# Bhudhar & Ors v. State

- **Citation:** Criminal Appeal No. 1768 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-28
- **Case number:** Criminal Appeal No. 1768 of 1996
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhudhar-ors-v-state-46439
- **Pages:** 21

## Headnote

Criminal law- Indian Penal Code - Sections
147, 148, 302/149 & 323/149 - Appeal
against conviction.

Held :- Benefit of Doubt- Statement of
witnesses and circumstances together raise
strongly suspicion about the occurrence and
involvement of accused. (Para 57)
562 INDIAN LAW REPORTS ALLAHABAD SERIES
Common object to murder the deceased is not
proved. Hence, the benefit of doubt goes in
favour of accused.

Motive - In a case of direct evidence, motive
is not of much importance. (Para 61)

Appeal partly allowed. (E-2)

List of Cases Cited:-

## Text

_Characters 0–39,738 of 71,103. This is a partial read: ask again with offset=39738 for what follows._

3-5 All. Bhudhar & Ors. Vs. State
561
as a principle of law that where the
accused is charged under Section 302 IPC,
he cannot be convicted for the offence
under Section 306 IPC."

49. Hon,ble Supreme Court thus
convicted the accused under Section 306
I.P.C. instead of 302 I.P.C.

50. In view of above, the appeal filed
by the appellant is partly allowed. The
conviction of the appellant under Section
302 and 201 of the I.P.C. is set-aside and
he is acquitted of the charges under
Section 302 and 201 I.P.C. Appellant is
however now convicted for committing the
offence under Section 306 I.P.C. The
Judgment of trial Court with regard to the
conviction and sentencing of appellant
under Section 498A I.P.C. would remain
unaltered and is hereby confirmed.

51. Having regard to the fact that the
appellant has been exonerated of the charge
under Section 302 and 201 I.P.C. for the
reasons that certain circumstances have not
been put by the trial court before the
appellant at the time of recording of his
statement under Section 313 of the Cr.P.C.
and the remaining circumstances prove the
offence under Section 306 I.P.C., we
sentence the appellant to undergo rigorous
imprisonment for 10 years with a fine of
Rs.30,000/-. In default of payment of this
fine, the appellant would undergo further
imprisonment of simple nature for one year.
The fine so deposited by the appellant
would be distributed in equal shares
amongst the children of deceased- Neelam.

52. Appellant is in jail, if he has
already undergone the sentence as modified
by this Court and on deposit of the fine as
directed by this Court, he will immediately
be released from prison if his further
detention is not required in any other case.

53. Appellant would also file a
personal bond with two sureties of the like
amount to the satisfaction of the Chief
Judicial
Magistrate
concerned
under
Section 437A of the Cr.P.C., within 15
days of his release from prison.

54. A copy of his judgment be
immediately sent to the trial court for
compliance.
----------
(2020)03-05ILR A561
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.04.2020

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

Criminal Appeal No. 1768 of 1996

Bhudhar & Ors. ...Appellants
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri
J.S.
Tomar,
Sri
Arvind
Kumar
Srivastava[A.C.]

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

Criminal law- Indian Penal Code - Sections
147, 148, 302/149 & 323/149 - Appeal
against conviction.

Held :- Benefit of Doubt- Statement of
witnesses and circumstances together raise
strongly suspicion about the occurrence and
involvement of accused. (Para 57)
562 INDIAN LAW REPORTS ALLAHABAD SERIES
Common object to murder the deceased is not
proved. Hence, the benefit of doubt goes in
favour of accused.

Motive - In a case of direct evidence, motive
is not of much importance. (Para 61)

Appeal partly allowed. (E-2)

List of Cases Cited:-

1. Ganga Ram Sah & ors. Vs. St. of Bihar,
Criminal Appeal No.1143 of 2010,

2. Lallu Manjhi & anr. Vs. St.of Jharkhand, 2003
(2) SCC 401

3. Lakshmi Singh Vs. St. of Bihar, 1976 (4) SCC
394,

4. Om Prakash Vs. St. of Har., 2014 (5) SCC
753,

5. Vadivelu Thevar Vs. St. of Madras, AIR 1957
SC 614,

6. St. of Raj. Vs. Kalki 1981 (2) SCC 752,

7. Masalti Vs St. of U.P., AIR 1965 SC 202,

8. St. of U.P. Vs. Kisan Chand & ors. 2004 (7)
SCC 629,

9. Dani Singh & ors. Vs. St. of Bihar, 2004 (13)
SCC 203,

10. Masalti, Lal Ji Vs. St. of U.P., 1989 (1) SCC 437,

11. St. of U.P. Vs. Dan Singh & ors., 1997 (3)
SCC 747,

12. Chikkarange Gowda & ors. Vs. St. of
Mysore, AIR 1956 SC 731,

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Pradeep Kumar Srivastava, J.)

