# Om Prakash v. State

- **Citation:** (2022) 8 ILRA 838
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-23
- **Case number:** Jail Appeal No. 5446 of 2007
- **Bench:** Ashwani Kumar Mishra, Rajendra Kumar -Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-48946
- **Pages:** 11

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 & 352 - The Code of
Criminal Procedure, 1973 - Sections 161 &
174 - Section 433/433A - Inquest report -
claim for remission or commutation - if
the prosecution case is fully established
by reliable ocular evidence cou
(Para
-
40,44 )

(B) Evidence Law- eyewitness - Once the
eyewitness
account
tallies
with
the
injuries found on the body of the deceased
- such statement would be entitled to
weight
-
unless
it
is
shown
that
eyewitness account is unreliable or the
testimony
of
eyewitness
lacks
credibility.(Para - 30)

Deceased done to death by his brother
(Appellant) - Inflicting repeated blows on neck
and face of deceased - by a Tabal (a sharp
edged weapon) - direct evidence - two
eyewitnesses - ocular version of prosecution
story -supported by medical evidence -
postmortem report - conviction - hence appeal .
(Para - 22,23,29)

HELD:-No error in the impugned judgment .
Appellant convicted and sentenced for an
offence under sections 302 and 352 IPC.(Para -
41)

Jail Appeal Dismissed. (E-7)

List of Cases cited:-
8 All. Om Prakash Vs. State
839
Lokesh Shivakumar Vs St. of Karn., (2012) 3
SCC 196

## Text

838 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Applying the principle of law as
noted above, on the present case, it is quite
clear that the test as laid down by the Apex
Court for the cases of circumstantial
evidence,
stands
fulfilled.
The
circumstances from which the conclusion
of the guilt is to be drawn is fully
established and it is consistent only with
the hypothesis of the guilt of the accused.
The circumstances are of a conclusive
nature and point towards the guilt of the
accused. It exclude every other possible
hypothesis. The chain of evidence is so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and it shows
that in all human probability the act must
have been done by the accused.

Conclusion

27. From the analysis of the evidence
on record, it is clear that the prosecution
case stands proved beyond reasonable
doubt. The learned trial court has properly
appreciated the evidence and conclusion
drawn by the trial court is just and proper.
There is no illegality or perversity in the
findings of the learned trial court. There is
no ground to interfere in the findings and
conclusion recorded by the learned trial
court. The sentence imposed is also
appropriate and this criminal appeal is
liable to be dismissed.

Accordingly, the appeal is hereby
dismissed.
----------
(2022) 8 ILRA 838
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJENDRA KUMAR -IV, J.
Jail Appeal No. 5446 of 2007

Om Prakash ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri M.P.S. Chauhan, Sri Noor
Mohammad, Sri Rahul Gaur, Sri Rajesh
Kumar Dubey, Sri Sandeep Singh, Sri Sunil
Kumar Upadhyay, Sri V.S. Choudhary, Ms.
Vijata Singh (Amicus Curiae)

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 & 352 - The Code of
Criminal Procedure, 1973 - Sections 161 &
174 - Section 433/433A - Inquest report -
claim for remission or commutation - if
the prosecution case is fully established
by reliable ocular evidence cou
(Para
-
40,44 )

(B) Evidence Law- eyewitness - Once the
eyewitness
account
tallies
with
the
injuries found on the body of the deceased
- such statement would be entitled to
weight
-
unless
it
is
shown
that
eyewitness account is unreliable or the
testimony
of
eyewitness
lacks
credibility.(Para - 30)

Deceased done to death by his brother
(Appellant) - Inflicting repeated blows on neck
and face of deceased - by a Tabal (a sharp
edged weapon) - direct evidence - two
eyewitnesses - ocular version of prosecution
story -supported by medical evidence -
postmortem report - conviction - hence appeal .
(Para - 22,23,29)

HELD:-No error in the impugned judgment .
Appellant convicted and sentenced for an
offence under sections 302 and 352 IPC.(Para -
41)

Jail Appeal Dismissed. (E-7)

List of Cases cited:-
8 All. Om Prakash Vs. State
839
Lokesh Shivakumar Vs St. of Karn., (2012) 3
SCC 196

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Heard Ms. Vijata Singh, learned
Amicus Curiae for the appellant and Mrs.
Archana Singh, learned AGA for the State.

