# Fida Hussain Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Criminal Revision No. 1514 of 2009
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fida-hussain-revisionist-v-state-of-u-p-ors-47927
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section 302 - murder - 'five golden
principles'
or
to
say'
constitute the
panchsheel of the proof of a case based on
circumstantial
evidence'
-
(1)
circumstances from which the conclusion
of guilt is to be drawn should be fully
established - circumstances concerned
must
or
should
and
not
may
be
established - (2) fact so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused - (3)
circumstances should be of conclusive
nature and tendency - (4) They should
exclude every possible hypothesis except
that one to be proved - (5) There must be
a chain of evidence so complete as not to
leave any reasonable ground for the
conclusion consistent with the innocence
of the accused and must show that in all
human probability the act must have been
done by the accused. (Para - 42)

(B) Criminal Law - administration of
justice
in
criminal
cases
-
involves
adopting the view that is most favorable
to the accused, if there are two possible
views on the evidence, based on the
accused's guilt or innocence. (Para - 36)
(C) Evidence Law - Motive must be proved
in a case of circumstantial evidence - But
in
relation
to
criminal
trials
based
circumstantial evidence only - prosecution
should prove motive as well if it's case is
based on circumstantial evidence. (Para -
45)

Revision against acquittal of respondent no.1 -
informant
(P.W.-1)
gave
self-contradictory
statement regarding time, writing and lodging of
F.I.R. - witnesses not seen the occurrence -
falsely shown as eyewitnesses - no injury of fire
arm - no injury of dagger in the shape of
punctured wound - No F.S.L. Report in respect
of blood stained and plain soil produced - not
proved beyond reasonable doubt that deceased
was actually killed on the alleged place of
occurrence. (Para - 9, 14, 20, 47)

HELD:- Motive in this case is not grave or
acceptable, and it appears to be unreasonable
and insufficient to commit the alleged crime. No
independent witness examined in support of the
alleged motive. Trial Court rightly acquitted the
accused persons. (Para - 46,48)

Revision dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,898 of 42,159. This is a partial read: ask again with offset=39898 for what follows._

11 All. Fida Hussain Vs. State of U.P. & Ors.
921
satisfy itself as to correctness, legality or
propriety of any finding given by the courts
below. While under section 102 of the
Juvenile Justice Act, the High Court is
empowered to call for record of any
proceeding to satisfy itself as to legality or
propriety of any order and pass such order in
relation thereof as it thinks fit. Two words,
legality and propriety, are common in the
revisional powers as exercisable under
section 397 Cr.P.C. and as exercisable by the
High Court under section 102 of the Juvenile
Justice Act, 2015 both. Thus, it is clear that
the principles underlying the exercise of
revisional powers under section 397 Cr.P.C.
are also applicable to a large extent when the
revisional powers have to be exercised under
section 102 of the Juvenile Justice Act, 2015.

13. The Juvenile Justice Board though
referred to the statements of the witnesses
supporting the prosecution case, but did not
relied on them instead relied on the evidence
given by the witnesses who were essentially
not the witnesses of the fact and also gave
importance to the fact of lack of any external
injury,
absence
of
spermatozoa
in
pathological test and the fact of finding the
hymen intact. In my view, the appellate court
gave good reasons for not finding the order of
the Juvenile Justice Board sustainable on
facts and on law. In these circumstances, the
approach of the appellate court in giving a
different view cannot be called improper or
illegal.

14. A submission has also been made
before this Court that this case does not fall
under the definition of section 375 I.P.C.
Confronting this submission, learned A.G.A.
has drawn the attention of this Court to the
offence of rape as defined under section 375
I.P.C., which said that:-

"375. Rape- A man is said to
commit "rape" if he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with
him or any other person."

15. It is important to notice that the
extent of penetration is immaterial and that
the perineum is part of the private parts,
which sheathes the urethra. Hence, even if the
penetration was very slight and was not into
vagina, the same will bring the act within the
definition of rape. However, I add a word of
caution here that whether the act fell within
the definition of rape, should be left to be
decided by the court concerned when the
matter is brought before it for hearing afresh.

16. On the basis of above discussion, I
am of the view that the findings/observations
given by the appellate court are not perverse,
incorrect or illegal and the same is not liable
to be interfered in exercise of revisional
jurisdiction of this Court under section 102 of
the Juvenile Justice Act, 2015.

