# Banchcha Pandey v. State of U.P. Opp. Party

- **Citation:** (2022) 4 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-04
- **Case number:** Criminal Appeal No. 35 of 2006
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banchcha-pandey-v-state-of-u-p-opp-party-48382
- **Pages:** 14

## Headnote

Law
-
Indian
Penal
Code,1860 - Sections 302 & 34 - Non
examination of scribe is not fatal to the
prosecution and no adverse inference can be
drawn against the prosecution since the
scribe is not an eye witness and the
Informant had proved the F.I.R. by examining
himself

B. Where ocular evidence is found to be
trustworthy
and
reliable
and
finds
corroboration from the medical evidence a
finding of guilt can be safely recorded even if
the motive for the commission of crime has
not been proved.

C. Judicial approach has to be cautious in
dealing with the evidence of partition or
interested witnesses but the plea that such
evidence should be rejected because it is
partisan cannot be accepted.

D. Contradictions in the statements of the
witnesses must be material contradictions. If
they are minor in nature, their testimony
cannot be discarded.
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
E. A public servant employed in the Police
cannot be said to be untrustworthy unless he
has any reason to implicate the accused falsely.

F. Quality of evidence should be weighed over
quantity of evidence.

G. Mere fact that it is not established that the
recovered weapon was used in the commission
of offence, in itself cannot be made the base for
discarding
the
testimony
of
reliable
eye
witnesses.

H. Where the appellants came together and
demanded money, on refusal threatened to kill
and went away, came back armed with lathi and
tamancha and on exhortation of one, other fired
upon the deceased then this conduct of the
appellants shows their common intention to
commit murder in furtherance of their pre
arranged plan and as such be liable for the
criminal act done by one of them with the aid of
Section 34 I.P.C. Appeal dismissed.

Appeal dismissed. (E-11)

List of Cases cited:-

## Text

_Characters 0–39,793 of 46,410. This is a partial read: ask again with offset=39793 for what follows._

4 All. Banchcha Pandey Vs. State of U.P.
1109
conscious of the legal position that being
part of a gang of dacoits, while the act of
dacoity is on, is sufficient to make a
member of that bunch of dacoits, present
there, liable for conviction, but, here, the
issue is whether, the appellants were a part
of that bunch of dacoits or not, therefore, to
test whether they were a part or not, we
have taken notice of the aspects discussed
above. Further, the investigating officer of
the case has not been examined to explain
non mentioning of the case details in the
Chhitthi Majroobi as well as various
memos prepared during investigation so as
to enable us to be completely satisfied in
respect of prompt lodging of the FIR.
Further, the police clerk who registered the
FIR was not produced as a witness.

29. For all the reasons above, we are
of the considered view that the appellants
are entitled to the benefit of doubt.
Consequently, the appeal deserves to be
allowed and is consequently allowed qua
the surviving appellants i.e. appellant
no.2 (Mohar Singh son of Nathu);
appellant no.5 (Bhagwan Singh son of
Happu); appellant no.6 (Rajendra son of
Happu); and appellant no.7 (Rajpal son
of Khannu). The judgment and order of
the trial court qua the surviving appellants
(supra) is hereby set aside. All the
surviving appellants (supra) are acquitted
of the charges for which they have been
tried. They are reported to be on bail, they
need not surrender and their bail bonds are
discharged, subject to compliance of the
provisions of Section 437A Cr.P.C. to the
satisfaction of the court below.

30. Let a copy of this order be sent to
the
trial
court
for
information
and
compliance.
----------
(2022)04ILR A1109
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 35 of 2006
Connected with
Criminal Appeal No. 64 of 2006

Banchcha Pandey ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Prabhakar Singh, Sri Bhuvan Raj (A.C.), Sri
Manish Pandey, Sri Radhey Krishna Pandey, Sri
Shri Prakash Dwivedi (A.C.)

Counsel for the Respondents:
A.G.A.

A.
Criminal
Law
-
Indian
Penal
Code,1860 - Sections 302 & 34 - Non
examination of scribe is not fatal to the
prosecution and no adverse inference can be
drawn against the prosecution since the
scribe is not an eye witness and the
Informant had proved the F.I.R. by examining
himself

B. Where ocular evidence is found to be
trustworthy
and
reliable
and
finds
corroboration from the medical evidence a
finding of guilt can be safely recorded even if
the motive for the commission of crime has
not been proved.

C. Judicial approach has to be cautious in
dealing with the evidence of partition or
interested witnesses but the plea that such
evidence should be rejected because it is
partisan cannot be accepted.

D. Contradictions in the statements of the
witnesses must be material contradictions. If
they are minor in nature, their testimony
cannot be discarded.
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
E. A public servant employed in the Police
cannot be said to be untrustworthy unless he
has any reason to implicate the accused falsely.