2. This jail appeal is directed against
judgment and order dated 16.10.2006,
passed by the Additional District &
Sessions Judge (Special), Baghpat in
Sessions Trial No. 188 of 2005, State vs.
Om Prakash whereby the appellant has
been convicted under sections 302 and 352
IPC, in Case Crime No.324 of 2004, Police
Station Ramala, District Baghpat and
consequently
sentenced
to
life
imprisonment
along
with
fine
of
Rs.20,000/- for the offence under Section
302 IPC and three months imprisonment
for the offence under Section 352 IPC. In
the event of failure to deposit the fine
appellant was to undergo six months
additional
imprisonment.
Both
the
sentences are to run concurrently.

3. Briefly stated, the prosecution case
is that a written report dated 14.9.2004 was
received from applicant Kallu Ram (PW-1)
(Ext. A-1), scribed by Praveen Kumar S/o
Kallu Ram (PW-6), stating that the elder
son of informant i.e. accused appellant Om
Prakash is a person of criminal antecedents
and has been sent to jail multiple times.
Few days prior to the incident accused Om
Prakash attempted to assault the informant
and his wife, which was not liked by the
other two sons of the informant, namely
Arvind and Praveen. Om Prakash on
account of aforesaid was annoyed with his
brothers Arvind and Praveen. At about
11.00 pm on 14.9.2004 the deceased
Arvind alongwith informant and the
informant's brother Hukum Singh (PW-2)
had gone to sleep outside the house while
Om Prakash was sleeping inside the house.
At about 4.00 a.m. the next morning the
informant and his brother woke up on
hearing some noise to find that accused Om
Prakash was inflicting repeated blows on
the neck and face of deceased Arvind with
Tabal/Daav, a sharp edged weapon. The
informant and his brother raised alarm on
which Om Prakash rushed towards them
also but as neighbours Rajveer Singh, etc.,
came on the spot the accused appellant
fled. The dead body of the informant's son
was lying on spot and a request was made
in the written report to lodge the report and
to do the needful. On the basis of aforesaid
written report a First Information Report
dated 14.9.2004 (Ext. A-16) was registered
as Case Crime No. 324 of 2004, under
Sections 302 read with 352 IPC.

4. After lodging of aforementioned
FIR the police of Police Station - Ramala
came into action. Accordingly, proceedings
for conducting the inquest of the body of
deceased were undertaken. An Inquest
report was thereafter prepared in terms of
Section 174 Cr.P.C. at about 9.00 am on
14.9.2004. As per the inquest report
Chandra Prakash, Dilawar Singh, Mahipal,
Ankur Kumar and Ranveer are the
witnesses of inquest. In the opinion of the
witnesses of inquest (Panch-witnesses) the
deceased was found to be of average height
and aged about 25 years. The inquest
witnesses opined that the death of deceased
was homicidal as the dead body of
deceased was found lying on the cot having
multiple injuries on face and neck. The
panch witnesses also opined that as the
deceased had died due to injuries sustained
by him the postmortem of the body of
deceased be also carried out.
840 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Subsequent to above the blood
stained clothes of the deceased were
recovered. A recovery memo of the same
was prepared i.e. Ext. Ka-9. Thereafter
Investigating
Officer
collected
blood
stained earth and plain earth from the place
of occurrence and prepared its recovery
memo i.e. Ext. Ka-10. Thereafter the
detailed police scroll was prepared and the
body of the deceased was dispatched for
postmortem on 14.9.2004. The same was
carried out on the same day at about 3.00
pm by Dr. R.G. Verma (PW-7). In the
opinion of the autopsy surgeon, the cause
of death of deceased was shock and
hemorrhage as a result of the following
ante-mortem injuries:-

"1. Incised wound 10cm x 4cm x
mandible cut extend from (R) angle of
mouth to lower part of (R) ear.

(2) Incised wound 9cm x 3cm x
bone deep present on (R) side neck, B an
below injury No. (1)

(3) Incised wound 6 x 1cm x bone
deep present on (R) side Neck, 1/4cm below
injury No. (2).

(4) Incised wound 5 x 1cm x bone
deep on (L) side chin.

(5) Incised wound 8 x 2 cm x
trachea cut present on front of Neck."

