Babadeen.

5. The learned trial court framed the
charges against accused Baba Deen for the
offence under Section 302 IPC and Section 25
Arms Act and against Kali Charan and Chhote
Lal for the offence under Section 302/34 IPC.

6. Prosecution examined as many as nine
witnesses. PW-1 Prem Narain (informant0 has
proved the written report Ext. Ka-1 and the
information dated 15.12.1995 regarding the
death of Arjun Ext. Ka-2 and has stated about
the incident. PW-2 Lakhan Lal and PW-3
Ashok Kumar are the eye witnesses. PW-4 Dr.
D. K. Tripathi of District Hospital, Mahoba
has proved the postmortem report of Arjun as
Ext. Ka-3. PW-5 SI Bhagwant Singh Tomer
has proved the GD regarding the death of Raj
Kumari as Ext. Ka-4, inquest report as Ext.
Ka-5, photo Nash Ext. Ka-6, challan Nash Ext.
Ka-7 and letter to CMO Ext. Ka-8. PW-6 Dr.
M.S. Rajpoot has proved the injury report of
Arjun as Ext. Ka-9 and postmortem report of
Raj Kumari as Ext. Ka-10. PW-7 SO R.K.
Gautam has proved the chik FIR Ext. Ka-11
and GD report Ext. Ka-12. He has also proved
the statement of injured Arjun, recorded in the
case diary and filed at the time of giving
statement as Ext. Ka-13, site map Ext. Ka-14,
Memo of pellets, empty cartridges, blood
stained and plain earth Ext. Ka-15, GD report
of converting the offence under Section 302
IPC as Ext. Ka-16 and GD report Ext. Ka-17
about the information of death of Arjun,
Memo of recovery of gun ext. Ka-18, site map
of the place of recovery Ext. Ka-19 and charge
sheet Ext. Ka-20. He has also proved the
recovered gun as material Ext.-1, empty
cartridge as material Ext. 2 and pellets as
material Ext. 3. He also proved the sealed
blood stained clothes of the deceased which
were sent for chemical examination and blood
stained and plain earth sealed in a packet. PW8 SI Nasruddin Siddiqui (IO) has proved the
charge sheet as Ext. Ka-20. PW-9 SI Umapati
Rai has proved the inquest report as Ext. Ka21, letter to CMO Ext. Ka-22, photo Nash Ext.
Ka-23, challan Nash Ext. Ka-24. He has also
proved the gun recovered on the instance of
accused Baba Deen as material Ext. 9. FSL
report, Agra regarding the gun is Ext. Ka31.

7. The statements of the accused
persons were recorded under Section 313
Cr.P.C. They have put forward the case of
654 INDIAN LAW REPORTS ALLAHABAD SERIES
denial and have stated the case and
evidence of witnesses to be false and
based on enmity. They have not produced
any evidence in their defence.

8. On the basis of evidence on
record,
the
learned
trial
court
has
convicted the accused-appellant for the
offence under Section 302 IPC. He has,
however, been acquitted from the offence
under Section 25 Arms Act. The coaccused persons Kali Charan and Chhote
Lal have been acquitted from the charge
under section 302/34 IPC.

9. Feeling aggrieved by the conviction
and sentence, the present criminal appeal has
been filed contending that the impugned
judgment is against the weight of evidence on
record and unsustainable in the eyes of law.
The sentence awarded is too severe.

10. During the course of argument,
learned counsel for the appellant has submitted
that the learned trial court has committed error
in convicting the accused-appellant as on the
basis of same evidence, the co-accused persons
have been acquitted. It has further been
submitted that the recovered gun which was
characterized to be a weapon used in
commission of the offence and for which, the
accused was tried for the offence under Section
25 Arms Act, he has been acquitted. There are
discrepancies and contradictions in the
evidence of the fact witnesses. The death of
Arjun did not take place instantly as he died
while coming back after being discharged
from the hospital because of infection.The
prosecution has failed to establish the guilt
beyond the shadow of doubt and, therefore, the
impugned order is liable to be set aside and the
accused-appellant is entitled for acquittal.

11. On the contrary, the learned AGA
has submitted that the eye witnesses have
supported the prosecution version and the case
of prosecution was proved by medical and
other evidences also. The learned trial court
taking into consideration the evidence on
record has rightly convicted and sentenced the
accused appeallant. Therefore, the appeal is
liable to be dismissed.

