# Foolbadan (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-06
- **Case number:** Criminal Appeal No. 3268 of 2015
- **Bench:** Bachchoo Lal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/foolbadan-in-jail-v-state-of-u-p-46772
- **Pages:** 12

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 307, 302, 324 read
with section 34, 352, 504, 506 IPC -
relationship of eye-witnesses inter se,
cannot be a ground to discard their
testimony - absence of an evidence on
1 All. Foolbadan Vs. State of U.P.
381
the point of motive cannot have any
such impact so as to discard the other
reliable evidence available on record
which certainly establishes the guilt
of the accused.(Para - 38,43)

Prosecution case in brief is that informant
alongwith his brothers was cutting down the
boundary line of his field located beside - His
cousin and their brother-in-law came there and
assaulted them with sticks and spade - armed
with spade and others with sticks - exhorted to
kill them.(Para - 2)

HELD:- On considering the statements made
by DW-1 & DW-2, it appears that there is
nothing to support the defense version as stated
by them. They have not narrated the specific
place of work where he was employed. No any
job card/duty card/attendance sheet has been
filed to support his presence at that specific
place at the time of incident. No any admission
slip of hospital has been filed to show that on
the date of occurrence appellant was not
present. Even appellant Phoolbadan has not
made any statement in this regard u/s 313
Cr.P.C. Paper nos. 58-kha/1 to 58-kha/4 are
prescriptions of medicines but language used
therein is not legible. Paper no. 59-kha is
medical certificate in which appellant has been
shown to be suffering from entric fever but the
name & seal of the issuing authority is not
legible. No any Authority/Officer has been
examined to prove these papers and to support
his defense version. (Para - 54)

Criminal appeal dismissed . (E - 6)

List of Cases cited :-

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, a lesser sentence would be
enough to meet the ends of justice.

68. Consequently, while affirming the
conviction of the appellants for the
offences under Section 304-B IPC, Section
498-A IPC and Section 3⁄4 of D. P. Act, we
reduce the sentence of life imprisonment
imposed upon them for the offence under
Section 304-B IPC to a period of
imprisonment as directed hereinafter. The
conviction
and
sentence
of
all
the
appellants under Section 302 IPC is hereby
set aside.

69. Insofar as appellants no. 2
(Chhajju) and appellant No. 3 (Smt
Premwati) are concerned, they are stated to
be on bail by this Court and are aged more
than 60 and 65 years respectively. In view
of what has been laid down in the abovecited judgments, we find that after six years
of their conviction as also looking to the
old age of the appellants no. 2 & 3 and also
that at the fag end of their lives, no useful
purpose would be served in sending the
appellants no. 2 & 3, to jail again and as
such, the sentence awarded to them is
further reduced to the period already
undergone,
while
maintaining
their
convictions under Section 304-B, Section
498A IPC and Section 3⁄4 of D. P. Act only.
Appellant Nos. 2 and 3 are on bail. Their
bail bonds stand cancelled and sureties are
discharged.

70. As far as the case of the first
appellant no. 1 Ravi, the husband of the
deceased is concerned, his conviction is
maintained u/s 304-B, 498A IPC and
Section 3⁄4 of D. P. Act. And so far as
sentence of life imprisonment imposed
upon him for the offence under Section
304-B IPC is concerned, the same is
reduced to a period of 8 years. All the
sentences under different count shall run
concurrently in respect of appellant no. 1.

71. Let a copy of the judgment be sent
to the court concerned through Sessions
Judge, Moradabad within fifteen days. The
trial
court
shall
thereafter
report
compliance within one month.

72. With the above modification, this
appeal stands disposed of.
----------
(2021)01ILR A380
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 3268 of 2015
&
Criminal Appeal No. 3586 of 2015
&
Criminal Appeal No. 3601 of 2015

Foolbadan ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri R.S. Ram, Sri Akhilesh Kumar, Sri Apul,
Sri Krishna Kumar Chaurasia, Sri Mohd.
Monis, Sri Phool Chandra Singh, R.U. Rinki
Renu, Sri Ulajhan Singh Bind

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 307, 302, 324 read
with section 34, 352, 504, 506 IPC -
relationship of eye-witnesses inter se,
cannot be a ground to discard their
testimony - absence of an evidence on
1 All. Foolbadan Vs. State of U.P.
381
the point of motive cannot have any
such impact so as to discard the other
reliable evidence available on record
which certainly establishes the guilt
of the accused.(Para - 38,43)

Prosecution case in brief is that informant
alongwith his brothers was cutting down the
boundary line of his field located beside - His
cousin and their brother-in-law came there and
assaulted them with sticks and spade - armed
with spade and others with sticks - exhorted to
kill them.(Para - 2)

