# Hari Bahadur v. State of U.P

- **Citation:** (2024) 4 ILRA 1214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-24
- **Case number:** Criminal Appeal No. 4371 of 2005
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-bahadur-v-state-of-u-p-51783
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Code of Criminal Procedure,
1973 - Sections 313, 374(2) & 433A -
Criminal
Appeal
Against
Conviction
and
Sentence - Murder - Eye-Witness Testimony -
Medical Evidence - Recovery of Weapon -
4 All. Hari Bahadur Vs. State of U.P.
1215
Motive
-
Sterling
Witness
-
Fixed-Term
Sentence - Remission - Constitutional Court's
Power
The appellant, Hari Bahadur, challenged the
judgment dated 14.09.2005 by the Additional
Sessions Judge, Court No. 10, Ghaziabad, in
Sessions Trial No. 1147 of 2003, convicting him
under Section 302 IPC for the murder of Sita
Ram, sentencing him to life imprisonment with
a Rs. 10,000 fine, and 6 months additional
imprisonment in default. The prosecution
alleged that on 13/14.05.2003 at 11:45 PM,
the appellant stabbed Sita Ram in a hutment
area,
suspecting
him
of
withholding
information about his brother Radhey Shyam,
who allegedly enticed the appellant's wife. PW1 (Shobha Kant Poddar), an eye-witness, saw
the assault in electric bulb light and lodged the
FIR, supported by PW-2's testimony confirming
PW-1's presence, the postmortem report
showing six stab wounds causing death by
lung laceration, and the appellant's arrest with
the crime weapon (knife). The appellant
claimed false implication due to enmity but led
no evidence. Held: (1) The appeal was partly
allowed,
upholding
the
conviction
but
modifying the sentence. (2) PW-1's testimony
was of sterling quality, unimpeachable, and
corroborated by PW-2's confirmation of his
presence and the postmortem report, despite
PW-2 not witnessing the assault. (3) Adequate
lighting from electric bulbs enabled clear
identification of the appellant, who was known
to PW-1. (4) Failure to prove recoveries (knife,
blood-stained clothes, hair strands) did not
undermine the prosecution case, as PW-1's
reliable testimony sufficed for conviction. (5)
Considering the appellant's age (28 at the time
of the offence), lack of criminal antecedents,
and 20 years served, the life sentence was
modified to a fixed term of 22 years actual
imprisonment, excluding remission, due to the
brutal
nature
of
the
crime
and
public
confidence in the legal system. (6) The court
exercised its power under Section 53 IPC to
impose a fixed-term sentence, as clarified by
constitutional courts' authority.

List of Cases cited:

## Text

_Characters 0–39,904 of 54,095. This is a partial read: ask again with offset=39904 for what follows._

1214 INDIAN LAW REPORTS ALLAHABAD SERIES
24. The only basis to implicate the
accused appellant is the suspicion on
account of alleged reclaiming of land by
the informant from the accused appellant
about three years back. Mere apprehension
howsoever strong cannot be the substitute
for evidence which alone can justify
implication of an accused.

25. In the absence of evidence
worth the name we find it difficult to
approve the judgment of conviction and
sentence of the trial court in the facts of the
present case. It appears that the trial court
has not carefully examined the records and
in its anxiety to convict the accused has
proceeded to deliver the judgment even
without any evidence appearing on record
against the accused appellant.

26. We are also informed that the
accused appellant is in jail since 2012. It is
unfortunate that despite there being no
evidence against the accused appellant he
has been forced to remain in jail for over
twelve years. We are tempted to make
harsh observations not only against the
Investigating
Officer
but
also
the
Presiding Officer but we refrain from
doing so as they have not been heard in
the
matter.
Nevertheless,
we
are
disappointed by the manner in which a
person is incarcerated in jail for over
twelve years without any evidence against
him.

27. From the discussions and
deliberations held above, we have no
hesitation in coming to the conclusion that
the prosecution has failed to establish its
case against the accused appellant beyond
reasonable doubt. We also hold that the
court below has not evaluated the evidence
led during trial in correct perspective and,
therefore, the impugned judgement and
order of conviction and sentence is liable to
be reversed.

28. Consequently, the appeal
succeeds and is allowed. The judgment and
order of conviction and sentence dated
23.06.2016 is hereby set aside. The
appellant is acquitted of the charges
levelled against him. Since the appellant is
in jail, he shall be released forthwith, unless
he is wanted in any other case, subject to
compliance of section 437A Cr.P.C.

