# Bhagwat & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-07
- **Case number:** Criminal Appeal No. 1007 of 1984
- **Bench:** Arvind Kumar Mishra-I, Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwat-ors-v-state-of-u-p-48035
- **Pages:** 15

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal Code,
1860 - Sections 34 & 302: - Criminal Appeal
- against order of Conviction & Sentence - Life
imprisonment - Evaluation of Evidence - offence
of murder - FIR - informant alleged that in the
midnight when he along with his son sleeping in
the Verandah adjacent to his Baithak accused
persons along with 10-15 persons came
suddenly attacked and killed his son with a
bomb - court finds that, the testimony of the
complainant
creates
serious
doubt
about
prosecution version as to why the assailants
remain inactive and did not turn back to him
and on the other hand no any injuries was
caused to others - evidence on record belies the
theory of the prosecution and create reasonable
doubt over the occurrence as St.d by the
prosecution - no articles were seized or
produced in the court - out of 10 to 15
assailants
only
the
accused-appellant
are
identified by informant and no one else -
Material contradictions in the evidence of the
witnesses of the fact render the theory of the
prosecution to be doubtful - identification of the
12 All. Bhagwat & Ors. Vs. State of U.P.
747
appellant is not established - evidence of
witnesses of fact as a whole does not have any
right of truth - held, trial court has not
appreciated the evidence available on record in
a rightful manner and hence wrongly convicted
the appellant - hence, the appeal is accordingly
allowed. (Para - 35, 37, 68, 70, 71, 72)

Appeal is Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,918 of 50,189. This is a partial read: ask again with offset=39918 for what follows._

746 INDIAN LAW REPORTS ALLAHABAD SERIES
that in all human probability the act must
have been done by the accused. It has been
held that the circumstances should be of a
conclusive nature and tendency. This Court
has held that the circumstances should
exclude every possible hypothesis except
the one to be proved. It has been held that
the accused ''must be' and not merely ''may
be' guilty before a Court can convict.

20. It is settled law that the
suspicion, however strong it may be,
cannot take the place of proof beyond
reasonable doubt. An accused cannot be
convicted on the ground of suspicion, no
matter how strong it is. An accused is
presumed to be innocent unless proved
guilty beyond a reasonable doubt."

18. Applying the above principles as
laid down by the Supreme Court, we find
that the prosecution has utterly failed to
establish its case beyond all reasonable
doubts and the chain of events, which can
be said to exclusively lead to the one and
only one conclusion i.e. the guilt of the
accused, is not complete.

19. Taking the cumulative effect of
the evidence, we are of the view that the
Trial Court has erred in law in convicting
the appellant. He is entitled to get the
benefit of doubt.

20. Accordingly, the jail appeal
succeeds and is allowed.

21. Appellant Suresh alias Laxmi is in
jail, he be set free forthwith, if not required
in any other case.

22. As Sri C.L. Chaudhary, learned
Amicus has assisted the Court in this case,
State Government is directed to pay a sum
of Rs. 10,000/- to him towards his
remuneration.
----------
(2022) 12 ILRA 746
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 1007 of 1984

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

Counsel for the Appellants:
Sri B.P. Singh, Sri Ashok Kumar Singh, Sri
Bhagwat Prasad, Sri Chandrakesh Mishra,
Sri Daya Shanker Mishra, Sri Narendra Deo
Rai

Counsel for the Respondent:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal Code,
1860 - Sections 34 & 302: - Criminal Appeal
- against order of Conviction & Sentence - Life
imprisonment - Evaluation of Evidence - offence
of murder - FIR - informant alleged that in the
midnight when he along with his son sleeping in
the Verandah adjacent to his Baithak accused
persons along with 10-15 persons came
suddenly attacked and killed his son with a
bomb - court finds that, the testimony of the
complainant
creates
serious
doubt
about
prosecution version as to why the assailants
remain inactive and did not turn back to him
and on the other hand no any injuries was
caused to others - evidence on record belies the
theory of the prosecution and create reasonable
doubt over the occurrence as St.d by the
prosecution - no articles were seized or
produced in the court - out of 10 to 15
assailants
only
the
accused-appellant
are
identified by informant and no one else -
Material contradictions in the evidence of the
witnesses of the fact render the theory of the
prosecution to be doubtful - identification of the
12 All. Bhagwat & Ors. Vs. State of U.P.
747
appellant is not established - evidence of
witnesses of fact as a whole does not have any
right of truth - held, trial court has not
appreciated the evidence available on record in
a rightful manner and hence wrongly convicted
the appellant - hence, the appeal is accordingly
allowed. (Para - 35, 37, 68, 70, 71, 72)

Appeal is Allowed. (E-11)

List of Cases cited:

1. Durbal Vs St. of U.P. (2011) 2 SCC 676

2. Krishnegowda Vs St. of Karn., (2017) 13 SCC
98

3. St. Vs Bhagwat & ors., Sessions Trial No. 72
of 1980

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. This criminal appeal has been
preferred by the appellants against the
judgment and order of sentence dated
30.03.1984 passed by Sri Khem Singh, the
then
6th
Additional
Sessions
Judge,
Azamgarh in Sessions Trial No. 72 of 1980
(State Vs. Bhagwat and Ors.) arising out of
Case Crime No. 910/79 under Sections
302/34 IPC, Police Station Kotwali District
Azamgarh
whereby
appellants-accused
Bhagwat, Sahab, Lalloo, and Kamta were
convicted under Section 302 read with
Section 34 of IPC and sentenced to undergo
life imprisonment.

