# Banwari Lal & Anr. (In Jail) v. State of U.P

- **Citation:** (2022) 3 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** Criminal Appeal No. 5769 of 2013
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banwari-lal-anr-in-jail-v-state-of-u-p-48200
- **Pages:** 13

## Headnote

Evidence Law- Indian Evidence Act, 1872-
Section 102- Burden of Proof- Section 3-
Chance Witness- The prosecution set out
twin motive for the crime but failed to
proved either of them. Two eye-witnesses
were set up. Both were chance witnesses,
one, out of the two, did not support the
prosecution
case
during
crossexamination and denied the presence of
the other at the spot and claimed it to be
elsewhere. The other eyewitness, apart
from being chance witness, discloses that
he witnessed the incident in the light of a
torch from a distance of about 45-50
paces.

Settled law that the evidence of a chance
witness does not only require a close and
cautious scrutiny by the court, but also the
Chance witness has to adequately explain his
presence at the spot in absence of which his
evidence may not be relied upon by the court.

Evidence Law - Indian Evidence Act, 1872-
Section
3-
Section
45-
Contradiction
between ocular and medical evidence- The
ocular account rendered by PW-2, if
accepted,
would
indicate
that
the
deceased was being assaulted when PW-2
arrived at the spot to give a challenge to
the accused from a distance of about 50
paces, where after, the accused dragged
the deceased and dumped him in a pit,
which had water. But no water was found
in the lungs of the deceased which is
indicative of a dead person having been
dumped there. This suggests that the
deceased was either killed at the spot
where he was noticed being assaulted or
elsewhere. Presence of pasty food in the
stomach, as per the autopsy report, in
absence of any evidence as to when the
deceased was served food, by rural
standards and habits, consumption of food
might have been early, say by 8:00 PM,
the possibility of death taking place on or
about midnight, much earlier to the
specified time, also cannot be ruled out.

Where the prosecution witnesses are chance
witnesses and their evidence is contradicted by
the medical evidence and other materials then
the said evidence cannot be held to be
trustworthy or reliable. ( Para 20, 21, 22, 23)

Criminal Appeal allowed. (E-3)
386 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,697 of 45,473. This is a partial read: ask again with offset=39697 for what follows._

3 All. Banwari Lal & Anr. Vs. State of U.P.
385

20. The impugned judgment and order
passed by lower court is within four corners
of law. There is no illegality in the
judgment and order dated 06.10.2016
passed by Additional Sessions Judge/Court
No. 1, Hamirpur in Special Sessions Trial
No. 98 of 2013 (State v. Aftab), arising out
of Case Crime No. 819 of 2013, under
Section 376(2)(I)(J) I.P.C. and Section 6 of
P.O.C.S.O. Act, P.S. Kotwali Hamirpur,
District Harmirpur and the same is hereby
confirmed. Appeal lacks merit and is liable
to be dismissed.

21. Accordingly, this appeal is
dismissed.

22. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court, concerned forthwith.
----------
(2022)03ILR A385
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

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

Criminal Appeal No. 5769 of 2013

Banwari Lal & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Krishna Gopal

Counsel for the Respondent:
A.G.A.

Evidence Law- Indian Evidence Act, 1872-
Section 102- Burden of Proof- Section 3-
Chance Witness- The prosecution set out
twin motive for the crime but failed to
proved either of them. Two eye-witnesses
were set up. Both were chance witnesses,
one, out of the two, did not support the
prosecution
case
during
crossexamination and denied the presence of
the other at the spot and claimed it to be
elsewhere. The other eyewitness, apart
from being chance witness, discloses that
he witnessed the incident in the light of a
torch from a distance of about 45-50
paces.

Settled law that the evidence of a chance
witness does not only require a close and
cautious scrutiny by the court, but also the
Chance witness has to adequately explain his
presence at the spot in absence of which his
evidence may not be relied upon by the court.

Evidence Law - Indian Evidence Act, 1872-
Section
3-
Section
45-
Contradiction
between ocular and medical evidence- The
ocular account rendered by PW-2, if
accepted,
would
indicate
that
the
deceased was being assaulted when PW-2
arrived at the spot to give a challenge to
the accused from a distance of about 50
paces, where after, the accused dragged
the deceased and dumped him in a pit,
which had water. But no water was found
in the lungs of the deceased which is
indicative of a dead person having been
dumped there. This suggests that the
deceased was either killed at the spot
where he was noticed being assaulted or
elsewhere. Presence of pasty food in the
stomach, as per the autopsy report, in
absence of any evidence as to when the
deceased was served food, by rural
standards and habits, consumption of food
might have been early, say by 8:00 PM,
the possibility of death taking place on or
about midnight, much earlier to the
specified time, also cannot be ruled out.

