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

- **Citation:** (2022) 4 ILRA 1209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Case number:** J. Criminal Appeal No. 2170 of 1983
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prahlad-ors-in-jail-v-state-of-u-p-48402
- **Pages:** 44

## Headnote

A. Evidence of closely related witnesses is
required
to
be
closely
scrutinized
and
appreciated before any conclusion is made to
rest upon to convict the accused in a given
case. In case the evidence has a ring of truth to
it, is cogent, credible and trustworthy it can and
certainly be relied upon.

B. Minor contradiction or inconsistency are
immaterial and irrelevant details which do not in
any way corrode the credibility of witness
cannot be labeled as omission or contradictions
as the mental capabilities of human being
cannot be expected to be attuned to absorb all
the details, thus, minor discrepancies are bound
to occur in the statements of the witnesses.

C. Convincing evidence is required to discredit
an injured witness.

D. Indian Penal Code,1860 - Sections 141 & 149
.- Common object does not necessarily require
proof of prior meeting of minds or pre-consult.
The vicarious liability of the members of the
unlawful assembly extends only to the acts done
in pursuance of the common objects of the
unlawful assembly or to such offences as the
members of the unlawful assembly knew to be
likely to be committed in prosecution of that
object. It is not necessary that all the persons
forming an unlawful assembly must do some
overt act.

E. Requisition sent to Doctor to conduct post
mortem not containing all the particulars found
in inquest report and complaint, like particulars
of case, weapon used and names of accused
persons etc. would not lead to the conclusion
that F.I.R. was ante timed. Further, if time of
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt of special report sent to Jurisdictional
Magistrate is not noted and delivery of the
special report consistently proved by the
credible evidences, mere non-noting of the time
would not lead to the conclusion that F.I.R. was
ante timed.

F. Code of Criminal Procedure, 1973 - Section
174 - The object of the proceedings u/S 174
Cr.P.C. is merely to ascertain whether person
died of suspicious circumstances or met with an
unnatural death and if so what was it's apparent
cause. The question regarding the details of
how the deceased was assaulted or who
assaulted him or under what circumstances he
was assaulted is foreign to the ambit and scope
of such proceedings i.e. inquest report is not the
statement of any person wherein all the names
of the persons must be mentioned. Basic
purpose of holding an inquest is to report
regarding the apparent cause of death namely,
whether it is suicidal, homicidal, accidental or by
some machinery etc.

G. Delay in sending the special report to the
jurisdictional Magistrate is not fatal particularly
when the defence did not put any question in
this regard to the Investigating Officer.

Appeals are dismissed. (E-11)

List of Cases cited:-

## Text

_Characters 0–39,982 of 151,869. This is a partial read: ask again with offset=39982 for what follows._

4 All. Prahlad & Ors. Vs. State of U.P.
1209
evidence brought on record is not strong
enough to point out towards the culpability
of the appellant and appellant alone, in
committing the murder of the deceased,
hence he deserves acquittal. Accordingly
the appeal is allowed. The judgment and
order
dated
14.08.2008
passed
by
Additional Sessions Judge, Court No. 6,
Raebareli in Sessions Trial No. 276 of
2006, Crime No. 78 of 2006, under Section
302 IPC, Police Station Badokhar, District
Raebareli, is hereby set aside.

24. Let the appellant-Prakash Pasi
convicted and sentenced in Sessions Trial
No.276 of 2006, Crime No. 78 of 2006,
under Section 302 IPC, Police Station
Badokhar, District Raebareli, be released
from the concerned jail, if not required in
any other case.

25. Appellant Prakash Pasi is directed
to file personal bond and two sureties each
in the like amount to the satisfaction of the
court concerned in compliance with Section
437-A of the Code of Criminal Procedure,
1973.

26. Let a copy of this order alongwith
original record be transmitted to the trial
court concerned forthwith for necessary
information and follow up action.
----------
(2022)04ILR A1209
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV,
J.

Criminal Appeal No. 2170 of 1983
 with
Criminal Appeal No. 2169 of 1983
Prahlad & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri R.B. Sahai, Sri Ankit Saran, Sri Om
Prakash Yadav, Sri Pankaj Malviya (A.C.),
Sri Pavan Kumar, Sri Yashwant Pratap
Singh

Counsel for the Respondent:
D.G.A.

A. Evidence of closely related witnesses is
required
to
be
closely
scrutinized
and
appreciated before any conclusion is made to
rest upon to convict the accused in a given
case. In case the evidence has a ring of truth to
it, is cogent, credible and trustworthy it can and
certainly be relied upon.

B. Minor contradiction or inconsistency are
immaterial and irrelevant details which do not in
any way corrode the credibility of witness
cannot be labeled as omission or contradictions
as the mental capabilities of human being
cannot be expected to be attuned to absorb all
the details, thus, minor discrepancies are bound
to occur in the statements of the witnesses.