1. Heard Shri Arvind Kumar
Srivastava, learned Amicus Curiae for the
appellant no. 2 Chander son of Lallu Ram,
Shri L.D. Rajbhar and Shri Sunil Kumar
Tripathi learned A.G.As. for the State
respondent.

2. The present appeal has been
filed by three appellants Bhudhar,
Chander and Roopram, all sons of Lallu
Ram, residents of Village Adilabad,
Police Station Bisalpur, District Pilibhit
against the judgment and order dated
09.08.1996
passed
by
the
Special/Additional
Sessions
Judge,
Pilibhit in the Sessions Trial No.173 of
1986 under Sections 147, 148, 302/149
and 323/149 I.P.C., Police Station
Bisalpur, District Pilibhit.

3. At the outset, we may note that
nine persons were named in the first
information lodged on 20.11.1985 for
their involvement in the incident-inquestion, out of whom accused Ganga
Ram died during trial. Out of remaining
eight, five accused persons namely
Bhudhar, Chander, Roopram, Munna
and Moti were convicted by the trial
court for the offences under Section 302
read with Section 149 and Section 323
read
with
Section
149
IPC
and
sentenced each for life imprisonment
alongwith fine of Rs.5000/-; as also for
six months rigorous imprisonment for
the above offences. In case of default or
non-payment of the fine, they have to
further undergo two years rigorous
imprisonment. Four accused persons
namely Chander, Roopram, Munna and
Moti have also been convicted under
Section 147 IPC and sentenced for six
months
rigorous
imprisonment.
Accused
Bhudhar
has
also
been
convicted under Section 148 IPC and
sentenced
for
one
year
rigorous
imprisonment. All the punishment were
to run concurrently.
3-5 All. Bhudhar & Ors. Vs. State
563
+
4. However, out of five convicted
accused persons, in the Connected Appeal
No.1757 of 1996 two accused namely
Munna and Moti had died and their appeal
has
been
abated
vide
order
dated
12.07.2019 by this Court. In the present
appeal,
the
appellants
Bhudhar
and
Roopram had died and appeal on their
behalf has been abated vide order dated
19.09.2019. Thus, we are left with the
challenge to the order of the conviction of
only one accused person namely Chander
son of Lallu Ram in the present appeal.

5. As the prosecution story unfolded, the
incident in question occurred on 20.11.1985 at
about 07.00 A.M. The first information report
was lodged by the person namely as 'Register
son of Bhikari Lal' (hereinafter referred as the
'first informant') resident of village Adlabad,
Police Station Bisalpur, District Pilibhit on
20.11.1985 at about 09.30 A.M. The Chik FIR
was drawn on oral statement of the first
informant recorded by the Head Moharir Puran
Lal posted in the Police Station Bisalpur,
Pilibhit. The first informant is son of deceased
Bhikari Lal. As per the averments in the first
information report, some dispute regarding
landed property was going on between three
accused namely Bhudar, Chander and Roopram
(the appellants herein who were real brothers)
and their cousin Sudami Devi in Tehsil
Bisalpur. In the legal proceeding, deceased
Bhikari Lal was a witness from the side of
Sudama Devi. The first informant states that on
the previous day of the incident in the evening,
an altercation took place between Bhudhar,
Munna, Ram Asrey and Moti who were
pressurizing the deceased not to give statement
in favour of Sudama Devi. On his denial to
accede to their pressure, the accused persons
became
inimical
to
the
deceased.
On
20.11.1985 at about 07.00 A.M., when
deceased Bhikari Lal, the first informant
Register and a villager namely Pusey son of
Sohan were going to their fields located
towards western side of the village, as soon as
they reached at the field of Sadhu near the
Canal, nine accused persons named above came
out from the field of Moti each armed with
deadly weapons and surrounded/gheraoed the
victim
party.
Accused/appellant
Chander
exhorted by saying that Bhikari Lal should be
taught a lesson for appearing as a witness in
favour of Sudama and that he should be killed
on that day. Hearing this, three persons of the
victim party raised cries. Hearing their cries,
Munna Lal son of deceased Bhikari Lal and
their relatives namely Itwari, Sri Ram and
Chotey lal ran towards the accused persons
challenging them. At that point of time, the
accused persons were assaulting Bhikari Lal
(deceased) and Pusey with Lathi. Looking to
the witnesses approaching them, Bhudhar and
Ram Asrey opened fire from their guns.
Deceased Bhikari Lal got hit by the fire, fell in
the Canal and died on the spot. The accused
persons ran away in the grove of Moti. The
witnesses then took out the dead body from the
Canal and kept it on the Chabutara of one
Maniram. Injured Pusey was sent for treatment
to the Hospital by bullock-cart. While leaving
the dead body in the custody of his family
members, the first informant went to the police
station to lodge the report. The first informant
also submitted two empty cartridges allegedly
collected from the spot which were fired by the
two accused persons. The Chik report drawn by
the Head Moharir is endorsed with the thumb
impression of the first informant and has been
proved and exhibited as Exhibit Ka-'1'.