Where the prosecution witnesses are chance
witnesses and their evidence is contradicted by
the medical evidence and other materials then
the said evidence cannot be held to be
trustworthy or reliable. ( Para 20, 21, 22, 23)

Criminal Appeal allowed. (E-3)
386 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Sameer Jain, J.)

1. We have heard Sri Krishna Gopal,
learned counsel for the appellants and Sri
J.K.Upadhyay, learned AGA for the State
and have perused the record.

2. This appeal has been filed against
the judgment and order of conviction and
punishment,
dated
18.11.2013
and
19.11.2013,
respectively,
passed
by
Additional District and Sessions Judge
(Court No.6), Bareilly, in Sessions Trial
No. 885 of 2011, convicting the appellants
under Section 302 read with Section 34 IPC
and sentencing them to imprisonment for
life with fine of Rs.10,000/- each and a
default sentence of two months.

INTRODUCTORY FACTS

3. The prosecution case is based on a
written report (Ext.Ka-1) submitted by PW1 at Police Station Kyolaria, District
Bareilly on 5.5.2011, at about 10.30 AM,
of which, Chik Report (Ext.Ka-2) and
G.D.Entry No.14 (Ext.Ka-3) was prepared
by PW-4. The allegation in the report is
that the deceased Ram Swaroop had no
issues; his wife had also died and after the
death of his wife, the deceased was staying
with the informant. The deceased had 18
Bighas of land. 15 days before the incident,
the
nephews
of
the
deceased
had
dismantled the "Med" (field demarcation
boundary) of the field of the deceased,
which resulted in an altercation of the
deceased with his nephews. On that
ground, the deceased took a decision to
transfer his land in favour of sons of the
informant and, to arrange for the funds, to
effect a transfer, had applied to the Bank.
In the night of 4/5.5.2011 while the
deceased Ram Swaroop to protect his
watermelon
crop
(watermelon),
was
sleeping in his field, at about 4.00 AM in
the morning of 5.5.2011, the deceased's
nephews,
namely,
Banwari
Lal
(the
appellant no.1) and Ram Naresh (appellant
no.2), were noticed assaulting the deceased
by PW-2 and PW-3 and when they were
challenged, they threw the body of the
deceased in a pit and ran away. It is alleged
that body of the deceased was taken out
from the pit, which had water, and injuries
on neck, left ear and left knee of the
deceased were noticed. By alleging that the
appellants (i.e.,nephews of the deceased)
have
killed
the
deceased,
the
first
information report was lodged.

4. The inquest was completed at the
spot by 12.30 hours on 5.5.2011, of which,
inquest report (Ext.Ka-4) was prepared by
Ashutosh Kumar (PW-5). Autopsy was
conducted on 5.5.2011 by PW-6 at about
4.45 PM. The autopsy report (Ext.Ka-12)
notices:- A thin built body smeared over by
mud with rigor mortis fully developed all
over body; eyes half open; fist clenched,
nails blue, face deeply congested; beard
and moustaches smeared with blood that
had trickled from nose to left ear back; and
blood in nose and ear present. The
external ante mortem injuries noticed
were as follows:

(i) Multiple (3) abrasion with
contusion on right side front of neck in an
area 6 cm x 4cm with subcutaneous
ecchymosis extreme over larynx in an area,
1.5 cm x 0.8cm; individual size of wound
vary from 0.8 cm x0.2 cm.

(ii)Multiple
(2)abrasion
with
contusion on left side front and side of neck
in an area of 8 cm x 6 cm with
subcutaneous ecchymosis over larynx plus
3 All. Banwari Lal & Anr. Vs. State of U.P.
387
trachea individual size of wound varying
from 0.8 cm x 0.2 cm to 1.8cm x 1cm
subject over wind pipe and voice box.

(iii) Multiple (3) abrasion back of
left elbow joint 4.5cm x.02cm.

(iv)Multiple abrasion on left knee
back of joint 0.5 cmx 1.5 cmx1.2cm.

(v)Abraded contusion on left
knee joint 5cmx3cm.

(vi)Abraded contusion left leg,
4cm below knee of size 6cmx4cm.

The
internal
examination
revealed larynx fractured; Hyoid bone
fractured;
extensive
ecchymosis
and
bleeding in different layer of neck
muscles; both lungs congested. The
stomach contained 100gm of pasty food.
Small intestine had semi digested food
with gases; and large intestine had faecal
matter and gases.

Cause of death, as per the
report, was on account of asphyxia as a
result
of
ante
mortem
throat
strangulation.

Note:Autopsy report has not
disclosed the estimated time of death.

5.

