# Jata Shankar & Ors v. State of U.P

- **Citation:** J. Criminal Appeal No. 313 of 1986
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** J. Criminal Appeal No. 313 of 1986
- **Bench:** Ritu Raj Awasthi, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jata-shankar-ors-v-state-of-u-p-46389
- **Pages:** 26

## Headnote

Govt. Advocate

A. The motive for committing an offence in
all cases has not of much importance,
particularly where the prosecution case is
totally based on direct evidences proof of
motive becomes of less significance- If
prosecution witnesses consistently have
accounted
for
the
material
facts
of
incident
without
any
repugnance
or
serious anomaly in their own statement or
in their statements inter-se, except minor
variation having no material alteration in
the nature and genesis of the incident,
they shall be treated as credible and
reliable
witness-
Non
production
of
torches by the Investigating Officer at the
time of his examination in the court would
not have any effect of corroding the
prosecution case as the assailants were
known to the witnesses and they were
seen from the very near by the witnesses-
The test identification parade is not a
substantive piece of evidence- Necessity
of test identification parade arises only in
cases where the miscreants/assailants are
168 INDIAN LAW REPORTS ALLAHABAD SERIES
unknown- The witnesses either may be
relative or independent must have to pass
the test of credibility, truthfulness and
reliability. The relative witnesses cannot
be said disinterested but it is also true
that a witness losing her relatives ,in place
of
the real
culprit,
will
not
falsely
implicate someone else and save the real
culprit.- if any, discrepancy occurs with
regard to the direction of the wound
caused by the fire arm injury and distance
from the deceased when fired it would be
immaterial on the strength of the ocular
testimony of the witnesses and is not of
such kind which can completely over rule
the incident of firing upon the deceased by
the
accused-appellants-Option
of
prosecution to examine all its witnesses or
some or any one of them to prove the
case.

Held- Indian Evidence Act- Section 8-
Motive- Plays an important role and relevance
with regard to the substantive piece of evidence
proving the incident in question with all
certainty and the identification of the accused
and their role.

Evidence Law- Indian Evidence Act -
Section 9- Test identification parade- It is
not a substantive piece of evidence. Necessity of
test identification parade arises only in cases
where the miscreants/assailants are unknown.z

Evidence
Law-Indian
Evidence
Act-
Section 118 - Reliability of Witnesses- The
witnesses either may be relative or independent,
must have to pass the test of credibility,
truthfulness and reliability. A witness losing her
husband and father in place of the real culprit
will not falsely implicate someone else and save
the real culprit - If prosecution witnesses
consistently have accounted for the material
facts of incident without any repugnance or
serious anomaly in their own statement or in
their statements inter-se, except minor variation
having no material alteration in the nature and
genesis of the incident, they shall be treated as
credible and reliable witness.

The ocular

## Text

_Characters 0–39,921 of 89,339. This is a partial read: ask again with offset=39921 for what follows._

3-5 All. Jata Shankar & Ors. Vs. State of U.P.
167

90. We are mindful of the fact that
Smt. Renu Rai is no ordinary witness. Her
presence at the scene of crime and her
account about it, cannot be doubted. But,
her evidence about the appellants is
eclipsed by a grave shadow of doubt. To
add to it, her conduct in testifying to a false
story of identification and arrest of the
appellants on 12.12.2001 deprives her of
the privilege of being an absolutely truthful
witness, and her evidence of
 its character as sterling.

91. On this kind of evidence, in our
considered opinion the identity of the
appellants and their connection to the crime
is under a shadow of serious doubt. Upon a
consideration of the totality of evidence, we
find and hold that the appellants are entitled
to the benefit of doubt, and it would be
unsafe to uphold their conviction.

92. In the result, the appeals succeed
and are allowed. The impugned judgment
and order dated 29.10.2003 passed by the
Additional Sessions Judge, Fast Track
Court no.4, Gorakhpur in Sessions Trial
no.177 of 2002, State of U.P. vs. Shyam @
Sambhal and others, under Sections 396,
412 IPC, Police Station Khorabar, District
Gorakhpur is hereby set aside and the
appellants are acquitted.

93. The appellants are in jail. They
shall be released forthwith unless wanted in
connection with any other case and subject
to fulfilling the requirements under Section
437-A Cr.P.C.

94. A copy of this judgment along
with Trial Court record be sent to the
learned Sessions Judge, Gorakhpur for
information and necessary compliance.
Judgment be certified and placed on record.
----------
(2020)03-05ILR A167
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV,
J.

