# Balvinder Singh (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-18
- **Case number:** Criminal Appeal No.1211 of 1991
- **Bench:** Manoj Misra, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balvinder-singh-in-jail-v-state-of-u-p-48562
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-motive-dispute
over
land
property-appellant was not happy with
the share he got and therefore, he bore
enmity with the deceased-accused was
assaulting the deceased with an axe- axe
not recovered-ocular account rendered by
PW-1
and
PW-3
reliable
and
not
inconsistent with medical evidence-FIR
lodged promptly considering the distance
and the mode of transport available-father
and step-sister have deposed against him
and have proved the charge, with whom
no ill-will could be demonstrated-doctor
opined that possibility of wound being a
consequence of infliction of blow from an
axe-Prosecution succeeded in proving its
case
against
the
appellant
beyond
reasonable doubt.(Para 1 to 26)

B. Where there is a contradiction between
medical evidence and ocular evidence can
be crystallised to the effect that though
the ocular testimony of a witness has
greater evidentiary value vis-vis medical
evidence, when medical evidence makes
the ocular testimony improbable, that
becomes a relevant factor in the process
of the evaluation of evidence. However,
602 INDIAN LAW REPORTS ALLAHABAD SERIES
where the medical evidence goes so far
that it completely rules out all possibility
of the ocular evidence being true, the
ocular evidence may be disbelieved.(Para
21 to 24)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

5 All. Balvinder Singh Vs. State of U.P.
601
Section 304 but since charge was framed
under Section 302 therefore the same has
been held to be proved and the punishment
has been awarded under Section 302 which
is not in accordance with the provision.
Therefore, it appears that the court was
intending to award punishment under
Section 304 but awarded the punishment
under Section 302 I.P.C. Accordingly, this
Court is of the view that the judgment and
order passed by the learned trial court is
liable to be modified and punishment
awarded to the appellant under Section 302
IPC is liable to be converted under Section
304 Part-II.

29. The appeal is, accordingly, partly
allowed. The judgment and order dated
12.01.2006 awarding life imprisonment
under Section 302 IPC is modified and the
appellant
is
sentenced
with
the
imprisonment of 10 years and a fine of
Rs.20,000/- is imposed under Section 304
Part-II because the deceased was aged
about 60 years when he was done to death
by the appellant. In case the fine is not
deposited the appellant will have to serve
six moths more in jail. On completion of
the aforesaid punishment and in case the
appellant is not wanted in any case he shall
be released forthwith.

30. Before parting we record
appreciation for the assistance rendered by
Shri Manu Sharma, Amicus Curiae and
quantify the fees as Rs.20,000/- which shall
be paid to him forthwith.

31. The copy of this order shall be
communicated to the Jail Superintendent of
concerned
Jail
forthwith
for
communication
to
the
appellant
and
necessary compliance.
----------
(2022)05ILR A601
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No.1211 of 1991

Balvinder Singh ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajesh Singh, Sri Arvind Agarwal, Ms. Manju
Yadav, Sri Manoj Kumar Yadav

Counsel for the Respondent:
D.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-motive-dispute
over
land
property-appellant was not happy with
the share he got and therefore, he bore
enmity with the deceased-accused was
assaulting the deceased with an axe- axe
not recovered-ocular account rendered by
PW-1
and
PW-3
reliable
and
not
inconsistent with medical evidence-FIR
lodged promptly considering the distance
and the mode of transport available-father
and step-sister have deposed against him
and have proved the charge, with whom
no ill-will could be demonstrated-doctor
opined that possibility of wound being a
consequence of infliction of blow from an
axe-Prosecution succeeded in proving its
case
against
the
appellant
beyond
reasonable doubt.(Para 1 to 26)

B. Where there is a contradiction between
medical evidence and ocular evidence can
be crystallised to the effect that though
the ocular testimony of a witness has
greater evidentiary value vis-vis medical
evidence, when medical evidence makes
the ocular testimony improbable, that
becomes a relevant factor in the process
of the evaluation of evidence. However,
602 INDIAN LAW REPORTS ALLAHABAD SERIES
where the medical evidence goes so far
that it completely rules out all possibility
of the ocular evidence being true, the
ocular evidence may be disbelieved.(Para
21 to 24)

The appeal is dismissed. (E-6)

List of Cases cited:
1.
Thaman
Kumar
Vs
St.
of
UT
of
Chandigarh(2003) 6 SCC 380.