17. Accordingly, present revision is
dismissed at this stage.

18. Copy of the order be transmitted to
the court concerned.
----------
(2022) 11 ILRA 921
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 1514 of 2009

Fida Hussain ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
922 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Pradeep Kumar Shukla

Counsel for the Opposite Parties:
Govt. Advocate, Sri Rajneesh K. Srivastava,
Smt. Priyanka Srivastava

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section 302 - murder - 'five golden
principles'
or
to
say'
constitute the
panchsheel of the proof of a case based on
circumstantial
evidence'
-
(1)
circumstances from which the conclusion
of guilt is to be drawn should be fully
established - circumstances concerned
must
or
should
and
not
may
be
established - (2) fact so established
should
be
consistent
only
with
the
hypothesis of the guilt of the accused - (3)
circumstances should be of conclusive
nature and tendency - (4) They should
exclude every possible hypothesis except
that one to be proved - (5) There must be
a chain of evidence so complete as not to
leave any reasonable ground for the
conclusion consistent with the innocence
of the accused and must show that in all
human probability the act must have been
done by the accused. (Para - 42)

(B) Criminal Law - administration of
justice
in
criminal
cases
-
involves
adopting the view that is most favorable
to the accused, if there are two possible
views on the evidence, based on the
accused's guilt or innocence. (Para - 36)
(C) Evidence Law - Motive must be proved
in a case of circumstantial evidence - But
in
relation
to
criminal
trials
based
circumstantial evidence only - prosecution
should prove motive as well if it's case is
based on circumstantial evidence. (Para -
45)

Revision against acquittal of respondent no.1 -
informant
(P.W.-1)
gave
self-contradictory
statement regarding time, writing and lodging of
F.I.R. - witnesses not seen the occurrence -
falsely shown as eyewitnesses - no injury of fire
arm - no injury of dagger in the shape of
punctured wound - No F.S.L. Report in respect
of blood stained and plain soil produced - not
proved beyond reasonable doubt that deceased
was actually killed on the alleged place of
occurrence. (Para - 9, 14, 20, 47)

HELD:- Motive in this case is not grave or
acceptable, and it appears to be unreasonable
and insufficient to commit the alleged crime. No
independent witness examined in support of the
alleged motive. Trial Court rightly acquitted the
accused persons. (Para - 46,48)

Revision dismissed. (E-7)

List of Cases cited:-

1. Rambraksh Vs St. of Chhatisgarh, AIR 2016
SC 2381

2. Tomaso Bruno Vs St. of U.P., (2015) 7 SCC 178

3. Rohtash Vs St. of Har., (2012) 6 SCC 589

4. Thaman Kumar Vs St. of U.T. of Chandigarh,
(2003) 6 SCC 380

5. Niranjan Prasad Vs St. of M.P., 1996 CrLJ
1987 (SC)

6. Uma Shankar Chaurasia Vs St. of U.P., 2004
(50) ACC 152 (All... LB) (DB)

7. St. Govt. of NCT of Delhi Vs Sunil, (2001) 1
SCC 652

8. Sunil Kundu Vs St. of Jharkh., (2013) SCC
(Cri) 427

9. Chanali Maddilety Vs St. of A.P. (20110 SCC
(Cri) 445

10. Devatha Venkata Swamy @ Ramgaiah Vs
Public Prosecutor H.C., 2004 SCC (Cri) 963

11. Maruti Rama Naik Vs St. of Maha., 2003 0
Supreme (SC) 863

12. Kali Ram Vs St. of H.P. (1973) 2 SCC 808;

13. St. of Raj. Vs Raja Ram (2003) 8 SCC 180;

14. Chandrappa & Ors Vs St. of Karn., 2007 4
SCC 415:
11 All. Fida Hussain Vs. State of U.P. & Ors.
923
15. Upendra Pradhan Vs St. of Orissa, (2015) 11
SCC 124 and

16. Golbar Hussain & Ors. Vs St. of Assam &
anr. (2015) 11 SCC 242

17. St. of U.P. Vs Satish, (2005) 3 SCC 114

18. Hanumant Govind Nargundkar Vs St. of
M.P., AIR 1952 SC 343

19. Sharad Birdichand Sards Vs St. of Maha.,
AIR 1984 SC 1622; (1984) 2 SCC 116

20. Nathiya Vs St. Rep. By I.P., Bagayam P.S.,
Vellore, Crim. Appeal No. 1015/2010

21. Sujit Biswas Vs St. of Assam, (2013) 12 SCC
406

22. Raja @ Rajendra Vs St. of Har. (2015) 11
SCC 43

23. Ganpat Singh Vs St. of M.P., (2018) 2 SCC
(Cri) 159

24. Sampath Kumar Vs I.P. Krishnagiri, AIR
2011 SC 1249

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

1. None appeared for the revisionist.
Heard learned A.G.A. and perused the material
available on record. Since the criminal
revision can not be dismissed in default, hence
this revision is being decided on merit.

2. This revision has been preferred
against the judgment and order of acquittal
passed in S.T. No. 630 of 2005 (State Vs.
Ram Chandra and Others) arising out of
Case Crime No. 333 of 2004 under Section
302 I.P.C. Police Station- Bhuta, Bareilly,
by Additional Sessions Judge Court No. XI,
Bareilly on 9.1.2009.

3. In brief, the revision has been filed
on the grounds that Additional Session
Judge has not considered all the facts and
circumstances and acquitted respondent
no.1 which is not correct in the eyes of law.
He has not passed the judgment in
accordance with criminal law, hence, the
impugned judgment be set aside and
revision be allowed.