C. Convincing evidence is required to discredit
an injured witness.

D. Indian Penal Code,1860 - Sections 141 & 149
.- Common object does not necessarily require
proof of prior meeting of minds or pre-consult.
The vicarious liability of the members of the
unlawful assembly extends only to the acts done
in pursuance of the common objects of the
unlawful assembly or to such offences as the
members of the unlawful assembly knew to be
likely to be committed in prosecution of that
object. It is not necessary that all the persons
forming an unlawful assembly must do some
overt act.

E. Requisition sent to Doctor to conduct post
mortem not containing all the particulars found
in inquest report and complaint, like particulars
of case, weapon used and names of accused
persons etc. would not lead to the conclusion
that F.I.R. was ante timed. Further, if time of
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt of special report sent to Jurisdictional
Magistrate is not noted and delivery of the
special report consistently proved by the
credible evidences, mere non-noting of the time
would not lead to the conclusion that F.I.R. was
ante timed.

F. Code of Criminal Procedure, 1973 - Section
174 - The object of the proceedings u/S 174
Cr.P.C. is merely to ascertain whether person
died of suspicious circumstances or met with an
unnatural death and if so what was it's apparent
cause. The question regarding the details of
how the deceased was assaulted or who
assaulted him or under what circumstances he
was assaulted is foreign to the ambit and scope
of such proceedings i.e. inquest report is not the
statement of any person wherein all the names
of the persons must be mentioned. Basic
purpose of holding an inquest is to report
regarding the apparent cause of death namely,
whether it is suicidal, homicidal, accidental or by
some machinery etc.

G. Delay in sending the special report to the
jurisdictional Magistrate is not fatal particularly
when the defence did not put any question in
this regard to the Investigating Officer.

Appeals are dismissed. (E-11)

List of Cases cited:-

1. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj.
(1983)3 SCC 217

2. Shivaji Sahab Rao Bobade Vs St. of Mah.
(1973)2 SCC 793(801)

3. Vijendra Singh Vs St. of U.P. with Mahendra
Singh Vs St. of U.P. (2017)11 SCC 129

4. Sucha Singh & anr. Vs St. of Pun. (2003)7
SCC 643

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

6. Shyam Babu Vs St. of U.P. (201208 SCC 651

7. Maqsoodan & ors. Vs St. of U.P. (1983)1 SCC
218

8. Thaman Kumar Vs State (UT of Chandigarh)
(2003)7 SCC 380

9. Mrinal Das & ors. Vs St. of Tripura (2011)9
SCC 479

10. Anil Rai Vs St. of Bihar with Subhash Chand
Rai & anr. Vs St. of Bihar with Awani Rai Vs St.
of Bihar (2001)7 SCC 318

11. Dev Karan Vs St. of Har.(2019)8 SCC 596

12. Jai Shree Yadav Vs St. Of U.P. (2005)9 SCC
788
(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The instant two criminal appeals
have arisen from the judgment and order of
conviction and sentence dated 14.09.1983
passed by the learned Additional Sessions
Judge, Deoria in Sessions Trial No.92 of
1982, under Sections 147, 148, 302/149,
324/149 of the Indian Penal Code, 1860.

2. It would be relevant and pertinent
to mention, at the very outset, that initially
in the written complaint and the first
information report registered thereon by the
police against five accused persons namely
(1) Prahlad, S/o Ram Hit Yadav, R/o
Village Bhimpur, (2) Ram Oudh, S/o Ram
Hit Yadav, R/o Village Bhimpur (3) Prahlad
S/o Bhirgun, R/o Village Moora Dih, (4)
Sudama of Village Chali Chaur, Police
Station Rudrapur and (5) Brijraj S/o
Mahipat Yadav, R/o Village Khairaich,
Police Station Rampur Karkhana, District
Deoria, the case was committed to the
sessions for trial against the Prahlad, S/o
Ram Hit Yadav, R/o Village Bhimpur, Ram
Oudh, S/o Ram Hit Yadav, R/o Village
Bhimpur, Prahlad S/o Bhirgun, R/o Village
Moora Dih and Brijraj S/o Mahipat Yadav,
R/o Village Khairaich, Police Station
Rampur Karkhana, District Deoria for the
4 All. Prahlad & Ors. Vs. State of U.P.
1211
reason that the accused Sudama died before
the committal of the case in a police
encounter.

3. After completion of the trial,
learned Additional District and Sessions
Judge, Deoria recorded conviction of
accused persons as under:-

(I) Ram Oudh - convicted under
Sections 147, 302 read with Section 149,
324/149 of the Indian Penal Code, 1860
and is sentenced life imprisonment for the
offence punishable under Section 302 read
with Section 149 of the Indian Penal Code
and to undergo R.I. for a period of four
months for the offence punishable under
Section 147 of the Indian Penal Code, 1860
and to undergo R.I. for a period of one year
for the offence punishable under Section
324 read with Section 149 of the Indian
Penal Code, 1860.