2. Anil Rai Vs St. of Bih. (2001) 7 SCC 318

3. Punjab Singh Vs St. of Har. (1984) Supp SCC
233

4. Abdul Sayeed Vs St. of M. P. (2010) 10 SCC
259

5. CBI & anr. Vs Mohd. Pervez Abdul Kayyum &
ors. (2019) 12 SCC 1

6. Sukhdeep Singh Vs St. of U.P. (2010) 2 SCC
177

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Shamim Ahmed, J.)

1. We have heard Sri Manoj Kumar
Yadav, holding brief of Ms. Manju Yadav,
learned counsel for the appellant and Sri
Pankaj Saxena, learned A.G.A., for the
State.

2. This appeal is against the judgment
and order dated 19.6.1991 passed by VIth
Additional Sessions Judge, Bijnor in
Sessions Trial No. 445 of 1990 convicting
the appellant under Section 302 I.P.C. and
sentencing him to imprisonment for life.

3. The prosecution case, as per the first
information report (Ex. Ka-1) which has been
lodged on oral information provided by the
father of the deceased, namely, Harbansh
Singh (PW-1), is that deceased Arjun Singh
was his younger son. The informant had
partitioned his property as per which, his
elder son i.e. the accused- appellant Balvinder
Singh got equal share as provided to the
deceased Arjun Singh, but he was not happy
with the share he got and therefore, he bore
enmity with the deceased Arjun Singh. It is
alleged that on the date of incident i.e.
1.6.1990, at about 8.00 am, the informant
(PW-1) went with his daughter Jasveer Kaur
(PW-3) to the field where he noticed his help
Harphool (not examined) in a petrified state.
Immediately thereafter, the informant noticed
that the accused-appellant was assaulting the
deceased with an axe. It is alleged that as the
informant and his daughter raised an alarm,
after inflicting several blows on the neck and
other parts of the body of the deceased, the
accused appellant ran away whereas the
deceased fell and died on the spot.

4. The first information report was
lodged at 12.15 hours on 1.6.1990 at P.S.
Rehad, District Bijnor, which was about 20
km away from the spot, giving rise to Case
No.39 of 1990. Upon registration of the first
information report, inquest was conducted at
the spot by about 15.30 hours. Autopsy of the
body was conducted by PW-2 Dr. H.P.
Agrawal on 2.6.1990 at about 11.00 a.m. and
autopsy report (Ext.Ka.2) describes ante
mortem injuries as follows:-

(i) Incised wound 25 cm x 15 cm x
cavity deep on back of head and neck
extending from one ear to another ear. Brain
matter is coming out. All the structures
underneath injuries are exposed. Second,
third cervical vertebrae and occipital bone are
cut;

(ii) Incised wound 21⁄2 cm x 1 cm
x 6 cm on right side face 3 cm below the
right ear. On exposure, right side mandible
cut;
5 All. Balvinder Singh Vs. State of U.P.
603

(iii) Abrasion 1 cm x 1⁄2 cm on
back left hand at the base of left middle
finger;

(iv) Incised wound 4 cm x 1 cm x
muscle deep on front of right thigh 5 cm
above the right knee;

(v) Incised wound 6 cm x 2 cm x
muscle on antero lateral aspect of left thigh
10 cm above left knee;

(vi) Abrasion 3 cm x 2 cm on
front of left thigh in middle;

(vii) Incised wound 1 cm x 1⁄2 cm
x muscle deep on lateral aspect of left little
toe.

Internal examination disclosed
stomach empty, small intestine containing
small amount of pasty material and large
intestine having faecal matter and gases.

Opinion:- Cause of death is as a
result of "shock and haemorrhage" due to
head injury.

Time of death:- About one day
before.

