# Guru Baksh Singh v. State

- **Citation:** (2019) 1 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guru-baksh-singh-v-state-44495
- **Pages:** 10

## Headnote

A. Indian Penal Code, 1860-Section 302Conviction-Accused/Appellant Continuously
inflicted blows of sword on victim who
sustained serious injuries and succumbed
to death on spot-medical evidence shows
that the death of the victim might have
occurred due to ante-mortem injuries at
the time as alleged by prosecutionaccused/appellant in his statement under
section 313 criminal procedure code,1973
has given reply that witnesses gave false
statements but he did not suggest
anything as to why PW1, PW2, CW1,CW3,
CW4 and CW5 gave false statement
against him. Therefore, there cannot be
any hesitation that accused committed
murder
by
causing
several
injuriesconviction
order
confirmed-Appeal
dismissed.

Held: Para 2, 22, 43 and 44

Case Law Discussed: -
(2012) 3 SCC 196, (2007) 14 SCC 150
(2002) 9 SCC 537, (2012) 4 SCC 124
AIR 2009 SC 152, AIR 2009 SC 331
(2009) 11 SCC 334, (2014) 7 SCC 323
(1990) 4 SCC 731, (2005) 5 SCC 554
(1996) 2 SCC 175, (2010) 12 SC 287 (E-6)

## Text

890 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid complaint case is, hereby,
set-aside.

15. The present criminal appeal
is, accordingly, allowed.

16. The learned Magistrate shall
issue notice to both the sides to appear on
a particular date fixed and would proceed
further from the stage where it has
reached before the order of acquittal was
passed
and
decide
the
case
as
expeditiously
as
possible
preferably
within a period of six months from the
date of production of certified copy of this
order, if there is no legal impediment.

17.

Office
is
directed
to
communicate the order to the court
concerned.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4657 OF 2003

Guru Baksh Singh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
In
Preson,
From
Jail,
Sri
Noor
Mohammad, Sri Pratap Kanchan Singh, Sri
Shiv Vilas Mishra (A.C.)

Counsel for the Opposite Party:
Sri Rishi Chadha (A.G.A.)

A. Indian Penal Code, 1860-Section 302Conviction-Accused/Appellant Continuously
inflicted blows of sword on victim who
sustained serious injuries and succumbed
to death on spot-medical evidence shows
that the death of the victim might have
occurred due to ante-mortem injuries at
the time as alleged by prosecutionaccused/appellant in his statement under
section 313 criminal procedure code,1973
has given reply that witnesses gave false
statements but he did not suggest
anything as to why PW1, PW2, CW1,CW3,
CW4 and CW5 gave false statement
against him. Therefore, there cannot be
any hesitation that accused committed
murder
by
causing
several
injuriesconviction
order
confirmed-Appeal
dismissed.

Held: Para 2, 22, 43 and 44

Case Law Discussed: -
(2012) 3 SCC 196, (2007) 14 SCC 150
(2002) 9 SCC 537, (2012) 4 SCC 124
AIR 2009 SC 152, AIR 2009 SC 331
(2009) 11 SCC 334, (2014) 7 SCC 323
(1990) 4 SCC 731, (2005) 5 SCC 554
(1996) 2 SCC 175, (2010) 12 SC 287 (E-6)

(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. This Jail Appeal has been filed by
accused-appellant Guru Baksh Singh
through Senior Superintendent Central
Jail, Agra against judgement and order
dated 03.08.2002 passed by Additional
Sessions Judge, Court No. 8, Meerut in
Sessions Trial No.552 of 1999 (State v.
Guru Baksh Singh) under Section 302
IPC, Police Station Hastinapur, District
Meerut, convicting accused-appellant and
sentencing
him
to
undergo
life
imprisonment and fine Rs. 1000/- and in
default of payment of fine, six months
additional imprisonment.

2. Factual matrix of the case as
emerging from First Information Report
(hereinafter referred to as "FIR") as well
as material placed on record is as follows.

