# Lalji & Ors v. State of U.P

- **Citation:** (2023) 3 ILRA 1280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-21
- **Case number:** Criminal Appeal No. 532 of 1997
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalji-ors-v-state-of-u-p-49930
- **Pages:** 14

## Headnote

A. Criminal Law - Appeal- Indian Penal
Code-1860 - Sections 302 & 34 -Against
conviction under IPC read with Section 34
IPC- Accused killed the deceased by
beating him with lathies- Deceased was
raising wall on land- accused claimed to
be theirs- Appellants' plea- conviction
based
on
testimony
of
interested
witnesses- no specific roles assigned.
3 All. Lalji & Ors. Vs. State of U.P.
1281
B. No delay in filing of FIR- Ocular
evidence-
trustworthy
and
reliable-
corroborated
from
medical
evidence-
establishment of motive for commission of
crime- not necessary- relationship of eyewitnesses inter se- not a ground to discard
their
testimony-
Non-examination
of
Investigating Officer- no prejudice caused
to the defence. (Paragraphs 28 to 42)

HELD: It is true that there is no mention of
motive in F.I.R. about the commission of crime.
Even PW-1, PW-2 and P.W. 3 have also not
disclosed anything that became the root cause
of committing murder by the appellants except
conversation started on the part of the
appellants
and
Lalman
in
relation
to
construction of the wall belonging to cow shed
but it is settled law that merely because the
prosecution fails to prove motive for commission
of the crime, it must not necessarily result in
acquittal of the accused. It is well settled that
where
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 crime has not been proved. (Para
28)

It is common knowledge that village (mohalla)
life is faction ridden and involvement of one or
the other in the incidents is not unusual. One
has also to be cautious about the fact that
wholly independent witnesses are seldom
available or are otherwise not inclined to
comeforth, lest they may invite trouble for
themselves for future. Therefore, relationship of
eye-witnesses inter se, cannot 16 be a ground
to discard their testimony. There is no reason to
suppose the false implication of the appellants
at the instance of the eye-witnesses. It would
also be illogical to think that witnesses would
screen the real culprits and substitute the
appellants for them. (Para 36)

It is also relevant to note that the prosecution
witnesses i.e. P.W.1 & P.W.2. have not been
confronted with their previous St.ment as
recorded by the Investigating Officer under
section 161 Cr.P.C. except P.W.3 Chibilli on some
minor issues which are not material to the case.
Even regarding the place of occurrence there is
no dispute. In this way, it cannot be said that
any prejudice had been caused to the defence
on account of non-examination of Investigating
Officer. (Para 42)

C. No specific role assigned- role of Lalji in
inflicting fatal injury established- no
premeditation of all accused persons to
commit murder- benefit of doubt available
to the other accused. (Paragraphs 43 and
44)

HELD:There is no specific role assigned to

## Text

_Characters 0–39,632 of 48,138. This is a partial read: ask again with offset=39632 for what follows._

1280 INDIAN LAW REPORTS ALLAHABAD SERIES
owners and both the courts below have
found that the defendants had a subsisting
interest in the land in suit and had a right
to build. It has also found against the
plaintiffs that they made no oral protest, as
alleged by them. Both the courts below
have exercised their discretion upon the
circumstances of the case in favour of the
defendants and have refused the reliefs
asked for by the plaintiffs. In this appeal
the question resolves itself merely into the
fact whether the discretion was exercised
improperly. We are of opinion that the
plaintiffs
have
failed
to
establish
circumstances which would justify this
Court in second appeal to interfere with the
exercise of the discretion concurrently by
the two courts below. We accordingly
dismiss this appeal with costs."

32. Upon applicability of aforesaid
judgment
in
the
present
facts
and
circumstances of the case, it is evident that
the plaintiff had set up an untrue case by
giving an impression that she was the sole
owner
of
the
entire
plot
no.1297
minjumala. It is a finding of fact recorded
concurrently by both the courts below and
has also been admitted by learned counsel
for petitioner that in fact plaintiff has only a
share in the property in dispute and is not
owner in possession over the entire plot
although there is no such averment in the
plaint.

33. In view of aforesaid, this Court
does not find any error with regard to
finding recorded that there was material
concealment of fact in the plaint.

34. Question No.B is answered
accordingly against the petitioner.

35. In view of aforesaid that both the
questions formulated by this Court have
been answered against petitioner-plaintiff,
the petition being devoid of merit is
dismissed at the admission stage itself.