HELD:- On considering the statements made
by DW-1 & DW-2, it appears that there is
nothing to support the defense version as stated
by them. They have not narrated the specific
place of work where he was employed. No any
job card/duty card/attendance sheet has been
filed to support his presence at that specific
place at the time of incident. No any admission
slip of hospital has been filed to show that on
the date of occurrence appellant was not
present. Even appellant Phoolbadan has not
made any statement in this regard u/s 313
Cr.P.C. Paper nos. 58-kha/1 to 58-kha/4 are
prescriptions of medicines but language used
therein is not legible. Paper no. 59-kha is
medical certificate in which appellant has been
shown to be suffering from entric fever but the
name & seal of the issuing authority is not
legible. No any Authority/Officer has been
examined to prove these papers and to support
his defense version. (Para - 54)

Criminal appeal dismissed . (E - 6)

List of Cases cited :-

1. H.P. Vs Jeet Singh , 1999 (38) ACC 550 SC

2. Nathuni Yadav & ors. Vs St. of Bihar & ors.
,1997 (34) ACC 576

3. Thaman Kumar Vs St. of Union Territory of
Chandigarh , 2003 (47) ACC 7

4. Brahm Swaroop & anr. Vs St. of U.P. , (2011)
6 SCC 288
5. Dalip & ors. Vs St. of Punj. , 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 St. ,2003 (46) ACC 581

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

1. These appeals emanate from the
common
judgment
and
order
dated
25.07.2015 passed by learned Sessions
Judge, Mau in Sessions Trial Nos. 110 of
2012 (State Vs. Rama Shankar and otehrs)
and 203 of 2013 (State Vs. Gaurishankar @
Bhuwar) arising out of Case Crime No. 828
of 2011 under Sections 307, 302, 324 read
with section 34, 352, 504, 506 IPC, Police
Station Haldharpur, District Mau by which
appellants
have
been
convicted
and
sentenced under Section 302/34 IPC with
life imprisonment and fine of Rs. 10,000/-
for each, in default of payment rigorous
imprisonment for a period of two months;
under Section 307/34 IPC with rigorous
imprisonment for the period of five years'
and fine of Rs. 2000/- for each, in default
of payment rigorous imprisonment for a
period of one month; under Section 324/34
IPC with rigorous imprisonment for a
period of one year for each; under Section
352 IPC with rigorous imprisonment for a
period of one month each; under Section
504 IPC with rigorous imprisonment of
three months' for each and under Section
506 IPC with rigorous imprisonment for a
period of one year for each which are to run
concurrently, therefore these appeals are
heard and being decided together.

2. The prosecution case in brief is that
on 06.11.2011 at 3.00 P.M. informant Anil
382 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar s/o Yodhan r/o Bilaujha (Banati),
Police Station Haldharpur, District Mau
alongwith his brothers Sunil, Pappu and
Arvind was cutting down the boundary line
of his field located beside Saiyad Baba in
SHEEVAN of Naseerabad Kala. His cousin
Rama
Shankar,
Surjeet
@
Loha,
Gaurishankar @ Bhuwar and their brotherin-law
Phoolbadan
came
there
and
assaulted them with sticks and spade.
Surjeet @ Loha was armed with spade and
others with sticks. Surjeet @ Loha exhorted
to kill them. They fell down on the ground
as a result injured-Sunil and Pappu became
unconscious. Informant and his brother
Arvind cried for help. Villagers came there.
Then accused-appellants fled away from
the spot but Pappu succumbed to injuries
and Sunil was brought to the hospital with
the help of villagers where he also
succumbed to injuries.

3. On the same day at 4.15 P.M.
informant Anil Kumar lodged the F.I.R.
at Police Station Haldharpur against
accused-appellants
Rama
Shankar,
Surjeet @ Loha, Gaurishankar @ Bhuwar
and Phoolbadan as Case Crime No. 828
of 2011 under Section 307, 302, 324,
352, 504, 506 IPC read with Section 34
IPC. Entry of F.I.R. was made in G.D.
Report No. 27 and chitthi majroobi of
injured Sunil Kumar was prepared and he
was sent to the hospital for treatment.
Investigation of the case was handed over
to Station Officer S.I. Indrajeet.

4. Injured Sunil
Kumar was
medically examined on the same day at
6.15 P.M. at District Hospital, Mau.
Following injuries were found on his
person:

I. Incised wound 9.5 cm x 1 cm
x bone deep on left parietal region of
skull, 8 cm above from left ear. Advised
for x-ray of skull.

