# Prabhakar Singh and another v. State of U.P

- **Citation:** (2011) 2 ILRA 629
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-06
- **Bench:** Amar Saran, Arvind Kumar Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhakar-singh-and-another-v-state-of-u-p-41944
- **Pages:** 11

## Headnote

Criminal Appeal-offence under section
302-punishment of life imprisonment
with fine of Rs. 25000/-on each-heinous
crime deceased done to death-body
hacked into pieces-non disclosure of
incident by star-eye witness-costs great
doubt
of
reliability-in
such
circumstances-extra cautions duty cost
upon
Court-prosecution
failed
to
established
the
complexities
of
appellants-held-appellants are not guilty
of all offences-entitled-fair acquittal.

Held: Para 36

It is true that the nature of this crime is
heinous. The deceased appears to have
been done to death and his body was
hacked into pieces, placed in a sack and
thrown into the Gorma river. But that is
precisely the reason why we must be
extra cautious in assessing the credibility
of the evidence. As held in Kashmira
Singh v. State of M.P., AIR 1952 SC 159
and Ashish Botham V. State of M.P.,
(2002) SCC 317 hard cases should not
make bad law. Extra caution is needed in
handling such cases and the Courts are
not to be carried away by the gravity of
the allegations.
Case law discussed:
AIR 1952 SC 159

## Text

2 All] Prabhakar Singh and another V. State of U.P.
629
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2011

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE ARVIND KUMAR TRIPATHI, J.

Capital Cases No. - 59 of 2010

Prabhakar Singh and another ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Apul Misra
Sri Dhriendra Kumar Srivastva
Sri P.N. Misra

Counsel for the Respondents:
A.G.A.
Km. Usha Kiran

Criminal Appeal-offence under section
302-punishment of life imprisonment
with fine of Rs. 25000/-on each-heinous
crime deceased done to death-body
hacked into pieces-non disclosure of
incident by star-eye witness-costs great
doubt
of
reliability-in
such
circumstances-extra cautions duty cost
upon
Court-prosecution
failed
to
established
the
complexities
of
appellants-held-appellants are not guilty
of all offences-entitled-fair acquittal.

Held: Para 36

It is true that the nature of this crime is
heinous. The deceased appears to have
been done to death and his body was
hacked into pieces, placed in a sack and
thrown into the Gorma river. But that is
precisely the reason why we must be
extra cautious in assessing the credibility
of the evidence. As held in Kashmira
Singh v. State of M.P., AIR 1952 SC 159
and Ashish Botham V. State of M.P.,
(2002) SCC 317 hard cases should not
make bad law. Extra caution is needed in
handling such cases and the Courts are
not to be carried away by the gravity of
the allegations.
Case law discussed:
AIR 1952 SC 159

(Delivered by Hon'ble Amar Saran, J.)

1. The abovementioned Capital
Criminal Appeal, Criminal Appeal and
Criminal Reference arise out of the
judgement of the Additional Sessions
Judge/F.T.C. Court No. 4, Allahabad dated
21.12.2009.

2. The Capital Criminal Appeal No.
59 of 2010 has been preferred by the
appellants Prabhakar Singh and Kamlakar
Singh. The said appellants have been
awarded a sentence of death and a fine of
Rs. 25,000/- each under section 302 IPC. A
reference No. 3 of 2010 for confirmation
of their death sentence has also been
received from the Sessions Court. under
section 366 Cr. P. C.. Criminal Appeal No.
298 of 2010 has been preferred by the
appellants Dev Sharan Singh, Raj Narain
Singh, Ram Narain Singh @ Daroga
Singh, Narendra Pratap Singh, Diwakar
Singh and Baj Bahadur Singh who have
been awarded imprisonment for life under
section 302 IPC and fines of Rs. 20,000/-
each. All the 8 appellants above named
have also been sentenced to 5 years' R.I.
under section 201 IPC and fines of
Rs.5,000/- each. All the appellants have
further been convicted to one year's R.I.
under section 147 IPC with fines of Rs.
1000/- each and two years R.I. under
section 25 of the Arms Act and fines of Rs.
2000/- each. In default of payment of fine
regarding the sentence under section 302
IPC, the appellants will have to undergo
three years' simple imprisonment. For
default of payment of fine under section
201 IPC one year's simple imprisonment,
for the sentence under section 147 IPC,
630 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
three months' simple imprisonment and for
default of fine under section 25 Arms Act
six months' simple imprisonment have
been awarded. All the sentences were to
run concurrently.