2. Facts giving rise to the prosecution
case are that Phool Chand submitted a written
report (Ex- Ka 1) to Inspector Kotwali,
District Azamgarh on 28.10.1979, wherein it
was stated that he along with his son Kunwar
Bharat was sleeping in the Verandah adjacent
to his ''Baithak' on 27.10.1979. At around
12:00 midnight, 10 to 15 persons came
suddenly from the western lane flashing their
torches. He heard the sounds "Yahi-Yahi". He
identified the accused Bhagwat, Sahab, Lallu,
and Kamta among them. Apprehending
danger, he ran towards his house. His son
rushed towards his other house situated on
the eastern side of his Baithak. Later, he also
rushed toward the direction where his son had
gone. He had a ''danda' in his hand He
shouted while approaching his son. He heard
three sounds and later found that his son had
died. His wife and sister-in-law (''Bhabhi')
had already come out. When he reached, he
found that his wife was crying and saying
that Bhagwat had killed her son with a bomb.
At that time, his bhabhi Chandradeiya, his
wife Jagpatiya, and Hardev were present on
the spot.

3. On the basis of the aforesaid
written report (Ex Ka - 1), the first
information
report
(Ex
Ka
3)
was
registered with Police Station Kotwali,
Azamgarh as Case Crime No. 910 of 1979
naming the appellants as accused persons.
The investigation was entrusted to Sub
Inspector Bal Karan Singh, who started the
investigation and prepared the inquest
report (Ex C-1) of the dead body of the
deceased Kunwar Bharat and sent it for
post-mortem
along
with
relevant
documents. He recorded the statements of
the witnesses and prepared the site plan
(Ex. C-6) and other documents. The
accused-appellants were arrested during the
investigation. After the conclusion of the
investigation, a charge sheet came to be
filed against appellants under Section 302
/34 of IPC.

4. Thereafter, the case was committed
to the Court of Session where it was
registered as Session Trial No. 72 of 1980.
Charges under Section 302/34 IPC were
framed against the accused-appellants. The
accused-appellants pleaded not guilty and
claimed to be tried.
748 INDIAN LAW REPORTS ALLAHABAD SERIES

5. To bring home the charges against
the accused-appellants, the prosecution
produced four witnesses of fact - PW-1
Hardev,
PW-2
Phool
Chand
(the
complainant), PW-3 Chandradeiya, PW-4
Jagpatiya (wife of the complainant), and
three formal witnesses - PW-5 Dr. R.R.
Rai, who conducted the post-mortem
examination of deceased Kunwar Bharat,
PW-6 Ram Achhaibar Dubey, HCP, and
PW-7
S.I.
Bal
Karan
Singh,
the
Investigating Officer.

6. After the close of prosecution
evidence, statements of the appellantsaccused were recorded under Section 313
of Cr.P.C., in which they denied the
commission of the crime and their presence
at the house of the complainant at the time
of the incident. They have also denied
committing the murder of Kunwar Bharat.
They alleged that the Investigating Officer
filed a false charge sheet against them.
They had been implicated due to village
enmity and hence the witnesses deposed
against them.

7. Hearing both the parties and after
vetting
the
evidence
and
facts
and
circumstances of the case, the trial court
recorded
conviction
and
passed
the
sentence against the appellants as aforesaid.

8. Being aggrieved by the impugned
judgment and order of sentence the
accused-appellants
have
preferred
the
present criminal appeal.

9. We have heard Sri Daya Shankar
Mishra, learned Senior Advocate assisted
by Sri
Chandrakesh
Mishra,
learned
counsel for the appellants and Sri M.P.S.
Gaur, Sri Alok Kumar Tripathi and Sri Om
Prakash, learned AGA for the State and
perused
the
record.
We
have
also
reappreciated the evidence available on
record.

10. On the basis of the evidence
available on record, under the facts and
circumstances of the case, it has to be
determined
as
to
whether
on
the
intervening night of 27/28.10.1979 at
around 12:30 am, the accused-appellants
committed the murder of the son of the
complainant Kunwar Bharat in furtherance
of common intention.