F. Quality of evidence should be weighed over
quantity of evidence.

G. Mere fact that it is not established that the
recovered weapon was used in the commission
of offence, in itself cannot be made the base for
discarding
the
testimony
of
reliable
eye
witnesses.

H. Where the appellants came together and
demanded money, on refusal threatened to kill
and went away, came back armed with lathi and
tamancha and on exhortation of one, other fired
upon the deceased then this conduct of the
appellants shows their common intention to
commit murder in furtherance of their pre
arranged plan and as such be liable for the
criminal act done by one of them with the aid of
Section 34 I.P.C. Appeal dismissed.

Appeal dismissed. (E-11)

List of Cases cited:-

1. Moti Lal Vs St. of U.P. 2009(7) Supreme 632

2. Anil Kumar Vs St. of U.P. (2003)3 SCC 569

3. St.of H.P. Vs Jeet Singh 1999(38) ACC
550(SC)

4. Nathuni Yadav & ors. Vs St. of Bihar & ors.
1997 (34) ACC 576

5. Thaman Kumar Vs St. of Union Territory of
Chandigarh 2003 (47) ACC 7

6. Baitulla & anr. Vs St. of U.P. AIR 1997 SC
3946

7. Rameshwar & ors. Vs State 2003 (46) ACC
581

8. State of Haryana Vs Sher Singh & ors. 1981
Cr. Ruling 317 SC

9. Brahm Swaroop & anr. Vs St. of U.P. (2011) 6
SCC 288

10. Masalti Vs St. of U.P. (A.I.R.) 1965 SC 202

11. Krishna Mochi Vs St. of Bihar (2002) 6 SE81

12. Asha Vs St. of Raj., AIR 1997 SCC 2828

13. Kashmiri Lal Vs St. of Har. (2001)1 SCC 652
(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. These criminal appeals emanate
from the judgment and order dated
21.12.2005 passed by the learned IInd
Additional Sessions Judge, Court No. 1,
Mirzapur in Session Trial No. 52 of 2004
(State Vs. Shiv Kumar @ Pinku and
another) arising out of Case Crime No. 12
of 2004, under Section 302 read with
Section 34 IPC, Police Station Kotwali
City, District Mirzapur, whereby appellants
Shiv Kumar @ Pinku and Bachcha Pandey
@ Subhas have been convicted and
sentenced under Section 302/34 IPC with
life imprisonment and fine of Rs.5,000/-
each. In default of payment of fine, the
appellants have to undergo additional
imprisonment for a period of six months.

2. The prosecution case in brief is that
on 15.01.2004, at about 9.05 p.m., an F.I.R.
was lodged at the police Station Kotwali
City, District Mirzapur by informant Om
Prakash s/o Harishankar r/o Meer Sahab Ki
Gali, Kotwali City, Mirzapur by filing a
written report stating therein that while his
brother Sunil Kumar was sitting with his
wife in the room located at the back side of
his house, at about 8.30 p.m, Shiv Kumar
@ Pinku s/o Lakshman and Bachcha
Pandey @ Subhas s/o Vishwambhar
Pandey r/o Muhalla Imamganj Babhaiya,
Mirzapur came
there
and demanded
money. On refusal, they threatened to kill
him and went away. In the meantime,
hearing noise, his father Harishankar came
4 All. Banchcha Pandey Vs. State of U.P.
1111
into the room. Further, at about 8.45 p.m.,
Shiv Kumar @ Pinku and Bachcha Pandey
again came to the house with countrymade
pistol and on exhortation of Bachcha
Pandey, Shiv Kumar @ Pinku shot fire at
his brother Sunil Kumar who had died on
the spot. Both the accused fled away on
their making hue and cry. There was
electric light inside and outside of the
house. Dead body of his brother was lying
on the spot. Tahreer was scribed by
Moolchand s/o Nanhakuram r/o Kotwali
City, District Mirzapur.

3. S.S.I. R.D. Kaithal was handedover the investigation of the case who
along with other officials went to the place
of occurrence where he conducted the
inquest of the body of deceased Sunil
Kumar and got the inquest report prepared
by S.I. Jitendra Pratap Singh at his own
instance and also got prepared other papers
required for the purposes of post-mortem.
Dead body was sealed and handed over to
constable Kedar Rai and home guard
Subedar who brought it to the mortuary,
District Hospital, Mirzapur.

4. The post-mortem was conducted on
16.01.2004 at about 1.30 p.m. It is
mentioned in the post-mortem report that
body brought by constable C.P. Kedar Rai
and home guard Subedar was received in
sealed cloth which tallied with the sample
seal. The external condition of the body as
described therein is as under:

Average built body. Rigor mortis
present.