3. We have heard Sri P.N. Misra,
Senior Advocate assisted by Sri Devendra
Kumar Srivastava for the appellants and
Km. Usha Kiran, learned A.G.A. for the
State.

4. The informant Raj Kumar Tiwari,
P.W.1 has lodged a report at P.S. Koraon
on 24.12.2002 alleging that he had lodged
a report regarding missing of his brother
Kaushal Kishore Tiwari, Pradhan, gram
panchayat Chapar on 19.12.2002. He had
learnt from informed sources that his
brother had been murdered in the "Arhar"
field of Laxmi Narain Tiwari in village
Hanumanganj. After that the body had
been thrown into the Gorma river. On that
information, the informant Raj Kumar
Tiwari, his father Kamla Shankar and
uncle Uma Shankar and Vidya Kant
Tiwari, P.W. 2 and Dev Kant Tiwari @
Sharma and other villagers searched for the
body on the banks of the river. When they
reached Kau Ghat, P.S. Shahpur, in district
Rewa, they recovered the dismembered
corpse of Kaushal Kishore Tiwari from a
plastic bag which also contained some
stones. They gave information about these
facts to Police Station Shahpur, district
Rewa on 22.12.2002, where inquest was
performed and post mortem was done.
After the last rites, Raj Kumar Tiwari
lodged a written F.I.R. on 24.12.2002 at
4.30 p.m. at P.S. Koraon on the basis of
which a case was registered at Crime No.
298 of 2002 under sections 147, 302, 201,
506 IPC at P.S. Koraon, district Allahabad
(Ext. Ka-1).

5. As per the post-mortem conducted
at C.H.C., Hanumana, district Rewa by
P.W. 8 Dr. Basant Lal on 22.12.2002 at
12.30 p.m. the dead body was lying flat on
a platform surface. Foul smell was coming
out. Multiple blisters were present. Some
of them had been destroyed. Palms of both
the hands which had remained in dirty
water bore the look of a dhobi's hand. The
body was putrefied. The head was missing.
Both thighs were cut transversely, and the
upper 1/3rd portion of both thighs were
missing and separated from the body. The
Following ante-mortem
injuries were
seen:-

1. Head was amputated transversely
from back of neck behind thyroid.

2. Incised wound 6" x 2" x bone deep
situate obliquely anterior aspect of left
upper arm.

3. Incised wound 4" x 2 " x bone deep
situate anterior aspect of of right upper arm
obliquely.

4. Both thighs were cut transversely
(slight obliquely in the upper 1/3rd of arm
muscle and bones were cut.

6. Cause of death was haemorrhage,
because of cutting of the greater blood
vessels of the neck and both thighs. The
time of death was 8 to 10 days earlier.

The prosecution has examined 12
witnesses in this case. P.W. 1 Raj Kumar
Tiawari, who was the informant and
brother of the deceased. P.W. 2 Vidya
Kant Tiwari, who was a witness of the
recovery of the dead body. P.W. 3
Surendra Prasad Misra, who was the
witness of recovery of blood near the
"arhar" field of Laxmi Narain Tiwari on
2 All] Prabhakar Singh and another V. State of U.P.
631
24.12.2002. P.W. 4 Suresh Kumar Tiwari,
P.W. 5 Kamleshwar Prasad, P.W. 6 Ram
Awadh, P.W. 7 K.K. Pandey, P.W. 8 Dr.
Basant Lal, P.W. 9 Anil Kumar Singh,
P.W. 10 Constable Sant Ram Yadav, P.W.
11 S.I. Kedar Nath Singh, P.W. 12 S.I.
Gulam Nizamuddin.

P.W. 1 Raj Kumar Tiwari, is the
informant of this case and brother of the
deceased Kaushal Kishore Tiwari. In his
evidence in court he has reiterated his
version in his F.I.R. lodged on 24.12.2002.
He has deposed that his brother was the
pradhan of village Chapar. On 13.2.2002
his brother, had gone to the Tehsil to
collect the pensions of the old age
pensioners. As he did not return that day,
the informant and other villagers searched
for him for 4 or 5 days. Then they lodged
his missing report on 19.12.2002, and kept
searching for him. During the course of
search they learnt that the appellants Dev
Sharan, Raj Narain Singh, Ram Narayan
Singh @ Daroga, Baj Bahadur, Kamlakar
Singh, Prabhakar Singh, Diwakar Singh,
Narendra
Singh
had
murdered
the
deceased in Dr. Laxmi Narain's Arhar
field. and cut his body into pieces, put the
pieces in a sack and thown it in the Gorma
river at P.S. Shahpur, district Rewa. Then
they made a search in the field of Laxmi
Narain Tiwari, where they saw some blood
stains. Thereafter they searched on the
banks of the Gorma river and at Kau Ghat
they spotted some blood stains. Then some
persons entered the Gorma river, where
they retrieved the dismembered corpse ,
whose head and both legs were missing,
which was kept in a plastic bag. Due
information was given at P.S. Hahpur on
22.12.02, in which jurisdiction inquest and
post mortem was performed. After post
mortem they were given the dead body for
cremation. Thereafter the FIR was lodged
on 24.12.02 at P.S. Koraon.