11. Learned counsel for the appellants
argued that the complainant Phool Chand is
not the eyewitness of the occurrence and he
had not seen any of the appellants
committing the murder of his son. The
witness Hardev, who is said to be present at
the time of occurrence, has not supported
the prosecution story during his deposition.
There are material improvements in the
evidence of the complainant and against the
facts mentioned in the First information
report. There are material contradictions
and discrepancies in the oral evidence of
PW-2 Phool Chand, PW-3 Chandradeiya
and PW-4 Jagpatiya. The medical evidence
also does not corroborate the prosecution
story. The FIR is also silent about so many
facts narrated by the witnesses in their
evidence. It is alleged by the prosecution
that the deceased was sleeping in the
Verandah, but none of the appellants, as
alleged, approached him or caused any
damage to him. If there would have been an
intention to commit the murder of Kunwar
Bharat, some immediate injury would have
been caused to him at that time. As per the
prosecution story, at the time of throwing
the bomb, other persons were also standing
there but none of them had suffered any
kind of injury. No motive has been
assigned to the appellants to commit the
murder of Kunwar Bharat. The manner of
12 All. Bhagwat & Ors. Vs. State of U.P.
749
assault as deposed by the witnesses of fact
does not prove the prosecution story. The
evidence of witnesses of fact is not reliable
and it is full of material contradictions with
each other.

12. To buttress his argument, learned
counsel for the appellants argued that PW-3
Chandradeiya stated that she did not suffer
any
injury
while
she
followed
the
appellants and at the time of occurrence she
was standing close to Kunwar Bharat. No
bloodstained clothes were handed over to
the Investigating Officer even though she
had stated that bloodstains occurred on her
clothes during the incident. It is further
submitted that PW-1, the complainant
alleged that 10-15 persons came to the
house flashing lights of the torches but he
named only the appellants as accused and
other persons were not named for the
reason best known to the complainant.
None of the appellants suffered any kind of
injury while it is a case of the prosecution
that the bomb was thrown upon the
deceased from close proximity. No motive
was available to the appellants to commit
the murder of Kunwar Bharat since there
was no enmity with him. The appellants
have falsely been implicated. There was no
source of light at the time of occurrence
and it is not possible to identify the
appellants, in the light of the torch by the
witnesses. The torches were not taken into
possession by the investigating officer
during the investigation. The trial Court has
not rightfully appreciated the evidence and
has ignored important aspects of the case.
The
Investigating
Officer
has
been
examined as a Court witness which was
beyond the jurisdiction of the trial Court.
The prosecution has utterly failed to prove
the charge against the appellants. The
appellants are liable to be acquitted and the
appeal deserves to be allowed.

13. Per contra, learned AGA argued
that the first information report of the
matter was promptly registered at 02.10 am
while the incident took place at around
12:30 am. The appellants were identified
by the witnesses in the light of the torches
which they were having at the time of
occurrence. The witnesses of fact have
corroborated the prosecution version and if
there
are
minor
contradictions
or
discrepancies which do not adversely affect
the case of the prosecution, they are to be
ignored. The medical evidence is consistent
with the prosecution story. Kunwar Bharat,
a boy of 13 years of age was brutally
murdered by the appellants by throwing a
bomb at him. The presence of the
appellants on the spot is proved by the
witnesses of fact. The investigation of the
case
was
fairly
conducted
by
the
Investigating
Officer
and
based
on
evidence collected during the investigation,
a charge sheet was filed against the
appellants. The appellants have rightly
been convicted and sentenced by the trial
Court. The judgement of the trial Court was
passed after appreciating the evidence
available
on
record
rightfully.
The
prosecution has succeeded to bring home
the charge against the appellants. Thus, the
appeal is liable to be dismissed.

14. PW-1 Hardev is the witness of the
FIR and is said to be present at the place of
occurrence. He stated in his evidence that
on the day of the occurrence at around 1212.30 am he was at his residence. Upon
hearing the sound of a bomb explosion, he
reached "Siwan". He reached the place of
occurrence where a dead body was lying.
No one was present there. A dead body was
lying there which he could not recognize.
Hours later he came to know that the body
was of Kunwar Bharat, son of Phool
Chand. He did not see anyone attacking
750 INDIAN LAW REPORTS ALLAHABAD SERIES
him with a bomb. He arrived at the place of
occurrence after the incident.