(II) Prahlad S/o Bhirgun -
convicted under Sections 147, 302 read
with Section 149, 324/149 of the Indian
Penal Code, 1860 and is sentenced life
imprisonment for the offence punishable
under Section 302 read with Section 149 of
the Indian Penal Code and to undergo R.I.
for a period of four months for the offence
punishable under Section 147 of the Indian
Penal Code, 1860 and to undergo R.I. for a
period of one year for the offence
punishable under Section 324 read with
Section 149 of the Indian Penal Code,
1860.

(III) Prahlad S/o Ram Hit Yadav
- convicted under Sections 148, 302/149,
324/149 of the Indian Penal Code, 1860 and
is sentenced life imprisonment for the offence
punishable under Section 302 read with
Section 149 of the Indian Penal Code and to
undergo R.I. for a period of six months for
the offence punishable under Section 148 of
the Indian Penal Code, 1860 and one year
R.I. for the offence punishable under Section
324 read with Section 149 of the Indian Penal
Code, 1860.

(IV) Brijraj - convicted under
Sections 148, 302/149, 324/149 of the Indian
Penal Code, 1860 and is sentenced life
imprisonment for the offence punishable
under Section 302 read with Section 149 of
the Indian Penal Code and to undergo R.I. for
a period of six months for the offence
punishable under Section 148 of the Indian
Penal Code, 1860 and one year R.I. for the
offence punishable under Section 324 read
with Section 149 of the Indian Penal Code,
1860.

4. Criminal Appeal No.2170 of 1983
has been preferred by the appellants (1)
Prahlad, S/o Ram Hit Yadav, (2) Brijraj S/o
Mahipat Yadav and (3) Ram Oudh, S/o Ram
Hit Yadav. Learned counsel Sri Yashwant
Pratap Singh put forth the arguments on
behalf of the only surviving appellant Brijraj
in this appeal.

5. Criminal Appeal No.2169 of 1983
has been preferred on behalf of the sole
appellant Prahlad, S/o Bhirgun separately
against the same judgment of conviction and
order of sentence described here in above.
Learned senior counsel Sri Brijesh Sahai
assisted by Sri Himanshu Srivastav, learned
Advocate has argued the case on behalf of the
said appellant.

6. The record reveals that during the
pendency, in Criminal Appeal No.2170 of
1983, Prahlad, S/o Ram Hit Yadav and
Ram Oudh, S/o Ram Hit Yadav had died
and consequent thereto the appeal to the
extent of the aforesaid deceased appellants
Prahlad and Ram Oudh were abated vide
order dated 23.11.2015, and as such, in
Criminal Appeal No.2170 of 1983, the only
surviving appellant is Brijraj.
1212 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The record further shows that
accused "Prahlad" (of Village Moora Dih)
is on bail granted by this court whereas
appellant "Brijraj" in Criminal Appeal
No.2170 of 1983 is in jail.

8. To abdicate the confrontation with
probable chaos by reason of sameness in
the name of two accused in the factual
matrix, in our discussions we shall address
hereinafter, wherever needed, the accusedappellant Prahlad in Criminal Appeal
No.2170/1983 as Prahlad (of Village
Bhimpur)
and
the
accused-appellant
Prahlad in Criminal Appeal No.2169/1983
as Prahlad (of Village Moora Dih).

