# Nankoo and Ors. (In Jail) v. State

- **Citation:** (2019) 1 ILRA 563
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-02-27
- **Bench:** Pankaj Naqvi, Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nankoo-and-ors-in-jail-v-state-44524
- **Pages:** 9

## Headnote

564 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Section 302, 147, 148 and 149 I.P.C.-
Relevance of motive - Motive is not a
sine qua non for commission of crime.
Moreover, takes a back seat in a case of
direct ocular account. Failure to prove
motive or absence of motive would not
be fatal to the prosecution where other
reliable evidence available on record
unerringly
establishes
the
guilt
of
accused. (Para 9)

B. Relevance of difference in age, cast
etc in promiscuous relationship. There is
age difference between the wife of
appellant and the deceased. Promiscuity
does not see any barriers of age, caste,
relationship or religion. (Para 10)

C. Interested witness - It is well settled
that a related witness may not be
labelled
as
interested
witness.
Interested witnesses are those who
want to derive some benefit from the
result of litigation or implicating the
accused. They are natural witnesses and
their testimony cannot be rejected only
on the ground that they are related to
deceased.(Para 11)

D. Evidence. The weapon of assault and
empty
cartridges
-
not
recovered.
Serological report not obtained by the
prosecution. No doubt there are lapses in
the investigation but it cannot be a
ground to reject the entire prosecution
case.(Para 19)

Appeal dismissed.

Chronological list of Cases Cited: -
1.State of U.P vs. Krishnapal (2008) 16 SCC 73

2.Solanki Chimanbhai Ukabhai v. State of
Gujarat, AIR 1983 SC 484, (E-2)

## Text

1 All. Nankoo and Ors. Vs. State
563
reflect independent existence of the
conditions
mentioned
under
Section
28(1)(b)(i) and (iv) of the Act. Therefore,
the assessment proceedings under Section
28 of the Act were validly initiated.

40. The further submission advanced
by
learned
Senior
Counsel,
since
"stipulated time" mentioned in clause (c)
of sub-rule (13) of Rule 45 of the Rules
was not available of 19.3.2017 therefore
no notice could have been issued under
Rule
45(13)(a)
of
the
Rules
and
consequently the deemed assessment
arising under section 27 of the Act could
never be made "subject to" section 28 of
the Act, is found to be untenable in view
of the reasoning given above. Once the
power to make an assessment upon
examination of the records is found to be
exercisable independent of section 27 of
the Act, the argument advanced by
learned senior counsel does not survive.

41. Thus, in the first place, there
never arose an order under Section 27 of
the Act. Only a legal fiction of deemed
assessment arose on 31.3.2017, for the
limited purpose of creating a demand of
admitted tax and entitlement of Input Tax
Credit (ITC). No third purpose or
inference arose. Then provisions of
Section 28 of the Act being independent
of Section 27 of the Act, upon the
satisfaction of the assessing officer being
found existing in terms of Section
28(1)(b) of the Act, that power could be
exercised irrespective of the fact whether
any proceedings had been conducted
under Section 27 of the Act and
irrespective
of
the
fate
of
those
proceedings. The initiation of proceedings
under section 28 of the Act, vide notice
dated 27.2.2018 did not suffer from any
infirmity.

42. In view of the above, question of
law no. 1 is answered thus: though a
deemed assessment for A.Y. 2014-15 had
come into existence on 31.03.2017, yet, it
did not preclude the assessing officer to
make an assessment upon examination of
record under Section 28 of the Act, which
order is found to have been passed in
accordance with law, upon a valid notice
dated 27.02.2018.

43. Insofar as question of law no.2 is
concerned, though it is a tough case inasmuch
as the assessment order was passed ex parte
and none of the appeal authorities have
considered the merits of assessment order, yet,
this Court in exercise of its revision jurisdiction
is constrained to answer the question in the
affirmative i.e. against the assessee and in
favour of the revenue in view of the fact that
the assessee never raised such challenge on
merits, before the appellate authorities.

44.

