# Kaluwa v. State of U.P. 534 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 1 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-07
- **Case number:** Criminal Appeal No. 3885 of 2010
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaluwa-v-state-of-u-p-534-indian-law-reports-allahabad-series-48042
- **Pages:** 12

## Headnote

Criminal Law - Indian Evidence Act, 1872 -
Section 3- Section 8- Direct evidence-
Motive
insignificant-
As
per
the
corroborated evidence of P.W.1- and P.W.-
2, it is proved that incident was eye
witnessed by both of them- It is a case of
direct evidence and in the case of direct
evidence, motive becomes insignificant-
The evidence of the witnesses of the fact
that
injuries
were
inflicted
by
indiscriminate
firing
caused
by
the
accused
persons,
is
supported/
corroborated by medical evidence.

Settled law that where the evidence is direct
and corroborated by other evidence and
material, then motive loses its significance.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- So far as
section 34 of I.P.C. is concerned, the act of
accused persons were done in furtherance
of common intention to kill the deceased
Dalveer-
They
jointly
dragged
the
deceased from kharanja and put him in
the field of jwar and jointly began to fire
on the corpus of the deceased- The act
and conduct of the accused persons shows
the common intention to kill the deceased
Dalveer Singh.

Where all the accused persons have acted in
concert in the commission of the offence , then
the same establishes their common intention
making them vicariously liable u/s 34 IPC. (Para
24, 29, 35, 40, 43, 44)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

1 All. Kaluwa Vs. State of U.P.
533

v.
undergo
a
de-addiction
programme.

3.
Where
the
Board
after
preliminary assessment under section 15
pass an order that there is a need for trial
of the said child as an adult, then the Board
may order transfer of the trial of the case to
the Children's Court having jurisdiction to
try such offences."

67. When we compare the provisions of
Section 21 of Juvenile Justice Act, 1986 with
the provisions of Section 18 of the Juvenile
Justice (Care and Protection of Children) Act,
2015, we find that there exist similar
provisions for orders that could be passed in
respect of a juvenile in conflict with law
including direction to pay fine. Hence, by
applying the law laid down by the Apex
Court in Jitendra Singh's case (Supra) and by
keeping in mind the provisions of Section
18(1) (d) of the Act, 2015, and provisions of
Section 21 of of Juvenile Justice Act, 1986,
we are of the view that the appropriate
punishment that ought to be awarded to
appellant no.5 (Brijendra Singh), who was a
juvenile on the date of the incident, would be
'fine'. We find that the court below while
convicting appellant no.5 (Brijendra Singh)
under Section 147 IPC has not awarded any
fine and as we, in the present appeal, have
convicted him under Section 323/149 IPC
after setting aside his conviction under
Section 323 IPC, therefore, the quantum of
fine is to be determined by the Juvenile
Justice Board after giving opportunity of
hearing to appellant no.5 (Brijendra Singh) in
the light of the observations contained in the
judgment of the Apex Court in Jitendra
Singh's case (Supra).

68. Accordingly, the appeal of
surviving appellant No. 7 (Saleem) is
allowed
as
already
mentioned
in
paragraph 55 here in above. Whereas, the
appeal of appellant No. 5 (Brijendra Singh)
is partly allowed to the extent indicated in
paragraph 56 herein above and as below.
The appellant no.5 (Brijendra Singh) who
is on bail need not surrender. His sureties
are discharged. The matter is remanded to
the Juvenile Justice Board, Fatehgarh,
District Farrukhabad constituted under the
Juvenile Justice (Care and Protection of
Children) Act, 2015 for determining the
appropriate quantum of fine that should be
levied on appellant no.5 (Brijendra Singh)
and the compensation that should be
awarded to the family of the victim, as per
the law. The appellant no.5 (Brijendra
Singh) shall cooperate in the proceedings in
that regard and shall put in appearance
before
the
Juvenile
Justice
Board,
Fatehgarh, District Farrukhabad by 15th
January, 2022.

69. Let the record of the court below
as well as the record of Juvenile Justice
Board, Fatehgarh, District Farrukhabad be
sent back.
----------

(2022)01ILR A533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 3885 of 2010
connected with
Criminal Appeal No. 4528 of 2010

Kaluwa ...Appellant
Versus
State of U.P. ...Respondent
534 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Shiv Sagar Singh, Sri Noor Mohammad,
Sri Jayant Prakash Singh, Sri Mohammad
Zakir

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Evidence Act, 1872 -
Section 3- Section 8- Direct evidence-
Motive
insignificant-
As
per
the
corroborated evidence of P.W.1- and P.W.-
2, it is proved that incident was eye
witnessed by both of them- It is a case of
direct evidence and in the case of direct
evidence, motive becomes insignificant-
The evidence of the witnesses of the fact
that
injuries
were
inflicted
by
indiscriminate
firing
caused
by
the
accused
persons,
is
supported/
corroborated by medical evidence.