15. PW-2 Phool Chand is the
complainant and father of the deceased
Kunwar Bharat. He stated in his evidence
that his son Kunwar Bharat, aged 13 years,
was
murdered
at
around
12-12:30
midnight. He was sleeping in the Verandah
of his ''Baithak' along with his son Kunwar
Bharat. On hearing the barking of a dog he
woke up and also awakened his ''Bhabhi
Chandradeiya and asked her why the dog
was barking. She came out and told him
that some persons were approaching
flashing the torchlight. 10 to 15 people
came there. Out of them he identified
Bhagwat, Sahab, Kamta and Lalloo. He hid
inside the house and then climbed up on the
roof of his house. His son ran towards his
''Kachcha' house. Bhagwat chased his son,
caught hold of him and took him through
the
lane
to
the
eastern
side.
The
complainant came down from the roof and
went to his house but no one was there.
Then he rushed to his ''Rahat' on the eastern
side. He heard the sound of 2-3 bomb
explosions. Beerbal, Hardev, Chandradeiya
and his wife Jagpatiya met him. He was
informed by his wife and Chandradeiya
that Bhagwat had killed his son by
throwing a bomb over his head and then
ran away. He went close to his son who
was lying on road, south to "Rahat". Due to
the explosion, his head was severed and he
died. He identified the accused in the light
of the torch which was in their hands.
Before this incident, the accused Bhagwat
wanted to carve out a water drain through
his ''Chak', which the complainant had
resisted. For this, Bhagwat had filed a civil
suit and hence, Bhagwat was inimical to
him. Report of this occurrence was dictated
by him to Udaybhan Singh and after
hearing the same, putting his thumb
impression he handed it over to the police
station. He has proved the written report as
Ex. Ka-1. He also stated that Bhagwat
lodged a false report about the dacoity at
his house naming the complainant. But
after the investigation, the final report was
submitted on that matter.

16. PW-3 Chandradeiya stated in her
examination-in-chief that on the day of the
occurrence she was sleeping in her house.
Phool Chand and Kunwar Bharat were
sleeping in the same house on a common
cot. Phool Chand woke her up and asked
her to check as to why the dogs were
barking on the roof. She went to the lane in
the Verandah and saw 10 to 15 persons
carrying torches approaching. They were
armed with ''Lathi', ''Goli' and ''Bhala'.
They came in front of their Verandah. She
informed Phool Chand who then climbed
up the roof of the house. Assailants flashed
the torchlight on the cot of Phool Chand.
Due to this, Kunwar Bharat rushed towards
his mother's ''Kuchcha' house. Assailants
chased Kunwar Bharat. She also went after
them crying. Kunwar Bharat knocked on
the door of his mother. The moment his
mother opened the door, Bhagwat, Sahab,
Lalloo and Kamta caught hold of Kunwar
Bharat and dragged him towards ''Rahat'.
She along with the mother of Kunwar
Bharat ran after them. She saw that three
bombs exploded at the door of the
Bhagwat. Bhagwat attacked Kunwar Bharat
with a bomb towards the south of ''Rahat'.
All the assailants ran away towards the
western side. She identified the accused in
the light of the torch. Kunwar Bharat died
after sustaining injuries from the bomb.

17. PW-4 Jagpatiya stated in her
examination-in-chief that on the day of the
occurrence she was sleeping in her
''Kachcha' house. Her son Kunwar Bharat
12 All. Bhagwat & Ors. Vs. State of U.P.
751
was sleeping with his father in the ''Pakka'
house. Chandradeiya was also sleeping
there. At midnight Kunwar Bharat came to
her crying and started banging on the door.
As soon as she opened the door accused
Sahab, Bhagwat, Lalloo and Kamta came
there Bhagwat and Sahab caught hold of
Kunwar Bharat, and Kamta and Lalloo
pushed him towards ''Rahat'. They were in
all 10 to 15 people. Lalloo, Kamta and one
unknown person were having torches.
Chandradeiya also came there. She along
with Chandradeiya went after Kunwar
Bharat and Bhagwat. These people took
Kunwar Bharat to the southern side of
''Rahat' Bhagwat attacked Kunwar Bharat
with a bomb. His head was severed and he
died. She wept and cried. Phool Chand,
Birbal and Hardev came in this order. All
the assailants ran towards the western side.
When these 10-15 people were taking away
Kunwar Bharat, she heard three bomb
explosions at the door of Bhagwat.

18. PW-5 Dr. R.R. Rai stated in his
evidence that he conducted the postmortem on the body of deceased Kunwar
Bharat on 28.10.1979 at 3:15 pm. The age
of the deceased was 13 years. The
following injuries were found:-

Anti-mortem Injuries

1. Badly lacerated wound on
head and face in the area of 20 cm x 17 cm,
must of skull missing, most of skull badly
fractured and most of bone pieces missing.
Membrane of brain matter missing. Most of
brain matter missing in to pieces. Both eye
ball with eye brows and eye lids and nose
and upper or lower lip with surrounding
facial muscles with skin missing with facial
bone with upper jaw missing. Lower jaw
badly
fractured
into
pieces.
Tongue
lacerated in whole, whole face except right
ear badly lacerated parts missing. The
lacerated wound of head and face looking
in one.

2. Multiple abrasion in a area of
30 cm x 15 cm on front of both shoulder
upper part and front sides of neck. Yellow
powder seen in places.

