# Kuber Singh & Ors. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 689 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Criminal Appeal No. 689 of 1996
- **Bench:** Mrs. Sunita Agarwal, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuber-singh-ors-in-jail-v-state-of-u-p-46411
- **Pages:** 11

## Headnote

A. Evidence law-Indian Evidence Act,
1872- Section 27- Indian Penal Code,
1860- Section 149- Motive cannot be
ascertained every time for committing
crimes- If motive is not in the F.I.R. then
a report of crime cannot be discardedPresence or absence of motive in a case of
direct evidence is not of much relevance if
the case of the prosecution is proved from
other relevant circumstances-The fact that
another eye-witness was not produced,
will not affect the case of the prosecution
if the evidentiary value of the testimony of
the sole eye witness is sufficient to prove
the prosecution case-No legal impediment
in recording a conviction on evidence of a
single
witness-However
such
single
testimony should be free from blemish
and
should
also
be
adequate
one,
corroborated by the medical evidence,
prompt F.I.R., and other circumstances,
then it can be safely acted upon for
recording
a
conviction-Minor
contradictions here and there do not
decide the fate of a murder case because
human faculties of ''sight', ''recollection'
and ''expression' are ''imperfect' - Section
27 of the Indian Evidence Act-Recovery
was made on the joint pointing of several
accused persons- If a fact is actually
discovered in consequence of information
given, same guarantee is afforded thereby
that
the
information
was
true
and
accordingly it can be safely allowed to be
given in evidence- All ingredients of
section 149 IPC present-The accused
persons with intention to kill attacked on
vital part of the deceased and caused
grievous injuries over his head- The
incident having eye witness account and
injury
on
vital
part
with
motive
establishes the case of the prosecution.

Held- Indian Evidence Act- Section 8-
Motive- Where the case is based on direct
evidence, motive loses its relevance.

Evidence
law-Indian
Evidence
Act-
Section 134- It is the quality and not
the quantity of evidence which is
important. Conviction can be recorded on
the testimony of a sole witness provided
the same is credible and corroborated from
other evidence.

Evidence law- Indian Evidence Act-
Section
3-
Minor
contradictions,
improvements
and
embellishments
cannot be made a reason to discard the
testimony of a witness. Since human
faculties of ''sight', ''recollection' and
''expression' are ''imperfect', therefore,
natural contradictions are bound to
occur.

Indian
Evidence
Act-
Section
27Recovery on joint pointing out- If a fact
is actually discovered in consequence of
information
given,
same
guarantee
is
afforded thereby that the information was
true and accordingly it can be safely
allowed to be given in evidence.

Evidence law-Indian Penal Code- Section
147, 148, 149- All the accused-appellants
formed an unlawful assembly and with a
common object assaulted the deceased on his
head ( vital part) resulting in his death. There
is ample direct evidence to connect the
312 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons with the crime. The
findings of the trial court are found just and
proper in the facts and circumstances of the
case.( Para 27,31,32,33,38,40)

Criminal Appeal rejected (E-3)

List of Case cited:-

## Text

3-5 All. Kuber Singh & Ors. Vs. The State of U.P.
311
(2020)03-05ILR A311
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DEEPAK VERMA, J.

Criminal Appeal No. 689 of 1996

Kuber Singh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri V.S. Singh, Sri Ram Singh, Sri Arvind
Kumar Srivastava, Sri Siya Ram Sahu, Sri
Ram Singh, Sri J.N. Yadav

Counsel for the Respondent:
A.G.A.

A. Evidence law-Indian Evidence Act,
1872- Section 27- Indian Penal Code,
1860- Section 149- Motive cannot be
ascertained every time for committing
crimes- If motive is not in the F.I.R. then
a report of crime cannot be discardedPresence or absence of motive in a case of
direct evidence is not of much relevance if
the case of the prosecution is proved from
other relevant circumstances-The fact that
another eye-witness was not produced,
will not affect the case of the prosecution
if the evidentiary value of the testimony of
the sole eye witness is sufficient to prove
the prosecution case-No legal impediment
in recording a conviction on evidence of a
single
witness-However
such
single
testimony should be free from blemish
and
should
also
be
adequate
one,
corroborated by the medical evidence,
prompt F.I.R., and other circumstances,
then it can be safely acted upon for
recording
a
conviction-Minor
contradictions here and there do not
decide the fate of a murder case because
human faculties of ''sight', ''recollection'
and ''expression' are ''imperfect' - Section
27 of the Indian Evidence Act-Recovery
was made on the joint pointing of several
accused persons- If a fact is actually
discovered in consequence of information
given, same guarantee is afforded thereby
that
the
information
was
true
and
accordingly it can be safely allowed to be
given in evidence- All ingredients of
section 149 IPC present-The accused
persons with intention to kill attacked on
vital part of the deceased and caused
grievous injuries over his head- The
incident having eye witness account and
injury
on
vital
part
with
motive
establishes the case of the prosecution.