After
investigation
PW-5
submitted charge sheet (Ext.Ka-11) on
which, after taking cognizance, the case
was committed to the court of session
where, on 29.11.2011, both the appellants
were charged with offence punishable
under Section 302 IPC read with Section
34 IPC. The appellants pleaded not guilty
and claimed for trial.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined as many as six
witnesses. Their testimony is as follows:

7. PW-1-Indrapal-informant. He
stated that the deceased were three
brothers. The elder brother of the deceased,
namely, Khushali Ram had three sonsBanwari (the appellant no.1), Ram Naresh
(the appellant no.2) and Ram Das whereas
the other brother Puran Lal had died
leaving no issue. The property was thus
partitioned between the deceased and his
other
brother
Khushali
Ram.
The
relationship between the deceased, his
brother and his nephews was not cordial.
After the death of his wife, the deceased,
who had no issues, used to stay and eat
with PW-1 for the last 25-30 years. The
elder brother of the deceased, namely,
Khushali Ram had died several years ago
and the deceased's agricultural field was on
"Batayee",i.e., sharing basis with his
nephews Banwari (the appellant no.1), Ram
Naresh (the appellant no.2) and Ram Das.
The profits arising from the land used to to
be shared by the deceased with the sons of
the informant. About 15 days prior to the
incident,
the
accused-appellants
had
dismantled the "Med" of deceased's field,
as a consequence whereof, the deceased
took a decision to transfer his land (field) in
favour of the informant's sons. This
decision of the deceased came to the
knowledge of the accused. But as there no
money to effect the transfer of the land, the
deceased applied to the bank for loan. In
the night of the incident, like usual, the
deceased was sleeping in his hut located in
his field, which also helped him to keep a
night vigil to protect his watermelon crop,
at about 4.00 AM, on 05.05.2011, when
PW-1's son Godhan Lal (PW-2) and PW's
brother Nathoo Lal (PW-3) were out to
pluck watermelons, they saw the deceased
388 INDIAN LAW REPORTS ALLAHABAD SERIES
being assaulted by the accused-appellants.
When PW-2 and PW-3 challenged the
accused-appellants,
they
threw
the
deceased in a pit and escaped. PW-1 stated
that PW-2 and PW-3 witnessed the incident
in the light of their torches. He added that a
large number of persons arrived at the spot
and they saw the accused running away and
that he (PW-1) also arrived there on alarm
in the village. PW-1 also stated that they all
took out the body of the deceased from the
pit and noticed that the deceased had
injuries on the neck and ear region as well
as on knee. PW-1 stated that thereafter he
went to the Police Station where, at
Kyolaria Bazar, he got the report written by
Rakesh Kumar and, after affixing his
thumb impression, lodged the same. He
proved the written report, which was
exhibited as Ext Ka-1. He also stated that
the site plan was prepared at his instance.

In his cross-examination, PW-1
admitted that he has his own 30 Bighas of
land whereas the land of the deceased was
on 'Batai ' (sharing basis) with the accusedappellants. The deceased and the accused
had a common field which was shared halfhalf. Profits out of 'Batai' used to be
collected by the deceased. The deceased
used to stay with PW-1 and use to keep the
profit with PW-1. In the night of the
incident PW-1 was sleeping in his house
whereas the deceased was sleeping in his
field. That night the deceased was served
dinner by PW-1 by getting it to the field;
that the spot is about 1 KM away from PW1's house; that before PW-2 and PW-3 had
gone to the field that night, they had woken
up PW-1 and had informed PW-1 that they
were going to the field. PW-1 stated that he
went to the spot when he got information of
the incident. PW-1 could not disclose as to
who gave him the information. He clarified
by stating that when there was information
about the incident in the village, then he
came to know about the incident and when
he arrived at the spot already several
persons were there. He stated that when he
arrived at the spot the body was lying at the
spot where the incident had occurred.