(I) Factual Matrix

9. The first informant (P.W.-1) Ishwar
S/o Deu, R/o Village Moora Dih, Police
Station Kotwali, District Deoria gave a
written information in the Police Station
Kotwali, District Deoria on 12.04.1979 at
about 09:30 P.M., under his thumb
impression, about the killing of his nephew
namely "Ramashre Yadav" at about 08:30
P.M. to 08:45 P.M. in the incident of
bombing by accused persons five in
number namely (1) Prahlad (of Village
Bhimpur), (2) Ram Oudh, (3) Prahlad (of
Village Moora Dih), (4) Sudama and (5)
Brijraj on the spot of incident located near
the Railway Station, Deoria in front of
Octroi Outpost (Chungi ghar) where he was
running his pavement shop of lassi and
squash. The informant at the relevant time
of the incident complained of was on his
shop neighbouring to that of his nephew
"Ramashre", talking with his relative
"Bahadur Yadav" (P.W.-2). His nephew
"Ramashre" was making lassi on his shop.
At about 08:30 P.M. to 08:45 P.M., the
above
named
accused
persons
came
together pouncing from the side of the
railway station towards the shop of
Ramashre. Prahlad (of Village Moora Dih)
shouted exhortingly, "this is the man
Ramashre, kill him (मारो साले को)",
persuant thereto Sudama, Prahlad (of
village Bhimpur) and Brijraj made a
simultaneous throw of hand grenades over
Ramashre. The informant and Bahadur
(P.W.-2) raised alarm whereupon Banshi
(P.W.-3) of Village Gosai Ka Chakra,
Police Station Salepur, Hari Yadav of
village Bharwali, Tola Mauwari, Police
Station Kotwali, District Deoria, Ram Ji of
village Moora Dih and numerous other
people rushed to the spot and chased the
fleeing assailants but they ran away passing
through the railway station towards Mal
Godam throwing bombs on the chasing
crowd. The informant's nephew died
instantly on the spot sustaining blast
injuries of bombs. With him one of his
customer also got injured (P.W.-5). The
spot of the incident was illuminated from
the electricity light coming from the
neighbouring
shops.
In
the
written
complaint itself, motive of the accused
persons for killing Ramashre is also set
forth stating that the deceased "Ramashre
Yadav" arraigned and convicted by the
Sessions Court in the charge of murder of
brother of Prahlad (of village Moora Dih)
namely Shyama, was enlarged on bail in
appeal by the High Court. This is why,
Prahlad (of Village Moora Dih) and his
companions hatched enmity with the
deceased "Ramashre Yadav" which led
them to kill him.

10. The first information report was
registered as Case Crime No.132 of 1979,
under Sections 147, 148, 149, 302 and 307
of the Indian Penal Code, 1860, at the
Police Station Kotwali, District Deoria. The
written information dated 12.04.1979 was
reduced into writing by one Suneet Kumar
4 All. Prahlad & Ors. Vs. State of U.P.
1213
on factual narration of the incident by the
first informant "Ishwar". This written
information proved by the first informant
Ishwar as P.W.-1 is Ex. Ka-1, on the basis
of which the first information report was
registered and proved by P.W.-6, the
Investigating Officer which is Ex. Ka-3.

11. The Investigating Officer Anwarul
Aziz, Sub Inspector of Police in Police
Station Kotwali, District Deoria (PW-6)
recorded
the
statement
of
the
first
informant at the police station after
registration of the first information report
and then proceeded to the spot where he
enquired
the
dead
body
in
inquest
proceeding, prepared it's report and other
connected papers. The dead body was
dispatched with constable Vikram Singh
and Bhagirathi for post mortem. On
30.04.1979 at about 0:05 hours, he
recorded the statements of witnesses of
inquest and eye witnesses named in the
complaint viz. Bahadur and Rajvanshi @
Banshi, prepared the site plan, collected the
blood stained soil and simple soil from the
earth of the spot of incident and prepared
the relevant memos. Prosecution proposed
to prove the case before the Court by
witnesses and documents given herein
below in the table for the purpose of easy
reference:-

P.W.-1,
the
informant,
Ishwar
and eye witnesses
Proved the written
complaint
P.W.-2 Bahadur, the
eye witness

P.W.-3
Rajvanshi,
the eye witness

P.W.-4 Dr. M.Jama
Proved Post mortem
report Ex. Ka-2.
P.W.-5 Dwarika Nath
Tiwari,
injured
witness
P.W.-6
Anwarul
Aziz,
the
Investigating Officer
1.
Proved
Chik
Report Ex. Ka-3.

2.
G.D.
entries No.46 Ex.
Ka-4.

3. Inquest
report Ex. Ka-5.

4. Photo of
the dead body Ex.
ka-6.

5.
Letter
sent with dead body
for post mortem Ex.
Ka-7.

6.
Sealed
sample Ex. Ka-8.

7.
Form
No. 33 Ex. Ka-9.

8. Chalan
Dead Body Ex.Ka10.

(as in up
to 12.04.1979)

9.

Site
Map Ex. Ka-11.

10. Sealed
materials from the
spot Ex. Ka-12.

11. Blood
stained
soil
and
simple soil from the
earth of the spot Ex.
Ka-13.

12.
The
residues of blasted
bombs and sealed
samples Ex. Ka-14.

13. Charge
sheet Ex. Ka-15 and
Ex. Ka-16.
P.W.-7
Dr.
J.N.
Thakur
Proved injury report
of
the
injured
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
witness.
Three witnesses in defence
Mahadeo Mishra as
D.W.-1

Anardan Singh as
D.W.-2

Sacchidanand Mani
Tripathi as D.W.-3

(II) Argument of learned counsels
for the appellants

We keeping in mind the present
two appeals being one of the oldest
pendency since long for a period of 40
years, gave an anxious and lengthy hearing
to the learned counsels so as to decide the
matter.