6. The autopsy surgeon thereafter
prepared the postmortem report of the
deceased (Ext. Ka-15).

7. Investigating Officer proceeded
with the investigation and in the course of
investigation
he
examined
the
first
informant, brother of first informant,
brother of deceased, etc. under Section 161
Cr.P.C.. The accused, however, absconded.
Resultantly his properties had to be
attached. Upon his surrender he was given
in police remand. On his pointing out the
weapon of assault (Tabal/Daav) was
recovered from the sugarcane field of one
Ram Mehar. Accordingly a recovery memo
of same dated 18.1.2005 (Exhibit Ka-8)
was
prepared.
Upon
completion
of
investigation
Investigating
Officer
submitted the chargesheet dated 25.11.2006
(Ext. Ka-7) against the appellant whereby
and whereunder accused appellant has been
chargesheeted under Sections 302 and 352
IPC.

8.

After
submission
of
aforementioned chargesheet, the concerned
Magistrate took cognizance upon the same.
As offence complained of is triable by
Court of Sessions, concerned Magistrate
accordingly committed the case to the
Court of Sessions, Baghpat. Resultantly
Sessions Trial No. 188 of 2005 (State Vs.
Om Prakash) under Sections 302 and 352
IPC, P.S. Ramala, District Baghpat came to
be registered. Separate and distinct charges
were framed against the accused for
offence under Sections 302 and 352 IPC.
The accused appellant denied the charges
so framed and demanded trial.

9. Resultantly the trial procedure
commenced before the Court of Sessions,
Baghpat. The prosecution in order to bring
home the charges so framed adduced Kallu
Ram (PW-1), Hukum Singh (PW-2), Babu
Ram Nayyar (PW-3), Richhpal (PW-4),
Rajesh Kumar Singh (PW-5), Praveen
Kumar (PW-6), Dr. R.G. Verma (PW-7)
and Mahendra Singh Yadav (PW-8).

10. PW-1 - Kallu Ram S/o Teekaram
is the first informant and also an eyewitness
of the occurrence. In his sworn testimony,
8 All. Om Prakash Vs. State
841
he has stated that accused appellant Om
Prakash is his elder son and is a man of
criminal antecedents against whom several
criminal cases are pending at Muzaffar
Nagar and Baghpat. He has been to jail
multiple times. He has further stated that
few days prior to the incident accused Om
Prakash had tried to assault the informant
and his wife which was not liked by other
sons namely Praveen and Arvind and for
this reason Om Prakash maintained enmity
with
them.
He
has
supported
the
prosecution version by stating that he was
sleeping outside the house along with
Hukum Singh and deceased Arvind while
Om Prakash was sleeping inside the house.
He claims to have woken up on hearing
noise to find that accused Om Prakash was
inflicting repeated blows on the deceased
by Tabal (Daav). Four or five blows had
been inflicted by the appellant on the
deceased. PW-1 alongwith his brother
raised an alarm on which Rajveer Singh
and Indrapal alongwith others came on the
spot who also saw Om Prakash leaving
with Tabal (Daav). This witness was crossexamined by the accused. However, this
witness in his examination-in-chief has
stated that his brother Hukum Singh is
unmarried. The incident is stated to have
occurred at around 3.00-4.00 am on
14.9.2004. PW-1 has further stated that he
was not having any watch and the
disclosure about the time of incident is
based on his assessment. He has stated that
few blows had already been inflicted upon
the deceased by the time this witness woke
up and some more blows were inflicted
later. The deceased had died on the spot.
The written report was thereafter scribed by
Praveen Kumar on his instruction outside
the police station. He has further disclosed
that the police station is 7-8 kilometers
away from his village where he had gone
on his own tractor. He denied the
suggestion that accused has been falsely
implicated on account of enmity in respect
of agricultural property. Inspite of lengthy
cross examination defence could not
dislodge this witness. As such he is a
credible and reliable witness.

11. PW-2 - Hukum Singh is the uncle
of deceased aged about 64 years. This
witness has also supported the prosecution
story. He is an eyewitness of the
occurrence alongwith PW-1 Kallu Ram. In
his statement-in-chief this witness has
clearly stated that accused Om Prakash is a
man of criminal antecedents inasmuch as
he had indulged in theft and dacoity, etc.
This witness was also cross-examined by
defence. However, he remained firm and
consistent. Defence failed to cull out any
statement from this witness so as to make
his testimony unworthy of trust on account
of
exaggeration,
embellishment
and
contradiction. As such this witness is
credible and his testimony is worthy of
trust.