5. After conducting the investigation,
charge sheet (Ext.Ka.10) was submitted by
PW-5 K.P. Dixit. On which, after taking
cognisance, the case was committed to the
court of Session where, on 5.2.1991, charge
of an offence punishable under Section 302
I.P.C. was framed against the accusedappellant. During the course of trial, the
prosecution examined five witnesses. Their
testimony, in brief, is as follows:-

6. PW-1 Harbansh Singh is the father
of the deceased as well as of the accusedappellant. He stated that his first wife died
2-21⁄2 months after the birth of the accusedappellant, whereafter he married another
lady and out of second wedlock he has two
sons, namely, Arjun Singh (the deceased),
Kartar Singh, and a daughter, namely,
Jasveer Kaur (PW-3). He stated that he
divided his property into four parts giving 4
acres each to his three sons and kept 4 acre
of land for himself. He stated that on
account of above partition, the accusedappellant was not happy as he wanted half
share of the land. On account of this, he
had bad relations with the deceased. He
stated that efforts were made to have a
settlement but the settlement was deferred
to await the marriage of PW-1's daughter,
namely, PW-3, with a promise that the
remaining land would be divided thereafter.
PW-1 stated that despite the above
assurance, the accused-appellant was not
happy. He stated that his third son, namely,
Kartar Singh is serving outside the district.
In respect of the incident, PW-1 stated that
on 1.6.1990 at about 8.00 a.m. when the
deceased was ploughing the field, he and
his daughter (PW-3) went to the field to
serve food to the deceased, when they
reached there, he noticed Harphool in a
petrified state. There he noticed that
Balwinder Singh (the accused-appellant),
who had an axe (Kulhari), was inflicting
blows on the deceased. When they
challenged the accused, after inflicting the
blows, he ran away. He stated that he
witnessed the entire incident. He stated that
thereafter he went and lodged the first
information report. He proved the Chik FIR
placed before him which was marked as
Ext.Ka.1.

7. In his cross-examination, he stated
that when his first wife died, accused
Balwinder Singh was 2-21⁄2 years old. At
present Balwinder Singh would be aged
about 40 years. He stated that Balwinder
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh was married 4-5 years before and he
has two daughters. He stated that two years
ago, Balwinder Singh separated and started
residing separately with his family. One
year prior to the incident, he had
partitioned the property and that partition
had taken place in a Panchayat. He stated
that the partition was an oral partition and
there was no written record of it. He stated
that the place of occurrence is about 1⁄2 to 3⁄4
miles south to his residence. That field is of
20 Bigha area. The said field is exclusively
in the name of Arjun Singh (the deceased).
West to the plot there is 'Rasta' and next to
the 'Rasta' there is a 'Talab'. He stated that
at the time of incident there was no crop
standing. When he was about 100 paces
away from the spot, he had noticed
Balwinder Singh assaulting the deceased
but he did not run away seeing the
informant. He stated that Balwinder Singh
must have taken 4-5 minutes to kill the
deceased. He admitted that his statement
was recorded before the Magistrate. When
confronted with his statement made before
the Magistrate, PW-1 stated that what he
had stated before the Magistrate was that
when
they
reached
near
the
field,
Balwinder Singh had spotted him and had
escaped towards south but had not stated
that he had escaped while they were away
from the field. He stated that he does not
know as to how it was written that before
he could reach the field, Balwinder Singh
had escaped. After stating as above, PW-1
gave graphic description of the blows by
stating that the first blow was inflicted on
the neck, thereafter on the face and
thereafter again on the neck and when the
deceased fell, blows were inflicted on his
leg. He described the axe as one which is
used to cut the wood. He stated that the axe
had 5 inch wide blade and that blade was
fixed on a wood piece about a yard long.
He stated that the first infliction was from
the front on neck and face thereafter the
infliction was on the leg. On being
confronted with his statement in the first
information
report
that
he
had
not
mentioned in the report that he had gone to
the field to serve food, he stated that might
have been left out in the report. On being
further cross-examined, he stated that his
second wife is alive. He denied the
suggestion that the deceased was killed in
the darkness of the night by some unknown
person and because of his second wife, he
has implicated the accused-appellant.

8. PW-2 Dr. H.P. Agrawal, who is the
autopsy surgeon, proved the autopsy report
and proved the injuries as have been
noticed above. The autopsy report was
marked as Ext.Ka.2 on his deposition. The
doctor in his testimony accepted the
possibility of death to have occurred at
about 8.00 a.m. on 1.6.1990. He was
recalled at the request of the prosecution.
On recall, he stated that the incised wound
found on the body of the deceased could be
a result of infliction of blows with Kulhari
and that the abrasions noticed could be on
account of friction from hard object. He
again reiterated that death as a consequence
of those injuries was possible to have
occurred on or about 8.00 a.m. of 1.6.1990.
In his cross-examination by the defence, he
stated that there could be a margin of 6
hours in the estimated time of death and,
therefore, it is possible that the death might
have occurred between 4 and 5 a.m. in the
morning of that day. He specifically stated
that stomach was empty and not even liquid
was present. Large intestine contained
faecal matter. In respect of injury no.1,
which was 25 cm x 15 cm in dimension, he
stated that such an injury could be inflicted
if the blade of axe/Kulhari is 10 inch wide.
In respect of abrasions found on the body
of the deceased, he admitted the possibility
5 All. Balvinder Singh Vs. State of U.P.
605
of such abrasions being a result of friction
from some hard blunt object.