7. P.W. 4 Suresh Kumar Tiwari is the
eye witness in this case. He states that on
13.12.2002 this witness and one Vijay
Shankar (who was not examined) were
returning after meeting Ram Gopal Shukla
resident of village Hardaun. When they
reached near Laxmi Narain Tiwari's
"arhar" field at about 6.30 p.m. they saw a
drain and they stopped there to ease
themselves. A large number of persons
including the appellants Prabhakar Singh,
Kamlakar Singh, Diwakar Singh, Narendra
Singh, Devsaran, Ram Saran, Raj Narain
and Baj Bahadur Singh were present there
with lathis, dandas, and sharp edged
weapons. They were still sitting there
when at about 7.30 pm they saw the
deceased Kaushal Kishore Tiewari, the
village pradhan passing the Arhar field,
and Prabhakar Singh and Kamlakar Singh
assaulting the deceased Kaushal Kishore
the Pradhan with hammers. As a result of
the hammer injuries, the deceased fell
down, whereupon all the 8 accused persons
are said to have assaulted him with various
weapons and to have cut his body into
pieces. Thereafter Baj Bahadur Singh
brought two sacks and lathis from
appellant Devsaran's house. They put cut
body of the deceased into two sacks. They
hung the first sack on to a lathi, which
Kamlakar Singh, Prabhakar Singh and
Narendra Singh carried in the western
direction. The second sack was carried in
the southern direction by Baj Bahadur
Singh, Devsaran Singh, Ram Narain and
Ram Saran. He, however, did not disclose
the incident to any one as he was afraid,
but he revealed this fact after 5 or 6 days to
Kamla Shankar Tiwari, father of Kaushal
Kishore. Later, he learnt that Kaushal
Kishore's corpse was found in the Gorma
632 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
river. He disclosed this fact before the
appellants went to jail, when they were
absconding.

8. P.W. 5 Kamleshar Prasad Tiwari
deposes that on 13.12.2002 when he was
returning from the jungle and after he
crossed Hanumanganj village, then he saw
Raj Narain, Devsaran Singh, Prabhakar
Singh, Diwakar Singh carrying some thing
tied to a sack on a lathi at about 9.30-10
p.m. There was moon light. He disclosed
this fact to Raj Kumar Tiwari next
morning. He then took Raj Kumar to the
spot where he had seen the appellants
carrying a sack on a lathi. They saw blood
stains on the ground. After one week on
21.12.2002 when Kaushal Kishore body
was not recovered, they came to the spot
again and followed the trail of blood. They
proceeded about 6 kms. at the bank of
Gorma river in M.P., where they saw some
blood marks. With the help of 10 to 20 covillagers, they entered the river. In the
river, they found a sack tied with a rope. In
the sack there was a headless dead body,
which they identified to be that of the
deceased Kaushal Kishore Tiwari @
Bhuwar.

P.W. 6 Ram Awadh has deposed that
on 13.12.2002, the deceased Kaushal
Kishore had returned to Hanumanganj at
about 6.30-7 p.m. on the same Commander
Jeep on which he was travelling. He was
not carrying any bag at that time.

9. Apart from the aforesaid witnesses
of fact, P.W. 2, P.W. 3, P.W. 7, P.W. 8,
P.W.9, P.W. 10, PW.11 and P.W. 12 are
the other formal witnesses in this case.

P.W. 2 Vidya Kant Tiwari is the
private witness of recovery of the dead
body. He deposes that on 13.12.2002 the
deceased had gone to Devghat Tehsil to
find out about the old age pension of covillagers, after he did not return in the
evening, the father of the deceased Kamla
Shankar and brother Raj Kumar searched
for him amongst his relatives. When he
was still not found, Raj Kumar gave
information at P.S. Koraon and kept
searching for the deceased. At the "arhar"
field
of
Laxmi
Narain
Tiwari
in
Hanumanganj, they saw some blood stains,
then their suspicion arose that the deceased
had been murdered. The villagers and
Koraon police reached the Gorma river,
whilst searching for the deceased on the
banks of the river, blood marks were seen
on the way. They searched in the river,
where they found the dead body lying in a
sack. The sack was tied with a nylon rope.
The head and both legs of the deceased
were missing. He was wearing a half vest
and light blue underwear. Raj Kumar
Tiwari
gave
information
about
the
discovery of the corpse to P.S. Shahpur,
distrct Rewa. He also signed on the
recovery memo of the dead body. The
recovery memo was marked as (Ext. Ka3).