Settled law that where the evidence is direct
and corroborated by other evidence and
material, then motive loses its significance.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- So far as
section 34 of I.P.C. is concerned, the act of
accused persons were done in furtherance
of common intention to kill the deceased
Dalveer-
They
jointly
dragged
the
deceased from kharanja and put him in
the field of jwar and jointly began to fire
on the corpus of the deceased- The act
and conduct of the accused persons shows
the common intention to kill the deceased
Dalveer Singh.

Where all the accused persons have acted in
concert in the commission of the offence , then
the same establishes their common intention
making them vicariously liable u/s 34 IPC. (Para
24, 29, 35, 40, 43, 44)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

1. Pratap Singh & ors Vs. St. of UP 2021, SCC
Online All 686

2. Abu Thaker Vs. St. of T.N, (2010) 5 SCC 91

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

4. Mohd. Rojali Ali & ors Vs. St. of Assam (2019)
19 SCC 567

5. Laltu Ghosh Vs. St. of W.B (2019) 15 SCC
344

(Delivered by Hon'ble Om Prakash
Tripathi, J.)

1. Heard Sri Jayant Prakash Singh and
Sri Mohammad Zakir, learned counsel for
the appellants, Sri S.A. Murtaza, Additional
Government Advocate on behalf of the
State and perused the material on record.

2. The appellants have preferred these
criminal appeals aggrieved by the judgment
and order dated 22.05.2010 passed by
Additional District & Sessions Judge,
Court No. 2, Bulandshahr in Sessions Trial
No. 1637 of 1999, under Section 302/34
IPC, arising out of Case Crime No. 222 of
1999, Police Station Sikarpur, District
Bulandshahr, convicting and sentencing the
appellants
to
undergo
rigorous
life
imprisonment under Section 302/34 of IPC
with a fine of Rs.5,000/- each, in default
thereof, to undergo one year simple
imprisonment, therefore, these appeals are
heard and being decided together by this
common judgement.

3. The prosecution case is as follows:

4. On 06.09.1999 in the morning at
10:00 a.m., the complainant Neeraj Singh,
S/o Fem Singh, R/o Village Deeppur,
Police Station Sahawar, District Etah filed
a written report at Police Station Sikarpur
with the prayer that his sister Rajeshwari,
belongs to Village Manpur, married with
1 All. Kaluwa Vs. State of U.P.
535
Dalveer Singh. Yesterday, he came to the
house of his sister. Prior to the incident,
Munesh and others targeted his brother-inlaw, namely, Dalveer Singh by means of
country made pistol. On 06.09.1999, the
complainant, his sister and his brother-inlaw were going to Dehli where the brother
of Dalveer Singh was residing. When the
aforesaid persons reached nearby the field
of Gyan Singh at about 7:00 p.m., the
accused
persons
namely,
Munesh,
Shanakar, Shashi and Kaluwa met, armed
with country made pistols (Tamancha).
Munesh threatened to brother-in-law that
how dare he lodged the First Information
Report against him and asked him to
withdraw the case. His brother-in-law
refused to withdraw the case. The aforesaid
persons started indiscriminate firing upon
Dalveer Singh as a result of which, he died
on the spot.

5. On the basis of the written report,
the police registered a case as Crime No.
222 of 1999, under Section 302 IPC and
entry about registration of the case was
made in the General Diary on 06.09.1999.
Investigation of the case was taken over by
the Sub-Inspector R.D. Pathak. He rushed
to the spot and recorded the statement of
the complainant Neeraj Singh and prepared
the site plan.

6. The postmortem examination was
conducted on the dead body of the
deceased Dalveer Singh by Dr. B.K. Gaur
on 07.09.1999 at 04:15 p.m. As per the post
mortem report, the age of the deceased was
about 35 years at the time of the death and
possibility of death of the deceased was
about one and half day prior to the date of
the postmortem. After death of the
deceased, stiffness was present in the lower
part of the body of the deceased but
stiffness had gone from upper part of
the body. There was no mark of rottenness
in the body of the deceased. On internal
examination of the deceased, the doctor
opined that the deceased died due to coma,
shock and haemorrhage due to ante mortem
injuries.

7.

