# Indra Pal v. State of U.P

- **Citation:** (2024) 5 ILRA 2132
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Criminal Appeal No. 2751 of 1980
- **Bench:** Siddharth, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-pal-v-state-of-u-p-52051
- **Pages:** 16

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 154(1), 161, 162, 162(1)
& 313 - Indian Penal Code, 1860 - Sections
33, 34 & 302 - Appeal - against conviction &
sentence - FIR -offence of murder due to illicit
relation - Life imprisonment - separate two
appeals by both accused - one appeal was
abated due to death of one of co-accused -
present was co-accused's appeal - Examination
of evidences - court finds that, testimony of sole
eyewitness
(PW2)
contains
material
contradiction and improvements and manifestly
clear that he did no see the incident as such it
cannot be relied upon - PW-2 also could not
identify the accused persons as there was dark
- prosecution has filed to prove the motive
behind the commission of the offence - no
independent witness was examined, even the
overt act attributed to appellant also becomes
doubtful in the light of medical evidence - the
I.O. neither send the seized pellets & bloodsoaked-soil to the F.S.L. for examination nor
recovered the weapon of offence which could
have strengthened the version of PWs - Held, to
assess evidence as of sterling quality, the trial
court should consider various factors, including
consistency,
corroboration,
relevancy,
and
authenticity - and it is the responsibility not only
of the investigating agency but also of the courts
5 All. Indra Pal Vs. State of U.P.
2133
to ensure that the investigation is conducted
fairly and does not infringe upon an individual's
- further, court of the view that, where the case
rests on the testimony of the sole eyewitness,
who did not see the act, the same must not be
wholly reliable - consequently, Appeal is allowed
- conviction and sentence is set aside - direction
issued accordingly.
 (Para - 47, 49, 51, 52, 53, 55)

Appeal allowed. (E-11)

List of referred Cases:

## Text

_Characters 0–39,844 of 54,090. This is a partial read: ask again with offset=39844 for what follows._

2132 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 8 and 9 only and at the stage
of Form C.H.-45, the names of the
petitioners were added by the order dated
02.02.2015 passed in pursuance of order
passed under Rule 109A(1) of the Rules,
1954, at the time when respondent no. 8
moved
an
application
for
implementation/execution of the order
dated 26.12.12. The authority while
exercising its power under Rule 109A(1) is
not empowered either to amend or modify
the order passed by the Consolidation
Officer at the stage of deciding the
objections under Section 9A(2) of the Act,
1953. It cannot be said that it is a fresh
proceedings initiated by the respondent no.
8 for deletion of the names of the petitioners
and respondent nos. 3 to 7 or their ancestors
from the revenue records, rather it is a
correction in pursuance of the order dated
26.12.12 passed during the consolidation
proceedings. Only error has been rectified
in pursuance of the order dated 26.12.2012,
so it is a continuation of the proceedings
and not a fresh proceedings, particularly
when it is an admitted case of the
petitioners that their names were not in the
order dated 26.12.2012 and it was added in
Form C.H. 45 in compliance of the order
passed under Rule 109A(1) of the Rules,
1954.

34. In view of the facts, circumstances
and discussion made herein above, the
orders passed by the Appellate Authority
and the Revisional Authority does not call
for any interference. The writ petition is
devoid of merit and is liable to be
dismissed.

35. Accordingly, the present writ
petition is hereby dismissed.
----------
(2024) 5 ILRA 2132
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2751 of 1980

Indra Pal ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Shashi Kant Agrawal, Sri Pavan Kishore,
Sri Piyush Kishore Srivastava, Sri Rajiv
Lochan Shukla

Counsel for the Respondent:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 154(1), 161, 162, 162(1)
& 313 - Indian Penal Code, 1860 - Sections
33, 34 & 302 - Appeal - against conviction &
sentence - FIR -offence of murder due to illicit
relation - Life imprisonment - separate two
appeals by both accused - one appeal was
abated due to death of one of co-accused -
present was co-accused's appeal - Examination
of evidences - court finds that, testimony of sole
eyewitness
(PW2)
contains
material
contradiction and improvements and manifestly
clear that he did no see the incident as such it
cannot be relied upon - PW-2 also could not
identify the accused persons as there was dark
- prosecution has filed to prove the motive
behind the commission of the offence - no
independent witness was examined, even the
overt act attributed to appellant also becomes
doubtful in the light of medical evidence - the
I.O. neither send the seized pellets & bloodsoaked-soil to the F.S.L. for examination nor
recovered the weapon of offence which could
have strengthened the version of PWs - Held, to
assess evidence as of sterling quality, the trial
court should consider various factors, including
consistency,
corroboration,
relevancy,
and
authenticity - and it is the responsibility not only
of the investigating agency but also of the courts
5 All. Indra Pal Vs. State of U.P.
2133
to ensure that the investigation is conducted
fairly and does not infringe upon an individual's
- further, court of the view that, where the case
rests on the testimony of the sole eyewitness,
who did not see the act, the same must not be
wholly reliable - consequently, Appeal is allowed
- conviction and sentence is set aside - direction
issued accordingly.
 (Para - 47, 49, 51, 52, 53, 55)