Criminal Appeal No. 313 of 1986
&
Criminal Appeal No. 459 of 1986

Jata Shankar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.P. Pandey, A Sinha, B.D. Misra, Jyotindra
Mishra, Kapil Misra, Lalji Gupta, R N
Srivastava, Rajeev Singh, Suresh Chandra
Tiwari

Counsel for the Respondent:
Govt. Advocate

A. The motive for committing an offence in
all cases has not of much importance,
particularly where the prosecution case is
totally based on direct evidences proof of
motive becomes of less significance- If
prosecution witnesses consistently have
accounted
for
the
material
facts
of
incident
without
any
repugnance
or
serious anomaly in their own statement or
in their statements inter-se, except minor
variation having no material alteration in
the nature and genesis of the incident,
they shall be treated as credible and
reliable
witness-
Non
production
of
torches by the Investigating Officer at the
time of his examination in the court would
not have any effect of corroding the
prosecution case as the assailants were
known to the witnesses and they were
seen from the very near by the witnesses-
The test identification parade is not a
substantive piece of evidence- Necessity
of test identification parade arises only in
cases where the miscreants/assailants are
168 INDIAN LAW REPORTS ALLAHABAD SERIES
unknown- The witnesses either may be
relative or independent must have to pass
the test of credibility, truthfulness and
reliability. The relative witnesses cannot
be said disinterested but it is also true
that a witness losing her relatives ,in place
of
the real
culprit,
will
not
falsely
implicate someone else and save the real
culprit.- if any, discrepancy occurs with
regard to the direction of the wound
caused by the fire arm injury and distance
from the deceased when fired it would be
immaterial on the strength of the ocular
testimony of the witnesses and is not of
such kind which can completely over rule
the incident of firing upon the deceased by
the
accused-appellants-Option
of
prosecution to examine all its witnesses or
some or any one of them to prove the
case.

Held- Indian Evidence Act- Section 8-
Motive- Plays an important role and relevance
with regard to the substantive piece of evidence
proving the incident in question with all
certainty and the identification of the accused
and their role.

Evidence Law- Indian Evidence Act -
Section 9- Test identification parade- It is
not a substantive piece of evidence. Necessity of
test identification parade arises only in cases
where the miscreants/assailants are unknown.z

Evidence
Law-Indian
Evidence
Act-
Section 118 - Reliability of Witnesses- The
witnesses either may be relative or independent,
must have to pass the test of credibility,
truthfulness and reliability. A witness losing her
husband and father in place of the real culprit
will not falsely implicate someone else and save
the real culprit - If prosecution witnesses
consistently have accounted for the material
facts of incident without any repugnance or
serious anomaly in their own statement or in
their statements inter-se, except minor variation
having no material alteration in the nature and
genesis of the incident, they shall be treated as
credible and reliable witness.

The ocular evidence will prevail over the
Ballistic evidence in case of contradiction
between the two- If any discrepancy occurs
with regard to the direction of the wound
caused by the fire arm injury and distance from
the deceased when fired it would be immaterial
on the strength of the ocular testimony of the
witnesses and is not of such kind which can
completely over rule the incident of firing upon
the deceased by the accused-appellants.

Evidence
Law-Indian
Evidence
Act-
Section 134- It is the quality of evidence
and not the quantity which is important.

The prosecution cannot be compelled to
produce all the witnesses unless it is shown that
non-examination of a witness by the prosecution
has prejudiced the case of the defence.

The accused-appellants remained unsuccessful
to show even on preponderance of probabilities
the case of defence that dacoity was committed
on the date and time of incident in the house of
informant and they were falsely implicated by
the informant by reason of enmity while the
prosecution
proved
its
case
against
the
appellants
beyond
all
reasonable
doubt.
Accordingly, conviction and sentence of of
Appellants u/s 302/307/34 of the IPC upheld. .
( Para 27,36,39,43,44,49)

Criminal Appeal rejected (E-3)

List of case cited:

1. Iqbal & ors., Vs. St. of U.P., 2015 6 SCC 623

2. Manzoor Vs. St. of U.P. & Suleman Vs. St. of
U.P,. 1982 (2) SCC 72

3. Jitendra Kumar Vs. St. of Har. with Sunil
Kumar & anr. Vs. St. of Har., (2012) 6 SCC 204

4. Brahma Swaroop & anr. Vs. St. of U.P., (2011)
6 SCC 288

5. Machchi Sigh Vs. St. of Punj. & ors., (1983 3
SCC 470)( relied)

6.
St.
of
U.P.
Vs.
Babu
&
ors.
Manu/SC/1149/2003( relied)

7. Thoti Manohar Vs. St. of A.P., (2012) AIR
SCW 3752(relied)
3-5 All. Jata Shankar & Ors. Vs. State of U.P.
169
8. Avtar Singh Vs. St. of Har. & Kripal Singh @
Pala & ors. Vs. St. of Har. & ors., 2012 9 SCC
432( relied)

9. Hukum Singh & ors. Vs. St. of Raj., 2000 (41)
ACC 662( relied)

10. Veer Singh & ors. Vs. St. of U.P,. 2014 2 SCC
455(relied)
(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. These two criminal appeals arise
out of the single judgment and order dated
3.5.1986 passed by the Learned special
Judge, Unnao in Sessions Trial No.406 of
1985 under Section 302/34 and 307/34
I.P.C., Police Station-Maurawan, District-
Unnao, whereby the accused/appellants
have been convicted and sentenced to
undergo imprisonment for life under
Section 302/34 IPC and three years'
rigorous
imprisonment
under
Section
307/34 IPC.