3. A written report Ex. Ka-1 dated
20.3.1999 was presented by PW-1,
1 All. Guru Baksh Singh Vs. State
891
Rishipal Singh, Chowkidar of village,
getting it scribed by one Rakesh Kumar,
in Police Station Hastinapur, District
Meerut, alleging that on 19.3.1999 in the
evening, Guru Baksh Singh, brother-inlaw (Sala) of one Jaswant Singh, along
with Jeet Singh and Teerath Singh came
to house of Jaswant Singh at village
Sirjepur Patelnagar and after having
dinner, they had slept in the house of
Jaswant Singh. Next morning, when PW1 was crossing river Ganga, saw that
accused Guru Baksh Singh was abusing
his companion Jeet Singh Sardar and
saying that he had to see him that day.
Thereupon, Teerath Singh pacified them.
Thereafter, Jeet Singh (victim) went to
take bath. At about 9:00 AM, suddenly,
Guru Baksh Singh inflicted many sword
blows on Jeet Singh and said that he
would not leave him alive. On alarm
raised by victim, he and Teerath Singh,
rushed to save him but Guru Baksh Singh
continuously inflicted blows of sword on
victim, as result of which Jeet Singh
succumbed to injuries and fell into water.
He also raised alarm, on which many
people of Sirjepur working in the field,
came there. On seeing them coming, Guru
Baksh Singh ran away towards western
side, but they chased. Guru Baksh Singh
was apprehended after applying some
force at around 9.15 AM in the jungle of
Sirjepur by PW-1 and other persons of
village. Dead body of Jeet Singh was kept
on the bank of river Ganga by Harvansha
(brother of PW-1 and villagers).

4. On the basis of Written Report
Ex. Ka-1, PW-7, the then Constable Clerk
Vijay Pal Singh registered a chick F.I.R.
Ex.Ka-7 as Case Crime No.50 of 1999,
under Section 302 IPC against accused.
An entry was made in general diary, copy
whereof is Ex. Ka-8.

5. PW-5 Ghanshyam Lal Srivastava,
on the direction of PW-8, held inquest
over the dead body of deceased Jeet
Singh, prepared inquest report Ex.Ka-5
and other relevant papers relating thereto.

6. PW-4 Dr. V.P. Gupta conducted
autopsy over the dead body of deceased
Jeet Singh on 21.3.1999 at about 6:00 PM
and prepared post-mortem report Ex.Ka-4
expressing his opinion that death of
victim was possible on 20.3.1999 at about
9:00 AM i.e. one and half days prior to
post-mortem
due
to
shock
and
haemorrhage on account of ante-mortem
injuries.
Doctor
found
ante-mortem
injuries on the person of deceased as
under :-

(i) Incised wound left side head
5cm x 1 cm x bone cut 8 cm. It is above
left ear.

(ii) Incised wound middle side 6
cm x 1 cm. It is 7 cm above to left ear
bone cut.

(iii) Incised wound on head of 7
cm x 1 cm x bone deep.

(iv) Incised wound on right
forehead 4 cm x 1 cm x bone deep. It is 3
cm above to right eyebrow.

(v) Incised wound right hand 2
cm x 1 cm x bone deep. It is 6 cm above
to right ear.

(vi) Incised wound on left side
neck 8 cm x 1 cm x muscle deep. It is 3
cm below to left ear.

(vii) Incised wound on neck left
side 16 cm x 2 cm x bone deep neck
vessel cut with C3 Fracture (cut).

(viii) Abrasion on left shoulder.

(ix) Incised wound left back
above and 11 cm x 1 cm x bone deep
scapula left cut.

(x) Incised wound on left upper
arm 5 cm x 1 cm x muscle deep at middle
and out.
892 INDIAN LAW REPORTS ALLAHABAD SERIES

(xi) Incised wound left forearm
5 cm x 1 cm x bone cut on extensor side
left forearm. It is 6 cm above to left wrist
both lower cut.

(xii) Incised wound on left wrist
4 cm x 2 cm x bone deep on extensor of
left arm.

(xiii) Incised wound right hand
side 11cm x 2 cm x bone cut, 3rd, 4th,
and 5th metacarpal cut.

(xiv) Contusion on left chest
upper and out.

