# Khemi v. State of U.P

- **Citation:** (2024) 3 ILRA 1580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-27
- **Case number:** Criminal Appeal No. 523 of 1986
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khemi-v-state-of-u-p-51551
- **Pages:** 7

## Headnote

Law
-
Appeal
against
conviction and sentence for murder -
Indian Penal Code, 1860 - Section 302,
148, 149 - Murder - Fire arm injury -
Eyewitness testimony - Motive - Motive
not essential in cases of direct evidence -
In a case where there is an eye witness
account, motive takes a back seat and is
not
of
any
consequence
where
the
deposition of the eye witnesses is found
trustworthy
-
Minor
discrepancies
in
witness statements do not necessarily
undermine the prosecution's case.(Para -
12,14,21)

Appellant convicted of murder - Incident
occurred on 1/2.4.1984 at 12:30 AM - Appellant
allegedly fired gun at deceased, causing fatal
injury - motive was there - deceased was killed
because he had deposed against the accused in
3 All. Khemi Vs. State of U.P.
1581
an earlier murder case - Prosecution relied on
eyewitness testimony of PW1 Teeka Ram and
PW2. - Prosecution successfully proved case
against appellant through eyewitness testimony
- Eyewitness testimony of PW1 and PW2 found
credible. (Para 3-4,14 ,22)

HELD: - Prosecution successfully proved case
against appellant through eyewitness testimony.
No illegality in findings recorded by trial court.
No illegality or infirmity in the impugned
judgment of trial court. Conviction and sentence
upheld. Appellant directed to surrender and
serve sentence. (Para - 25,26,27)

Appeal dismissed. (E-7)

LIST OF CASES CITED: -

## Text

1580 INDIAN LAW REPORTS ALLAHABAD SERIES
years at that time and is now aged about 59
years. They are not the father and mother of
accused, Akhilesh Kumar Mishra and are
his Fufa and Bua. Even if the land
demanded as dowry and motorcycle was
given in dowry by P.W.-1, only accused,
Akhilesh Kumar Mishra, would have been
beneficiary of the same and not the other
co-accused.

23.

In
view
of
the
above
consideration, the conviction of appellant,
Akhilesh Kumar Mishra, who has preferred
Criminal Appeal No. 472 of 2001 is
confirmed.

24. However, we are of considered
opinion that the trial court has awarded
maximum sentence prescribed for offence
under Section 304-B IPC to appellant,
Akhilesh Kumar Mishra, without taking
mitigating circumstances in the case into
consideration like cause of death of the
victim neither could be ascertained in postmortem report nor in viscera examination
report. No mark of violence was found on
person of the deceased. Thus, the sentence
is reduced from imprisonment to life to
rigorous imprisonment of 10 years. The
sentence awarded to the appellant, Akhilesh
Kumar
Mishra,
stands
modified
accordingly.

25. He is on bail. His bail bond is
cancelled and sureties are discharged. He is
directed to surrender and complete the
remaining sentence. However, the accused,
Jagdanand Jha and Smt. Meera Jha, are
extended benefit of doubt and acquitted of
all charges. They are on bail and need not
surrender. Their bail bonds are cancelled
and sureties are discharged. The period of
custody already undergone by the appellant
will be set off against this modified
sentence
for
10
years
rigorous
imprisonment.

26. Criminal Appeal No. 472 of 2001
is partly allowed and Criminal Appeal No.
118 of 2001 is allowed.
----------
(2024) 3 ILRA 1580
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 523 of 1986

Khemi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri G.S. Hajela, Sri Gavendra Kumar Mishra,
Neelam Pandey, Sri Devendra Kumar Mishra

Counsel for the Respondent:
D.G.A.

(A)
Criminal
Law
-
Appeal
against
conviction and sentence for murder -
Indian Penal Code, 1860 - Section 302,
148, 149 - Murder - Fire arm injury -
Eyewitness testimony - Motive - Motive
not essential in cases of direct evidence -
In a case where there is an eye witness
account, motive takes a back seat and is
not
of
any
consequence
where
the
deposition of the eye witnesses is found
trustworthy
-
Minor
discrepancies
in
witness statements do not necessarily
undermine the prosecution's case.(Para -
12,14,21)

Appellant convicted of murder - Incident
occurred on 1/2.4.1984 at 12:30 AM - Appellant
allegedly fired gun at deceased, causing fatal
injury - motive was there - deceased was killed
because he had deposed against the accused in
3 All. Khemi Vs. State of U.P.
1581
an earlier murder case - Prosecution relied on
eyewitness testimony of PW1 Teeka Ram and
PW2. - Prosecution successfully proved case
against appellant through eyewitness testimony
- Eyewitness testimony of PW1 and PW2 found
credible. (Para 3-4,14 ,22)