II. Contusion 3 cm x 2 cm on
right occipital region of skull 11 cm post
to right ear. Advised for x-ray of skull.

III. Abraded contusion 3 cm x
2.5 cm on left side of forehead 2 cm from
left ear.

IV. Contused swelling 11 cm x
12 cm on dorsum of left hand including
fingers. Advised x-ray of left hand.

V. Abraded contusion 14 cm x 8
cm dorsum of right hand including
fingers. Advised x-ray of right hand.

VI. Lacerated wound 3 cm x 1.5
cm x 40 cm on left leg, 11 cm below from
left knee joint. Advised x-ray of left leg.

VII. Abrasion 2 cm x 1 cm on
front of left leg 3 cm above the injury no.
6. Advised x-ray of left leg.

VIII. Contusion with swelling 9
cm x 7 cm around the injury no. 6 and 7.
Advised x-ray of left leg.

IX. Contused swelling 9.5 cm x
5.5 cm on lateral aspect of left ankle
joint. Advised x-ray left ankle.

Opinion: all injuries KUO except
injury no. 3. Injury no. 3 is simple in
nature. Injury no. 1 caused by sharp object.
Other injuries caused by hard & blunt
object. Duration fresh. Patient admitted in
emergency.

On the same day Sunil Kumar
succumbed to injuries at District Hospital.

5. Investigating officer Indrajeet
alongwith S.I. Shri Ram Vishwakarma
arrived at the place of occurrence on the
same day at about 4.45 P.M. and got
prepared inquest report about deceased
Pappu and his dead body was sealed and
handed over to constable and Head
Constable Hari Ram with essential papers
for carrying the dead body to mortuary for
post-mortem.
1 All. Foolbadan Vs. State of U.P.
383

6. On 7.11.2011 inquest report of
deceased Sunil was also prepared by S.I
Shri Ram Vishwkarma and dead body was
sent for post-mortem.

7. On the same day autopsy of the
dead bodies of Pappu and Sunil Kumar was
done
and
post-mortem
reports
were
prepared by Dr. Mahendra Kumar Gupta.

8. The post-mortem report of
deceased Pappu shows that he was aged
about 18 years. Average built body. Eyes
and mouth closed. Rigor mortis was present
in lower extremitis. Ante-mortem injuries:-
(1) Lacerated wound 3 cm x 2 cm on
forehead right side just above eyebrow x
bone
deep
underlying
frontal
bone
fractured. (2) Lacerated wound 2 cm x 2
cm on bone of index finger of right hand x
bone deep.

In
internal
examination:
membranes and brain were found lacerated,
right & left lungs were pale, right chamber
was full and left chamber was empty, semi
digested food material 200 ml was present
in the stomach, fecal matter and gases were
present in small and large intestine, rectum
was partially loaded, gall bladder was half
filled weighing 11 gm, pancrease 300 gm,
spleen 250 gm, kidneys 200 gm, urinary
bladder was empty. Cause of death was
coma due to ante-mortem head injury.

9. The post-mortem report of
deceased Sunil Kumar shows that he was
aged about 22 years. Average built body.
Eyes and mouth closed. Rigor mortis was
present in all limbs. Other natural orifice
were NAD. Ante-mortem injuries:-(1)
Stitched wound left side skull after removal
9 stitch length 8 cm x width 1 cm x bone
deep, 8 cm above the left ear pinna
underlying
temporal
parietal
bone
fractured. (2) Stitched wound left side leg 4
cm below left side knee joint on removal of
stitch length 3 cm x width 1 cm x bone
deep. Underlying tibia fibula fractured. (3)
Stitched wound 1 cm x 1⁄2 cm x muscle
deep on right hand dorsal surface.

In
internal
examination:
membranes and brain were found lacerated.
Ribs cartilages pleura larynx were NAD.
Right & left lungs were NAD. Pericordium
was NAD. Right chamber was full and left
chamber was empty. Oesophagus was
NAD. Vocal cavity teeth 16/16. Semi
digested food contents about 200 ml in the
stomach. Small intestine and large intestine
were full with gases & fecal matter.
Rectum
was
partially
loaded.
Lever
weighing 1100 gm. Gall bladder was half
filled. Pancrease 250 gm. Spleen 250 gm.
Kidneys 300 gm. Urinary bladder was
empty. Cause of death was coma due to
ante-mortem head injury.