7. PW-8 Rajvir Singh commenced
investigation; visited spot; prepared site
plan Ex.Ka-9; collected simple and blood
stained earth from spot; prepared Fard
Ex.Ka-10;
recorded
statement
of
witnesses; took sword allegedly used in
commission of offence in his possession;
prepared memo Ex.Ka-12; and after
completion of investigation, submitted
charge-sheet Ex.Ka-18 against accusedappellant-Guru
Baksh
Singh
under
Section 302 IPC in the Court of Chief
Judicial Magistrate who took cognizance
of the offence.

8. Case, being exclusively triable by
Court of Sessions, was committed to
Sessions Court for trial.

9. Trial Court, framed charge against
accused-appellant Guru Baksh Singh
under Section 302 IPC on 01.09.1999
which reads as under :

vkjksi

eSa] fnus'k xqIrk] v"Ve vij ftyk ,oa
l= U;k;k/kh'k esjB] tuin esjB vki vfHk;qDRk
xq:cD'k flag ds fo:} fuEu vkjksi yxkrk gwW&

1& ;g fd fnukad 20-3-99 bZ0 dh le;
djhc 9 cts lqcg LFkku taxy xzke fljtsiqj ftyk
esjB esa vUrxZRk Fkkuk gfLrukiqj esa vkius thr flag
dks /kkjnkj gfFk;kj ryokj ls ekjdj pksV igq¡pkdj
mldh gR;k dkfjr dhA vkidk ;g d`R; Hkk0na0la0
dh /kkjk 302 ds vUrxZRk n.Muh; vijk/k fd;kA tks
bl U;k;ky; ds izlaKku esa gSA

,rn~ }kjk vkidks eSa funsZ'k nsrk gw¡ fd
mDRk vkjksiksa ds fy;s vkidk fopkj.k mDRk U;k;ky;
}kjk fd;k tkosA

Charge

I, Dinesh Gupta, VIII Additional
District & Sessions Judge, Meerut,
District- Meerut hereby charge you
accused Gurubaksh Singh with following
charges :-

First - That on 20.3.99, at about
9 o'clock in the morning you committed
the murder of Jeet Singh by assaulting
and causing injuries to him by a sharp
weapon- sword, in the jungle of village
Sirjepur, District- Meerut falling under
the Police Station- Hastinapur. This act
committed by you is an offence punishable
under Section 302 I.P.C. and is in the
cognizance of this court.

I do hereby direct that you be
tried by the said Court for the said
charges.
(English Translation By Court)

10. Accused-appellant pleaded not
guilty and claimed to be tried.

11. In order to substantiate its case,
prosecution has examined as many as
eight witnesses and Court itself recorded
statements of CW-1 Kanval Jeet Singh,
CW-2 Brij Pal Singh, CW-3 Rishi Pal
Singh son of Lal Singh, CW-4 Ajab
Singh, CW-5 Nandu, and CW-6 Rakesh.

12. PW-1 Rishi Pal son of Kundan,
PW-2 Harbansh, CW-1 Kanval Jeet
Singh, CW-3 Rishi Pal Singh son of Lal
Singh, CW-4 Ajab Singh and CW-5
Nandu are witnesses of fact. Remaining
witnesses PW-3 Jagpal Singh, PW-4 Dr.
V.P. Gupta, PW-5 S.I. Ghanshyam Lal
1 All. Guru Baksh Singh Vs. State
893
Srivastava, PW-6 Constable Omvir Singh,
PW-7 Constable Vijay Pal Singh, PW-8
S.I. Rajveer Singh, CW-2 Brij Pal Singh
and CW-6 are formal witnesses.

13. PW-1 Rishi Pal is Informant and
eye witness and PW-2 Harbansh, CW-1,
CW-3, CW-4 and CW-5 are also eye
witnesses of the incident who supported
prosecution case.

14. PW-3 Constable Jagapal Singh
proved Ex.Ka-2 and 3, PW-4 Dr. V.P. Gupta
conducted autopsy over the dead body of
deceased and prepared post mortem report,
PW-5 S.I. Ghanshyam Lal Srivastava held
inquest and prepared inquest report, PW-6
Constable Omvir Singh is witness of inquest,
PW-7 Constable Vijay Pal Singh registered
Chick F.I.R. as Crime No. 50 of 1999 and
prepared G.D., PW-8 S.I. Rajvir Singh is
Investigating Officer of case and submitted
charge sheet against the accused.