Accordingly,
the
present
revision is dismissed. No order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2019

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

CRIMINAL APPEAL No. 2312 OF 1987

Nankoo and Ors. ...Appellants (In Jail)
Versus
State ...Respondent

Counsel for the Appellants:
Sri P.N. Misra, Sri Raghvansh Misra, Sri
Rahul Misra, Sri Saurabh Yadav

Counsel for the Respondent:
A.G.A.
564 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Section 302, 147, 148 and 149 I.P.C.-
Relevance of motive - Motive is not a
sine qua non for commission of crime.
Moreover, takes a back seat in a case of
direct ocular account. Failure to prove
motive or absence of motive would not
be fatal to the prosecution where other
reliable evidence available on record
unerringly
establishes
the
guilt
of
accused. (Para 9)

B. Relevance of difference in age, cast
etc in promiscuous relationship. There is
age difference between the wife of
appellant and the deceased. Promiscuity
does not see any barriers of age, caste,
relationship or religion. (Para 10)

C. Interested witness - It is well settled
that a related witness may not be
labelled
as
interested
witness.
Interested witnesses are those who
want to derive some benefit from the
result of litigation or implicating the
accused. They are natural witnesses and
their testimony cannot be rejected only
on the ground that they are related to
deceased.(Para 11)

D. Evidence. The weapon of assault and
empty
cartridges
-
not
recovered.
Serological report not obtained by the
prosecution. No doubt there are lapses in
the investigation but it cannot be a
ground to reject the entire prosecution
case.(Para 19)

Appeal dismissed.

Chronological list of Cases Cited: -
1.State of U.P vs. Krishnapal (2008) 16 SCC 73

2.Solanki Chimanbhai Ukabhai v. State of
Gujarat, AIR 1983 SC 484, (E-2)

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

This criminal appeal is preferred
against the judgment and order dated
03.09.1987, passed by the VI Additional
Sessions Judge, Bareilly in S.T. No. 559
of 1985 (State Vs. Nankoo & Others),
convicting
the
appellants
Nankoo,
Mukhtar, Rajendra and Ram Niwas under
Section 302 149 I.P.C, to life as also
under Section 148 I.P.C. to two years
rigorous imprisonment. Appellant, Ram
Niwas, is further convicted/sentenced to
one year R.I under Section 147 I.P.C. All
the sentences to run concurrently.

1. The case of prosecution in brief is
as under:-

A) P.W-1, the informant alleged
that his son Suraj Pal (deceased) had
developed illicit relationship with the wife
of accused-appellant Nankoo who also
used to stay together, relatives of Nankoo
had taken a serious offence to this
infidelity. On 20.8.1985 at around 6.30
P.M, Suraj Pal had gone to ease himself
towards north of the village. Accused
Nankoo and Mukhtar armed with kanta
(sharp weapon) his cousin Ram Nivas
with lathi, Jawahar and Rajendra with
tamancha
(country
made
pistol),
Rajeshwar with bhala (spear) gheraoed
Suraj Pal on the exhortation of Nankoo
that Suraj Pal be not spared, Rajendra
fired two shots at Suraj Pal/ deceased who
fell down to be then assaulted with lathi
and kanta blows. On cries for help P.W-1,
nephew Raj Murari, Nathoo (P.W-2) and
others reached the scene to witness the
occurrence. With the arrival of witnesses
and on their shouting accused fled
towards west of the village, witnesses also
attempted to chase but accused managed
good their escape. The body of the
deceased lay in the fields of Naushey.

B. On above allegations, an
F.I.R. (Ex. Ka-1) as Case Crime No. 133
of
1985
initially
registered
against
accused Nankoo, Ram Niwas, Rajeshwar,
1 All. Nankoo and Ors. Vs. State
565
Mukhtar and Rajendra under Sections
147, 148, 149, 302 I.P.C. on 21.08.1985
at 3:10 a.m. at Police Station Fatehganj
(East), District Bareilly at a distance of 20
kilometers to the west.

C.
PW-4,
A.K.
Gaur
the
Investigating Officer reached the spot around
5.30 A.M and commenced investigation. On
his direction A.S.I. Teja Singh prepared site
plan (Ex. Ka-12), Inquest Report (Ex. Ka-5)
and after completion of paper work dead
body of the deceased was sent to district
hospital for autopsy at 7.30 A.M in presence
of 2 constables.