36. It is however made clear that the
aforesaid answering of two questions is
limited to the application for temporary
injunction only and would not have any
bearing on the final adjudication of the suit
which would be on its own merits and
would not prejudice the suit proceedings
between co-sharers of the property in
question, which would be subject to
evidence.
----------
(2023) 3 ILRA 1280
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 532 of 1997

Lalji & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.C. Nigam, Sri Dhirendra Kumar Srivastava,
Sri Janmed Kumar, Sri Kameshwar Singh, Sri Om
Prakash Chaurasia, Sri Satya Prakash Shukla, Sri
Surendra Singh

Counsel for the Respondent:
G.A.

A. Criminal Law - Appeal- Indian Penal
Code-1860 - Sections 302 & 34 -Against
conviction under IPC read with Section 34
IPC- Accused killed the deceased by
beating him with lathies- Deceased was
raising wall on land- accused claimed to
be theirs- Appellants' plea- conviction
based
on
testimony
of
interested
witnesses- no specific roles assigned.
3 All. Lalji & Ors. Vs. State of U.P.
1281
B. No delay in filing of FIR- Ocular
evidence-
trustworthy
and
reliable-
corroborated
from
medical
evidence-
establishment of motive for commission of
crime- not necessary- relationship of eyewitnesses inter se- not a ground to discard
their
testimony-
Non-examination
of
Investigating Officer- no prejudice caused
to the defence. (Paragraphs 28 to 42)

HELD: It is true that there is no mention of
motive in F.I.R. about the commission of crime.
Even PW-1, PW-2 and P.W. 3 have also not
disclosed anything that became the root cause
of committing murder by the appellants except
conversation started on the part of the
appellants
and
Lalman
in
relation
to
construction of the wall belonging to cow shed
but it is settled law that merely because the
prosecution fails to prove motive for commission
of the crime, it must not necessarily result in
acquittal of the accused. It is well settled that
where
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 crime has not been proved. (Para
28)

It is common knowledge that village (mohalla)
life is faction ridden and involvement of one or
the other in the incidents is not unusual. One
has also to be cautious about the fact that
wholly independent witnesses are seldom
available or are otherwise not inclined to
comeforth, lest they may invite trouble for
themselves for future. Therefore, relationship of
eye-witnesses inter se, cannot 16 be a ground
to discard their testimony. There is no reason to
suppose the false implication of the appellants
at the instance of the eye-witnesses. It would
also be illogical to think that witnesses would
screen the real culprits and substitute the
appellants for them. (Para 36)

It is also relevant to note that the prosecution
witnesses i.e. P.W.1 & P.W.2. have not been
confronted with their previous St.ment as
recorded by the Investigating Officer under
section 161 Cr.P.C. except P.W.3 Chibilli on some
minor issues which are not material to the case.
Even regarding the place of occurrence there is
no dispute. In this way, it cannot be said that
any prejudice had been caused to the defence
on account of non-examination of Investigating
Officer. (Para 42)

C. No specific role assigned- role of Lalji in
inflicting fatal injury established- no
premeditation of all accused persons to
commit murder- benefit of doubt available
to the other accused. (Paragraphs 43 and
44)

HELD:There is no specific role assigned to other
appellants for assault except general allegation
that all of the appellants assaulted the deceased
but post mortem report Ext. Ka-2 does not
support the allegation of assault by 19 more
than one person. Thus from the evidence on
record
it
is
clearly
established
beyond
reasonable doubt that appellant Lalji caused
injury to the deceased as a result of which, he
died. So for as other appellants are concerned,
their participation in causing injuries to the
deceased cannot be said to be proved beyond
reasonable doubt only on the basis of their
presence on the spot with Lalji unless there is
an act of premeditation of all the accused
persons to commit murder of the deceased
which is lacking from the very outset and it was
only to the extent of preventing the deceased
from further construction on the land in dispute.
(Para 43)

In our opinion, the evidence on record clearly
establishes the case of the prosecution against
the appellant Lalji beyond any shadow of doubt
but not against other accused appellants
Shyamji and Pyare. They are entitled for benefit
of doubt. (Para 44)

D. Nature of injuries- all but one are
simple- no intention of the appellants to
commit murder of the deceased- intention
only to prevent deceased from further
construction
of
wall
of
cow
shed-
knowledge to cause injury likely to cause
death- Offence under Section 304 Part-II-
No
liability
under
Section
302
IPC-
Sentence reduced- Appeal partly allowed.
HELD: In this case, as noticed above, the
appellant Lalji was equipped with lathi, a blunt
weapon. There was no previous enmity between
the parties. There was dispute relating to
goshala land which was being claimed by both
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
23 of them. The deceased was heightening the
walls which was prevented by the accused
appellant and there was oral altercation on this
issue. In the course of oral altercation, the
appellant assaulted the deceased with lathi on
his head. The deceased tried to esacpe, the
appellant again assaulted him but lathi blows
were made on hands, not on head or chest. The
circumstances
show
that
there
was
no
premeditation in the mind of appellant to cause
death of the deceased or to cause such
bodily injury which was likely to cause his
death. On account of oral altercation, in the
spur of moment, he assaulted the deceased
with lathi on his head and again other lathi
blows on his hands. Striking lathi on the
head can be attributed to have knowledge
that the injury was likely to cause death but
it was not with the intention to cause such
bodly injury which was likely to cause death.
The intention of the appellant seemed to be
only to prevent the deceased from making
further construction on the wall of cow shed
(goshala) land. Thus, there appears absence
of intention on the part of the appellant but
it was only with the knowledge to cause
injury likely to cause death which would fall
within the ambit of Section 304 Part-II IPC.
(Para 49)