Antemortem
Injury:(1)
Fire
arm
wound of entry of 2.5 c.m. X 1.5 c.m. Oval
on shape margins are charred and inverted
present over right perieto temporal region
of skull, .5 c.m. above from right tragus. (2)
Fracture of right occipitoparietal bone with
bone loss present. (3) Cross fracture of
right occipital bone present. (4) one bullet
recovered from the brain matters. (5)
Clotted blood with ruptured brain matter
found after opening skull.

Cause of death was shock and
hemorrhage as result of ante-mortem
injuries.

5. During the investigation, accusedappellant Shiv Kumar @ Pinku was
arrested by the police from Janhavi Tiraha
at about 12.30 o'clock on 19.01.2004. On
interrogation, appellant Shiv Kumar @
Pinku disclosed that he had hidden
countrymade pistol at a place in Pakki Sarai
at the time of running away from the place
of occurrence which he could recover. At
his instance, a countrymade pistol was
recovered from the southwest corner near
the Indra Ghandi Park located at Pakki
Sarai at about 13.40 O'clock. Country-made
pistol was taken into custody by the police
and recovery memo was prepared on the
spot by S.S.I. Jitendra Kumar in the
presence of the witnesses.

6. The investigating Officer visited
the place of occurrence and prepared site
plan Ext. Ka-14 relating to the place where
incident took place and also the site plan
relating
to
the
place
from
where
countrymade pistol was recovered at the
instance of appellant Shiv Kumar @ Pinku
as Ext. Ka-15. He recorded the statements
of witnesses conversant to the facts of the
case. Thereafter, the investigation was
handed-over to Inspector Mahendra Pratap
Shukla who took over the investigation on
30.01.2004 and collected report from
F.S.L. Ext. Ka-13 & 16, and concluded the
investigation, found the case prima facie
made out under Section 302 IPC and after
preparing the charge sheet submitted it to
the court concerned.
1112 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned Chief Judicial Magistrate
took cognizance of the offences and
provided copies of prosecution papers in
compliance of Section 207 Cr.P.C. to
appellants and committed the case to the
court of session for trial.

8. The trial court after taking into
consideration the material on record,
framed the charges against appellants under
Section 302 read with Section 34 IPC. The
charges were read-over and explained to
the appellants, they pleaded not guilty and
denied the charges and claimed for trial.
Consequently, the case was fixed for
prosecution evidence.

9. In support of its case, the
prosecution examined P.W.1 Om Prakash,
the first informant and brother of deceased;
P.W.2 Hari Shankar eye witness of the
incident and father of deceased; P.W.3 S.I.
Virendra Pratap Singh who prepared
inquest report and other relevant papers;
P.W.4 Dr. Ramesh Singh Thakur who
conducted post-mortem of the body; P.W.5
constable Gajendra Pratap Singh who
prepared chik F.I.R. and entered the detail
in G.D; P.W. 6 S.I. Mahendra Pratap
Shukla the investigating officer who
submitted the charge sheet and P.W. 7 S.I.
R.D. Kaithal the 1st Investigating Officer
of the case who had arrested the appellant
Shiv Kumar @ Pinku and made recovery of
pistol at his instance.

10. On conclusion of prosecution
evidence, statements of accused persons
were recorded under Section 313 Cr.P.C.
wherein appellant Shiv Kumar @ Pinku
asserted the incident and statements of
witnesses relating thereto to be false. He
further stated that there was a dispute with
informant Om Prakash relating to partition
on account of which he was implicated
falsely.
Likewise
appellant
Bachcha
Pandey @ Subhas also asserted the incident
and statements of prosecution witnesses to
be false and he having been implicated
falsely by the informant.

11. In defence, no evidence was
adduced on the part of appellants.

12. After hearing the arguments of the
team of appellants as well as the State,
learned trial court passed the order dated
21.12.2005 convicting the appellants as
aforesaid. Hence this appeal.

13. Heard Shri Prakash Dwivedi,
learned Advocate for appellant Shiv Kumar
@ Pinku and as Amicus Curiae for
appellant Bachcha Pandey @ Subhas in the
connected
appeals
and
Shri
Rupak
Chaubey, learned A.G.A. for State and
perused the record.