15. Statement of accused-appellant
under Section 313 Cr.P.C. was recorded by
Trial Court explaining all evidence and other
incriminating circumstances. Accused denied
prosecution case in toto and claimed false
implication on account of enmity in the
present case. Accused-appellant chose not to
adduce any documentary or oral evidence in
support of his defence.

16. Sessions Trial ultimately came
to be heard and decided by Additional
Sessions Judge, Court No.8, Meerut. Trial
Court, after hearing learned counsel for
parties and appreciating entire evidence
on record, found accused-appellant guilty
and convicted him as stated above.

17.

Feeling
aggrieved
and
dissatisfied with the impugned judgement
and order of conviction, appellant has
filed this appeal from Jail through Jail
Superintendent.

18. We have heard Sri Shiv Vilas
Mishra, learned Amicus Curiae appearing for
appellant, Sri Rishi Chaddha, learned A.G.A.
for State and have travelled through the entire
examination
record
with
the
valuable
assistance of learned counsel for parties.

19. Learned Amicus Curiae appearing
for appellant has assailed conviction of
accused-appellant,
advancing
his
submissions in the following manner :

(i)
Witnesses
produced
by
prosecution are not reliable.

(ii) There is no strong motive to
accused-appellant to commit murder of
Jeet Singh.

(iii) Entire witnesses of fact
have not been produced by prosecution,
therefore, presumption under Section 114
(g) Indian Evidence Act goes against him.

(iv) Medical evidence is not
compatible with ocular version.

(v)
There
are
major
contradictions in evidence of witnesses
rendering prosecution case doubtful.

(vi) Prosecution has not proved
its case beyond reasonable doubt and
Trial Court did not appreciat the evidence
in
right
perspective
and
wrongly
convicted the accused. Accused-appellant
is entitled to benefit of doubt and liable to
be acquitted.

20. Learned AGA for State opposed the
submissions and stated that accused-appellant
is named in F.I.R.; it is a case of day light
murder; Independent witnesses have supported
prosecution case. Apart from that, CW-1
Kamal Jeet Singh real nephew (Bhanja of
accused-appellant) has given statement against
him whereas accused has not pointed out any
894 INDIAN LAW REPORTS ALLAHABAD SERIES
reason as to why he (CW-1) was giving
evidence against him. It has further been
argued by learned AGA that blood stained
sword has also been collected by police and
accused was apprehended by public at some
distance from the seen of occurrence. Trial
Court has rightly convicted accused-appellant
and sought dismissal of appeal.

21. Although time, date, place and nature
of injuries as well as assassination of victim
could not be disputed from the side of accusedappellant but according to Advocate for
accused-appellant, he is not responsible for
causing death of Jeet Singh. Even otherwise,
from the evidence of prosecution, time, date,
place and murder of Jeet Singh stand
established.

22. Only question remains for
consideration is, "whether accused-appellant
committed murder of Jeet Singh and Trial
Court has rightly convicted accused-appellant
for causing murder of Jeet Singh, an offence
punishable under Section 302 I.P.C. or not"?

23. Now, we may proceed to consider
rival submissions of learned counsel for the
parties and, briefly, evidence of prosecution
and some important decisions.

24. PW-1 Rishi Pal, village
Chowkidar has deposed that accusedappellant Guru Baksh Singh had come to
the house of Jaswant Singh along with
Teerath Singh and Jeet Singh and stayed
in the night. On the day of incident, he
was going across river Ganga to peel
sugarcane; when he reached near Ganga,
accused-appellant Guru Baksh Singh was
abusing in filthy language to Jeet Singh
and saying that he would see him that
day; Teerath Singh pacified Guru Baksh
Singh; thereafter victim Jeet Singh started
bathing
whereupon
accused-appellant
Guru Baksh Singh started assaulting Jeet
Singh with sword at 9:00 AM; victim Jeet
Singh raised alarm (Bachao Bachao);
PW-1 and Teerath Singh rushed to save
him but Guru Baksh Singh continued
assault; and Jeet Singh fell down into
water and died. On the noise of witnesses,
accused-appellant
ran
away
towards
western side of forest. Many persons
came there and chased him who was
caught by people at 9:15 AM. On being
asked by public, he disclosed his identity
as Guru Baksh Singh. Dead body of Jeet
Singh taken out of water from river.
Thereafter, he (PW-1) went to Police
Station and presented written report
Ex.Ka-1. Incident was witnessed by him,
Nandu, Siyaram, Baran Singh and others.