12. Learned senior counsel Sri Brijesh
Sahai, opened the argument impressing on
the fact of the role assigned in the first
information report itself to the accusedappellant Prahlad (of Village Moora Dih) of
exhorting the other accused. He submitted
that this role of exhortation, as usually
seen, is ornamental only to falsely
implicate the said accused for some
otherwise reasons with the other culprits in
the commission of the offence. In the
present
case,
the
purpose
of
false
implication is nothing but to bring the
number of the accused atleast to the
strength of five so as to label charge of
offence under Section 147, 148 and 149 in
aid of other relevant sections of the Indian
Penal Code, 1860. This is why the first
information report is registered Ante-timed.
Eye witnesses are posed to have presence
over the spot of incident on relevant date
and time falsely in fosterage of their enmity
with the accused and relation with the first
informant and the deceased. They are
heavily
interested
witnesses
whose
evidence cannot be accepted for reliance
unless scrutinized thoroughly.

It is argued that the identity of the
accused
allegedly
involved
in
the
commission
of
offence
through
test
identification parade or otherwise is not
established.

The
doubt
in
chronological
sequence of procedural events in the
investigation starting from submitting the
information of the incident to the police,
inquest proceeding, sending the dead body
for the post mortem, the letter sent with
dead body referring post mortem, the
special report, G.D. entry etc. is also
hammered. It is argued that some vital
stages of the proceeding even suffers from
the lack of the details and description of
case crime number, relevant sections of the
Indian Penal Code, 1860. Anomalies as to
the time and date in the paper under
proceedings of the investigation, irregular
way of filling blanks in such papers, all
amply show that the first information report
was registered some time at later stage but
shown as entered promptly in the first
information
report.
As
such,
first
information report being ante timed, has
lost it's value for credence.

Learned senior counsel argued
that no independent eye witness had been
examined by the Investigating Officer, the
scribe of the written report Suneet Kumar
also had not been produced by the
prosecution for examination before the trial
court. Medical evidence does not support
the eye witness account of the incident in
question.

13. Learned counsel Sri Yashwant
Pratap Singh in Criminal Appeal No.2170
of 1983 while putting forth the argument on
behalf of the only surviving appellant
"Brijraj" adopted mostly all the arguments
4 All. Prahlad & Ors. Vs. State of U.P.
1215
made by the learned senior counsel Sri
Brijesh Sahai in Criminal Appeal No.2169
of 1983. In addition, he vehemently
impressed on the false implication of the
appellant Brijraj in collusion with the local
police for the reason of his criminal
antecedents. He further argued that the
accused-appellant was not actually present
on the spot of incident, thus, his alleged
involvement in the commission of the
offence in question is false. The witness
related to the first informant and the
deceased being heavily interested
in
consultation to the police, falsely deposed
with regard to the identity and involvement
of the accused-appellant as participant with
the other co-accused in commission of
killing the deceased/victim of the incident.

Learned counsel has lastly argued
that even the witnesses cannot be held to
have seen the incident and the accused
persons at the relevant time of commission
of the offence in question for the reason of
darkness of the night at about 08:30 P.M. to
08:45 P.M. The Investigating Officer in the
site map prepared by him had not shown
any source of light on or in the vicinity of
the place of incident. The site map prepared
by him is proved in the course of
examination before the Court which is Ex.
Ka-11. He argued that eye witness account
of bombing by four accused is also not
corroborated with the medical evidence of
blast injuries on the dead body which
reports only one blast injury.

All the learned counsels, thus,
linked the falsity of the allegation of
bombing by the accused persons with the
lodging of the first information report ante
timed unless the police had not chosen and
got up the required number of accused
persons. Lastly, they set forth the criminal
character of the deceased himself as
indulged in criminal activities, having
enmity with numerous other rivals in
connection therewith as the reason that he
might
have
been
killed
by
some
anonymous assailants. It is urged that the
informant
being
inimical
with
the
appellants falsely implicated him having
deep interest in seeing him behind the Bars.

(III)
Arguments
of
learned
Additional Government Advocate

14. Learned A.G.A. in reply to the
arguments made by the learned counsels for
the appellants submitted that the first
information
report
had
been
lodged
promptly by the first informant whose
presence on the spot was quite probable
and natural. The sequence of events
happened on the spot of incident at the
relevant date and time at about 08:30 P.M.
to 08:45 P.M. as stated by him (P.W.-1) in
the course of examination before the trial
judge is quite a natural eye witness
account. There is no question of enmity as
argued by the learned counsel for the
appellant Prahlad (of Village Bhimpur)
with the first informant. There is no
suggestion
to
this
effect
in
crossexamination put before the P.W.-1. Time
taken in giving information of the incident
in writing and submitting the same to the
police has been reasonably explained in the
evidence of P.W.-1. There is no suggestion
to the P.W.-1 and P.W.-6 as to the written
information having been changed or
altered. Time of giving the written
information is duly proved. Lodging of the
first information report by the Head
Moharir is proved in his absence, by the
P.W.-6, the Investigating Officer on the
basis of the entries in the General Diary
maintained in the police station for the
purpose. P.W.-6, the Investigating Officer
being acquainted with the hand writing of
the constable clerk (Head Moharir), thus,
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
duly proved the first information report
lodged
promptly
within
naturally
practicable interval of time from the
occurrence of the incident. The argument as
to the enmity is of no avail as it may act
like a two way sword / double edged
weapon. In circumstance of alleged and
proved on evidence even it may be held as
cause for false implication otherwise,
generally it acts as the motive for activating
the offence quite naturally and probably.