4. In brief facts of the case are that
informant-
revisionist
(P.W.-1)
Fida
Hussain lodged an F.I.R. that on 14.7.2004,
he along with his sons Pappu @ Israr
(deceased), Iqbal (P.W.-2) and one Noor
Hasan was sitting near pumping set. In the
night at about 8:30 p.m. Bihari son of
Khandari came there and asked the
deceased to go to Mirzapur with him. As
soon
as
deceased
reached
near
the
sugarcane field of Mohan Lal, informant
heard voice of deceased and sound of fire.
He with his son Iqbal Hussain and Noor
Hasan rushed there and saw accused Ram
Chandra, Uma Charan, Ram Autar and
Bihari had surrounded his son Pappu and
killed him by assaulting with Gupti
(dagger)
and
country
made
pistol,
thereafter, accused persons ran towards
jungle. The incident was witnessed and
accused were recognized in the light of
torch. On this written complaint, an F.I.R.
was lodged at 10:00 p.m. in Police Station
Bhuta. Yashpal Singh, was appointed as
I.O. of the case who started investigation.
He copied chick F.I.R., G.D., statement of
scribe, statement of the informant in the
night and on next date i.e. 15.7.2004
inspected the place of occurrence and
prepared map (Ex. Ka-12), appointed
punch and conducted inquest (Ex. Ka-5)
prepared papers for post-mortem and sent
dead body for autopsy. He also took blood
stained and plain soil and prepared
recovery memo (Ex. Ka-11). He also
prepared recovery memo of torch (Ex. Ka17); copied post mortem report (Ex. Ka-2);
924 INDIAN LAW REPORTS ALLAHABAD SERIES
arrested accused persons and recorded their
statements and recovered a countrymade
pistol of 12 bore with empty cartridges in
its barrel on 16.7.2004 on the pointing out
of the accused Ram Chandra and prepared
its recovery memo (Ex. Ka-13); lodged
F.I.R. at Crime No. 337 of 2004 under
Section 25 of the Arms Act against accused
Ram Chandra and submitted charge-sheet
(Ex. Ka-16) under Section 302 I.P.C.

5. P.W.-7, S.I. Charan Singh,
investigated the case under Section 25
Arms Act and copied chick F.I.R., G.D.,
statement of scribe and accused Ram
Chandra, inspected the place of recovery
and prepared map (Ex. Ka-18) and got
prosecution
sanction
from
District
Magistrate (Ex. Ka-19) and submitted
charge-sheet (Ex. Ka-20). Accused persons
denied the charges and sought trial.

Prosecution examined following
witness:-

P.W.-1
Fida Hussain, Informant
P.W.-2
Iqbal
P.W.-3
Ramesh Chandra- Scribe
P.W.-4
Dr. Arvind Agrawal
P.W.-5
Constable/Clerk Chandrapal
P.W.-6
S.I. Yashpal Singh- I.O.,
P.W.-7
S.I. Charan Singh
P.W.-8
S.I. Pyare Lal

Prosecution
submitted
following
documentary evidence;

Ex. Ka-1
Tehrir
Ex. Ka-2
Post-mortem report
Ex. Ka-3
Chick F.I.R.
Ex. Ka-4
Chick report
Ex. Ka-5
Inquest report
Ex. Ka-6
Specimen Seal
Ex. Ka-7
Police Form No. 13
Ex. Ka-8
Photo Nash
Ex. Ka-9
Letter to C.M.O.
Ex. Ka-10
Letter to R.I.
Ex. Ka-11
Recovery Memo
Ex. Ka-12
Map
Ex. Ka-13
Recovery memo country made pistol.
Ex. Ka-14
Map
Ex. Ka-15
Recovery Memo
Ex. Ka-16
Charge-sheet under Section 302 I.P.C.
Ex. Ka-17
Recovery memo of Torch
Ex. Ka-18
Map regarding place of recovery
Ex. Ka-19
Prosecution sanction u/s 25 of Arms
Act.
Ex. Ka-20
Charge-sheet

6. After closure of the prosecution
evidence, statement of the accused persons
were recorded wherein they denied the
charges and offence and claimed that false
case and evidence have been adduced; I.O.
has
falsely
investigated
the
matter.
However, no evidence was produced in
defence.

7. Learned trial Court has discussed
the oral, documentary evidence as well as
case laws and concluded that the F.I.R. is
anti timed, I.O. and witnesses have made
material improvements in the case and after
obtaining post mortem report concluded
that the injuries caused to the deceased can
not be caused from the dagger and fire-arm;
witnesses have not seen the occurrence and
on the basis of suspicion and enmity,
accused
persons
have
falsely
been
implicated.