25. PW-2 Harbansh Singh deposed
that on the relevant day at about 9:00 AM,
he was going across river Ganga from his
house for peeling sugarcane. When he
reached near bank of Ganga river, noticed
that accused-appellant Guru Baksh Singh
was attacking Jeet Singh with sword. He
raised alarm whereupon Rishi Pal and
Nandu also came to the place of
occurrence
and
witnessed
incident.
Accused-appellant Guru Baksh Singh ran
away from the spot leaving Jeet Singh in
water. Victim Jeet Singh succumbed to
injuries.
Witnesses
caught
accusedappellant Guru Baksh Singh and took out
dead body of Jeet Singh from water and
kept it on the bank of river Ganga.
Accused-appellant Guru Baksh Singh
happens to be brother-in-law (Sala) of
Jaswant Singh resident of village Sirjepur.

26. CW-1, Kanval Jeet Singh,
deposed that three years ago in the
evening accused-appellant Guru Baksh
Singh, Jeet Singh and Teerath Singh came
to his house; accused-appellant Guru
1 All. Guru Baksh Singh Vs. State
895
Baksh Singh was his real maternal uncle;
all three persons slept in the house after
taking meal and next morning at about
7:30 AM, they went to river Ganga to
take bath; at about 9:00 AM, he was
going towards Ganga river; accusedappellant Guru Baksh Singh was running
with blood stained sword in his hand; he
(CW-1) and other persons coming from
behind apprehended Guru Baksh Singh
and when inquired what had happened,
then
he
(accused-appellant)
himself
admitted that he had killed Jeet Singh
with sword. They snatched sword from
him and handed over to police. S.I.
prepared Fard Ex.Ka-12 of sword and he
put his signature on Fard. Witness further
stated that he and other persons tied
accused-appellant with tree near the house
of Brijpal and showed the police.

27. CW-3 Rishi Pal son of Lal Singh
deposed that he saw accused-appellant
Guru Baksh Singh attacking victim Jeet
Singh with sword who was making alarm
(Bachao Bachao). Rishi Pal, Harbansh,
Ajab Singh, Vidya Ram, Pappu and he
himself tried to save Jeet Singh but due to
fear they could not do so. Accusedappellant ran away towards western. He
did not chase the accused.

28. CW-4 Ajab Singh and CW-5
Nandu also supported prosecution case
and deposed that they have witnessed the
accused, killing Jeet Singh with sword in
the water of river Ganga and he ran away
from there. Jeet Singh fell down and died
in water.

29.

The
witnesses
withstood
sufficient cross-examination by defence
but unblemished. Nothing material could
be brought so as to disbelieve their
statement.
Although
some
minor
contradictions have appeared but they do
not go to the root of case.

30. PW-4 Dr. V.P. Gupta, found
fourteen ante-mortem injuries on the
person of deceased which might have
been caused by sharp edged weapon like
sword and all the witnesses of fact
supported that Jeet Singh was attacked by
accused-appellant with sword. Therefore,
evidence of witnesses is compatible with
medical evidence.