10. On 06.11.2011, Investigating
Officer Shri Indrajeet visited the site of
occurrence, he recovered a blood stained
spade and three sticks (lathies) from the
spot. Taking these items in his possession,
he sealed them and prepared the memo in
presence of witnesses. He also took plain
and blood stained soil from the spot where
incident took place and sent them to
forensic science laboratory for analysis. He
prepared the site plan and recorded the
statements of witnesses. Having collected
the evidence, he filed charge sheet against
appellants under Sections 307, 302, 324
read with Section 34, 352, 504, 506 IPC
before
the
court
of
Chief
Judicial
Magistrate, Mau.

11. The court concerned took
cognizance of the offence and provided
copies
of
papers
to
appellants
in
384 INDIAN LAW REPORTS ALLAHABAD SERIES
compliance of Section 207 Cr.P.C. The
case was committed for trial to the court of
session against appellants Rama Shankar,
Gauri @ Bhuwar and Phoolbadan.

12. Accused-Surjeet @ Loha was
found to be juvenile, therefore, case against
him was sent to Juvenile Justice Board for
inquiry.

13. The court of Session (hereinafter
referred to as 'Trial Court') framed charges
against appellants under Sections 307, 302,
324 IPC read with Section 34 IPC and 352,
504, 506 IPC. Charges were read over to
appellants. They did not plead guilty but
denied and claimed for trial.

14. In support of its case prosecution
examined P.W.1 Anil Kumar (informant).
P.W.2 Arvind as witness of fact. P.W.3 Dr.
B.B. Singh who examined injured/deceased
Sunil Kumar and prepared injury report.
P.W.4 Dr. Mahndra Kumar Gupta who
conducted autopsy and prepared postmortem reports relating to deceased Pappu
and Sunil Kumar. P.W.5 S.I. Indrajeet who
investigated the case and prepared the
charge sheet. P.W.6 Head Constable
Rajendra Prasad Yadav who lodged the
F.I.R. on the basis of tahreer (information)
given by informant and made G.D. Entry.
P.W.7 constable Siddheshwar Pandey as
parokar.

15. After conclusion of prosecution
evidence statements of accused-appellants
were recorded under Section 313 in which
they denied the prosecution version and
said it to be false.

16.

Appellants
were
given
opportunity for defence. They examined
D.W.1 Kamla Ram, D.W.2 Chhangur
Rajbhar and D.W.3 Biggu and in defence
they filed some papers form 55-kha to 58kha through list of 54-kha.

17. Thereafter, arguments were heard
for both the parties prosecution as well as
appellants and they were found guilty as a
result they were convicted and sentenced as
aforesaid by judgment and order dated
25.07.2015 under challenge in these
appeals before this Court.

18. We heard Mohd. Monis, learned
counsel for appellants and Shri Ravi
Prakash, learned A.G.A. for the State and
perused the record.

19. Learned counsel for the appellants
submitted that informant lodged the first
information report after consultation which
is ante-time. They have been falsely
implicated. There is no motive to murder
two
real
brothers
by
their
cousin
(appellants) and brother-in-law. P.W.1 and
P.W.2 are real brothers. They are relative
and
interested
witnesses.
No
any
independent witness has been examined by
the prosecution. P.W.1 is handicapped, he
cannot reach the site of occurrence by
jumping four feet high boundary wall of the
field, so his presence and testimony
becomes suspicious. P.W.2 is not reliable
because he is not able to know whereabouts
of the place of occurrence. Injuries have
been said to be caused with spade which
was in the hands of accused-Surjeet @
Loha who has been declared juvenile. So,
these accused-appellants cannot be made
liable for that. The injuries caused to
deceased persons may happen by fall on
edge of spade as opined by doctor, it
creates
doubt.
Accused-appellant
Phoolbadan
was
out
in
relation
to
employment. Inquest report has also not
been testified by the witnesses. In this way
whole prosecution story is not believable
1 All. Foolbadan Vs. State of U.P.
385
and trial court has erred in making proper
appreciation of evidence on record. It has
recorded the conviction and sentence only
on the basis of surmises and conjectures
which is liable to be set aside. Thus,
accused-appellants are requested to be
acquitted.

20. Learned A.G.A. opposed the
argument advanced by learned counsel for
appellants and submitted that there is no
law which makes relative witness unworthy
of credit. F.I.R. is not ante-time. There is
no contradictions in the witness account.
This is a case of direct evidence so absence
of motive is of no effect. Informant and
accused-appellants belong to the same
family & village. Therefore, no person of
the village dare to come as witness but
testimony of witnesses inspires confidence.
There is no iota of suspicion. Learned Trial
Court has rightly convicted and sentenced
to appellants for the charges, therefore,
these appeals are liable to be dismissed.