2. The case of the prosecution in brief
as emerging out from the contents of the
F.I.R. and the evidences laid before the
court is that the elder brother of the
informant (Ram Praksh, PW-1) namely
Sachidanand, resident of Village Korwa
(Mawai), Police Station - Maurawan,
District 'Unnao' was married to Meena
Kumari, the daughter of accused appellant,
Jatashankar in February 1983. Smt. Meena
Kumari died of burn injuries as she caught
fire
while
cooking
food.
Accused
Jatashankar, his sons namely accused
appellants Mukesh and Rakesh came under
impression that the said Meena Kumari was
intentionally
burnt
by
her-in-laws.
Consequently, the family of the accused
persons developed tense relation with the
informant's family on account of above
incident. They used to remain in search of
chance to take counter action against
informant's family in vengeance. On
22.6.1985 at about 6:15 a.m. moving a
written
complaint,
the
informant
Ramprakash informed the Station House
Officer of Police Station- 'Maurawan' that
in the preceding night of 21/22.6.1985,
when his father Ram Asrey, Mother Smt.
Naval kishori (PW-2) and his sister Kumari
Girisa were sleeping on their cots in front
of their house, Ramparakash (PW-1) was
sleeping on the roof of the house and a
lilted lantern was hanging as usually on the
door of the house, at about 1:00 a.m. when
the informant awakened to pee, he saw
accused Jatashankar armed with a gun,
Mukesh armed with a country made pistol
(Katta), Rakesh armed with a 'Tabbal' and
Raju, son of maternal aunt of Mukesh
armed with a country made pistol (katta)
had invaded on the door (sahan) of the
house and were near the cot of his father.
Accused Jata Shankar and Mukesh fired on
his father from their respective weapons.
Hearing the noise of gunshot his mother
Naval Kishori (PW-2) and sister Kumari
Girisa suddenly awakened from sleep and
began to shriek for their rescue. On this,
accused Mukesh fired upon Smt. Naval
kishori also with intention to kill her. The
accused Rakesh inflicted blows of the
'tabbal' on the head of Kumari Girisa,
consequently both of them sustained
injuries. Hearing the hue and cry, the
neighbouring
villagers
Ram
Shankar
(deceased,
victim
in
the
incident),
Jagannath and Pyare rushed up to the spot,
flashing torches along with others. Ram
Shanker
was
leading
them,
accused
Mukesh and Raju @ Chandra Prakash fired
on him, he turned and ran towards his
house but fell down at the door of his house
and died there. Feared of their lives the
other villagers ran away from the spot. The
accused appellants were searching the
170 INDIAN LAW REPORTS ALLAHABAD SERIES
informant-Ramprakash, climbing upon the
roof with the help of a ladder, to kill him
and his brother. They were shouting that
they would take revenge of burning the
daughter by killing the entire family. When
they could not found the informant and his
brother, they fled away from the spot
seeing the villager gathering there. Ram
Prakash (PW-1) went to Maurawan Police
Station got scribed written report and
submit the same to the Police Station on
6:15 a.m. of 22nd June 1985. The case was
registered against the accused persons and
investigated by Shiv Swaroop Tiwari (PW8) and after completion of all the
formalities charge sheet against accused
persons has been submitted by him in the
Court.

3. The Trial Judge, when the accused
persons were produced before the court,
framed charges under Section 302 IPC read
with Section 34 IPC against all of them
while accused Rakesh and Mukesh were
charged under Section 307 IPC and
accused Jatashankar and Raju for the
charge under Section 307 IPC read with
Section 34 IPC.

Witnesses of Prosecution Side

4. Prosecution in order to prove its
case have produced 9 witnesses in the court
namely:-

i. Ramprakash (the informant) as
PW-1, who is the son of Ram Asrey, the
deceased, victim of the incident.

ii. Naval Kishori (the wife of the
deceased, Ram Asrey and mother of PW-1)
as PW-2, she is injured in the incident.

iii. Dr. R. Prasad (Medical officer
of Primary Health Centre Hilauli, who
examined Kumari Girisa, daughter of
deceased Ram Asrey, the injured in the
incident) as PW-3.

iv. S.I. Tribhuvan Nath Singh
(who prepared the inquest report of the
dead bodies of Ram Asray and Ram
Shankar pandey) as PW-4.

v. Dr R.K Suri (Medical Officer
who had done medical examination of Smt.
Naval kishori, PW-2 on 23rd June 1985 at
11:35 a.m.) as PW-5.

vi. Ameer Singh (the Head
Constable who had prepared chick F.I.R.,
exhibit ka-12 and registered the case in the
G.D exhibit ka-13) as PW-6.

vii. Dr S.P. Rastogi (District
Hospital, Unnao who had conducted the
autopsy of dead bodies of Ram Asray and
Ram Shankar on 23rd June 1985 at 2:00
p.m. and prepared postmortem report
exhibit ka-15 and 16) as PW-7.

viii. Shri Shiv Swaroop Tiwari
(Station Head Officer incharge, Police
Station
'Maurawan'
who
had
done
investigation and prepared site plan) as
PW- 8 and other memo of seizure and
recovery from the spot.

ix. Constable Ram Ashish Singh
(who carried the dead bodies of Ram Asray
and Ram Shankar in sealed condition to
Merchury for postmortem) as PW-9.