In his cross-examination on
27.3.2012 he stated that when he arrived at
the spot, the body of the deceased was
found just 2 to 4 paces away from his usual
spot of sleeping. PW-1 stated that the
police arrived at the spot only after PW-1
had gone to the Police Station. PW-1 stated
that they had left for the Police Station
between 7-8 AM. PW-1 stated that his son
Godhan Lal (PW-2); and PW-1's wife
Chameli
Devi
(not
examined)
had
accompanied him to the Police Station.
They reached there, on a motorcycle by
10.00 AM. PW-1 stated that they all were
on a single motor cycle. He denied the
suggestion that the report was lodged at the
suggestion of the Investigating Officer.
PW-1 stated that while getting the FIR
written, he had informed its writer that his
sons had seen the accused in the light of
torches but if that was not written in the
FIR, he cannot tell the reason. PW-1 stated
that he was interrogated after the autopsy
was over. PW-1 stated that the place of
occurrence was shown by him to the
Investigating Officer; the body was found
south of the place where the deceased had
slept; that if the Investigating Officer in the
site plan had shown that the body was
found 32 paces away from the place where
the deceased had slept, then it is incorrect.
He denied the suggestion that PW-1's son
Babu Ram is an accused in a case relating
to attempt on the life of a villager's (Om
Karan's) son. PW-1 also denied the
suggestion that the deceased Ram Swaroop
had illicit relations with his wife and,
therefore, when PW-1's sons came to know
3 All. Banwari Lal & Anr. Vs. State of U.P.
389
about it, they killed the deceased. PW-1
also denied the suggestion that to save his
sons, he lodged first information report
against
the
accused-appellants.
PW-1
admitted the suggestion that except him
and his sons there is no other witness of the
incident available in the village.

8. PW-2-Godhan Lal-son of the
informant. PW-2 stated that the deceased
used to stay with PW-1 for the last 30
years; and that they all used to look after
the deceased and serve him food, etc. The
accused-appellants are nephews of the
deceased. In respect of motive for the
crime, PW-2 narrated the same story as
narrated by PW-1. In respect of the
incident,
PW-2
stated
that
in
the
intervening
night
of
4/5.5.2011
the
deceased as usual was sleeping in his field
to protect his (watermelon) crop whereas,
PW-2, his brothers and mother/father were
at home. At about 4.00 AM, in the morning
of 5.5.2011, when PW-2 and his uncle
Nathoo Lal (PW-3) went to the field to
collect watermelon, they saw the accusedappellants assaulting the deceased after
pinning him down. They saw all of that in
the light of their torches and when they
challenged the accused, the accused threw
the deceased in an adjoining pit, which had
water, and ran away. PW-2 stated that he
and his uncle (PW-3) witnessed the entire
incident in the light of torches and on their
alarm number of villagers including his
father arrived at the spot. He stated that his
father (PW-1), his mother, his uncle (PW3) and others accompanied the informant to
Kyolaria where a written report was scribed
by Rakesh Kumar and was lodged by PW1. He stated that on the date of lodging the
first information report, the Investigating
Officer had not asked him any question and
his statement was recorded in the village
after 15-16 days.

In his cross-examination PW-2
admitted that the deceased used to stay with
his father and mother since before his birth
and that deceased's agricultural operations
were looked after by the accused. He stated
that in the night of the incident he and his
brothers Munna Lal and Babu Ram
including his father and mother were in
their house whereas the deceased was
sleeping in his field which had watermelon
crop. He stated that in that field there is a
hut; that field was not on "Batayee"
(sharing basis) and that crop was looked
after by the deceased himself. PW-2 stated
that, that field was about half a Kilometre
from his house; that, as usual, in the
evening of the night of the incident, PW2's, father (PW-1) had gone to serve dinner
to the deceased though, he could not tell the
time when he went to serve the dinner and
returned. He stated that in the night of the
incident, the deceased was sleeping alone
in the field; that there were other
watermelon fields including that of the
accused adjoining the field of the deceased
though, some of the fields were vacant.
With reference to the incident, PW-2 stated
that in the night of the incident, he woke up
at 3.30 AM; thereafter, he woke up his
father (PW-1), his uncle Nathoo Lal (PW3) and went to the field with PW-3. They
had their torches but had no "Lathi/danda".
They arrived there, on foot, at 4.00 AM,
where, from a distance of 50-60 paces, they
spotted the accused in the light of torches
and when they raised an alarm the accused
dragged the deceased and threw him in a
pit, which was about 10-15 paces away
south of the spot where the deceased had
slept and was about 45 paces away from
the wooden bridge of 'Doha River' from
where the incident was witnessed. PW-2
stated that the accused were assaulting the
deceased with kicks and fists and one was
pressing the neck of the deceased. PW-2,
390 INDIAN LAW REPORTS ALLAHABAD SERIES
however, could not tell as to how many
fists/kicks were inflicted upon the deceased
and by whom. PW-2 stated that though he
shouted but he did not make any attempt to
save the deceased. PW-2 stated that in the
pit there was two feet deep water. PW-2
stated that he did not go to inform his
family but they arrived there, within 10-15
minutes, and when PW-1 arrived at the
spot, the body of the deceased was lying in
that pit. Nobody came to the spot from the
family of the deceased though a cousin of
the deceased had arrived. PW-2 stated that
the accused were in their house but then,
immediately,
clarified
that
they
had
escaped. PW-2 stated that the body of the
deceased was taken out from the pit by
about 7.00 AM and, thereafter, they left for
the Police Station by about 8.00 AM. PW-2
added that after the body was taken out
from the pit, it was kept towards the north
of the pit. PW-2 stated that when the body
was scanned, blood was oozing out from
the nose and ear and there were nail marks
on the neck apart from an injury on the leg.
He denied the suggestion that the report
was lodged after deliberation. PW-2 stated
that he had informed his father about the
presence of torches, but if that was not
written he cannot tell the reason. PW-2
stated that the first information report was
lodged by about 10.30 hours whereas the
police arrived at the spot between 11-11.30
hours. PW-2 stated that he had not shown
the torches to the Investigating Officer; and
that the site plan was not prepared at his
instance but at the instance of his father
PW-1. PW-2 stated that the Investigating
Officer had interrogated him after 15-16
days; at that time, the Investigating Officer
was informed about the torches but the
torches were not handed over to the
Investigating
Officer
as
it
was
not
demanded by him. PW-2 admitted that a
case of murder was instituted against his
brother Babu Ram but claimed that it has
come to an end. In respect of the
application for loan by the deceased to
effect transfer of the land, PW-2 stated that
he had not shown the papers of that loan
application to the Investigating Officer
because there was no such loan file. He
also stated that he is not aware when the
accused
came
to
know
about
the
application for loan. He also could not tell
as to when the deceased developed a desire
to transfer the land. He also could not tell
as to how many days before, the 'Med' of
the field of the deceased was dismantled.
He stated that he had not visited the spot to
see whether the 'Med' was broken. PW-2
denied the suggestion that the deceased had
developed illicit relations with his mother,
while staying at his house. PW-2 also
denied the suggestion that because of illicit
relations of the deceased with his mother,
the deceased used to stay in the house of
PW-2. He denied the suggestion that
because of discovery of illicit relation of
the deceased with PW-2's mother, PW-2
and his brother got infuriated and killed the
deceased. He denied the suggestion that
there was no dispute between the deceased
and the accused in respect of the 'Med' of
deceased's field. He denied the suggestions
that the incident did not occur in the
manner alleged; that he was not present at
the spot; and that he had made false
allegations,
therefore,
no
independent
witness of the village has come to support
the prosecution case.