12. PW-3 Sub-Inspector Ram Babu
Nayyar had prepared the inquest report
dated 14.9.2004 (Ext. Ka-2) and has proved
the same. Except for the above his
testimony is not relevant.

13. PW-4 Constable Richhpal had
gone to village Kirthal alongwith other
police personnel where the dead body of
deceased was lying. This witness was
involved in the preparation of police papers
and had brought the dead body of the
deceased to the mortuary. Except for the
above his testimony has no other relevance.

14. PW- 5 Sub-Inspector Rajesh
Kumar Singh is the Investigating Officer.
This witness has clearly stated that he is the
Investigating Officer of the concerned case
842 INDIAN LAW REPORTS ALLAHABAD SERIES
crime number. This witness claims to have
obtained the copies of the check FIR and
the general diary and thereafter entered the
same in the case diary. According to this
witness he thereafter visited the place of
occurrence and prepared the site plan of the
place of occurrence (Ext. Ka-11). He
thereafter collected plain earth and earth
mixed with blood from the place of
occurrence and prepared its recovery memo
(Ext. Ka-9). He also collected the blood
stained ropes (badh) from the cot of the
deceased, and prepared its recovery memo
(Ext. Ka-10). According to this witness the
weapon of assault was recovered by him on
the pointing of accused. It is this witness
who had prepared the recovery memo of
the same (Ext. Ka-8). He proved the
aforementioned recovery memos. He has
also stated that the accused has criminal
history of following cases:-

"1.
Crime
No.
60/89,
u/s
452/323/504 IPC, P.S. Ramala

2. Crime No. 70/89, u/s 395/397
IPC, P.S. Ramala.

3.Crime
No.
87/89,
u/s
394/302/412 IPC, P.S. Ramala.

4. Crime No. 125/94, u/s 307
IPC, P.S. Kotwali Muzaffarnagar.

5. Crime No. 126/94, u/s 25 Arms
Act, P.S. Kotwali Muzaffarnagar."

15. PW-6 Praveen Kumar S/o Kallu
Ram aged 31 years is the brother of the
deceased and is working as Home Guard.
On the fateful day this witness alleges to be
on duty at Tehsil Baraut where he received
information about the death of his brother.
He claims to have come to his village.
According to this witness, it is he, who had
scribed the written report (Ext. Ka-1) which
was submitted by his father at the police
station. He has also proved the written
report (Ext. Ka-1) scribed by him.

16. PW-7 Dr. R.G. Verma is the
autopsy surgeon who had conducted the
autopsy of the cadaver of the deceased.
This witness had prepared the postmortem
report dated 14.9.2004 (Ext. Ka-15) and
has proved the same. This witness has
opined that the cause of death of deceased
was the ante-mortem injuries sustained by
the
deceased
and
specified
in
the
postmortem report. According to this
witness at the time of postmortem of the
body of deceased rigor mortis was present.
He opined the time of death of deceased to
be around 4.00 am on 14.9.2004. The
medical
evidence
thus
supports
the
prosecution story.

17. PW-8 - Mahendra Singh Yadav is
a Police Constable who was posted at
Police Station Ramala at the relevant point.
According to this witness he prepared the
check FIR on the basis of written report.
This witness has proved the check FIR
(Ext. Ka-16) and the copy of the G.D. (Ext.
Ka-17).

18. After the prosecution evidence
was over all the adverse circumstances
were disclosed to the accused in question
answer form for his version of the
occurrence. As a result the statement of the
accused was recorded under Section 313
Cr.P.C. The accused in his reply to the
questions put to him has denied the
allegations alleged against him. According
to accused, he was neither present at the
time and place of occurrence, as such, he is
ignorant about the manner of occurrence.
He also claims to have been falsely
implicated due to family enmity.
8 All. Om Prakash Vs. State
843

19.

Accused
appellant
neither
adduced any evidence to prove his
innocence nor he has come out with his
version of occurrence. As such, the only
version of the occurrence is the prosecution
version.

20. On the basis of aforesaid material,
the Sessions Court has found the charges
levelled against the accused appellant to be
proved and has consequently convicted the
appellant for an offence under Section 302
read with 352 IPC and consequently
sentenced
him
to
life
imprisonment
alongwith fine of Rs. 20,000/- vide
judgment and order dated 16.10.2006.