6. The prosecution produced three
witnesses of fact namely (i) Register son of
the deceased/first informant, (as PW-1); (ii)
Munna Lal another son of deceased Bhikari
Lal as PW-2 and (iii) injured Pusey as PW3. Amongst formal witnesses, PW-4,
Doctor Harish Chandra Nath had appeared
in the witness box to prove the injury
564 INDIAN LAW REPORTS ALLAHABAD SERIES
report.
(exhibited
as
Exhibit
'Ka-3')
prepared by him of the injuries of the
witness
PW-3
Pusey.
Doctor
P.K.
Srivastava (PW-8) proved the post-mortem
report and the injuries sustained by
deceased Bhikari Lal.

7. PW-7 is the Investigating Officer
who proved the reports such as site plan,
recovery memo of the blood stained earth
and plain earth, exhibited as Exhibit Ka-
'10'. He states that the statements of nine
accused
persons
were
recorded
on
13.12.1985. The statement of injured
witness Pusey was recorded on 03.01.1986,
on the date when investigation was
completed and charge sheet (proved as
Exhibit Ka-'17') was submitted by him. He
proved the G.D. entry of Chik FIR which
had been recorded as Rapat No.14 at about
09.30 A.M. on 20.11.1985, by Head
Moharir Puran Lal as Exhibit Ka-'18', as
Head Constable Puran Lal died before
commencement of trial. About the motive
narrated in the first information report, PW7 (Investigating Officer) states that though
he made an effort to get the necessary
papers relating to the dispute from Sudama
Devi but those papers were not provided to
him till submission of the charge sheet.

8. PW-7 further states that though he
did not indicate the field of Bhikari and
Register in the site plan, but location of the
spot of crime has been correctly indicated
therein. The village Abadi was about two
furlong from the site of the incident. The
place
mentioned
as
"Chabutara
of
Maniram" was about 11⁄2 half furlong from
the Puliya over the Canal. He admitted that
he did not mention the place where accused
persons had assaulted Pusey, the injured
witness. He further states that statements of
the eye-witnesses of the incident were
recorded by him on the spot as soon as he
visited the place. He denied suggestion of
Bhikari Lal (deceased) and first informant
(Register)
being
men
of
criminal
antecedent. He denied suggestion of FIR
being Ante-timed or he having not visited
the scene of the crime and states that he or
any other police officer did not collect any
empty cartridge from the spot of crime.

9. As noted above, the Doctors PW-4
and PW-8 proved the reports prepared by
them by entering in the witness box. PW-4
proved that injured Pusey was brought to
the Primary Health Centre, Bisalpur and his
injuries were examined at about 12.30 P.M,
the injury report was prepared in his
handwriting and signature, it was exhibited
as Exhibit Ka-'3'. The injuries found on the
person of injured witness Pusey are
relevant to be noted hereunder:-

"1. Abraded contusion 12 cm x 5
cm at left side forehead including left eye
upper & lower side, eye cannot be opened
due to slenderness and traumatic swelling
and area round the eye ball. Kept under
observation and advised x-ray of left fickle,
Eye ball and forehead. Blood is present at
conjunctiva.

2. Abrasion 1 cm x 0.5 cm at Rt.
Eyebrow in middle fresh in duration.

3. Clotted blood present at both
nostrils. But no any external mark of injury
seen."

10. When confronted about the nature
of said injuries, PW-4 states that it was
possible that injury Nos.1 and 2 could
occur by the blow of Lathi.

11. PW-8, Doctor P.K. Srivastava
who conducted the post-mortem proved the
medico-legal report prepared by him as
Exhibit Ka-'19' in his handwriting and
signature. He proved the injuries found on
3-5 All. Bhudhar & Ors. Vs. State
565
the body of the deceased in external and
internal examination as under:- .

"Lacerated wound on the right
side of head 4cm X1/12 C bone deep 8 cm
above the right ear.

2. Gun shot wound of entry 3C X
3C circular size on the right side of
abdomen
blackening,
tatooing
and
scroching not found, 5cm. below the lower
rists.