Held- Indian Evidence Act- Section 8-
Motive- Where the case is based on direct
evidence, motive loses its relevance.

Evidence
law-Indian
Evidence
Act-
Section 134- It is the quality and not
the quantity of evidence which is
important. Conviction can be recorded on
the testimony of a sole witness provided
the same is credible and corroborated from
other evidence.

Evidence law- Indian Evidence Act-
Section
3-
Minor
contradictions,
improvements
and
embellishments
cannot be made a reason to discard the
testimony of a witness. Since human
faculties of ''sight', ''recollection' and
''expression' are ''imperfect', therefore,
natural contradictions are bound to
occur.

Indian
Evidence
Act-
Section
27Recovery on joint pointing out- If a fact
is actually discovered in consequence of
information
given,
same
guarantee
is
afforded thereby that the information was
true and accordingly it can be safely
allowed to be given in evidence.

Evidence law-Indian Penal Code- Section
147, 148, 149- All the accused-appellants
formed an unlawful assembly and with a
common object assaulted the deceased on his
head ( vital part) resulting in his death. There
is ample direct evidence to connect the
312 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons with the crime. The
findings of the trial court are found just and
proper in the facts and circumstances of the
case.( Para 27,31,32,33,38,40)

Criminal Appeal rejected (E-3)

List of Case cited:-

1. Puttu Vs. Emperor, A.I.R (32) 1945 Oudh 235

2. Nathu Vs. State, 1958 All 467

3. Naresh Chandra Vs. Emperor, AIR 1942 Cal
593

4. St. of M.P. Vs. Chhotelal Mohanlal, AIR 1951
Nag 71

5. Abdul Razak & ors. Vs. St. of Kar. Rep. by
S.O, Hutti P. S, (2015) 6 Supreme Court Cases
282

6. Sadhu Ram & anr. Vs. St. of Raj.; 2003 (46)
ACC 993 (SC)

7. Sanjay @ Kaka Vs. St. of NCT of Delhi, U.P.
Criminal Rules 2007 (323)

(Delivered by Hon'ble Deepak Verma, J.)

(1)

Heard
Sri Arvind
Kumar
Srivastava and Sri Siya Ram Sahu, learned
counsels for the appellant No.1, Sri Ram
Singh and Sri J.N.Yadav, learned counsels
for appellant Nos.2, 4 & 5 and Sri
L.D.Rajbhar, learned AGA assisted by Sri
Prem Shankar Mishra for the Staterespondent.

(2) The instant appeal has been filed
by accused-appellants Kuber Singh, Naresh
Singh, Awadesh Singh, Chandra Shekhar
Singh & Sukhbeer Singh against the
judgment and order dated 11.04.1996
passed by Sessions Judge, Banda, whereby
the appellants have been convicted and
sentenced in Sessions Trial No.187 of 1991
convicting the appellant nos.1 and 2
namely Kuber Singh s/o Barku Singh
Thakur and Naresh Singh s/o Ramadhar
Thakur, under section 148 I.P.C. to undergo
rigorous imprisonment for a period of two
years each, further sentencing them to
undergo imprisonment for life under
section 302 read with section 149 I.P.C. and
convicting the appellant nos.3, 4 & 5
namely Awadhesh Singh, Chandra Shekhar
Singh & Sukhbeer Singh all sons of
Ramadhar Thakur have been sentenced
under section 147 I.P.C. to undergo
rigorous imprisonment for a period of one
year each of the appellants and sentenced
under section 302 read with section 149
I.P.C. to undergo rigorous imprisonment for
life, all the sentences were directed to run
concurrently.