During
investigation,
the
Investigating
Officer
recorded
the
statements
of
the
witnesses.
After
completing all formalities of investigation,
he submitted the charge sheet (Exhibit Ka.-
16) against the appellants in the Court of
Chief Judicial Magistrate, Bulandshahr,
under Section 302 IPC and cognizance of
offence was taken by the Magistrate. The
case was committed to the Court of
Sessions Judge by the Chief Judicial
Magistrate and thereafter, the case was
transferred to the Court of Additional
District & Sessions Judge, Court No. 11,
Bulandshahr. On 07.02.2000, charge was
framed against the appellants under Section
302/34 IPC and the accused-appellants
pleaded not guilty and claimed to be tried
and thereafter trial was transferred to the
Court of Additional Sessions Judge, Court
No.2, Bulandshahr for trial.

8. In order to prove the charges
framed
against
the
appellants,
the
prosecution has examined Rajeshwari wife
of the deceased (P.W.-1), the complainant,
Neeraj Singh, (P.W.-2), Dr. B.K. Gaur,
(P.W.-3), Ram Bilas Singh, (P.W.-4), Sub
Inspector Surajpal Singh, (P.W.-5).

9. Eye witness P.W.-1, Rajeshwari,
the wife of the deceased had deposed that
about one and half year back, I, her
husband Dalveer Singh and her brother
Neeraj were going to Delhi, i.e., to the
house of her brother-in-law (Jeth) Om
536 INDIAN LAW REPORTS ALLAHABAD SERIES
Prakash. When we reached at the kharanja
of Village Naraich, accused Munesh,
Shashi, Shankar and Kaluwa met, armed
with country made pistols at 7:30 a.m.
Munesh said to my husband that how dare
you to lodge a criminal case against me.
Her husband denied this fact then Munesh
threatened that Police will carry you from
here. They dragged my husband in the jwar
field of Gyan Singh and killed my husband
by fire arm from their country made pistols.
I and my brother shouted but none came to
help. My husband succumbed to death on
the spot by fire arm injury and accused
persons fled away from the scene of
occurrence. Prior to 13 days before the
incident, a quarrel took place among my
husband and accused persons. In that
quarrel my husband received fire arm
injuries on his leg which was fired by the
accused and due to this enmity, the accused
persons committed murder of my husband.

10. P.W.-2 the complainant Neeraj,
brother-in-law of the deceased (Bahnoi)
had deposed that I, my brother-in-law
Dalveer and my sister Rajeshwari were
going to Delhi from Bhanpur. We reached
at the kharanja of Village Naraich at about
7:30 a.m. where accused persons Munesh,
Shashi, Shankar and Kaluwa met, armed
with
country
made
pistols.
Accused
Kaluwa is resident of Rampur and now
living with the accused persons. They all
said to my brother-in-law that how dare
you lodge a criminal case against them and
also asked my brother-in-law to withdraw
the criminal case. When my brother-in-law
refused, then they said that Police will lift
you. Then all of them dragged away my
brother-in-law in the field of Gyan Singh
and all accused persons shot fire with
country made pistols and killed my brotherin-law. We shouted but none was in the
field except us and accused persons. My
brother-in-law succumbed to death by fire
arm injuries on the spot. Prior to 13 days
before the incident, accused persons shot
fire on my brother-in-law Dalveer and he
received one fire arm injury and due to this
enmity, they killed my brother-in-law. At
the time of the incident, I and my sister
intervened but the accused persons did not
agree and they fled away from the spot
after causing incident. The dead-body was
lying on the spot. Then I wrote a report and
went to the Police Station Sikarpur and
lodged a report. My sister Rajeshwari
remained near the dead body of the
deceased.

11. In the cross-examination, eye
witness P.W.-2 has stated that I would take
vehicle from Karora. Accused Shashi and
Munesh were wearing pant and shirts at the
time of the incident. All the accused were
armed with country made pistols. Accused
dragged Dalveer about 35 paces. There
were fields of jwar and arahar, where the
deceased was dragged. All accused fired on
Dalveer; his face was in the east direction. I
could not tell that which accused fired on
Dalveer from which side. Accused fired
from all directions. Dalveer received firearm injuries on left ear, near the neck.
Second fire arm was below the right eye.
Third fire arm was also below the ear. Total
eight fire arm injuries was received on the
body of the deceased Dalveer. Accused
Munesh and other accused loaded the
cartridges before me. Accused fired on
Dalveer from the distance of 2 feet. I went
with the dead-body on tractor. Next day at
08:00 a.m. I went to Bulandshahr with
Police personnel and brother of Dalveer
who came from Delhi; I made a telephone
to his brother from Sikarpur. When the
accused
dragged
Dalveer
from
the
kharanja, I intervened them but they
threatened by their country made pistols. It
1 All. Kaluwa Vs. State of U.P.
537
is wrong to say that he does not know the
accused persons. Accused Munesh is
resident of P.S. Soro, District Etah. I do
serve in shoe factory in Delhi. I lodged the
report of the incident. In the report, I have
not stated that I came to bring my sister and
brother-in-law. I came to the house of my
sister prior two days prior to the date of the
incident. My brother-in-law was wearing
tahmad and vest. There were waters in the
fields. We proceeded about half kms. The
crop of arahar was small in size. Accused
dragged the deceased Dalveer in the filed
of arahar owned by Ghanshyam. We also
moved with the deceased but the accused
threatened and we stayed there and shouted
but no one came there. When accused shot
fire on my brother-in-law and fled away
from the spot, then we went near my
brother-in-law. At that time, my brother-inlaw was wearing vest and tahmad. I found
four empty cartridges near the dead-body
of the deceased. The dead-body got
covered by mud. I and my sister had not
lifted the dead-body from the spot. The
incident took place at 07:30 in the morning.
I and my sister stayed half hours near the
body and then I went to the police station
and my sister remained near the dead-body
and I wrote a written report myself near
kharanja. I reached the police station at
about 10:00 a.m. by feet. Sikarpur police
station is at 4-5 km from the place of
occurrence. I returned at about 11:30 a.m.
with Police. The dead-body was sealed
there at 04:30 p.m. to 05:45 p.m.