14. Learned counsel for the appellants
submits that the impugned judgment and
order of conviction is bad in law being
against the evidence available on record.
Learned trial court has erred in convicting
the appellants without proper appreciating
the evidence. The prosecution could not
prove its case with cogent and reliable
evidence and the learned trial court has
decided
this
case
wrongfully.
The
appellants are innocent. They have not
committed any offence as alleged against
them. There are material contradictions in
the statements of witnesses. Informant is
the brother of the deceased and P.W. 2
being father is also an interested witness.
Time between the occurrence and F.I.R. is
too short which makes the prosecution
story highly doubtful. The scribe of F.I.R.
Moolchand had not been examined. No
blood was collected from the place of
occurrence by the Investigating Officer
4 All. Banchcha Pandey Vs. State of U.P.
1113
which makes the place of occurrence
doubtful. No motive to commit the murder
of the deceased has been assigned. The
wife of the deceased who was also said to
be present in the room where murder took
place had not been examined. There is no
independent
witness
account.
It
is
submitted that the recovery of countrymade
pistol though has been shown but there was
no public witness to prove the recovery. In
this way the prosecution could not prove its
case
beyond
reasonable
doubt.
The
appellants,
therefore,
are
entitled
to
acquittal.

15. Learned A.G.A. opposed the
contentions raised by the learned counsel for
the appellants and submitted that in this case,
the informant as well as P.W. 2 both were
present on the spot and they have narrated the
whole prosecution story. They are eyewitnesses and, therefore, motive looses its
importance. Further it is not necessary to
adduce a number of witnesses. Even on the
testimony of sole witness conviction can be
sustained. The contradictions in the testimony
of witnesses are minor in nature, and hence
are immaterial. During the post-mortem, a
bullet was recovered from the body of
deceased Sunil Kumar. It was sent for the
forensic examination. As per the report, it is
established that the countrymade pistol which
was recovered at the instance of accusedappellant Pinku, was used in the commission
of murder of the deceased. In this way, the
prosecution had proved its case beyond
reasonable doubt against the appellants.
Learned trial court has passed the judgment
and order on the basis of evidence on record.
There is no error of fact or law. These appeals
being devoid of merit are liable to be
dismissed.

16. From the submissions and perusal
of record, the following questions emerge
for consideration of this Court as to
whether motive is absent. The witnesses
being
relatives
and
no
independent
witnesses having been examined would
have adverse effect on the prosecution case.
Whether the alleged material contradictions
in the testimony of witnesses make it
unreliable. Further, whether the appellants
have been implicated due to enmity with
the first informant and police.

17. Before we deal with the
contentions raised by the learned counsel
for the appellants, it would be convenient
to take note of the evidence adduced by the
prosecution.

18. P.W. 1 Om Prakash is the
informant and brother of the deceased, who
deposed that on the day of the incident, i.e.
15.01.2004 at about 8.30 p.m., his brother
Sunil Kumar was sitting in the room
located at the back, western side of the
house. Appellants Shiv Kumar @ Pinku
and Bachcha Pandey @ Subhas came there
from behind and demanded money from
the deceased. When refused they became
angry, threatened him to kill and went
away. At that time the wife of the deceased
and his father were also present. Again at
about 8.45 p.m., appellants came at the
same place. At that time, appellant Pinku
was equipped with countrymade pistol and
Bachcha Pandey with danda. Bachcha
Pandey exhorted to fire at the deceased. On
hearing this, Shiv Kumar @ Pinku opened
fire at Sunil which stroke at his head and he
died on the spot. Appellants went away in
the lane with the countrymade pistol. It is
stated by P.W. 1 that at the time of the
incident, there was light of electric bulb
inside and outside the room in which he
had identified the appellants, who were
residents of adjacent muhalla and that he
knew them from before. He got tahreer
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
written by Moolchand and made his
signature on it after hearing its' contents
which he proved as Ext. Ka-1.

This witness was subjected to gruel
cross-examination by the learned counsel
for appellants wherein this witness had not
disclosed any such fact which weakens his
testimony. He has affirmed the fact of
firing made by appellant Shiv Kumar @
Pinku on the exhortation of Bachcha
Pandey.

19. P.W. 2 Harishankar, father of the
deceased had deposed that the incident
occurred on 15.01.2004 at about 8.30 p.m. His
son was sitting on the board (takath) on the
back side of the room in the house where his
wife Vinita and another son Om Prakash were
also sitting, appellants Shiv Kumar @ Pinku
and Bachcha Pandey came there and
demanded money from his son while standing
outside the window. When refused, they went
away while threatening to kill. Again at about
8.45 p.m. both of the accused came there and
Bachcha Pandey exhorted to shot fire at
deceased at which appellant Shiv Kumar @
Pinku shot fire which stroke his son Sunil
Kumar who died in the room. Appellants
bolted the room from outside on account of
which they could not chase them. There was
light of electric bulb inside and outside the
room in which he identified the appellants.

This witness has also been subjected to
gruel cross-examination by the learned counsel
for
the
appellants
and
during
crossexamination he has again affirmed the account
of the incident, the offence committed by the
appellants. No such statement has been made
by him so as to demolish his presence at the
place of occurrence or that he could not
identify the appellants.