Appeal allowed. (E-11)

List of referred Cases:

1. Kuna alias Sanjay Behera Vs St. of Odisha
(2018 1 SCC 296),

2. Ramji Suriya & anr. Vs St. of Mah. (AIR 1983
SC 810),

3. Amar Singh Vs NCT of Delhi (2021 - 114 -
ACC 931 SC),

4. Shakila Abdul Gafar Khan Vs Vasant
Raghunath Dhoble (2003 7 SCC 749),

5. St. of AP Vs Pullagummi Kasi Reddy Krishna
Reddy (2018 7 SCC 623),

6. Rupinder Singh Sandhu Vs St. of Punj. (2018
16 SCC 475),

7. Emperor Vs Khwaja Nazir Ahmad (ILR (1945)
Lah. 1 / AIR 1945 PC 18),

8. Jitendra Chandra Sahib Vs St. of Tripura (1996
3 GLR 197),

9. St. of UP Vs Kishanpal (2008 16 SCC 73),

10. Bipin Kumar Mondal Vs St. of W.B. (2010 12
SCC 91),

11. Jagdish B Rao Vs Govt. of Union Territory
of Goa Daman & DiVs (1976 Cr. L.J. 132 at
134),

12. Chandrika Ram Kahar Vs Emperor (1922 Pat.
535),

13. Surendra Singh Vs St. (Union Territory of
Chandigarh) (2021 20 SCC 24),

14. Vadivelu Thevar Vs St. of Madra (AIR 1957
SC 614),

15. Harchand Singh & anr. Vs St. of Har. (1974 3
SCC 397),

16. Krishnamurti Vs St. of Karn. (2022 7 SCC
521),

17. Ram Nihore Yadav Vs St. of Bihar (1998 4
SCC 517),

18. Surendra Paswan Vs St. of Jharkhand (2003
12 SCC 360).

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Shri Rajiv Lochan Shukla
and Shri Pavan Kishore, learned counsel for
the appellant, Shri C.L. Singh, learned
A.G.A. for the State-respondent, and
perused the material placed on record.

2. Upon completing the investigation1
the police filed the charge-sheet against the
accused-appellant Indra Pal, and coaccused Sohanvir. The accused-appellants
were charged under Section 302 read with
section 34 IPC, wherein, they denied the
prosecution case and claimed trial.

3. The learned trial court vide
impugned judgment and order dated
26.11.1980
convicted
the
accusedappellant
Indra
Pal
and
co-accused
Sohanvir, and vide order dated 27.11.1980
sentenced
them
to
undergo
life
imprisonment for the offenses under
Section 302 read with Section 34 I.P.C.
Aggrieved by the impugned judgment of
conviction and order of sentence, the
accused-appellants preferred the instant
appeal before this Court.

4. The co-accused Sohanvir assailed
the impugned judgment of conviction and
order of sentence through separate Criminal
2134 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal bearing No.2741 of 1980, who died
on 5.11.2011 during the pendency of the
appeal, and thus, the appeal No.2741 of
1980 was dismissed as abated vide order
dated 28.9.2021. The instant appeal bearing
Criminal Appeal No.2751 of 1980 qua
accused-appellant, Indra Pal, is being heard
and decided by this judgment. Needless to
say, both the appeals have arisen out of the
common impugned judgment.

5. The prosecution case, in brief, is
that a written complaint was lodged at
Police Station Jani, District Meerut, on
31.5.1978 at 08:00 a.m. regarding the
incident took place at 02:30 a.m. in the
village Jani, by one Chamel Singh- father
of the deceased- with the allegation that he
along with his son Karamvir (since
deceased) and Vijendra Singh (PW-2) were
sleeping in his Gher2, where a lantern was
burning on the Jamun tree. It was at around
02:30 a.m., the accused-appellants and
another person scaled over the wall and
barged into his Gher. Karamvir was shot
dead, and on the noise of firing, Chamel
Singh and Vijendra Singh woke up and saw
the accused-appellants along with a third
person, who was crossing the wall of the Gher
and accused Sohanvir and Indra Pal were
standing a few paces away from his deceased
son carrying pistols in their hands. The
accused-appellant, Indra Pal, and co-accused,
Sohanvir, were identified by Chamel Singh.

6. The motive assigned in the Tehrir
is that Sohanvir son of Bhopal had an illicit
relations with one Smt. Prasandi, who was
a cousin of the informant Chamel Singh,
and Karamvir made an attempt to stop the
illicit
relations,
therefore,
accusedappellant executed the murder of Karamvir.