10. P.W. 3 Surendra Prasad Mishra
has deposed that on 24.12.2002, the
Investigating Officer collected the plain
and blood stained mud from the field of
Laxmi Narain Tiwari, which he kept in two
separate boxes which he sealed.

P.W. 7 S.I. Krishna Kumar Pandey is
the first Investigating Officer of this case.
The F.I.R. was registered in his presence
on 24.12.2002 at P.S. Koraon. On
15.1.2003 he also collected the earlier
report No. 22 dated 19.12.2002 and the
report dated 24.12.2002 and entered the
same in his case diary. He inspected the
spot on the pointing out of the informant,
2 All] Prabhakar Singh and another V. State of U.P.
633
then proceeded to the 'arhar" field in
village Hanumanganj, and collected plain
and blood stained earth in two boxes. He
got the thumb marks of the witnesses Raj
Kumar, Surendra Prasad Mishra affixed on
the recovery memo on 28.12.2002. He
inspected the place, where the dead body
was recovered and prepared the site plan of
the said place at Kaughat, jungle Gauri
beat, at the Gorma river and prepared the
site plan on the pointing out of the
informant (Ext. Ka-1). He also collected
the papers relating to the post-mortem and
inquest and other formalities from the M.P.
Police.

11. He recorded the statement of the
accused on 6.1.2003 in jail. He also
recorded the statement of the eye witnesses
Suresh
Tiwari,
Vijay
Shankar
and
Kamleshwar
Prasad
and
the
other
witnesses. On 14.12.03, this witness,
Constable Anil Singh, Sant Ram Yadav,
Raj Ram Pandey, Constable Gyan Singh,
Constable Ved Tiari and driver Shiv
Kumar Mishra took the accused persons
Raj Narain Singh, Ram Narain Singh,
Narendra Pratap Singh, Prabhakar Singh,
Diwarkar Singh, Baj Bahadur Singh and
Devsaran on police remand from Naini
jail.
After
getting
their
medical
examination done they then reached the
Belan river. The appellants Raj Narain
Singh, Narendra Pratap Singh got down
the Jeep and after removing some mud in
the Belan river, Raj Narain Singh took out
a gandasa, Narendra Pratap Singh took out
a banka from near by. The accused
claimed to have thrown the severed neck
of the deceased, which they had amputated
it into the river, but the said portion of the
body could not be recovered, in spite of
search. Then they came along with the
accused persons to village Hardaun.
Appellants Prabhkar Singh got down from
the Jeep and took out a hammer and a
knife from the front of his roof over a
dhanni. After that appellant Baj Bahadur
Singh took them to the wheat field in front
of his house, from where he got recovered
a banka. The appellant Devsaran got a
banka recovered from the garden in front
of his house. Then appellant Diwakar got a
knife recovered after digging the earth near
a mango tree. The appellant Ram Narain
Singh got a knife recovered from a
"charahi" situate in front of his house. The
accused persons admitted to the police to
have committed the murder of Kaushal
Kishore with these weapons. He also
submitted a report of a case under section
25 of the Arms Act against the appellants
on the basis of these recoveries. From
appellant Kamlakar Singh a knife was got
recovered on 28.1.2003.

P.W. 8 Dr. Basant Lal has conducted
the post-mortem as detailed above.

12. P.w. 9 Constable Anil Kumar
Singh who is also one of the witnesses has
deposed about the recovery of the knife on
28.1.2003 at the instance of appellant
Kamlakar, who was also taken into
custody from jail on a police remand. He
got the knife recovered from the Belan
river.

P.W.10 Constable Sant Ram Yadav is
also an eye witness of recovery of weapons
from various accused on 15.1.2003 after
the accused persons were taken on police
remand as already described in the
evidence of P.W. 7 S.I. Krishna Kant
Pandey.

13. P.W. 11, Kedar Nath Singh is the
second I.O. in this case, who assumed
investigation of this case after the transfer
of S.O. K.K. Pandey. On 7.2.2003 he
634 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
submitted the charge-sheet (Ext. Ka-28)
after perusal of the earlier papers prepared
by the first Investigating Officer.