21. From the submissions made by
learned counsel for the parties and perusal
of record, the following question emerge
for
consideration
before
this
Court.
Whether appellants are proved to be
responsible for causing injuries to the
deceased persons which later on, proved
fatal to them and also as to whether the
F.I.R. is anti-time; motive is absent;
witnesses are relatives and credibility of
their account; case of defense that deceased
persons died of falling from a tree in which
members of their family got monetary gain
from
the
Government
and
accused/appellant Phoolbadan was not
present at the time of occurrence but he
was working for his livelihood in Benglore.

22. Before we deal with the
contentions raised by learned counsel for
the appellants, it will be convenient to take
note of the evidence which has been
adduced by the prosecution.

23. PW-1 Anil Kumar has deposed
that on 06.11.2011 at about 3 o'clock, he
alongwith his brothers Sunil, Pappu and
Arvind was cutting down the boundary line
of
his
field.
Meanwhile
his
cousin
Ramashankar,
Sujit
@
Loha,
Gauri
Shankar @ Bhunwar and Phoolbadan
assailed with lathi, danda and spade. Sujit
was equipped with spade and others with
lathi. Sujit incited to kill. They all beat
Sunil and Pappu with the help of lathi,
danda
and
spade.
Injured
became
unconscious then accused/appellants ran
towards Arvind who was crying for help.
Anyhow he managed to escape and
informed the villagers who came there and
appellants went away. Pappu succumbed
injuries and Sunil was groaning due to
injuries and was crying to rescue him. With
the help of villagers Arvind brought him to
the District Hospital where he also
succumbed to injuries at 6:45 P.M.

24. PW-2 Arvind has deposed that
occurrence took place at 3:00 P.M. on
06.11.2011. At the time of occurrence, he
alongwith his brothers Anil, Sunil & Pappu
was cutting down the boundary line of his
field in the Siwan at Naseerabad Kalan.
After
a
while
appellants
namely
Ramashankar,
Sujit
@
Loha,
Gauri
Shankar @ Bhunwar and Phoolbadan
having lathi, danda and spade came there.
Sujit @ Loha exorted to kill and all the
appellants started assaulting Sunil Kumar
and
Pappu.
Sunil
Kumar
became
unconscious and Pappu died on the spot.
Anyhow he escaped and informed in the
village. Villagers came on the spot then
accused persons went away while abusing.
He brought Sunil Kumar to District
386 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital where he succumbed to injuries at
6:45 P.M.

25. Both these witnesses have been
put through grueling cross-examination but
they have categorically stated the names of
these
four
accused/appellants
for
committing the murder of Pappu and Sunil
Kumar. They have never said that they
were not present on the spot though there
are some contradictions in their testimony
but they are of cosmetic nature so of no
use.

26. There is no enmity between the
parties. They belong to near relation. There
is no dispute about identification of
appellants. Occurrence took place at 3
o'clock in the day time. Appellants have
also not disclosed any enmity with the
informant as well as with prosecution
witnesses which might adversely affect
their reliability and become an excuse for
implicating them falsely while absolving
real culprits.

27. There is not even an iota of
evidence on record which may even
remotely suggest that PW-1 and PW-2 had
any grouse against the appellants for any
cause to implicate them falsely. In our
opinion the evidence on record clearly
establishes the case of prosecution against
the appellants beyond any shadow of doubt.

28. Injuries on the person of deceased
Pappu and Sunil Kumar were caused by
spade, lathi and danda as stated by PW-1
and PW-2. Exibit Ka-2 is injury report of
deceased Sunil Kumar which shows
multiple injuries on his person. PW-3 Dr.
B.B. Singh has proved the injuries and told
that injury no.1 was caused by some sharp
edged weapon and others were caused by
some hard and blunt object. He also opined
that injury no.1 might be caused with
gadasa and others with lathi, danda. All the
injuries were caused at about 3:00 P.M. on
06.11.2011. PW-4 Dr. Mahendra Kumar
Gupta conducted post-mortem of the dead
body of the deceased Pappu and Sunil
Kumar. He stated that on the person of
Pappu there was lacerated wound 3x2 cm
bone deep on head above right side eye,
frontal bone was fractured, other lacerated
wound 2x2 cm x bone deep was on the base
of index finger in right hand. Cause of
death was ante-mortem injury on the head.
He also opined that all these injuries might
have been caused with lathi, danda and
spade or by sharp edged weapon at about
3:00 P.M. on 06.11.2011. Likewise on the
body of Sunil Kumar, he found temporal
and parietal bone fractured. On left leg 4
cm below knee joint there was fracture in
tibia and fibula bones. He opined that cause
of death was coma as a result of antemortem head injury and all the injuries
might have been caused on 06.11.2011 at
about 3:00 P.M. by lathi, danda and spade
like sharp objects.