29. Copy of this judgment shall be
communicated
to
the
Chief
Judicial
Magistrate concerned as also the concerned
Superintendent
of
Jail
for
necessary
compliance.
----------
(2024) 4 ILRA 1214
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4371 of 2005

Hari Bahadur ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Vinod Kumar Tripathi, Sri Dilip Kumar
Kesharwani, Sri Noor Mohd., Sri Ram Sagar
Yadav, Sri S.K. Dubey

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Code of Criminal Procedure,
1973 - Sections 313, 374(2) & 433A -
Criminal
Appeal
Against
Conviction
and
Sentence - Murder - Eye-Witness Testimony -
Medical Evidence - Recovery of Weapon -
4 All. Hari Bahadur Vs. State of U.P.
1215
Motive
-
Sterling
Witness
-
Fixed-Term
Sentence - Remission - Constitutional Court's
Power
The appellant, Hari Bahadur, challenged the
judgment dated 14.09.2005 by the Additional
Sessions Judge, Court No. 10, Ghaziabad, in
Sessions Trial No. 1147 of 2003, convicting him
under Section 302 IPC for the murder of Sita
Ram, sentencing him to life imprisonment with
a Rs. 10,000 fine, and 6 months additional
imprisonment in default. The prosecution
alleged that on 13/14.05.2003 at 11:45 PM,
the appellant stabbed Sita Ram in a hutment
area,
suspecting
him
of
withholding
information about his brother Radhey Shyam,
who allegedly enticed the appellant's wife. PW1 (Shobha Kant Poddar), an eye-witness, saw
the assault in electric bulb light and lodged the
FIR, supported by PW-2's testimony confirming
PW-1's presence, the postmortem report
showing six stab wounds causing death by
lung laceration, and the appellant's arrest with
the crime weapon (knife). The appellant
claimed false implication due to enmity but led
no evidence. Held: (1) The appeal was partly
allowed,
upholding
the
conviction
but
modifying the sentence. (2) PW-1's testimony
was of sterling quality, unimpeachable, and
corroborated by PW-2's confirmation of his
presence and the postmortem report, despite
PW-2 not witnessing the assault. (3) Adequate
lighting from electric bulbs enabled clear
identification of the appellant, who was known
to PW-1. (4) Failure to prove recoveries (knife,
blood-stained clothes, hair strands) did not
undermine the prosecution case, as PW-1's
reliable testimony sufficed for conviction. (5)
Considering the appellant's age (28 at the time
of the offence), lack of criminal antecedents,
and 20 years served, the life sentence was
modified to a fixed term of 22 years actual
imprisonment, excluding remission, due to the
brutal
nature
of
the
crime
and
public
confidence in the legal system. (6) The court
exercised its power under Section 53 IPC to
impose a fixed-term sentence, as clarified by
constitutional courts' authority.

List of Cases cited:

1. Vadivelu Thevar Vs St. of Madras, AIR 1957
SC 614
2. Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Maharashtra, Criminal Appeal No. 739 of
2017

3. Rai Sandeep @ Deepu Vs St. (NCT of Delhi),
(2012) 8 SCC 21

4. Shiva Kumar @ Shiva @ Shivamurthy Vs St.
of Karn., Criminal Appeal No. 942 of 2023

5. Union of India Vs VS Sriharan, (2014) 11 SCC
1

6. Swamy Shraddananda Vs St. of Karn., (2008)
13 SCC 767

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri Ram Sagar Yadav,
learned counsel for the appellant, Shri Arun
Kumar Pandey, learned AGA for the State
and perused the record.

2. The instant criminal appeal has
been preferred against the judgment and
order
dated
14.09.2005
passed
by
Additional Sessions Judge, Court No.10,
Ghaziabad in Sessions Trial No. 1147 of
2003 (State of U.P. Vs. Hari Bahadur),
arising out of Case Crime No. 686 of 2003,
under Section 302 IPC, Police Station
Indirapuram,
District
Ghaziabad,
convicting and sentencing the accusedappellant to undergo imprisonment for life
with fine of Rs.10,000/- under Section 302
IPC and in default of payment of fine, to
undergo six months' further additional
imprisonment.