21.

Feeling
aggrieved
by
aforementioned judgment and order the
accused appellant has filed present appeal
from Jail. We have heard Ms. Vijata Singh,
the learned Amicus Curiae for the appellant
and Mrs. Archana Singh, the learned AGA
for the State.

22. As per the prosecution case, the
deceased has been done to death by his
brother Om Prakash who had inflicted
multiple injuries upon the deceased by a
Tabal (a sharp edged weapon). The
motive behind the occurrence is clearly
discernible from the record i.e. enmity
with the deceased on account of the
objection raised by him to the act of
accused appellant in attempting to assault
his parents. The five ante-mortem injuries
found on the body of the deceased are in
the nature of incised wound which could
be caused by a sharp edged weapon. The
ocular version of the prosecution story is
supported by the medical evidence on the
record which is the postmortem report as
well as the oral testimony of PW-7 Dr.
R.G. Verma whose testimony regarding
the approximate time of death and
manner of death also corroborates the
prosecution story.

23. The two eyewitnesses of the
incident i.e. PW-1 Kallu Ram is the
father of the deceased as well as accused
whereas PW-2 Hukum Singh is the uncle
of the deceased and accused. Nothing has
come on record on the basis of which the
testimony of aforesaid eyewitnesses who
are also related to the accused could be
discarded on the grounds that they are
interested witnesses or partisan witnesses.

24 . The conviction and sentence of
the accused appellant is challenged
before us primarily on the ground that
there are material contradictions in the
prosecution story which have not been
adverted to by the court below. It is also
sought to be urged that the FIR is anti
timed, inasmuch as, the time of death
opined in the postmortem report does not
tally with the timing of the alleged
offence disclosed in the FIR. Learned
counsel for the appellant also contends
that appellant has been falsely implicated
in the crime in question on account of a
dispute regarding agricultural land and its
distribution
amongst
brothers,
particularly as the uncle of the deceased
was unmarried and his share would
devolve upon the accused appellant who
is sought to be deprived of his rightful
share in the agricultural property.

25. The above submissions urged by
learned Amicus Curiae regarding innocence of
appellant are strongly contradicted by the
learned AGA. According to learned AGA in a
case of direct evidence motive becomes
irrelevant. Secondly, there is nothing on record
on the basis of which it could be even inferred
that appellant has been falsely implicated in the
crime in question. The two eyewitnesses of the
844 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence though are interested witnesses yet
they are credible and reliable witnesses. The
occurrence has taken place in front of the house
at around 3.00 to 4.00 am and, therefore, there
could not be an independent eyewitness of the
occurrence at the point of time. The two
prosecution witnesses of fact who are also an
eyewitness of the occurrence have remained
consistent
throughout.
Inspite
of
crossexamination defence failed to dislodge them
nor could it cull out any such statement from
them so as to make their testimonies unworthy
of
credit
on
account
of
exaggeration,
contradiction and embellishment. Both the
eyewitnesses have narrated almost the same
story. According to learned AGA the testimony
of one witness cannot be contradicted with
reference to the testimony of another witness
nor it is possible to have a carbon copy of the
occurrence in the statement of two witnesses.
Even if minor variation exists with regard to the
manner of occurrence in the statements of the
two eyewitnesses same shall be immaterial as it
will not amount to contradiction but a natural
phenomena that two person cannot be given
exact deposition. Present case is a case of direct
evidence and the two eyewitnesses have fully
supported the prosecution story which the
prosecution set out to prove. The doubts raised
by learned Amicus Curiae are fanciful doubts
and do not create such dent so as to dislodge the
prosecution case. It is thus vehemently urged by
learned AGA that the impugned judgment and
order passed by court below is not liable to be
interfered with by this Court and consequently
the appeal be dismissed.

26. We have perused the records of
the present appeal and have carefully gone
through the evidence brought on record.

27. Learned Amicus Curiae has made
following submissions in support of this
appeal:

(i) Postmortem report shows that
intestine and bladder of deceased were half
full, which is usually indicative of the fact
that the deceased had his meal about two
hours back and, therefore, the likely time of
death is around 12 pm and the entire
prosecution story suggesting injuries on
deceased to be inflicted at around 3.00-4.00
am in the morning is inconsistent with the
medical evidence on record.