Appeal partly allowed. (E-14)

List of Cases cited:

1. St. of Himachal Pradesh Vs Jeet Singh 1999
(38) ACC 550 SC

2. Nathuni Yadav & ors. Vs St. of Bihar & ors.
1997 (34) ACC 576

3. Thaman Kumar Vs St. of Union Territory of
Chandigarh 2003 (47) ACC 7

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

5. Dalip & ors. Vs St. of Pun. A.I.R. (1953) SC
364

6. Masalti Vs St. of U.P. (A.I.R.) 1965 SC 202

7. Rameshwar & ors. Vs St. 2003 (46) ACC 581

8. Behari Prasad Vs St. of Bihar 1996 SCC (2)
317

9. Pulicherla Nagaraju @ Nagaraja Vs St. of A.P.
(2006) 11 SCC 444

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. The present criminal appeal
emanates from the judgment and order
dated 26.02.1997 passed by the learned
Sessions Judge, Mirzapur in Sessions Trial
No. 77 of 1993 (State Vs. Lalji and others)
arising out of Crime No. 196 of 1991 under
Section 302/34 IPC, Police Station Chunar,
District Mirzapur whereby accused Lalji,
Shyamji, Pyare and Chhotai have been
convicted and sentenced under Section 302
read with Section 34 IPC with life
imprisonment.

2. The prosecution case in brief is that
on 26.10.1991 at about 4 p.m. Lalman,
father of the informant was heightening the
walls of the cow shed (Gaushala) on the
land granted on lease with the informant,
sister Savita, mason Chibilli and labour
Sita. In the meantime, Lalji, Shyamji, Pyare
and Chhotai equipped with lathies came
there. While abusing they claimed the land
belonging to them as their lease land.
Lalman responded by saying that it was his
lease land over which the old cow shed was
constructed. At that Shyamji exhorted and
all the accused persons started beating him
with lathies. He ran for about 30-40 steps
but the accused persons surrounded him
and killed by beating with lathies. On hue
and cry, Satyawan and Dhananjay came
there and then the accused persons went
away. The F.I.R. was lodged by the
informant Shyam Bahadur on the same day
at about 8.30 p.m. at the police Station
Chunar as crime No. 370 of 1991, under
3 All. Lalji & Ors. Vs. State of U.P.
1283
Section 302 IPC. The detail of which was
entered into G.D. Report no.42

3. The investigation of the case was
handed over to S.I. V.P. Singh who
proceeded to the place of occurrence and
collected blood stained and plain soil from
the spot and prepared the fard.

4. The inquest of deceased Lalman
was conducted by S.I. V.P. Singh, inquest
report was prepared in presence of
witnesses, dead body was sealed, other
essential papers were prepared and the dead
body was handed over to constables
Murtaza Ali and Chhangur Dubey for postmortem.

5. Dr. S.C. Srivastava conducted the
autopsy on the dead body of Lalman on
27.10.1991 at 3 p.m. at District Hospital
Mirzapur & prepared the postmortem
report Exhibit Ka-2. Details of which are as
under:

The dead body was brought in sealed
cloth. Seal compared and found intact. The
age of the deceased was about 60 years and
time since death was about one day.

External Examination: Average built
body. Rigor mortis passed off in upper
extremities and was present in lower
extremities. Blood clot was present in
nostrils. Eyes were closed.

Ante-mortem injuries:(1) Lacerated
wound 3 cm x 1⁄2 cm x bone deep on right
side of scalp, 8 cm above right external ear.

(2) Lacerated wound 8 cm x 2 cm x
cranial cavity deep over right side of scalp
posteriorly 5 cm above and posterior to
right external ear. The underlying bone was
fractured and brain matter was visible.

(3) Lacerated wound 2 cm x 1 cm x
cranial cavity deep over posterior side of
scalp on right side 2 cm below injury no. 2.

(4) Abrasion 4 cm x 1 cm over upper
surface of right shoulder.