9. PW-3 Jasveer Kaur is the sister of
the deceased and step-sister of the accusedappellant. She reiterated what was stated by
PW-1 in respect of the incident and about
infliction of Kulhari blows by the accusedappellant on the deceased. She also stated
that whereabouts of Harphool are not
known as he has run away due to fear of
the in-laws of the accused-appellant. In her
cross-examination, she stated that the
deceased had left the house to go to the
field at about 6 or quarter to 6 a.m. and at
that time she had served tea to the deceased
and other than tea he had taken nothing.
She stated that she is not aware whether the
deceased had attended to nature's call
before going to the field. She stated that she
had not served any snacks with tea to the
deceased. She stated that on that day she
had prepared vegetable and Roti to serve
the deceased and she carried the same in a
box with her father (PW-1) to the field. In
respect of the partition between the
brothers, she stated that partition had taken
place about 1-11⁄2 years before the incident
and that the place of occurrence was the
field of the deceased (Arjun Singh). She
stated that she was not aware till the
marriage of Balwinder Singh (the accusedappellant) that Balwinder was her stepbrother. She came to know about it only 67 months after the marriage of the accusedappellant. She stated that she came to know
about the relationship only when some
dispute started in respect of partition of the
land, whereafter she came to understand
that she happens to be accused-appellant's
step-sister. She stated that after partition of
the land, Balwinder Singh (the accusedappellant) started living separately and in
her (PW-3's) house, her father, mother and
deceased Arjun Singh used to reside. She
stated that prior to the incident, there was
no fight between the brothers and that there
was never a report in respect of any
incident
between
them
but
whether
Balwinder Singh (the accused-appellant)
was annoyed with the partition or not, she
is not aware of, because he never said
anything to her. She stated that on the day
of incident, Arjun Singh had taken the
plough (Hal) to the field and had also taken
a stick for herding the bullocks. Harphool
had also gone with Arjun Singh. She stated
that the field was being ploughed for the
last 1-2 days. She specifically stated that
when she reached the field, Arjun Singh
was not lying on the field but she saw both
Arjun Singh and Balwinder Singh standing
over there and Balwinder Singh was
assaulting Arjun Singh with axe/Kulhari.
At that time, Arjun Sigh had nothing to
defend. On being specifically questioned as
to whether Arjun Singh had died before she
and her father arrived at the spot, PW-3
stated that when she reached near Arjun
Singh, by that time Arjun Singh had fallen
and when she tried to shake him, she found
him dead. On being confronted with her
previous statement before the Magistrate
wherein she had stated that Arjun Singh
was dead before she reached the spot, she
stated that the aforesaid statement is correct
because when she reached near the body of
Arjun Singh and tried to shake his head,
she found that he was dead. She stated that
her father was ahead of her. She clarified
that when she first saw Arjun Singh, he was
standing and by the time she could reach
the spot, he was lying. She also stated that
when Balwinder Singh had inflicted
Kulhari blows at Arjun Singh, he was
standing in front of Arjun Singh. On being
specifically questioned from where she saw
the infliction of Kulhari blows on the leg
region of the deceased, she stated that she
saw the entire incident while she was
606 INDIAN LAW REPORTS ALLAHABAD SERIES
running towards the spot seeing that
Balwinder Singh was inflicting axe blows
on Arjun Singh. She stated that while
running she did not specifically notice
where Kulhari blows were inflicted, but she
did scream that his brother should not be
assaulted. She stated that she did not
specifically notice whether her step-brother
Balwinder Singh had inflicted blows on the
leg of Arjun Singh but she did notice that
her brother Balwinder Singh was inflicting
injuries
to
Arjun
Singh
with
the
axe/Kulhari. She specifically stated that the
injuries were inflicted from the sharp side
of the axe. At this stage the witness started
weeping. She denied the suggestion that in
the darkness of the night some unknown
person killed the deceased, of which
information was received in the morning
and upon which they went to the spot. She
also denied the suggestion that she is telling
lies because she is the step-sister of the
deceased.