12. P.W.-3 Doctor B.K. Gaur had
conduced the post mortem of the deceased
Dalveer Singh on 07.09.1999 at 04:15 p.m.
The age of the deceased was 35 years. He
was a man of simple structure, rigour
mortise was present in the lower portion of
the body but passed away from the upper
side of the body. There was no sign of
rotting on the body of the deceased. Ante
mortem Injuries were found on the body of
the deceased which are as follows:

"1. Gun shot wound of entry 3 x
3cm x bone deep at the back of left side of
neck, 5 cm behind left ear. Margin
inverted, blackening all over around the
wound were present.

2. Gun shot wound of exit 6 cm x
6 cm x bone deep right side of jaw.

3. Gun shot wound of entry 3 cm
x 3 cm x bone deep left side of neck just
adjacent to lower part of left ear.
Blackening all around the wound were
present. Margin inverted.

4. Gun shot wound of exit 6.5 cm
x 6 cm x bone deep left side of upper part
of face. 6 cm in front of right ear
connecting injury no.3.

5. Gun shot wound of entry 3 cm
x 3 cm x chest cavity deep front of chest
upper part of 8 cm above left nipple.
Blackening all around the wound were
present.

6. Gun shot wound of entry 3 cm
x 3 cm x bone deep back of left shoulder in
upper part. Blackening all around the
wound were present and 18 metal pellets
were found in the wound.

7. Gun shot wound of exit 3 cm x
3 cm x muscle deep in upper part of left
forearm. Blacking all around the wound
were present.

8. Gun shot wound of exit 4 cm x
4 cm muscle deep upper part of left
538 INDIAN LAW REPORTS ALLAHABAD SERIES
forearm, inner side connecting the injury
no. 6.

9. Gun shot wound of entry 4 cm
x 4 cm x muscle deep in the abdomen, 2 cm
below from the sternum."

13. Eyes of the dead-body were
closed. Eye-ball of right eye came out due
to injury. Mouth was raptured and upper
jaw was fractured. Blood was oozing from
the nose and mouth and cause of death is
haemorrhage and excessive bleeding due to
anti mortem injuries.

14. Post mortem report was prepared
by the witness. The witness proved the post
mortem report as Exhibit Ka-2. After post
post mortem, 74 pellets were retrieved from
the dead body of the deceased and three
wedding piece were sealed and given in the
custody of the Constable. Injuries on the
body of the deceased is possible on
06.09.1999 about 07:00 a.m. It is wrong to
say that death is not possible by anti
mortem simple injuries.

15. P.W.-4 H.C.P. Ram Vilash Singh
has stated that he has prepared Chik FIR on
the
basis
of
written
report
of
the
complainant Neeraj Singh and proved Chik
FIR as Exhibit Ka-3 and also proved
original GD as Exhibit Ka-4. Written report
was brought by the complainant Neeraj. Jai
Pal was also with him. I prepared original
GD in about one and quarter hours. It is
wrong to say that on the basis of written
report of the complainant Neeraj, I have
lodged a false report in ante time.

