# Budh Sen & Ors v. State of U.P. Opp. Party

- **Citation:** (2022) 9 ILRA 1536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Crl. Appeal No. 1152 of 2004
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/budh-sen-ors-v-state-of-u-p-opp-party-49045
- **Pages:** 16

## Headnote

A. Criminal Law - Evidence Act, 1872 -
Section 8 - Motive - there is no principle
of
law
that
the
failure
of
the
prosecution to prove the motive for
commission
of
the
crime,
must
necessarily result in acquittal of the
accused - rather, the prosecution is not
bound to prove the motive, when crime
is proved by direct evidence - where
ocular
evidence
is
found
to
be
trustworthy
and
reliable
and
finds
corroboration
from
the
medical
evidence, a finding of guilt can safely
be recorded even if the motive for the
commission of crime has not been
proved (Para 37, 41)
B. Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - Evidence Act,
1860
-
Section
3
-
Testimony
of
related/partisan witness - The mere fact
of a witness being related to the victim
should not lead to the rejection of their
testimony - In fact, related witnesses are
often the last people who would allow the
real culprit to go free and wrongly
implicate an innocent person - wholly
independent
witnesses
are
rarely
available or may be hesitant to come
forward due to potential future troubles
they may face - Therefore, the relationship
between eyewitnesses should not be a
reason to dismiss their testimony - It
would be illogical to believe that related
witnesses
would
shield
the
actual
perpetrators
and
substitute
innocent
individuals in their place. (Para 42)

C. Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - Evidence Act,
1872 - Section 3 - Appreciation of witness
- Maxim 'falsus in uno, falsus in omnibus' -
In case even a part of the statement of a
witness is found to be untruthful, it
cannot be made the basis for discarding
his whole testimony as the principal of is
not applicable in India - The fact that a
witness
may
have
made
some
improvements or exaggerations in their
testimony
cannot
belie
his
whole
statement - In cases where witnesses
come from rural areas and are illiterate,
minor contradictions are possible and
cannot be ruled out. (Para 51, 52)

D. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act - Murder -
Post occurrence reaction of witness - The
fact that the witnesses did not make an
effort to rescue the deceased does not in
itself raise doubts about their presence at
the scene - Every person who witnesses a
murder reacts in his own way - Some are
stunned, become speechless and stand
rooted to the spot - Some become hysteric
and start wailing - Some start shouting for
help
-
Others
run
away
to
keep
themselves as far removed from the spot
as possible - Yet others rush to the rescue
of the victim, even going to the extent of
9 All. Budh Sen & Ors. Vs. State of U.P.
1537
counter-attacking the assailants - Every
one reacts in his own special way - There
is no set rule of natural reaction - To
discard the evidence of witnesses on the
ground that he did not react in any
particular
manner
is
to
appreciate
evidence in a wholly unrealistic and
unimaginative way (Para 53)

E. Criminal Law - Evidence Act, 1872 -
Non recovery of weapon - Effect - it is an
established proposition of law that mere
non-recovery of weapon does not falsify
the prosecution case where there is ample
unimpeachable ocular evidence (Para 57)

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,916 of 53,734. This is a partial read: ask again with offset=39916 for what follows._

1536 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary information and compliance,
forthwith.
----------
(2022) 9 ILRA 1536
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

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

Crl. Appeal No. 1152 of 2004
and
Crl. Appl. No. 5391 of 2004
and
Crl. Appl. No. 929 of 2004

Budh Sen & Ors. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Taha Bin Islam, Sri Ambrish Kumar
Kashyap(A.C.), Sri Anil Raghav, Sri Arun K. Singh
Deshwal, Sri Bal Krishna Yadav, Sri I.M. Khan,
Sri J.S. Sengar, Sri J.S. Tomar, Sri Janardan
Prasad Tripathi, Sri K.D. Mishra, Sri Rohit Sharan
Tomar, Sri S.P.S. Raghav, Sri Sabhajeet Singh,
Sri Sanjay Kumar, Sri Vindeshwari Prasad

Counsel for the Respondents:
Govt. Advocate

A. Criminal Law - Evidence Act, 1872 -
Section 8 - Motive - there is no principle
of
law
that
the
failure
of
the
prosecution to prove the motive for
commission
of
the
crime,
must
necessarily result in acquittal of the
accused - rather, the prosecution is not
bound to prove the motive, when crime
is proved by direct evidence - where
ocular
evidence
is
found
to
be
trustworthy
and
reliable
and
finds
corroboration
from
the
medical
evidence, a finding of guilt can safely
be recorded even if the motive for the
commission of crime has not been
proved (Para 37, 41)
B. Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - Evidence Act,
1860
-
Section
3
-
Testimony
of
related/partisan witness - The mere fact
of a witness being related to the victim
should not lead to the rejection of their
testimony - In fact, related witnesses are
often the last people who would allow the
real culprit to go free and wrongly
implicate an innocent person - wholly
independent
witnesses
are
rarely
available or may be hesitant to come
forward due to potential future troubles
they may face - Therefore, the relationship
between eyewitnesses should not be a
reason to dismiss their testimony - It
would be illogical to believe that related
witnesses
would
shield
the
actual
perpetrators
and
substitute
innocent
individuals in their place. (Para 42)

C. Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - Evidence Act,
1872 - Section 3 - Appreciation of witness
- Maxim 'falsus in uno, falsus in omnibus' -
In case even a part of the statement of a
witness is found to be untruthful, it
cannot be made the basis for discarding
his whole testimony as the principal of is
not applicable in India - The fact that a
witness
may
have
made
some
improvements or exaggerations in their
testimony
cannot
belie
his
whole
statement - In cases where witnesses
come from rural areas and are illiterate,
minor contradictions are possible and
cannot be ruled out. (Para 51, 52)

D. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act - Murder -
Post occurrence reaction of witness - The
fact that the witnesses did not make an
effort to rescue the deceased does not in
itself raise doubts about their presence at
the scene - Every person who witnesses a
murder reacts in his own way - Some are
stunned, become speechless and stand
rooted to the spot - Some become hysteric
and start wailing - Some start shouting for
help
-
Others
run
away
to
keep
themselves as far removed from the spot
as possible - Yet others rush to the rescue
of the victim, even going to the extent of
9 All. Budh Sen & Ors. Vs. State of U.P.
1537
counter-attacking the assailants - Every
one reacts in his own special way - There
is no set rule of natural reaction - To
discard the evidence of witnesses on the
ground that he did not react in any
particular
manner
is
to
appreciate
evidence in a wholly unrealistic and
unimaginative way (Para 53)

E. Criminal Law - Evidence Act, 1872 -
Non recovery of weapon - Effect - it is an
established proposition of law that mere
non-recovery of weapon does not falsify
the prosecution case where there is ample
unimpeachable ocular evidence (Para 57)

Dismissed. (E-5)

List of Cases cited:

1. Thaman Kumar Vs State of Union Territory of
Chandigarh 2003 (47) ACC 7

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

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

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

5. Dalip & ors. Vs St. of Pun. A.I.R. (1953) SC
364

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

7. Masalti Vs St. of U.P. A.I.R. 1965 SC 202

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

9. Rana Pratap Vs St. of Har.AIR1983 SC 680

10. Lakahan Sao Vs St. of Bihar & anr., (2000) 9
SCC 82

11. State of Rajasthan Vs Arjun Singh & ors.,
(2011) 9 SCC 115

12. Manjit Singh & anr.. Vs St. of Pun., (2013)
12 SCC 746

13. Lakahan Sao Vs St. of Bihar & anr. (2000) 9
SCC 82

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. These criminal appeals emanate
from the judgment and order dated
10.02.2004
passed
by
the
learned
Additional District & Sessions Judge,
Court No. 3, Rampur in Sessions Trial No.
624 of 1999 (State Vs. Buddhsen and
others), arising out of Crime No. 93 of
1999, under Sections 148, 302/149 IPC;
Sessions Trial No. 625 of 1999 (State Vs.
Veerpal) arising out of Crime No. 94 of
1999, under Section 25 Arms Act and
Sessions Trial No. 626 of 1999 (State Vs.
Janki) arising out of Crime No. 95 of 1999,
under Section 25/4 Arms Act, Police
Station Patwai District Rampur, whereby
the appellants-Buddhasen, Jairam, Hori
Lal, Mahipal, Janki and Veerpal, each have
been convicted and sentenced under
Section 148 IPC for six months rigorous
imprisonment and Section 302/149 IPC for
life imprisonment and fine of Rs.5,000/-; in
default of payment of fine they have to
undergo additional imprisonment for a
period of six months. Appellants Janki and
Veerpal were acquitted of the charges under
Section 25 Arms Act.

2. The prosecution case in brief is that
on 13.7.1999 at about 8.30 a.m., an F.I.R.
was lodged at the Police Station Patwai,
District Rampur by the informant Lakhan
Singh, who happened to be the brother of
deceased
Trimal,
father
of
deceased
Sompal and uncle of deceased Jamna r/o
Village Madauli, Police Station Patwai,
District Rampur, by filing a written report.
It was stated therein that his mango orchard
was located in the south-west direction of
the village. His brother Trimal, son Sompal
1538 INDIAN LAW REPORTS ALLAHABAD SERIES
and nephew Jamna s/o Chhiddan used to go
and sleep in the orchard to keep a watch. In
the intervening night of 12/13.07.1999, at
about 2 A.M., first informant, his brother
Chheddan,
nephew
Dharmpal
and
a
resident of his village Lalman went to the
orchard where they saw that the appellants
Buddhasen with gandasa, Jairam with
spear,
Horilal
and
Veerpal
with
countrymade pistols; Mahipal & Janki with
knives entered into the orchard and
committed the murder of Trimal, Sompal
and Jamna by causing injuries to them. The
first informant and other persons identified
the assailants and when they made noise,
all the appellants ran away towards Kosi
River. In the night owing to the fear, they
did not go to lodge the F.I.R. In the
morning, on the basis of the written report
(Tahreer) filed by the informant, the case
was registered as Crime No. 93 of 1999
under Sections 147, 148, 149, 302 IPC. The
detail of the case was entered into the G.D.
at report No. 14.