20. Both these witnesses remained
intact during the cross-examination. No
such contradictions are visible in their
statements which can make their testimony
unreliable
or
unnatural.
Minor
contradictions are of cosmetic nature and
not likely to affect the credibility of their
testimony.

21. In the instant case, there is no
enmity between the parties. They belong to
adjacent locality. There cannot be any
dispute
about
identification
of
the
appellants. Though, the appellants have
stated in their statements recorded under
Section 313 Cr.P.C. that they had been
implicated falsely on account of enmity but
there is no suggestion of enmity during the
cross-examination of the witnesses which
might
have
adversely
affected
their
reliability and become an excuse for
implicating them falsely while absolving
real culprits.

22. There is not an iota of evidence on
record which may even remotely suggest
that PW-1 & PW-2 had any grudge against
the appellants or any cause to implicate
them falsely.

23. Injuries on the person of deceased
Sunil Kumar were caused by the firearm as
stated by P.Ws. 1 & 2. Ext. Ka-9 is the
post-mortem report wherein firearm wound
was reported on the right parital temporal
region of skull.

24. P.W. 4 Dr. Ramesh Singh Thakur
has proved the injury and told that the
injury was caused by firearm and opined
that this injury was possible with a single
fire. As per the estimation of the doctor, all
the injuries were caused at about 8.45 p.m.
in the night on 15.01.2004. He also opined
that the cause of death was shock and
hemorrhage due to antemortem injury.
During the post-mortem, a bullet was
recovered from the wound which was
4 All. Banchcha Pandey Vs. State of U.P.
1115
sealed by the doctor and was sent to F.S.L.
by the Investigating Officer for forensic
examination.

25. In this way, injuries found on the
person of deceased Sunil Kumar were
proved to have been caused with firearm at
about 8.45 p.m. in the night on 15.1.2004
and
this
evidence
corroborates
the
statements of P.Ws. 1 & 2 with regard to
the manner of causing the injuries resulting
into death. The eye-witnesses account,
thus, finds corroboration from the medical
evidence on record.

26. Countrymade pistol alleged to
have been used in committing the offfence
was recovered by the Investigating Officer
S.S.I. R.D. Kaithal and recovery memo was
prepared by S.I. Virendra Pratap Singh who
had proved it during his examination as
Material
Exhibit-1.
This
countrymade
pistol was also sent to F.S.L. with bullet,
recovered from the person of deceased for
ballistic
examination
regarding
which
ballistic reports from F.S.L. were obtained
and proved as Ext. Ka-13 & 16 wherein it
has
been
mentioned
that
during
examination, it was found that on the piece
of metal which was mentioned as bullet
blood stains were seen and on micro
chemical examination, fouling matters with
remnants of firing lead and nitrate were
found present and also in the barrel of
countrymade pistol, the remnants of firing
lead and nitrate were found.

27. There is no delay much less
inordinate delay in lodging the F.I.R. The
occurrence took place on 15.01.2004 at
about 8.45 p.m. in the night and the F.I.R.
was lodged on the same day at 21.05 hours
(hrs), after 20 minutes at the police station
concerned which was one furlong from the
home of the informant. It cannot be said to
be delayed. A question raised by the
learned counsel for appellants that the time
in lodging the F.I.R. after occurrence was
too short to be sustained in view of distance
between the house of the informant and the
police station concerned, i.e. one furlong
only.

28. P.W. 5 constable Nagendra Pratap
Singh has proved the chik F.I.R. on the
basis of Tahreer Ext. Ka-1. He stated that
on 15.01.2004 he was posted at the police
station concerned as constable muharrir.
On the basis of tahreer given by the
informant, he prepared the Chik F.I.R. in
his handwriting and signature and also
made entry of it in the G.D. which he
proved as Ext. Ka-10 & 11. P.W. 5 further
stated that the special report was also sent
on the same day on 15.01.2004 at about
22.15 hrs through G.D. No. 43.

29. At this point, the learned counsel
for appellants highlighted that scribe of the
tehreer, Moolchand had not been examined,
therefore, the F.I.R. cannot be said to have
been proved. In this regard, it is to note that
non-examination of scribe is not fatal to the
case of the prosecution and no adverse
inference can be drawn against the
prosecution, since the scribe was not an eye
witness
to
the
incident
and
the
complainant/informant had proved the
execution of the F.I.R. by examining
himself as P.W.1.

30. In the case of Moti Lal Vs. State
of U.P. 2009(7) Supreme 632, the Apex
Court has ruled that the non-examination of
scribe of the F.I.R. is not fatal to the
prosecution case. Likewise in the case of
Anil Kumar Vs. State of U.P. (2003)3 SCC
569 where scribe of the F.I.R. who was not
an eye-witness, was not examined, the
Apex Court observed that there was no
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
necessity to examine him. He could have
thrown no light on the prosecution case,
therefore, no prejudice can be said to have
been caused to the appellants. Thus, this
submission of the learned counsel is not
acceptable to us.