16. P.W.5 R.D. Pathak, Investigating
Officer of the case has stated that the
inquest report of deceased Dalveer was
prepared by S.S.I. Ghanshyam on my
direction and other relevant papers also
prepared in the hand writing of Ghanshyam
on my direction. I identified the signature
of Ghanshyam and this witness proved the
inquest report (Exhibit Ka-6), letter CMO
(Exhibit Ka-7), letter R.I. (Exhibit Ka-8),
Photo Naash (Exhibit Ka-9), Police Form13 (Exhibit Ka-10). On the pointing of the
complainant, spot map was prepared by me
in my hand writing which is proved as
Exhibit Ka-11. Plain soil and blood stained
soil were taken from the place of
occurrence and memo was prepared by
Ghanshyam which is proved as Exhibit Ka12 and two empty cartridges 12 bore were
also
recovered
near
the
dead-body,
recovery memo is proved as Exhibit Ka-13.
On 01.10.1999 custody remand of the
accused Shashi and Munesh were permitted
and
on
02.10.1999,
their
statements
recorded and mentioned in CD and on the
pointing out of accused Munesh, one
country made pistol 12 bore was recovered
by which, the murder of the deceased
Dalveer was committed. On the pointing
out of the accused Shashi, nothing
recovered. Recovery memo was prepared at
10:15 a.m. by Bachoo Singh in my
presence, which is exhibited as Exhibit Ka14. Recovered country made pistol was
sealed on the spot and case under Section
25 of Arms Act was lodged against the
accused Munesh. Site plan of the recovery
of country made pistol was prepared by me
and proved as Exhibit Ka-15 and after
collecting the entire evidence, witness
submitted the charge sheet against Munesh,
Shashi, Shankar and Kaluwa under Section
302 IPC and proved as Exhibit Ka-16. On
10.01.2000, articles recovered in this case
were sent to Forensic Laboratory, Agra.

17. In the cross-examination, the
witness P.W.-5 had stated that there was
crop of jwar near place of occurrence. In
some fields, crop of arahar was also there.
1 All. Kaluwa Vs. State of U.P.
539
The incident took place in the field of
arahar owned by Ghanshyam Singh near
kharanja. I prepared site plan. The wife and
brother-in-law of the deceased were going
to Delhi. It is wrong to say that the incident
took place in the field owned by some other
person. There was no recovery from the
accused Shankar and Kaluwa.

18. The statements of the accused
persons under section 313 Cr.P.C. were
recorded. Accused Shankar denied the
prosecution story and stated that he has
been falsely implicated in the case. The
witnesses are interested one. My field and
the field of the complainant are adjoining
and middle common line was broken by
tractor. Rajeshwari and Dalveer Singh
abused me by my caste. The matter was
solved in the Panchayat. Accused Kaluwa
has stated that he has been falsely
implicated. I belong to the Scheduled Caste
and deceased belonged to Thakur Caste.
Accused denied the prosecution story and
stated that complainant Neeraj and Kaluwa
are residents of same village. A quarrel
took place among Neeraj, Kaluwa and me.
P.W.-2, the complainant Neeraj left the
village and started living in adjoining
village. The deceased is real brother-in-law
of the complainant Neeraj.

19. So far as the FIR is concerned,
learned
counsel
for
the
appellants
submitted that FIR was ante dated and ante
time after due consultation.

20. P.W.-2, the complainant Neeraj,
brother-in-law of the deceased had deposed
that he wrote written report himself sitting
on kharanja and on the basis of said report,
FIR was lodged. Written report was proved
by the witness as Exhibit Ka-1. He has
lodged the report of the incident. I have not
stated in the report that he had come to
bring his sister and brother-in-law in Delhi.
Although he has stated this fact to the
Investigating Officer, if this fact is not
written in his statement under Section 161
Cr.P.C., he does not know the reason for
this. Paper and pencil was with me. Report
was written near kharanja. I reached to the
police station by foot which is about 4-5
kms from the place of occurrence. No
suggestions have been given to this witness
regarding lodging of the FIR ante dating
and ante timing it.

21. On the basis of written report, P.W.-
4 H.C.P. Ram Vilash Singh has lodged the
FIR as Case Crime No. 222 of 1999, under
Section 302 IPC (Exhibit Ka-3). He also
proved original GD as Exhibit Ka-4. It is
wrong to say that on the basis of written
report, false case was registered in ante time.
From the evidence, it is proved that incident
took place on 06.09.1999 at 07:30 a.m. It is
also evident that the complainant and the
deceased are labourers and poor. So the
complainant went to the police station by feet
and reached police station at about 10:00 a.m.
and the FIR was lodged at about 10:00 a.m.
In the midway to the police station, there was
heavy water in the river. Thus, it shows that
the FIR was lodged promptly without
consultation or legal advise. Natural facts
were stated in the FIR. The complainant was
the eye witness of the incident and it is
evident from the written report that the name
of the assailants, type of arms used by the
accused persons were categorically disclosed
in the written report. Thus, the submissions of
the learned counsel for the appellants that the
FIR is ante dated and ante time, has no force.