3. The investigation of the case was
handed over to the Station House Officer
N.K. Solanki.

4. The inquest of deceased Sompal,
Jamna and Trimal, were conducted by
A.S.I. Ram Mohan Sharma on the direction
of S.I. N.K. Solanki on the same day and
the inquest reports were prepared by him
along with other relevant papers required
for the purpose of post-mortem. Dead
bodies were sealed and handed over to
constable Bhagwan Das, Anek Singh and
Hridesh Kumar who brought them to the
Mortuary, District Hospital, Rampur.

5. The post-mortem of the dead
bodies of three deceased were conducted
on 14.07.1999. It is mentioned in the postmortem reports that the dead bodies were
brought in the Mortuary by constable
Bhagwan Das and Hridesh Kumar, sent by
S.O. Patwai, Rampur in a sealed cloth with
enclosures ten in number. The findings
recorded in the post mortem report of
Trimal are as under:

Time after death about one and a half
day; aged about 32 years; average built
body; rigor mortis all over the body;
decomposition not yet started; both eyes
closed; natural orifices NAD.

Ante-mortem
injuries:
1.
Incised
wound 10 cm x 4 cm x brain cavity deep
obliquely placed over left side of forehead
underneath fractured bone (frontal) eye
orbit , brain tissues peeping out.

2- Incised wound 2 cm x 1 cm x skin
deep over right side of forehead above.

3- Incised wound 6 cm x 2 cm over
abdomen vertically placed 3 cm above
umbilicus omentum coming out.

4- Gun shot wound of entry 6 cm x 4
cm over the left arm pit blackening and
tattooing present, underneath 2nd, 3rd &
4th ribs fractured.

5-Incised wound 4 cm x 2 cm skin
deep over the right hand.

6- Multiple incised wounds in an area
of 28 cm x 20 cm x skin deep of 4 cm x 2
cm in size x 1 to 2 cm in size over back of
abdomen.

Internal
examination:Neck
injuries
noted. Scalp, skull-underneath frontal bone
fractured in multiple pieces. Membranescut underneath, a big size of extradual
blood clot in the brain tissues. Brain-body
cut underneath with large size of blood clot.
Base of the skull fractured. VertebrateNAD. Spinal cord-not exposed.

Thorax: walls, ribs & cartilagesinjuries noted fractured 2nd, 3rd and 4th
ribs. Pleurac-lacerated underneath. LarynxNAD contain bloody froth. Right lung-
9 All. Budh Sen & Ors. Vs. State of U.P.
1539
NAD
congested.
Left
lung-lacerated
underneath with (two tikali one card, 15
pallets recovered and sealed) about 500 CC
of clotted fluid blood. Pericardium-NAD.
Heart-NAD 160 gms both chambers empty.
Blood vessels-NAD.

Abdomen:
Wall
injuries
noted,
peritoneum cut underneath injury no. 3
omentum coming out about 200 cc of
clotted blood (fluid) in abdomen. Buccal
Cavity-NAD & teeth-16/16. EsophagusNAD.
Contents-NAD
empty.
Small
intestine-NAD,
content-D.F.M.
Large
intestine-NAD faecal matter. Liver & Gall
bladder-NAD wt. one kg
congested.
Pancreas-NAD. Spleen-NAD wt. 140 gms.
congested.
Kidneys-NAD
200
gms
congested. Urinary bladder-NAD empty.
Generation organs NAD.

Cause of death was coma as a result of
antemortem injuries.

6. The findings recorded in the post
mortem report of Jamna are as under:

Time after death about one and a half
day; aged about 18 years; average built
body; rigor mortis all over the body;
decomposition not yet started; both eyes
closed.

Ante-mortem
injuries:
1.
Incised
wound 3 x 2 cm x cavity deep over right
side of front chest 2 cm above nipple
transversely oblique.

2- Incised wound 4 cm x 2 cm x over
front of right lower chest, 6 cm below and
inner to right nipple, chest cavity deep.

3- Incised wound 8 cm x 2 cm x cavity
deep vertically oblique over the lower part
of right chest, 6 cm below and inner to
injury no. 2.

4- Incised wound 4 cm x 2 cm x
muscle deep over front of right upper and
in the middle.

5-Incised wound 3 cm x 2 cm x
muscle deep over the inner side of right
arm middle.

6- Multiple incised wound 4 cm x 2
cm x muscle deep over the inner side of
right elbow.

7- Incised wound 4 cm x 2 cm skin
deep over the dorsal of right hand.

8- Multiple incised wound 1 to 2 cm
long skin deep over the dorsal of right hand
at base of 2nd, 3rd and 4th finger.