3. Multiple gun shot wound of
exit in 5 cm x 15 cm area on the Rt. Side of
chest just below the right clavicle."

12. The post-mortem was conducted
on 21.11.1985 at about 02.00 P.M. The
possible time of occurrence of the injuries
could be 24 to 48 hours prior to the
postmortem. The possible time of murder
could be around 07.00 A.M. on 20.11.1985.
Injury Nos.2 & 3 were typical of the
firearm whereas injury No.1 could occur
from a blunt object like Lathi. Antemortem injuries were sufficient to cause
death. Injury No.2 which is entry wound of
3x3 c.m. probably had been caused from
behind.

13. From the medico-legal report of
the deceased, it is evident that deceased had
sustained one injury on his head as the
blow of Lathi; Injury Nos.2 & 3 found on
the body of the deceased correspond to
each other, which means the deceased had
sustained one firearm injury. As far as the
injuries of PW-3 Pusey are concerned, from
the injury report, it is evident that in all
probabilities they have been caused by the
blow of Lathi which hit him on his
forehead. His eyes contained traumatic
swelling which could occur within 24 hours
as per the statement of the Doctor. These
injuries, however, were not fatal and are
mentioned as 'simple' in the injury report.

14. It is noted that from the statements
or reports of three formal witnesses nothing
could be elicited or pointed out to create
any doubt or dent in the prosecution story.

15. We are, thus, left with the ocular
version of the witnesses of fact. The
prosecution produced three witnesses (PW1, PW-2 and PW-3) as eye witnesses of the
occurrence, amongst whom PW-3 is an
injured witness.

16. In his deposition before the Court,
the
first
informant
Register
(PW-1)
reiterated
his
version
in
the
first
information report. Giving vivid details of
the incidents, he narrates that Bhudhar and
Ram Asrey were carrying guns whereas
Mohan and Bulaki had "Kaanta" in their
hands, rest of the accused persons were
carrying
Lathi.
They
first
assaulted
deceased Bhikari and Pusey by Lathi and
seeing the witnesses/villagers approaching
them, Bhudhar and Ram Asrey opened fires
which hit the deceased. As noted above,
from the medico-legal report it is evident
that only one fire hit the deceased. The
statement of the first informant that two
fires hit his father (deceased) before he fell
down is, thus, not correct. Two empty
cartridges found from the spot were
allegedly handed over by this witness to the
police but they were not tallied with the
Gun of Ram Asrey which was allegedly
recovered by police. It is, thus, difficult to
accept the version of the first informant that
both the accused BSection 149 Section 149
Section 149 Section 149 Section 149
Section 149 Section 149 Section 149
Section 149 Section 149 Section 149
Section 149 Section 149 Section 149
Section 149 Section 149 Section 149
Section 149 Section 149 Section 149
Section 149 Section 149 Section 149
Section 149 hudhar and Ram Asrey had
566 INDIAN LAW REPORTS ALLAHABAD SERIES
opened fire. The presence of Ram Asrey on
the spot was also doubted by the trial court.
With regard to other accused persons
Mohan and Bulaki to whom weapons
namely 'Kaanta' had been assigned, it was
noted
by
the
trial
court
that
no
corresponding injury was found. It appears
that for these reasons, trial court had
acquitted three accused persons namely
Mohan, Bulaki and Ram Asrey of all the
offences under which they were charge
sheeted.

17. In the above scenario, learned
counsel for the appellant vehemently argued
that firstly no evidence was brought by the
prosecution regarding the motive alleged in
the FIR. The eye witness account of the
manner of assault on the victim party is not
corroborated. The injuries of the witness PW3 may have been caused on account of falling
on the ground. Five persons assailed to have
attacked deceased by Lathis which they were
carrying individually whereas single injury of
the blunt object was found on the person of
deceased. Further, the prosecution story that
deceased and first informant were going to
their
field
at
about
07.00
A.M.
is
unbelievable, in as much as, in the internal
examination of deceased, his stomach was
found empty and faceal matter was present in
both small and large intestine. This condition
of the dead body makes the whole
prosecution story untruthful about the timing
of the incident. From the fact that small and
large intestine both were full with faceal
matter, in all probabilities death had occurred
before defecation by the deceased. This
situation clearly proves that the prosecution
has not come with clean hands as the death
had been caused during the night hours.
Presence of both PW-1 and PW-2 at the
scene of occurrence, thus, becomes highly
doubtful. The ocular versions of PW-1 of
accompanying the deceased and PW-2 of
reaching on the spot of occurrence hearing
the cries of PW-1, are not corroborated from
the medico-legal report. The statement of
PW-3, projected as injured witness, is
inconsistent with other witnesses of fact as
the place of occurrence is highly disputed.
Moreover, the place of occurrence had not
been ascertained by sending blood stained
earth
and
plain
earth
for
chemical
examination. The act of PW-1 in bringing
empty cartridges to the police station on his
own substantiates the defence version about
the doubt with regard to the timing and place
of occurrence.