7. On receipt of the information, the
police registered the F.I.R. and, after that,
proceeded to the place of occurrence for
further proceedings; S.I. A.K. Chaudhary
prepared the inquest report, and the bloodstained pillow cover and lantern were taken
into possession and seizure memo was thus
prepared accordingly. The Station House
Officer prepared the site plan and recorded
the statement of witnesses. During the
investigation, Sarwan Singh Yadav (PW5), S.H.O., was transferred, and further
investigation was entrusted to S.I. Ranvir
Singh,
who,
upon
receipt
of
the
investigation,
conducted
the
pending
investigation and upon its completion filed
the charge-sheet. The post-mortem was
conducted by Dr. G.N. Goel (PW-4) at P.L.
Sharma Hospital, Meerut on 31.5.1978 at
04:45 p.m., and opined the cause of death
was due to the gunshot injuries inflicted on
the head of the deceased.

8. The prosecution examined five
witnesses; PW-1 Jai Prakash is the witness
to the inquest report; PW-2 Vijendra Singh
is the solitary eyewitness of the case; PW-3
HC Madan Lal was posted as Moharrir at
the Police Station and recorded the F.I.R.;
PW-4 Dr. G.N. Goel has conducted the
post-mortem of the deceased; PW-5 S.I.
Sarwan Singh Yadav conducted the initial
investigation and recorded the statement of
the witnesses; and S.I. Ranvir Singh, who
filed the charge-sheet, was not examined by
the prosecution.

9. Besides ocular testimony, the
prosecution
proved
an
exhibited
documentary evidence outlined hereinafter;
the F.I.R. is marked and exhibited as
Ex.Ka-6;
Recovery
Memo
and
Supurdginama of Lantern are marked and
exhibited as Ex.Ka-7; Post-mortem Report
is marked and exhibited as Ex.Ka-5;
Panchayatnama is marked and exhibited as
Ex.Ka-2/1; a site plan with an index is
5 All. Indra Pal Vs. State of U.P.
2135
marked and exhibited as Ex.Ka-8; Chargesheet is marked and exhibited as Ex.Ka-9.

10. PW-1 Jai Prakash stated that the Sub
Inspector prepared the inquest report of the
deceased- Karamvir at about 09:00-10:00
a.m., and he was a witness to the inquest
report (Ex.Ka-1). Deceased Karamvir had
sustained a firearm injury on his head. In his
cross-examination, he stated that accused
Sohanvir and his father were present during
the inquest proceedings, but accusedappellant Indra Pal was not there. The dead
body of the deceased Karamvir was lying on
a cot. Besides this, the witness was not put to
cross-examination, neither by the accusedappellant nor by the prosecution to prove the
prosecution case.

11. PW-2 Vijendra Singh is the
solitary eyewitness of the incident and the
star prosecution witness, who has stated in
his examination-in-chief that he was
sleeping on one of the cots in the Gher, and
his father, Chamel Singh, was sleeping in
another cot. His brother Karamvir Singh
was also sleeping beside him on a separate
cot, and a burning lantern was hanging on
the Jamun tree. Upon hearing the gunshot
noise, he woke up and saw accusedappellant Sohanvir standing at a distance of
two paces from the cot of the deceased
Karamvir carrying a pistol in his hand, and
accused Indra Pal was also standing there
with a pistol. A third person was also
standing there with a pistol, whom he did
not know but could identify in his
presentation. All the accused were staring
at the deceased Karamvir, and after seeing
the witness and his father, they ran away
after crossing the southern side wall of the
Gher. Karamvir died on the spot. After
hearing the noise of gunshot, other covillagers also arrived there. His father,
Chamel Singh, died on 19.3.1979, who had
reported the matter to the police and he
could identify his signatures. The police
come to the village at about 10:00 a.m. The
witness was also threatened by the accusedappellant Indra Pal on 8.7.1980 not to
depose in the instant case. Otherwise, he
would face the dire consequences, his
father faced. The victim has also filed an
application before the trial court in this
regard. On the question put by the court, the
witness said that he had stated in the
Panchayat that his brother was killed by one
Daya Ram and his son, with whom they had
old enmity, and the said Panchayat was
convened after 2-3 days of his brother's
death. He is aware of whether his brother
had requested the police to investigate the
case by C.I.D. and had filed the application
to the D.S.P. in this regard.

12. PW-3, Constable Madan Lal,
stated that he had recorded the F.I.R. based
on Tahrir received from Chamel Singh, the
deceased's father.

13. PW-4 Dr. G.N. Goel, Medical
Officer at P.L. Sharma Hospital, conducted
the postmortem of the deceased Karamvir
and observed the following injuries:

"(i) A gunshot wound of entry 2
cm. x 2 cm. x brain cavity deep on the left
side of the head 7 cm. above the left ear.

(ii) Blackening and charring
around the wound.

(iii) Gunpowder marks were seen
on the back and left forearm.

(iv) The frontal and parietal
bones were found fractured.

(v) The brain was lacerated.

(vi) The interior perennial fossa
was also fractured.