Learned A.G.A. submitted that the
judgment of conviction and order of sentence
was correctly passed after due appreciation of
evidence on record and the appeal is liable to
be dismissed. Judgment of conviction and
order of sentence deserves to be affirmed.

15. Before going deep with the merit of
the arguments advanced by the contesting
counsels, material on record as evidence and
the judgment of the trial judge recording the
conviction and sentence, it would be pertinent
and relevant to state about the charges framed
by the learned Additional Sessions Judge,
Deoria against the accused persons in the
trial.

16. The accused Ram Oudh and
Prahlad (of Village Moora Dih) were charged
under Section 147, 302/149 and 324/149 of
the Indian Penal Code, 1860 vide order dated
21.04.1982 passed by VI Additional Session
Judge, Deoria; whereas the accused Prahlad
(of Village Bhimpur) and Brijraj were
charged under Section 148, 302/149, and
324/149 of the Indian Penal Code, 1860 vide
order dated 21.04.1982 passed by VI
Additional Sessions Judge, Deoria.

(IV) Discussions

17. The prosecution has proposed four
witnesses of fact to prove it's case. The
informant Ishwar is P.W.-1, Bahadur is the
eye witness of the incident as P.W.-2,
another eye witness of the incident is P.W.-
3 namely Rajvanshi @ Banshi; Dwarika
Nath Tiwari, the injured witness of the
incident was examined as P.W.-5. The
formal witness in addition to the witness of
the fact have also been produced by the
prosecution for examination before the trial
court: namely, Dr. M. Jama who had done
the autopsy on the dead body of the victim
of the incident "Ramashre Yadav" to prove
post mortem report Ex. Ka-2 as P.W.-4. The
doctor who had done the medico legal
examination of injured in the incident
"Dwarika Nath Tiwari" is Dr. J.N. Thakur
as P.W.-7. Anwarul Aziz, the Investigating
Officer of the Case Crime No.132 of 1979,
under Sections 147, 148, 149, 302 and 307
of the Indian Penal Code, 1860 has been
examined as P.W.-6.

18. P.W.-1, P.W.-2, P.W.-3 and P.W.-5
belong to nearby villages of the place of the
incident situated near Deoria Railway
Station who were alleged to be present at
the spot of the incident in connection with
their routine business or personal causes.
They are rustic villagers. It is also pertinent
to mention here that the examination of the
aforesaid witnesses before the trial judge
was started approximately four years after
the date of the incident. None of them is a
person of high profile or having good
education rather they are uneducated
common villagers grown in day to day life
in milieu of villages, as it comes out from
the statement they deposed before the trial
judge in the course of their examination.

19. In the aforesaid context, before
proceeding to appreciate their evidences,
we think it proper to refer some parameters
laid down by the Courts from time to time
while dealing with the evidences deposed
4 All. Prahlad & Ors. Vs. State of U.P.
1217
by witnesses in general. One of such
judgment of the Apex Court is Bharwada
Bhoginbhai
Hirjibhai
Vs.
State
of
Gujarat1. The relevant para ''5' from the
aforesaid
judgment
is
reproduced
hereunder:-

"(1) By and large a witness
cannot
be
expected
to
possess
a
photographic memory and to recall the
details of an incident. It is not as if a video
tape is replayed on the mental screen.

(2) Ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprised. The mental faculties therefore
cannot be expected to be attuned to absorb
the details.

(3) The powers of observation
differ from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind, whereas it might go
unnoticed on the part of another.

(4) By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape-recorder.

(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess-work on the spur of the
moment at the time of interrogation. And
one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the timesense of individuals which varies from
person to person.

(6) Ordinarily a witness cannot
be expected to recall accurately the
sequence of events which takes place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.

(7) A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing crossexamination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him -- Perhaps it
is a sort of a psychological defence
mechanism activated on the spur of the
moment."