18. In the whole prosecution story there is
no independent witness. Even the witnesses
who allegedly reached on the spot hearing the
cries of the victim party are all related to the
deceased. Moreover, none of them had been
produced before the Court. Further, the
prosecution has not proved the genesis of the
alleged unlawful assembly. Three accused
persons were real brothers to whom motive has
been assigned whereas other members of the
accused party have no concern. The act of
eyewitnesses in implicating six persons
unconnected with the crime is nothing but
exaggeration. False implication of fellow
villagers makes the version of eyewitnesses
wholly uncreditworthy. Moreso, when no
injury corresponding to the weapon (Kaanta)
assigned to two accused was found. Further
though Lathi was assigned to five accused
persons but the version of eyewitness regarding
the manner of assault is difficult to believe as
single blow of Lathi was sustained by deceased.
The submission, thus, is that the testimony of
eyewitness becomes a blatant lie and the
exaggeration and embellishment in their version
shake the entire prosecution case.

19. As far as PW-2 Munna Lal is
concerned, it is submitted that he is a Chance
witness. He has been projected by the
3-5 All. Bhudhar & Ors. Vs. State
567
prosecution only to give credence to the
testimony of the PW-1 only with the idea to
cover up the discrepancies in his testimony.

20. As regards PW-3, it is urged that
he had sustained injuries somewhere else
and he was brought in the story simply to
make the testimony of PW-1 creditworthy.
The
inherent
improbabilities
and
inconsistencies in the statement of the three
eye witnesses makes their version about the
timing of the incident and place of
occurrence wholly unreliable. Reliance is
placed on decision of the Apex Court in
(Ganga Ram Sah & others Vs. State of
Bihar)1 decided on 27.01.2017 and Lallu
Manjhi
&
another
Vs.
State
of
Jharkhand2 to assert that where the
weapons assigned to the accused persons,
(included as member of the unlawful
assembly) do not correspond to the injuries
sustained by the deceased, the testimony of
eye-witness becomes wholly unreliable. In
that event, the Court has to look for
corroboration in material particulars by
reliable testimony, whether direct or the
circumstantial before acting upon the
testimony of the eye witnesses. And where
the ocular version is inconsistent with other
evidence on record, it would be dangerous
to believe the prosecution version of
common object of the unlawful assembly to
commit murder so as to convict all accused
persons of the offence of murder by taking
recourse to Section 149 Cr.P.C.

21. Placing the decision of the Apex
Court in Lakshmi Singh Vs. State of Bihar3
(emphasis laid on para 13 to 16), it was
vehemently urged by the learned counsel
for the appellant that omission on the part
of the prosecution to send the blood stained
and plain earth collected from the place of
occurrence
for
chemical
examination,
which could have fixed situs of the assault,
proves to be fatal to the prosecution case. If
the defence succeeds in throwing a
reasonable doubt on the prosecution case, it
is sufficient to enable the Court to reject the
prosecution version and, thus, to set aside
the conviction. The solitary firearm injury
on the person of deceased in contradiction
to the statement of prosecution witnesses
PW-1 & PW-2 that two accused persons
namely Bhudhar and Ram Asrey had
opened fires from their guns which also hit
the deceased, shows the falsehood of the
prosecution
story.
In
view
of
the
exaggerations and embellishments found in
the version of the eyewitnesses P.W.-1 &
PW-2, it was necessary for the prosecution
to corroborate the evidence of the eye
witnesses through the expert evidence of
the Doctor, and since no corresponding
injuries were found on the person of
deceased, the prosecution was required to
explain the inconsistencies. The entire
genesis and origin of the occurrence put
forth by the prosecution is surrounded with
suspicious circumstances and negatives the
truth of the prosecution case.

22.

In
view of
the
inherent
improbabilities, serious omissions and
infirmities in the version of the eye
witnesses coupled with the fact that eye
witnesses PW-1 and PW-2 are closely
related to deceased being his son, there
cannot be any two opinion that the
prosecution has miserably failed to prove
the case against the appellant beyond
reasonable doubt. As the prosecution rests
its story entirely on eye witness account,
their
version
having
been
found
uncreditworthy, the whole prosecution case
falls. The trial court has committed grave
error in convicting five accused persons on
the shaky version of the alleged eye
witnesses projected by the prosecution.
Moreover, the appellant Chander herein has
568 INDIAN LAW REPORTS ALLAHABAD SERIES
been assigned only the role of exhortion in
the prosecution version itself. There is no
evidence that he assaulted the deceased
though he was assigned Lathi, he cannot be
convicted of the offence of murder under
Section 302 IPC by taking recourse to
Section 149 IPC. The appellant Chander,
therefore, is entitled to be acquitted of all
the offences of murder and assault on
deceased Bhikari and injured Pusey. The
appeal deserves to be allowed.