8. It would be better to decide the
revision discussing the grounds taken by
the learned trial Court separately.
11 All. Fida Hussain Vs. State of U.P. & Ors.
925

9. According to the learned trial Court,
the F.I.R. is anti timed. In this case, as per the
F.I.R., the occurrence took place at 8: 30 p.m.
on 14.7.2004. The distance of police station
from the place of occurrence is 7 km. The
F.I.R. was lodged at 10:00 p.m. In this regard,
statements of witnesses and documentary
evidence have been considered. The written
complaint was reduced in writing by Ramesh
Chandra of the village and after listening the
informant put his mark on it and produced it
in the police station and got a case registered
at 10:00 p.m. In examination-in-chief, P.W.1
has deposed that the F.I.R. was written in
village and he went police station with
written complaint but in cross-examination
this witness has admitted that when dead
body was taken from Mirzapur to the police
station, Ramesh also went with him. The
dead body was removed after 2-3 hours from
the spot meaning thereby the dead body
remained on the place of occurrence at least
up to 10:30 p.m. He again deposed that dead
body was got up when the police reached the
spot. It is also established that before lodging
the F.I.R. the police had reached on the spot.
Contrary to the statement of examination-inchief this witness deposed that the Tehrir was
reduced in writing by Ramesh Chandra
sitting at the police station. This witness
admits that the police station is about 7 to 7.5
km.
away
from
Mirzapur
(place
of
occurrence)
contrary
to
the
previous
statement this witness again deposed that
when he prepared the written complaint, the
corpus was at police station. He further
deposes that the Tehrir was written outside
the police station and dead body was on the
spot and he had gone alone to lodge the
report. Thus, informant P.W.-1 has given self
contradictory
statement
regarding
time,
writing and lodging of F.I.R.

10. P.W.-3, Ramesh Chandra,
scribe, has also admitted that when he had
written the complaint, the police had
already reached on the spot. The learned
trial Court opined that from the above
statement it is established that before
lodging the F.I.R. the police had reached on
the spot. The informant P.W.-1, has also
admitted that the dead body remained on
the spot for 2-3 hours after the occurrence,
thus, it is impossible for the informant to
lodge the F.I.R. going 7-7.5 km away at
10:00 p.m. He cannot remain present same
time at two places. Learned trial Court
concluded that from the above statements it
is established that the dead body was lying
on the spot upto 11:00 p.m. P.W.-1 has also
admitted in cross-examination that he went
to police station with other persons
carrying dead body of his son and the dead
body had been sealed at the police station.
In this respect statement of P.W.2 Iqbal,
brother of the deceased, is also relevant. In
cross-examination he deposed that after
two and a half hours dead body was taken
in a covered state keeping the same on
lathi. The police had also reached on the
spot, thereafter, the dead body was taken to
the police station. The statement of this
witness was recorded after 15 days while
he was very much present at his house
being the real son of the informant and real
brother of the deceased.

11. From the aforesaid discussion, it
is established that the F.I.R. was not lodged
before reaching the police station and when
they reached police station only then the
F.I.R. was lodged making it ante-timed
after consultation with police. Since the
crime number and sections are also
mentioned in the inquest report, therefore,
it is obvious that the inquest proceeding
was shown conducted after lodging the
F.I.R., therefore, it was not possible for the
I.O. to conduct the inquest proceeding on
spot but in inquest report ( Ex. Ka-5) the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
I.O. has shown that the inquest was
conducted at the place of occurrence on
15.7.2004 between 6:30 a.m. to 8:00 a.m.
and according to Panchan the deceased was
killed by firearm. Thus, it is also
established that the inquest proceeding was
not conducted on the spot as shown in Ex.
Ka-5. Thus, the lodging of F.I.R. after
making it ante-timed and convenient for the
prosecution is established.

12. The fact that the F.I.R. is antitimed is not the sole realm to discard the
prosecution case but if it seems that it was
done with malafide intention to falsely
implicate the accused persons and to show
some persons as eyewitnesses, then the
prosecution case gets corrupted, incorrect
and impure.

13. The learned trial Court has
concluded that the accused persons had
another ground that the witnesses of fact
P.W.1 and P.W.2 have not seen the
occurrence, they are not the real witness
and they are the interested witness being
real father and brother of the deceased.