29. In this way injuries found on the
body of the deceased Pappu and Sunil
Kumar are proved to have been caused with
lathi, danda and spade at about 3:00 P.M.
on 06.11.2011 and it corroborates the
manner of causing injuries resulting into
death as stated by PW-1 and PW-2. Thus,
the eye witnesses account finds complete
corroboration from the medical evidence on
record.

30. There is no any inordinate delay
in lodging the F.I.R. Occurrence took
place at 3:00 P.M. and F.I.R. was lodged
at 4:15 P.M. The distance between police
station and village where the incident
took place is 10 kms, therefore, F.I.R. is
prompt.
1 All. Foolbadan Vs. State of U.P.
387

31. PW-5 Sub-Inspector, Indrajeet
Singh has proved investigation of the case.
Exibit Ka-5 & Exibit Ka-6 are fard
(recovery memos) of weapons lathi, danda
and spade used in the commission of crime.
He has also proved the bundles containing
boxes of blood stained and plain soil.
Exibit Ka-22 is report from Forensic
Science Laboratory where lathi, danda and
spade, blood stained and plain soil was sent
for analysis and blood stains were also
found on them. It proves that lathi, danda
and spade were used in commission of
crime and place of occurrence was the
same as stated by PW-1 and PW-2.

32. It has been argued that PW-1
Anil Kumar has expressed in his crossexamination that he got tehrir written by
Ashwani Kumar who met him at 6:00
P.M. on the place of occurrence but time
of lodging the F.I.R. has been shown to
be at 4:15 P.M. which is not possible. It
clearly shows that F.I.R. was lodged antetime. Not only this but PW-2 has also
made similar statements.

33. In this regard the time
mentioned in the F.I.R. is 4:15 P.M. when
it was lodged at the police station on the
basis of tehrir given by informant. G.D.
Entry also shows the time of lodging the
F.I.R. as 4:15 P.M. On inquest report of
deceased Pappu Exibit Ka-11 time of
lodging the F.I.R. has been mentioned by
Sub-Inspector, Ramji Vishwakarma as
4:15 P.M. He has started inquest at 4:45
P.M. and concluded it at 5:00 P.M. This
inquest report has been prepared in
presence of witnesses Dashrath, Manoj,
Vijay Kumar, Sunil Kumar and Anil
Kumar.
Chitthi
Majrubi
for
injured/deceased Sunil Kumar was also
prepared by Head Constable at police
station concerned at the same time when
F.I.R. was lodged and Sunil Kumar has
been medically examined at about 6:20
P.M. at District Hospital. Medical Report
prepared by the doctor is Exibit Ka-2
which is written on the back side of
Chitthi Majrubi. It infers that F.I.R. was
lodged at police station prior to 6:20 P.M.
F.I.R. as well as medical report both
cannot be said to be ante-time because
Medical Officer might have no interest in
preparing such report anti-time. In this
way, the submission made by learned
counsel for the appellants that tehrir was
got written by Ashwani Kumar after 6:00
P.M. and F.I.R. was lodged ante-time i.e.
at 4:15 P.M. does not get support.
Discrepancies in the statements of PW-1
and PW-2 in this regard are immaterial
and negligible. Thus, argument made by
learned counsel that F.I.R. is ante-time is
not sustainable.

34. Learned counsel has also drawn
attention of this Court towards the absence of
motive to commit murder. He urged that the
prosecution has failed to prove any motive on
the part of the appellants to commit the
crime.

35. It is true that there is no mention
of motive in F.I.R. about the commission of
crime. Even PW-1 and PW-2 have also not
disclosed anything that became the root
cause of committing murder by the
appellants.
The
instant
cause
of
commission of crime cannot be said to be
as cutting down of boundary line of their
field by the deceased persons but there is
no such principle or rule of law that where
the prosecution fails to prove 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
388 INDIAN LAW REPORTS ALLAHABAD SERIES
finding of guilt can safely be recorded even
if the motive for the commission of crime
has not been proved.

36. 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 it's corollary is not that
no
offence
was
committed
if
the
prosecution failed to prove the precise
motive of the accused to commit it as it is
almost an impossibility for the prosecution
to unravel full dimension of the mental
deposition of an offender towards the
person whom he offended.

37. 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 a murders have been committed
without any known or prominent motive
and it is quite possible that the aforesaid
impelling
factor
would
remain
undiscoverable.