(3) The facts giving rise to the present
appeal may be summarized as under:-

(4) That on 03.06.1991, the informant
Shiv Mohan Singh alongwith his son Raj
Kishore Singh (deceased) and grand-son
Ashish
Singh
accompanied
by
one
Devendra Singh (nephew of the informant),
had gone to Baberu market with a bullockcart. They had reached the said market at
around 10.00 a.m. The informant purchased
stones from the said market and after the
same, they all were coming back to their
village-Kauhara, Police Station Baberu.
The bullock-cart was being driven by Raj
Kishore Singh whereas Ashish Singh was
sitting on the bullock-cart. The other two
persons namely the informant Shiv Mohan
Singh and Devendra Singh were following
the said bullock-cart from a distance of 50
to 60 paces. The entire party reached the
boarder of their village at about 7.00 p.m.
All of a sudden, the accused-persons came
out from behind the Babool trees. At that
time, the accused Kuber Singh and Naresh
3-5 All. Kuber Singh & Ors. Vs. The State of U.P.
313
Singh were having axes (Kulhari) in their
hands whereas the remaining accusedpersons were armed with lathis. The
accused persons exhorted each other by
saying that the enemies were there and they
had to do away with them. They
approached the bullock-cart and got the
same stopped. The bullocks were freed and
made to run away. Thereafter the accused
persons with their weapons in their hands
started beating Raj Kishore Singh and
Ashish Singh. Both died on the spot. The
accused-persons threw the body of Raj
Kishore Singh by the side of road and that
of Ashish Singh on the road. The informant
and Devendra Singh raised hue and cry and
rushed to intervene but they were chased by
the accused-persons and hence they ran
away from the spot. The informant came to
his village and told the village-fellows
about the said incident. He could not gather
courage to lodge FIR in the night.
However, he could muster courage in the
morning and got FIR scribed by one
Rajbeer Singh and lodged the same at
police station concerned. The informant
had brought the dead-bodies from the spot
and kept them in the house.

(5) The police registered a case
mentioned in the FIR, which is shown as
Exhibit Ka-4, which was lodged at 6.45
a.m. on 4th June, 1991 by Shiv Mohan
Singh s/o Madhav Singh Thakur P.W.-1 at
Police Station Baberu, District Banda.

(6) With the informant's report, case
was registered as Case Crime No.133 of
1991, under sections 147, 148, 302 I.P.C..
S.I.
Nand
Kishore
commenced
the
investigation. The case recovery memo of
blood stained and plain Khapley and
Kappachey at cemented jali and blood
stained safi was prepared. On 04.06.1991,
recovery of blood stained axe and two
bamboo lathis used, was prepared on
07.06.1991 as Exhibit Ka-26 sent to Vidhi
Vigyan Proyogshala (Forensic Laboratory).
On 04.06.1991, inquest was done and dead
bodies were forwarded for autopsy to the
District
Hospital.
Postmortem
was
conducted on 05.06.1991 by Dr. M.C.
Mittal P.W.-2, which are Exhibits Ka-2 and
Ka-3.

(7) Dr. M.C.Mittal, P.W.-2 found
following ante-mortem injuries on the dead
body of Raj Kishore, s/o Shiv Mohan Singh
Thakur.

Internal Examination:-

1. Head and Neck :-

see
injury

2. Bones of Scalp or skull :- Cut
and depressed fracture of frontal and left
parietal bone.

3. Membrances :-

Lacerated bone deep (sic) injury

4. Brain :-

Lacerated bone deep injury, stood
fingered and liquefied.

5. Base :-

None

Muscularity :-

Middle aged men of average (sic).
Eyes closed, mouth semi-open. R.M.
passed off compeled, deposition set in the
form of (sic), Abdominal Bruits & Peeling
of skin and loosing of hairs. Maggots are
not seen.

External Examination:-

1. Incised wound 4 c.m.x .5 c.m.x
bonedeep on the top of head 11 c.m. above
left ear. Margin are clear cut. Tailing
towards front or section cut and depressed
fracture left parietal bone and lacerated
brain matter.

2. Incised wound 3 c.m. x .5 c.m.
x bonedeep on the front of head 6 c.m.
314 INDIAN LAW REPORTS ALLAHABAD SERIES
above left eye brow. Margin clear-cut, (sic)
front or section cut x depressed fracture 3
c.m and lacerated brain.

3. Lacerated wound 1 c.m. x 5
c.m. x bonedeep at the right side of head, 7
c.m. above right ear.

4. Abrasion 2 c.m. x 2 c.m. on the
right side head and forehead above right
eye.

5. Multiple abrasion Contusion 11
c.m. x 10 c.m. above left side of lower joint
(sic).

6. Abraded contusion are 8 c.m. x
6 c.m. on the front of neck and chin.

7. Abrasion 6 x 1 c.m. on the
back of left hand.

(8) Following ante-mortem injuries on
the dead body of Ashish Singh son of Raj
Kishore Thakur.

Internal Examination:-

1. Bones of Scalp :-

Fracture right parietal deep (sic).

2. Membrances :-
(sic)
congested.

3. Brain :-

Lacerated injury

4. Base :-

None

External Examination:-

1. Incised wound 4 c.m.x 1 c.m.x
bonedeep on the front of forehead, 2 c.m.
above back of neck. Margin clear cut.
Tailing towards or section frontal of the
(sic) cut sorace mane.