Documentary Evidences

5. During trial following documentary
evidences were laid before the court and
proved by their respective witnesses. The
written report submitted in Police Station
Maurawan proved by PW-1 Ramprakash is
exhibit
Ka-1,
the
F.I.R.
registered
thereupon is exhibit ka-12, the postmortem
of Ram Shankar is proved by PW-7 as
exhibit ka-15, postmortem of Ram Asrey
proved by PW-7 as Exhibit Ka-16, injury
reports of Kumari Girisa proved by PW-3
is exhibit Ka-2, injuries report of Naval
Kishori by PW-5 is exhibit ka 5, seizure
memo of blood stained clothes of Kumari
Girisa and Smt. Naval Kishori respectively
3-5 All. Jata Shankar & Ors. Vs. State of U.P.
171
ka-17 and ka-18, the seizure memo of
lantern from the spot by investigating
officer is exhibit ka-19, site plan is exhibit
K-20 prepared and proved by investigating
officer, the bed sheet which was on the cot
of Ram Asrey (deceased) at the time of
incident was seized and memo was
prepared by the investigating officer is
Exhibit Ka-21, the seizure memo of 6
pellets found on the body of the deceased
Ram Asrey and three empty cartridges
found beneath his cot were prepared by
investigating officer and proved in the
court is exhibit ka-22, the collection of
blood stained soil and plain soil by
investigating officer from beneath the cot
of Ram Asray and near the dead body of
Ram Shanker Pandey was done and the
memo prepared by the investigating officer
proved in the court by him is exhibit ka-23
and 24. He found one empty cartridge in
the field of Bhagwati, the memo prepared
by him is exhibit ka-26, the ladder used by
the accused persons was seen and memo
thereof was prepared by investigating
officer is exhibit ka-27, memo of torches
prepared by the investigating officer is
exhibit ka-30 and 31, the letters prepared
for medical examination and proved by him
is exhibit ka-28 and 29.

6. After getting examination of all the
prosecution witnesses, the trial judge found
the case of prosecution established on the
basis of evidence of Ramprakash, PW-1,
Smt. Naval Kishori, PW-2 and other
prosecution witnesses. Para-16 of the
impugned judgment of the Trial Judge
reads as under:-

"It is established from the
testimony of Sri Ram Prakash (PW-1) and
Smt. Naval Kisori (PW-2) that the accused
persons bore malice towards the deceased
and the members of his family because the
daughter of accused Jatashanker who was
married to the son of Ram Asre (deceased)
had died due to burn injuries and the
accused persons had impression that she
was intentionally burnt by the family
members of Ram Asrey (deceased). The
accused persons, therefore, armed with
gun, country made pistols and Tabbal (a
sharp edged cutting weapon). It is further
proved from the testimony of these witness
that accused Mukesh and Jatashanker
had fired at Ram Asre who died
instantaneously. On the sound of gun
shots, Smt. Naval Kishori (PW-2) and Km.
Girisha who were sleeping very close to
Ram Asre (deceased) were awakened and
as soon as they tried to raise alarm,
accused Mukesh fired at PW-2 Smt. Naval
Kisori and accused Rakesh assaulted
Kumari
Girisha
with
Tabbal.
Consequently, both of them had suffered
injuries. On the shrieks of these persons,
the villagers including Ram Shanker
(deceased)
rushed
to
the
scene
of
occurrence. Accused Raju and Mukesh
fired at them. Consequently Ram Shanker
had sustained injuries and died on the
spot. Both these witnesses were crossexamined at a very great length by the
learned defence counsel. In spite of
lengthy
and
combersome
crossexamination, they could not be shattered.
Both these witnesses maintained their
mental con-posture throughout and gave
convincing replies to all the questions put
to them. Had they not seen the occurrence
and had they been examined after tutoring
they must have collapsed under the weight
of tiring trying cross-examination. I find
both these witnesses most truthful and
credible and do not discover any ground to
reject their testimony."

Arguments
advanced
by
learned counsel for the appellant, Sri
Jyotindra Misra, Advocate (learned
172 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior Designated) assisted by learned
counsel Sri Kapil Misra, Advocate.