(vii) Six pellets were recovered
from the head, and the same was sealed and
handed over to the I.O.
2136 INDIAN LAW REPORTS ALLAHABAD SERIES

(viii) Cause of death was opined
due to injuries sustained by the deceased in
the brain, which is the vital organ of the
body."

14. PW-5, S.I. Sarwan Singh Yadav,
in whose presence the police conducted the
investigation,
along
with
S.I.
A.K.
Chaudhary, prepared the Panchnama,
collected the blood-soaked pillow and
lantern, and prepared the site plan. He
stated that he has recorded the statements of
Jagsoran, Prahlad Singh and Prasandi.

15. After recording the statement of
prosecution witnesses, the statement of
accused-appellant Indra Pal was recorded
under Section 313 Cr.P.C., who stated that
he along with Sohanvir, Babu Ram and his
father Uday Singh, were present at the time
of the inquest proceedings and had been
falsely implicated in this case because of
the village rivalry. Had he been accused,
why would he have been present at the time
of inquest proceedings by police?

16. Shri Rajiv Lochan Shukla, learned
counsel for the appellant, made the
following submissions:

16.1 The original copy of the
F.I.R.,
based
on
which
the
police
investigation commenced, is missing from
the record, and the same was not proved
and exhibited by the trial court. Therefore,
the entire investigation began after the
registration of F.I.R. was vitiated under the
law, and thus, the appellant shall be
acquitted on this ground alone. In the
absence of a fair investigation, a fair trial is
not possible, which is the fundamental
requirement under criminal jurisprudence.

16.2 The case diary, in which the
I.O.'s proceedings were recorded, has not
been exhibited.

16.3 The testimony of sole
eyewitness Vijendra Singh (PW-2) cannot
be relied upon because it contains material
contradictions and improvements. PW-2's
statement was contrary to the statement
recorded by the police under Section 161
Cr.P.C., and no explanation was given as to
why the Investigating Officer did not
record certain material facts and he also
resiled from the prosecution case.

16.4 The motive of the offence is
absurd, and the prosecution has failed to
prove the motive behind the commission of
the offence.

16.5
PW-2's
testimony
is
manifestly clear that he did not see the
incident, and he only saw the accusedappellant after the commission of the crime.

16.6 PW-2 Vijendra Singh could
not identify the accused persons as there
was dark, and it was also not clear as to who
shot the deceased Karamvir Singh.

16.7 The prosecution has not
produced Jagshoran, the domestic help, and
Prahlad Singh, whose houses were situated
beside the place of the incident, for a reason
best known to the prosecution. Prasandi,
with whom the co-accused Sohanvir had an
illicit relationship, was not examined by the
prosecution, therefore, the prosecution has
not presented the case as was, instead, they
have come up with a different story to
protect the real culprits.

16.8
No
independent/public
witness has been examined, and no
recovery has been effected. The lantern was
not shown hanging with the Jamun tree in
the site plan, and the competent witness has
not proved the site plan. The alleged clothes
seized by the I.O. have not been produced
before the court. No weapon of offence was
recovered and produced in the court. No
recovery has been effected from the
accused-appellant, and the appellant was
not seen committing murder.
5 All. Indra Pal Vs. State of U.P.
2137

16.9
The
prosecution
has
miserably failed to connect the accused
with the commission of the offence. The
testimony of PW-2 is full of contradictions
and embellishments and can not be relied
upon.

16.10 Further, the prosecution
has failed to prove the corroboration. The
deposition of PW-2 should be disbelieved
as it ought to be, in view of the evidence
surfaced during trial. Other materials on
record
do
not
show
the
accused's
complicity in the offence; thus, the
appellant is liable to be acquitted of the
charges.
The
prosecution
could
not
establish the illicit relationship between the
co-accused
Sohanvir
and
one
Smt.
Prasandi, therefore, the sole motive for
commission of offense is absurd and non
conclusive.

16.11 Finally, it's not safe to rely
upon the testimony of the solitary
eyewitness, which is full of contradictions
and embellishments without corroboration.

17. Learned counsel for the appellant
relied upon the judgments of the Supreme
court in the cases of (i) Kuna alias Sanjaya
Behera v. State of Odisha; (ii) Ramji
Suriya
and
Another
v.
State
of
Maharashtra; and (iii) Amar Singh v.
NCT of Delhi on the issue that the
testimony of the sole eyewitness must be
examined with caution, especially when he
is an interested witness as the PW-2 is the
real brother of deceased, and there is high
likelihood to implicate the appellant
falsely.