12. In view of the rival contentions of
both the sides, it is necessary to examine and
scrutinize the evidence adduced from the side
of prosecution to prove the charge.

13. PW-1 Prem Narain is the
informant. He has stated that he knows the
accused persons. They are the residents of
his village. The accused Kali Charan and
Chhote Lal are the real brothers and
accused Baba Deen is son of Kali Charan.
In the village there is a shop of Gaya Babu
and from his shop, the house of accused
Baba Deen is situated about 30 meters in
the north. The incident took place on
02.12.1995 at about 06:00 PM when the
informant had gone to purchase Beedi
from the shop of Gaya Babu along with his
nephew Arjun aged about 12 years and
niece Raj Kumari aged about 13 years.
Accused Baba Deen who was already
present there, on the exhortation of other
co-accused Kali Charan and Chhote Lal,
fired on the informant. Fortunately, he
escaped, but the pellets of the fire hit his
nephew and niece and they sustained
injuries. The witnesses Lakhan Lal and
Ashok Kumar saw the whole incident. The
accused persons thereafter fled away from
the place. Some pellets also hit the wall of
the house of Thakur Das. The empty
cartridges also fell on the ground. He went
to the Police Station Shrinagar along with
both the injured children and got the report
scribed by Laxman and gave the same to
the police station. Both the children were
taken to the Hospital at Mahoba where
2 All. Babadeen Vs. State of U.P.
655
Rajkumari was declared dead. Arjun was
referred to Gwaliar. Arjun died on
14.12.1995 while coming back from there
on
the
railway
station
after
being
discharged from the Gwaliar Hospital. The
dead body was taken to the Police Station
Shrinagar and the written information for
the same was given on 15.12.1995. The
witness has further stated that two days
before the date of incident, the accused
Baba Deen had passed in front of his door
using abusive language and when he was
prevented, the accused threatened him.

14. PW-2 Lakhan Lal is an eye witness.
He has stated that he knows all the three
accused persons. The accused persons belong
to his village. He has stated that about 15
months before at 06:00 PM in the evening, he
was taking groundnut from the shop of Gaya
Babu. Prem Narain, Arjun and Raj Kumari
were also there. The three accused persons
came and on the exhortation of Chhote Lal and
Kali Charan, accused Baba Deen fired on
Prem Narain who escaped but the fire hit
Arjun and Raj Kumari. The accused persons
ran away from there. The injured children were
taken by Prem Narain to Srinagar. Both the
children died because of fire arm injuries. The
girl died in the police station, whereas, the boy
died in Gwaliar.

15. PW-3 eye witness Ashok Kumar has
also stated that he knows all the three accused
persons. He has stated that about 13 months
ago, at about 06:00 PM in the evening, when
he had gone to the shop of Gaya Babu for
purchasing Beedi, Lakhan Lal, Prem Narain,
Arjun and Raj Kumari were also present there.
The three accused persons came. Accused
Baba Deen was having a gun and on the
exhortation of the co-accused persons namely
Chhote Lal and Kali Charan, the accused Baba
Deen fired on Prem Narain who escaped but
the pellets of the fire hit Arjun and Raj Kumari
who died. Prem Narain took the children to
Shrinagar. The accused persons ran away from
there. Raj Kumari died in the police station,
whereas Arjun died in Gwaliar.

16. PW-4 is Dr. D.K. Tripathi who
conducted the postmortem of Arjun on
15.12.1995 at District Hospital, Mahoba on
03:30 PM. The dead body was sent in sealed
condition and was brought by Constable
Pramod Kumar and Constable Jagdish on
Police Station, Shrinagar. The witness has
stated that he found the following injuries on
the body of the deceased :-

(i) Old healed scar mark, three
in number on the left side of the forehead,
0.5 cm. in oval shape. All the three injuries
were at the distance of 1 cm. from each
other and 1cm. above the upper margin of
orbit.

(ii) Old healed scar mark, over
vertex, five in number, 0.8 cm. above the
root of the nose in size of 0.5 X 0.6 cm. in
oval shape and at the distance of 0.3 cm.
to 4.5 cm. from each other.