3. The prosecution case as has
been set out by the first informant Shobha
Kant Poddar (PW-1) in the first information
report is that in the night between
13/14.05.2003 at about 12:00 O'clock in
the night, while he was taking his meals, he
heard an alarm being raised from near the
hutment of Sita Ram. After hearing the
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
alarm, he reached there, where he had seen
in the light of the electric bulbs lit there on
the electric pole, that appellant, who also
used
to
reside
near
his
hutment,
assaulting Sita Ram by a knife on his
chest and back, uttering that he suspects
that his brother Radhey Shyam had
enticed away his wife and whereabouts of
Radhey Shyam is not being disclosed by
him, as such, he would be done to death
and continued to assault Sita Ram by a
knife.

4. It is further stated that when
PW-1 Shobha Kant tried to rescue Sita
Ram, he was also threatened for dire
consequences, as such, he retreated back
and started raising alarm. On hearing the
alarm, number of persons reached the
place of incident and saw Hari Bahadur,
with the knife in his hand, making his
escape good towards Shukra Bazaar. The
dead body of the deceased Sita Ram,
soaked with blood, was lying at the place
of incident.

5. On the basis of the said written
report handed over by the first informant
Shobha Kant, a first information report
was registered against the appellant Hari
Bahadur Nepali, which was registered
vide Case Crime No. 686 of 2003, under
Section 302 IPC at Police Station
Indirapuram, District Ghaziabad at 12:45
AM or 00:45 Hours, which has been
proved and exhibited as Exhibit Ka-1.
Entry regarding first information report
was made in G.D. Report No.2, dated
14.05.2003 at 00:45 hours.

6. Perusal of the record shows
that prior to the lodging of the said first
information report, after committing the
incident of murder by the appellant Hari
Bahadur Nepali, and making his escape
good, he was being chased by number of
villagers and on the alarm raised by them,
S.I.
R.V.
Kaul
of
Police
Station
Indirapuram, who was on the patrolling
duty, reached near the place of incident and
apprehended the accused-appellant Hari
Bahadur Nepali alongwith crime weapon
knife, which he was holding in his hand at
about 12:20 AM in the night. The said knife
held by the accused-appellant, was taken in
possession by the S.I. R.V. Kaul and its fard
recovery memo was prepared, which has
been proved and exhibited as Exhibit Ka-9.
Thereafter, the blood-stained pant, worn by
the appellant at the time of his arrest, was
also taken in possession and its fard
recovery memo was drawn. Thereafter,
accused was taken to the Police Station and
lodged in the jail.

7. Thereafter, the investigation of
the said case was entrusted to S.I. Mahesh
Singh Tomar (PW-4), who recorded the
statement of first informant Shobha Kant
(PW-1) and that of the accused, who was
arrested by the police. Thereafter, the
statement of other relevant witnesses,
namely, Sanjeev and Rajesh Kumar were
recorded and the Investigating Officer
reached the place of incident and prepared
the site plan, which has been proved and
exhibited as Exhibit Ka-4.

8. Thereafter, on 14.05.2003, S.I.
R.V. Kaul conducted the inquest on the
person of the deceased and prepared the
inquest
memo
and
other
relevant
documents and thereafter, despatched the
dead body of the deceased for post-mortem
and an autopsy was conducted on the
person of the deceased on 14.05.2003 at
about 4:00 PM. In the said post-mortem
report, the Doctor has noted as many as six
injuries on the person of the deceased,
which are noted herein-below:-
4 All. Hari Bahadur Vs. State of U.P.
1217
(i) कर्ा िुआ घाि 3.5 x 1.5 से०मी०
जो िाती के बीचो बीच फेफडे की गिराई तक
पाई गयी बायााँ फेफडा कर्ा िुआ र्था, म्जसके
चारो ओर िगभग 800 धम०िी० रि पाया गया।
(ii) कर्ा िुआ घाि 3 x 1 से०मी० पेर्
के ऊपरी हिस्से पर बांयी तरफ पसिी के मध्य
के नीचे मांस पेधियों की गिराई तक पाया गया।
(iii) कर्ा िुआ घाि 3.5 x 1.5 से०मी०
पीठ पर बांयी तरफ स्कैपुिा िड्डी के नीचे
फेफडे की गिराई तक पाया गया, बायााँ फेफडा
कर्ा िुआ पाया गया, म्जसके चारो तरफ
िगभग 1 िीर्र रि जमा पाया गया।
(iv) कर्ा िुआ घाि पीठ पर बांयी तरफ
चोर् नं०-3 से 12 से०मी० नीचे फेफडे की गिराई
तक म्जससे बायााँ फेफडा कर्ा िुआ पाया गया।
(v) कर्ा िुआ घाि 3.5 x 1.5 से०मी०
पीठ पर दाहिने िार्थ की तरफ चोर् नं०4 से आर
पार िोता िुआ तर्था िगभग इससे 10 से०मी०
दूर पेर् की गिराई तक पाया गया। पेर् के
अन्दर कोई चोर् निीं पायी गयी।
(vi) कर्ा िुआ घाि 3 x 1.5 से०मी०
चोर् नं०5 से 12 से०मी० नीचे मााँस पेिी की
गिराई तक पाया गया।

9. In internal examination, both
lungs were found lacerated and the cause of
death has been noted to be shock and
haemorrhage due to laceration of both
lungs.