31. P.W. 7 S.S.I. R.D. Kaithal proved
the stages of the investigation. He had
arrested the appellant Shiv Kumar @ Pinku
from Janhavi Tiraha near Sulabh Complex
on 19.01.2004 at about 12.30 p.m. On
query the accused disclosed about the place
where he concealed the countrymade pistol
and it was recovered from southern-west
corner at Pakki Sarai at his pointing out.
P.W.7 prepared the recovery memo which
he proved as Ext. Ka-8 and also the site
plan as Ext. Ka-15.

32. P.W.6 S.I. Mahendra Pratap
Shukla took over the investigation from
S.S.I. R.D. Kaithal on 30.1.2004 who
proved the F.S.L. report as Ext. Ka-13 &
16,
concluded
the
investigation
and
submitted the charge sheet.

33. P.W.3 S.I. Virendra Pratap Singh
who followed S.S.I./I.O. R.D. Kaithal on
15.01.2004 and went on the spot, prepared
inquest on the dictation of S.S.I. R.D.
Kaithal along with other essential papers
which he proved as Ext. Ka-2 to 7. Ext. Ka2, the inquest report disclosed that the dead
body of deceased was found on the floor in
front of the house of the informant. P.W. 3
has also stated during cross-examination
that the dead body of deceased was lying
on the floor in front of the house of the
informant where he had prepared the
inquest report. In this regard, P.W. 2 has
stated during the examination-in-chief and
even in the cross-examination that the
appellants shot fire at the deceased while he
was sitting on the board (takhat) inside the
room located at the backside of the house.
After the incident, he took Sunil Kumar to
the hospital where doctor declared him
brought dead. In this way, it cannot be said
that the deceased was not shot by the
appellants in the room located at the
backside of the house. It is natural that the
family members of the victim would try
their best to save his life and in that effort
so they took the injured to the hospital in
the hope of life. In such a situation, it
cannot be said that the incident did not take
place in the room where it has been said to
have taken place and as shown in Ext. Ka14. The place where dead body was lying at
the time of inquest was also the floor in
front of the house, it, therefore, cannot be
said that the place of occurrence was not
situated at the house of the deceased as
asserted by the prosecution witnesses
namely P.W. 1 & P.W. 2.

34. Learned counsel has also drawn
attention of this Court towards the fact that
no blood stained and plain soil was
collected from the place of occurrence by
the Investigating Officer at the time of
inquest
which
makes
the
place
of
occurrence doubtful. In this regard, it can
be said that firearm injury was found on the
head of the deceased. Blood oozed out of
the wound and it was soaked in the clothes
worn by the deceased. The clothes were
taken into custody and sent to F.S.L. for
examination. As per F.S.L. report, as Ext.
Ka-13, all the clothes namely shirt,
baniyan, underwear, pant and kalawa etc.
worn by the deceased were found blood
stained. In the situation, where the
deceased was taken to the hospital by his
inmates after the incident and brought back
from the hospital to his home and he was
laid on the floor outside the house,
presence of blood on the said floor does not
seen to be possible. On the basis of this fact
4 All. Banchcha Pandey Vs. State of U.P.
1117
that no blood stained and plain soil was
collected from the place of occurrence by
the
Investigating
Officer
during
investigation, the testimony regarding the
place of occurrence as deposed by P.W. 1
& P.W. 2 cannot be falsified. In this regard,
the contention of the learned counsel for
the appellants is not acceptable.

35. Further the attention of this Court
has also been drawn towards the absence of
motive to commit murder. He urged that
the prosecution had failed to prove motive
on the part of the appellants to commit the
crime.

36. It is true that there is no mention
of motive in the F.I.R. about the
commission of murder of deceased Sunil
Kumar. Even PW-1 and PW-2 have also
not disclosed anything that became the root
cause of committing murder by the
appellants except the demand of money by
the appellants from the deceased and
refusal on his part but there is no such
principle or rule of law that where the
prosecution fails to prove motive for
commission
of
the
crime,
it
must
necessarily result in acquittal of the
accused. Where occular evidence is found
to be trustworthy and reliable and finds
corroboration from the medical evidence, a
finding of guilt can safely be recorded even
if the motive for the commission of crime
has not been proved.

37. In State of Himachal Pradesh
Vs. Jeet Singh 1999 (38) ACC 550 SC, it
was held that no doubt it is a sound
principle to remember that every criminal
act was done with a motive but it's
corollary is not that no offence was
committed if the prosecution failed to
prove the precise motive of the accused
to commit it as it is almost an
impossibility for the prosecution to
unravel full dimension of the mental
deposition of an offender towards the
person whom he offended.