18. Per contra, learned A.G.A. states
that the evidence of sole witnesses PW-2 is
coherent, consistent, cogent, and fully
corroborated by the medical evidence.
Thus, the prosecution has proved the
charges beyond a reasonable doubt. The
conviction and sentence of the accusedappellant do not merit interference. The
court below was justified in relying on the
testimony of PW-2, which is duly proved
and corroborated by the testimony of Dr.
G.N. Goel (PW-4), who conducted the
Post-mortem of the deceased. There are no
material contradictions in the evidence
adduced on behalf of the prosecution. In
normal circumstances, PW-2 Vijendra
Singh, being the brother of the deceased,
would be most reluctant to spare the actual
assailants and falsely mention the names of
the other persons responsible for causing
the death of his brother. He further submits
that the report lodged by Chamel Singh,
father of the deceased, if proven, would
have suggested that he would be the last
person to have falsely implicated the
accused persons in his son's murder,
leaving the real culprits. Thus, the fact that
PW-2 Vijendra Singh is the deceased's
brother, is insufficient to discredit his
sworn testimony. There does not appear to
be any exaggeration of falsehood in his
evidence.

19. Learned A.G.A. further contends
that
merely
because
a
minor
contradiction/inconsistency cropped up in
the witness's evidence, it cannot be a
ground to disbelieve the truthfulness of the
testimony of PW-2. He submits that the
grain has to be separated from the chaff to
find out the truth from the testimony of the
PW-2 and relied on the judgments of the
Supreme Court in Shakila Abdul Gafar
Khan v. Vasant Raghunath Dhoble,
State of A.P. v. Pullagummi Kasi Reddy
Krishna Reddy, and Rupinder Singh
Sandhu v. State of Punjab.

20. The principal argument of Shri
Rajiv Lochan Shukla, learned counsel for
the appellant is that the prosecution failed
2138 INDIAN LAW REPORTS ALLAHABAD SERIES
to produce the original F.I.R.; therefore, the
entire proceedings arising out of the
impugned F.I.R. were vitiated, and hence,
the appellant may be acquitted. In this
regard, it's become necessary to scrutinize
the law carefully regarding the evidentiary
value of F.I.R.

21. Shri Shukla, primarily assailed the
impugned order on the ground that the
original F.I.R. is missing and has not been
produced in the court; therefore, the entire
investigation commenced after that is
vitiated under law. Therefore, the law about
the evidentiary value of F.I.R. assumes
significance and is thus imperative to have
a re-look in this regard. As observed by the
Privy Council in Emperor v. Khwaja
Nazir Ahmad the receipt and recording of
information report by the police is not a
condition precedent to the setting in motion
of a criminal investigation. Nor does the
statute provide that such information report
can only be made by an eyewitness. The
First Information Report under Section
154(1) Cr.P.C. is not even considered
substantive evidence. It can only be used to
corroborate or contradict the informants'
evidence in court. Undue or unreasonable
delay in lodging the First Information
Report invariably gives rise to suspicion,
which puts the court on guard to look for
the plausible motive and explanation for the
delay and consider its effect on the
trustworthiness
or
otherwise
of
the
prosecution version10.

22. Once the complaint of the
petitioner disclosed the commission of a
cognizable offense, the proper course
according to law as provided by Section
154 (1) of the Code of Criminal Procedure
is to register the F.I.R. and then investigate
the same and the vice-versa could not be
resorted to, legally.

23. In any circumstance, it is the
responsibility of the defense counsel to
ascertain whether a statement has been
regarded as a First Information Report
(F.I.R.) or is recorded as a statement taken
during the investigative process outlined in
Section 162 of the Code of Criminal
Procedure. The defense counsel should
then confront the concerned witness
regarding any omissions or contradictions
within that statement.

24. There are situations where the
complainant is the initial person to visit the
police station and provide details about an
alleged crime directly to the officer-incharge, who promptly records the statement
before any other actions. In such instances,
the statement can be immediately marked
as an exhibit on the record without being
initially making for identification and
subsequently marking it as a regular exhibit
after the Investigating Officer's testimony.
However, unless these circumstances are
evident from the record, it is advisable for
the trial court to adopt the procedure
initially marking the statement first for
identification and then as a regular exhibit.
These observations stem from numerous
cases where statements recorded during the
investigative process were treated as F.I.R.s
without any objection from the defense
counsel
or
without
the
trial
court
deliberating on whether the statement was
obtained during the investigation or before
it commenced.

25.
The
absence
of
the
First
Information Report, therefore, by itself
cannot destroy the prosecution case11. But
this
will
make
a
prosecution
case
suspicious12.

26. It is necessary to stress that the
statement recorded under Section 161 Cr.
5 All. Indra Pal Vs. State of U.P.
2139
P.C. shall not be used for any purpose
except to contradict a witness in the manner
prescribed in the proviso to Section 162 (1)
Cr.P.C.

27. So far as Shri Rajeev Lochan
Shukla's next argument is concerned, the
trial court has committed a grave error by
believing
the
testimony
of
solitary
eyewitness Vijendra Singh (PW-2) without
corroboration, which is supplemented by
the
weak
motive
attributed
to
the
commission of the offense, and absurd
investigation.