2. Lacerated wound 4 x 1.5 c.m. x
bonedeep on the right side of

head 6 c.m. above ear on section.
Multiple fracture of right parietal bone and
sepacha of (sic) as (sic) and fractured (sic).

3. Abraded contusion 3 x 2 c.m.
on the left side of face of (sic) fracture
nasal bone.

4. Abrasion 7x 4 c.m. on the right
side cheek.

5. Lacerated wound 1.5 c.m. x.5
c.m. bonedeep alongwith the margin of
(sic).

6. Multiple abraded contusion are
over front of cheek and part of chest and 10
x 8 c.m.

7. Lacerated wound 0.5 x .5 c.m.
over left side of lower lib contusion and
underlying fracture of body (sic).

(9)

The
investigating
officer
proceeded with the investigation and
submitted chargesheet against the accused
persons under sections 147, 148, 302 and
34 I.P.C. and on the pointing out of the
appellants, the weapons used in the
commission of offence had been recovered.
The blood stained clothes were sent for
chemical analysis. Human blood was found
on the axe which was used by the
appellants and pieces of wood taken from
the Bullock-cart. On the other articles,
blood was disintegrated. The report of the
forensic laboratory exhibit Ka 32 was
proved by the investigating officer. Charges
were framed against the appellants under
sections 147, 302 read with section 149
I.P.C. and Section 148 I.P.C. The appellants
denied the charges and claimed to be tried
as they were falsely implicated in the
present case.

(10) The prosecution examined P.W.-1
Shiv Mohan Singh, father of the deceased
Raj Kishore Singh and grandfather of the
deceased Ashish Singh.

(11) The prosecution also examined
Dr.M.C.Mittal, P.W.-2 who had conducted
the postmortem report.

(12) P.W.-3 S.I. Nand Kishore, who
arrested the accused persons, prepared the
3-5 All. Kuber Singh & Ors. Vs. The State of U.P.
315
site plan and recovery memo during the
course of investigation. The investigating
officer
found
clinching
and
credible
material against the accused persons.

(13) After examination of formal
witnesses, statement of accused persons
were recorded under sections 313 Cr.P.C.
who had tried to give different colour to the
prosecution version and stated that due to
previous enmity they had been falsely
implicated.
They
denied
having
participated in the incident and stated that
they would give evidence but as a matter of
fact they led no evidence.

(14) The prosecution to prove its case,
examined Shiv Mohan Singh as P.W.-1,
who is the eye witness in the case.
Deceased Raj Kishore Singh was his son
and the deceased Ashish Singh was his
grandson. He was produced to prove the
factum of murder and involvement of the
accused persons with their specific roles.
He also proved that there was a motive for
the commission of the said gruesome
murder. He stated that before the said
murder, an altercation between him and
accused had ensued in which accused
Sukhbir Singh, Awdhesh Singh, Chandra
Shekhar Singh and Naresh Singh had
fought with him and had also beaten him
with fists and kicks. There had been F.I.R.'s
from both the sides. Further he stated that
the aforesaid murder was committed due to
the said enmity. The informant Chandra
Shekhar Singh stated that Devendra Singh,
who was his nephew, had been won over by
the accused persons. In that event, the
prosecution did not produce him and it
remained a case of single and solitary
evidence of P.W.-1, so far as the facts of the
case are concerned.

(15) Dr. M.C.Mittal P.W.-2 was
produced by the prosecution. P.W.-2 had
conducted postmortem on the dead bodies
of the deceased persons. The autopsy of
deceased Raj Kishore Singh s/o Shiv
Mohan was done on 05.06.1991 at 5.00
p.m. and autopsy of deceased Ashish Singh
s/o Raj Kishore Singh was done on
05.06.1991 at 5.45 p.m. by P.W.-2, who had
found two incised wounds 4 c.m. x 5 c.m.
on the top of head and 3 c.m. x .59 bone
deep in front of head, three injuries as
lacerated and 4, 5, 6 and 7 are abrasions on
the dead body of Ashish Singh s/o Raj
Kishore Singh. Dr.M.C.Mittal had found
one incised injury on the front forehead and
one lacerated wound 4 x 5 c.m. bone deep
on the right side of the head. The doctor
had opined that the injury was caused by
sharp edged weapon, which was sufficient
for causing death in ordinary course of
nature.