22. Learned counsel for the appellant
submitted that there was no motive. The
motive has been stated in brief that the
540 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Munesh asked my brother-in-law
that how dare you lodge the FIR against me
and withdraw the same. When the deceased
refused, the accused persons threatened that
Police will lift you from this place and fired
at him.

23.

In
the
evidence,
P.W.-1
Rajeshwari has also stated that prior to 13
days from the date of incident, there was
quarrel in between my husband and
accused. Fire arm injuries were received by
my husband in the said quarrel. Due to this
enmity,
accused
persons
killed
my
husband. In the previous quarrel, no FIR
has been lodged. It is also stated that there
was no such injury on the leg of the
deceased as stated by the witness.

24. As per the corroborated evidence
of P.W.1- and P.W.-2, it is proved that
incident was eye witnessed by both of
them. From the evidence on record, it is
also proved that the incident took place at
07:30 a.m., there was ample light on the
spot to recognize the accused persons by
the said witnesses. It is a case of direct
evidence and in the case of direct evidence,
motive becomes insignificant.

25. In support of above contentions,
learned
A.G.A.
placed
reliance
on
following decisions :

26. In Pratap Singh and others vs.
State of UP 2021, SCC Online All 686,
the Court held that :

"motive is not very relevant in a
case
of
direct
evidence,
where
it
dependable ocular version is available.
Once, there is evidence forthcoming on the
basis of an eye witness account that is
consistently narrated by multiple witnesses
motive is hardly relevant. "

27. In Abu Thaker vs. State of
Tamil Nadu, (2010) 5 SCC 91, the Court
held that:

"It is settled legal proposition that
even if the absence of motive and if
allowed
is
accepted
that
is
of
no
consequence and pales into insignificance
when direct evidence establishes the crime,
therefore,
in
case,
there
is
direct,
trustworthy evidence of witnesses as to
commission of an offence, the motive part
uses its significance. Therefore, if the
genesis of motive of occurrence is not
proved, the ocular testimony of the
witnesses as to the occurrence could not be
discarded only by reason of absence of
motive, if otherwise the evidence is worthy
of reliance."

28. In Bipin Kumar Mondal Vs.
State of West Bengal, (2010) 12 SCC 91,
the Court held that :

"motive is of no consequence and
pales into insignificance when direct
evidence establishes the crime. Motive is a
thing which is primarily known to the
accused himself and it may not be possible
for the prosecution to explain it. Ocular
testimony of the witnesses if reliable
cannot be discarded only by the reason of
the absence of motive."

29. Witnesses were present at the
place of occurrence. Murder of the
deceased
Dalveer
Singh
has
been
committed by the accused persons before
them. Thus, in the presence of direct and
reliable evidence, the motive loses its
importance. It is apparent from the record
that there is no FIR lodged by the deceased
against the accused persons. There is also
no such report for the previous injuries
received on the leg of the deceased. This
1 All. Kaluwa Vs. State of U.P.
541
fact will not affect the prosecution case in
the presence of eye witness. Thus, the
submissions of the learned counsel for the
appellants that murder cannot be caused
without motive, has no force.

30. Post mortem of the dead-body of
the deceased was conducted by Dr. B.K.
Gaur (P.W.-3) on 07.09.1999 at 04:15 p.m.
On the dead-body of the deceased,
following ante mortem injuries were found
:

"1. Gun shot wound of entry 3 x
3cm x bone deep at the back of the left side
of the neck, 5cm behind left ear. Margin
inverted, blackening all over around the
wound were present.

2. Gun shot wound of exit 6 cm x
6 cm x bone deep right side of jaw.

3. Gun shot wound of entry 3 cm
x 3 cm x bone deep left side of the neck
just adjacent to lower part of left ear.
Blackening all around the wound were
present. Margin inverted.

4. Gun shot wound of exit 6.5 cm
x 6 cm x bone deep left side of upper part
of face. 6 cm in front of right ear
connecting injury no.3.

5. Gun shot wound of entry 3 cm
x 3 cm x chest cavity deep front of the
chest upper part of 8 cm above left nipple.
Blackening all around the wound were
present.

6. Gun shot wound of entry 3 cm
x 3 cm x bone deep back of the left
shoulder in upper part. Blackening all
around the wound were present and 18
metal pellets were found in the wound.

7. Gun shot wound of exit 3
cm x 3 cm x muscle deep in the upper part
of left forearm. Blacking all around the
wound were present.

8. Gun shot wound of exit 4 cm x
4 cm muscle deep upper part of left
forearm, inner side connecting the injury
no. 6.

9. Gun shot wound of entry 4 cm
x 4 cm x muscle deep in the abdomen, 2 cm
below from the sternum."

31. Cause of death was shock,
hamerouge and excessive bleeding due to
anti mortem injuries. Nine gun shot injuries
were found on the body of the deceased.
Injury nos. 1,3, 5 and 7 were entry wounds
where blackening was found. This fact
shows that fire arm injuries were inflicted
on the body of the deceased from a very
close range. Thus, the evidence of the
witnesses of the fact that injuries were
inflicted by indiscriminate firing caused by
the
accused
persons,
is
supported/corroborated
by
medical
evidence.