(ii) PW-1 in his statement has
disclosed that he woke up on hearing some
noise while PW-2 in his statement has
stated that he was woken by PW-1. It is,
therefore, stated that the statement of the
two eyewitnesses are contradictory.

(iii) The recovery of the weapon
of assault i.e. Tabal on the pointing of
accused appellant is not reliable since there
is no independent witness of the alleged
recovery.

(iv) PW-6 Praveen Kumar is an
interested witness and his testimony cannot
be relied upon.

(v) Appellant has been falsely
implicated in the crime in question so as to
dis-entitle him from inheriting agricultural
property and with the motive that Praveen
Kumar could get the entire land which
otherwise would have also fallen in the
share of the appellant.

(vi) The motive on the part of
appellant for committing the crime in
question is not substantiated, inasmuch as,
no specific date, time and place of assault
by accused on his parents has been
disclosed, nor it could otherwise constitute
sufficient provocation for causing the
murder of his own brother.
8 All. Om Prakash Vs. State
845

28. It is in the above context that we
are required to determine as to whether the
prosecution has succeeded in establishing
the charge levelled against the accused
appellant of causing the death of the
deceased Arvind Kumar beyond doubt.

29. The prosecution in order to bring
home the charge levelled against the accused
appellant has essentially relied upon the
statements of the two eyewitnesses namely
Kallu Ram and his brother Hukum Singh
(PW-1 & PW-2) respectively. Both the
eyewitnesses are father and uncle of the
deceased as also the father and uncle of the
accused appellant. Both the eyewitnesses are
elderly persons, who have categorically
supported the prosecution version by stating
that they had gone to sleep at around 11.00
pm in front of the house along with the
deceased. They claim to have woken up on
hearing the noise and saw that the accused
appellant
was
inflicting
injuries
upon
deceased by a Tabal (a sharp edged weapon).
The statement of both the eyewitnesses are
consistent on this score. The eyewitness
account of PW-1 and PW-2 also stand
supported from the ante-mortem injuries
found on the body of the deceased which
have
been
clearly
mentioned
in
the
postmortem report of the body of the
deceased also. The five ante-mortem injuries
found on the body of the deceased have
already been referred to in the earlier part of
this judgement. However this much can be
inferred that injuries were inflicted upon the
deceased on the sensitive part of the body
whereby themselves sufficient for causing the
death of deceased. The autopsy surgeon who
was examined as PW-7 has specifically
opined that the nature of injuries caused to
the deceased could have been caused by a
sharp edged weapon i.e. a Tabal/Daav. As
such, the prosecution story get supported by
the medical evidence as well as the testimony
of the autopsy surgeon also.

30. The eyewitness account in the facts
of the case is clearly consistent with the
injuries found on the body of the deceased
and, therefore, is entitled to due weight. Once
the eyewitness account tallies with the
injuries found on the body of the deceased
such statement would be entitled to weight
unless it is shown that eyewitness account is
unreliable or the testimony of eyewitness
lacks credibility.

31. In order to impeach the credibility
of eyewitness account the defence has
attempted to highlight contradictions in their
statement. Much emphasis was laid to the
contradictions in the testimonies of PW-1 and
PW-2 after drawing a parallel with each
other. It is on the basis of above that it was
strenuously urged by the learned Amicus
Curiae that while PW-1 has stated that he and
PW-2 woke up on hearing the noise, PW-2
has stated that he was woken up by PW-1.

32. We have examined the testimonies
of PW-1 and PW-2 and do not find any
material contradiction in them. PW-1 in his
statement has stated that he and his brother
woke up on hearing shouts at about 3.00-4.00
am and they saw the accused inflicting blows
by a Tabal (a sharp edged weapon) on the
deceased. PW-2 in his cross examination has
stated as under in his cross examination:-

^^eS] vjfoUn vkSj dkyw pkSd esa lks, FksA
geus vkgV lquh vkW[k [kqyh ns[kk fd] vkseizdk'k
vjfoUn dks rcy ls dkV jgk FkkA------------

---------------------tc vkseizdk'k vk;k rks gesa irk
ugh pykA e`rd dh igyh vkokt ij mB x, FksA
mlls igys vkseizdk'k rhu ckj okj dj pqdk Fkk mlls
igys ugha fpYyk;k FkkA dkyw us eq>s mBk;k FkkA^^
846 INDIAN LAW REPORTS ALLAHABAD SERIES