9-four incised wounds of 2-6 cm long
x 1 to 2 cm wide x muscle deep over the
back in the area of 28 cm x 22 cm between
the both scapula.

Thorax: walls, ribs & cartilages-injuries
noted. Pleura-cut underneath injury no. 1, 2,
3. Larynx trachea & bronchi-NAD contain
bloody muscle. Right lung-cut underneath
injury no. 1, 2, 3 and about 1 and half litter of
cloted blood and fluid in right chest cavity.
Left lung-NAD pale. Pericardium-NAD.
Heart-NAD wt. 160 gms both chambers
empty. Blood vessels-NAD.

Abdomen:
Wall-NAD,
peritoneumNAD, Cavity-NAD. Buccal Cavity-NAD &
teeth-15/15. Oesophagus-NAD. ContentsNAD contains of fluid materials. Small
intestine-NAD D.F.M. Large intestine-NAD
contains gases and faecal matter. Liver &
Gall bladder-NAD wt. 1200 pale. PancreasNAD. Spleen-NAD pale wt. 150 gms.
Kidneys NAD pale 200 gms both. Urinary
bladder-NAD empty. Genitals-NAD.

Cause
of
death
was
shock
and
haemorage as a result of antemortem injuries.

7. The findings recorded in the post
mortem report of Sompal are as under:

Time after death about one and a half
day; aged about 17 years; average built
body;
rigor
mortis
all
over
body;
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
decomposition not yet started; both eyes
closed.

Ante-mortem
injuries:
1.
Incised
wound 4 cm x 2 cm x chest deep over right
side of chest, 8 cm above inner side of right
nipple
underneath
ribs
cut
oblique
vertically placed.

2- Vertical incised wound 4 cm x 2 cm
x muscle deep over left side of chest in the
arm pit.

3- Incised wound 4 cm x 2 cm over
back of left forearm in upper 1/3.

4- Incised wound 12 cm x 2 cm x oral
cavity deep transversly oblique over the
face extend from below right eye nose to
the left cheek underneath maxillary bone
cut. 5- Multiple incised wounds in 3 to 2
cm long x 1/2 to 1 cm x skin deep over
front of neck.

6- Incised wound 2 cm x 1/2 cm x skin
deep over front of left hand.

7- Incised wound 10 cm x 4 cm x
muscle deep over the front and outer part of
thigh above knee joint.

8- Incised wound 8 cm x 2 cm x skin
deep over underneath inner side of right
thigh in upper 1/3.

9- Two incised wounds 3 cm x 1/2 cm
over right flank of abdomen.

10- Incised wound 4 in number in an
area of 40 cm x 30 cm over the upper back
of size 4 cm x 3 cm x 1/2 to 1 cm x skin
deep.

Thorax: walls, ribs & cartilagesinjuries noted rib cut underneath injury no.
1. Pleura-cut underneath over right side.
Larynx trachea & bronchi-NAD. Right
lung-cut underneath injury and about 1/2
litter of clotted blood fluid in right chest
cavity. Left lung-NAD pale. PericardiumPale. Heart-NAD wt. 160 gms both
chambers empty. Blood vessels-NAD.

Abdomen: Wall NAD, peritoneum
NAD, Cavity NAD. Buccal Cavity-NAD &
teeth-15/15. Oesophagus-NAD. ContentsNAD empty. Small intestine-NAD D.F.M.
Large intestine-NAD gases and faecal
matter. Liver & Gall bladder-NAD wt.
1200 pale. Pancreas-NAD. Spleen-NAD
130 gms pale. Kidneys-NAD pale 150 gms
both.
Urinary
bladder-NAD
empty.
Genitals-NAD.

Cause of death was shock and
haemorage as a result of antemortem
injuries.

8. During investigation, blood stained
cot weaving thread, one empty cartridge 12
bore, one empty cartridge 315 bore, plain
and blood stained soil were taken into
possession and torches in the light of which
appellants were seen by the informant were
taken into possession and given into the
custody of the informant and recovery
memo was prepared. After inspection of the
place of occurrence, site plan was prepared
and statements of witnesses conversant to
the facts of the case were recorded. The
weapons used in the commission of murder,
one Gandasa, one Countrymade pistol,
three cartridges 12 bore, one knife and one
spear were also recovered at the instance of
appellants-Buddhsen, Veerpal and Janki.
Recovery memo was prepared. On the basis
of
the
material
collected
during
investigation, prima-facie case was found
to be made out against the accused persons
under Sections 147, 148, 149, 302 IPC and
the charge sheet was submitted to the court
concerned.
Charge
sheet
was
also
submitted under Section 4/25 Arms Act
against appellants Janki and Veerpal.