D. PW-3/Dr. P.K. Shrotriya,
conducted the autopsy of the deceased
and prepared the autopsy report (Ex. Ka2) on 21.08.1985 at 4:00 P.M The autopsy
indicated following injuries on the body
of the deceased:-

i. Lacerated wound 5 cm X 1
cm X skull deep on the centre of head 9
cm above right eye brow.

ii. Lacerated wound 3 cm X 5
cm X skull deep on right side head 10
cm above right ear.

iii. Incised wound 3.5 cm X 5
cm X skull deep on right side head 5 cm
above right ear.

iv. Incised wound 5 cm X 1
cm X skull deep on back of scull 10 cm
behind and above left ear.

v. Incised wound 4 cm X 1 cm
X skull deep on back of head 9 cm
above left ear.

vi. Incised wound 4 cm X 1
cm X skull deep on back of head 9 cm
above left ear.

vii. Lacerated wound 2.5 cm
X 1 cm on the back of skull 1 cm below
injury no. 6.

viii. Lacerated wound 2 cm X
5 cm X muscle deep 1 cm. Behind and
below injury no. 7.

ix. Lacerated wound 2 cm X
1/2 cm X muscle deep 1 cm below
injury no. 8.

x. Incised wound 2.54 cm X 1
cm X skull deep 1 cm below injury no. 9.

xi. Incised wound 7 cm X 1.5
cm X muscle deep on the right side
abdomen 4 cm above right inguinal
region transversely placed.

xii. Abrasion 1 cm. X 5 cm on
left side chest 4 cm below left nipple.

xiii. Abrasion contusion 5 cm
X 2 cm on back of left arm in middle.

xiv. Incised wound 1 cm X 5
cm X skin deep on iliac crest.

xv. Incised wound 2 cm X 1
cm X cavity deep on right side back of
chest 14 cm below right lower angle of
scapula.

xvi. Incised wound 2 cm X 1
cm X muscle deep in central line of
bank at the lable of thoracic 8th
vertebrae.

Xvii. Incised wound 1 cm X 1
cm X on left side back of chest 3 cm
lateral of central line at the lable of
thoracic 8th vertebrae.

Xviii. Incised wound 2 cm X 1
cm X muscle deep in central line of
back at the lable of 3rd lumber
vertebrae.

xix. Gun shot wound 3.5 cm X
2 cm on right lateral aspect of abdomen
6
cm.
Above
right
iliac
crest
surrounded
by
blackening
and
tattooing in an area of 14 cm.

xx. Abrasion 4 cm X 3 cm on
middle aspect of left elbow.

PW-3 opined that death was due
to shock and haemorrhage as a result of ante
mortem injury which had occurred a day
ago.

E. P.W-4, the I.O, recorded the
statement of eye-witnesses and that of
566 INDIAN LAW REPORTS ALLAHABAD SERIES
formal
witnesses,
carried
out
other
investigational
formalities.
After
completion of investigation charge-sheet
(Ex.
Ka-13)
was
submitted
against
abovementioned
appellants
including
accused, Rajeshwar, case committed to
Sessions,
charges
framed
under
aforementioned
sections
against
the
appellants. All the appellants denied the
charges and claimed to be tried.

F. The prosecution examined
PW-1, Ram Das and PW-2, Nathoo as eye
witnesses, rest as formal witnesses.

G.
The
accused
in
their
statements under Section 313 Cr.P.C,
denied the prosecution version and stated
that they have been falsely implicated due
to enmity and completely denied their
participation in the occurrence. No
defence evidence was led.

2.

The
trial
court
vide
judgment/order dated 03.09.1987 while
convicting the appellants as above,
acquitted accused Rajeshwar and as per
record no appeal/revision against the
acquittal. During pendency of the appeal,
appellant no.3/ Mukhtar, died, appeal qua
him stood abated on 09.07.2018.