10. PW-4 Chhatra Singh is the
constable who carried the body of the
deceased after inquest for autopsy. He
proved that the body was carried to the
mortuary in a sealed condition. He stated
that body had to be carried to Bijnor which
is 100 Km away from the spot, therefore
they reached next morning.

11. PW-5 K.P. Dixit is the Investigating
Officer of the case. He stated that after
registration of the case, he took over its
investigation. The inquest was conducted by
him. He proved that he had taken bloodstained and plain earth from the spot, of
which seizure memo was exhibited as
Ext.Ka.3. He stated that site plan was
prepared by him after inspection and on the
instructions of the informant. The site plan
was exhibited as Ext.Ka.4. He stated that
thereafter he recorded the statement of the
witnesses. He proved the inquest report,
photo lash, challan lash, letter to C.M.O. and
letter to R.I. On his statement, those
documents were exhibited as Ext.Ka.5 to
Ext.Ka.9. He stated that on 10.6.1990 he
arrested the accused. On 7.7.1990 he got the
statement of the informant and Jasveer Kaur
recorded under Section 164 Cr.P.C. He stated
that after completing the investigation, on
10.7.1990 he submitted charge-sheet which
was marked as Ext.Ka.10. He also proved the
Chik F.I.R. and the G.D. Entry of the FIR by
recognising the signature of the clerk,
namely, constable Jaipal Singh. The Chik
F.I.R. was exhibited as Ext.Ka.1 and G.D.
Entry thereof was exhibited as Ext.Ka.11. In
his cross-examination, he stated that he
arrived at the spot by about 12.00 noon. The
place of occurrence is about 20 Km from the
police station and the 'Rasta' is kaccha. He
used a cycle to cover the distance and the
informant Harbansh Singh and witness
Harphool were also on their respective cycles
with him. He stated that the informant had
given the information at the police station and
he had arrived at the spot with them on cycle.
He stated that none of the witnesses had any
injuries on their body. He stated that
adjoining the field where the occurrence took
place, there was field of Mahendra Singh and
west to that field there was a 'Rasta' and
thereafter there were fields of Ramesh, etc.
He stated that at the spot he did not notice
any lathi, danda, panni or any weapon but he
did notice a plough (Hal) though there were
no bullocks. He also stated that at the spot he
did not notice any utensil. He stated that there
was a large gathering at the spot and had
there been any utensil, the same might have
been removed. He clarified his earlier
statement by stating that he arrived at the spot
at 3-3.15 p.m.

12.
The
incriminating
material
appearing in the prosecution evidence were
5 All. Balvinder Singh Vs. State of U.P.
607
put
to
the
accused-appellant
while
recording his statement under Section 313
Cr.P.C. The accused-appellant stated that
he has been falsely implicated on account
of enmity. He also stated that on account of
partition there was no animosity and that he
was happy with the partition. The accusedappellant, however, did not examine any
witness in defence.

13. The trial Court upon finding that
it was a day time incident and there were
two
eye
witnesses
to
support
the
prosecution case and their account found
corroboration in the medical evidence,
convicted the appellant, as above.

14. Questioning the judgment and
order of the trial Court, learned counsel for
the appellant submitted that there is no
strong motive proved by the prosecution
for the crime inasmuch as the partition had
already taken place about 1-11⁄2 years
before the incident and no untoward
incident between the two step-brothers or
between the accused-appellant or his father
was ever reported. The incident occurred in
the field surrounding which there was no
Abadi. The main eye witness of the
incident was Harphool, who has not been
examined. The first information report
would indicate that the witnesses (PW-1
and PW-3) arrived at the spot after the
deceased was killed and therefore, it is an
incident which occurred before PW-1 and
PW-3 could reach the spot and as the
prosecution has suppressed the main
witness, namely, Harphool, who was the
help of the deceased, an adverse inference
is to be drawn against the prosecution. It
has also been pointed out that the deceased
was found empty stomach whereas the
statement of PW-3 would indicate that she
had served tea to the deceased about 2
hours
before.
The
doctor
(PW-2)
specifically stated that neither there was
any food material nor any liquid in the
stomach of the deceased which would
suggest that the prosecution story is
contrived
and
because
the
accusedappellant is the step-brother of PW-3 and
his father was under influence of his second
wife i.e. step-mother, who was alive, the
accused-appellant
has
been
falsely
implicated. It has been submitted that the
axe has not been recovered and that
according to the ocular account, the blade
of the axe had a width of 5 inch which
would under no circumstances inflict the
kind of injury as was noticed in the shape
of injury no.1 recited in the autopsy report.