9. Learned Chief Judicial Magistrate
took cognizance of the offence and
provided copies of the prosecution papers
in compliance of Section 207 Cr.P.C. to the
accused persons and committed the case to
the Court of sessions for trial.
9 All. Budh Sen & Ors. Vs. State of U.P.
1541

10. The trial court after taking into
consideration the material on record,
framed the charges under Sections 148,
302/149 IPC against all the appellants;
Section 25 Arms Act against appellant
Veerpal and Section 4/25 Arms Act against
appellant Janki.

11. Charges were read-over and
explained to the appellants, the accused
appellants pleaded not guilty, denied the
charges and demanded trial. Consequently,
the
case
was
fixed
for
prosecution
evidence.

12. In support of its case, the prosecution
examined P.W.1 Lakhan Singh who is the
first informant and happened to be brother
of the deceased Trimal, father of deceased
Sompal and uncle of deceased Jamna;
P.W.2 Chheddan, who happened to be the
brother of deceased Trimal, father of
deceased Jamna and uncle of deceased Som
Pal; P.W. 3 Lal Man resident of the same
village as witnesses of facts; P.W.4 Dr.
Arvind Kumar Vaishya who conducted the
autopsy and prepared the postmortem
reports; P.W. 5 HCP Bhuri Singh who
prepared check F.I.R. on the basis of
written report (tahreer) and made entry in
the G.D.; P.W. 6 constable Hridesh Kumar
who brought the dead bodies to the
mortuary for post-mortem; P.W. 7 A.S.I.
Ram Mohan Sharma who conducted the
proceedings of the inquest and prepared the
inquest reports and other relevant papers;
P.W.8 S.I. Raj Singh who made arrest of
appellant Buddhsen, Jai Ram, Veerpal,
Janki, recorded the disclosure statements of
the appellants, recovered the weapons used
in the incident and prepared the recovery
memo; P.W.9 S.I. N.K. Solanki who
investigated the case and prepared the site
plan, recorded the statement of witnesses
and submitted charge sheet; P.W.10 A.S.I.
Ram Mohan Sharma who also conducted
investigation relating to the cases under
Section 4/25 and 25 Arms Act and
submitted charge sheet; P.W.11 Dheeraj
Singh who took the case property relating
to Crime No. 93 of 1999 for chemical
examination to the Forensic Science
Laboratory, Agra.

13. On conclusion of the prosecution
evidence, statements of the appellants were
recorded under Section 313 Cr.P.C. wherein
they had denied all the allegations made
against them on account of enmity. The
appellant Buddhsen has made statement
regarding
disclosure
statement
and
recovery to be false. Further stated that at
that time he was busy in his field located at
village Madauli for plantation of paddy
crop from where police had arrested him at
10 o'clock but nothing was recovered from
him. The appellants Horilal and Mahipal
made similar statements except regarding
recovery. The appellant Veerpal has also
made similar statement; regarding recovery
he stated that it was false and he was
arrested by the police from the ice cream
factory situated at the Bareilly gate Kanpur,
nothing had been recovered from him or at
his instance. The appellant Jai Ram had
also made the similar statement regarding
recovery, he stated that it was false and he
was arrested by the police when he was
present in the field at Nayagaon and was
doing the plantation work of paddy, nothing
was recovered from his possession nor at
his instance. The appellant Janki had also
made similar statement regarding recovery,
he stated that it was false, he was arrested
by the police from his field at Hazi Nagar
where he was working, nothing was
recovered from his possession.

14. In defence, D.W. 1 Sultan Khan
was examined.
1542 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The learned trial court passed the
order dated 10.02.2004 for convicting and
sentencing the appellants as aforesaid,
hence this appeal.

16. Heard Sri Arun Kumar Singh
Deshwal, Sri Ambrish Kumar Kashyap, Sri
J.S. Tomar & Sri Vivek Kumar Mishra,
learned Advocates for the appellants and
Sri Patanjali Mishra, learned A.G.A. for the
State and perused the record.

17. Learned counsel for the appellants
submits that the trial court had erred in
convicting
the
appellants
without
considering and appreciating the evidence
on record. The prosecution could not prove
its case with cogent and reliable evidence.
The appellants are innocent and had
committed no offence as alleged against
them. There are material contradictions in
the statements of prosecution witnesses.
The prosecution witnesses are relatives of
the deceased. There was enmity between
the informant and the appellants and that
was the reason, why they were implicated
falsely in this case. The incident took place
in the night hours and no one had seen it.
The recovery of weapons said to have been
used in commission of the murder was false
and not proved. Spear was said to be in the
possession of appellant Jai Ram but no
punctured wound was found on the persons
of deceased which raises an inference of
false implication of the appellants. No
independent witness was produced by the
prosecution. No witness relating to the
memo of recovery was examined. Lastly, it
is submitted that the trial court without
considering all the above facts had
convicted the appellants and the finding
recorded by the trial court is based only on
hypothesis beyond the evidence on record
which gets support from the fact that the
charges under Sections 4/25 and 25 Arms
Act not found to be proved by the
prosecution
and
the
appellants
were
acquitted of the said charges. In this way
judgment in question, thus, pleaded to be
erroneous and that the appellants deserve
acquittal by allowing the appeals.