(5) Abrasion 2.5 cm x 1 cm over
posterior surface of left elbow.

(6) Abrasion 2 cm x 2 cm over
posterior medial surface of left arm 7 cm
above left wrist.

(7) Abrasion 1 cm x 1 cm over
posterior surface of left wrist.

Cause of death was mentioned as
coma due to head injury.

6. After inspection of the place of
occurrence, Investigating Officer prepared
the site plan and recorded the statements of
witnesses conversant to the facts of the
case, thereafter concluded the investigation
and found a case, prima facie made out
under Section 302/34 IPC. After preparing
the charge sheet, he submitted it to the
court concerned.

7. The cognizance of the offence was
taken by the court concerned and copies of
prosecution papers were provided to
accused persons in compliance of Section
207 Cr.P.C. and the case was committed to
the court of session for trial.

8. Learned trial court framed the
charges under Section 302 read with
Section 34 IPC on the basis of material on
record and after giving opportunity of
hearing to appellants. Charge was read-over
and explained to them. They did not plead
guilty but denied it and claimed for trial.
Consequently,
case
was
fixed
for
prosecution evidence.

9. The prosecution examined P.W.1
Shyam Bahadur, the informant, P.W.2
Dhananjai, P.W.3 Chibilli (mason) as eye
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses. P.W. 4 Dr. S.C. Srivastava who
conducted
the
postmortem
was
also
examined.

10. After conclusion of prosecution
evidence the statement of appellants were
recorded under Section 313 Cr.P.C. wherein
they stated that they had not committed the
murder and statements made by the
prosecution witnesses were false. Accused
Lalji stated that Arazi no. 330 measuring 1
bigha 10 biswa belonged to him on the
basis of the patta granted in his favour on
25.07.1979.
Since
then
he
was
in
possession of that land, there was a case
before the Tehshildar, Chunar which was
decided in his favour on 30.11.1988. On
that land, the deceased was making
construction by force and in the night
somehow he sustained injuries and he
along
with
his
real
brothers
were
implicated falsely with a view to grab his
land. Likewise, accused Shyamji, Pyare
and Chhotai also stated about the incident
and the statements made by the prosecution
witnesses being false.

11. Appellants were given an
opportunity for defence but they did not
adduce any evidence in their support.

12. Learned trial Court heard the
argument for prosecution as well as
appellants, passed the judgment and order
dated 26.2.1997 wherein he found all of
the appellants guilty under Section 302
read with Section 34 IPC and sentenced
them for rigorous imprisonment for life.
Against this judgment and order, these two
appeals have been preferred by the
accused persons. One Criminal Appeal
No. 477 of 1997 was filed by accused
Chhotai but during the pendency of the
appeal, he had died, as a result his appeal
stood abated.

13. We have heard Sri Janmed Kumar,
learned counsel on behalf of appellant no.
1, Sri Satya Prakash Shukla learned counsel
on behalf of appellant nos. 2 and 3, Sri
Arun Kumar Singh learned A.G.A. for the
State and perused the record.

14.

Learned
counsels
for
the
appellants would submit that the judgment
and order passed by the learned trial court
is against evidence available on record
which is bad in the eyes of law being based
on the testimony of interested witnesses
who are relatives of the deceased. The
F.I.R. was lodged with inordinate delay
having no explanation. There was no
motive to commit the murder of the
deceased. P.W. 1 Shyam Bahadur being son
of the deceased was an interested witness.
P.W. 2 Dhananjay Singh was not present on
the place of the occurrence but he was a
managed witness. P.W. 3 Chibilli (mason)
was also related to the deceased, therefore,
the
testimony
of
three
prosecution
witnesses cannot be said to be reliable.
There are inter se contradictions in their
testimony which do not inspire confidence.
Further it was submitted that no specific
role has been assigned to any of the
accused except general role. In such a
situation, liability cannot be fixed on either
of the appellants to cause injuries on the
person of the deceased. No liability can be
fixed by invoking the provision of Section
34 IPC. The injuries found on the person of
the deceased were simple in nature and
cannot be said to have been caused with the
intention or knowledge to cause death of
the deceased. It is also submitted that the
nature of the injuries found on the person
of the deceased cannot be said to have been
caused with lathi by three accused persons
but they occur due to fall on some stone
during night hours. The Investigating
Officer who investigated the case was not
3 All. Lalji & Ors. Vs. State of U.P.
1285
examined
during
trial
which
caused
prejudice to the accused appellants. In this
way, the whole prosecution case becomes
unreliable and the conviction of the
appellants by the learned trial court is a
result of misappreciation of evidence on
record, unsustainable in the eye of law and
the appellants, as such are liable to be
acquitted.
Lastly,
it
was
argued
in
alternative that the offence said to have
been committed does not fall within the
ambit of Section 302 IPC but at the most it
could be said to be covered to the extent of
Section 304 Part II of IPC.