15. Learned counsel for the appellant
also invited our attention to the recital in
the autopsy report that the large intestine
was
loaded
with
faecal
matter
to
demonstrate that the deceased had not
attended to nature's call. It was argued that
it is a common practice of villagers to
defecate early morning. Presence of faecal
matter would suggest that incident occurred
in the night, which is a possibility accepted
by the doctor as, according to him, death
could have also occurred in the wee hours,
that is to say, at 4.30 a.m.

16. In a nutshell, the submission of
the learned counsel for the appellant is that
the witnesses examined were inimical to
the appellant; the ocular account suggests
that PW-1 and PW-3 either witnessed the
incident from a distance or they arrived at
the spot when the deceased was already
dead; and that the best evidence, which
could have been through Harphool, has
been withheld, as a consequence whereof,
the appellant is entitled to the benefit of
doubt. It is submitted that the trial Court
has not tested the evidence on the touch
stone of probabilities and has accepted the
608 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution story as gospel truth, therefore
its judgment be set aside.

17. Per contra, learned A.G.A.
submitted that it is a case where there is no
suggestion to PW-2 or to any of the
witnesses in respect of ante timing of the
first information report. The informant
(PW-1) is the natural father of the deceased
as well as of the accused-appellant. He has
fully supported the prosecution case. The
step-sister
of
the
accused-appellant,
namely, Jasveer Kaur (PW-3), has equally
supported the prosecution case and she has
also specifically disclosed that the accused
and she were brought up as brother and
sister and they could never feel that they
were step brother and sister. It was only
after the marriage of the accused-appellant,
she could sense that the accused-appellant
was born of a different mother. All of this
would suggest that witness PW-3 had no
animosity with the accused-appellant. She
deposed what she actually witnessed
therefore, there is no good reason to
disbelieve
her.
Non-examination
of
Harphool would not be fatal to the case as
he was a servant and his whereabouts were
not known as after the incident he had
escaped due to fear of the in-laws of the
accused-appellant. In respect of presence of
faecal matter in the large intestine of the
deceased, learned AGA submitted that it is
not a determining factor to ascertain
whether the incident occurred in the wee
hours of the morning as much would
depend on the habit of a person as also
whether
there
has
been
complete
evacuation during defecation or not. In
respect of the conflict of medical evidence
with ocular account in respect of the
dimension
of
neck
injury
qua
the
dimension of the axe blade, it was
submitted that if two blows are inflicted on
or about the same neck line, it is possible
that it may give appearance of a single
incised wound of a larger dimension. It was
submitted that otherwise there is no such
conflict which may render the ocular
account completely unacceptable. It has
also been pointed out by learned AGA that
the defence has not alleged that the
deceased had other enemies also. There is
no suggestion to the prosecution witnesses
that the incident occurred in some other
manner at some other place. Learned
A.G.A. concluded by submitting that this is
a case of day time occurrence, where the
first
information
report
was
prompt,
considering the distance and the mode of
transport available; there are eye witnesses
of the incident; and their testimony is in
sync with the medical evidence therefore,
the trial Court was justified in recording the
conviction. He thus prayed that the appeal
be dismissed.