20. In the same context, we further
think it relevant to refer the judgment of the
Apex Court in Shivaji Sahab Rao Bobade
Vs. State of Maharashtra2 which deals the
incident of murder in rural area where the
witnesses to the case were rustic and so
their behavioural pattern perceptive and unperceptive habits have to be judged. The
relevant extracts of the aforesaid judgment
is reproduced hereunder:-

"8. Now to the facts. The scene of
murder is rural, the witnesses to the case
are rustics and so their behavioural pattern
and perceptive habits have to be judged as
such. The too sophisticated approaches
familiar in courts based on unreal
assumptions about human conduct cannot
obviously be applied to those given to the
lethargic ways of our villages. When
scanning the evidence of the various
witnesses we have to inform ourselves that
variances on the fringes, discrepancies in
details, contradictions in narrations and
embellishments in inessential parts cannot
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
militate against the veracity of the core of
the testimony provided there is the impress
of truth and conformity to probability in the
substantial fabric of testimony delivered.
The learned Sessions Judge has at some
length dissected the evidence, spun out
contradictions and unnatural conduct, and
tested with precision the time and sequence
of the events connected with the crime, all
on the touchstone of the medical evidence
and the post-mortem certificate. Certainly,
the court which has seen the witnesses
depose, has a great advantage over the
appellate Judge who reads the recorded
evidence in cold print, and regard must be
had to this advantage enjoyed by the trial
Judge of observing the demeanour and
delivery, of reading the straightforwardness
and doubtful candour, rustic naivete and
clever
equivocation,
manipulated
conformity and ingenious unveracity of
persons who swear to the facts before him.
Nevertheless, where a Judge draws his
conclusions not so much on the directness
or dubiety of the witness while on oath but
upon general probabilities and on expert
evidence, the court of appeal is in as good
a position to assess or arrive at legitimate
conclusions as the Court of first instance.
Nor can we make a fetish of the trial
Judge's psychic insight."

Relations of witnesses with first
informant, deceased and the accused
persons

21. We think that it not to be out of
relevance to state about the mutual relation
of witnesses inter-se and also with the
deceased as well as the accused persons, as
coming out from the deposition before the
trial judge.

22. The first informant Ishwar has
stated in his cross examination made on
behalf of accused-appellant Brijraj and
accused Prahlad (of Village Moora Dih)
that he had two brothers namely Ram Ji
and Chandrika. The deceased in the
incident in question namely "Ramashre
Yadav" was son of aforesaid brother
Chandrika, as such, it is admitted that P.W.-
1 Ishwar is in blood relation with the
deceased being his real uncle. In the same
breath, he further stated about the witness
P.W.-2 "Bahadur" that his sister is married
with the son of P.W.-2 "Bahadur", which
means P.W.-2 "Bahadur" is in relation with
P.W.-1 "Ishwar" as father-in-law of his
sister. Further, he had denied any relation
with P.W.-3 Rajvanshi @ Banshi who has
been examined by the prosecution as eye
witness of the incident in question. So far
as the injured in the incident in question
namely Dwarika Nath Tiwari who has been
examined
as
P.W.-5,
in
his
cross
examination he has stated that he was a
customer, who at the time of the incident
was at the shop of "Ramashre Yadav",
drinking lassi, when bomb blast occurred
and he too got injuries in the same
occurrence.
Though,
P.W.-1
denied
knowing P.W.-5 personally by name but
asserted to have seen him severally to come
at the shop of "Ramashre Yadav" to have
tea or lassi.

23. About the work and profession
of the witnesses - P.W.-1 "Ishwar" stated in
the examination-in-chief that he and
deceased "Ramashre Yadav" were running
their shops of lassi and sharbat separately.
The deceased Ramashre Yadav was running
his shop at a wooden chowki (cot) towards
the South of Octroi office whereas the shop
of sharbat (sweet drink / squash) of P.W.-1
was on a trolley near the shop of Ramashre
Yadav. In the cross examination, this
witness has further clarified that his trolley
of sharbat was towards the East side of the
4 All. Prahlad & Ors. Vs. State of U.P.
1219
shop of deceased "Ramashre Yadav". He
then stated that he used to be with his
trolley shop near the chowki of Ramashre
Yadav in connection with his day to day
business on the spot of incident. Further in
the same continuation, he has stated that
daily upto 11:00 P.M. in the night, his shop
and shop of Ramashre Yadav were used to
remain open. Nothing contrary could be
extracted to the above said facts from the
cross examination of or suggestion to the
said prosecution witnesses.

24. P.W.-2 "Bahadur", in his cross
examination, has stated that he had
received the amount of gratuity from the
sugar mill in Deoria which he possessed
with him on that day. From his statement it
became evident that P.W.-2 was a retired
workman of Deoria Sugar Mill. His age as
disclosed was 70 years on the date when he
was examined before the Court. He was
doing agriculture work in his village
Fatehpur Laheda, Police Station Rudrapur,
District Deoria after his retirement (as
comes out from para 2 of the examinationin-chief). His son, Nanhu was working in
Deoria Sugar Mill and he used to come
Deoria and stay with his son in his quarter.
On the date of the incident, he was in
Deoria with his son and came about 14 to
15 days back. In the cross examination,
P.W.-2 further stated that his son Nanhu
was on duty on the date of the incident
from 10:00 A.M. to 06:00 P.M. This
witness has stated about his sense of
assessing time in clock with the siron
blown from the factory.