(16) S.I. Nand Kishore P.W.-3 who
had proved Chick FIR corroborated that
the
First
Information
Report
was
registered in his presence. P.W.-3 had
proved that he reached the spot,
prepared inquest report, sent the dead
body for postmortem in supervision of
chowkidar and constables with all
documents necessary. After arrest of
three
appellants
Awadhesh
Singh,
Chandrashekhar Singh and Sukhbir
Singh, all sons of Ramadhar Singh and
on their pointing out blood stained axe
(Khulari) and two lathis had been
recovered from the house of the accused
persons. Accused- appellants Naresh
Singh, Kuber Singh, Chandra Shekhar
Singh & Sukhbir Singh examined under
section 313 Cr.P.C. and they have
denied the allegations made over them.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

(17) We have heard learned counsels
for the appellants and perused the entire
record.

(18) Learned counsels for the
appellants have assailed the judgment on
various grounds mainly that motive is not
genuine and strong and FIR is ante-dated.
No witness or public has been examined. It
has also been assailed on the ground that
there is no source of sufficient light in
which the accused-appellants could be
recognized
and
further
they
have
vehemently argued that witness Devendra
Singh has not been produced/examined.
They also assailed that joint pointing out of
the three accused, out of five accused for
recovery of blood stained one axe and two
bamboo lathis has not properly explained.
Further no recovery from other two
appellants had been made. Recovery from
the appellant Kuber Singh and presence of
P.W.-1 are doubtful. The appellants also
raised the recovery not being in accordance
with Section 27 of the Evidence Act.

(19) Section 27 of the Indian
Evidence Act is reproduced below:-

"27. How much of information
received from accused may be proved-
Provided that, when any fact is deposed to
as
discovered
in
consequence
of
information received from a person accused
of any offence, in the custody of a police
officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved."

(20)

Learned
counsel
for
the
appellants argued that the procedure
prescribed under Section 27 of the Indian
Evidence Act had not been properly
followed by prosecution in the alleged
recovery of axe and lathis. The said
recovery is doubtful. They argued that the
evidence adduced by the prosecution with
regard to recovery of kulhari and lathi on
the pointing out of the three accused, is not
acceptable under the law because the said
recovery was made on the joint pointing of
several accused persons.

(21)

Learned
counsel
for
the
appellants has placed reliance on the
judgment passed by Hon'ble Apex Court in
Puttu vs. Emperor reported in A.I.R (32)
1945 Oudh 235, wherein the Apex Court
has considered Section 27 in a different
perspective which is not applicable in this
case. The decision of Puttu (supra) was
dissented from the Allahabad High Court in
Nathu vs. State, 1958 All 467 relying on
Naresh Chandra vs. Emperor, AIR 1942
Cal 593 and State of M.P. vs. Chhotelal
Mohanlal, AIR 1951 Nag 71 and it was
observed therein:- "It is easily conceivable
that two or more persons simultaneously or
jointly furnish an information and, as a
result of that information, a common
discovery is made; such a case will, if
either of the conditions is satisfied be
covered by the section. Each case will,
however, have to be judged on its own
facts, but the underlying principle seems to
be that the information should be such as
cannot be said to be already in the
possession of the police, that the discovery
is made in consequence of that information,
and further that the discovery is not
rediscovery
of
something
already
discovered."

(22) The appellants' counsel has also
placed
reliance
on
the Apex Court
judgment reported in Abdul Razak and
others
vs.
State
of
Karnataka
represented by Station Officer, Hutti
Police Station, (2015) 6 Supreme Court
3-5 All. Kuber Singh & Ors. Vs. The State of U.P.
317
Cases 282. The facts of the case has no
relevance with present facts of the case.

(23)
Learned
counsel
for
the
appellants argued that it is a case of double
murder in which a man aged about 41 years
and a minor boy aged about 12 to 13 years
had been killed and for such a killing, there
should have been a very strong reason.
Without a very strong reason and motive,
the accused persons could not have
admitted to such heinous crime. Further he
argued that no motive has been shown
which could give indication that accused
persons would kill two persons. They have
argued that only a minor incident of
marpeet, which occurred about two months
before the alleged killing, said to be a
motive, is not acceptable as sufficient
motive for killing two persons. Learned
counsel for the appellants argued that only
one witness of facts has been examined and
thus it is a case of single testimony and
according to him that too was that of an
interested witness. On the other hand, he
tried to show that others had motive to kill.
He further elaborated his argument that one
Chotey's only son was killed in which
deceased Raj Kishore Singh was made an
accused and it could be possible that
Chotey's kith and kins might have killed
Raj Kishote Singh and his son Ashish
Singh, so as to make the family of the
present informant/P.W.1 without any male
lineal descendant and the P.W.-1 falsely
implicated the present accused persons.