18. Having considered the rival
submissions we find that there is no dispute
in respect of the spot, which is the field of
the deceased i.e. the son of PW-1. The
prosecution witnesses of the incident are
father (PW-1) and sister (PW-3) of the
deceased. They have disclosed good reason
for their presence at the spot at the time of
incident. According to PW-3, the deceased
had gone to the field to plough the same
early morning at about 6.00 a.m. While
going to the field he had taken only tea
served by PW-3 therefore, it is quite natural
for PW-3, the sister of the deceased, to take
food for the deceased who was working at
the field. Since PW-3 is a girl, it is quite
natural that her father, who was residing
with her, would accompany her to the field,
which was at a distance of over half a mile
from
the
village
Abadi.
In
these
circumstances, the presence of PW-1 and
PW-3 at the spot is not improbable or
unnatural. Insofar as the submission that
5 All. Balvinder Singh Vs. State of U.P.
609
the eye witnesses reached the spot after the
incident had occurred is concerned, nothing
has come out, during cross-examination,
which may discredit their statement with
regard to they having arrived at the spot at
the time of incident. In fact, PW-1 has
given a graphic description of the manner
in
which
the
blows
were
inflicted.
According to PW-3, PW-1 was ahead and
PW-3 was following PW-1 and therefore,
PW-1 witnessed more than what PW-3
could. Moreover, PW-3 being a girl might
be in a state of shock at the time when she
witnessed the incident and therefore, she
did not specifically notice as to how many,
and where, injuries were inflicted on her
brother.
Her
testimony
in
these
circumstances cannot be discredited merely
because she could not specifically describe
the number and site of injuries inflicted.
Perhaps it could be that from some distance
she noticed her two brothers standing face
to face and one inflicting blows on the
other while she was running and screaming
to stop infliction of blows and by the time
she arrived at the spot, her brother (the
deceased) had fallen. There appears truth in
her statement and nothing could be elicited
from her cross examination to doubt her
deposition.

19. In respect of the stomach of the
deceased being empty despite consumption
of tea, as alleged by PW-3, we do not find
it to be a circumstance which may discredit
the testimony of PW-3 because it is quite
possible that if the tea had more water than
milk, it might pass through the stomach and
enter the small intestine quicker than usual.
Moreover, the defence has not cross
examined the autopsy surgeon in respect of
possibility of tea remaining in the stomach
after two hours of its consumption.
Noticeably, pasty material was noticed in
the small intestine at the time of autopsy.
Accordingly,
we
do
not
find
the
circumstance that the stomach contents
were nil sufficient to raise a doubt in
respect of the eye witness account rendered
by PW-3.

20. Insofar as the presence of incised
wound of the dimension of 25 cm x 15 cm,
recited by way of injury no.1 in the autopsy
report, is concerned, no doubt, PW-1,
disclosed the width of blade of axe as 5
inch only but, admittedly, the axe has not
been recovered therefore, what was the
actual width of the blade is just an estimate
may be by guess-work or by imagination.
Hence nothing much turns on that. Further,
the trial court has recorded good reasons
for the same by stating that it is quite
possible that on account of multiple blows
on or about the same area, an incised
wound of a larger dimension may appear
than
the
dimension
of
the
blade.
Noticeably, there is ocular account in
respect of infliction of two blows on the
neck of the deceased; one blow on the face
and others on leg. This ocular evidence is
largely
corroborated
by
the
medical
evidence i.e. the autopsy report.

21. At this stage, we may notice few
decisions of the Supreme Court on the issue
as to when a conflict between medical
evidence and ocular account would render
the ocular account untrustworthy and
unreliable. In Thaman Kumar vs. State of
Union Territory of Chandigarh, (2003) 6
SCC 380, in paragraph 16, it was observed
as follows:

"16. The conflict between oral
testimony and medical evidence can be of
varied dimensions and shapes. There may
be a case where there is total absence of
injuries which are normally caused by a
particular weapon. There is another
610 INDIAN LAW REPORTS ALLAHABAD SERIES
category where though the injuries found
on the victim are of the type which are
possible by the weapon of assault, but the
size and dimension of the injuries do not
exactly tally with the size and dimension of
the weapon. The third category can be
where the injuries found on the victim are
such which are normally caused by the
weapon of assault but they are not found on
that portion of the body where they are
deposed to have been caused by the eyewitnesses. The same kind of inference
cannot be drawn in the three categories of
apparent conflict in oral and medical
evidence enumerated above. In the first
category it may legitimately be inferred
that the oral evidence regarding assault
having been made from a particular
weapon is not truthful. However, in the
second and third category no such
inference can straightway be drawn. The
manner and method of assault, the position
of the victim, the resistance offered by him,
the opportunity available to the witnesses
to see the occurrence like their distance,
presence of light and many other similar
factors will have to be taken into
consideration in judging the reliability of
ocular testimony.