14. P.W. 12 S.I. Gulam Nizamuddin
has deposed that on 16.1.2003 he
registered a case under sections 25/4 Arms
Act at Crime Nos. 11, 12, 13, 14, 15, 16
and 17 of 2003. He entered the statements
of the accused in the case diary and also
prepared the recovery memos and site
plans of the recoveries. He conducted the
investigation and also submitted charge
sheets under section 25/4 of the Arms Act
against all the accused persons.

15. It was submitted by Sri P.N.
Misra that there is no reliable evidence to
connect the appellants with this offence.
Even though, the solitary eye witness PW
4, Suresh Kumar Tiwari and other
witnesses of fact claim to have seen the
murder, or the accused carrying away
some thing in a sack and also there was
evidence that the deceased was travelling
along with the witness (P.W.6 Ram
Awadh) in a Commander Jeep on
13.12.2002, yet in the missing report,
which was lodged on 19.12.2002 at P.S.
Koraon it was mentioned that some
unknown persons had committed the
crime. Even in the information that was
given at P.S. Shahpur, district Rewa, M.P.,
on 22.12.2002 after the amputated corpse
was recovered in a sack from the Gorma
river, at Kaughat, M.P., it was mentioned
that some unknown persons had committed
the crime. This is admitted in the crossexamintion of the I.O., PW 7 K.K. Pandey.

16. There was no mention about the
source of the names of the accused
persons, even in the F.I.R., which was
registered on 24.12.2002 at 4.30 p.m. at
P.S. Koraon. The person, who had
informed
the
informant
about
the
participation of the appellants, was not
mentioned, but simply their involvement
was alleged. No blood was seen on the
weapons, which were said to have been
recovered. There is also no confirmatory
Serologist report. So far as the alleged
confessions
before
the
police
are
concerned, they are not admissible in
evidence. The disclosure by the alleged eye
witnesses and other witnesses of fact was
highly delayed, which casts doubt as to
their reliability. The witnesses P.W. 4 and
5 were relative and chance witnesses. The
witness P.W. 4 claims to be easing himself
in the darkness. There was no mention of
any torch light etc.

17. Learned A.G.A. Km. Usha Kiran
argued that this was a ghastly murder,
where the body of the deceased was cut
into pieces and carried away in a sack and
thrown in the Gorma river and there was
an eyewitness account. Considering the
terror that must have been generated in this
incident, the non disclosure of the incident
by the witnesses was very natural. The
statement of P.W. 4, the eye witness was
also a natural statement and he gave a good
explanation for his presence at the spot.

18. We have carefully gone through
the record of this case and judgerment and
submissions of the learned counsel for
parties.

19. In our view, if P.W. 4 Suresh
Kumar Tiwari, the star eye witness had
reached the spot at the time of incident and
was present at the spot for easing himself,
and the incident had taken place in his
presence as detailed above, his non
disclosure of the incident to any other
person immediately after the incident casts
a grave doubt as to his reliability. As the
2 All] Prabhakar Singh and another V. State of U.P.
635
other allegedly accompanying person,
Vijay has not even been examined, this
witness would be the solitary eye witness
in this case, and hence his evidence needs
to be examined with great care and
circumspection.

20. PW 4 appears to be a chance
witness as he resides in village Devghat
which was 10 kms away. His explains his
presence at the spot by saying that he had
gone to visit Ram Gopal Shukla, who was
a resident of village Hardaun and he was
sitting at that spot from 6.30 p.m. till 7.30
p.m., simply for easing himself. He admits
in his evidence in his cross examination
that his house is 10 kms. from the place of
incident. Ram Gopal's house was 1 km.
away in the south westerly direction. There
is an Amedkar road, which is 2 Kms. from
Ram Gopal's house and he could have
proceeded directly to reach the said road,
without making a detour to the place of
incident, where he went to ease himself
which was 400 meters away from the
passage of the road. He also admits that the
villagers of Ram Gopal Shukla's village
used to ease themselves in the same
village, but he states that he did not ease
himself in Ram Gopal Shukla's village,
because he was not feeling the need to ease
himself there. He, therefore, happened to
ease himself at the spot as a chance
witness, who actually did not appear to
have any good reason to be present there.

21. PW 4 further admits that the
uncle of the informant and deceased Uma
Shankar Tiwari was his own maternal
uncle, therefore, there was a close
relationship of the informant's family and
this witness. He further admits that from
the field of Laxmi Narain, the house of Raj
Kumar was only 400 meters away. In spite
of the fact that he was closely related to
Raj Kumar, he did not even go the distance
of 400 meters to inform Raj Kumar about
this incident, which casts a grave doubt
about his presence at the spot.