32. The main question before us is
that whether the injuries received by the
deceased was caused by the accused
persons through fire arm or not?. From the
post mortem report, it is proved that there
was nine fire arm injuries on the body of
the deceased.

33. P.W.-1 the wife of the deceased
has supported the prosecution case and
stated that she, his brother Neeraj were
going to Delhi with her husband Dalveer
Singh. When they reached in the Village
Nairaich on the kharanja, accused Munesh,
Shashi, Shankar and Kaluwa met, armed
542 INDIAN LAW REPORTS ALLAHABAD SERIES
with country made pistols. Munesh asked
to my husband that how he dared to lodge
criminal case against me. My husband
forbade, then Munesh threatened that you
will be lifted by the Police from this place.
Accused dragged my husband in field of
Gyan Singh and there were jwar crops in
the field. The accused persons caused
indiscriminate firing on my husband and he
died on the spot. All the four accused fired.
I was present on the spot.

34. P.W.-2 complainant Neeraj,
brother-in-law of the deceased (Bahnoi)
also supported the prosecution case and has
stated that I, my brother-in-law Dalveer and
my sister Rajeshwari were going to Delhi
from Bhanpur. We reached at the kharanja
of Village Naraich at about 7:30 a.m. where
Munesh, Shashi, Shankar and Kaluwa met
and armed with country made pistols.
Accused Kaluwa is resident of Rampur and
now is living with the accused persons.
They all said to my brother-in-law that how
dare you lodge a criminal case against them
and also asked my brother-in-law to
withdraw the criminal case, when my
brother-in-law refused to withdraw the
case, they said that Police will lift you.
Then all of them dragged away my brotherin-law in the field of Gyan Singh and all
accused persons shot fire with country
made pistols and killed my brother-in-law.
We shouted but none was in the field
except us and accused persons. My brotherin-law succumbed to death by fire arm
injuries on the spot. Prior to 13 days before
the incident, accused persons shot fire on
my brother-in-law Dalveer and he received
one fire arm injury and due to this enmity,
they killed by brother-in-law. At the time
of the incident, I and my sister tried to
intervene but the accused persons did not
agree and after firing, the accused persons
fled away from the spot. The dead-body
was lying on the spot. Then I wrote a report
and after writing a report, went to the
Police Station Sikarpur and lodged a report.
My sister Rajeshwari remained near the
dead body of the deceased.

35. In the detailed cross-examination,
there is no reason to discard the evidence of
eye witnesses. There was no motive to
falsely implicate the accused persons. The
evidence of the witnesses of fact is cogent
and credible and fully reliable. Their
presence at the place of the occurrence is
proved. Thus, from the evidence on record,
it is proved beyond all reasonable doubts
that in furtherance of common intention,
the accused persons committed gruesome
murder of the deceased Dalveer Singh.

36. Learned counsel for the appellants
also submitted that P.W.1 is wife of the
deceased and P.W.-2 is brother-in-law of
the deceased both are the related witnesses
so their evidence are not reliable.

37. In support of the above
contentions, the learned A.G.A. placed
reliance on the decisions in following cases
:

38. In Mohd. Rojali Ali and others
vs. State of Assam (2019) 19 SCC 567,
the Court held that :

"A related witness cannot be said
to be an interested witness merely by virtue
of being a relative of the victim, a witness
may be called interested only when he or
she drags some benefit from result of
litigation which is in the context of a
criminal case would mean that witness has
a direct or indirect interest in seeing
accused punished due to prior enmity or
other reasons and thus has a motive to
falsely implicate the accused."
1 All. Kaluwa Vs. State of U.P.
543

39. In Laltu Ghosh Vs. State of
West Bengal (2019) 15 Supreme Court
Cases 344, the Court held that :

"Related witness cannot be said
to be an interested witness merely by virtue
of being the relative of the victim. The
scrutiny of evidence of related witness
should be more caution."

40. Both the witnesses of fact
witnessed the occurrence, their evidence is
supported by medical evidence. There is no
other injuries except fire arm injuries.
Thus, ocular evidence is supported by
medical evidence. There is no grudge to
falsely implicate the accused persons. Thus,
the submissions of the defence that
witnesses are related one and their evidence
is not credible, is not tenable.