17. In the internal examination,
injury was found on the skull and front
bone, 0.5 cm. X. 0.5 cm. size oval shape at
the distance of 1 cm from each other and
in the middle of the orbit. Two oval hole
was found present with puss. Two pellets
were also found on the left posterior on the
1/3 of the western part and puss was
present. The deceased was 12 years old.
Rigor mortis was not present in the upper
limb and it was only present on the lower
part of the foot.

18. The cause of death was injuries
caused by fire arm because of invocation
and coma. The deceased should have died
one day before from the time of
postmortem. The doctor has stated that the
656 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased must have died on 14.12.1995 at
about 05:30 PM.

19. PW-5 SI Bhagwant Singh Tomar
has stated that on 02.12.1995, when he
was posted in Kotwali as Sub-Inspector,
the ward boy Ram Asraey of District
Hospital, Mahoba gave a written report
about the death of Raj Kumari, which was
entered on the same day in the GD Report
No. 49 at 10:00 PM. He has also stated
that he prepared the inquest report of Raj
Kumari and all the necessary papers for
postmortem. The dead body was sealed
and was sent for postmortem under the
custody of Constable Maan singh and
Home Guard Mohan Lal.

20. PW-6 Dr. M.S. Rajpoot has stated
that on 02.12.1995, he was posted in the
District Hospital, Mohaba and the injured
Arjun was brought at 08:15 P.M. in the night
who was aged about 12 years and he was
examined by him. Arjun was brought by
Home Guard Jai Prakash and Home Guard
Mahendra Kumar of Police Station Shrinagar.
In the examination, the following injuries were
found on the body of Arjun -

(i) Multiple fire arm injuries, total
three in number in the area of 4 cm. X 2 cm. on
the left side of the forehead, just above the left
eyebrow. The size of injury was 0.5 cm. X 0.5
cm. in oval shape and the margin were
internally bend. X-ray was advised.

(ii) Multiple fire arm entry wound,
five in number in the area of 10 cm. X 10 cm.
on the head, the size of the injury was 0.5 cm.
X 0.5 cm., oval shape and the margin were
internally bend. X-ray was advised.

21. According to doctor, the injuries
were caused by fire arm and it was possible
that the injuries must have been caused by gun
on the same day at about 06:00 PM.

22. PW-6 has further stated that on
03.12.1995 at about 01:00 PM, he conducted
the postmortem of the dead body of Raj
Kumari, who was brought by Constable Maan
Singh and Home Guard Mohan Lal of Police
Station Shrinagar, in sealed condition. On
examination, following ante-mortem injuries
were found :-

(i) Multiple fire arm injuries in the
area of 33 cm x 8 cm on the left hand on the
front side in the outer area. The size of injury
was 0.5 cm x 0.5 cm, oval shape and the
margin were internally bend.

(ii) Multiple fire arm injuries in the
area of 45 cm x 16 cm on the left side of chest
and on the front abdomen in 0.5 cm x 0.5 cm in
size, oval shape and the margin were
internally bend.

23. In internal examination, the entry
wound was present on the fourth and fifth
ribs and on ninth and tenth ribs also.
Pellets were recovered. Heart was vacant
and black blood was present in the cavity.
In the stomach, 250 grams pasty food was
present.

24. From the small intestine, one
pellet was also found. One pellet was
found from membrane and one was
recovered from Tilli which was torn. The
deceased was aged about 13 years and was
of average height. The doctor has stated
that the cause of death was injuries caused
by fire arm and the death must have been
caused 3/4 day before on 02.12.1995 and
after 08:00 PM in the night. The fire arm
injury was possible by gun.