3. We have heard Shri Saurabh
Yadav for appellant no.1, Sri Rahul
Mishra assisted by Sri Raghuvansh
Mishra for appellant nos. 2 and 4 and Shri
V.S.Rajbhar, the learned A.G.A, for the
State and perused the record.

4. Learned counsel for the appellants
raised following contentions:-

i. F.I.R. is delayed and lodged
with
due
deliberation
and
after
consultation.

ii. Motive is absent.

iii.

Manipulation
and
interpolation in written report (Ex. Ka-1)
and Ex. Ka-6 (R.I. Letter). In Ex. (Ka-1),
one date mentioned is 20.08.1983 and
second is 21.08.1983 while in R.I, letter
(Ex. Ka-6) overwriting is apparent in the
time of occurrence.

iv. Written report (Ex. Ka-1) as
per statement of PW-1 was procured from
the place of occurrence meaning thereby
after preparation of Ex. (Ka-1) this
written report was kept by PW-1 in his
pocket, yet it did not have any folds.

v. PW-1 & PW-2 are interested
witnesses.

vi. PW-1 father of deceased is
an interested witness and PW-2 an alleged
eye-witness was an accomplice with the
deceased in several criminal cases.

vii. Presence of PW-1 and 2 at the
spot is highly doubtful as in site plan (Ex. Ka12), fields of PW-1 and 2 are not shown by
the Investigating Officer as well as their fields
are also not in the near vicinity.

viii. Prosecution failed to fix
the place of occurrence i.e, fields of
Naushey which was not located enroute to
the fields of PW-1 & 2.

ix. The manner of assault as
described by PW-1/2, is contradictory to
the medical evidence. These witnesses
failed to explain the injuries on the front
portion of the deceased.

x. Eye-witnesses demonstrated
unnatural conduct as despite being closely
related to the deceased, no effort was
made by them to check whether the
deceased was alive or not.

xi. Statement of PW-2 was
recorded by P.W-4/ the I.O, after three
days of the occurrence which dents the
prosecution case.

5. The learned A.G.A. opposed the
contentions by submitting that presence of
1 All. Nankoo and Ors. Vs. State
567
PW-1 & PW-2 is natural, there are no
material contradictions or omissions in
the entire testimony. He further submitted
that witnesses cannot be disbelieved only
on
the
basis
that
they
are
related/interested, PW-1 and 2 are wholly
reliable. He further submitted that there
was motive on the part of accused persons
to commit the murder of Suraj Pal, as the
deceased was involved with the wife of
the accused Nankoo while other accused
are his close relatives.

6. The occurrence took place on
20.8.1985 at about 6.30 P.M, whereas the
FIR came to be registered on 21.8.1985 at
3.10 AM. The distance between the scene
and the P.S, concerned is 20 Kms. P.W-1
was stating that after the occurrence he
was in a state of shock and trauma on
account of the death of his son. After
regaining composure he got a report
scribed at the scene itself by one Kunwar
Pal. He along with Kunwar Pal left for the
police station in a tractor at around 11-12
midnight. We on above evidence are of
the view that the prosecution has
satisfactorily explained the alleged delay
of about 9 hours.