10. At the time of conducting the
panchayat nama, the Investigating Officer
had also collected plain earth and bloodstained earth from the place of incident and
kept it in a container. Apart from it, hair
strands of the accused-appellant Hari
Bahadur, held by the deceased Sita Ram in
his fist, was also recovered and taken in
possession by the Investigating Officer and
its fard recovery memo was prepared. The
Investigating Officer thereafter recorded
the statement of other relevant witnesses
and after concluding the investigation,
submitted the charge-sheet against the
appellant.

11. On the basis of the said chargesheet,
learned
Magistrate
had
taken
cognizance of the offence and since the
case was exclusively triable by the court of
Sessions, made over the case to the court of
Sessions for trial, which was registered as
Sessions Trial No. 1147 of 2003 (State of
U.P. Vs. Hari Bahadur). The trial court on
29.07.2023 framed the charges against the
appellant under Section 302 IPC, which
was read out to the appellant, who abjured
the charges, did not plead guilty and
claimed to be tried.

12. During the course of trial, the
prosecution, in order to bring home the
guilt against the appellant, examined as
many as two witnesses of fact and two
other formal witnesses. Their testimony, in
brief, is enumerated herein-below:-

13. PW-1 Shobha Kant, first
informant of the case, has stated that in the
night of 13/14.05.2003, Sita Ram was
murdered at about 11:45 PM, while he was
taking his meals in his hutment. The
hutment of Sita Ram is situated behind his
hut, from where, alarm was being raised by
Sita Ram. Hearing the alarm, he reached
there and saw Hari Bahadur, present in the
court, assaulting Sita Ram on his chest and
back by a knife. The source of light was the
electric bulbs lit there on the electric poles.
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
While assaulting him, Hari Bahadur was
uttering that he had not disclosed the
whereabouts of his brother Radhey Shyam,
who had enticed away his wife. On making
an attempt to rescue him, he was also
threatened. On raising alarm, number of
persons of the vicinity reached there,
consequent to which, Hari Bahadur made
his escape good. The report in respect of
the incident was lodged by him, which
has been proved and exhibited as Exhibit
Ka-1.

14. During cross-examination, he
has stated that incident had occurred at
about 11:45 PM on 13.05.2003 and
before he reached near the place of
incident, no other person was present
there. His hutment is situated at a
distance of 30 feet from the hutment of
deceased Sita Ram. The incident had
taken place outside the hutment of Sita
Ram and he had reached the place of
incident at about 11:45 PM and the police
had also reached in the night itself. He
had gone alone to lodge the report at
12:00 in the night and he himself had
scribed the report in the Police Station
itself and not on the dictation of any
police personnel. He returned back after
the police had recorded his statement.

15. During cross-examination, he
further denied the recovery of knife in his
presence. He further stated that Radhey
Shyam is not related to him and Sita Ram
used to live with his brother Radhey
Shyam. He further denied the suggestion
that Hari Bahadur used to make their
complaints to the police, who used to
look out for the miscreants in respect of
sale of Ganja and in retaliation to which,
he is falsely deposing against the appellant.
He further denied the suggestion that he
had not witnessed the incident.

16. PW-2 Raja Ram is the panch
witness and after conducting the panchayat
nama, the dead body of the deceased was
despatched for post-mortem.

17. During cross-examination, he
has stated that at about 12:00-12:30 AM,
Sita Ram was murdered and his hut is
situated just adjacent to his hut, which is
at a distance of 20 feet. On the alarm
being raised, he got up and reached the
place of incident within five minutes,
however, before he reached there, Shobha
Kant (PW-1) had already reached there
alongwith 20-25 other persons. He further
stated that police reached the place of
incident at about 12:00-12:30 AM. He
further
categorically
stated
that
the
accused made his escape good, before he
could reach the place of incident. He
further stated that he was a panch witness
and his signature was obtained on the
inquest.