15. Learned A.G.A. opposed the
submissions made by the learned counsel
for the appellants and urged that in this
case, the appellants went on the spot where
the deceased was heightening the wall on
his pre-constructed cow shed on the land
allotted to him on lease and made assault
with lathi in furtherance of the common
intention of all to cause his death, as a
result the deceased sustained injuries and
died. The F.I.R. of the incident was lodged
by the informant promptly without any
delay. P.Ws. 1, 2 and 3 are eye-witnesses of
the incident, who were working on the spot
at the time of the incident. Further it was
urged that P.W. 3 Chibilli was a mason and
was not resident of the same village so he
cannot be said to be related to the deceased
he was an independent witness who gave
vivid details of the incident during his
examination before the court. There are no
major contradictions in the testimony of the
prosecution witnesses. The injuries found
on the person of the deceased also
corroborate with the description by the ye
witnesses about the manner of injuries
caused by the accused appellants. In this
way, it is established with the evidence on
record that the injuries were caused by the
appellants to the deceased as a result of
which he had died. So far as nonexamination of the Investigating Officer is
concerned, it was argued that it does not
cause any prejudice to the appellants and
on
mere
non-examination
of
the
Investigating Officer the prosecution case
will not fail, as there was sufficient
evidence
on
record
to
support
the
prosecution case. The evidence on record is
sufficient on the basis of which the learned
trial judge has recorded the conviction of
the appellants, perfectly justified in the eye
of law. There is no illegality or impropriety.
The appeal is liable to be dismissed as
such.

16. From the submissions of the
learned counsels for the parties, the
following
questions
emerge
for
consideration of this Court as (i) to whether
there was delay in lodging the F.I.R., (ii)
motive was absent, (iii) absence of
common intention to cause death of the
deceased, (iv) the unreliability of witnesses
being relatives and interested, (v) the nature
of injuries found on the person of the
deceased,
(vi)
the
effect
of
nonexamination of Investigating Officer and
(vii) as to whether the case comes within
the purview of Section 302 IPC or under
Section 304 Part II IPC.

17. Before we deal with the
contentions of the learned counsel for the
appellants, it would be convenient to take
note of the evidence as adduced by the
prosecution.

18. P.W.1 Shyam Bahadur is the
informant who deposed that he knew
accused Lalji, Shyamji, Pyare and Chhotai,
who were residents of his village. Amongst
them Lalji, Shyamji and Pyare were real
brothers and Chhotai was their friend.
Deceased Lalman was the father of the
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
informant who was murdered four years
ago at about 4 o'clock when he was at his
cow shed (gausala) and for heightening the
wall, work was being done by the mason
Chibilli with labour Sita. The land of cow
shed was given in favour of his father on
lease. The accused came there and
prevented his father from constructing the
wall, on which he retaliated that it was his
old cow shed and the lease deed was in his
favour. At that Shyamji exhorted and all the
four accused persons started beating his
father with lathies who tried to escape but
while he could run for about 30 paces, all
the four accused persons surrounded him
and caused his death by beating. At the
time of the incident, he, his sister Sangita,
labour Sita and mason Chibilli were present
and Dhananjay & Satyawan had reached on
the spot hearing their hue and cry. They all
saw the incident and accused persons went
away after beating. He got tahreer ( written
report) scribed by Mastram and after
hearing the contents thereof, he affixed his
thumb impression and lodged the F.I.R. He
admitted the tahreer ( written report)
having been given by him at the police
station and also identified his thumb
impression on it, which was proved as Ext.
Ka-1.

This
witness
was
subjected
to
gruelling cross-examination by the learned
counsels for the appellants before the trial
court but the witness had not disclosed any
such fact which weakens his testimony. He
had affirmed the fact of beating by the
appellants.

19. P.W.2-Dhananjay Singh deposed
that he knew accused Lalji, Shyamji,
Pyare and Chhotai, who were residents of
his village. Deceased Lalman was also a
resident of his village who was murdered
about four years ago. At the time of the
incident Lalman was heightening the wall
of his old cow shed where mason Chibilli
was carrying construction work of the
wall and labourer Sita was also present
on the spot. The son of Lalman namely
Shyam Bahadur and his daughter Savita
were also present. The land of cow shed
belonged to deceased Lalman and was in
his possession. At the time of the incident
at a distance of about 25-30 paces away,
the witness was giving food to his
charwaha.
In
the
meantime,
Lalji,
Shyamji, Pyare and Chhotai equipped
with lathi-danda came on the spot and
started beating Lalman who fell down on
the ground and succumbed to his injuries.
P.W.2. stated that he went on the spot and
saw the incident. The accused persons
went away towards the east direction.
Daroga Ji reached on the spot in the night
and collected blood stained and plain soil
from the site and prepared the fard, on
which he also made his signature.