14. In F.I.R., the informant has said
that the accused persons killed the
deceased by attacking with Gupti (dagger)
and Tamancha (country made pistol) but
the post-mortem report shows that there
were six cut wounds, two lacerated
wounds, one contusion and one injury of
rubbing. Though the autopsy doctor has
deposed that injury no. 1, 2, 4, 5 and 9 to
10 may occur from the attack of Gupti and
sharp edged weapon and injury no. 3 & 6
may occur from the attack of blunt object
but it is well known fact that from the
attack of Gupti only punctured wound may
occur and no cut wound shall occur.
Informant P.W.-1, father of the deceased
has deposed that after hearing the noise,
he reached on the spot with his son, P.W.-
2, Iqbal Hussain, saw that Umacharan had
put foot on the neck of the deceased and
Bihari had pressed his neck, Ram Chandra
had caught his legs and Ram Autar was
beating by the butt of the licensed gun and
Uma Charan was assaulting from dagger.
P.W.2 has also deposed about the attack in
the same manner as alleged by P.W.1, Fida
Hussain. According to him, when they
exhorted, accused persons ran away on the
road of Gualdiya by making fire. It is
noteworthy that as per version of F.I.R.,
fire arm was also used in killing the
deceased
whereas
this
fact
is
not
established from the medical evidence.
Thus from beginning to the end of inquest
proceeding the case of the prosecution was
that the deceased was killed by firearm.
After first recording of the statement
under Section 161 CrP.C., the I.O. again
recorded the statement of witness under
Section 161 Cr.P.C. to make the case in
conformity with medical evidence. But
P.W.1 has also deposed that Ram Autar
had gun in his hand, Ram Chandra and
Uma Charan had country made pistols and
by using these fire arms they killed the
deceased and ran away towards the jungle.
This witness has also deposed that accused
persons had killed the deceased by firing
at him. If we scrutinize oral and
documentary evidence together, we find
that deceased was not killed by fire arm
and there was no injury of fire arm on the
person of deceased. Hence, it is concluded
that the witnesses have not seen the
occurrence and they are falsely shown as
eyewitnesses.

15. In Rambraksh Vs. State of
Chhatisgarh, AIR 2016 SC 2381 and
Tomaso Bruno Vs. State of Uttar
Pradesh, (2015) 7 SCC 178, it has been
held that-
11 All. Fida Hussain Vs. State of U.P. & Ors.
927

"Improvement made by witness in
its statement made to the Court than what
was made to the I.O. u/s 161 CrPC not to
be relied on. "

16. In Rohtash Vs. State of Haryana,
(2012) 6 SCC 589, it has been held that-

" If the P.Ws had failed to
mention in their statements u/s 161 CrPC
about the involvement of an accused, their
subsequent statement before court during
trial
regarding
involvement
of
that
particular accused cannot be relied upon.
Prosecution cannot seek to prove a fact
during trial through a witness which such
witness had not stated to police during
investigation. The evidence of that witness
regarding the said improved fact is of no
significance."

17. Generally, if there is inconformity
between the ocular and medical evidence,
the ocular evidence shall prevail over the
medical evidence but if medical evidence is
true
and
correct
after
the
examination/autopsy of the deceased and
the
oral
evidence
does
not
inspire
confidence and does not corroborate the
medical evidence and the presence of the
witnesses is doubtful, the prosecution
version may be disbelieved and discarded.
In this case medical evidence does not say
two
possibilities,
it
says
only
one
possibility that the deceased was killed by
sharp edged weapon and the blunt object
whereas as per the prosecution witness the
deceased was killed by using a dagger and
fire arm, if witnesses had seen the
occurrence,
there
would
have
been
punctured wounds and fire arm injuries but
such injuries were not found by the doctor
during the course of autopsy. Therefore, it
is concluded that in case where the F.I.R.
had been lodged making it ante-timed and
I.O. tried his best for making the case in
conformity with the medical evidence and
the I.O. has recorded the statement of the
witnesses afresh then it can safely be
concluded that the act of the I.O. is not an
independent and impartial act and he has
not collected the evidence but has created
the evidence to ensure the conviction of the
accused persons.

18. In Thaman Kumar Vs. State of
Union Territory of Chandigarh, (2003) 6
SCC 380, it is held that

" the conflict between oral
testimony and medical evidence can be of
varied dimensions and shapes. There may
be a case where there is total absence of
injuries which are normally caused by a
particular weapon. There is another
category where though the injuries found
on the victim are of the type which are
possible by the weapon of assault, but the
size and dimension of the injuries do not
exactly tally with the size and dimension of
the weapon. The third category can be
where the injuries found on the victim are
such which are normally caused by the
weapon of assault but they are not found on
that portion of the body where they are
deposed to have been caused by the eyewitnesses. The same kind of inference
cannot be drawn in the three categories of
apparent conflict in oral and medical
evidence enumerated above. In the first
category t may legitimately be inferred that
the oral evidence regarding assault having
been made from a particular weapon is not
truthful. However, in the second and third
category no such inference can straightway
be drawn. The manner and method of
assault, the position of the victim, the
resistance offered by him, the opportunity
available to the witnesses to see the
occurrence like their distance, presence of
928 INDIAN LAW REPORTS ALLAHABAD SERIES
light and many other similar factors will
have to be taken into consideration in
judging the reliability of ocular testimony".

19. Thus, this Court is of the
opinion that this case falls in first
category
about
which
it
may
legitimately
be
referred
that
oral
evidence regarding injuries having been
caused from a particular weapon is not
trustworthy. Hence, it is concluded that
the
witnesses
have
not
seen
the
occurrence
and
they
are
falsely
deposing in evidence .