HELD: - Prosecution successfully proved case
against appellant through eyewitness testimony.
No illegality in findings recorded by trial court.
No illegality or infirmity in the impugned
judgment of trial court. Conviction and sentence
upheld. Appellant directed to surrender and
serve sentence. (Para - 25,26,27)

Appeal dismissed. (E-7)

LIST OF CASES CITED: -

1. Shardul Singh Vs St. of Har., (2002) 8 SCC
372

2. Ravindra Kumar Vs St. of Punj., (2001) 7 SCC
690

3. St. of U.P. Vs Baburam, (2000) 4 SCC 515

4. Thaman Kumar Vs St. of U.T. of Chand.,
(2003) 6 SCC 380

5. Shivaji Genu Mohite Vs The St. of Mahra.,
(1973) 3 SCC 219

6. Rajagopal Vs Muthupandi @ Thavakkalai &
ors., (2017) 11 SCC 120

(Delivered by Hon'ble Anish Kumar Gupta,
J.)

1. Heard Sri Devendra Kumar Mishra,
learned counsel for the appellant and Sri
Amit Sinha, learned AGA for the State.

2. The instant criminal appeal has
been filed by the appellant- Khemi being
aggrieved by the judgment and order dated
15.02.1986 passed by the Vth Additional
Sessions Judge, Mathura in S.T. No. 302 of
1985 (State vs. Phooli and others) under
Section 302/149 IPC, P.S. Nauhjhil, District
Mathura, whereby the appellant has been
convicted for the offence under Section 302
IPC and has been awarded sentence of life
imprisonment.

3. The prosecution story, in brief, is
that the P.W. 1, Teeka Ram lodged a report
at 02:45 A.M. on 02.04.1984 alleging that
in the night intervening 1/2.4.1984, his
brother deceased Ram Swarup was sleeping
on a cot in front of his house. The
informant Teeka Ram was also sleeping in
front of his house, which was adjoining to
the house of the deceased Ram Swarup at a
distance of 5 to 6 hands from the deceased.
The daughters Veeri and Champa and
Kasturi wife of deceased were sleeping
inside the house and at nearby place,
Kishori son of Doji and Prahlad son of
Teeka and Handal son of Doji were also
sleeping. As usual the lantern, which was lit
was kept on the wall of the house of the
deceased Ram Swarup. At around 12:30 in
the night, five persons came there and due
to the noise of their coming, the informant
woke up and saw that the aforesaid five
persons were standing around the cot of his
deceased brother. He got up, shouted and
ran towards the house. In the meantime the
accused/appellant Khemi had fired from the
gun, which hit on the neck of his brother.
Hearing the noise, Kishori son of Doji,
Prahlad son of Teeka, Veera and Champa
daughters of informant and the wife of the
deceased and Handal son of Doji along
with other persons of the village reached
there. The informant has identified that the
accused-appellant was having the gun in
his hand, the other accused Dharmpal and
Phooli sons of Mohan were having country
made pistols in their hands and the accused
Rajendra s/o Sukhi and Raghuveer s/o
Nripati were having ballams in their hands
and after killing the deceased, all the
accused persons ran away. The informant
1582 INDIAN LAW REPORTS ALLAHABAD SERIES
had overheard the accused saying that since
stating that the deceased had deposed
against them, therefore, revenge had been
taken.

4. After receipt of information, the
police personnel reached on the spot and
conducted the inquest at 6:30 A.M. and the
dead body of the deceased was sent for
postmortem.
The
postmortem
was
conducted by Dr. M.K.Srivastava, who
found the following ante-mortem injuries
on the body of the deceased :

(i) Fire arm wound of entry 2
c.m. x 1-5 cm x muscle deep oon the Lt.
Side neck just below the angle of mandible
6 c.m. below the Lt. ear scorching present
on the Lt. cheek, Lt. ear and Lt. side neck;

(ii) Fire arm wound of exit 3 c.m.
x 2 c.m. x bone deep on the Rt. side angle
of the mandible 2.5 c.m. below the Rt. ear;
communicated of the mandible. Injury
communicated with injury no.1.

5. As per opinion of the doctor, the
death of the deceased was caused due to
shock and haemorrhage on account of antemortem injuries sustained by the deceased.