33. The statement of PW-2 in
substance matches with the facts stated in
the statement of PW-1. On a conjoint
reading of the statements of PW-1 and PW2 the synthesis which emerges is that both
the eye-witnesses i.e. PW-1 and PW-2
alongwith the deceased were sleeping
outside the house. PW-1 and PW-2 woke
up on hearing shouts of deceased. Both the
witnesses have stated that they saw the
appellant inflicting multiple blows by a
Tabal on the face and neck of the deceased
which is consistent with the prosecution
story. Even in the cross examination PW-2
has stated that he could not know when Om
Prakash came and he woke up on hearing
the first shout of deceased. The sentence
that PW-2 was woken up by PW-1 cannot
be read out of the context so as to suggest
any contradiction in the statement of PW-2.
Even otherwise such minor variation in the
statement of PW-2 is by itself not sufficient
to dislodge the credibility and reliability of
PW-2. The presence of PW-2 at the time
and place of occurrence has not been
denied by the accused. Thus this Court has
no
hesitation
to
conclude
that
the
contradiction pointed out by learned
Amicus Curiae for the appellant in the
statement of PW-2 with reference to the
statement of PW-1 is just a fanciful doubt
as it neither creates a doubt much less a
reasonable doubt in the prosecution case
nor does it singularly wipe out the
prosecution case.

34. When two persons are sleeping
close to each other and are woken up by
some noise/sound at odd hours which in
this case is 3.00-4.00 am it can always be
that one person may feel that he was woken
up by the other. At that spur of the moment
which of the two sounds was heard first by
PW-2 may not carry much weight,
particularly when their disclosure of the
incident is otherwise fully consistent with
each other and stands corroborated with the
medical evidence as well as the statement
of the doctor.

35. The deceased Arvind Kumar is
the real younger brother of accused
appellant Om Prakash. It is the consistent
case of prosecution that Om Prakash is a
man of criminal antecedents as he is
involved in various other cases of theft and
dacoity. The statements of PW-1 and PW-2
(eyewitnesses) are consistent in this regard.
Details of criminal history and arrest of
accused
Om
Prakash
have
been
categorically disclosed by PW-5 S.I. Rajesh
Kumar Singh. The accused was specifically
confronted with aforesaid in the questions
put to him under Section 313 Cr.P.C.,
which were vaguely denied.

36. So far as the argument with regard
to the FIR being anti-timed is concerned,
learned counsel for the appellant has relied
upon the autopsy report in which the
bladder and intestine are shown to be half
full. With reference to aforesaid fact alone
it is urged by learned counsel for appellant
that the deceased was done to death much
before the disclosed time of occurrence i.e.
3.00-4.00 am.

37. The argument raised by learned
Amicus
Curiae
emanates
from
the
postmortem
report
of
the
deceased.
However, PW-7 the autopsy surgeon who
had conducted the autopsy of the body of
the
deceased
had
opined
that
the
occurrence leading to the death of the
deceased could have occurred around 3.00
to 4.00 am in the night of 14.9.2004.
However, no attempt was made by the
accused to cross-examine the doctor
regarding above. The eye-witnesses of the
occurrence namely PW-1 and PW-2 have
8 All. Om Prakash Vs. State
847
also stated the same time of occurrence.
Even after cross examination defence could
not dislodge the statements of the two eyewitnesses regarding the time of occurrence.
Thus no credence can be attached to the
doubt raised by learned amicus curiae
regarding the timing of occurrence or the
FIR being anti timed. Thus the argument
that the FIR is anti timed cannot be
sustained.

38. With regard to the submission
urged by learned amicus curiae that
appellant has been falsely implicated only
to deny him rightful share in the
agricultural
property,
the
court
is
constrained to observe that the argument
has been raised only to be rejected. It is
well settled that a recorded tenure holder is
exclusive owner of agricultural holding. He
also has the privilege to bequeath his
property and also sell his property. Sons of
a recorded tenure holder cannot claim any
right, title or interest in the agricultural
property during the lifetime of a recorded
tenure holder. Moreover, in case there is no
male successor of a recorded tenure
holder/co-tenure holder the agricultural
property i.e. tenure of such tenure holder
shall devolve upon the other surviving heirs
per strip in the second preference and upon
the person next in the generation of the
deceased in first preference. Even if it is
assumed that the uncle of the deceased i.e.
PW-2 was unmarried in the first preference
his share shall devolve upon the father of
deceased and only after death of the father
the property in the share of uncle could
devolve upon deceased and his brothers in
equal share.