9.

PW-3-Nathoo
Lal.
PW-3
supported the prosecution case in the
manner narrated by PW-2 in his statementin chief but in his cross-examination he
stated that in the night of the incident, PW3 and Godhan Lal (PW-2) were both
sleeping in their own fields; that on that
day he had visited his own field and not the
3 All. Banwari Lal & Anr. Vs. State of U.P.
391
field of the deceased and that he did not
witness any incident. PW-3 also stated that
his nephew Madan Lal (should be read as
Godhan Lal) also did not witness any
incident. He added that earlier, he made his
statement on the suggestion of his brother
Indra Pal (PW-1). PW-3 stated that when
the sun had come out, following the night
of the incident, when news about the
incident had spread in the village, then he
had visited the spot. PW-3 stated that the
Investigating Officer had not interrogated
him. When PW-3 was confronted with his
statement under Section 161 Cr.P.C., he
stated that he does not know as to how the
statement was recorded because such
statement was never given by him. He
denied the suggestion that he was not
disclosing the truth under pressure from the
accused.

10. PW-4-Head Constable Pradeep
Kumar. He proved the GD entry of the
written report and the preparation of chik
FIR. GD entry was exhibited as Ext.Ka-3
and the chik FIR was exhibited as Ext.Ka2.

In his cross-examination, he
stated that the scribe of FIR was not there
at the time of lodging of the report; that the
chik FIR was prepared at about 10.30 AM
and it must have taken 10-15 minutes to
prepare it but the time of the GD entry is
the same as in the chik FIR. He stated that
the IO had recorded his statement that very
day but he does not remember the time of
its recording. He stated that the IO had
recorded his statement after the IO had
returned from the spot. He also stated that
he had given information to the higher
officers on his wireless set, though, he does
not remember its number. On being
confronted with the error in his statement
recorded by the IO with respect to report
number 16 in place of 14, PW-4 stated that
he had disclosed No.14 to the IO but if that
was entered as 16 then he cannot tell the
reason.

11. PW-5-Station House OfficerAshutosh Kumar-Investigating Officer.
He
stated
that
he
took
over
the
investigation of the case on 5.5.2021 and
after taking the copy of the chik, copy of
the report, he recorded the statement of the
persons, who made the GD entry of the FIR
and thereafter he visited the spot and under
his direction and supervision the inquest
report was prepared, which was exhibited
as Ext.Ka-4. He stated that he sealed the
body and sent the same for post mortem.
He proved the papers in connection
therewith. He stated that he prepared the
site plan on the instructions of the
informant, which was exhibited as Ext.Ka10. He arrested the accused-appellants on
10.05.2011; and that on 21.5.2011 he
recorded the statement of the eye witnesses,
PW-2 and PW-3 and, after completing the
investigation, submitted the charge sheet
(Ext.Ka-11).