6.

P.W.
3
S.I.
Banwari
Lal
investigated the case till 05.04.1984 and
thereafter, the investigation was conducted
by S.I. K.P.Singh and S.I. V.K. Sirohi.
During investigation, S.I. Banwari Lal
collected the blood stained and plain soil
from the place of occurrence and also the
blood stained cot and the seizure memos
were prepared. He also seized the lantern,
which was alleged to be lit at the time of
occurrence at the house of Ram Swarup.
After submission of the charge sheet, the
case was committed to the Court of
Sessions Judge and thereupon the learned
trial court framed charges against all the
accused persons namely Khemi, Phooli,
Doji, Prahlad and Rajendra under Sections
148 and 302/149 IPC. On framing of the
charges against the accused persons, they
pleaded "not guilty" and claimed trial.

7. During the trial, six witnesses were
examined on behalf of the prosecution to
prove the prosecution story. Thereupon the
statements of the accused persons were
recorded
under
Section
313
Cr.P.C.
Thereafter the D.W.1 Hemant, D.W. 2
Dulichand were examined on behalf of the
accused persons. After conclusion of the
trial, the learned Additional Sessions Judge,
Mathura vide judgment and order dated
15.02.1986 convicted the accused appellant
herein for the offence under Section 302
IPC and all other accused persons namely,
Phooli, Dharmraj, Rajendra and Doji were
acquitted from the charges under Sections
302/149 IPC. All the accused persons were
also acquitted under Section 148 IPC. After
conviction of the appellant herein, he was
awarded the sentence of life imprisonment
under Section 302 IPC.

8. Aggrieved by the aforesaid
judgment and order dated 15.02.1986, the
instant appeal has been filed by the
appellant.

9. Learned counsel for the appellant
submits that in the instant case, the lantern
has been recovered and seized by the
Investigating Officer vide seizure memo
dated 02.04.1984. As per the seizure memo,
the lantern was containing oil at the time of
seizure. Learned counsel for the appellant
further submits that as per the P.W.1 Teeka,
the lantern was lit in the evening at 7:00
P.M. and the same lit for entire night.
Therefore, it was not possible that the said
lantern could be found filled with oil. He
further submits that the evidence with
3 All. Khemi Vs. State of U.P.
1583
regard to the seizure of lantern and
placement of the same at the place of
incident is a fabricated evidence to cover
up the prosecution story and to show that
there was a source of light at the time of
incident. Learned counsel for the appellant
further submits that there are various
discrepancies with regard to the location of
the lantern.

10. P.W.1 in his chief-examination has
stated that at the time of incident, the
lantern was lit on the door of the deceased.
In his cross - examination, he has stated
that the lantern was kept on a niche, which
was two and a half feet from the ground.
The P.W. 2 also stated that the lantern was
lit on the door of the deceased. The
Investigating Officer has stated in his
deposition that the lantern was kept at the
wall, which was three and a half hands in
height. From the perusal of the seizure
memo of lantern, it appears that the lantern
contained oil at the time of its seizure,
however it is not stated as to whether it was
fully filled with oil. Therefore, the
submission made by learned counsel for the
appellant that since it was filled with oil,
that will show that it was implanted
purposefully is not sustainable as the
quantity of oil has neither been mentioned
in the seizure memo nor it has been
reflected from the cross-examination of the
concerned Investigating Officer.

11. So far as the location of the
lantern is concerned, all the witnesses have
categorically stated that the lantern was lit
near the place of incident and was kept on
some
height.
The
narration
in
the
statements of witnesses namely P.W.1 and
P.W.2 that the lantern was lit on the door of
Ram Swaroop does not mean that the
lantern must be kept exactly in between the
door but everybody has categorically stated
that the said lantern was placed on the
niche of the wall at a height of two and a
half feet or three and a half feet. Therefore,
so far as the presence of lantern is
concerned, there was sufficient evidence
available
on
record
and
the
minor
discrepancies with regard to the exact
height of the wall where the lantern was
kept, has no relevance and no prudent man
could have measured the exact height of the
lantern from the ground. It can only be
stated in approximate terms. Therefore,
such discrepancies are minor in nature
which are not sufficient to demolish the
case of the prosecution, with regard to the
presence of lantern, near the place of
incident.