This witness also faced gruelling
cross-examination made by the learned
counsel for the appellants, but nothing
contrary to the case of the prosecution
could be pointed out from his deposition.

20. P.W.3 Chibilli deposed that he
knew Lalji, Shyamji, Pyare and Chhotai,
who were residents of village adjacent to
his own village located at about 1 km. He
also knew deceased Lalman who was
murdered four years ago at about 4 p.m.
This witness was working on the cow shed
of Lalman at the time of alleged incident.
At that time Lalman, his son Shyam
Bahadur, daughter Savita and labourer Sita
were also present. All the four accused
persons equipped with lathies came at the
cow shed (gausala) and started beating
Lalman who fell on the ground after
sustaining injuries. All the accused persons
3 All. Lalji & Ors. Vs. State of U.P.
1287
went
towards
east
direction
after
committing the incident.

This witness also faced gruelling
cross-examination made by the learned
counsel for appellants but nothing contrary
to the case of the prosecution could be
brought before us from his deposition.

21. All the prosecution witnesses
remained
intact
during
their
crossexamination. No such contradictions are
visible in their statements which would
make
their
testimony
unreliable
and
unnatural. Minor contradictions pointed out
in their deposition are of cosmetic nature
and cannot affect the credibility of their
testimony.

22. P.W.4 Dr. S.C. Srivastava stated
that on 27.10.1991, he was posted as Child
Specialist
in
the
District
Hospital,
Mirzapur. At about 4 o'clock he conducted
postmortem of the dead body of deceased
Lalman which was brought by Constables
Murtaza Ali and Chhangur Dubey from the
Police Station Chunar. He had prepared
postmortem report and in his opinion the
cause of death was coma as a result of
injury on the head of the deceased. He
prepared the postmortem report in his
handwriting and signature which he proved
as Ext. Ka-2. He also stated that injury nos.
1, 2 and 3 were on vital parts and due to
injury no. 2, the injured would have gone
into coma, thereafter, his death was
possible. He also opined that injury no. 1 to
7 could have occured with lathi.

This witness was also subjected to
cross-examination
on
behalf
of
the
appellants but nothing adverse was found.

22. There is not even an iota of
evidence on record which may even
remotely suggest that Pws. 1, 2 & 3 had
grudges against the appellants for any
cause to implicate them falsely.

23. Injuries on the person of deceased
Lalman were caused by lathi as stated by
P.Ws. 1, 2 & 3. Ext. Ka-2 is the postmortem report wherein multiple lacerated
and abrasion wounds were found on the
body of the deceased Lalman and P.W.4 Dr.
S.C. Srivastava has proved the injuries and
told that all the injuries were likely to be
caused with lathi. He opined that cause of
death was coma due to head injury.

24. In this way injuries found on the
body of deceased Lalman are proved to
have been caused with lathi at about 4 p.m
on 26.10.1991 and it corroborates the
manner of causing injuries resulting into
death as stated by P.Ws. 1, 2 & 3. Thus, the
eye witnesses account regarding cause of
death finds corroboration from the medical
evidence on record.

25. There is no delay in lodging the
F.I.R. Occurrence took place at 4 p.m. on
26.10.1991 and F.I.R. was lodged at 8. 30
p.m. on the same day, after four hour and
thirty minutes. It cannot be said to be
inordinate delay.

27. Learned counsel has also drawn
attention of this Court towards the absence
of motive to commit murder. He urged that
the prosecution has failed to prove any
motive on the part of the appellants to
commit the crime.

28. It is true that there is no mention
of motive in F.I.R. about the commission of
crime. Even PW-1, PW-2 and P.W. 3 have
also not disclosed anything that became the
root cause of committing murder by the
appellants except conversation started on
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
the part of the appellants and Lalman in
relation to construction of the wall
belonging to cow shed but it is settled law
that merely because the prosecution fails to
prove motive for commission of the crime,
it must not necessarily result in acquittal of
the accused. It is well settled that where
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 crime has not been
proved.

29. In State of Himachal Pradesh Vs.
Jeet Singh 1999 (38) ACC 550 SC, it was
held that no doubt it is a sound principle to
remember that every criminal act was done
with a motive but it's corollary is not that
no
offence
was
committed
if
the
prosecution failed to prove the precise
motive of the accused to commit it as it is
almost an impossibility for the prosecution
to unravel full dimension of the mental
deposition of an offender towards the
person whom he offended.