25. PW-7 R.K. Gautam, SO
(Investigating Officer) has stated that the
injured persons were brought on tractor
lying on a cot. The condition of Raj
Kumari was very poor and she was not
2 All. Babadeen Vs. State of U.P.
657
able to talk. Arjun was conscious and his
statement was taken. Next day in the
morning, he recorded the statement of
Prem Narain and on his identification, site map
of the place of occurrence was prepared. Some
pellets were found near the wall of the house of
Thakur Das which were taken into possession.
Empty cartridges, blood stained and plain earth
were also taken into possession from there and
sealed and memo was prepared. Statements of
the witnesses were recorded. The postmortem
and the injury report was obtained. The
statement of Lakhan Lal and Ashok Kumar
was also recorded. The accused Baba Deen
surrendered in the court on 09.12.1995 and the
other two accused also surrendered in the
court. Their statements were recorded.
Accused Baba Deen confessed and stated that
after firing, he had concealed the gun and he
can get the same recovered. On 15.12.1995,
the informant Prem Narain gave a written
report regarding the death of Arjun. Baba
Deen, accused was taken on police remand. He
took the police and witnesses voluntarily and
got the gun recovered from the garden of Lalu
Baba @ Lala Das from the field of sugarcane.
The gun was taken into possession and sealed
and memo was prepared. The site map of the
place of recovery was also prepared. The
witness has further stated that on 18.12.1995,
he
was
transferred,
whereupon
the
investigation
was
undertaken
by
SO
Nasiruddin and after taking the statement
about the recovery of gun and the statement of
the witnesses of inquest report, the recovered
gun and other items were sent for chemical
examination at Agra. Thereafter, charge sheet
was submitted. This witness has proved the
charge sheet as secondary witness and has also
proved the gun, empty cartridges, pellets,
blood stained clothes of deceased and blood
stained and plain earth.

26. PW-8 SI Nasiruddin Siddiqui has
also stated that he examined the witnesses of
memo of recovery of gun and the witnesses of
inquest
report
and
sent
for
chemical
examination the recovered gun and other items
to Agra and submitted charge sheet in the case.

27. PW-9 SI Umapati Rai has stated that
he prepared inquest report and sealed the dead
body of Arjun and prepared relevant letter and
papers for the purpose of postmortem and
handed over the dead body to Constable
Pramod Kumar and Constable Jagdish Prasad.
He has also stated that SI R.K. Gautam lodged
the first information report against the accused
Baba Deen in Crime No. 201 of 1995 under
Section 25 Arms Act. He has further stated that
he investigated the offence and after taking the
statement of the recovery witness and chik
writer and preparing the site map of the place
of recovery and obtaining the necessary
sanction, submitted charge sheet under section
25 of the Arms Act.

28. The first submission of the
learned counsel for the accused-appellant
is that on the basis of same evidence, the
two co-accused persons Kali Charan and
Chhotey Lal were acquitted by the learned
trial court and as such, the accused
appellant was also entitled for acquittal.
We are of the firm view that on this
ground alone, the accused-appellant is not
entitled for acquittal. It has been consistent
view of the Supreme Court that where
acquittal of co-accused was recorded, the
same cannot become a basis for acquittal
and the case of individual accused shall be
considered on the basis of evidence
available on record against him. In
Balraje Vs. State of Maharashtra, 2010
(70) ACC 12 (SC), Kallu Vs. State of
M.P., 2007 (57) ACC 959 (SC) and
Amzad Ali Vs. State of Assam, (2003) 6
SCC 270, it has been held that where
some of the accused persons were
acquitted, on the basis of benefit of doubt,
658 INDIAN LAW REPORTS ALLAHABAD SERIES
as no positive role or any overt acts was
attributed to them, it has been held that
same treatment could not have been meted
out to all the other accused whose
complicity and specific role in the
commission of the offence was firmly
established by evidence. Law is well
settled that even if acquittal is recorded in
respect of the co-accused on the ground
that
there
were
exaggerations
and
embellishments yet conviction can be
recorded in respect of the other accused if
the evidence is found cogent and reliable
against him. In the case in hand, the
accused appellant has been assigned role
of causing firearm injuries resulting in
death of two deceased children. The coaccused persons were assigned the role of
exhortation only. The learned trial court
finding discrepancy in evidence with
regards to the involvement of the coaccused persons in the commission of the
offence, acquitted them. The learned trial
court also found established that the
accused-appellant was the main accused
who fired and caused death of the two
children. In view of the above discussion,
we find no force in this argument.