31. From the statement of PWs-1, 2
and 4 as well as CWs-1, 3, 4 & 5, it has
been established that accused-appellant
Guru Baksh Singh caused serious injuries
to Jeet Singh with sword due to which he
fell down in water and succumbed to
death. CW-1 Kanval Jeet Singh is real
nephew (Bhanja of accused-appellant)
who deposed against his real maternal
uncle Guru Baksh Singh that he saw
accused-appellant running with sword.
When he asked accused-appellant what
had happened, accused-appellant himself
admitted that he killed Jeet Singh with
sword whereupon he and other persons
chasing
him,
apprehended
accusedappellant, snatched sword and handed
over to police. There is nothing on record
to show as to why real nephew i.e. CW-1
would depose against his own maternal
uncle. Blood stained sword alleged to be
used in the commission of crime, was
taken into custody by police from Kanval
Jeet Singh (CW-1). Accused-appellant
has offered no explanation as to why
witnesses deposed against him.

32. So far as argument of learned
Amicus Curiae for accused appellant
regarding motive is concerned, we are not
impressed with the argument for the
reasons that it is a case of direct evidence
896 INDIAN LAW REPORTS ALLAHABAD SERIES
and day light murder where independent
witnesses and his real nephew have
deposed against accused-appellant Guru
Baksh Singh. Thus merely because that
there was no strong motive to commit the
present offence, prosecution case cannot
be disbelieved.

33. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
held as under :-

"As regards motive, it is well
established that if the prosecution case is
fully established by reliable ocular
evidence coupled with medical evidence,
the issue of motive looses practically all
relevance. In this case, we find the ocular
evidence led in support of the prosecution
case wholly reliable and see no reason to
discard it."

34. So far as non-examination of
entire witnesses is concerned, in view of
Section 134 of Indian Evidence Act,1872
(hereinafter referred to as 'Act,1872'), we
do not find any substance in the
submission
of
learned
counsel
for
appellant.

35. Law is well-settled that as a
general rule, Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable. There is no legal
impediment in convicting a person on the
sole testimony of a single witness. That is
the logic of Section 134 of Act, 1872, but
if there are doubts about the testimony,
Court will insist on corroboration. In fact,
it is not the numbers, the quantity, but the
quality that is material. Time-honoured
principle is that evidence has to be
weighed and not counted. Test is whether
evidence has a ring of truth, cogent,
credible and trustworthy or otherwise.

36.

In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court reiterated the view observing that it is the quality
and not the quantity of evidence which is
necessary for proving or disproving a fact.
The legal system has laid emphasis on value,
weight and quality of evidence rather than on
quantity, multiplicity or plurality of witnesses.
It is, therefore, open to a competent court to
fully and completely rely on a solitary witness
and record conviction. Conversely, it may
acquit the accused inspite of testimony of
several witnesses if it is not satisfied about the
quality of evidence.

37. In State of Haryana v. Inder
Singh and Ors. reported in (2002) 9 SCC
537, Court held that it is not the quantity
but the quality of the witnesses which
matters for determining the guilt or
innocence of the accused. The testimony
of a sole witness must be confidenceinspiring and beyond suspicion, thus,
leaving no doubt in the mind of the Court.

38. So far as discrepancies,
variations
and
contradictions
in
prosecution case are concerned, we have
analysed entire evidence in consonance
with submissions raised by learned
counsel's and find that the same do not go
to the root of case and accused-appellant
is not entitled to benefit of the same.

39.

In
Sampath
Kumar
v.
Inspector of Police, Krishnagiri, (2012)
4 SCC 124, Court has held that minor
contradictions are bound to appear in the
statements
of
truthful
witnesses
as
memory sometimes plays false and sense
of observation differs from person to
person.

40. We lest not forget that no
prosecution case is foolproof and the
1 All. Guru Baksh Singh Vs. State
897
same is bound to suffer from some
lacuna or the other. It is only when
such lacunae are on material aspects
going to the root of the matter, it may
have bearing on the outcome of the
case, else such shortcomings are to be
ignored. Reference may be made to a
decision in Criminal Appeal No. 56 of
2018, Smt. Shamim v. State of (NCT
of Delhi), decided on 19.09.2018.

41. In Sachin Kumar Singhraha v.
State of Madhya Pradesh in Criminal
Appeal Nos. 473-474 of 2019 decided on
12.3.2019, Supreme Court has observed
that Court will have to evaluate evidence
before it keeping in mind the rustic nature
of depositions of the villagers, who may
not depose about exact geographical
locations with mathematical precision.
Discrepancies of this nature which do not
go to the root of the matter do not
obliterate otherwise acceptable evidence.
It need not be stated that it is by now well
settled that minor variations should not be
taken into consideration while assessing
the reliability of witness testimony and
the consistency of the prosecution version
as a whole.