In Niranjan Prasad Vs. State
of M.P., 1996 CrLJ 1987 (SC),

" in murder trial, testimony of
eye-witnesses was that the deceased
and injured were assaulted with sharp
cutting weapons but their testimony
was not corroborated with medical
evidence showing deceased having
been injured by blunt object (weapon)
only. Post Mortem Report showing
that the deceased had not injury which
could be caused by a sharp cutting
weapon and, indeed, he had sustained
only one injury which could be
caused, according to the doctor by a
blunt weapon only. Keeping in view
the sharp contrast in between the
ocular testimony and the medical
evidence" .

20. The principle laid down in this
case totally fits in this case. According
to the witnesses the deceased was killed
by using a dagger and fire arm while
there is no injury of dagger in the shape
of punctured wound and there is no
injury of fire arm. Hence, there was no
occasion for the learned trial Court to
convict the accused persons.

21. Even in inquest (Ex. Ka-5)
punch/witness
have
said
that
the
deceased appear to be died due to firearm
injuries.
Thus,
it
is
again
established that till the time of inquest,
the prosecution was of the opinion that
the deceased was killed by fire arm
injury. While no injury of fire arm was
found in the post mortem report.

22. In Uma Shankar Chaurasia
Vs. State of U.P., 2004 (50) ACC 152
(All... LB) (DB) and State Govt. of
NCT of Delhi Vs. Sunil, (2001) 1 SCC
652, it has been held that-

"when there is conflict between
the injury report and Post Mortem
Report, the Post Mortem Report should
be preferred over the injury report."

23. In Sunil Kundu Vs. State of
Jharkhand, (2013) SCC (Cri) 427, it
has been held that -

"General rule is that when there
is a cogent and reliable ocular evidence, it
will have primacy over medical evidence.
However when eye-witness account is
totally inconstant with medical evidence
and there is reason to believe that
improvements were made in Court to bring
prosecution case in conformity to postmortem notes. The contradictions between
oral and medical evidence cannot be
ignored. In this case major lacuna in
prosecution case was that alleged use of
fire arms by the accused was not proved as
no fire arm injuries were found on
deceased. Hence accused were held entitled
to benefit of doubt. "

24. In Chanali Maddilety Vs. State of
A.P. (20110 SCC (Cri) 445,
11 All. Fida Hussain Vs. State of U.P. & Ors.
929

"Accused AI and A2 alleged to
have used stone and stick. The deceased
suffered 13 incised and stab wounds. No
injury was caused by blunt object like stick
or stone. As injuries did not correspond to
the weapons allegedly used by A1 and A2.
The Trial Court acquitted the accused A1
and A2.

25. In Devatha Venkata Swamy @
Ramgaiah Vs. Public Prosecutor High
Court, 2004 SCC (Cri) 963,

" The witness in his evidence
clearly stated that the appellant pierced the
forehead of the deceased once, but the
medical report shows that the injuries
caused to the forehead of the deceased was
by the use of a blunt weapon and that too
by repeated blows. So there was direct
conflict between the medical evidence and
ocular evidence. Hence the prosecution
case was not believed. "

26.

Consequently
this
Court
concludes that according to the I.O. and the
witnesses of the fact the deceased was
killed by fire arm while as per the medical
report, the injuries were caused by sharp
edged weapon and blunt object, hence, post
mortem report would prevail and in view of
the report and evidence of the post mortem
doctor, the evidence of the alleged eyewitnesses
is
false,
incorrect
and
untrustworthy.

27. The I.O., P.W.-6- Yashpal Singh,
has admitted that informant in his statement
under Section 161 Cr.P.C. that accused
persons had killed his son by fire arm but
after receiving the post mortem report, he
again recorded the statement of informant.
Statement of P.W. 2, Iqbal Hussain, was
also recorded only after receiving post
mortem report. This witness in his crossexamination has accepted that statement of
the informant was recorded in the night of
14.7.2004. Informant has also accepted in
his cross-examination that first of all he had
stated to the I.O. that accused persons had
killed his son from gun and country made
pistol. He has also accepted that he had
instructed the scribe Ramesh Chandra
regarding killing of the deceased by firing
from the gun. It has already been concluded
that the F.I.R. is ante-timed and it is again
concluded that the I.O. has tried his best to
make the case in conformity with the post
mortem report and accordingly he recorded
the statement of witnesses of the fact. This
finding
also
find
support
from
the
statement of the informant-P.W.-1, given to
the I.O. first time on the date of occurrence.
Further, the statement of the informant was
recorded by the I.O. on 29.7.2004 after
receiving the post-mortem report only to
make the prosecution case in accordance of
the injuries but even then he could not
succeed.
Thereafter,
making
an
improvement, the informant- P.W.1 also
changed his evidence and in the Court he
deposed that the deceased was killed by
sharp edged weapon and blunt object.
Learned trial Court has found the illegal
and unacceptable improvement and this
Court also is in agreement with the finding
of the learned trial Court.