29. The learned trial court has on
evidence found that within one and half
hours of the incident, FIR has been lodged
by giving a written report in the Police
Station. The informant went there on a
tractor carrying the two injured and the
distance was 11 km. PW-1 informant has
stated that after the incident he got the
report scribed by Laxman in the village
itself and gave it to the police after signing
the same. Therefore, the FIR was lodged
promptly in the facts and circumstances of
the case. On this basis, the learned trial
court has very rightly concluded that the
promptness
of
FIR
rules
out
any
possibility of legal assistance and false
implication. The report regarding death of
Rajkumari has been also promptly given
on the basis of which the offence has been
converted into that of section 302 IPC.
Thereafter, when Arjun died, it was also
reported without any delay. The three fact
witnesses examined by prosecution have
stated that the incident took place on 6 PM
in the evening. PW-1 Premnarain has
stated that the incident took place on
2.12.1995 and PW-2 has stated that the
incident took place 15 months ago and
PW-3 has stated that it took place 13
months ago. They both have been
examined 14-15 months ago from the date
of incident and as such, the date and time
of the commission of offence has been
proved. It finds further support from the
medical
report
of
Arjun
who was
examined on the date of incident at 8.15
PM and PW-6 Dr. M. S. Rajpoot has
stated that the injury to him should have
been caused on same day at 6 PM.
Similarly, he conducted postmortem of
Rajkumari on 3.12.1995 at 1 PM and she
must have died after 8 PM, a day before.
Therefore,
the
time
and
date
of
commission of the offence has been
proved.

30. So far as place of occurrence is
concerned, there is consistency in the
version of FIR, site map prepared by the
IO and the witnesses examined by the
prosecution. Ext. Ka 14 is the site map in
which the shop of Gaya Babu has been
shown on the corner where one pathway
coming from north which connects with
the path way from east to west and
opposite to it, there is house of Thakur
Das. The house of Gaya Babu opens in the
west towards the way coming from north
and the shop opens towards south on the
pathway going towards west from east and
in the east after two houses, house of
2 All. Babadeen Vs. State of U.P.
659
informant exists, whereas, house of
accused Babadeen is situated in the north
opening on the path which comes from
north to south. This shows that all the
concerned including witnesses live in the
same vicinity. It has been stated by PW-1
that the house of PW-2 Lakhan Lal is in
the east of his house whereas, house of
PW-3 Ashok is 20-30 step ahead in the
east from his house. Meaning thereby, the
houses and shop are situated around and
close to the place of occurrence shown by
alphabet A which is in front of the shop of
Gaya Babu. As such, their presence on and
close to shop is natural and the witnesses
including informant were there to purchase
beedi or some domestic item. All the three
witnesses of fact have stated that the
offence was committed by accused in front
of the shop of Gaya Babu. The IO has
stated that he found certain pellets near the
wall of the house of Thakur Das. From the
place of occurrence, cartridge and blood
stained and plain earth were taken in
possession and memo was prepared. PW-1
informant has stated that some of the
pellets hit the wall of the house of Thakur
Das. Therefore, the place of occurrence
has been fully established.

31. All the three eyewitnesses have
categorically stated that accused Babadeen
shot fire on the informant, but he
fortunately escaped and the fire hit both
the deceased children. Rajkumari died
same day by the time she reached hospital.
Deceased Arjun died on 14.12.1995
because of firearm injuries. All the three
witnesses have been cross-examined by
defence, but, there appears to be no
contradiction
or
discrepancy
or
improvement on any material aspect. They
are witnesses of same locality and their
presence on spot cannot be doubted as
they all had come to the shop for
purchasing something. They have stated
that that they saw that accused Babadeen
shot fire by his gun and the fire struck the
two children instead of Prem Narain. This
finds further corroboration from the
statement of deceased Arjun whose
statement was recorded by the IO under
section 161 of the Criminal Procedure
Code when he was in the hospital and his
statement has been proved by PW-7 IO
R.K. Goutam as Ext. Ka-13 in which
deceased Arjun has stated that accused
Babadeen fired and he and his sister
Rajkumari sustained injury and fell down.
He has also stated that at the time of
incident that he and his sister had gone to
take biscuit with their uncle. We find that,
even though, the statement of the deceased
was recorded by the IO, the same has been
rightly used by the learned trial court as
dying declaration in support of ocular
testimonies of the three eye-witnesses.

32. The postmortem report of
deceased Rajkumari shows that multiple
firearm wounds (34 in number) were
found in the area of 33 cm x 8 cm on the
left hand and firearm wounds 25 in
number in the area of 45 cm x 16 cm on
the left side of chest and abdomen. She
died due to shock and hemorrhage resulted
by ante-mortem firearm injuries. It is
pertinent to mention that she died just two
hours after the incident and her injuries,
particularly injury no 2 is on vital part,
with 25 entry wounds of pellets out of
which 3 pellets recovered and several
internal organs were torn or damaged. In
the cross-examination, Dr. Rajpoot has
denied the suggestion of the defence that
injuries were not caused by firearm.