22. P.W. 4 also mentioned that he
had disclosed about this incident after 5 or
6 days to Kamla Shankar Tiwari, father of
Kaushal
Kishore.
In
spite
of
this
disclosure, in the gumsudagi report, which
was lodged on 19.12.2002, it was claimed
by Raj Kumar Tiwari, the son of Kamla
Shankar Tiwari and another brother of the
deceased that some unknown persons had
committed the crime, As admitted by the
I.O.,
PW 7 K.K. Pandey, in the
information given by the informant Raj
Kumar Tiwari at P.S. Shahpur, district
Rewa, M.P., after the discovery of the
hacked corpse from a sack in the Gorma
river at Kaughat, M.P., it was mentioned
that unknown persons had committed the
crime. These facts are wholly inconsistent
with the alleged disclosure by this witness
after 5 or 6 days of the incident to Kamla
Shankar Tiwari father of PW 1 Raj Kumar
Tiwari, the informant and the deceased
Kaushal Kishore Tiwari.

23. He further states that he had
arrived in Ram Gopal's house at 10 a.m.
and had no good reason for his remaining
there till evening. He simply states that he
had gone to meet Ram Gopal, even though
a lot of agricultural operations were needed
in the fields such as weeding, irrigation
etc., at that time. His ostensible reason
given in Court for going to Ram Gopal's
place simply to meet Ram Gopal's son,
appears unworthy of credence.

24. He did not show the spot, where
he was easing himself to the Investigating
Officer.
636 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

He further admits that one hour before
the incident, the sun had set and they had
no torch or other source of light. The lamps
had burnt in the houses about 1 hour
earlier. Therefore, there was absence of
light at the place of incident. His case that
he saw Kamlakar Singh assaulting the
deceased with a hammer on his head was
not mentioned to the Investigating Officer.
He claims to have given his statement to
the Investigating Officer 5 or 6 days after
this incident, that would be by 18 or 19th
December, 2002. However according to
the Investigating Officer, PW 7 K.K.
Pandey, his statement was only recorded as
late as on 23rd January, 2003 and the
witness
had
never
contacted
the
Investigating Officer for a period of one
month and 10 days after the incident,
although, the witness claims that he was in
the village, when the police had come to
the "arhar" field of Laxmi Narain, that
would be on 24.12.2002.

He is unable to state as to which
accused was carrying what weapon.

25. For all these reasons the
testimony of this witness is highly suspect
and it would hazardous for the Court to
rely on the testimony of this solitary eye
witness.

26. So far as the evidence in this case
regarding the recovery of the dead body of
the deceased from the Gorma river after
some blood stains were seen at Kaughat in
M.P, the said body not having been
retrieved at the instance of the accused
persons, the retrieval of the body also does
not provide any corroborative evidence of
the complicity of the accused in this case.

P.W. 1, the informant Raj Kumar
Tiwari has also not been able to advance
the case of the prosecution. Even though
he had learnt about the names of the
appellants' parents after 4 or 5 days of the
incident, which took place on 13.12.2002,
in the gumsudagi (missing report) which
was lodged on 19.12.2002, the accused
were described as unknown persons. Also
even in the application, which was given
on 22.12.2002 at P.S. Shahpur, district
Rewa, it was claimed that some unknown
persons had murdered his brother Kaushal
Kishore alias Bhunwar by cutting his neck
and legs in the field of Laxmi Narain in
village Hanumanganj and had thrown the
amputated dead body into the Gorma river
after putting a stone in the sack containing
the amputated corpse. Although Suresh
Tiwari and another were present, when the
body was recovered, yet in the application
dated 22.12.2002, given at P.S. Shahpur, it
was claimed that the murder had been
committed by unknown persons.

27. It was alleged that there was a
dispute of the informant Raj Kumar Tiwari
and others with the appellants over gram
sabha land as the appellants had earlier
been given a lease by Sita Devi, the earlier
Pradhan. But after the deceased became
Pradhan, he wanted them to return the land
and he had even approached the Civil
Court in this regard. But he was unable to
mention the year, when the patta was
given by Sita Devi in favour of the
appellants. Subsequently, he admits that
Sita Devi had not given any lease in favour
of the appellant Devsaran and others. He
also admits that he had no knowledge
whether the deceased had initiated any
civil proceedings against the appellants for
return of the land. Thus, he gives up even
the weak motive earlier set up by him in
his further cross examination. In the
examination-in-chief, as noted above, no
motive for the crime was mentioned.
2 All] Prabhakar Singh and another V. State of U.P.
637

28. He also admits that 15 or 16
persons had fought the Village Pradhani
election against his brother Kaushal
Kishore and some of the appellants, Baj
Bahadur, Dev Saran, Kamlakar Singh and
Prabhakar Singh had supported Kaushal
Kishore Tiwari, the deceased, in the
Pradhani elections. If that was the case,
then there would have been some inter se
dispute between the appellants, and all the
8 appellants were unlikely to have come
together for committing this crime. Also
the accused who supported the deceased
during the elections would not have a
motive for committing his murder.