30. In Nathuni Yadav and others vs.
State of Bihar and others 1997 (34) ACC
576, it was held that motive for committing
a criminal act, is generally a difficult area
for prosecution as one cannot normally see
into the mind of another. Motive is the
emotion which impels a man to do a
particular act and such impelling cause
unnecessarily need not be proportionately
grave to grave crimes. It was further held
that many murders have been committed
without any known or prominent motive
and it is quite possible that the aforesaid
impelling
factor
would
remain
undiscoverable.

31. In our opinion, in the facts and
circumstances of the case, the absence of an
evidence on the point of motive cannot have
any such impact so as to discard the other
reliable evidence available on record which
certainly establishes the guilt of the accused.
In the case of Thaman Kumar vs. State of
Union Territory of Chandigarh 2003 (47)
ACC 7 the Hon'ble Apex Court has reiterated
the same view after taking into consideration
the aforementioned cases.

32. The next limb of argument of the
learned counsel for the appellants is that the
prosecution had examined highly interested
and related witnesses and they have not
produced any independent witness in support
of its case.

33. In the case of Brahm Swaroop and
another vs. State of U.P. (2011) 6 SCC 288
the Hon'ble Apex Court in Para No.21 has
observed as under

"merely because the witnesses were
related to the deceased persons, their
testimonies cannot be discarded. Their
relationship to one of the parties is not a
factor that affects the credibility of a witness,
more so, a relation would not conceal the real
culprit and make allegations against an
innocent person. A party has to lay down a
factual foundation and prove by leading
impeccable evidence in respect of its false
implication. However, in such cases the Court
has to adopt a careful approach and analyse
the evidence to find out whether it is cogent
and credible evidence."

34. The Court also referred cases of
Dalip and others vs. State of Punjab A.I.R.
(1953) SC 364; Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202.

35. In Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202, the Hon'ble Apex
Court observed in Para No.14
3 All. Lalji & Ors. Vs. State of U.P.
1289

"but
it
would,
we
think,
be
unreasonably to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. The
mechanical rejection of such evidence on
sole ground that it's partisan would
inveriably lead to failure of justice. No hard
and fast rule can be laid down as to how
much evidence should be appreciated.
Judicial approach has to be cautious in
dealing with such evidence; but the plea
that such evidence should be rejected
because it's partisan cannot be accepted as
correct.

36. It is common knowledge that
village (mohalla) life is faction ridden and
involvement of one or the other in the
incidents is not unusual. One has also to be
cautious about the fact that wholly
independent witnesses are seldom available
or are otherwise not inclined to comeforth,
lest they may invite trouble for themselves
for future. Therefore, relationship of eyewitnesses inter se, cannot be a ground to
discard their testimony. There is no reason
to suppose the false implication of the
appellants at the instance of the eyewitnesses. It would also be illogical to
think that witnesses would screen the real
culprits and substitute the appellants for
them.

37. This Court has also made such
observations in Para No.14 of Rameshwar
and others vs. State 2003 (46) ACC 581.

38. No doubt P.W. 1, the witness of
fact examined in instant case, is real son of
the deceased but the relationship itself is
not a ground to reject the testimony of this
witness, rather he would be last person to
leave the real culprit and falsely implicate
any other person. P.W. 2 is a resident of the
same village of the deceased as well as
appellants and he is not related to the
family of the deceased. Likewise, P.W. 3 is
a mason who is resident of another village
and was working at the instance of the
deceased. He had no interest in either of the
party, therefore, he can not be termed as an
interested witness. All of the witnesses are
natural witnesses. P.Ws. 1 & 3 were present
at the time of the incident at the site where
they were constructing the wall and P.W. 2
also arrived at the place where the incident
took place. They all have identified the
accused persons. P.Ws. 1 & 2 being
residents of the same village were known to
each another. P.W.3 was also resident of the
adjacent village located on 1 km. distance.
So there is no question of confusion in
identification. P.W.1 being relative, it can
not be said that he would falsely implicate
the appellants in the case, while leaving the
real culprits free. There is no suggestion of
enmity
between
the
appellants
and
witnesses and therefore, no reason to
implicate them falsely. In this way, these
witnesses are wholly reliable & credible.
Their testimony cannot be discarded only
on the ground that they are relatives of the
deceased. The arguments placed by learned
counsel for the appellants, in this regard,
cannot be accepted.

39. It has also been argued that nonexamination of the Investigating Officer
has caused prejudice to the defence as it did
not get opportunity to cross-examine him.
This defect vitiates the whole trial.