18. Learned A.G.A. in rebuttal urged
that there is sufficient evidence on record
on the basis of which the learned trial court
has concluded that the appellants had
committed the murder of three deceased
persons in their orchard while they were
sleeping therein. Prosecution witnesses are
natural witnesses because they also went to
keep watch on their Mango orchard and
they had seen the occurrence in the light of
torches. On their making noise, appellants
left the place after causing the murder of
three persons brutally. The weapons said to
be in the hands of appellants were used in
the commission of the offence and they
were recovered at the instance of accused
appellants and also sent to chemical
examination to F.S.L. The report disclosed
that human blood was found on the
weapons which also corroborates the
prosecution case. The appellants had
motive to commit the murder of the
deceased persons because the brother of
appellant Buddhsen was murdered prior to
this incident in which deceased Trimal and
Sompal were named accused and trial was
going on. There was strong motive with the
appellants to commit the murder of the
deceased persons. Though the prosecution
witnesses P.Ws. 1 and 2 were relatives of
the deceased persons but P.W. 3 Lalmani
was not a near relative but he was resident
of the village where appellants also resided.
There was no enmity of Lalmani with the
appellants. The testimony of P.Ws. 1 & 2,
thus, gets support with the testimony of an
independent witness P.W. 3 Lalmani. The
F.I.R. was promptly lodged in the morning.
9 All. Budh Sen & Ors. Vs. State of U.P.
1543
The occurrence though took place in the
night at about 2 a.m., but the first informant
categorically stated that because of fear, he
could not go to the police station which
was 13 Km. away from the place of
occurrence. The delay in lodging the F.I.R.
as alleged cannot be said to be inordinate
but it was natural. The acquittal of
appellants of the charges under Section 25
Arms Act is immaterial in so far as
conviction in other offence is concerned.
The appellants were rightly convicted and
sentenced under Sections 148, 302/149 IPC
which cannot be said to be against law. The
decision of the learned trial court is
perfectly sound in law and the present
appeals being devoid of merit are liable to
be dismissed.

19. From the submissions made by
the learned counsel for the parties, the
questions to be considered by this Court are
that whether there was any delay in lodging
of the F.I.R. which could be termed as
inordinate delay. Whether it is a case of
false implication of the appellants on
account of enmity. Whether the motive to
commit the murder as stated was present in
the case and whether the prosecution
witnesses being relatives of the deceased
persons can be said to have made false
statements only on account of suspicion.
Whether there were material contradictions
in the statements of the prosecution
witnesses so as to discard the prosecution
case. The contention that appellant Jai Ram
was though assigned spear in his hand but
no punctured wound was found on the
person of the deceased, the conviction
recorded by the learned trial Court, thus,
becomes wrong, has also to be examined
by us.

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

21. The prosecution had examined
eleven witnesses out of which P.Ws. 1 to 3
are the witnesses of fact.

22. P.W. 1 Lakhan Singh, related to
three deceased & the first informant, stated
that in the south west direction of the
village, there was a Mango Orchard
measuring six and half bighas. It was the
season of Mango and to keep watch a hut
was built in the orchard under a tree. The
orchard was owned by him, his brothers
Chhiddan and Trimal. On the fateful night
his brother Trimal, son Sompal, nephew
Jamna were there in the garden to keep
watch. All those persons used to sleep
there. In a routine manner, three deceased
persons were sleeping on the cots in front
of hut. At about 2 o'clock in the night, he,
Chhiddan, nephew Dhrmpal and Lalman
went to the orchard as usual, they saw
Buddhsen, Jairam, Mahipal, Veerpal, Janki
and Hori Lal assaulting the deceased with
gandasa, spear, knives and countrymade
pistol. Buddhsen was carrying gandasa,
Jairam spear, Mahipal & Janki knives,
Veerpal and Hori Lal were carrying
countrymade pistols. He knew Veerpal and
Janki prior to this incident being relatives
of Buddhsen and that they used to come to
his house. At the time of the incident the
witnesses had torches with them and in the
light of the torches they saw the incident.
Narrating the motive to commit the crime it
was stated that 3-4 years prior to the
incident,
brother
of
Buddhsen
was
murdered wherein Trimal and Chhiddan
were named as accused and at the time of
the incident, the trial was going on. He
further stated that he wrote the written
report (tahreer) himself and presented it in
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
the police station and he proved the tahreer
in his handwriting and signature as Ext.Ka1.