In the cross-examination he
stated that at the time when the first
information report was registered, he was
at the Police Station and after taking over
the investigation, first, he recorded the
statement of the informant and the
person, who prepared the chik FIR. PW-5
stated that in that process it took him 4045 minutes and he left the Police Station
to visit the spot by about 11.00 AM. He
stated that he reached the spot at quarter
to twelve. He stated that when he reached
the spot, several persons of the village
had gathered. When he arrived there, the
body of the deceased was lying in the pit
and that he himself got the body out of
the pit. PW-5 stated that at that time there
392 INDIAN LAW REPORTS ALLAHABAD SERIES
was no water in the pit. PW-5 stated that
the body was found about 32 paces away
from the spot where the deceased was
stated to have slept. He stated that at the
spot he could not notice any blood even
though he inspected the spot at the
instance of the informant. PW-5 denied
the suggestion that the inquest report was
not prepared at the spot; that the
informant had not informed him the place
as to where the deceased had slept; and
that he recorded the statement of the
informant at his house after the autopsy
of the body was done. PW-5 also denied
the suggestion that the site plan was not
prepared by him on the instructions of the
informant. PW-5 stated that the delay in
recording the statement of PW-2 was due
to PW-5's busy schedule. He stated that
the torch with which the witnesses saw
the incident was not taken into custody.
He stated that the informant party did not
provide any document in respect of an
application for loan. PW-5 admitted that
the informant had not stated in the first
information
report
with
regard
to
witnessing the incident in the light of
torches but that had come in the
statement recorded on 21.5.2011. PW-5
stated that he could not get information of
registration of any case between the
accused and the deceased but on his visit
to the village he did come to know that
there was some dispute between the
accused and the deceased in respect of
'Med' of the field. PW-5 also stated that,
according
to
his
information,
the
deceased had given his land to the
accused on 'Batayee'. He admitted that in
the site plan prepared by him he had not
shown the distance between Point-A and
the wooden bridge and between Points-A
and C. He denied the suggestion that he
did not properly investigate the matter
and submitted the charge sheet by
completing paper work at his table. He
also denied the suggestion that the
incident occurred in the darkness of
night, committed by unknown persons
and that the accused did not commit the
offence.

12. PW-6-Dr. Sudhakar Kumar
Yadav. He proved the autopsy and stated
that the body was smeared with mud and
had rigor mortis all over it. He stated that it
is possible that the deceased could have
died in the intervening night of 4/5.5.2011
at about 4.00 AM. He did not rule out the
possibility that other injuries noticed on the
body of the deceased could be a result of
struggle at the time of strangulation.

In the cross-examination he
stated that at the time of autopsy, he did not
notice water inside the body and there were
no signs to suggest a case of death due to
drowning. He admitted that he had not
mentioned in the autopsy report the
estimated time of death but, in respect of
time of death, whatever he had stated
above, there could be a variation of about
three hours either way. He stated that the
marks of strangulation noticed on the body
were caused by use of hand and not a rope
or some hard substance. He denied the
suggestion that the autopsy report was
prepared at the instruction of the informant.
He also denied the suggestion that he was
telling a lie.

13.

Incriminating
circumstances
appearing in the prosecution evidence were
put to the appellants. The appellants denied
their
guilt
and
claimed
that
when
information with regard to the death of the
deceased was received, they were there
along with the villagers. In respect of the
reasons for their implication, they stated
that the informant is in possession of the
3 All. Banwari Lal & Anr. Vs. State of U.P.
393
house of the deceased and, therefore, to
grab the house of the deceased, the accused
were falsely implicated.

THE
TRIAL
COURT
FINDINGS.

14. The trial court by relying upon the
ocular account rendered by PW-2 and upon
finding that the defence could not establish
a cogent reason for false implication,
whereas the medical evidence disclosed
that
death
was
a
consequence
of
strangulation, convicted and sentenced the
appellants as above.

SUBMISSIONS ON BEHALF
OF THE APPELLANTS.