38. In our opinion, in the facts and
circumstances of the case the absence of an
evidence on the point of motive cannot
have any such impact so as to discard the
other reliable evidence available on record
which certainly establishes the guilt of the
accused. 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
aforementioned
cases.

39. The next limb of argument of
learned counsel for the appellants is that the
prosecution had examined highly interested
and relative witnesses and they have not
produced any independent witness in
support of its case. No doubt the witnesses
of fact examined in the case are real
brothers but both of them are clearly related
to the deceased. Relationship itself is not a
ground to reject the testimony of witness,
rather he would be last person to leave the
real culprit and falsely implicate any other
person.

40. In the case of Brahm Swaroop
and another vs. State of U.P. (2011) 6
SCC 288 the Hon'ble 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."

41. The 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.

42. In Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202, the Hon'ble Apex
Court observed in Para No.14
1 All. Foolbadan Vs. State of U.P.
389

"but it would, we think, be
unreasonably to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. The
mechanical rejection of such evidence on
sole ground that it's partisan would
inveriably lead to failure of justice. No hard
and fast rule can be laid down as to how
much evidence should be appreciated.
Judicial approach has to be cautious in
dealing with such evidence; but the plea
that such evidence should be rejected
because it's partisan cannot be accepted as
correct.

43. It is common knowledge that
village
life
is
faction
ridden
and
involvement of one or the other in the
incidents is not unusual. One has also to be
cautious about the fact that wholly
independent witnesses are seldom available
or are otherwise not inclined to comeforth.
Lest they may invite trouble for themselves
for future. Therefore, relationship of eyewitnesses inter se, cannot be a ground to
discard their testimony. There is no reason
to suppose the false implication of the
appellants at the instance of the eyewitnesses. It would also be illogical to
think that witnesses would screen the real
culprits and substitute the appellants for
them.

44. This Court has also made such
observations in Para No.14 of Rameshwar
and others vs. State 2003 (46) ACC 581.

45. Learned counsel for the appellants
also argued that deceased persons were
climbing on a tree and fell down on the
spade kept thereunder as a result sustained
injuries ensuing their death for which
compensation was given to the dependents
by the Government but owing to enmity
they have been implicated in this case. To
support this argument he has examined
DW-3 Biggu who has stated in his
examination-in-chief that there was no any
dispute or marpeet between Ramashankar,
Anil,
Pappu
and
Sunil
Kumar
on
06.11.2011. In cross-examination he has
stated that Sunil Kumar and Pappu were
not murdered but they died of falling from
a tree. They fell down from a tree at 12
o'clock in the day. He further stated that the
tree from which Pappu and Sunil Kumar
fell down is located at the site of Sayed
Baba. They climbed on the tree for
breaking woods and they fell down, he did
not go there to rescue them. In the light of
statement made by this witness, when we
consider the evidence on record, it appears
that the statements of appellants under
Section 313 Cr.P.C. never spoke about such
defense. Site plan Exibit Ka-7 shows that
the site of Sayed Baba is located in the
south at about 20 steps far from the place
where the dead body of the deceased Pappu
and injured Sunil Kumar were found lying
as indicated by A & B. In between the two
places
there
are
bamboo
shrubs
in
continuous like boundary wall. It can not
be possible for the dead person and so
grieviously injured person to go away from
the place at Sayed Baba to the places A &
B. Further, the witness said himself to be
present in his field till 4:30 P.M. which was
10 to 15 steps far from the place of incident
but he had not disclosed as to how dead
body of deceased Pappu and injured Sunil
Kumar reached on the place A & B. In
addition to this no broken woods were
found anywhere around the place of
occurrence whether that be place A & B or
near Sayed Baba site. In this regard no
question
has
been
put
before
the
Investigating Officer on the part of
appellants during his cross-examination
before the trial Court. In this way the
390 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of DW-3 is not reliable but
appears to be totally false.

46. In this regard PW-1 and PW-2
have categorically stated before the Court
that appellants assaulted Pappu and Sunil
Kumar with lathi, danda and spade. Sujit @
Loha used spade. Medical report Exibit Ka2 shows 8 injuries on the person of
deceased Sunil Kumar; an incised wound
Injury no.1 was found on the skull, 8 cm
above left ear. Injury No.2 was on the right
occipital region of skull; Injury No.3
abraded contusion was on the left side of
forehead. Injury No.4 contused swelling on
left hand. Injury No.5 abraded contusion on
right hand including fingers. Injury No.6
lacerated would on left leg 11 cm below
knee joint. Injury No.7 abrasion on left leg.
Injury No.8 contusion with swelling around
Injury Nos.6 & 7. Injury No.9 contused
swelling on left ankle joint. Except Injury
No.3
all
injuries
were
kept
under
observation. Injury No.1 was caused by
sharp edged weapon. Post-mortem report of
deceased Sunil Kumar is Exibit Ka-4 in
which ante-mortem injury shows fracture
of parietal bone. Tibia and fibula in left leg
was also fractured. Likewise post-mortem
report of deceased Pappu shows fracture of
frontal bone.