7. The accused appellants have
assailed
the
impugned
judgment
of
conviction and order of sentence on various
grounds inter-alia in the appeal, namely
learned trial judge has erred in law and
facts
in
recording
conviction
and
sentencing the appellants because the
medical evidences show that prosecution
story as narrated in the First Information
Report is false. It is argued that prosecution
has failed to prove it's case beyond all
reasonable doubts as there are so many
contradictions and discrepancies in the
statements of PW-1 and 2 which make
highly doubtful the PW-1 to be an eye
witness, as he claims himself watching the
incident from the roof of his house in the
night of 21/22.6.1985. It is doubtful that he
could see the incident in the light of lantern
hanging on the door of house when his
father deceased Ram Asrey, mother Smt.
Naval Kishori and sister Kumari Girisa
were sleeping on their cots. The night on
the date of incident admittedly was a dark
night and it was quite impossible for PW-1
to see any thing in the weak light of the
lantern, as such identification of accused
person by him was reasonably not possible.

8. Learned counsel further contended,
reading over the statement of PW-1, that he
stated to bear a torch at the time of incident
and saw the accused persons in the flash of
torch also, whereas neither in the First
Information Report the torch is mentioned
nor the torch, by investigating officer, was
produced in evidence and proved during
the trial. Learned counsel further raised a
doubt as to the presence of PW-1 on the
roof of the house along with his cot, in
absence of any stair leading to the roof or
without a ladder.

9. Learned counsel further argued that
ocular evidence is in variance with the
medical evidence which came out from the
medical examination reports of the PW-2,
(the injured witnesses) as well that of
Kumari Girisa. The opinion of doctors who
examined the said two injured person is not
supporting the statement of said witnesses
and as such their presence on the spot is
doubtful. Learned counsel further argued
that in the darkness of the night it was not
possible for the PW-1 to recognize and
identify the assailants who committed the
crime in the fateful night of 21/22.6.1985.
He argued in defence that some dacoits
attacked the house of informant and in the
course of dacoity Ram Asray and Ram
Shankar were gunned down by the
unknown assailants to whom the witnesses
due to darkness of night could not
recognize,
informant
only
under
apprehension
falsely
implicated
the
accused appellants that they might have
attacked in vengeance. As such the entire
case of prosecution is cooked, witnesses are
uncredible
and
untrustworthy.
The
investigation
officer
had
not
held
identification parade after the arrest of the
accused, therefore, the identification of
assailants who commit the offence could
not be established.

10. Learned counsel to fortify his
contention relied on the judgment in Iqbal
and Ors. Vs. State of U.P. reported in 2015
6 SCC 623 particularly citing the para-10
and 11 of the judgment which runs as
under:-

"10. In cases of dacoity, usually,
the offence is committed by unknown
persons with the criminal background. It
is only in very few cases, the accuseddacoits are known to the victim. PW1Patia Singh and PW2-Jay Singh have
3-5 All. Jata Shankar & Ors. Vs. State of U.P.
173
stated that they had witnessed the incident
from a distance of three and half yards.
PW3-Begraj also stated that he had
witnessed the incident from a distance of
five-six yards in the feeble torch light.
Admittedly, according to the witnesses,
there was no electricity at the time of
incident in their houses. They claimed that
they could see the accused persons with
the help of their torch lights. In the courts
below, onbehalf of the accused persons, it
was argued that the night of incident was
an amavasya-new moon night. A perusal
of calendar of that month in that year, it is
seen that the intervening night of
21/22.09.1979 was a new moon night i.e.
amavasya.

11. In our considered view, it
is unbelievable that on a new moon
night when it was pitch dark, the
witnesses who were frightened and
who were hiding themselves behind the
walls in order to save themselves,
could have seen actual faces of the
accused persons just by flash of torch
lights on their faces and in the light of
lantern. Further, there were about 1415 dacoits in number, all armed with
deadly weapons and were continuously
making ingress and egress in the
house of the deceased, it becomes
inconceivable as to how the witnesses
standing at a distance in a feeble light
would have been able to identify the
dacoits."

11. Learned counsel for the
appellants
further
relied
on
the
judgment of Hon'ble Supreme Court in
Manzoor
Vs.
State
of
U.P.
and
Suleman Vs. State of U.P. reported in
1982 (2) SCC 72 emphasizing the
necessity
of
identification
by
the
Investigating
officer
when
incident
happens in a dark night by some
unknown assailants hiding their faces,
para-12 of the judgment quoted by him
reads as under:-