15. Aggrieved by the order of the trial
court, the learned counsel for the appellants
submitted as follows:-

(i) The stomach content of the
deceased would suggest that he had his last
meal not more than four hours before his
death. By a conservative estimate in a
Village, where people wake up early
morning, dinner must have been had latest
by 7 or 8 PM, therefore, death must have
occurred on or about mid night and not
later, which was not witnessed by any one
and, therefore, the prosecution story that
the deceased was killed in the wee hours of
the morning, say at 4.00 AM, appears
doubtful; (ii)The presence of PW-2 at the
spot, at the time of the incident appears
doubtful for two reasons: (a) according to
PW-1, the deceased had given his field on
'Batayee' to the accused and that adjoining
the field of the deceased, there were vacant
fields and no field of PW-2, therefore, if
PW-2 had to go to his own field to collect
watermelon why would he be there near the
field of the deceased;in the alternative, if it
is assumed that the field, where the
deceased died, was not given on 'Batayee',
then, if the deceased was doing farming on
his own, why PW-2 would come there for
help. More so, when from the statement of
PW-3, it appears that PW-2 and PW-3 had
their own fields and they had gone to
collect watermelons from their own field
and had not visited the field of the
deceased; and (b) that visiting the field of
the deceased at 4.00 AM appears a bit
improbable, if not impossible. (iii) Further,
the statement of PW-2 that he witnessed the
incident from a distance of around 50 paces
in torch light is not supported by recovery
of the torch during the course of
investigation and the existence of torch
light is not there in the FIR and its
existence is disclosed for the first time in
statement of PW-2 recorded under Section
161 Cr.P.C. after 16 days, therefore, the
existence of torch light is nothing but an
after thought. (iv) Other than that, the
ocular account rendered by PW-2 would
suggest that he witnessed the accused
assaulting the deceased and when the
accused were challenged they dumped the
deceased in a pit, after dragging him. If that
was the case, had PW-2 been present, he
could have rushed to the rescue of the
deceased more so, when is not the case of
the prosecution that the accused were
armed and, if the deceased was dumped in
a pit, which had water, while he was about
to die there would have been signs of
drowning. This, therefore, creates a doubt
with regard to PW-2's presence at the spot.
(v) That the motive for the crime has not
been proved because the prosecution set
out twin motive for the crime. The first was
that the deceased's 'Med' was dismantled by
the accused and the second was that the
deceased was trying to dispose off his land
in favour of the informant party. In respect
of dismantling the 'Med' of the field of the
394 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased there is no good reason as,
according to the prosecution case, the
deceased's fields were on 'Batayee' with the
accused. Moreover, there was no report in
respect of any incident between the
deceased and the accused. In so far as the
second motive is concerned, no document
was placed with respect to seeking of loan
or in respect of proving an agreement to
transfer the land and when PW-2 was
questioned on that, PW-2 faltered by not
being able to disclose details in respect
thereof.

16. In a nutshell, on behalf of the
appellants, it was submitted that this is a
case where the incident occurred in the
darkness of night, some unknown persons
committed the murder, there was no eye
witness of the incident and on strong
suspicion or guess-work or ill-will the
appellants were implicated, therefore, in
absence of evidence of a sterling quality,
there should be no conviction on the basis
of solitary witness testimony, hence, the
benefit of doubt should be extended to the
accused party. The trial court, however, did
not properly appreciate the evidence while
recording conviction.

SUBMISSIONS ON BEHALF
OF THE STATE

17. Per contra, learned AGA
submitted that this is a case where there is
an ocular account of the incident, the body
of the deceased was smeared with blood
which suggests that the body was in a pit
that had water; that the ocular account
gives a depiction of the accused pressing
the neck and of throwing the deceased in a
pit, which finds corroboration in the
medical
evidence
which
discloses
strangulation as well as drag marks. Thus,
it is a case where the ocular account finds
support in the medical evidence and,
therefore, prosecution has succeeded in
proving the guilt of the accused. It has been
alleged that even assuming that the motive
might not have been proved with cogent
evidence but where there is an ocular
account that finds support in the medical
evidence, absence of motive by itself is not
fatal to the prosecution case. It is, thus,
prayed by the learned AGA that the appeal
be dismissed and the conviction and
sentence be maintained.

ANALYSIS

18. Having noticed the entire
prosecution evidence and the submissions
of the learned counsel for the parties, we
now proceed to analyse the evidence.