This witness has proved the postmortem report as Ex Ka-2.

19. PW-6 H.C. 105 Achhaivar Dubey
stated in his evidence that on 28.10.1979 he
was posted at Police Station Kotwali
Azamgarh as head Moharir. On the basis of
the written report (Ex Ka-1), he prepared
the first information report in his writing
and signature. The first information report
is proved as Ex Ka-3. Registration of the
case was entered in Rapat at 2.20 am. The
witness has proved the entry of G.D. as Ex
Ka-4.

20. C.W.-1 S.I. Balkaran Singh is the
Investigating Officer of this case. He stated
in his examination-in-chief that in October
1979 he was posted as S.I. in Kotwali
Azamgarh. The case was registered in his
presence
and
the
investigation
was
entrusted to him. He reached the place of
occurrence on 28.10.1979 and the inquest
proceedings were conducted. This witness
has proved the inquest report as Ex C-1.
Documents such as the photo of the dead
body, "Khaka Naash" report to C.M.O.,
and other documents were proved by this
witness as Ex C-2 to Ex-4. The dead body
of the deceased was sent for post-mortem.
The evidence of the witnesses was
recorded. He collected plain soil and bloodstained soil from the place of occurrence.
He prepared the recovery memo which he
proved as Ex C-5. During the investigation,
he prepared the site plan of the place of
occurrence which he proved as Ex C-6.
After concluding the investigation, he
752 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted the charge sheet against all the
accused which is proved by him as Ex C-7.

21. Now we proceed to re appreciate
the
documentary
and
oral
evidence
produced before the trial court.

22. In the present appeal, the question
which needs to be determined is whether,
on the intervening night of 27/28.10.1979,
the appellants committed the murder of
Kunwar Bharat, by throwing a bomb at
him.

23. It is to be noted that in a criminal
trial, the burden of proof lies upon the
prosecution to prove the charge beyond
reasonable doubt.

24. As per the case of the prosecution,
as described in the first information report,
the complainant Phool Chand was sleeping
along with his son Kunwar Bharat in the
Verandah adjacent to his ''Baithak'. From the
western lane, 10-15 persons came flashing
the torchlights and they were shouting "YahiYahi". The complainant identified the
appellants-accused Bhagwat, Sahab, Lalloo
and Kamta. Out of fear, the complainant ran
towards his ''Kothari' while his son rushed
towards the house of the complainant which
was situated on the eastern side of the
''Baithak'. The complainant raised the alarm
and rushed towards the direction where his
son had run away. He heard the sounds of
three bomb explosions and found his son had
died. When he reached the spot, his wife
(PW 4) was crying saying that appellant
Bhagwat attacked his son with a bomb. The
Sister-in-law of the informant, Chandradeiya
(PW-3) and Hardev (PW 1) were also
present there.

25. PW-2 Phool Chand in his
examination in chief has made material
improvements
vis-à-vis
the
first
information report. In his examination-inchief, he stated that he woke up around 1212:30 midnight to the sound of the barking
of a dog. He asked his sister-in-law
(bhabhi), PW-3, why the dog was barking.
She came out and informed him that some
persons are approaching flashing the
torchlight. 10-15 persons came there and
amongst them, he identified the appellants
because they flashed the torch light on his
cot. Bhagwat caught hold of his son and
took him away to the eastern side. The
complainant came down from the roof of
his house and reached ''Rahat' where he
heard 2-3 bomb explosions. His wife and
Bhabhi told him that Bhagwat attacked the
head of his son Kunwar Bharat and went
away. He found his son dead.

26. The facts that the informant woke
up to the sound of barking of the dog; he
identified the appellants in the light of the
torch; Bhagwat caught his son Kunwar
Bharat; he heard the sound of 2-3 bomb
explosions when he was rushing to his son;
all amount to improvements in his evidence
since these facts find no mention in the first
information report (Ex Ka 1).

27. In his cross-examination the
complainant stated that he was standing in
the Verandah when Chandradeya came to
him and he then ran to his house but he also
stated that when 10-15 persons came there
he was sleeping with Kunwar Bharat.
These statements are self-contradictory.

28. He further stated that he
confronted these 10-15 people, standing at
a distance of 4-6 steps from him and at this
time, Kunwar Bharat was sleeping nearby
on the cot. These people were not carrying
any bombs or guns, but they had ''lathi',
''ballam',
''gandasi',
''bhala'.
The
12 All. Bhagwat & Ors. Vs. State of U.P.
753
complainant had also not mentioned these
facts in his first information report.
Moreover,
later
during
the
crossexamination, he stated that the assailants
were not having ''Gandasa' instead they had
only ''lathi' and ''ballam'. He also stated that
he did not see from the front whether the
assailants were armed.