39. Learned amicus curiae has further
sought to impeach the impugned judgment
by submitting that no motive can be
attached to the appellant for causing the
crime in question. Admittedly the present
case is a case of direct evidence. In a case
of direct evidence motive does not play an
important role. It is only in a case of
circumstantial evidence that motive on the
part of accused to commit the crime in
question is required to be proved.

40. We may at this stage refer to the
judgment of the Supreme Court in Lokesh
Shivakumar v. State of Karnataka, (2012) 3
SCC 196 wherein Court has observed as
under in paragraph 13 of the report:-

13. As regards motive, it is well
established that if the prosecution case is
fully
established
by
reliable
ocular
evidence coupled with medical evidence,
the issue of motive loses practically all
relevance. In this case, we find the ocular
evidence led in support of the prosecution
case is wholly reliable and see no reason to
discard it. The submission, therefore, that
the appellant had no motive for the
commission of offence is not of any
significance.

41. In view of the discussion made
above, we find no error in the impugned
judgment whereby appellant has been
convicted and sentenced for an offence
under Sections 302 and 352 IPC.

42. Accordingly, this jail appeal fails
and is liable to be dismissed. It is,
accordingly, dismissed.

43. However, before parting we
record our appreciation for the valuable
assistance rendered by learned Amicus
Curiae Ms. Vijata Singh. She shall be
entitled to her fees which we quantify at
Rs.15,000/-. The same shall be payable to
her by the High Court Legal Services
Authority.
848 INDIAN LAW REPORTS ALLAHABAD SERIES

44.
Considering
the
facts
and
circumstances of the case, we provide that
since the appellant has remained under
incarceration for a period of more than 16
years, without any remission, his claim for
remission or commutation in terms of
Section
433/433A
Cr.P.C.
shall
be
accorded
consideration
by
the
State
Government in accordance with its policy
within a period of three months from today.
----------
(2022) 8 ILRA 848
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 5506 of 2021

Smt. Anita ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Nanhe Lal Tripathi

Counsel for the Opposite Parties:
Govt. Advocate, Sri Bhagwan Das

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 149, 302 & 120B - The Schedule Castes & The Schedule
Tribes (Prevention of Atrocities ) Act ,
1989 - Section 3(1)Da, Dha and 3(2)V -
The Code of criminal procedure, 1973 -
Section 161 appeal against rejection of
protest petition.

Wife of deceased (appellant) - applied for
Welfare
Scheme
(Mukhyamantri
Krishak
Durghatana
Kalyan
Yojna)
-
claiming
compensation showing an accidental death of
her
husband
-
received
Rs.5
lacs
as
compensation - site plan shows deceased died
due to accident - post mortem report shows
deceased died due to excessive bleeding - vain
attempt by appellant/complainant to prosecute
private respondents 3 to 8 - to get additional
compensation under SC/ST Act - claim totally
contradictory to material on record - pleadings
in counter affidavit not rebutted. (Para -8 to
12 )

HELD:- Case is a perfect example of abuse of
process of the court, for ulterior monetary gain.
Appeal dismissed with cost of Rs.5,000/- . To be
recovered from appellant as arrears of land
revenue. (Para -12,13 )

Criminal Appeal dismissed. (E-7)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
appellant, learned counsel for respondents
3 to 8 and learned A.G.A. as also perused
the record.

2. It is informed at bar that respondent
No.2 Vijay has died.

3. Present criminal appeal has been
filed against the order dated 9.9.2021
passed in f.R. No.119 of 2020 Smt. Anita
versus Vijay relating to case crime No.163
of 2020 under sections 147, 148, 149, 302,
120-B I.P.C., 3(1)Da, Dha and 3(2)V of
Scheduled
Castes
&
Scheduled
Tribes(Prevention of Atrocities) Act, 1989,
P.S. Madwara, district Lalitpur whereby
while accepting the final report, learned
Special Judge, SC/ST has rejected the
protest petition Paper No.25Ka filed by the
appellant.

4. Learned counsel for the appellant
has submitted that the investigating officer
has not conducted fare and impartial
investigation. Merely in one day, the
investigation has been completed and final
report has been filed. The deceased has
given dying declaration, however, same has
not been recorded by the investigating