12. Learned counsel for the appellant
has
also
submitted
that
there
are
discrepancies with regard to the reaching of
the Investigating Officer on the spot along
with the informant. He has also stated that
the Investigating Officer came a little later
after the informant came back. From the
record, it appears in the instant case that the
incident had taken place at 12:30 A.M. in
the night intervening 1/2. 4.1984. The
report of the incident was lodged at 2:45
A.M. on 02.04.1984 i.e. within 2 hours and
15 minutes from the time of the incident.
Also from the perusal of inquest report, it
appears that the inquest had started at 6:30
A.M. on 02.04.1984. From the depositions
of the P.W.1 and P.W.2, it is crystal clear
that the Investigating Officer has reached
the place of incident a little later after the
incident was reported to the police station
and, therefore, the discrepancy in the
statement of the P.W. 1 and P.W. 2 with
regard to reaching of the Investigating
Officer on the spot immediately or a little
later, is not of any importance whatsoever.
It would definitely not damage the case of
prosecution against the appellant herein.
1584 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Learned counsel for the appellant
further submits that the motive for
committing the murder of the deceased
against the appellant has also not been
proved beyond doubt. Since it is a case of
eye witness account and P.W. 1 and 2 had
categorically stated that they had seen the
appellant
assaulting
the
deceased,
therefore, the motive takes a back seat.
However,
P.W.1
and
P.W.2
have
categorically stated that the applicant had
committed murder of the deceased due to
the fact that the deceased had deposed
against the father of the appellant and they
had also very categorically stated when
they had left the place of incident that they
had taken revenge as the deceased had
deposed against the father of the appellant.

14. Therefore, we may reject the
submission of the learned counsel for the
appellant out right on the ground that there
were eye witnesses of the said incident and
they have specifically and very clearly
narrated the incident in their testimony.
Therefore when there are injured or
unimpeachable eye witness accounts of an
incident, motive becomes irrelevant. It is a
well settled legal position that in a case
where there is an eye witness account,
motive takes a back seat and is not of any
consequence where the deposition of the
eye witnesses is found trustworthy.

15. In the case of Shardul Singh Vs.
State of Haryana (2002) 8 SCC 372, it has
been held that :-

"motive', which is not always
capable of precise proof, if proved, may
lead additional support to strengthen the
probability of the commission of the offence
by the person accused but the absence of
motive does not ipso facto warrant an
acquittal."

16. Similarly, in the case of
Ravindra Kumar Vs. State of Punjab,
(2001) 7 SCC 690, the Apex Court has held
that-

"It is generally an impossible task
for the prosecution to prove what precisely
would have impelled the murderers to kill a
particular person. All that prosecution in
many cases could point to is the possible
mental element which could have been the
cause for the murder. It is therefore not
possible to change the tide on account of
the inability of the prosecution to prove the
motive aspect to the hilt.

17. Similarly in the case of State of
U.P. Vs. Baburam (2000) 4 SCC 515 it has
been held that-

"It is not possible to accept the
view that motive may not be very much
material in cases depending on direct
evidence whereas motive is material only
when the case depends upon circumstantial
evidence. There is no legal warrant for
making such a hiatus in criminal cases as
for the motive for committing the crime.
Motive is a relevant factor in all criminal
cases whether based on the testimony of
eyewitnesses or circumstantial evidence.
The question in this regard is whether the
prosecution must fail because it failed to
prove the motive or even whether inability
to prove motive would be weaken the
prosecution to any would be well and good
for it, particularly in a case depending on
circumstantial evidence, for such motive
could then be counted as one of the
circumstances. However, it is generally in a
difficult area for any prosecution to bring
on record what was in the mind of the
respondent. Even if the investigating officer
would have succeeded in knowing it
through interrogations that cannot be put in
3 All. Khemi Vs. State of U.P.
1585
evidence by them due to the ban imposed
by law. When the prosecution succeeded in
showing the possibility of some ire for the
accused towards the victim, the inability to
further put on record the manner in which
such ire would have swelled up in the mind
of offender to such a degree as to impel him
to commit the murder cannot be construed
as a fatal weakness of the prosecution."

18. Similarly, in the case Thaman
Kumar Vs. State of Union Territory of
Chandigarh, (2003) 6 SCC 380, it has been
held that-

"There is no such principle or
rule of law that where the prosecution fails
to prove the motive for commission of the
crime, it must necessarily result in acquittal
of the accused. Where the ocular evidence
is found to be trustworthy and reliable and
finds corroboration from the medical
evidence, a finding of guilt can safely be
recorded even if the motive for the
commission of the crime has not been
proved.
Hence
in
the
facts
and
circumstances of the case, the absence of
any evidence on the point of motive cannot
have any such impact so as to discard the
other reliable evidence available on record
which unerringly establishes the guilt of the
accused.