29. He stated that he had mentioned in
his report that Bhagwat caught hold of his
son after chasing him but this fact also does
not find any place in the FIR.

30. PW-2 also stated in his crossexamination that he mentioned the barking
of a dog in his report (Ex Ka-1). He also
narrated that he asked his Bhabhi why the
dog was barking but with regard to this fact
also, the FIR is silent.

31. All of the above show that PW-2
has made material improvements during his
statement and the entire deposition.

32. In his evidence, PW-2 stated that
there was an earlier dispute between
Bhagwat (one of the accused) and him
concerning a drain of tubewell. Bhagwat
wanted to carve out a drain through his
''Chak' which the complainant had resisted.
As a result, Bhagwat filed a civil suit
against the complainant. The complainant
had preferred an appeal against the
judgement relating to this matter, before the
High Court. The complainant believes and
had assigned this dispute as the motive
behind the commission of this crime by the
appellant-accused. Further, in his crossexamination, he stated that one out of the
said 10-15 people shouted "yahi hai" and
that these words were about him. He did
not know why the assialants had come to
his house. He told the Investigating Officer
that the accused came along with other
people to kill him. His son Kunwar Bharat
was killed by these assailants since there
was a dispute related to a drain. This
evidence goes to show that the assailants
came to target the complainant and not his
son Kunwar Bharat.

33. The complainant stated that he had
to face ten persons whom he did not
recognize. Out of 10 to 15 persons, nobody
rushed to the complainant or said anything to
him. He was not attacked by any of them and
nobody entered the Verandah or the room.
He passed through these 10-15 persons
within the close proximity of 2-1 steps. Even
then, no one out of them rushed towards him
to attack him.

34. If this evidence of the complainant
is relied upon, it would appear that the
assailants did not come there to attack him.
The complainant in his evidence stated that
when he was rushing toward his "Kaccha"
House from Pucca house, he was actually
behind the assailants within a distance of 1015 steps. Even at that time, these assailants
did not turn back to attack him.

35. Based on this evidence, it is
unbelievable
that
on
one
hand,
the
complainant submits that the assailants had
come to injure or attack him but on the other
hand no injury was caused to him even when
the assailants had enough opportunity to do
so in the close proximity with him. The
testimony of the complainant creates serious
doubt about prosecution version as to why the
assailants remained inactive and did not
attack the complainant when they had
sufficient opportunity to kill him since
according to the complainant assailants came
to target him.

36. So far as the question of the
killing of Kunwar Bharat by appellants is
754 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, PW2 stated that when his
bhabhi Chandradeiya went from his house
Kunwar Bharat was sleeping on the cot.
The assailants did not make any effort to
catch Kunwar Bharat and they did not even
approach him. When Kunwar Bharat
rushed from his "Pakka" house to "Kachha"
house he passed through the same lane
where the assailants were standing. PW-2
did not see assailants heading toward
Kunwar Bharat or attacking him.

37. This evidence of the complainant
belies the theory of the prosecution and
creates
reasonable
doubt
over
the
occurrence as stated by the prosecution.

38. PW-3 Chandradeiya stated that
she heard the sound of three bomb
explosions at the door of Bhagwat, the
appellant. In her cross-examination, she
said that when the informant came down
from his roof she was with Kunwar Bharat
at ''Rahat'. Assailants did not make any
effort to enter into the Verandah or ''Pakka'
house of the informant. None of them
either tried to catch her or Kunwar Bharat.
When the informant was sleeping, none of
the assailants headed towards him or
Kunwar Bharat for attacking them, instead
these 10-15 persons were standing at their
place.

39. On the basis of the aforesaid
evidence it appears to be quite unnatural as
to why the assailants did not react and
catch this witness or Kunwar Bharat at that
time. This shows that the accused had no
intention to kill Kunwar Bharat. This
witness has also stated about the unnatural
conduct of the accused that when she was
heading towards the ''Kachcha' house, none
of the assailants approached her. Kunwar
Bharat stood for a while close to his cot.
She stated that when the assailants flashed
the light of the torch at Kunwar Bharat at
that time the informant was on his roof. She
saw Kunwar Bharat near the door of the
''Kachcha' house and at that time assailants
were at a distance of 2-3 hands from
Kunwar Bharat and she was towards the
eastern side at a distance of 2-4 hands.
When she and the wife of the informant
were
crying
none
of
the
assailants
attempted to attack them. The assailants did
not make any effort to catch them from
the''Kachcha' house to ''Rahat'. When she
reached the well she did not see Phool
Chand.

40. PW-4 Jagpatiya, wife of the
complainant and mother of the deceased,
stated in her cross-examination that when
she opened the door of her house, the
assailants were 3-4 steps away from
Kunwar Bharat and he was not surrounded.
Neither
she
nor
Chandradeiya
was
surrounded by the assailants. They were
also not threatened by them even though
they did not speak to them. None of the
assailants tried to kill Kunwar Bharat at her
house or on the way to ''Rahat'. She along
with Kunwar Bharat and the assailants
stayed at ''Rahat' for about ten minutes.