18. PW-3 Dr. A. Mishra had
conducted the autopsy on the person of the
deceased and proved the autopsy report
and contents thereof. The autopsy report
has been proved and exhibited as Exhibit
Ka-3.

19. During cross-examination, he
stated that an autopsy was conducted on
the person of the deceased at 4:00 PM on
14.05.2003. He further stated that injury
nos. 1, 3 & 4 were sufficient to cause the
death and the cause of death is laceration
of the lungs. He further stated that on
account of long illness or on account of
taking excessive liqour, such injuries
could not be caused. All the injuries could
be caused by sharp edged weapon and the
said injuries could not be caused by fall
over a sharp edged weapon.
4 All. Hari Bahadur Vs. State of U.P.
1219
20. PW-4 S.I. Mahesh Singh
Tomar is the Investigating Officer of the
case, who was entrusted the investigation
on 14.05.2003. He stated that he had
recorded
the
statement
of
the
first
informant and that of the accused, who had
been arrested by the police and brought at
the police station. He prepared the site plan,
which has been proved and exhibited as
Exhibit Ka-4.

21. He further stated that he had
recorded the statement of S.I. R.V. Kaul,
who had arrested the accused Hari Bahadur,
while he was trying to make his escape
good towards Shukra Bazaar after killing
Sita Ram and the crime weapon (knife) was
taken in his possession from the hands of
the accused-appellant Hari Bahadur, who
prepared the respective recovery memos.
After recording the statement of several
witnesses and collecting the material
evidence, he concluded the investigation
and submitted the charge-sheet against the
appellant.

22. During cross-examination, he
stated that the place of incident is near the
police outpost Kaushambi and at the
relevant time of incident, Shri R.V. Kaul
was on patrolling duty, who reached the
place of incident and arrested the accused
alongwith crime weapon (knife). The
inquest proceedings was also conducted by
the said S.I. R.V. Kaul and the knife,
bloodstained pant, hair strands from the fist
of
the
deceased,
plain
earth
and
bloodstained earth were taken in possession
by him, who prepared their respective
recovery memos.

23. He further stated that fard
recovery memo in respect of recovery of
knife and hair strands is not before the
court, as such, he can not state anything
about the said recoveries. He further denied
the suggestion that on the instigation of the
first informant, he investigated the said
case and falsely implicated the accusedappellant.

24. Thereafter, statement of the
accused under Section 313 CrPC has been
recorded
and
all
the
incriminating
circumstances were put to him, which
were denied by him and he pleaded that
on account of enmity, he has falsely
implicated, however, in his defence, no
evidence has been led nor any evidence
relating to enmity with the witnesses has
been proved by the appellant.

25.

The
trial
court,
after
appreciating the entire material and
evidence available on record, has held
that the prosecution has proved its case
beyond all reasonable doubts against the
appellant by relying upon the testimony
of PW-1 as also corroborated by PW-2
regarding presence of PW-1 at the place
of incident and the medical reports of the
deceased,
however,
the
factum
of
recovery of various articles has not been
found proved by the trial court. The trial
court, on the basis of unimpeachable
testimony of PW-1 and post-mortem
report of the deceased, has held that the
appellant
is
guilty
of
the
offence
committed and convicted and sentenced
him. The medical evidence also lends
credence to the prosecution case against
the appellant. The datas mentioned in the
post-mortem
report
points
out
conclusively to the culpability of the
appellant for the commission of offence.

26.

Being
aggrieved
and
dissatisfied by the said judgment and
order, the present criminal appeal has been
filed.
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
27. Learned counsel for the
appellant has vehemently submitted that
trial court has committed a serious error in
recording the finding that the appellant is
guilty of murder. He has further submitted
that trial court committed a serious error in
believing the two so called eye-witnesses
as reliable witnesses. He has further
submitted that both the eye-witnesses
PW-1 and PW-2 are unreliable witnesses,
however, trial court by placing implicit
reliance
upon
their
testimony,
has
illegally
recorded
the
finding
of
conviction and sentence against the
appellant.

28. Learned counsel for the
appellant has further submitted that PW-2
in his testimony has clearly stated that
when he reached the place of incident,
accused person had already made his
escape good and as such, he had not
witnessed any part of the actual incident
of assaulting the victim by the appellant
and therefore, his testimony do not lend
any credence to the prosecution story and
as such, the finding of conviction
recorded against the appellant is bad in
law and is liable to be set aside.