22. In Anil Rai vs. State of Bihar
(2001) 7 SCC 318, view taken earlier, in
Punjab Singh vs. State of Haryana, 1984
Supp SCC 233, that, (1) if direct evidence
is satisfactory and reliable, the same cannot
be
rejected
on
hypothetical
medical
evidence, and (2) if medical evidence when
properly
read
shows
two
alternative
possibilities but not any inconsistency, the
one consistent with the reliable and
satisfactory statements of the eye witness
has to be accepted, was affirmed. Similarly,
in Abdul Sayeed vs. State of Madhya
Pradesh, (2010) 10 SCC 259, the legal
position,
in
this
regard,
has
been
crystallised, in paragraph 39 of the
judgment, as follows:

"39. Thus, the position of law in
cases where there is a contradiction
between medical evidence and ocular
evidence can be crystallised to the effect
that though the ocular testimony of a
witness has greater evidentiary value vis--
vis
medical
evidence,
when
medical
evidence makes the ocular testimony
improbable, that becomes a relevant factor
in the process of the evaluation of evidence.
However, where the medical evidence goes
so far that it completely rules out all
possibility of the ocular evidence being
true,
the
ocular
evidence
may
be
disbelieved."

23. The above view has been affirmed
in Central Bureau of Investigation and
Another
vs.
Mohd.
Parvez
Abdul
Kayyum and others, (2019) 12 SCC 1.

24. In the light of the law noticed
above, what we have to examine is whether
the medical evidence goes so far that it
completely rules out all possibility of the
ocular evidence being true. In our view, the
medical evidence does not rule out
infliction of blows with Kulhari (axe) as is
the ocular account. In so far as dimension
of the injury found on the neck (i.e. injury
no.1 recited in the autopsy report) is
concerned, that is not a determinative factor
to discredit the ocular account completely
for the following reasons: (a) that the
dimension of the blade of an axe mentioned
in the ocular account i.e. 5 inch may be a
result of guess-work because that axe has
not been recovered; (b) that the increase in
dimension may be a result of the second
blow on the same area (neck line) as is the
ocular account; and (c) the doctor has
admitted the possibility of that wound
5 All. Akhilesh @ Pappu Vs. State of U.P.
611
being a consequence of infliction of blow
from an axe.

25. As we find the ocular account
rendered by PW-1 and PW-3 reliable and
not inconsistent with medical evidence; and
that the first information report was
promptly lodged considering the distance
and the mode of transport available, we do
not find any error in the judgment and
order of conviction recorded by the trial
court. More so, when it is a case where a
natural father and step sister of the accused,
with
whom
no
ill-will
could
be
demonstrated, have deposed against the
accused-appellant. Keeping in mind that
accused-appellant's natural father and stepsister (who was brought up as real sister of
the
accused-appellant)
have
deposed
against him and have proved the charge, we
do not wish to draw an adverse inference
for non-production of Harphool who is
stated to have left the employment due to
threat extended by the in-laws of the
accused-appellant as stated by PW-3. We
are therefore of the considered view that
the prosecution has succeeded in proving
its case against the appellant beyond
reasonable doubt.

26. For the reasons above, the
judgment and order of the trial Court is
affirmed. The appeal is dismissed.

27. The appellant is reported to be on
bail. His bail bonds are cancelled and
sureties are discharged. He shall surrender
before the court concerned forthwith from
where he shall be sent to jail to serve the
sentence awarded by the trial court.

28. Let a copy of this order be sent to
the trial court along with the record for
information and compliance.
----------
(2022)05ILR A611
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 1217 of 1993
Connected with
Criminal Appeal No. 1300 of 1993

Akhilesh @ Pappu ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.S. Sengar, Sri Adarsh Bhushan, Sri
Jeetandra Kumar Sharma, Sri Sushant, Sri V.P.
Srivastava (Senior Adv.)

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure,1973-Sections 374(2) - Indian
Penal
Code,
1860-Sections
302/34challenge to-conviction- motive to commit
murder-deceased built toilet in front of
the house of the accused party, to which
they were objecting and had threatened
the
deceased-PW-1
and
PW-2
have
throughout disclosed active participation
of the accused-ocular version explains the
travel of the bullet in a downward
direction-the participation of appellant in
the occurrence and sharing of common
intention with co-accused to kill the
deceased
proved
beyond
reasonable
doubt.(Para 1 to 39)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Thaman Kumar Vs St. of UT of Chandigarh
(2003) 6 SCC 380.

2. Anil Rai Vs St. of Bih. (2001) 7 SCC 318