23. Learned AGA, on the other hand,
submits that there is direct evidence of the
occurrence. The testimony of three eye
witnesses is consistent and there is no
apparent contradiction in their version
about the occurrence of the incident. Five
out of nine accused persons being members
of unlawful assembly were rightly held to
be guilty of same offence by taking
recourse to Section 149 IPC. There is no
delay in lodging of the first information
report. The injuries sustained by the injured
witness and deceased correspond to the
weapons Lathi and firearm assigned to the
accused persons. The fact that no injuries
of deadly weapon "Kaanta" was found on
the person of deceased or injured witness
by itself does not make the prosecution
story doubtful. Even the presence of a
person who is a member of unlawful
assembly at the spot of crime without any
overt act in execution of the common
object of unlawful assembly to commit
murder, is sufficient to implicate him and
hold him guilty of murder on the principle
of vicarious liability which is fundamental
principle for invocation of Section 149
Cr.P.C.. Overt act or any specific act of a
member
of
unlawful
assembly
in
prosecution of common object of the
assembly is not necessary to be proved to
hold him guilty of the crime committed by
that assembly. Reliance is placed on the
decision of the Apex Court in Om Prakash
Vs. State of Haryana4.

24. Analyzing the testimony of eye
witnesses produced by the prosecution,
we find that as far as PW-2 is
concerned, as per his own version, he
was not present with the deceased and
reached the place of incident hearing
cries of the persons of the victim party.
He also assigned weapons in the hands
of the accused persons in the same
manner as averred by PW-1. Even the
exhortation made by appellant Chander
has been narrated by him in the same
words as stated by PW-1. The act of fire
opened by Bhudhar and Ram Asrey
(two accused person) is also narrated in
the same language. The distance of
house of PW-2 where he was present at
the time can be culled out from the
description given by him in the crossexamination as under:-

(i) the place of occurrence was
located at the western side of the
village in question;

(ii) Maniram Ka Chabutara
was the first place to reach while
coming to the village from the western
boundaries;

(iii) the house of PW-1 and
deceased was situated on the East-West
road approaching the village at a
distance of 20 paces from Maniram Ka
Chabutara;

(iv) the incident had occurred
at
a
distance
from
Maniram
Ka
Chabutara, near the Canal at the field of
Sadhu located near the field of Natthu
Lal Sharma;

(v) the accused person came to
the spot from the grove of Moti
adjacent to the field of Nathu Sharma
located near the place of occurrence;
3-5 All. Bhudhar & Ors. Vs. State
569

(vi) in between their house and
the place of murder, there lies only one
field of Natthu Lal Sharma which was
vacant at the relevant point of time;

(vii) the place of incident was at a
distance of 20 to 30 paces from their house
where PW-2 was present when he heard the
cries of the first informant.

25. PW-2 further states that the place
of incident was visible though not clear
from their house and when he heard the
cries of "bachao-bachao", he was outside
the house. He immediately ran to the place
of occurrence and when he left the house
he could see some persons at the place of
incident, but could identify them only when
he reached at the field of Nathhu Sharma.
He further states that after leaving the
house when he reached at Maniram Ka
Chabutara, at about 12 paces away from the
place of occurrence he could identify the
accused persons and saw them assaulting
deceased Bhikari Lal and injured witness
Pusey. As soon as the accused persons saw
him and he simultaneously looked at them,
Bhudhar and Ram Asrey opened fire. By
the time firing was made he had reached at
the field of Nathhu Lal Sharma.

26. From the above description of
PW-2, it is evident that there was no
occasion for him to hear the words of
exhortation allegedly made by appellant
Chander as he was not present on the spot
with the victim party since the beginning.
His omnibus narration of the incident
cannot but be said to be an effort of the
prosecution to add weight to the testimony
of PW-1.

27. From the careful analysis of
version of PW-2, it is evident that neither
he was present at the scene of occurrence
since the beginning nor he could reach on
the spot when accused persons started
assault by Lathi.