29. P.W. 5 Kamleshar Prasad Tiwari,
claims to have seen the appellants Raj
Narain, Dev Saran Singh, Prabhakar Singh,
Diwakar Singh carrying a sack tied to a
lathi on 13.12.2002 at 9.30-10 p.m, only
because he claims to be returning from the
jungle at that time. He, therefore, claims to
have given information of this fact to Raj
Kumar Tiwari the next morning and to
have shown him the spot, where the blood
marks were seen on the way. On
21.12.2002 they again went to the spot
where the blood stains were seen. They
proceeded for a distance of 2, 5 or 6 kms.,
till they reached the banks of Gorma river,
where with the help of 10-20 persons, who
entered the river, they retrieved the sack
contained the dead body and some
boulders. If PW 5 Kamleshar Prasad
Tiwari was speaking the truth when he
deposed that he had seen the appellants Raj
Narain, Dev Saran Singh, Prabhakar Singh,
Diwakar Singh carrying a sack on a lathi
near the place of incident on 13.12.02,
about which he informed PW1, Raj Kumar
Tiwari the informant the next morning,
there was no reason for them not following
the trail of blood the next morning itself to
reach the banks of the Gorma river at
Kaughat on 14.12.02 itself, but to have
conducted this exercise only on 21.12.02.
The absence of these facts in the
gumsudagi report dated 19.12.2002, and in
the application given at P.S. Shahpur on
22.12.2002 and also in the F.I.R. dated
24.12.2002 gives a lie to the claim of this
witness to have seen the aforesaid
appellants carrying a sack tied to a lathi in
the night of 13.12.2002. This witness also
claims that the informant was the son of
his elder grand father. His closeness with
the informant is also clear from his
admission that both Raj Kumar Tiwari and
his father were in jail at the time of cross
examination in connection with Sukh Ram
Kol's murder, althought he denied the
suggestion that his father and Raj Kumar
Tiwari were in jail for the murder of Sukh
Ram @ Ukua Kol.

30. It is also doubtful whether he
could have seen the accused carrying a
sack on a lathi from the pahari from a
distance of 90 metres from where he was
coming. There is a conflict in his testimony
as he had told the I.O. that he had been
coming from Arvind Shukla's house, but in
Court he stated that he was coming from
the pahari.

31. His version of having seen some
of the appellants carrying a sack on a lathi
is absent in the three applications dated
19.12.2002, 22.12.2002 and 24.12.2002.

32. He also seems to have no good
reason to be present at the spot at 9.30 or
10 p.m. and his plea that he was returning
from the pahari at that time, does not seem
too credible. For all these reasons we think
that this witness is also a got up witness.

33. The testimony of P.W. 6 Ram
Awadh that on 13.12.2002 he was
638 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
travelling on a Commander Jeep, on which
Kaushal Kishore Tiwari, Pradhan was also
sitting and had got off at Hanumanganj at
about
6.30-7
p.m.
was
a
neutral
circumstance as the accused persons are
not said to be present at that time

There is also a suggestion that there
was some enmity of Ram Gopal and the
appellants as it was the ceiling surplus land
of Ram Gopal which had been transferred
to the appellants Dev Saran and others
which Ram Gopal had tried to save from
ceiling
proceedings
by
wrongfully
transferring the same to his sons. An
application against Ram Gopal disclosing
this fact was given by Ram Saran, a
relation of the appellants before the C.R.O.
which was supported by the deceased. This
was opposed by the appellant and
therefore, Ram Gopal had a significant role
in launching this false case for implicating
the appellants.

34. There was a further suggestion
that actually the informant has no idea,
who had committed the crime. They were
suspecting that Sukh Ram Kol had
murdered Kaushal Kishore and that the
informant and Uma Shankar Tiwari were
under the impression that Sukh Ram Kol
had committed his murder, and hence they
had committed the murder of Sukh Ram
Kol in retaliation. Although, he denies this
fact too, he admits that they (i.e. Raj
Kumar Tiwari, Uma Shankar and Khooni
Nai) were implicated for the murder of
Sukh Ram Kol, but the report had been
wrongly lodged.