29. Learned counsel for the
appellant has next submitted that veracity
of entire prosecution story, rests only on
the sole testimony of PW-1, which has
not been corroborated by any other link
evidence and as such, the finding of the
guilt recorded against the appellant based
on the sole testimony of PW-1 is bad in
law and is liable to be set aside.

30. Learned counsel for the
appellant has further submitted that only on
the basis of sole testimony of a witness, the
finding of guilt can not be recorded against
an accused person.
31. Learned counsel for the
appellant
has
next
submitted
that
admittedly, the incident has taken place in
the dark hours of the night at 12:00
O'Clock as evident from the testimonies of
witnesses and no source of light was
available in the hutment, in absence of
which, identification of the appellant to be
the assailant, is nothing but based on
imagination of the prosecution witnesses
and as such, their testimony is liable to be
discarded.

32. Learned counsel for the
appellant has next submitted that recovery
of blood-stained clothes, knife and hair
strands recovered from the fist of the
deceased has not been sent for forensic
examination, in absence of which, no
reliance can be placed on the said link
evidence and the appellant is liable to be
acquitted by setting aside the impugned
judgment and order of conviction and
sentence.

33. Per contra, learned AGA has
submitted that PW-1 Shobha Kant Poddar
is an eye-witness of the incident, who is
living in the vicinity, where the incident is
said to have taken place and he has been
attracted on the alarm raised by the victim
and when he reached the place of incident,
he had seen the appellant Hari Bahadur
assaulting the victim Sita Ram by a knife
on his chest and the back. He has further
categorically stated in his statement that
adequate light of electric bulb fixed on the
electric poles was available there, in which,
he had witnessed the incident and identified
the accused Hari Bahadur assaulting the
victim, thereby causing his death.

34. Learned AGA has further
submitted that during the course of trial,
PW-1 in his testimony has clearly narrated
4 All. Hari Bahadur Vs. State of U.P.
1221
the entire incident of assaulting the victim
by the appellant causing his death and his
testimony is of unimpeachable character
and the defence has not been able to point
out any inconsistency, improvement or
embellishment in his testimony. Even
during the cross-examination, nothing has
been elicited to doubt the credibility of
the said witness. PW-1 has corroborated
the prosecution story in all material
particulars and therefore, his testimony
falls in the category of "wholly reliable
witnesses," as such the trial court by
placing
implicit
reliance
upon
his
testimony, has
rightly
recorded
the
finding of conviction and guilt against the
appellant, which is just, proper and legal
and do not call for any interference.

35. Learned AGA has further
submitted that even PW-2 in his crossexamination has clearly proved the
factum of presence of PW-1 at the time
and place of incident, which further lends
credibility to the prosecution story.

36. Learned AGA has further
submitted
that
post-mortem
report
completely corroborates the prosecution
story and the defence has not been able to
point
out
any
contradiction
or
improvement in the said post-mortem
report, viz-a-viz to the prosecution story,
which further lends credibility to the
prosecution story.

37. Learned AGA has further
submitted that from the site plan as well
as statement of PW-1, it is evident that
adequate source of light was available at
the place of incident in the form of
electric bulbs fixed on the electric poles,
outside the hutment in the slum area,
which has been clearly marked by the
Investigating Officer while preparing the
site plan. Even PW-1 has clearly stated
that he had identified the appellant in the
bulb light, which was lit there. The
Investigating Officer in the site plan has
pointed out that at point B-1, B-2 and B-3,
electric poles were fixed having electric
bulbs, which were lighted and there was
adequate source of light, in which, PW-1
had witnessed the incident and identified
the appellant to have assaulted the deceased
causing his death. Even PW-1 has clearly
pointed out that source of light at the place
of incident in the form of electric bulb lit
on the electric poles. To quote: "वबजिी की
रोिनी खमभे से आ रिी र्थी।" Thus, there was
adequate source of light at the place of
incident, in which, the assailant has been
distinctly identified by the first informant.

38. Learned AGA has further
submitted that appellant is living in the
same vicinity, where the first informantPW-1 used to reside and therefore, he was
well acquainted with the appellant and
there can not be any doubt about his
identity.