41. The defence taken by the accused
Shankar is that the field of P.W.-1 and
accused are adjoining and the boundary
line of fields are broken by the tractor, then
the wife of the deceased Rajeshwari and
Dalveer Singh abused me with filthy
language using my caste and the matter was
solved in Panchayat. I belonged to the
Scheduled Caste Community and accused
belonged to Thakur Community, so they
implicated falsely. No evidence has been
adduced with regard to Panchayat.

42. Accused Kaluwa has stated that
P.W.-2 Neeraj and Kaluwa belonged to the
same village. A quarrel took place between
them. The deceased is a real brother-in-law
of Neeraj. He has been falsely implicated.
No evidence has been adduced by the
accused in defence. The next defence taken
by the accused is that when the deceased
went for natural call, some criminal persons
committed his murder. This defence is not
tenable in presence of reliable evidence
of eye witnesses, so defence taken by the
accused, is not probable.

43. So far as section 34 of I.P.C. is
concerned, the act of accused persons were
done in furtherance of common intention to
kill the deceased Dalveer. It is very
difficult to know the mental status of a
person, common intention should be
gathered by the act and conduct of the
accused persons. All the accused persons
Shankar and Kaluwa and other co-accused
were hiding in the field of jwar, armed with
deadly weapons i.e., country made pistols.
They jointly dragged the deceased from
kharanja and put him in the field of jwar
and jointly began to fire on the corpus of
the deceased. The deceased received nine
fire gun shot injuries and consequently died
on the spot. All the accused persons fled
away from the place of occurrence after
committing the murder of the deceased.

44. Thus, the act and conduct of the
accused persons shows the common
intention to kill the deceased Dalveer
Singh. The place of occurrence is not
disputed by the defence.

45. Thus, in view of the above
discussion, we come to the conclusion
that on the basis of fully reliable
evidence of P.W.-1 and P.W.-2, the
prosecution has been able to prove its
case beyond all reasonable doubts. The
accused Shanker and Kaluwa with other
co-accused had committed the homicidal
death of the deceased Dalveer Singh at
the time, place and in the manner as
alleged by the prosecution and the
charge under Section 302/34 IPC is very
well established against the accused
Shankar and Kaluwa.
544 INDIAN LAW REPORTS ALLAHABAD SERIES

46. On the basis of above discussion,
we are of the view that judgment and order
of the trial Court dated 22.05.2010 passed
by Additional Sessions Judge, Court No.2,
Bulandshahr in Sessions Trial No. 1637 of
1999, arising out of Case Crime No. 222 of
1999, Police Station Sikarpur, District
Bulandshahr, convicting and sentencing the
appellants Shanker and Kaluwa to undergo
rigorous life imprisonment under Section
302/34 IPC with fine of Rs.5,000/- each
and in default to undergo, one year
additional simple imprisonment by each, is
liable to be confirmed and is hereby
confirmed.

47. It is evident that accused Shashi
died during trial and case against him was
abated. Accused Munesh participated in the
trial after framing the charge, but accused
Munesh absconded and his file was
separated from the present case as Sessions
Trial No. 1637-A of 1999.

48. During trial, the accused appellant
Shankar and Kaluwa remained in judicial
custody. Accused are directed to serve out
the remaining period of their sentence.

49. The appeals are devoid of merits
and liable to be dismissed. The appeals are,
accordingly, dismissed.
----------
(2022)01ILR A544
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 4255 of 2006

Makrand Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Deshraj Garg, Sri Rajiv Lochan Shukla,
A/D 0 103,Sri Arya Suman Pandey

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Evidence Act, 1872 -
Section 3- Section 8- It is a case of direct
evidence. In case of direct evidence the
motive becomes insignificant.

Settled law that where there is direct evidence /
ocular evidence of the occurrence, motive loses
its significance.

Criminal Law - Indian Evidence Act, 1872-
Section 3- Both witnesses were present on
the
spot.
There
is
no
evidence
to
disbelieve the evidence of PW-1 & PW-4
eye
witnesses.
Their
evidence
are
supported by medical evidence. There is
no other injury on the body of the
deceased except firearm injuries. Thus
ocular evidence is supported by medical
evidence. PW-1 & PW-4 are fully reliable
and credible witnesses. They have no
enmity with the accused and there is no
ground to implicate them falsely. The
submission of defence that witnesses are
related one is not tenable.

Where the testimony of the eye witnesses is
credible and trustworthy and were naturally
present on the spot, then the same cannot be
disbelieved only on the ground that they were
related witnesses.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- Injuries
were inflicted by the accused on vital part
of the deceased in furtherance of common
intention
of
all
the
accused.
After
committing
the
gruesome
incident,
accused fled away from the scene of
occurrence. In furtherance of common
intention they hide themselves in the crop
of ''Jwar' with firearm and committed
joint attack on the deceased and fled