(24) Learned counsel for the accusedappellants argued that the medical evidence
is different from and in contrast with the
ocular evidence. The broad intention to the
incised wounds shown on the person of the
deceased and the alleged weapons assigned
to the accused was an effort to show that
the injuries were caused by axe (Kulhari)
whereas the nature of injuries, as found in
the postmortem reports was indicative of
the fact that same were caused by sharp
edged weapons which could not be
Kulhari. The margins were found clean cut
and, according to him, that too was an
indication of the fact that some sharp
cutting weapon like Pharsa might have
been used for causing death and not
Kulhari, as alleged by the prosecution.

(25) The learned counsel for the
appellants argued that the postmortem
reports of the deceased are not connecting
with the time of the incident. The doctor
conducting postmortem had found the
stomach and intestine of the deceased to be
empty when the incident was stated to be of
late evening and the deceased persons were
returning from the market.

(26) He further argued that the
informant and others had stated that the
dead bodies were kept on the cot whereas
the Investigating Officer says that they
were kept on the ground. On this point, the
statement of the accused-appellants was
that P.W.-1 was telling a lie. The accusedappellants lastly argued that there was a
delay in lodging of the FIR. They argued
that incident had occurred on 03.06.1991 at
7.00 p.m. but FIR had been lodged on
04.06.1991 at 6.45 a.m. The informant got
the time to prepare a false story and
afterthought they lodged the FIR and they
also argued that the time of death does not
coincide with the view of the doctor
concerned on the said point.

(27) Considering the said arguments,
it may be noted that motive cannot be
ascertained every time for committing
crimes. If motive is not in the F.I.R.,
version of F.I.R, a report of crime cannot be
discarded. The incident giving rise to
318 INDIAN LAW REPORTS ALLAHABAD SERIES
motive may be very minor, but as stated by
the appellant's counsel the gravity of
motive differs from man to man. A motive
may be a minor issue but the same could be
sufficient for the accused persons. Thus, in
either way the aforesaid position does not
exculpate the accused-persons and the
question of their culpability can be seen
only in the light of the evidence and all
other
accompanying
circumstances
as
appearing in the case. We are of the
considered view that the motive is not very
essential in a case of direct evidence i.e. as
Hon'ble Apex Court has held in various
laws on this point. But in this case in
evidence as stated by P.W.-1 it has come up
that scuffle had ensued between the parties
two months before the occurrence, in which
FIR from both the sides were lodged. It is
settled that motive is in the minds of the
accused persons and cannot be ascertained
by the Court. Presence or absence of
motive in a case of direct evidence is not of
much relevance if the case of the
prosecution is proved from other relevant
circumstances.

(28) P.W.-1 in his evidence has stated
that only 7-8 years back his grandson (son
of Raj Kishore) had died of drowning and
he did not implicate the accused whereas he
had an opportunity to falsely implicate the
present accused persons, without waiting
for his son and another grand-son to die. He
had no enmity with Chhotey Lal after they
won in all criminal cases in the murder of
his son occurred in the year 1971.

(29)

Learned
counsel
for
the
appellants further argued that width of the
incised-wound was found 0.5 c.m. and 1.00
c.m. In that light he argued that the same
could not be caused by a ''Kulhari' (axe).
The depth of the injuries has been found
roughly 3.00 to 4.00 c.ms. and if a
''Kulhari' gets pierced into head and goes
only upto 4.00 c.m. in depth, one cannot
expect more wider injuries than 0.5 c.m.
and 1.00 c.m.

(30)

Learned
counsel
for
the
appellants next argued that stomach of the
deceased persons was empty and it was not
believable that the stomach and intestine of
both the deceased-persons could be empty
when they were coming back from the
market. In the statement of P.W.-1, he has
categorically stated that they did not take
any food, not eaten anything during their
entire journey and purchasing etc. It has
also come in the evidence that they had
simply taken tea and water. At 7.00 p.m.,
when the murder was allegedly done, one
cannot expect tea and water to remain in
the stomach and intestine of the deceasedpersons and if the doctor found these two
organs empty, it was a natural and is
perfectly in consonance with the ocular
version.

(31) It was further raised by the
appellant's counsel that only one person's
testimony cannot be relied and other
witnesses named in the FIR were not
produced by the prosecution. We are of the
opinion that the fact that another eyewitness was not produced, will not affect
the case of the prosecution if the
evidentiary value of the testimony of P.W.-
1, sole eye witness is sufficient to prove the
prosecution case. It is not obligatory that
the prosecution produces all witnesses
examined during the course of investigation
or stated to be present on the spot. It is the
choice of the prosecution to produce best
evidence in its favour, i.e. it can chose to
examine only those witnesses in the
witness box who prove the story. The real
test is that the testimony of the prosecution
witnesses is credit worthy and is true
3-5 All. Kuber Singh & Ors. Vs. The State of U.P.
319
narration of the case. Moreover, it has come
in the evidence that Devendra Singh,
another eye witness had been won-over by
the accused and that is why he was not
produced.