"12. There is then the evidence
of P.Ws. 1 and 2, the home-guards of
whom only P.W. 2 had identified the
appellants in the identification parade
held on 17.11.1978. The four homeguards including P.Ws. 1 and 2 are stated
to have flashed their torch lights and to
have seen the two persons running away
from the scene of occurrence after they
had heard the alarm of the injured Gul
Bahar near the railway line. The torches
have not been produced in evidence, and
the investigating officer P.W. 12 would
say in his evidence that he saw those
torches 30 and returned them to the homeguards. It is not known why the
investigating officer P.W. 12 thought it fit
to return the torches with the aid of which
the home-guards are stated to have seen
the two persons running away from the
scene of occurrence though that will be a
relevant piece of material evidence in the
case. P.W. 12 has stated that after
recording the statement (Ex. Ka. 11) of the
deceased Gul Bahar at the District
hospital, Saharanpur he went to the mela
and recorded the statements of the four
home-guards. This evidence of P.W. 12
shows two things, namely (1) that the
home-guards would have been on duty at
the mela in the night of 22/23.9.1978 40
and could not have been on patrol duty,
moving about near the railway line or the
lime kiln which is stated by the P.W. 12 to
be situate one furlong away from the
mela, as P.Ws. 1 and 2 would have it, and
(2) that none of the home-guards could
have accompanied the injured Gul Bahar
from the petrol pump where the First
Information Report (Ex. Ka. 1) is stated to
have been recorded to the Police Station,
174 INDIAN LAW REPORTS ALLAHABAD SERIES
for if any home-guard had accompanied
the injured Gul Bahar to the Police
Station he would have been examined by
the police at the Police Station itself in
connection with this case and it would not
have been necessary for P.W. 12 to have
examined that home-guard only at the
mela. The evidence of P.Ws. 1 and 2 that
Ex. Ka 1 was recorded at the petrol pump
is not reliable, for it is stated in Ex. Ka. 1
that one of the home-guards took down
the deceased's statement and brought him
to the Police Station after recording the
report. From the statement in Ex. Ka. 1
that one of the home guards brought the
deceased to the Police Station, it would
appear that Ex. Ka. 1 could have been
written only after the injured Gul Bahar
had been taken to the Police Station and
not earlier. It is to be noted that none from
the petrol pump and the rickshaw-puller
who is stated to have carried the injured
Gul Bahar from the petrol pump to the
Police Station has been examined as a
witness at the trial. It is seen from the
evidence of P.W. 12 that the home-guard
did not give him the description of any of
the culprits when he examined them and
that he did not even ask them about it
though it is stated in the report Ex. Ka 1
that the home-guards had seen the
culprits thoroughly and identified them. If
at the earliest opportunity the homeguards did not mention any identifying
features of the culprits when they were
examined by P.W. 12, it is difficult for us
to believe how P.W. 2 could have
identified both the appellants nearly two
months later on 17.11.1978. It has to be
noted that the appellants have stated in the
trial court that they were shown to the
witnesses before the identification parade
was held. In these circumstances we are
not impressed with the evidence of P.Ws. 1
and 2."

12. Learned counsel in the context of
the case discussed in the above judgment of
Hon'ble Supreme Court applied the finding
given therein on the facts of the present
case, saying that the torches have not been
produced in evidence. It is obvious from
the statement of the investigating officer in
his evidence that he saw those torches and
after preparing memo returned them to the
villagers who arrived at spot flashing their
torches. He further argued that for the
reason of non production of torches during
examination of investigating officer the
story of seeing and identifying the accused
persons in the flash of torches made by
neighbouring villager of PW-1 is fictitious
and unbelievable.

13. On the basis of arguments stated
hereinabove and deferring the judgment of
Hon'ble
Supreme
Court,
the
learned
counsel for the appellant assailed the
impugned judgment and order of sentence
as erroneous in fact and law both, based on
conjectures and surmises, suffering from
mis-appreciation of evidence, by relying
uncredible, untruthful and untrustworthy
statement of PW-1 (Ram Prakash, the
informant) and the injured witnesses PW-2,
Smt. Naval Kishori.

Arguments in reply by Ms.
Smiti
Sahai,
learned
Additional
Government Advocate:

14. In reply to the arguments of
learned counsel for the appellant, learned
A.G.A., Ms. Smiti Sahai submitted that the
first information report by the informant
(PW-1) is made quickly and promptly just
after the happening of the incident without
any unnecessary and unreasonable wastage
of time. Therefore, it is a natural narration
of incident without any exaggeration. In
counter to the argument advanced by
3-5 All. Jata Shankar & Ors. Vs. State of U.P.
175
learned counsel for the appellant relating to
the non disclosure in the F.I.R. about the
torch carried by PW-1 at the time of
incident and the ladder/stairs leading to the
roof, through which he went on the roof of
the house in the night for sleeping, she
argues that they are immaterial because
first information report could not be an
encyclopedia of the entire facts. She
submitted that the FIR made by the PW-1
is very much natural and spontaneous to
communicate the police officer about the
fateful incident happened with his family
members on the date and time and place of
the incident and also that who have
committed the same and why.

15. Learned A.G.A. relied on the
judgment of Hon'ble Supreme Court in
Jitendra Kumar Vs. State of Haryana with
Sunil Kumar and Anr. Vs. State of
Haryana reported in (2012) 6 SCC 204 on
the point, 'purpose and nature of the First
Information Report'. Para 18 of the said
judgment reads as under:-

"18. The Court has also to
consider the fact that the main purpose of
the FIR is to satisfy the police officer as to
the commission of a cognizable offence
for him to conduct further investigation in
accordance with law. The primary object
is to set the criminal law into motion and
it may not be possible to give every minute
detail with unmistakable precision in the
FIR. The FIR itself is not the proof of a
case, but is a piece of evidence which
could be used for corroborating the case
of the prosecution. The FIR need not be
an encyclopedia of all the facts and
circumstances on which the prosecution
relies. It only has to state the basic case.
The attending circumstances of each case
would further have considerable bearing
on application of such principles to a
given situation. Reference in this regard
can be made to State of U.P. Vs. Krishna
Master and Ors. [(2010) 12 SCC 324] and
Ranjit Singh and Ors. Vs. State of
Madhya Pradesh [(2011) 4 SCC 336]."