33. Similarly, the other injured
Arjun, though died after 12 days from the
date of incident, his condition was very
660 INDIAN LAW REPORTS ALLAHABAD SERIES
serious and he was referred to Gwaliar for
treatment. Prior to that, he was examined
by PW-6 Dr. Rajpoot in the District
Hospital, Mahoba and his injuries were on
vital part and head in the form of multiple
firearm injuries which were eight in
numbers. His postmortem report shows
that on the middle part of upper orbital
margin, two oval hole was found filled
with puss and two pellets found in left
posterior 1/3 part of parietal cortex and
puss present in the frontal part of left
cortex. PW-4 has stated that the cause of
death was Coma resulted by ante-mortem
firearm injuries causing infection in brain.
During cross-examination, he has stated
that it is not possible to say that, if pellets
were removed from brain by operation and
proper treatment provided, the deceased
could have been saved. He has stated that
the brain does not regenerate and the
injuries were healed from out side but not
from inside. It is pertinent to mention that
the pellet injuries were on most sensitive
part brain and despite treatment it was not
cured. It also deserves mention that the
deceased was only 12 years in age. As
such we do not find any force in the
submission of the learned counsel to the
appellant that Arjun died because of
infection as the infection was also the
result of the firearm injuries by which
substantial damage was caused to brain.
Therefore, we are of the firm opinion that
both the deceased persons died because of
the firearm injuries caused by the accused
which was on the vital and sensitive part
of the body and death was the most
probable result.

34. It has been further argued that
one fire will not result in multiple pellet
injuries nor will hit two persons at a time.
We, on a thoughtful consideration of this
point, are unable to agree with this
argument. It all depends upon the nature of
gun used in committing the crime. In this
case, a country made gun of 12 bore was
used by the accused. It has been held in
Om Pal Singh Vs. State of UP, AIR 2011
SC 1562, that a single shot fired from
double barreled gun can cause multiple
injuries. A gun the fire of which spreads
pellets can always result in multiple
injuries and it can hit more than one.

35. It has been submitted by the
learned counsel for the appellant that the
incident took place at 6 PM and in the
month of December it becomes dark and it
was not possible to identify the assailant
and the accused was falsely implicated. In
support of this submission, the statement
of PW-2 and PW-3 has been referred who
have admitted in their cross-examination
that it was sun set when the incident took
place. He has also pointed out the
discrepancy in the statement of these two
witnesses as PW-3 has stated that it was
sun set but visibility was there, whereas,
PW-2 has stated that he gave statement to
IO that it was dark but moonlit night. He
has
however
stated
during
crossexamination that at the time of fire by
accused there was enough visibility, but he
is not sure whether it was visibility of day
or moonlit.

36. The Supreme Court has clarified
the law on this point in various judgments
and has laid down that a witness, who is
accustomed to live in darkness, poor light
or no light, and acquainted with the
accused, can identify the accused even in
darkness. In Kalika Tewari v State of
Bihar, JT 1997(4) SC 405, the Supreme
Court held,

"The visible capacity of urban
people who are acclimatized to fluorescent
2 All. Babadeen Vs. State of U.P.
661
light is not the standard to be applied to
villagers whose optical potency is attuned
to country made lamps. Visibility of
villagers is conditioned to such lights and
hence it would be quite possible for them
to identify men and matters in such lights."

37. In Ram Gulam Chowdhary v
State of Bihar, 2001(2) JIC 986 (SC), it
was argued that it was not possible for the
eye witnesses to have identified the
accused persons in poor light of lantern in
the night. The Supreme Court rejected the
argument and remarked that "as the
incident took place in village and the
visibility of villagers are conditioned to
such lights and it would be quite possible
for the eye witnesses to identify men and
matters in such light."