(32) In view of law laid down by the
Apex Court in Sadhu Ram and another
vs. State of Rajasthan; 2003 (46) ACC
993 (SC), there is no legal impediment in
recording a conviction on evidence of a
single witness. The rule of prudence,
however,
demands
that
such
single
testimony should be free from blemish and
should also be adequate one. If such
testimony is also corroborated by the
medical evidence, prompt F.I.R., and other
circumstances, then it can be safely acted
upon for recording a conviction.

(33) The testimony of P.W.-1 is not
doubtful as P.W.-1 Shiv Mohan Singh in his
deposition stated that when they were
returning
from
Baberu
market
after
purchasing and when bullock cart reached
in the area of Kauhara about four farlang
from abadi area, accused Kuber and Naresh
with Kulahri, Sukhbir, Chandrashekhar and
Awdhesh with lathi who were hidden
behind the Babool tree, suddenly came out
from behind the Babool tree and shouted to
kill the enemies. They freed the bullocks
from the cart and started beating Raj
Kishore
and
Ashish.
Deponent
and
Devendra was coming behind the bullock
card. P.W.-1 cried to save his child and
grandson, accused killed Raj Kishore and
Ashish and threw their bodies on the road.
P.W.-1 was present on the spot, his
presence at the scene of occurrence is not
doubtful. His testimony could not be
brushed aside only on account of being
solitary witness. Minor contradictions here
and there as pointed out by the learned
counsel for the appellants do not decide the
fate of a murder case because human
faculties of ''sight', ''recollection' and
''expression' are ''imperfect', therefore,
natural contradictions are bound to occur.

(34)

The
appellants'
counsel
compared the facts narrated by P.W.-1 with
the evidence of Investigating officer and
pointed out a minor difference in the
statement of P.W.-1, the informant and the
Investigating Officer regarding the dead
bodies being kept on the ''Cot' as stated by
P.W.-1, whereas, the Investigating Officer
stated that the bodies were found by him on
the ground but it was corrected after
recollecting the fact that bodies were found
on the ''Cot'. Such minor discrepancies
could not be a reason to disregard the
testimony of the witnesses.

(35) The appellants' counsel raised a
point that there was delay in lodging the
F.I.R. We do not agree with the same, as
delay has been already explained by P.W.-1
Shiv Mohan Singh informant who stated in
witness that after his son and grand son
were killed, he was badly terrified and had
no courage to go to the Police Station in the
night to lodge the F.I.R. The next date
somehow he gathered courage and went to
the Police Station in the early morning to
lodge the F.I.R.

(36) On the point raised by appellants'
counsel regarding site-plan that the dead
body of Raj Kishore Singh was shown
behind
the
bullock-cart,
while
the
Investigating Officer found the same in
front of the bullock-cart. This objection
raised by the appellant's counsel is not
correct as it has come up in the evidence
that the bullock-cart was shifted from the
place of occurrence when he visited the
spot. A trail of blood from place 'A' to 'C'
has been shown in the site plan and the
320 INDIAN LAW REPORTS ALLAHABAD SERIES
dead body of Raj Kishore Singh was found
at place 'C' and his son at place 'B', whereas
bullock cart was shown at place 'A'. Blood
was found scattered on the bullock cart and
blood-stained pieces were seized and
exhibited
as
'Ka-24'.
On
chemical
examination, human blood was found on
the said seized articles. The prosecution
version of the manner in which murder was
committed is, thus, proved from the occular
version of P.W.-1, corroborated by other
relevant material on record.

(37) The appellants' counsel placed
Section 27 of the Evidence Act to create a doubt
regarding recovery of the axe and lathis.

(38) Hon'ble Apex Court in Sanjay @
Kaka vs. State of NCT of Delhi reported in
U.P. Criminal Rules 2007 (323) has held that
if a fact is actually discovered in consequence
of information given, same guarantee is
afforded thereby that the information was true
and accordingly it can be safely allowed to be
given in evidence.