7. The occurrence took place in open
agricultural fields, at the fields of one
Naushey whose dimensions according to
P.W-1 one of the two eye-witnesses was
40-50 x 39-40 steps. P.W-1 claims to
have witnessed the occurrence, while on
way to his fields towards the west of his
house to guard his fields from stray
animals as it had standing crops of bajra
(1-1.5 feet). P.W-1 believed that the
deceased (son) had gone to ease himself
towards a pond half a Km. away. The
defence argued that once it has come in
evidence that there was a pond behind the
house of P.W-1, it is highly improbable
that the deceased would traverse a longer
distance to ease himself. The submission
has no impact as it was only an
assumption and not a certainty on the part
of P.W-1 that the deceased had gone to
ease
himself.
This
assumes
further
credence when P.W-1 states that the
deceased had no fix place/area to ease
himself. It is not uncommon in a rural
scenario for a rural folk to wander here
and there in the evening. Although the
prosecution did not disclose either in the
site plan or in the evidence the point from
where P.W-1 witnessed the assault and
that of the place of assault but what is
clear from the evidence of P.W-1 is the
mode and manner of the assault and the
identity
of
assailants
including
the
weapon possessed by them was clearly
visible. P.W-1 is challenged on the
ground that the purpose for which he left
his house i.e, to guard the fields was being
alleged for the first time in the court as
both the FIR/161 were silent, could not in
itself be the reason to doubt his presence
as the house of P.W-1 and the place of
occurrence are all situate at a distance of
one furlong. Learned counsel for the
appellants pointed out certain features of
the case to doubt the F.I.R and the
credibility of P.W-1 such as the written
report was in 4 folds, prosecution was not
explaining that if P.W-1 had gone to P.S
to lodge a report along with Kunwar Pal
in a tractor at around 11-12 midnight but
P.W-1 returned in a police jeep along with
P.W-4 then who drove the tractor back
home? Coming to the first issue that the
written report not being in 4 folds which
otherwise the prosecution is claiming it
was scribed at the scene by Kunwar Pal at
the dictates of P.W-1 who then kept it in
his pocket in 4 folds, the court finds that
the possibility of report being scribed at
the police station cannot be ruled out but
568 INDIAN LAW REPORTS ALLAHABAD SERIES
this could not be a ground in itself to
doubt the FIR as P.W-1 proved the
contents of the report. In so far the issue
as to who brought the tractor back from
the P.S, it's a post occurrence lapse which
would have no effect on the prosecution
case.

8. P.W-2 is the neighbour of P.W-1.
His field is at a distance of 15 steps from
that of the fields of Naushey where
occurrence took place. He claims to have
witnessed the occurrence from the fields
of Naushe from a distance of 20 steps. He
further established the mode and manner
of the occurrence, the identify of
assailants as also the weapons used by
them. Merely because his statement was
recorded by the I.O after 3 days of the
occurrence could not be a ground to doubt
his presence at the scene as the F.I.R itself
enlist him as one of the witness and the
said lapse was on the part of I.O which
cannot enure to the benefit of appellants.

9. Learned counsel for the appellants
argued that prosecution utterly failed to
prove the motive. Motive is not a sine qua
non for commission of crime. Moreover,
takes a back seat in a case of direct ocular
account.
If
eye-witness
account
is
trustworthy motive may not be of much
relevance. Failure to prove motive or
absence of motive would not be fatal to
the prosecution where other reliable
evidence available on record unerringly
establishes the guilt of accused.

10. The prosecution alleged that the
deceased, Suraj Pal, was in illicit
relationship with the wife of appellant,
Nankoo, due to vengeance Nankoo along
with his cohorts committed the murder of
Suraj
Pal.
Although,
there
is
age
difference between the wife of appellant
and the deceased, but promiscuity does
not see any barriers of age, caste,
relationship or religion. PW-1 admits that
his deceased son was in a relationship
with the wife of accused Nankoo, but on
his castigation relationship had ended
around six months prior to the incident.

11. One of the argument of learned
counsel for the appellants is that only
related and interested witnesses were
produced by the prosecution because
there are only two eye-witnesses. PW-1 is
the father of the deceased and PW-2 a
neighbour and also a co-accused with
deceased in a previous criminal case. It is
well settled that a related witness may not
be labeled as interested witness. Interested
witnesses are those who want to derive
some benefit from the result of litigation
or implicating the accused. Once it is
established that witnesses were present at
the scene, to witness the occurrence, they
cannot be discarded merely on the ground
of being closely related to the victim. The
Apex Court in State of U.P vs.
Krishnapal (2008) 16 SCC 73 held as
under:

18. The plea of defence that it
would not be safe to accept the evidence
of the eye witnesses who are the close
relatives of the deceased, has not been
accepted by this Court. There is no
such universal rule as to warrant
rejection of the evidence of a witness
merely because he/she was related to or
interested in the parties to either side.
In such cases, if the presence of such a
witness at the time of occurrence is
proved or considered to be natural and
the evidence tendered by such witness
is found in the light of the surrounding
circumstances and probabilities of the
case to be true, it can provide a good
1 All. Nankoo and Ors. Vs. State
569
and sound basis for conviction of the
accused. Where it is shown that there is
enmity and the witnesses are near
relatives too, the Court has a duty to
scrutinize their evidence with great
care, caution and circumspection and
be very careful too in weighing such
evidence. The testimony of related
witnesses, if after deep scrutiny, found
to be credible cannot be discarded.