40. In the case of Behari Prasad vs.
State of Bihar 1996 SCC (2) 317 it was
held by the Supreme Court that-

"For non-examination of Investigating
Officer, the prosecution case should not
fail. We may also indicate here that it will
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
not be correct to contend that if an
Investigating Office is not examined in a
case, such a case should fail on the ground
that the accused were deprived of the
opportunity to effectively cross-examine the
witnesses for the prosecution and to bring
out contradictions in their statements
before the police. A case of prejudice likely
to be suffered by an accused must depend
on the facts of the case and no universal
straight jacket formula should be laid down
that
non-examination
of
Investigating
Officer per se vitiates a criminal trial."

41. In the facts of the present case, it
transpires that the involvement of the
accused in the incident has been clearly
established with the evidence of the eye
witnesses P.Ws. 1 to 3. Such evidences are
in conformity with the case as made out in
F.I.R. and also with the post mortem report.

42. It is also relevant to note that the
prosecution witnesses i.e. P.W.1 & P.W.2.
have not been confronted with their
previous statement as recorded by the
Investigating Officer under section 161
Cr.P.C. except P.W.3 Chibilli on some
minor issues which are not material to the
case.
Even
regarding
the
place
of
occurrence there is no dispute. In this way,
it cannot be said that any prejudice had
been caused to the defence on account of
non-examination of Investigating Officer.

43. From the statements as deposed
by the P.Ws. 1, 2 and particularly by P.W.
3, it came out that there was specific role of
assault with lathi by appellant Lalji. First
he stroke lathi on the deceased when he
was making gara (mud mortar) and again
when the deceased ran to save his life ,
Lalji chased him and blowed four strokes
with lathi on him which hit on his hand and
shoulder. Post mortem report Ext. Ka-2
also supports the aforesaid contention of
P.W. 3 Chivilli. In this way, it is established
that it was appellant Lalji at whose instance
the dispute started and he himself made
assault on the deceased with lathi as a
result of which the deceased Lalman died.

There is no specific role assigned to
other appellants for assault except general
allegation that all of the appellants
assaulted the deceased but post mortem
report Ext. Ka-2 does not support the
allegation of assault by more than one
person. Thus from the evidence on record it
is clearly established beyond reasonable
doubt that appellant Lalji caused injury to
the deceased as a result of which, he died.

So
for
as
other
appellants
are
concerned, their participation in causing
injuries to the deceased cannot be said to be
proved beyond reasonable doubt only on
the basis of their presence on the spot with
Lalji unless there is an act of premeditation
of all the accused persons to commit
murder of the deceased which is lacking
from the very outset and it was only to the
extent of preventing the deceased from
further construction on the land in dispute.

44. In our opinion, the evidence on
record clearly establishes the case of the
prosecution against the appellant Lalji
beyond any shadow of doubt but not
against other accused appellants Shyamji
and Pyare. They are entitled for benefit of
doubt.

45. The next argument of the learned
counsel for the appellants is that the
injuries caused to the deceased were not
intentional but the incident took place at the
spur of the moment during the course of
oral altercation in relation to the disputed
land when the deceased was heightening
the wall and both the parties were claiming
3 All. Lalji & Ors. Vs. State of U.P.
1291
the land to be their own on the basis of the
lease granted in their favour. The appellants
went on the spot to prevent the deceased
from making construction but he did not
stop the work, upon which both the parties
started quarreling and appellants assaulted
the deceased with lathi causing injuries on
his person, which has resulted in his death.
The nature of injuries was simple and
except one, all other injuries were not fatal
to the life of the deceased. This shows that
there was no intention of the appellants to
committ murder of the deceased but only to
cause simple injuries. Even knowledge can
also not be inferred that they knew about
the effect of injuries likely to cause death.
Thus, there being no premeditation, the
offence cannot fall under Section 302 IPC
but utmost it may travel to the extent of
Section 304 part II IPC.

46. In the case of Pulicherla
Nagaraju @ Nagaraja Vs. State of A.P.
(2006) 11 SCC 444, the Supreme Court
while deciding whether a case falls under
Section 302 or 304 part I or 304 part II IPC,
held thus:

"Para 29: Therefore, the court should
proceed to decide the pivotal question of
intention, with care and caution, as that
will decide whether the case falls under
Section 302 or 304 Part I or 304 Part II.
Many
petty
or
insignificant
matters
plucking of a fruit, straying of a cattle,
quarrel of children, utterance of a rude
word or even an objectionable glance, may
lead to altercations and group clashes
culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may
be totally absent in such cases. There may
be no intention. There may be no premeditation. In fact, there may not even be
criminality. At the other end of the
spectrum, there may be cases of murder
where the accused attempts to avoid the
penalty for murder by attempting to put
forth a case that there was no intention to
cause death.