39. Learned AGA has further
submitted that it is well settled principle of
law that on the sole testimony of a witness
if unimpeachable, the accused can well be
convicted. He has further submitted that
even
the
medical
report
completely
corroborates the prosecution story and
therefore, the trial court by placing the
implicit reliance of testimony of PW-1,
corroborated by the statement of PW-2 and
the medical report, has rightly convicted
the appellant for the offence charged with
and there is absolutely no illegality in
recording the finding of conviction and
sentence against the appellant and as such,
the instant criminal appeal has no merit and
is liable to be dismissed.
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
40. Having considered the rival
submissions made by learned counsel for
the parties and the evidence adduced during
the course of trial, we would now scrutinize
the material available on record, on the
basis of which, finding of conviction has
been recorded against the appellant. It
appears from the evidence available on
record, more particularly, the evidence of
PW-1 Shobha Kant Poddar that both the
deceased and the appellant herein were
known to him. PW-1 Shobha Kant Poddar
knew both as they used to reside in the
same locality and very well acquainted
with each other. PW-1 in his statement has
clearly stated that while he was taking his
meals, he heard the alarm raised by the
deceased Sita Ram, on which, he was
attracted and reached the place of incident
and saw the appellant assaulting the
deceased with knife, which resulted in his
death. In his testimony, he has categorically
stated that the incident was well witnessed
by him in the electric bulb light, lit at the
place of incident, particularly places B-1,
B-2 and B-3 as pointed out by the
Investigating Officer in the site plan. PW-1
in
his
testimony
has
categorically
corroborated the entire prosecution story as
witnessed by him, on the basis of which, he
had gone to the Police Station and lodged
the first information report.

41. Moreover, we do not find
anything improbable in examination-inchief of PW-1 Sobha Kant Poddar, even
during cross-examination, the defence has
not
been
able
to
point
out
any
inconsistency,
improvement
or
embellishment in his statement. Thus,
nothing could be elicited by the defence to
doubt the credibility of the said witness.

42. In the backdrop of scrutinizing
the testimony of said witness, we find that
the testimony of PW-1 falls in the category
of "wholly reliable witness" as held by the
Hon'ble Apex Court in the case reported in
AIR 1957 (SC) 614 Vadivelu Thevar Vs
State of Madras.

43. It is further germane to point
out here that though PW-2 in his testimony
has stated that he has not been an eyewitness of the incident of actual assault by
the appellant but in his statement, he has
categorically stated about the presence of
the first informant Shobha Kant Poddar
(PW-1) at the time and place of incident,
which further lends credibility to the
prosecution story.

44. The Hon'ble Apex Court in a
recent decision passed in Criminal Appeal
No. 739 of 2017 (Shahaja @ Shahajan
Ismail Mohd. Shaikh Vs. State of
Maharashtra)
has
laid
down
broad
principles for appreciation of an ocular
evidence, wherein it has been stated that:-

"27. The appreciation of ocular
evidence is a hard task. There is no fixed
or straight-jacket formula for appreciation
of the ocular evidence. The judicially
evolved principles for appreciation of
ocular evidence in a criminal case can be
enumerated as under:
(I).
While
appreciating
the
evidence of a witness, the approach must
be whether the evidence of the witness
read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to
scrutinize the evidence more particularly
keeping
in
view
the
deficiencies,
drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them
to find out whether it is against the general
tenor of the evidence given by the witness
and whether the earlier evaluation of the
4 All. Hari Bahadur Vs. State of U.P.
1223
evidence is shaken as to render it unworthy
of belief.
(II). If the Court before whom the
witness gives evidence had the opportunity
to form the opinion about the general
tenor of evidence given by the witness,
the appellate court which had not this
benefit will have to attach due weight to
the appreciation of evidence by the trial
court and unless there are reasons
weighty and formidable it would not be
proper to reject the evidence on the
ground of minor variations or infirmities
in the matter of trivial details.
(III).
When
eye-witness
is
examined at length it is quite possible for
him to make some discrepancies. But
courts should bear in mind that it is only
when discrepancies in the evidence of a
witness are so incompatible with the
credibility of his version that the court is
justified in jettisoning his evidence.
(IV). Minor discrepancies on
trivial matters not touching the core of
the case, hyper technical approach by
taking sentences torn out of context here
or there from the evidence, attaching
importance to some technical error
committed by the investigating officer not
going to the root of the matter would not
ordinarily
permit
rejection
of
the
evidence as a whole.
(V). Too serious a view to be
adopted on mere variations falling in the
narration of an incident (either as
between the evidence of two witnesses or
as between two statements of the same
witness) is an unrealistic approach for
judicial scrutiny.
(VI). By and large a witness
cannot
be
expected
to
possess
a
photographic memory and to recall the
details of an incident. It is not as if a
video tape is replayed on the mental
screen.
(VII). Ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb
the details.
(VIII). The powers of observation
differ from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go
unnoticed on the part of another.
(IX). By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.
(X). In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of the
moment at the time of interrogation. And
one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the timesense of individuals which varies from
person to person.
(XI). Ordinarily a witness cannot
be expected to recall accurately the
sequence of events which take place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.
(XII). A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing cross
examination by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The subconscious mind of the
witness sometimes so operates on account
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him.
(XIII). A former statement though
seemingly inconsistent with the evidence
need not necessarily be sufficient to amount
to
contradiction.
Unless
the
former
statement has the potency to discredit the
later statement, even if the later statement
is at variance with the former to some
extent it would not be helpful to contradict
that witness. [See Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, 1983 Cri LJ
1096 : AIR 1983 SC 753, Leela Ram v.
State of Haryana, AIR 1999 SC 3717, and
Tahsildar Singh v. State of UP, AIR 1959
SC 1012].