28. It is also noteworthy that P.W.4,
Dr.
Arvind
Agrawal,
in
his
crossexamination has insisted that dagger is a
thin and long weapon. Cut wound present
on the dead body may occur only from the
sharp edged weapon like Gadasha or Tabal
or sword.

29. It is noteworthy that when P.W.2,
Iqbal Hussain, was very much present on
the spot and at his house then why his
statement was not recorded along with the
930 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of the informant and why
statement was recorded after 15 days on
29.7.2004. This witness also deposed in the
same manner like the informant that the
deceased was killed by dagger and butt part
of the gun while as per P.W.4 all the
injuries were caused from sharp edged
weapon like tabal, Gadasha, sword and by
using blunt object.

30. In Maruti Rama Naik Vs. State of
Maharashtra, 2003 0 Supreme (SC) 863, it
has been held that -

"In this case P.W.-3, injured, had
not named the appellants as assailants in
his
statement
to
the
police
despite
opportunity to record his evidence after one
day's delay his statement was recorded. It
was held that without corroboration the
evidence of this witness was not liable to be
relied on. P.W.-4 was the close friend of the
deceased but he did not inform the police
or anybody else and he went to his
workplace. There was unexplained delay in
recording his statement."

31. Hence, statement of witness was
not relied upon.

32. Thus, in the same manner the
evidence of P.W.-2 is also not reliable and
trustworthy.

33. Accused Ram Chandra has also
been charged for Section 25 of the Arms
Act. According to the prosecution version a
country made pistol and empty cartridges
used in commission of crime were
recovered
from
his
possession
on
21.7.2004.
Learned
trial
Court
has
concluded that if the accused Ram Chandra
was arrested from public place like
Faiznagar Tiraha and confessed to get the
country made pistol recovered used in
commission of the crime and if the same
was recovered near the sugarcane farm then
why no public witness was taken and why
the declaration of the accused was not
recorded. More so, the country made pistol
is not connected from commission of crime
as there is no firearm injury to the
deceased. So far as licensed gun of the
accused is concerned, if it was used in the
crime and the licensed gun was taken into
custody, why the procedure to cancel the
license
was
not
initiated
is
also
questionable.

34. The I.O. of the 25 Arms Act is the
subordinate to the S.H.O., P.W.-6, Yashpal
Singh, hence, he was having no option but
to submit the charge-sheet against the
accused Ram Chandra without obtaining
any F.S.L. report. Thus, this Court is of the
opinion that the learned trial Court has
rightly concluded that the F.I.R. is antitimed and there is illegal and unnatural
improvements by the I.O. and the witnesses
of fact have not witnessed the incident,
they were not present on the spot, therefore,
their statement is not consistent.

35. In the F.I.R. the informant has put
a motive that deceased did not listen to the
accused that is why the accused have killed
him. This fact is not explained by the
prosecution and it can not be a ground to
kill a person by another. There is no need to
prove the motive if there is direct evidence.
Though motive and mens-rea may arise at
any point of time even at the time of
occurrence also. There is some importance
of motive in cases of circumstantial
evidence
though
if
chain
of
the
circumstances is complete, there is no need
to prove the motive but in this case it is not
proved that the witnesses of fact were
present on the spot, therefore, there is
variation in their statement and there is
11 All. Fida Hussain Vs. State of U.P. & Ors.
931
contradiction between the ocular and the
medical evidence. That's why evidence of
the witnesses of fact does not inspire
confidence in the mind of the Court, hence,
their evidence has been rejected. Thus the
case remains a case of circumstantial
evidence. In that case the prosecution is
duty bound to prove the motive and that the
chain of the circumstances is complete. As
per the F.I.R. it is not a case of
circumstantial evidence. Neither motive nor
extra judicial confession nor last seen or
recovery of any incriminating item has
been proved.

36. Another golden thread which runs
through the web of administration of justice
in criminal cases is that if two views are
possible on the evidence adduced in the case,
one pointing to the guilt of the accused and
the other to his innocent, the view which is
favourable to the accused should be adopted.
( See: Kali Ram Vs. State of H.P. (1973) 2
SCC 808; State of Rajasthan Vs. Raja Ram
(2003) 8 SCC 180; Chandrappa & Ors Vs.
State of Karnataka, 2007 4 SCC 415:
Upendra Pradhan Vs. State of Orissa,
(2015) 11 SCC 124 and Golbar Hussain &
Ors. Vs. State of Assam & Anr. (2015) 11
SCC 242).

37. Direct evidence means that from
which the existence of a given thing or fact
is proved either by its actual production, or
by the testimony or admissible declaration
by someone who has perceived it. In the
case of circumstantial evidence certain
facts are proved, from which the existence
of a given fact is inferred. The two forms
are equally admissible. " Superiority of the
former is that whilst it contains fallibility of
assertion and perception as source of error
the latter has in addition, fallibility of
inference. " Circumstantial evidence must
always be direct, i.e. the facts from which
the existence of fact in issue is to be
inferred
must
be
proved
by
direct
evidence."