28. The Supreme court in State of
U.P. v. Kishanpal case has held that the
motive
may
be
considered
as
a
circumstance that is relevant for assessing
the evidence, but if the evidence is clear and
unambiguous and the circumstances prove
the guilt of the accused, the same is not
weakened even if the motive is not a very
strong one. It is also settled law that the
motive loses all its importance in a case
where direct evidence of eyewitnesses is
available because even if there may be a
very strong motive for the accused persons
to commit a particular crime, they cannot
be
convicted
if
the
evidence
of
eyewitnesses is not convincing. In the same
way, even if there may not be an apparent
motive if the evidence of the eyewitnesses
is clear and reliable, the absence or
inadequacy of motive cannot stand in the
way of conviction.

29. The Supreme court in Bipin
Kumar Mondal v. State of West Bengal
has held that motive is a thing that is
particularly known to the accused himself,
and it may not be possible for the
prosecution to explain what actually
prompted or excited the accused to commit
a crime. The motive is distinct from "object
and means" which innervates or provokes
an action. Unlike "intention", "motive" is
not the yardstick of a crime. A lawful act
with an ill motive would not constitute an
offense but it may not be true when an
unlawful act is committed with best of the
motive. Unearthing "motive" is akin to an
exercise of manual brain-mapping. At
times, it becomes herculean task to
ascertain the traces of a "motive". The
three-Judge Bench of the Supreme court in
Surendra
Singh
v.
State
(Union
Territory of Chandigarh) case has further
elucidated that the motive is infallibly a
crucial factor, and is a substantial aid for
evincing the commission of an offense, but
the absence thereof is, however, not such a
quintessential component which can be
construed as fatal to the case of the
prosecution, especially when all other
factors point towards the guilt of the
accused and testaments of eyewitnesses to
the occurrence of a malfeasance are on
record.

30. As the PW-2 Vijendra Singh is the
only eyewitness to the incident, who was
examined by the prosecution and was
sleeping beside the deceased on a separate
cot and had seen the appellant carrying a
pistol in his hand standing a few paces away
from the cot on which the deceased was
lying. Chamel Singh was also present at the
spot; he was a police witness but could not
be produced in the court for examination as
he had died before the trial court could
summon him. The other police witnesses,
Jagmohan,
Prabhat
Singh
and
Smt.
Prasandi, were not summoned by the
prosecution to prove the prosecution's case;
therefore, it is prudent to examine the law
about the admissibility of evidence of the
sole eyewitness. The relevant portion of the
testimony of PW-2 is extracted herein
under, for ready reference:
2140 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. हमारे व दयाराम तथा उसके
लडको के ताल्लुकात ठीक है न मेल है न रांजजश
हैं इन्रपाल से मेरी कोई रांजजश नहीां थी, सोहनवीर
से भी हमारी कोई रांजजश नहीां थी। र्ाांव में मेरे
वपता के मारे जाने के 2-3 टदन बाद एक पांचायत
हुई थी। जजसमें मेरे मामा व र्ाांव के अन्य
आदमी भी थे।

प्रश्न- क्यो ऐसा है कक पांचायत में मेरे
भाई ज्ञानेन्र ने यह कहा कक मेरे वपता व मेरे
भाई को दयाराम व उसके लडको ने मारा है?

उत्तर- मेरे भाई ने पांचायत में यह बात
कही थी।"

"14. परसन्दी को मै जानता हूुँ, वह
मेरी फूफी है और उम्र करीब 55-60 साल होर्ी।
उसके सर्े भाई हरपाल लसांह है। हरपाल लसांह के
चार लडके है। मेरे वपता जी की उम्र 65 वषग थी।
मै बाबूराम को जानता हूुँ, वह अदालत में मौजूद
है, उनकी उम्र का मुझे पता नहीां। हमारी इनसे
कोई रांजजश नहीां है।"

31. The Supreme Court in Vadivelu
Thevar v. State of Madras has carved out
three categories of witnesses; (i) wholly
reliable, (ii) wholly unreliable, and (iii)
neither
wholly
reliable
nor
wholly
unreliable, and thus held:

"In view of these considerations,
we have no hesitation in holding that the
contention that in a murder case, the court
should insist upon plurality of witnesses, is
much too broadly stated. Section 134 of the
Indian Evidence Act has categorically laid
it down that "no particular number of
witnesses shall in any case be required for
the proof of any fact." The legislature
determined,
as
long
ago
as 1872,
presumably after due consideration of the
pros and cons, that it shall not be necessary
for proof or disproof of a fact, to call any
particular
number
of
witnesses.
In
England, both before and after the passing
of the Indian Evidence Act, 1872, there
have been a number of statutes as set out in
Sarkar's I Law of Evidence -9th Edition, at
pp. 1 100 and 1 101, forbidding convictions
on the testimony of a single witness. The
Indian Legislature has not insisted on
laying down any such exceptions to the
general rule recognized in s. 134 quoted
above. The section enshrines the wellrecognized maxim that "Evidence has to be
weighed and not counted". Our Legislature
has given statutory recognition to the fact
that administration of justice may be
hampered if a particular number of
witnesses were to be insisted upon. It is not
seldom that a crime has been committed in
the presence of only one witness, leaving
aside those cases which are not of
uncommon
occurrence,
where
determination of guilt depends entirely on
circumstantial evidence. If the Legislature
were to insist upon plurality of witnesses,
cases where the testimony of a single
witness only could be available in proof of
the crime, would go unpunished. It is here
that the discretion of the presiding judge
comes into play. The matter thus must
depend upon the circumstances of each
case and the quality of the evidence of the
single witness whose testimony has to be
either accepted or rejected. If such a
testimony is found by the court to be
entirely reliable, there is no legal
impediment to the conviction of the accused
person on such proof. Even as the guilt of
an accused person may be proved by the
testimony of a single witness, the innocence
of an accused person may be established on
the testimony of a single witness, even
though a considerable number of witnesses
may be forthcoming to testify to the truth of
the case for the prosecution. Hence, in our
5 All. Indra Pal Vs. State of U.P.
2141
opinion, it is a sound and well- established
rule of law that the court is concerned with
the quality and not with the quantity of the
evidence
necessary
for,
proving
or
disproving a fact. Generally speaking, oral
testimony in this context may be classified
into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable."

32. The Supreme court in Harchand
Singh & Anr. v. State of Haryana, held
that (i) the function of the court in a
criminal trial is to find whether the person
arraigned before it as the accused is guilty
of the offense with which he is charged. For
this purpose, the court scans the material on
record to find whether there is any reliable
and trustworthy evidence upon the basis of
which it is possible to found the conviction
of the accused and to hold that he is guilty
of the offense with which he is charged; (ii)
the court can base the conviction of the
accused on a charge of murder upon the
testimony of a single witness if the same
was found to be convincing and reliable. If
in a case the prosecution leads two acts of
evidence, each one of which contradictions
and strikes at the other and shows it to be
unreliable, the result would necessarily be
that the court would be left with no reliable
and trustworthy evidence upon which the
conviction of the accused might be based.
Inevitably, the accused would have the
benefit of such a situation.

33. A perusal of the trial court
judgment would reveal that the conviction
is based on the testimony of PW-2, the sole
eyewitness of the incident. While recording
the finding of the conviction against the
accused-appellant, the trial court believed
that there was no question to disbelieve the
testimony of PW-2 Vijendra Singh, who is
the real brother of the deceased and was
present at the time of the incident. PW-2
clearly stated in his deposition that the
accused-appellant was standing near his
brother when he woke up after hearing the
gunshot; he could identify two of the
assailants, whereas the third assailant could
not be identified. As the deceased was from
his village and had illicit relations with
Smt. Prasandi, who is a relative of PW-2;
therefore, the accused decided to eliminate
the deceased, who was coming his way to
continue his illicit relationship with Smt.
Prasandi. There was sufficient light, and the
site plan also indicates the source of light.
There is also no ground to disbelieve that
the lantern was burning inside Gher and the
accused was standing two paces away from
the cot of the deceased and, after that,
scaled over the wall. The registration of the
chik F.I.R. was exhibited by PW-3, Police
constable Madan Lal, who has recorded the
Tehrir;
therefore,
it's
become
inconsequential whether the F.I.R. was
exhibited or not. Normally, PW-2 Vijendra
Singh, being the brother of the deceased,
would be most reluctant to spare the real
assailant and falsely mention the name of
the other person for murdering his brother.
Lastly, the testimony of PW-2 was found
convincing and reliable.

34. In the light of the findings of the
trial court, it becomes imperative to
examine the witnesses on two aspects;
firstly, the motive, and secondly, the act
performed
by
the
accused
in
the
commission of the crime. It is an admitted
case of the prosecution that accused
Sohanvir had illicit relations with Smt.
Prasandi, and the deceased was coming in
their way to object to the same. Therefore,
the accused persons decided to eliminate
the deceased. This is the sole motive behind
2142 INDIAN LAW REPORTS ALLAHABAD SERIES
the commission of murder to prove the
motive and for the act performed in
commission of murder; the testimony of
sole eyewitness PW-2 Vijendra Singh, the
brother
of
the
deceased
assumes
significance because he is the solitary
eyewitness.

35. The facts and the evidence placed
before the trial court by the prosecution-
suggest that the appellant's conviction is
solely based on the testimony of PW-2, the
eyewitness who saw appellant was carrying
the pistol in hand, when he woke up after
hearing the gunshot noise and found the
deceased in pool of blood on the cot.

36. In this case, the touchstone of
legal exposition is the testimony of PW-2,
the sole eye witness, and PW-5, who
conducted the investigation.