42. When such incident takes place,
one cannot expect a scripted version from
witnesses to show as to what actually
happened and in what manner it had
happened. Such minor details normally
are neither noticed nor remembered by
people since they are in fury of incident
and apprehensive of what may happen in
future. A witness is not expected to
recreate a scene as if it was shot after with
a scripted version but what material thing
has happened that is only noticed or
remembered by people and that is stated
in evidence. Court has to see whether in
broad narration given by witnesses, if
there is any material contradiction so as to
render evidence so self contradictory as to
make it untrustworthy is Minor variation
or such omissions which do not otherwise
affect trustworthiness of evidence, which
is broadly consistent in statement of
witnesses, is of no legal consequence and
cannot defeat prosecution.

43. In all criminal cases, normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
errors of observations, namely, errors of
memory due to lapse of time or due to
mental disposition such as shock and
horror at the time of occurrence. Where
the omissions amount to a contradiction,
creating
a
serious
doubt
about
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the
court, such evidence cannot be safe to
rely
upon.
However,
minor
contradictions,
inconsistencies,
embellishments or improvements on
trivial matters which do not affect the
core of the prosecution case, should not
be made a ground on which the evidence
can be rejected in its entirety. Court has
to form its opinion about the credibility
of witness and record a finding, whether
his
deposition
inspires
confidence.
Exaggerations per se do not render the
evidence brittle, but can be one of the
factors
to
test
credibility
of
the
prosecution
version,
when
entire
evidence is put in a crucible for being
tested on the touchstone of credibility.
Therefore, mere marginal variations in
the statement of a witnesses cannot be
dubbed as improvements as the same
may be elaborations of the statements
made by the witnesses earlier. Only such
omissions
which
amount
to
contradictions in material particulars i.e.
898 INDIAN LAW REPORTS ALLAHABAD SERIES
go to the root of the case/materially
affect the trial or core of the prosecution's
case, render the testimony of the witness
liable to be discredited. [Vide: State
Represented by Inspector of Police v.
Saravanan &Anr., AIR 2009 SC 152;
Arumugam v. State, AIR 2009 SC 331;
Mahendra Pratap Singh v. State of
Uttar Pradesh, (2009) 11 SCC 334; and
Dr. Sunil Kumar Sambhudayal Gupta
&Ors. v. State of Maharashtra, JT
2010 (12) SC 287].

44. In the present case, it is fully
established
that
accused-appellant
attacked victim Jeet Singh with sword
who
sustained
serious
injuries
and
succumbed to death on spot. Evidence
shows that dead body of deceased was
found near the bank of river Ganga at the
time of inquest. Medical evidence shows
that death of Jeet Singh might have
occurred due to ante-mortem injuries at
the time, as alleged by prosecution.
Accused-appellant in his statement under
Section 313 Cr.P.C. has given reply that
witnesses gave false statement but he did
not suggest anything as to why PW-1,
PW-2 and CW-1, 3, 4 and 5 gave false
statements against him, therefore, there
cannot be any hesitation to come to
conclusion
that
accused
committed
murder of Jeet Singh by causing several
injuries.

45. In view of facts and legal
position discussed hereinabove, we
find that Trial Court has rightly
analyzed evidence led by prosecution
and found him guilty and convicted
accused for having committed murder
of Jeet Singh, an offence punishable
under Section 302 IPC. Conviction
and sentenced awarded by Trial Court
is
liable
to
be
maintained
and
confirmed.
No
interference
is
warranted by this Court.

46. So far as question of sentence
to accused-appellant is concerned, it is
always a matter of discretion to be
exercised by Court upon consideration
of
circumstances
aggravating
and
mitigating in individual cases (see:
Sumer Singh vs. Surajbhan Singh
and others, (2014) 7 SCC 323, Sham
Sunder vs. Puran, (1990) 4 SCC 731,
M.P. v. Saleem, (2005) 5 SCC 554,
Ravji v. State of Rajasthan, (1996) 2
SCC 175]). Considering the facts and
circumstances, weapons used in the
commission
of
offence,
sentence
awarded by Trial Court is almost
minimum. We see no reasons to
interfere the same.