28. To put it simply, in assessing the
value of the evidence of the eyewitnesses,
two principal considerations are whether,
in the circumstances of the case, it is
possible to believe their presence at the
scene of occurrence or in such situations as
would make it possible for them to witness
the facts deposed to by them and secondly,
whether
there
is
anything
inherently
improbable or unreliable in their evidence.
In respect of both these considerations, the
circumstances either elicited from those
witnesses themselves or established by
other evidence tending to improbabilise
their presence or to discredit the veracity of
their statements, will have a bearing upon
the value which a Court would attach to
their evidence. Although in cases where the
plea of the accused is a mere denial, yet the
evidence of the prosecution witnesses has
to be examined on its own merits, where the
accused raise a definite plea or puts
forward
a
positive
case
which
is
inconsistent with that of the prosecution,
the nature of such plea or case and the
probabilities in respect of it will also have
to be taken into account while assessing the
value of the prosecution evidence."

45. Thus, testing the credibility of
the statement of two prosecution witnesses
PW-1 and PW-2 on the aforesaid principle,
we find that there is nothing palpable or
glaring in the evidence of two eyewitnesses, on the basis of which, we can
take the view that they are not true or
reliable eye-witnesses.

46. Analysing the testimony of
PW-1 on its face value, we are of the view
that the defence has not been able to point
out any inconsistency, improvement or
embellishment in his testimony and he falls
in the category of "wholly reliable
witnesses" as held by the Hon'ble Apex
Court in several of its decision.

47. Now, coming to the plea raised
by learned counsel for the appellant that
PW-2 is not an eye-witness of the incident
of actual assault by the appellant as he in
his statement has categorically stated that
he reached the place of incident, when the
accused had already made his escape good,
therefore, he is not an eye-witness of the
incident of assaulting the victim, causing
his death and therefore, PW-1 is the sole
eye-witness of the incident and only on the
basis of his sole testimony, conviction can
not be based as held by the trial court.

48. In our considered opinion, the
said submission made by learned counsel
for the appellant can not be accepted in
view of settled law laid down by the
Hon'ble Apex Court in several of its
decisions, wherein it has been held that on
the sole testimony of the witness, the
accused can be held guilty but the only
caveat is that the testimony of the said
witness must be of sterling quality. The
4 All. Hari Bahadur Vs. State of U.P.
1225
Hon'ble Apex Court in the case of (2012) 8
SCC 21 Rai Sandeep @ Deepu Vs. State
(NCT of Delhi) has very vividly described
the characteristics of the sterling witness.

"22. In our considered opinion, the
"sterling witness" should be of a very high
quality and calibre whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co-relation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances
to hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness
can be called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant
materials,
namely,
oral,
documentary and material objects should
match the said version in material
particulars in order to enable the court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."

49. On the anvil of the above
principles, when we test the version of PW1, we find that his testimony is of sterling
quality and the defence has not been able to
point out any inconsistency, improvement
or embellishment, which makes the said
witness to be wholly reliable witness and
we find that there is a ring of truth in his
testimony, therefore, the said argument of
learned counsel for the appellant that on the
basis of the sole testimony of the witness,
the accused-appellant can not be convicted,
is beyond comprehension and is liable to be
rejected.

50. It is further germane to point
out here that at the time of incident,
adequate source of light has been pointed
out by the Investigating Officer at the place
of incident, in which, witnesses are said to
have seen the incident and adduced their
testimony, which further lends credibility to
the prosecution story.

51.