37. Admittedly, PW-2, a solitary
eyewitness of the incident, is the deceased's
brother and, therefore, is a related and
interested witness. He claims to have slept
beside the deceased and woke up after
hearing the gunshot. PW-2 supported the
case of the prosecution in the chief
examination,
whereas,
in
crossexamination, he stated that he knows one
Daya Ram of his village, who has three
sons, and all live with their parents, and
further said that we had a panchayat at his
village after 2-3 days of the date of the
incident in which his maternal uncle and
other co-villagers were present. On a court
question, the witness admitted that his
brother Gyanendra had stated that one Daya
Ram and his son had murdered the
deceased. He further stated that his family
was not happy with the police investigation
and had requested the C.O. to transfer the
investigation to the C.B.C.I.D. When the
witness was confronted with the statement
under Section 161 Cr.P.C., he stated that he
had not given such statement to the
Investigating Officer and did not know why
he recorded his statement under Section
161 Cr.P.C. that the accused Indra Pal was
standing two paces away from the cot of the
deceased and he was carrying a pistol. He
further stated that he had not told the
Investigating Officer that the third person
was also standing there carrying a gun in his
hand. He has also not told to the
Investigating Officer that the accused
scaled the wall, but he has told that the
accused went south, and his father has told
the incident to his servant Jagshoran and
one Jai Prakash Jogi, but the Investigating
Officer did not record their statements.

38. When the PW-2, the solitary
eyewitness was confronted with the
statement recorded by the I.O. under
Section 161 Cr.P.C. he showed ignorance
of certain relevant facts, which are
extracted below:

23. सुबह मेरे घेर से सोहनवीर को
धर्रफ्तार नही ककया। सोहनवीर व इन्रपाल की
तलाशी रात में नही कराई थी। मैने दरोर्ा जी
को मुलजजमान के तलाश कराने की बात नही
बताई थी, पता नही मेरे बयान मे उन्होने कैसे
ललख ललया। यह र्लत है कक मेरी आांख र्ोली
चलने के बाद खुली और मैने केवल तीन
आदमीयों को दीवार फाुँदते देखा था जजनको मै
पहचान नही सका। मैने दरोर्ा जी को बयान
टदया था कक मुलजजमान व एक अन्य आदमी
को दीवार फाुँदते हुऐ देखा है। दरोर्ा जी को
वपच्छली दक्षक्षणी दीवार फाुँदना बताया था पता
नही उन्होंने क्यों नही ललखा। ऐसा नही है कक
मै वहाुँ नही था और चूांकक ररपोिग ललखा दी है।
इसललये बयान दे रहा हूुँ।"
5 All. Indra Pal Vs. State of U.P.
2143

39. Given the aforesaid improvements
and deliberations, it becomes necessary to
corroborate the solitary witness's testimony
with other circumstantial evidence, and the
evidence of PW-2 must be scrutinized with
great caution and circumspection.

40. The PW-1, a witness to the inquest
report, has shown ignorance as to who had
gone to the police station to register the
F.I.R. and how many cots were present near
the place of the incident. He is unaware of
who was present during the inquest
proceedings. The Investigating Officer
PW-5 stated that he had seized bloodsoaked soil, lantern and prepared the site
plan, and after that second Investigating
Officer, Shri Ranveer Singh, after taking
the statement of Jagshoran and Prahlad
Singh,
filed
the
charge-sheet.
On
examination by the prosecution, nothing in
the testimony of PW-5 suggests that he had
made any efforts to recover the gun, the
weapon of offence or sent the pellets
recovered from the deceased to the F.S.L.
for corroboration.

41. In the matter of appreciation of
evidence of witnesses, it is not the number of
witnesses but the quality of their evidence
that is relevant, as there is no requirement
under the law of evidence that any particular
number of witnesses is to be examined to
prove/disprove effect. The evidence must be
weighed and not counted. The testimony of
PW-2 fails to pass the standard of test of a
creditworthy witness. There is no doubt the
conviction can be based on the testimony of
a sole eyewitness, and there is no rule of law
for evidence that says to the contrary,
provided the sole witness passes the test of
reliability. So long as the single eyewitness
is a wholly reliable witness, the courts have
no difficulty basing conviction on his
testimony alone.

42. The trial court recorded the finding
that the charge framed under Section 302 read
with Section 34 I.P.C. is proved against the
accused persons and, therefore, hold guilty
both the appellant and co-accused Sohanveer,
who had died during the pendency of the
instant appeal before this Court, therefore, the
appeal is dismissed as abated qua accused
Sohanveer. Therefore, we proceed to deal
with the evidence come-forth qua appellant-
Indrapal.

43. Succinctly, as per the trial court,
three accused persons had committed the
crime: accused Sohanveer (since died) and
Indra Pal were carrying a gun, and a third
accused was also there who could not be
identified, as per PW-2, and the deceased had
died because of a single gunshot injury on his
head, P.W.4 stated. There is no material on
the trial court record to establish a common
intention on the part of the appellant, Indra
Pal, to commit murder. Assistance has been
taken from Krishnamurti v. State of
Karnataka.

"26.Section 34 I.P.C. makes a coperpetrator, who had participated in the
offence, equally liable on the principle of
joint liability.