19. Similarly, in the case of Yunis
alias Kariya Vs. State of M.P. (2003) 1
SCC 425, it has been held that-

"Failure to prove motive for
crime in our view is of no consequence. The
role of the accused persons in the crime
stands clearly established. The ocular
evidence is very clear and convincing in
this case. The illegal acts of the accused
persons have resulted in the death of a
young boy of 18 years. It is settled law that
establishment of motive is not a sine qua
non for proving the prosecution case."

20. In (1973) 3 SCC 219 (Shivaji
Genu
Mohite
Vs.
The
State
of
Mahrashtra)
the
Supreme
Court
in
paragraph 12 has held as under:

"12. As stated earlier, the fact
that the prosecution in a given case has
been able to discover a sufficient motive or
not cannot weigh against the testimony of
any eye-witness. Evidence as to motive
would, no doubt, go a long way in cases
wholly
dependent
on
circumstantial
evidence. Such evidence would form one of
the links in the chain of circumstantial
evidence in such a case. But that would not
be so in cases where there are eyewitnesses of credibility, though even in such
case if a motive is properly proved such
proof would strengthen the prosecution
case and fortify the court in its ultimate
conclusion. But that does not mean that if a
motive is not established the evidence of
any eye-witness is rendered untrustworthy."

21. In (2017) 11 SCC 120 (Rajagopal
Vs. Muthupandi alias Thavakkalai and
Others) the Supreme Court n paragraph 14
has held as under:

"14. Equally, it is well established
that motive does not have to be established
where there is direct evidence. Given the
brutal assault made on PW-1 by criminals,
the fact that witnesses have turned hostile
can also cut both ways, as is well known in
criminal jurisprudence."

22. In any view of the matter on the
perusal of the evidence on record we find
that in fact motive was there and the
deceased was killed for the reason that he
had deposed against the accused in an
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
earlier murder case. Nothing could be
pointed out by the appellant whereby the
reliability of P.W.1 and P.W.2 could be
shaken.

23. Learned counsel for the appellant
has further raised the question with regard
to the aiming of the firearm to the deceased
as the accused persons are stated to be
surrounding at the left side of the cot. He
further submitted that whether the gunshot
was fired upon the deceased in the standing
position or while the deceased was lying on
the cot, has not been explained by the
prosecution. Relying upon the statement of
Dr. M.K. Srivastava who conducted the
postmortem, learned counsel for the
appellant submits that the doctor has not
opined in any definite term that the said
firearm injury could be caused only by a
rifle and in the position in which the
deceased was lying on the cot.

24. From a perusal of the deposition
of Dr. M.K. Srivastava, it can be seen that it
has been very categorically stated by the
doctor that the injuries on the deceased
were possible to have been caused by alone
bullet and the Doctor has categorically
stated that this injury could have been
caused as per the direction of the barrel.
The P.W.1 has also stated that the one leg of
the deceased was on the cot and the other
was on the ground. Therefore, it appears
that the deceased had tried to rise from the
bed after he had woken up and at that time
the Firearm injury was caused from the left
side of the deceased on his neck from a
close
distance
and
the
injuries
are
corroborating the statements made by P.W.1
and P.W. 2. Therefore, the injury had been
caused as per the manner described by the
P.W.1 and it was a single firearm injury as
has been stated by the doctor.

25. Thus from the evidence brought
on record by the prosecution we find that
the prosecution has succeeded in proving
the case against the appellant and there is
no reason to disbelieve the prosecution
witnesses and therefore, we do not find any
illegality in the findings recorded by the
trial court, which has rightly convicted and
sentenced the appellant, as aforesaid.

26. For the reasons aforesaid, we do
not find any illegality or infirmity in the
impugned judgment of the trial court. The
conviction and sentence of the appellant
awarded by the trial court is upheld. The
criminal
appeal
lacks
merit
and
is
accordingly dismissed.

27. The appellant Kheemi is on bail.
C.J.M. Mathura is directed to take him into
custody in the aforesaid case and send him
to jail to serve out the sentence as was
awarded by the trial court and is being
affirmed by us.

28. Office is directed to send a copy
of this order to the court concerned within a
week for compliance. The compliance
report shall be sent by the court concerned
to this court within a further period of
fifteen days.
----------
(2024) 3 ILRA 1586
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.03.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 665 of 2004

Lal Ram & Ors. ...Appellants
Versus
State of U.P. ...Respondent