41. This evidence of PW-4- Jagpatiya
also raises serious doubt about the
commission of the crime by the accused
persons as said earlier. The assailants did
not kill Kunwar Bharat at the place where
he was sleeping, or when he passed through
the assailants while he was approaching the
house of his mother. They also did not try
to kill him at the house of his mother (PW4). They did not make any effort to kill him
on the way up to ''Rahat' and they stood
there for about ten minutes.

42. This conduct of the assailants
clearly indicates that the assailants had no
12 All. Bhagwat & Ors. Vs. State of U.P.
755
intention to kill Kunwar Bharat. Moreover,
the assailants did not make any endeavor to
catch or attack the complainant, PW3
Chandradeiya or PW4 Jagpatiya.

43. The Hon'ble Apex Court in the
case of Durbal v. State of U.P., (2011) 2
SCC 676 observed that :-

"17. The whole prosecution case
is that on account of the dispute over
fishery rights, the accused bore a grudge
against Kaldhari (PW 1) and even
threatened him with dire consequences.
Whether there was any dispute over the
fishery rights itself is highly doubtful. The
only person apart from PW 1 who speaks
about the dispute is Magan (PW 4) who
was examined by the police after more
than two months of the occurrence. It is
true, motive for committing the crime
pales into insignificance in a case where
the prosecution story rests upon the
evidence of eyewitnesses. But, for the
purposes of evaluating and appreciating
the evidence, the sequence of events
cannot be ignored.

18. Be that as it may, there was
no
enmity
whatsoever
between
the
deceased and the accused. When the
suggested enmity, if at all, was between
the accused and Kaldhari (PW 1), there
does not appear to be any reason as to why
the accused should attack the deceased
and
leave
Kaldhari
unscratched.
Admittedly, there was not even an attempt
by the accused to attack Kaldhari. This
story somehow appears unbelievable and
difficult to accept. At any rate, there is no
evidence adduced by the prosecution in
this regard."

44. In view of the observation made
by the Hon'ble Apex Court in the case in
hand also, on the basis of the prosecution
evidence, it is clear that the complainant
alleged that the appellants had enmity with
him with regard to carving out some drain
from his ''Chak' which the complainant had
resisted. Further the complainant had stated
that the recital of the word "yahi-yahi" was
in reference to him. Therefore, the
appellant had no enmity with Kunwar
Bharat, the deceased. There does not
appear any reason as to why the accusedappellant would attack Kunwar Bharat and
leave the complainant and other witnesses
of fact unscratched. Pertinent to mention
here that there was not even an attempt by
the
accused-appellant
to
attack
the
complainant Phool Chand. Therefore, the
case
of
prosecution
appears
to
be
unbelievable and difficult to accept.

45.

In
her
deposition,
PW-3
Chandradeiya stated that when 3-4 bombs
exploded at the door of the accused
Bhagwat she was near the well along with
Kunwar Bharat. All the assailants were 2-3
steps away from them. Both of them stood
there for two minutes. She and Kunwar
Bharat went towards the southern ''Rasta'
from the well and remained there for
around one hour.

46. PW-3-Chandradeiya in her
deposition
stated
that
when
accused
Bhagwat threw a bomb upon Kunwar
Bharat, she was standing at a distance of 34 hands from him. Kunwar Bharat was
standing beside her. She did not sustain any
injury. 10-15 persons were also standing at
a distance of 3-4 hands from Kunwar
Bharat.

47. It is highly improbable that when
PW-3 was standing within close proximity
of the deceased Kunwar Bharat and 10-15
persons were also standing within close
proximity of Kunwar Bharat, none of them
756 INDIAN LAW REPORTS ALLAHABAD SERIES
sustained any injury while it is alleged that
a powerful bomb was thrown on the face of
the Kunwar Bharat.

48. PW-4 Jagpatiya also stated in her
cross-examination that Kunwar Bharat was
attacked from a distance of 3-4 steps. She
did not sustain any injury and did not
receive any bloodstains on her clothes.

49. The aforesaid evidence of PW-3
Chandradeiya and PW-4 Jagpatiya also
creates serious doubt about the prosecution
story. These two witnesses stated that both
of them and the assailants were standing
very close to Kunwar Bharat but neither
these witnesses nor any of the assailants
sustain any injury. PW-5 Dr. R.R. Rai has
stated in his evidence that the intensity of
the bomb was very severe. It is highly
improbable that the persons standing in
close proximity to Kunwar Bharat did not
sustain any injury while it was a powerful
bomb. This improbability creates serious
suspicion about the prosecution version.