47. In view of above discussion, the
appeal lacks merit and is dismissed.
Impugned judgement and order dated
03.08.2002, is maintained and confirmed.

48. Lower Court record along
with a copy of this judgment be sent
immediately to District Court and Jail
concerned
for
compliance
and
apprising accused-appellant.
49.
Before parting, we provide that Sri
Shiv Vilas Mishra Advocate, Amicus
Curiae for accused-appellant, shall be
paid counsel's fee as Rs. 11,500/- for
his
valuable
assistance.
State
Government is directed to ensure
payment of aforesaid fee through
Additional
Legal
Remembrancer,
posted in the office of Advocate
General at Allahabad, without any
delay and, in any case, within one
month from the date of receipt of copy
of this judgment.
---------
1 All. Ashok Kumar Tiwari Vs. State of U.P.
899
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2019

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

Criminal Appeal No. 1613 OF 2007

Ashok Kumar Tiwari...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Meraj Ahmad Khan, Sri Akash Tomar
(A.C.)

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

A. The Narcotic Drugs and Psychotropic
Substance Act of 1985- Section 20(b) (ii)
(B)-
recovery
of
Charas-ConvictionChallenge to-Once Police Party had come
to know about possession of Contraband
(Charas)
which
Appellant
was
possessing,
it
was
incumbent
and
mandatory on the part of the police party
to have carried out inter se, search first
among its own members, but the police
party failed to observe it-therefore,
consequence of this omission would be
that the recovery cannot be accepted to
be genuine one but it can be said to have
been planted by the police-conviction
order set aside. (Paras 10 12 14 15 16)
Appeal allowed. (E-6)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Akash Tomar, learned
Amicus Curiae for the appellant, Sri Om
Narain Tripathi, learned A.G.A.-I assisted
by Sri Sanjay Kumar Rajbher and Sri
Jitendra Kumar, learned A.G.A.s, Sri
Ajay Kumar Singh and Sri Rajiv Kumar
Rai, learned brief holders for the State and
perused the material brought on record.

2. The present appellant - Ashok
Kumar Tiwari has preferred this criminal
appeal against the judgment and order of
conviction dated 21.2.2007 passed by the
Court of Additional Sessions Judge, Court
No.5, Kanpur Nagar in Sessions Trial No.
424 of 2005 (State vs. Ashok Kumar
Tiwari), arising out of Case Crime No.80
of 2005, under Section - 20 (b) (ii) (B) of
the N.D.P.S. Act, 1985 (hereinafter
referred to as 'Act, 1985'), Police Station -
Govind Nagar, District - Kanpur Nagar,
whereby the appellant has been convicted
and sentenced to rigorous imprisonment
for seven months coupled with fine Rs.
1,500/- (Rupees One Thousand Five
Hundred Only) with default stipulation to
undergo imprisonment for one month.

3. Facts relevant for adjudication of
this appeal, as reflected from record
appears to be that S.I. Sri Ashok Kumar
Pandey, the informant P.W.1 was on
patrolling duty on 11.3.2005 in his area
for maintaining peace. When he along
with his police party reached at Dada
Nagar Factory, in front of the same he
saw two persons coming from State Bank
crossing side and had wallets in their
hand, wherein something was kept. They
on being sighted by the police, got startled
and began to move away. The police party
after speeding up apprehended them
around 10:00 p.m. in front of 10-B - Dada
Nagar Factory. On being inquired, the
accused told his name as Ashok Kumar
Tiwari s/o Uma Shanker Tiwari, resident
of Kachchi Basti, Vivekanand Nagar,
Police Station - Govind Nagar, District -
Kanpur Nagar. On search being made of
his person, from the right side back
pocket of the jeans, 120 grams of 'charas'
(contraband) was recovered kept in a
white- coloured polythene bag. Besides,
the police party also recovered some iron