28. Even accepting his version as true,
at the most, it can be said that he had
reached near the place of occurrence on
hearing cries of his father and brother and
witnessed the act of firing by the accused.
From his statement, it can also be culled
out that as soon as he reached the field of
Natthu Sharma, the accused persons
opened fire at his father and ran away. The
site plan was prepared in the presence of
this witness (PW-2) which also indicates
his presence at the place marked by letter
'B' which lies in the middle of the field of
Natthu Sharma, at a distance from the spot
of occurrence. It is, thus, clear that PW-2
had no chance to witness the whole
sequence of events since the beginning. It
is evident from his version that neither he
could distinctly see weapons in the hands
of individual members of the accused party
nor he could hear the words of exhortation
allegedly spoken by appellant Chander in
the
beginning
of
the
incident.
The
prosecution has projected this witness as an
eyewitness though his version from the
cross-examination is proved to be a hearsay
evidence. His narration of the incident
appears to be from the eyes of PW-1, his
brother and not his own and he had seen
only some part of the incident and not the
whole. His testimony seems to be selfcontradictory and uncreditworthy so as to
form basis of the conviction.

29. Considering the above, we are left
with the testimony of remaining two eye
witnesses PW-1 and PW-3. We find that
PW-1 in his deposition in the Court has
reiterated his first account of the incident
given in the first information report. His
statement of the genesis of the incident, the
manner in which it took place on the fateful
570 INDIAN LAW REPORTS ALLAHABAD SERIES
day, the weapons carried by the accused
party and the injuries caused to deceased is
same as in the FIR. He deposed in the
examination-in-chief
that
two
empty
cartridges handed over by him to the police
were collected from the spot and they were
fired by Bhudhar and Ram Asrey from their
guns and that both fires hit his father.
Single firearm wound of entry has been
found on the body of deceased in addition
to only one blow of Lathi on his head. The
argument of the defence is that ocular
version of PW-1 being in contradiction to
the medical evidence it is evident that this
witness is telling a lie. It cannot be assumed
that another shot fired by one of the
accused persons missed and as such it did
not hit the deceased. It is, thus, urged that
the ocular version of PW-1 is to be
discarded as a whole and the defence
theory that deceased was brought to death
in the night hours and noone had seen the
incident has to be accepted.

30. We find that the statement of PW1 (first informant) and PW-3 regarding the
incident and place of occurrence is
consistent and is corroborated from other
material evidence such as site plan which
gives complete description and the distance
of the place of occurrence from the house
of deceased. Thus, it cannot be said that the
place of homicidal death of Bhikari lal
(deceased) was not proved. The place 'A'
from where the dead body was lifted by the
first informant and place 'C' where
deceased was shot by the accused persons
as indicated in the site plan is consistent
with the testimony of eye witnesses PW-1
and PW-3.

31. Both these witnesses are found
consistent in their statement that deceased
was first assaulted by the accused persons
by Lathi and when they saw other
witnesses approaching them, fire was
opened by accused Bhudhar which hit
deceased who fell on the ground near canal;
the accused party immediately ran away
towards the field/grave of Moti. The
appellant Chander herein has been assigned
the role of exhortation in the following
words:-

"आज लभखारी लाल को सुदामा देवी
के मुक़दमे मे गवाही देने का मजा चखा दो और
जान से मार दो"

32. PW-3, the injured witness states
that when accused party was assaulting
deceased Bhikari Lal, many people had
reached the spot. He was also attacked by
Roopram (a co-accused since deceased) by
Lathi when he raised cries seeing accused
persons assaulting deceased Bhikari lal.
According to him, Bhudhar had opened fire
on the deceased which hit him and he fell
on the bank of the Canal and died on the
spot. The accused persons immediately fled
towards the west. The witnesses then lifted
the body of deceased and kept it at the
Maniram Ka Chabutara. His own injuries
were examined by the Doctor. From the
cross-examination of PW-3, it appears that
his house was near the house of deceased.
He being a neighbour and injured witness,
his presence at the scene of occurrence
cannot be doubted. It is difficult to accept
that an injured witness would falsely
implicate the accused persons leaving the
real assailants, more-so when there is no
suggestion of any enmity of the accused
persons with the injured witness PW-3.

33. It is, thus, not possible for us to
accept the hypothesis of the defence that
the murder had occurred during the night
hours in the absence of both PW-1 and
PW-3. The presence of two eye witnesses
3-5 All. Bhudhar & Ors. Vs. State
571
PW-1 and PW-3 cannot be discarded being
natural at the scene of occurrence. Their
statement about the assault by the accused
party cannot be disbelieved.

34. Thus, from a careful analysis of
the evidence produced by the prosecution,
the following circumstances are emerging:-

(i) The first information report is
prompt having been lodged within two and
a half hours of the incident.

(ii) The homicidal death of the
victim Bhikari Lal had occurred in the early
morning when both PW-1 and PW-3 were
accompanying him while going to their
fields.