38. In Sheoraj Bapuray Jadhav v
State of Karnataka, (2003) 6 SCC 392,
in a trial u/s 302/34 IPC, accused persons
were known to prosecution witnesses.
Occurrence had taken place at about 11.00
PM, two days prior to the new moon day.
Parties were used to live in the midst of
nature and accustomed to live without
light. Further, they were close relatives
and living in the neighboring huts.
Similarly, in State of UP v Sheo Lal, AIR
2009 SC 1912 , the murder had taken
place at night and the source of light was
not indicated in the FIR and the accused
and the eye witnesses were closely related.
It has been held by the Supreme Court in
both the cases that the evidence of eye
witnesses cannot be discarded on the basis
of non-disclosure of source of light or
insufficiency of light as well-acquainted
persons can be well identified in darkness.
In Durbal v State of UP, 2011 CrLJ
1106 (SC) and Hari Singh v State of UP,
AIR 2011 SC 360, Where the parties
belonged to the same village and were
well known to each other, it has been held
that merely because torch not taken into
possession by the IO would not mean that
witnesses were not credible and conviction
under Section 302 IPC was held proper.

39. In view of above discussion and
also for two reasons, we are not inclined to
add any significance to this alleged
discrepancy.
Firstly,
all
the
three
eyewitnesses have clearly stated in their
examination-in-chief
that
they
saw
accused Babadeen firing by his gun
causing injuries to the two children.
Secondly, the witnesses lived in same
vicinity and accused was well known to
them as he resides in the same locality
close to their house and close to the shop
of Gaya Babu. In such situation, though at
6 PM in December it is not completely
dark, but even if it was dark, it was
possible for these witnesses to identify the
accused as he was well known to them and
they lived in village and were in the habit
of living in dark or in low light condition.
The submission of learned counsel that the
prosecution has not alleged the source of
light at the time of incident is also of no
significance in view of above discussion.

40. It has been further argued by the
learned counsel to the appellant that there
was no motive with the accused prompting
him to cause such offence. In the FIR it
has been alleged, and PW-1 has stated
during trial that two days before the date
of incident, the accused Babadeen passed
from his door abusing the informant and
on being prevented, he threatened the
informant to see him later on. Moreover,
the prosecution case is based on direct
evidence of eyewitnesses and the law is
settled that in such cases presence or
absence of motive is not relevant. In a
number of decisions, like Abu Thakir v
662 INDIAN LAW REPORTS ALLAHABAD SERIES
State AIR 2010 SC 2119, State of UP v
Nawab Singh AIR 2010 SC 3638, Bipin
Kumar Mondal v State of West Bengal
2005
SCC
(Criminal)
33,
Shivraj
Bapuray Jadhav v State of Karnataka
(2003) 6 SCC 392, Thaman Kumar v
State of Union Territory of Chandigarh
(2003) 6 SCC 380, State of HP v Jeet
Singh; (1999) 4 SCC 370, it has been
repeatedly held by the Supreme Court that
motive is not a sine qua non for the
commission of a crime. Moreover, it takes
a back seat in a case of direct ocular
account of the commission of the offence
by a particular person. In a case of direct
evidence the element of motive does not
play such an important role so as to cast
any doubt on the credibility of the
prosecution witnesses even if there be any
doubt raised in this regard. If the eyewitnesses are trustworthy, the motive
attributed for the commission of crime
may not be of much relevance. Failure to
prove motive or absence of evidence on
the point of motive would not be fatal to
the prosecution case when the other
reliable evidence available on record
unerringly establishes the guilt of the
accused.

41. We find that the Supreme Court
has clearly opined in various decisions,
such as Gopi Ram v St. Of UP, 2006 (55)
ACC 673 SC, R.R. Reddy v State of AP,
AIR 2006 SC 1656, Sucha Singh v State
of Punjab; AIR 2003 SC 1471, State of
Rajasthan v Arjun Singh AIR 2011 SC
3380, Varun Chaudhry v State of
Rajasthan AIR 2011 SC 72 and in the
recent judgment of Saddik Vs. State of
Gujarat, (2016) 10 SCC 663, it has been
held that the prosecution case could not be
denied on the ground of alleged absence or
insufficiency
of
motive.
Motive
is
insignificant in cases of direct evidence of
eyewitnesses. Failure to prove motive or
absence of evidence on the point of motive
would not be fatal to the prosecution case
when the other reliable, truthful and
acceptable evidence is available on record
sufficient to establish the guilty of accused
persons.

42. We are of the view that when
there
is
sufficient
direct
evidence
regarding the commission of offence, the
question of motive should go away from
the mind of the Court. Motive is a double
edged weapon and the key question for
consideration in cases based on direct
evidence remains whether the prosecution
had
convincingly
and
satisfactorily
established the guilt of all or any of the
accused beyond reasonable doubt by
adducing reliable and cogent evidence.