38. Addressing the context of
circumstantial evidence, Ian Dennis in the
treatise " The Law of Evidence" has
propounded:

" Where the case against the
accused depends wholly or partly on
inferences from circumstantial evidence,
factfinders cannot logically convict unless
they are sure that inferences of guilt are the
only ones that can reasonably be drawn. If
they think that there are possible innocent
explanations for circumstantial evidence
that are not" merely fanciful", it must
follow that there is a reasonable doubt
about guilt. There is no rule, however, that
judges must direct juries in terms not to
convict unless they are sure that the
evidence bears no other explanation that
guilt. It is sufficient to direct simply that
the burden on the prosecution is to satisfy
the jury beyond reasonable doubt, or so that
they are sure.

39. The very high standard of proof
required in criminal cases minimizes the
risk of a wrongful conviction. It means that
someone whom, on the evidence, the fact
finder believes is " probably" guilty, or
"likely" to be guilty will be acquitted, since
these judgments of probability necessarily
admit that the fact finder is not "sure". It is
generally accepted that some at least of
these acquittals will be of persons who are
in fact guilty of the offences charged, and
who would be convicted if the standard of
proof were the lower civil standard of the
balance of probabilities. Such acquittals are
the price paid for the safeguard provided by
the "beyond reasonable doubt" standard
against wrongful conviction. "
932 INDIAN LAW REPORTS ALLAHABAD SERIES

40. In State of U.P. Vs. Satish, (2005)
3 SCC 114, it has been laid down that:

"There is no doubt that conviction
can be based solely on circumstantial
evidence but it should be tested by the
touchstone of law relating to circumstantial
evidence laid down by this court as far
back in 1952."

41. Thus, one of the earliest cases,
where
the
proposition
related
to
circumstantial evidence has been laid down
is Hanumant Govind Nargundkar Vs.
State of M.P., AIR 1952 SC 343.

42. The principle enunciated therein
has been reiterated in a catena of judgments
of the Hon'ble Apex Court and specifically
mention
may
be
made
of
Sharad
Birdichand
Sards
Vs.
State
of
Maharashtra, AIR 1984 SC 1622; (1984)
2 SCC 116. The conditions precedent in the
words of the Hon'ble Court before
conviction could be based on circumstantial
evidence must be fully established. The
conditions are:

1. The circumstances from which
the conclusion of guilt is to be drawn
should
be
fully
established.
The
circumstances concerned must or should
and not may be established.

2. The fact so established should
be consistent only with the hypothesis of the
guilt of the accused.

3. The circumstances should be of
conclusive nature and tendency.

4. They should exclude every
possible hypothesis except that one to be
proved.

5. There must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

These
conditions
have
been
called as the 'five golden principles' or to
say' constitute the panchsheel of the proof
of a case based on circumstantial evidence.'

43. Recently, in Nathiya Vs. State
Rep. By Inspector of Police, Bagayam
Police Station, Vellore, (Crim. Appeal No.
1015/2010, date of judgment 08.11.2016),
the Hon'ble Court has approvingly referred
to Sujit Biswas Vs. State of Assam, (2013)
12 SCC 406 and Raja @ Rajendra Vs.
State of Haryana (2015) 11 SCC 43. The
proposition laid down is to the effect that in
scrutinizing the circumstantial evidence, a
court is required to evaluate it to ensure
that the chain of events is established
clearly and completely, to rule out any
reasonable likelihood of the innocence of
the accused. Whether the chain is complete
or not would depend on facts of each case
emanating from the evidence and no
universal
yardstick
should
ever
be
attempted.

44. More recently in Ganpat Singh
Vs. State of Madhya Pradesh, (2018) 2
SCC (Cri) 159, it has been reiterated that
circumstances from which an inference of
guilt is sought to be drawn, must be
cogently and firmly established. The
circumstances taken cumulatively, should
form a change so complete, that there is no
escape from the conclusion, that within all
human
probability,
the
crime
was
committed by accused and they should be
incapable of explanation on any hypothesis
other than that of guilt of accused and
inconsistent with his innocence.

45. Motive must be proved in a case
of circumstantial evidence : But in relation
11 All. Ravi Shankar Vs. State of U.P. & Anr.
933
to criminal trials based circumstantial
evidence only, the Supreme Court has, in
the cases noted below, laid down different
law on the point of motive and has clarified
that prosecution should prove motive as
well if it's case is based on circumstantial
evidence.

46. In view of Sampath Kumar Vs.
Inspector of Police Krishnagiri, AIR 2011
SC 1249, in this case the motive is neither
grave nor acceptable and it appears to be
unreasonable and insufficient to commit the
alleged crime. No independent witness has
been examined in support of the alleged
motive.

47. No F.S.L. Report in respect of
blood stained and plain soil has been
produced and it is not proved beyond
reasonable
doubt
that
deceased
was
actually killed on the alleged place of
occurrence.

48.