19. It is now well settled that
the evidence of witness cannot be
discarded merely on the ground that he
is a related witness, if otherwise the
same is found credible. The witness
could be a relative but that does not
mean his statement should be rejected.
In such a case, it is the duty of the
Court to be more careful in the matter
of scrutiny of evidence of the interested
witness, and if, on such scrutiny it is
found that the evidence on record of
such
interested
witness
is
worth
credence, the same would not be
discarded merely on the ground that
the witness is an interested witness.
Caution is to be applied by the court
while scrutinizing the evidence of the
interested witness.

20. It is well settled that it is
the quality of the evidence and not the
quantity of the evidence which is
required to be judged by the court to
place credence on the statement. The
ground that the witness being a close
relative and consequently being a
partisan witness, should not be relied
upon, has no substance. Relationship is
not a factor to affect credibility of a
witness. It is more often than not that a
relation would not conceal actual
culprit and make allegations against an
innocent person. Foundation has to be
laid if plea of false implication is made.
In such cases, the Court has to adopt a
careful approach and analyse the
evidence to find out whether it is cogent
and credible.

Relationship is not sufficient to
discredit a witness unless there is motive
to give false evidence to spare the real
culprit and falsely implicate an innocent
person. Thus in view of above legal
position, we after carefully scrutinizing
the evidence of P.W-1 and 2, are of the
considered opinion that they are natural
witnesses and their testimony cannot be
rejected only on the ground that they are
related to deceased.

12. Although fields of PW-1 and
PW-2 are not depicted in the site plan, but
after perusing this statement it is clear that
fields of PW-1 & 2 are situate in the
vicinity of the fields of Naushey where
the incident took place. Thus the
explanation of P.W, 1 and 2 that around
evening they were on their way to guard
their fields of a standing crop of bajara
cannot be rejected.

13. One of the argument of
appellants-defence is that the manner of
assault described by eye-witnesses is
contradictory to the medical evidence. As
per PW-1 and 2 after being shot twice by
Rajendra, deceased fell down on the
slush, as it had rained, his face touching
the ground, was then assaulted by all
other
accused
by
their
respective
weapons. Thus in such a scenario, it was
not possible to sustain an injury on the
front side of the body of the deceased.
Injury nos. 11, 12 & 14 are on the front
part of the body of the deceased. PW-3,
the doctor in cross-examination admitted
that apart from abrasion, injury no. 12 is
present on the left side of the nipple of the
deceased.
In
Solanki
Chimanbhai
Ukabhai v. State of Gujarat, AIR 1983
570 INDIAN LAW REPORTS ALLAHABAD SERIES
SC 484, the Hon'ble Supreme Court
observed as under:

"Ordinarily,
the
value
of
medical evidence is only corroborative.
It proves that the injuries could have
been caused in the manner alleged and
nothing more. The use which the
defence can make of the medical
evidence is to prove that the injuries
could not possibly have been caused in
the
manner
alleged
and
thereby
discredit the eye-witnesses. Unless,
however the medical evidence in its
turn goes so far that it completely rules
out all possibilities whatsoever of
injuries taking place in the manner
alleged by eyewitnesses, the testimony
of the eye-witnesses cannot be thrown
out
on
the
ground
of
alleged
inconsistency
between
it
and
the
medical evidence."

14. Thus in view of above dicta in
the event of conflict between the oral and
the medical testimony former would take
the precedence. In the present case once
4-5 assailants surrounded the deceased,
started
assaulting
him
with
their
respective weapons it is difficult to
ascertain as to who assaulted where. Out
of 21 injuries, only 4 are on the frontal
side, that alone in view of above could not
be a ground to discard oral account.