38. In Nathuni Yadav and others
vs. State of Bihar and others 1997 (34)
ACC 576, it was held that motive for
committing a criminal act, is generally a
difficult area for prosecution as one
cannot normally see into the mind of
another. Motive is the emotion which
impels a man to do a particular act and
such impelling cause unnecessarily need
not be proportionately grave to grave
crimes. It was further held that many
murders have been committed without
any known or prominent motive and it is
quite possible that the aforesaid impelling
factor would remain undiscoverable.

39. In the case of Thaman Kumar
vs.
State
of
Union
Territory
of
Chandigarh 2003 (47) ACC 7 the
Hon'ble Apex Court has reiterated the
same view after taking into consideration
the aforementioned cases.

40. In the case of Baitulla and
another Vs. State of U.P. AIR 1997 SC
3946 where occurrence took place in
broad day light and spoken to by the eyewitness and the same was supported by
Medical Report, it will not be necessary
to investigate the motive behind such
commission of offence.

41. This Court has also made such
observations in the case of Rameshwar and
others vs. State 2003 (46) ACC 581 that
when there is direct evidence, the motive
was not important. Likewise in the case of
State of Haryana vs. Sher Singh and
others 1981 Cr. Ruling 317 SC it has been
held that the prosecution is not bound to
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the motive, more so, when crime is
proved by direct evidence.

42. In our opinion, in the facts and
circumstances of the present case, the
absence of an evidence on the point of
motive cannot have any such impact so as
to discard the other reliable evidence
available
on
record
which
certainly
establishes the guilt of the accused.

43. The next limb of argument of the
learned counsel for the appellants is that the
prosecution had examined highly interested
and related witnesses and it had not
produced any independent witness in
support of its case. No doubt the witnesses
of fact examined in the case are real brother
and father of the deceased but Relationship
itself is not a ground to reject the testimony
of the witnesses, rather the law is that a
relative would be the last person to leave
the real culprit and falsely implicate any
other person.

44. In the case of Brahm Swaroop
and another vs. State of U.P. (2011) 6
SCC 288 the Hon'ble Apex Court in Para
No.21 has observed as under:-

"merely because the witnesses were
related to the deceased persons, their
testimonies cannot be discarded. Their
relationship to one of the parties is not a
factor that affects the credibility of a
witness, more so, a relation would not
conceal
the
real
culprit
and
make
allegations against an innocent person. A
party has to lay down a factual foundation
and prove by leading impeccable evidence
in respect of its false implication. However,
in such cases the Court has to adopt a
careful approach and analyse the evidence
to find out whether it is cogent and credible
evidence."

45. The Court also referred cases of
Dalip and others vs. State of Punjab A.I.R.
(1953) SC 364; Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202.

46. In Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202, the Hon'ble Apex
Court observed in Para No.14

"but
it
would,
we
think,
be
unreasonably to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. The
mechanical rejection of such evidence on
sole ground that it's partisan would
invariably lead to failure of justice. No hard
and fast rule can be laid down as to how
much evidence should be appreciated.
Judicial approach has to be cautious in
dealing with such evidence; but the plea
that such evidence should be rejected
because it's partisan cannot be accepted as
correct.

47. It is common knowledge that
village (mohalla) life is faction ridden and
involvement of one or the other in the
incidents is not unusual. One has also to be
cautious about the fact that wholly
independent witnesses are seldom available
or are otherwise not inclined to come
forward, lest they may invite trouble for
themselves
for
future.
Therefore,
relationship of eye-witnesses inter se,
cannot be a ground to discard their
testimony. There is no reason to presume
the false implication of the appellants at the
instance of the eye-witnesses. It would also
be illogical to think that the witnesses
would screen the real culprits and substitute
the appellants for them.

48. Normally, independent persons do
not intervene in the matters of others due to
4 All. Banchcha Pandey Vs. State of U.P.
1119
fear or a number of circumstances and
relatives and family members only make
courage to depose regarding the occurrence
because they are the worse sufferers. In the
case of Krishna Mochi Vs. State of Bihar
(2002) 6 SE81, the following observation
has been made by the Hon'ble Apex Court.

It is matter of common experience that
in recent times there has been sharp
decline of ethical values in public life even
in
developed
countries
much
less
developing one, like ours, where the ratio
of decline is higher. Even in ordinary
cases, witnesses are not inclined to depose
or their evidence is not found to be credible
by courts for manifold reasons. One of the
reasons may be that they do not have
courage to depose against an accused
because of threats to their life, more so
when the offenders are habitual criminals
or high-ups in the Government or close to
powers, which may be political, economic
or other powers including muscle power.