(39) As discussed above, the deceased
had sustained lacerated wounds and incised
wounds which is proved from the postmortem
report and having been caused by sharp edged
weapon and lathi. P.W.-1 categorically stated
that Kuber and Naresh had Kulhari/axe,
Sukhbir, Chandrashekhar and Awadhesh had
lathis. They being members of the unlawful
assembly formed by all the accused appellants,
are equally liable for the offences committed by
any members of unlawful assembly in
prosecution of the common object in which
double murder was committed. They played
important role as they were carrying axe/kulhari
and lathi and killed Raj Kishore and Ashish.
The conviction of accused under sections 147,
148, 149, therefore, is just and proper. The
deceased Raj Kishore received incised wound 4
c.m. x .5 c.m. on the top of the head, 11 c.m.
over left eye and incised wound 3 c.m. x 5 cm.
bone deep on the front of head, 6 cm. left eye,
lacerated wound 1 cm., 5 cm.. bone deep.
Lacerated wound of 1 c.m. X 5 c.m. and bone
deep. Deceased Ashish received injury incised
wound 4 c.m., 1 c.m. on the front of the
forehead and lacerated would 4 x 1.5 c.m. bone
deep on the right side of above eyes, multiple
fractured. Lacerated wound 1.5 c.m.x .5
c.m.colour deep. These injuries can be said to
have been caused by the weapon carried by the
accused persons.

(40) Further, the conviction under
Sections 147, 148 & 149 I.P.C. is just and
proper as all the ingredients of section 149 that
(i) the offence must be committed by any
member of unlawful assembly consisting of
five or more members, (ii) It must be shown
that the incriminating act wa* s done to
accomplish the common object of the unlawful
assembly. (iii) It must be within the knowledge
of other members that the offence is likely to be
committed in prosecution of the common object
are satisfied. In the instant case, the accused
persons with intention to kill attacked on vital
part of the deceased and caused grievous
injuries over his head. The incident having eye
witness account and injury on vital part with
motive coming from the statements of P.W.-1
Shiv Mohan Singh, P.W.-2 Dr. M.C.Mittal and
P.W.-3 Nand Kishore, Investigating Officer are
corroborating each other. The eye witness
account having clinching evidence and natural
narration of the occurrence cannot be discarded
or brushed aside. We do not find any material
fact from the evidence of the case available on
the record to cause interference in the decision
of the court below.

(41) Having regard to the overall facts
and circumstances of the case and also the
gravity of the matters, we find no reason to
disagree with the view taken by the court
below. There is ample direct evidence to
3-5 All. Sunil Kumar Singh Vs. State of U.P.
321
connect the accused persons with the crime.
The findings of the trial court are found just and
proper in the facts and circumstances of the
case.

(42) Resultantly, this appeal fails and
is, hereby, dismissed. The judgment and
order passed by court below is affirmed.

(43) Appellants Kuber Singh, Naresh
Singh, Chandra Shekhar Singh & Sukhbir
Singh, are on bail. Their bail bonds are
cancelled and sureties are discharged. They
shall surrender forthwith before the court
concerned, be taken into custody and sent
to jail to serve their sentence.

(44) Certify this judgment to the court
below immediately for compliance.

(45) The compliance be submitted
through the Registrar General, High Court,
Allahabad.
----------
(2020)03-05ILR A321
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 717 of 1984
connected with
Government Appeal No. 1086 of 1984 &
Government Appeal No. 1088 of 1984

Sunil Kumar Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri D.S.P. Singh, Sri Adarsh Kumar Pandey,
Sri Rajiv Kumar Mishra

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law- Indian Penal Code,1860-
Section 304- Delayed FIR- After three days of
the occurrence-Version in the FIR that the
informant was told about the incident by the
victim is a version wholly unreliable and appears
to have been managed by the prosecution and
in particular by the informant and cannot be
believed to be correct version in the prevailing
facts and circumstances of the case - Testimony
of PW3 does not indicate compatibility with
natural
conduct
that
after
seeing
the
occurrence, he being Lekhpal posted in district
Varanasi at that point of time must have told
/described about the incident to anyone but he
kept silent for three days-Witness is not reliable
and he cannot be believed to be worthy of
credit-His natural conduct is inconsistent with
that of a man of ordinary prudence, not fit in
the prevailing circumstances of the case - Child
witness- Not believed to be wholly reliable
witness and she appears to have been tutored
witness because she has categorically stated in
her cross examination that whatever was seen
by her was told to her by her parents- Claim of
the defence that the air-gun was fired in the
play and it somehow incidentally hit the victim
can be acted upon as plausible explanation
about the incident.

Criminal law-Code of Criminal Procedure,
1973 -Section 154- Delay in lodging FIRThe FIR has been lodged belatedly and the
same recites a false narrative since the
deceased had already expired before the time
he allegedly told the First Informant about the
occurrence.

Evidence Law-Indian Evidence Act,1872-
Section 155- Credibility of witness- The
witness having not disclosed the information for
three days , his conduct was wholly unnatural
and devoid of any credibility.

Evidence law-Indian Evidence Act, 1872-
Section 118- Child Witness- Where the Child
Witness admitted that his evidence was based
on hearsay, the same goes to show that he is a
tutored witness and cannot be relied upon.
Learned trial court while considering merit
of the case overlooked above material