15. Learned counsel for the
appellants argued that there is doubt as to
the time of occurrence as there is an
interpolation in time, from 7:30 P.M. to
6.30 P.M. in the challan lash and the
doctor who conducted the autopsy was
not ruling out the time of death between
8.00 P.M. to 12.00 mid night so as to
generate a probability that the deceased,
who had criminal antecedents with
several enemies was done to death in
darkness by unknown assailants. On
perusal of challan lash, it is clear that
although there is overwriting as to the
time of death, admitted by P.W-4, but as
the difference is of only an hour it is
negligible.

16. PW-1 is the father of deceased
yet, no effort was made by him to
ascertain whether the deceased was alive
or not. The above conduct of P.W-1
cannot be said to be unnatural as he was
stating that after the assault he along with
others chased the accused unsuccessfully,
then came back at the scene to find that
his son lay dead. Although this witness
was cross-examined intensely but he was
not cross-examined as to the time when
he ascertained the death of his son.

17. Suraj Pal, is alleged to have been
murdered in the fields of Naushey.
However, location of said field is not
fixed by prosecution. Learned counsel for
appellants argued that PW-1 stated that
the fields of Naushey is in Kadarganj
while PW-2 stated that it was in village
Padera. As per site plan (Ex. Ka-12),
village Padera is a km away from the
place of occurrence. But this submission
is liable to be rejected as both these
villages are adjoining and no evidence
was produced by defence to demonstrate
that field of Naushey is also in village
Padera. P.W-1 and the I.O clearly stated
that field of Naushey i.e, place of
occurrence is in village Kadarganj, thus
prosecution has established the place of
occurrence.

18. Learned counsel for the
appellant-Rajendra argued that address of
appellant-Rajendra is not mentioned in
the F.I.R. as he was not a resident of the
1 All. Mahanta Bhar Vs. State
571
same village rather of the village
Jhanjhana, Bareilly and was falsely
implicated. Submission is not acceptable
as the identity of Rajendra was already
known to the eye-witnesses. Moreover he
was also identified in the court.

19. The argument that as the weapon
of assault and empty cartridges have not
been recovered and serological report not
obtained by the prosecution, suffice to
mention that recoveries and the serologist
report would have further strengthen the
prosecution case. No doubt there are lapses
in the investigation but it cannot be a
ground to reject the entire prosecution
case.

20. The testimonies of ocular
witnesses are reliable and trustworthy
corroborated by medical evidence. We do
not find any material contradictions or
discrepancies in their evidence which raises
any doubt. The Learned trial court rightly
convicted the appellants. The appeal is bereft
of merit and is liable to be dismissed.

21. The appeal is dismissed. Appellants
are on bail. Their bail bonds are cancelled,
they be taken into custody forthwith to serve
out the remaining sentence.

22. The office is directed to transmit
back lower court records with a copy of
judgment and order of this Court for
immediate
compliance
under
the
intimation to this court within 2 months.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2019

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 89 OF 1994

Mahanta Bhar ...Appellant (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri Shiv Shankar Pandey, Sri Kamal
Krishna, Sri Pradeep Kumar Rai, Sri Vinay
Saran.

Counsel for the Opposite Party:
A.G.A.
A.
Indian
Penal
Code
sections
302,299,300,304
-
recognizes
three
degrees of culpable homicide namely, (1)
culpable homicide of the first degree, a
gravest form of culpable homicide which
is defined under section 300 as murder,
(2) culpable homicide of the second
degree, a lower or lessor form of
homicide not amounting to murder as
defined in section 299, punishable under
the first part of section 304 and (3)
culpable homicide of the third degree,a
lowest
type
of
culpable
homicide,
punishable under the second part of
section 304. (Para35)
B. Distinction between section 299 and
section 300 - Distinction has been based
on the the degree of probability of the
consequence of the criminal act. Where
death is the most probable result and is
caused with intention to cause death,
the offence is murder, and where it is
probable result, it is culpable homicide.

Murder may become culpable homicide not
amounting to murder if circumstances exist to
bring the murder within any of the five
exceptions to section 300 IPC. Academically,
the distinction appears to be easy, but, when
comes to factual matrix and is required to be
determined
on
the
basis
of
objective
assessment of fact and evidence, the task is
hard and a lot depends upon the sixth sense