16. Learned A.G.A further argued
reading over the testimony of PW-1 and
PW-2 that the deceased, Ram Asrey, his
wife Smt. Naval Kisori and daughter Ms.
Girisa were sleeping on their respective
cots in sahan just in front of the door of the
house, while the accused appeared on the
spot, it is proved by the evidences that a
lantern was hanging on the door. It is also
proved by the evidences that the PW-1, the
son of the deceased (Ram Asrey) namely
Ram Prakash was sleeping on the roof of
the house, at that moment when he
awakened from sleep to pee he saw the
accused persons near the cot of his father,
armed with fire arms, seeing this he raised
alarm, watching the entire incident from the
roof of the house.

17. Learned A.G.A laid emphasis on
the presence of eye witnesses namely PW-1
and PW-2 at the time of commission of
offence by accused appellants, as the PW2, Naval Kisori (wife of the deceased, Ram
Asrey) is an witness, who herself had
sustained fire arm injuries during the same
incident.
She
further
stressed
on
evidentiary value of her testimony that the
same deserves to be put on a higher
pedestal of credibility than that of others
and
cannot
be
discarded
on
trivial
inconsistency if any. She further argued
that the prosecution witness PW-2's injuries
are examined by Medical Officer PW-5,
who proved his report in the court. PW-2
since is a rustic villager, therefore, the lapse
of time from the date of incident till the
date of recording of evidence is of utmost
consideration when minor and trivial
176 INDIAN LAW REPORTS ALLAHABAD SERIES
inconsistencies in her statements, if occurs,
without having any material bearing upon
the fact in issue. Learned A.G.A in support
of her argument relied on the judgment of
Hon'ble
Supreme
Court
in
Brahma
Swaroop and Another Vs. State of U.P.
(2011) 6 SCC 288 particularly on para 28
of
the
judgment
which
are
quoted
hereunder:-

"28. Where a witness to the
occurrence has himself been injured in
the incident, the testimony of such a
witness is generally considered to be very
reliable, as he is a witness that comes with
a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare
his actual assailant(s) in order to falsely
implicate someone. "Convincing evidence
is required to discredit an injured
witness". (Vide: State of U.P. v. Kishan
Chand & Ors., (2004) 7 SCC 629; Krishan
& Ors.v. State of Haryana, (2006) 12 SCC
459; Dinesh Kumar v. State of Rajasthan,
(2008) 8 SCC 270; Jarnail Singh & Ors. v.
State of Punjab, (2009) 9 SCC 719;
Vishnu & Ors. v. State of Rajasthan,
(2009)
10
SCC
477;
Anna
Reddy
Sambasiva Reddy & Ors. v. State 2 of
Andhra Pradesh, AIR 2009 SC 2661; and
Balraje
@
Trimbak
v.
State
of
Maharashtra, (2010) 6 SCC 673)."

18. Learned A.G.A further emphasized
on
the
reliability,
trustworthiness
and
truthfulness of the witnesses namely PW-1
and PW-2 as their statements are fully
corroborated with the medical evidences and
testimony of investigating officer (PW-8).
She argued that on facts, it could not be said
that the witnesses are planted witnesses. They
are natural witnesses and incident narrated by
them
is
untutored,
unrehearsed
and
corroborated by other materials proved by
evidences on record.

19. Learned A.G.A lastly argued on the
explanation submitted by accused appellant
as their defence against the evidences proving
the case of prosecution that on the date of
incident some unknown assailants committed
dacoity in the house of informant, who could
not be identified, therefore, due to the reason
of enmity, informant falsely implicated the
accused-appellants,
she
submitted,
the
alleged dacoity committed in the house of the
informant on the date and time of the incident
was not asked from the investigating officer
(PW-8) during his examination in trial nor it
was proved as a defence to create doubt on
the prosecution case.

20. We anxiously heard and considered
the respective arguments raised by learned
counsel for the appellant and learned A.G.A.
Since the judgment before us, is of conviction
and sentence, impugned in the present appeal,
therefore, the entire evidence led by the
prosecution, oral and documentary must be
re-appreciated
carefully.
Before
reappreciation of the evidence available on
record of the trial, we formulate following
two questions for determination in appeal.

(1) Whether the prosecution has
successfully proved it's case by prosecution
witnesses beyond all reasonable doubts.
and

(2)
Whether
the
accused
appellants by setting their defence against
the proved case of prosecution, has been
successful in showing the same on the
preponderance of probabilities, so as to cast
upon the prosecution case a reasonable
doubt?