47. PW-3 Dr. B.B. Singh has stated
that injury no.1 might be caused with sharp
edged weapon and other injuries with lathi
and danda. In his cross-examination he has
expressed possibility that injury no.1 might
be caused by falling on sharp edged
weapon and likewise Injury no.2 to 9 might
have also been caused by falling on the
ground. PW-4 Dr. Mahendra Kumar Gupta
who conducted post-mortem has stated in
his cross-examination that Injury no.1 on
the person of deceased Pappu might be
caused by striking several times. He had
also denied the possibility of death of
deceased Pappu and Sunil Kumar by falling
from any hill or highly situated place.

48. The nature of injuries on the
person of Sunil Kumar shows that there are
injuries all over his person. Usually a man
falling from a free will get injury of
fracture either on head or on legs but
injuries (fracture) on both sides are not
possible.

49. Exhibit Ka-7 is site plan.
Investigating Officer has shown the place
of occurrence as A & B where deceased
Pappu and Sunil Kumar were found lying.
There is no any tree on this place. There are
trees of guavas, mullberries, neem and
mangoes but far from that place. In this
point of view also the arguments of learned
counsel for the appellants is of no
substance.

50. Learned counsel for the appellants
has also argued that appellants Phoolbadan
was not present on the spot at the time of
occurrence but he was out in relation to his
livelihood and was living at Benglore.

51. In the statement of Phoolbadan u/s
313 Cr.P.C. he has not made such
statement. Suggestion in this regard has
been placed before PW-1 but he has never
acceded the absence of Phoolbadan. During
his cross-examination he has asserted that
appellant Phoolbadan was present with
other appellants at the time of incident.
PW-2
Arvind
has
also
denied
the
suggestion regarding appellant Phoolbadan
as not being present at the place of
occurrence.

52. In defense appellants have
examined DW-1 Kamla Ram who has
stated that from 2008 to 2011 i.e. till
1 All. Vijay Singh Vs. State of U.P.
391
December 2011 Phoolbadan worked at
Benglore with him. For a period of one
year Phoolbadan lived with him in a room
thereafter Phoolbadan took his family and
began to live in adjacent room. They, both,
worked together. He got Phoolbadan
admitted in hospital when he fell ill. At the
time of coming home Phoolbadan fell ill
and doctor advised him to take rest. He
came back home in the last of month
January,
2011.
The
hospital
where
Phoolbadan got admitted was called
Municipal Hospital.

53. DW-2 Chhangur Rajbhar who was
Village Pradhan of the village Pahdeva Jeet
stated that on 06.11.2011 Phoolbadan was
not in the Village Kharka. He had been
living in Benglore from seven to eight
months before and was working there. He
came Kharka in the month of January,
2012. He has been implicated falsely in this
case. His character is very good. In crossexamination he told that he is resident of
village Kharka where Phoolbadan also
lives. He was told by father of Phoolbadan
that he is to witness in the case of
Phoolbadan.

54. On considering the statements
made by DW-1 & DW-2, it appears that
there is nothing to support the defense
version as stated by them. They have not
narrated the specific place of work where
he was employed. No any job card/duty
card/attendance sheet has been filed to
support his presence at that specific place at
the time of incident. No any admission slip
of hospital has been filed to show that on
the date of occurrence appellant was not
present. Even appellant Phoolbadan has not
made any statement in this regard u/s 313
Cr.P.C. Paper nos. 58-kha/1 to 58-kha/4 are
prescriptions of medicines but language
used therein is not legible. Paper no. 59-kha
is medical certificate in which appellant has
been shown to be suffering from entric
fever but the name & seal of the issuing
authority
is
not
legible.
No
any
Authority/Officer has been examined to
prove these papers and to support his
defense version. So in lack of any such
authentic evidence on record the bald
statements made on behalf of appellant are
of no help to him.

55. Having given our considerations
to the submissions made by learned counsel
for the parties, we are clearly of the opinion
that the prosecution has succeeded in
establishing its case against the appellants
beyond any shadow of doubt and the view
taken by learned Sessions Judge is right.

56. In the result the appeals lack merit
and are hereby dismissed.

57. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)01ILR A391
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 7704 of 2007
with
Criminal Appeal No. 7686 of 2007

Vijay Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party