49. Further argument that P.W.1 and
P.W. 2 have stated that the wife of
deceased was also present in the room
where the incident took place but she had
not been examined by the prosecution. In
this regard, it is to note that it is the
discretion of the prosecution to adduce the
evidence which it thinks proper in the
circumstances of the case. Section 134 of
Indian Evidence Act does not require the
specific number of witnesses to be adduced
to prove the case but even the testimony of
single witness if found to be trustworthy
and reliable, conviction can be based. In
other words, for conviction quality of
evidence is required and not the quantity.
In the instant case, the incident took place
in the presence of P.W.1 and P.W.2 in the
same room. They were produced by the
prosecution before the Court and have
proved the case, so it is not the requirement
of law that all the witnesses be produced. In
this way, non-production of the wife of
deceased in the witness box, does not affect
the credibility of testimony of P.W.1 and
P.W. 2 and no adverse inference can be
drawn in this regard.

50. So far as the submissions of the
learned counsel regarding contradictions in
the testimony of the prosecution witnesses,
it is to note that contradictions in the
statements of witnesses must be material
contradictions. If they are minor in nature,
the testimony of witnesses cannot be
discarded.

51. In the case of Asha Vs. State of
Rajasthan, AIR 1997 SCC 2828 where
some
minor
contradictions
in
the
statements of witnesses were found, it was
observed that some trivial contradictions in
nature are to be ignored.

52. In the present case, P.W. 2 had
stated that deceased Sunil Kumar was taken
to the hospital after the incident where he
was declared dead by the doctor and P.W. 1
stated that the incident took place in the
room and deceased died on the spot and his
dead
body
was
lying
there.
These
statements of the eye-witnesses are self
contradictory. It is evident from the
testimony of P.Ws. 1 and 2 that after the
incident took place, P.W. 1 went to the
police station to lodge the F.I.R. just after
the incident and P.W. 2 remained in the
house with other inmantes who took the
deceased to the hospital. As at that time,
P.W. 1 was not present, it cannot be
expected from him to know about the fact
that whether deceased Sunil Kumar was
taken to the hospital by P.W. 2 and other
inmates.
This
contradiction
in
the
statements of both the witnesses is natural
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
and do not strike at the very root of their
statements about the fact of incident rather
this makes the witnesses more truthful and
trustworthy.

53. Learned counsel for the appellants
has
also
argued
that
except
police
personnel no other public witness was
brought at the time of recovery of countrymade pistol at the instance of appellant
Shiv Kumar @ Pinku, which makes the
recovery doubtful. In this regard, the
statement
of
the
Investigating
Officer/P.W.7
S.S.I.
R.D.
Kaithal
is
relevant where he stated that he tried to
trace public witness at the time of recovery
but no one was ready to come forward. It is
natural that no person wants to become a
witness against criminals in the society. On
the other hand, a public servant employed
in the police cannot be said to be
untrustworthy unless he has any reason to
implicate the accused falsely.

54. In the case Kashmiri Lal Vs.
State of Haryana (2001)1 SCC652 the
Hon'ble Apex Court has laid down that thus
apart, there is no absolute command of law
that the police officers cannot be cited as
witnesses and their testimony should
always
be
treated
with
suspicion.
Ordinarily, the public at large show their
disinclination to come forward to become
witnesses. If the testimony of the police
officer is found to be reliable and
trustworthy, the court can definitely act
upon the same. If in the course of
scrutinising the evidence, the court finds
the evidence of the police officer as
unreliable and untrustworthy, the court may
disbelieve him but it should not do so
solely on the presumption that a witness
from the department of police should be
viewed with distrust. This is also based on
the principle of quality of the evidence
weighed over the quantity of evidence.

55. In this case, there was no
suggestion
of
any
enmity
with
the
Investigating Officer on account of which it
could be said that he made false recovery
and implicated the accused falsely. It is
noteworthy that the countrymade pistol
recovered at the instance of appellant Shiv
Kumar @ Pinku and the bullet found in the
body of the deceased at the time of the
post-mortem were sent to F.S.L. for the
ballistic
examination
wherein
firing
remnanats of lead and nitrate were found to
be present yet this does not affirm the use
of the countrymade pistol recovered at the
instance of appellants in commission of the
murder of the deceased Sunil Kumar, but
absence of public witness at the time of
recovery does not make the recovery false
and fabricated. Here it is noteworthy that
there was single entry wound on the head
of the deceased and a bullet was also
recovered by the doctor from the brain
matter of the deceased but the countrymade pistol recovered at the instance of
appellant Shiv Kumar @ Pinku was 12
bore wherein ordinarily cartridge is used. In
the usual way, the use of bullet cannot be
said to be possible in the tamancha
(countrymade pistol) of 12 bore. No
opinion, in this regard has been given by
the ballistic expert also. Thus, it cannot be
said to be established that the recovered
weapon was used in the commission of the
crime.