In this connection the trial judge has
observed that Sukh Ram could not have
committed this murder and taken the body
all the way to the Gorma river alone, 6 kms
from the field of Laxmi Narain Tiwari and
thrown it there. The reasoning is faulty.
The question for consideration is not
whether Sukh Ram Kol or the appellants
actually committed the murder of the
deceased. But the suggestion is that
initially the informant and others were
suspecting that Sukh Ram Kol had
committed the murder and not the
appellants. Hence the retaliatory murder of
Sukh Ram and the great delay before the
names of the present appellants surfaced in
the FIR dated 24.12.2002 and the
unsatisfactory manner in which their
complicity is mentioned in the FIR,
without any dislosure as to who gave out
their names.

35. So far as the alleged recoveries of
different weapons from all the eight
accused persons after they were taken on
police remand from jail on 15.1.2003 and
28.1.03 (in the case of appellant Kamlakar
Singh) by P.W. 7 S.I. Krishna Kumar
Pandey and P.W. 10 Constable Sant Ram
Yadav and PW 9 Constable Anil Kumar
Singh are concerned, we think that the said
recoveries of gandasa, banka, hammer,
knife etc., are too artificial to be believable.
Moreover, on 15.1.2003 and 28.1.2003 at
the instance of appellant Kamlakar Singh a
knife was recovered, as deposed to by
P.W. 9 Constable Anil Kumar Singh. But
no blood etc., was seen on even one of the
large number of weapons that were
recovered from all the accused, nor were
they sent to Forensic Laboratory for
confirmation of the presence of blood on
them. The said weapons, therefore, appear
to have been falsely planted for implicating
the accused persons in a fruitless bid to
create
evidence
because
the
other
testimony collected in this case does not
inspire much confidence. Furthermore, no
public witnesses have been produced for
supporting
these
recoveries.
2 All] National Insurance Compnaney Ltd.Thr.Manager V. Smt. Seema Dhal
639

36. It is true that the nature of this
crime is heinous. The deceased appears to
have been done to death and his body was
hacked into pieces, placed in a sack and
thrown into the Gorma river. But that is
precisely the reason why we must be extra
cautious in assessing the credibility of the
evidence. As held in Kashmira Singh v.
State of M.P., AIR 1952 SC 159 and Ashish
Botham V. State of M.P., (2002) SCC 317
hard cases should not make bad law. Extra
caution is needed in handling such cases
and the Courts are not to be carried away
by the gravity of the allegations.

37. For all the aforesaid reasons we
are of the opinion that the prosecution has
failed to establish the complicity of the
appellants in the crimes for which they
were charged. The judgement of the trial
court dated 21.12.2009 convicting and
sentencing the appellants under the various
provisions mentioned above are set aside.
The appellants are held not guilty of all of
the offences for which they have been
charged and acquitted. All the appellants
are in jail. They may be released forthwith
unless wanted in connection with some
other case.

Accordingly, Capital case No. 59 of
2010 and the Criminal Appeal No. 298 of
2010 are allowed and the Reference No. 3
of 2010 is hereby rejected.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

First Appeal From Order No. - 545 of 2007

National
Insurance
Compnaney
Ltd.Thr.Manager

 ...Petitioner
Versus
Smt.Seema Dhal

 ...Respondent

Counsel for the Petitioner:
Sri Rajesh Nath

Counsel for the Respondent:
Sri R.K.Dwivedi

Motor Vehicle Act, 1988-Section 170Right to appeal-once the permission to
contest the claim granted by TribunalStatus of Insurance Camp became as
owner-against the award of Tribunalappeal by Insurance Company very well
maintainable-so
far
Quantum
of
compensation
is
concern-learned
Tribunal rightly assessed the income of
deceased-can
not
be
termed
as
excessive-No interference called for

Held: Para 10

From a plain reading of Section 170 of
the
Act,
it
is
evident
that
once
permission under Section 170 of the Act
is granted, then Insurance Company will
have same status as of the owner of the
vehicle. Hence after grant of permission
under Section 170 of the Act, the
Insurance Company will have right to
prefer appeal. In view of the facts of the
case, the provisions of Section 149 will
not be applicable. In the case of
Chinnama George (supra), Section 170
has not been considered by the Hon'ble
Supreme Court. The power conferred by
Section 170 is statutory power and in
derogation of Section 149 of the Act, as