23. P.W. 2 Chhiddan, the brother of first
informant & deceased Trimal, the father of
deceased Jamna and uncle of deceased
Sompal, stated that an Orchard of Mango
measuring six and half bighaas was situated
on the west side of the village. Mango trees
therein were bearing fruits, there was a hut to
keep watch in the garden. His son Jamna,
nephew Sompal and brother Trimal used to
go and in the night and sleep there. On the
fateful night, all of them had gone there as
usual. Jamna, Sompal and Trimal were lying
asleep on two cots and the incident took place
at about 1 O'clock. He, his brother Lakhan
Singh, son Dharmpal and uncle Lalman in
the light of torches saw that the appellants
Buddhsen with gandasa, Horilal and Veerpal
with countrymade pistol, Mahipal and Janki
with knives and Jai Ram with spear were
assaulting the deceased Jamna, Trimal and
Sompal. Janki and Veerpal were relatives of
appellant Buddhsen whom he knew prior to
this incident as they used to come to the
house of Buddhsen. The appellants ran away
towards the river after committing the
murder. Further stated that four years prior to
this incident, brother of Buddhsen namely
Horilal was murdered wherein his brother
Trimal was named falsely. Owing to this
enmity these murders were committed. It was
stated that Lalman went to his field to keep
watch of the engine at his field with him.
They had torches. Report relating to this
incident was filed by Lakhan. Torches were
taken into possession by the sub-inspector
and then returned to them. Trimal was shot
and also assaulted with other weapons.

24. P.W. 3 Lalman had deposed that
on the fateful day at about 2 O'clock in the
night, he was going to keep watch of his
engine in his field. On the way, he met
Chhiddan, Lakhan and Dharmpal who were
carrying torches and they were going to
their orchard. He also joined them and
reached near the orchard of Chhiddan at
about 2 O'clock in the night. Hearing noise
in the garden of Chhiddan, Lakhan and
Dharmpal they flashed light with their
torches and saw that the appellants
Buddhsen having gandasa, Jai Ram with
spear,
Hori
Lal
and
Veerpal
with
countrymade pistols, Mahipal and Janki
with knives were assaulting Trimal, Jamna
and Sompal. When they shouted the
appellants ran away in the south direction.
When they reached at the place where the
incident took place, Trimal, Jamna and
Sompal were found dead. The motive of
murder as narrated by this witness is same
as that of P.W.1 and P.W.2. P.W.3 stated that
he knew appellants Veerpal and Janki who
used to come to his village.

These three witnesses (P.W.1, P.W.2
and P.W. 3) were subjected to lengthy
cross-examination by the defence but they
were consistent throughout and none of
them could be shaken about their stand in
their examination-in-chief relating to the
incident.

25. P.W.4 Dr. Arun Kumar Vaishya
had conducted the post-mortem of the three
deceased. He proved the postmortem
reports being in his handwriting and
signature which he proved as Ext. Ka-5, 6
& 7.

26. P.W.5 Bhuri Singh posted at the
police station concerned on the day of
incident, proved the check F.I.R. as Ext.
Ka-8 being in his handwriting and
signature. He stated that the case was
registered on the basis of written report
(tahreer) Ext. Ka-1 presented by the
9 All. Budh Sen & Ors. Vs. State of U.P.
1545
informant, Lakhan Singh and that he
entered its detail in the G.D. report no. 14.
He had also proved the carbon copy of the
G.D. by comparing with the original as Ext.
Ka-9.

27. P.W. 6 constable Hridesh Kumar
brought the dead bodies to the mortuary for
post-mortem. He proved that the dead
bodies were in his custody and he kept
them safe in the sealed state and did not
allow any other person to touch it.

28. P.W.7 A.S.I. Ram Mohan Sharma
stated that on the direction of S.O. Solanki
he had prepared the inquest of three
deceased Sompal with other relevant papers
which he proved to be in his hand-writing
and signature as Ext. Ka-10 to 15; Ext. Ka16 to 21; Ext. Ka-22 to 27 and stated that
the dead bodies were handed to constable
Hridesh Kumar (P.W.6) for taking them to
the Mortuary for the post-mortem

29. P.W.8 S.I. Raj Singh made arrest
of appellants Buddhsen, Jai Ram, Veerpal,
Janki, recorded their disclosure statements
leading to recovery of gandasa, spear, knife
and countrymade pistol 12 bore at the
instance of the appellant Veerpal along with
three live cartridges of 12 bore. He had
prepared recovery memo at the dictation of
Station House Officer which he proved
being in his handwriting and signature as
Ext. Ka-28. He also proved the recovered
articles blood stained gandasa as Material
Ext-1, blood stained bhala as Material Ext.-
2, knife as Material Ext.-3 and countrymade pistol and cartridges as Material
Ext.4 to 7 in his deposition.

30. P.W.9 S.I. N.K. Solanki, the
Investigating
Officer,
proved
the
documents prepared during investigation of
the case, site plan as Ext. Ka-29. Fard
relating to blood stained and plain earth,
three empty cartridges 315 bore and 12
bore and the weaving thread of cot (bandh)
as Ext. Ka-30, 31, and 32 being in his
handwriting and signature and also proved
the entries in the G.D.

He proved the charge sheet being in
his handwriting and signature as Ext. Ka38.

31. P.W.10 A.S.I. Ram Mohan
Sharma, is the witness of the case
registered investigated the cases relating to
Crime Nos. 94 of 1999 and 95 of 1999
under Sections 25 Arms Act and 4/25 Arms
Act wherein the appellants have been
acquitted.