19. It is the prosecution case that the
incident occurred at 4:00 AM in the
morning. The FIR was lodged at 10:30
AM. The distance between the spot and the
police station is 13 km. Therefore, the first
question that arises for our consideration is
whether, in the facts of the case, the FIR
was prompt or not, if not, then whether it is
a case where none witnessed a night
incident and the delay was to contrive a
story on suspicion and guess-work. From
the testimony of the prosecution witnesses,
it appears, the informant, his wife, and his
son have all travelled on a motorcycle to
the Police Station to lodge the first
information report. It has come in the
evidence that the entire village had
gathered at the spot and the body,
according to PW-2, was taken out from the
pit by 7.00 AM and they left for the Police
Station at about 8.00 AM. Interestingly, in
the statement of the Investigating Officer
(PW-5) it has come that when he arrived at
the spot, the body of the deceased was
lying in a pit and that he himself took out
3 All. Banwari Lal & Anr. Vs. State of U.P.
395
the body from the pit and that pit had no
water. Once this is the position, there
appears no logical reason to delay lodging
of the first information report, particularly,
when the informant party had the means to
travel to the Police Station. This creates
suspicion in our mind whether the incident
was witnessed in the manner alleged by the
prosecution or when the body was
discovered in the morning, the informant
party was left guessing, or contriving a
story, which caused the delay in reporting
the incident; this delay in lodging the report
though may not be fatal to the prosecution
case, but it creates a doubt that puts us on
guard to test the prosecution story on all
material aspects more so, when one of the
two prosecution witnesses of fact during
cross-examination did not support the
prosecution story.

20. There are three material aspects
on which we propose to test the prosecution
story. These are: (i) the possibility of the
presence of PW-2 at the point from where
he witnessed the incident and the likelihood
of him recognizing the assailants from that
distance
in
the
night;
(ii)
the
trustworthiness of the ocular account; and
(iii) motive for the crime. A close scrutiny
of the site plan prepared at the instance of
the informant (PW-1) would reveal that the
place where the deceased was assaulted by
the accused is indicated by Point-A and
Point-B is the pit from where the body of
the deceased was recovered. The distance
between Point-A and Point-B is 32 paces,
according to the I.O. but it is much less
according to the eye witness. But there is
no discrepancy in respect of the spot from
where they allegedly watched. As per the
site plan, the witnesses allegedly witnessed
the incident from near the wooden bridge
that
crosses
the
river
Doha
which,
according to the statement of PW-2, is 5060
paces
away
from
Point-A.
The
possibility of someone noticing the entire
incident in the light of torch from a
distance of 50-60 paces appears a bit
doubtful. More over, here, the torch has not
been
produced
or
seized
during
investigation to examine the strength of its
light range and, otherwise also, the spotting
of accused in torch light is not alleged in
the FIR whereas the statement of PW-2,
under Section 161 Cr.P.C. was recorded 16
days later on 21.5.2011. Assuming that
PW-2 witnessed the accused from that
distance in the company of PW-3 and they
challenged the accused from that distance
why would the accused, if they had already
killed the deceased, drag the deceased
about 32 paces, as per I.O., or 10-15 paces,
as per PW-2, to throw his body in the pit,
when the first reaction would be to escape
from the spot. Importantly, the testimony of
PW-6 (Autopsy Surgeon) is to the effect
that no water was noticed in the lungs of
the deceased and, therefore, the deceased
could not have drowned, but, interestingly,
according to PW-2, there was water upto
the depth of two feet in that pit, which
means that if the deceased had been alive at
the time when he was thrown in the pit,
there would have been signs of drowning
reflected by the presence of water in his
lungs, which is not the case here. Thus, it
appears to be a case where the deceased
was killed at some other place, may be at
the place where he slept or may be at any
other place and the body was dumped in
the pit.

21. At this stage, we may notice another
important feature in the prosecution evidence
which is that at the time of autopsy it was
noticed that blood had trickled from the
nostrils
and
had
smeared
beard
and
moustaches of the deceased; presence of blood
was also noticed in nostrils and ear, yet, no
396 INDIAN LAW REPORTS ALLAHABAD SERIES
blood was noticed by the Investigating Officer
at the spot. Notably, in the testimony of the
Investigating Officer there is no mention that
during spot inspection drag marks were
noticed starting from Point-A, where the
deceased is said to have been assaulted, upto
Point-B where his body, after dragging, was
dumped. Thus, the ocular account rendered by
PW-2 that the deceased was assaulted at PointA and was dragged to, and dumped at, Point-B
is not supported by material collected during
the course of investigation; and the doctor has
also not ruled out presence of other injuries as
a result of struggle during strangulation. In
addition to above, PW-2 is just a chance
witness. Admittedly, he had slept in his own
house and was not sleeping in the field with
the deceased or in the adjoining field. He
arrived at the spot not on hearing shrieks or
cries but on a daily routine to pluck
watermelons. PW-2's own filed is not there, as
per PW-3, and the deceased's field was on
'Batayee' with the accused but, to justify his
presence, PW-2 stated that the field where
deceased was sleeping was not on 'Batayee'.
This is inexplicable, particularly, when it has
not been demonstrated that there were separate
fields with different numbers. Thus, it appears,
this aspect of the story has been weaved to
justify PW-2's presence at that odd hour.

22. When we test the motive set out
by the prosecution for commission of the
crime, we find that the prosecution set up
twin-motive.