(iii)
The
statement
of
eye
witnesses (PW-1 & PW-3) is consistent to
the extent that accused persons had beaten
deceased Bhikari Lal and injured witness
PW-3 from Lathi. The injuries found on the
person of deceased and PW-3 injured
witnesses are also proof of the said fact.

(iv) The injuries of PW-3 were
examined on the same day at about 12.30
PM and the Doctor who prepared the injury
report had proved that the injuries had been
caused by Lathi and are, thus, related to the
weapon (Lathi) assigned to the members of
accused party.

(v) Firearm injuries found on the
vital part of the deceased alongwith one
wound of Lathi in his head and from the
narrtion of the eyewitness it is clear that the
deceased was first beaten by accused
persons by Lathi and later was brought to
death by the single fire opened by Bhudhar
(appellant No.1). There is no evidence of
second shot of fire made by accused
Bhudhar.

(vi) Mere fact that the injuries on
the person of PW-3 are minor, it cannot be
accepted that his statement is not to be
given the weightage of the testimony of an
injured witness. From the injuries found on
the body of PW-3, atleast this much is
proved that he was present on the scene of
occurrence.

35. However, at the same time, we
find that the prosecution has not been able
to explain the following circumstances:-

(i) The allegation of firing made
by another accused person Ram Asrey is
not proved. No explanation has been given
by the prosecution about the said part of
statement of the first informant PW-1.

(ii) The recovery of gun allegedly
used by Ram Asrey is disbelieved by the
trial court being farce.

(iii) PW-3 Pusey did not utter a
single word in his examination-in-chief
regarding presence of Ram Asrey at the
place of occurrence or he having fired at
the deceased. He rather refused to identify
Ram Asrey present in the Court and stated
that he could recollect only this much that
there was one more person with the
accused party who was standing behind his
house carrying gun of his father.

(iv) In cross-examination, Pusey
PW-3 states that he heard the sound of fire
while running away from the place of
occurrence towards west. He then changed
his version by saying that he heard the
sound of fire while standing on the spot and
that both fires were made by Bhudhar
which hit the deceased.

(v) PW-3 Pusey was interrogated
by the police after approximately three
months of the incident on the day when
charge sheet was submitted by the
Investigating Officer. No explanation has
been given by the Investigating Officer for
causing delay in recording statement of the
injured witness PW-3 under Section 161
Cr.P.C. His version regarding involvement
of Ram Asrey and role of firing attributed
572 INDIAN LAW REPORTS ALLAHABAD SERIES
to him, therefore, is unbelievable. On
confrontation by the defence, this witness
explained that he was interrogated by the
Investigating Officer after about three
months.

(vi)
There
is
no
injury
corresponding
to
'Kaanta'
a
weapon
assigned to two members of the accused
party and for this reason the trial court had
(rightly) acquitted three accused persons
doubting their presence at the scene of
occurrence.

36. From the above analysis, we find
that the witnesses produced by the
prosecution are neither wholly reliable nor
wholly unreliable. In Vadivelu Thevar Vs.
The State of Madras5, the Apex Court
had laid down the test to assess the quality
of oral evidence led by the prosecution for
proving or disproving a fact. It was held
therein that :-

".....................................Generally
speaking, oral testimony in this context may
be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable.

In the first category of proof, the
court should have no difficulty in coming to
its conclusion either way-it may convict or
may acquit on the testimony of a single
witness, if it is found to be above reproach
or
suspicion
of
interestedness,
incompetence or subornation. In the second
category, the court, equally has no
difficulty in coming to its conclusion. It is
in the third category of cases, that the court
has to be circumspect and has to look for
corroboration in material particulars by
reliable
testimony,
direct
or
circumstantial..............................."

37. It was, thus, held in a case that
where the testimony of witnesses of
prosecution is neither wholly reliable nor
wholly unreliable, the Court has to
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony before acting upon the
testimony of such witnesses. It is equally
settled that no rigid formula can be derived
to assess the weight to be attached to the
oral evidence which would be dependent
upon the facts and circumstances of each
case. No hard and fast rule or straitjacket
formula can be laid to test the truthfulness
of the statement of witnesses. In such a
case, whole testimony of the eye witnesses
alongwith surrounding circumstances has
to be considered by the Court in order to
separate grain of truth from the chaff. It
would be a dangerous trend to discard the
whole testimony of an eyewitness because
the witness was speaking an untruth in
some aspect. Witnesses tend to decorate by
given embroidery in a story. One hardly
came across a witness whose evidence does
not contain a grain of untruth or at any rate
exaggeration,
embroideries
or
embellishment.