32. P.W. 11 Dheeraj Singh proved the
fact that he took the case property to the
F.S.L. Agra for chemical examination.

33. There is no dispute regarding the place
of the occurrence. The incident took place
in the Mango Orchard of the informant. At
the time of the incident, deceased persons
were lying on the cots, blood stained
weaving threads of the cots were taken into
possession, blood stained and plain earth
collected from the place of the occurrence
and all the collected materials were sent to
F.S.L for chemical examination. The
reports sent by F.S.L. are on record and
proved as Ext. Ka-3 & 4. These reports
show that human blood was found on all
these things and the blood stained and plain
earth similar in its characteristics. The
above material on record proves the place
of occurrence being the Mango Orchard of
informant. P.Ws. 1 to 3 also proved the
place of occurrence being the Mango
Orchard in their fields in their testimony.
None of these facts could be disputed by
the defence.
1546 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The ante-mortem injuries found
on the person of the deceased were proved
to have been caused by weapons like
gandasa, knife & fire-arm. P.W. 4 Dr. Arun
Kumar Vaishya who conducted the postmortem of the dead bodies opined that the
injuries might have been caused with
countrymade pistol, gandasa and knives on
the day 12/13.7.1999 at about 2 O'clock in
the night. He categorically stated that the
injuries on the person of the deceased were
caused with sharp edged weapon like knife,
gandasa, sharp edged spear. P.Ws. 1 to 3
also stated that the deceased persons were
assaulted with Gandasa, country-made
pistol, knife and spear. In this way, the
medical evidence about the manner of
death of three deceased correlates with the
ocular evidence about the date, time and
manner of the injuries caused, i.e. the
weapon used.

35. The incident took place at 2
o'clock in the night and the F.I.R. was
lodged by the informant at the police
station, which was 13 Km. away from the
village, on the next morning at about 8.30
a.m. The first informant mentioned in the
written report (Ext. Ka-1) that he could not
go to the police station during night due to
fear. Where three deaths were caused in the
night in such a ghastly manner, it was
natural that the inmates of the deceased
persons would be frightened. They might
not be in a position to do something at the
instant moment. The police station was at a
distance of about 13 Km. from the place of
the incident. To go to the police station for
lodging the F.I.R., against those who
caused brutal murder of three persons did
not seem possible. In the morning, without
making any delay the informant had
reached the police station by bicycle and
lodged the F.I.R. In the said circumstance
of the case, it cannot be said that there was
any inordinate delay in lodging of the F.I.R.
at the police station. The delay, if any, was
natural and the explanation offered by the
informant is liable to be accepted.

36. As brought on record, there was
strong motive with the appellants to
commit the murder of the deceased
persons. The informant had mentioned in
the F.I.R. that there was old enmity with the
appellants. During his examination before
the Court, the informant disclosed that in
the murder of the brother of Buddhsen,
namely Hori Lal 3-4 years prior to the
instant incident the deceased Trimal and
Chhiddan were named and at the time of
the incident, the trial was going on. P.Ws. 2
& 3 has also stated the same motive. The
appellants in their statements under Section
313 Cr.P.C. asserted that the witnesses
made statements against them on account
of enmity which also supports the version
of the informant that there was enmity
between the parties.

37. It is settled that enmity is a double
edged weapon, it can be used to implicate
falsely, on the other hand it can become
motive to commit the offence. Further,
there is no principle of law that where if the
prosecution fails to prove the motive for
commission
of
the
crime,
it
must
necessarily result in acquittal of the
accused. Where ocular evidence is found to
be trustworthy and reliable and finds
corroboration from the medical evidence, a
finding of guilt can safely be recorded even
if the motive for the commission of crime
has not been proved.

38. In State of Himachal Pradesh Vs.
Jeet Singh 1999 (38) ACC 550 SC, it was
held that no doubt it is a sound principle to
remember that every criminal act was done
with a motive but its corollary is not that no
9 All. Budh Sen & Ors. Vs. State of U.P.
1547
offence was committed if the prosecution
failed to prove the precise motive of the
accused to commit it as it is almost
impossible for the prosecution to unravel
full dimension of the mental disposition of
an offender towards the person whom he
offended.

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

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

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

42. P.Ws.1 & 2, are related to each
other and also to the deceased persons
regarding which argument had been made
that all these witnesses being relative and
highly interested, are not reliable and lack
of account of independent witnesses in
support of the case is fatal to the
prosecution story. No doubt the prosecution
witnesses from PW-1 to 2 are members of
the same family being in direct relation
with
the
deceased
persons
but
the
relationship itself is not a ground to reject
the testimony of these witnesses, rather
being family members they would be the
last persons to leave the real culprit go scot
free to falsely implicate the appellants.

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

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

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

45. In Masalti vs. State of U.P.
A.I.R. 1965 SC 202, the Apex Court
observed in Para No.14:-