21. It is the cardinal rule of our
criminal jurisdiction that the burden in the
web of proof of an offence would always
lie upon the prosecution, to prove, all the
facts constituting the ingredients, beyond
3-5 All. Jata Shankar & Ors. Vs. State of U.P.
177
reasonable doubt. If there is any reasonable
doubt the accused is entitled to the benefit
of reasonable doubt.

22. In the present appeal the
testimony of eye witnesses PW-1 (Ram
Prakash) and injured eye witness PW-2
(Naval Kisori) are of utmost importance.
While appreciating the evidence of any
witness claiming to have seen the incident,
the court is to consider and look for the
following factors appearing in the entire
testimony of the witnesses.

(i) presence of the witness on the
spot.

(ii) witnesses having seen the
incident.

(iii) credibility of the witnesses.

23. Prosecution to prove its case
produced two witnesses of fact namely
Ram Prakash (the informant) as PW-1, who
watched the entire episode that happened in
unfateful night of 21/22.6.1985, and his
mother Naval Kisori the wife of Ram Asrey
(deceased victim of the incident) as PW-2,
who is an injured witness. They narrated
the
story
of
the
incident
in
their
examination in chief. The defence in crossexamination tested their veracity by putting
questions to shaken their credibility and
trustworthiness. They have also stated the
motive of the appellant for commission of
the offence in question. Since in the First
Information Report the motive is stated,
therefore the evidence of prosecution
witnesses is to be seen in the context of
motive also if found proved.

Motive

24. The motive for committing an
offence in all cases has not of much
importance,
particularly
where
the
prosecution case is totally based on direct
evidences proof of motive becomes of less
significance. In the present case the
prosecution has set a motive and got it
proved by the testimony of PW-1. PW-1 as
eye witnesses of the incident. They have
stated the motive of the accused-appellants
categorically and specifically in the FIR
also. The motive as set in the FIR is
reiterated by PW-1 without any variation in
the examination-in-chief during trial. The
statement of PW-1 began on 11.12.1985,
after the date of occurrence 21/22.6.1985
that is to say after an interval of about
seven months. At that time witness was
about 18 to 20 years, his cross-examination
was done on 1.2.1986. Since, then about
three months more have been elapsed, then
also the teenager witness PW-1 and his
mother PW-2 firmly stated the motive in
cross-examination by defence counsel. PW1 stated, "after the death of my sister-in-law
from burn injuries the accused began to
move applications against his family
members to the effect that they have burnt
her to death (the statement is extracted and
highlighted from the testimony of PW-1
Page-2 Para-6 dated 1.2.1986). The injured
witness PW-2, wife of the deceased, Ram
Asrey
namely
Naval
Kisori
in
her
examination-in-chief has stated in very
clear words that the accused-appellants
were shouting that they would be taking
revenge of their daughter's death from the
entire family and were searching her
children. This statement in chief of PW-2
remains constant as she has not been crossexamined on this point by learned counsel
for the defence. As such since the very
inception right from the lodging of F.I.R.
the motive imputed upon the accusedappellants for the commission of offence is
stated by PW-1 and PW-2 in their
deposition before the Court. As such the
motive behind commission of offence
178 INDIAN LAW REPORTS ALLAHABAD SERIES
imputed upon the accused-appellants stands
proved by the substantive evidence. The
argument of learned counsel for the
accused-appellants that if the accusedappellants came under any impression in
1983 when the death of Smt. Meena
Kumari, occurred by reason of burn in her
in-laws' house, could not be imagined,
reasonably to survive till the date of
incident 21/22.6.1985, after a considerable
lapse of time of more than one and a half
years. The arguments of learned counsel is
not tenable in the light of the explanation
submitted
by
accused
appellant
Jatashanker, when he was confronted with
this substantive piece of evidence under
Section 313 of the Cr.P.C. He replied, 'it
would be wrong to say that he had enmity.
He further added 'she was burnt by in-laws'.
He admitted in last question under Section
313 Cr.P.C. put before him while replying
the same that he had moved complaint with
regard to the death of his daughter from
burning caused by her-in-laws, due to this
they (informant's family) had enmity. As
such in view of the substantive piece of
evidence with regard to motive led by the
prosecution and as expressed by the
accused-appellant Jatashanker, he was
under impression even on the date of
submitting explanation under Section 313
Cr.P.C. that his daughter was burnt to death
by her-in-laws, is found proved as a strong
motive for the commission of offence.

25. The incident of burning resulting
into death of Smt. Meena Kumari within
one year from marriage is admitted to both
the parties. It is also admitted that accusedappellant,
Jatashanker
moved
several
complaints for action against in-laws of
Meena Kumari, but the same remained of
no avail. In such circumstances a frustrated
father, quite naturally, as it is proved, to
have hatched enmity and vengeance with
the in-laws' family to take revenge of his
daughter's death. Admittedly he was under
impression that his daughter was burnt to
death by her in-laws, as comes out from his
explanation given by him under Section
313 of the Cr.P.C.

Presence of the witnesses on
spot and their credibility.

26.