50. PW-4 Jagpatiya is an important
witness in this case. She has alleged to have
witnessed the incident. PW-4 in her
examination in chief stated that when her
son Kunwar Bharat came to her at midnight
on the day of the occurrence and when she
tried to open the door, the accused Sahab
and Bhagwat caught hold of her son
Kunwar Bharat and the accused Kamta and
Lalloo pushed him and took him away.
Assailants were 10-15 in number.

51. This fact has been narrated first
time by this witness in the Court. and not
mentioned in the first information report
either by the informant or by any other
witnesses such as PW-3 Chandradeiya.
This witness has also stated in her
examination in chief that when she was
crying after the occurrence, her husband
Phool Chand arrived at the spot and
thereafter Beerbal and Hardev came there.
This evidence proves that the informant is
not the eyewitness of the incident. Further,
this witness has also stated that she heard
the sound of three bomb explosions at the
door of accused Bhagwat when the
assailants were dragging Kunwar Bharat.

52. PW-2 Phool Chand in the first
information report mentioned that out of
fear when the assailants came, he rushed
towards ''Kothari' but in his evidence, he
stated that he hid inside the house and
thereafter he climbed up the roof of the
house. The complainant, PW1 Phool
Chand, in his cross-examination stated that
at the time of lodging the FIR, he went to
the police station alone and nobody was
accompanying him. However, CW-1 Bal
Karan Singh, the Investigating Officer
stated in his evidence that Ram Janam
Singh and Harish Chandra R/O Devkhari
came along with the complainant to the
Police Station. These variations in the
statements made by the informant amount
to a material contradiction in the version of
the complainant.

53. PW 3 Chandradeiya stated that the
assailants chased Kunwar Bharat, but PW 2
Phool Chand did not mention this in his
evidence while it is said that both the
witness were present at the ''Pukka' house
when the assailants came.

54. PW-4-Jagpatiya first time had
narrated
in
her
statement
to
the
Investigating Officer that Bhagwat was
carrying a bag while PW-7 Balkaran Singh,
Investigating Officer specifically denied
that PW 4 stated that Bhagwat was carrying
a bag. It is pertinent to mention here that
none of the prosecution witnesses such as
12 All. Bhagwat & Ors. Vs. State of U.P.
757
PW-2
Phool
Chand
and
PW-3Chandradeiya and PW-4-Jagpatiya stated in
their evidence that the assailants were
carrying a bomb in their hands. Therefore,
the evidence that Bhagwat was carrying a
bag at the time of occurrence amounts to an
improvement and embellishment in the
evidence of the prosecution witness.

55. PW-3-Chandradeiya has also
stated in her evidence that when she
informed about the assailants he climbed
on the roof of ''Kothari'. PW-3 in her
evidence stated that all four accused caught
hold of Kunwar Bharat and took him away
near the ''Rahat'. This evidence is not
corroborated with the evidence of PW-2
(informant) while PW-4 Jagpatiya as
referred to above, stated that Bhagwat and
Sahab caught Kunwar Bharat and Kamta
and Lallu pushed Kunwar Bharat towards
the
''Rahat'.
This
is
the
material
contradiction in the evidence of the fact.
PW-3-
Chandradeiya
in
her
crossexamination stated that when the assailants
flashed the light of the torch on the cot of
Kunwar Bharat at that time informant was
on the roof. This evidence is also not
corroborated by the evidence of PW-2
Phool Chand.

56. There are material contradictions
between the testimonies of PW-2-Phool
Chand, PW-3-Chandradeiya and PW-4Jagpatiya and these material contradictions
adversely affect the prosecution story.

57. The Hon'ble Supreme Court in
Krishnegowda v. State of Karnataka,
(2017) 13 SCC 98 observed that material
contradiction
in
the
testimony
of
prosecution witness creates serious doubt in
the mind of the court about the truthfulness
of the witnesses and hence it cannot be held
that the prosecution has proved the guilt
beyond reasonable doubt and the accused
are entitled for benefit of doubt in such
case. The Hon'ble Court held:-

"...26. Having gone through the
evidence of the prosecution witnesses and
the findings recorded by the High Court
we feel that the High Court has failed to
understand the fact that the guilt of the
accused
has
to
be
proved
beyond
reasonable doubt and this is a classic case
where at each and every stage of the trial,
there were lapses on the part of the
investigating agency and the evidence of
the witnesses is not trustworthy which can
never be a basis for conviction. The basic
principle of criminal jurisprudence is that
the accused is presumed to be innocent
until his guilt is proved beyond reasonable
doubt.

27. Generally in the criminal
cases, discrepancies in the evidence of
witness is bound to happen because there
would be considerable gap between the
date of incident and the time of deposing
evidence before the court, but if these
contradictions create such serious doubt
in the mind of the court about the
truthfulness of the witnesses and it
appears to the court that there is clear
improvement, then it is not safe to rely on
such evidence.