25.

Another
witness
(P.W.-3)
Rajvanshi @ Banshi is also an agriculturist,
his place of residence as disclosed by him,
was in village Chakra Gosai under Police
Station Mail, District Deoria. He at the
relevant date and time of the incident came
with his nephew Shiv Avtar who was
studying
in
Village
Barhaj,
as
his
supplementary examination was scheduled
to be held in an examination centre in
District Deoria. As deposed, during his
stay, he used to take his meals at a shop
near the spot of the incident, situated
infront
of
Deoria
Railway
Station
alongwith his nephew and after dinner he
usually take tea in the nearby tea shop. On
the relevant date and time of the incident he
was taking his tea as usual. In his cross
examination, P.W-3 denied any relation
with P.W.-1 "Ishwar" or with anyone else in
the village Moora Dih. He even denied any
relations in the village Bhimpur to which
one of the co-accused Prahlad belongs. In
the cross-examination P.W.-3 has admitted
his relations with deceased "Ramashre
Yadav" as his surety in bail in the criminal
case against him. Further, he also admitted
that whenever he used to come to Deoria in
connection
with
his
case
in
the
Consolidation Court, he took food from the
shop of Vindyachal situated infront of the
Court. Vindyachal was the father-in-law of
the deceased "Ramashre Yadav". P.W.-3
further stated that not only he but his
brother Baldeo was also surety for
Ramashre Yadav in the aforesaid criminal
case and for the reason of his relation with
Vindyachal, he agreed to become surety in
the case against Ramashre Yadav. He had
denied doing pairvi in the criminal case
against Ramashre Yadav on his behalf.

26. P.W.-5 "Dwarika Nath Tiwari" to
whom the P.W.-1 deposed as a customer
stated that whenever he used to be in
Deoria, he came to the shop of Ramashre
Yadav to have tea or lassi. He had stated
that the deceased was not personally known
to him. In examination-in-chief, he stated
his profession being agriculture at his place
of abode in Village Pandeypur, Police
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
Station Laar, Distict Deoria. He was about
53 years old when produced before the
Court. This witness, in his examination-inchief, had stated that he was not aware with
the name of shopkeeper of lassi. Thus, this
witness is quite unrelated with other
witnesses of the case, the deceased and also
the accused persons. He is a witness only
because of the injuries he got on the spot of
the incident during the occurrence of the
incident at the stated time and date.

27.
 From
the
examination
of
witnesses of facts namely P.W.-1, P.W.-2,
P.W.-3 and P.W.-5, it comes out not only
from the examination-in-chief but also
from the cross-examination that they are
rustic villagers, uneducated, men of low
profile, doing agricultural work. P.W.-2
"Bahadur", a retired workman of the Deoria
Sugar Mill is also an agriculturist and
uneducated villager of District Deoria.
Nothing has been extracted contrary to this
status of the witness or suggested to them
by the learned defence counsel. Such
witnesses cannot be expected to possess the
photographic memory and recall details of
the incident mathematically.

Relation of witnesses with accused
persons

28. P.W.-1, the first informant
"Ishwar"
has
stated
in
the
written
complaint
itself
that
his
nephew
"Ramashre" (deceased) was arraigned with
the charge of murder of the brother of
accused "Prahlad" (of village Moora Dih)
namely Shyama and he was convicted. In
appeal before the High Court, he was
enlarged on bail continuing on the date of
incident in question. This is why, the
accused Prahlad and others were hatching
enmity with his nephew and, therefore,
they killed him.

29. The first informant as (P.W.-1)
when produced in the witness box, had
reiterated and asserted in the examinationin-chief
that
deceased
"Ramashre"
murdered Shyama "the brother of the
accused Prahlad (of village Moora Dih)". In
the trial of aforesaid murder case he was
convicted and sentenced but released on
bail and continuing as such at the relevant
time of incident. He has further stated that
the accused persons, Prahlad (of village
Moora Dih) and his other companions were
inimical for this reason with deceased
"Ramashre". He further stated that Prahlad
(of village Bhimpur) and his brother Ram
Oudh were residents of village Bhimpur,
Sudama and Brijraj were their friends. In
the cross-examination, this witness has
further clarified that the criminal case in
which Ramashre was arraigned as accused,
he and his brothers Chandrika and Ram Ji
were
also
made
accused.
In
crossexamination, this witness has further stated
that
the
deceased
"Ramashre"
had
justificably murdered Shyama and was
sentenced correctly, the pairvi of the
Ramashre accused in the murder case of
Shyama was being done by him (P.W.-1).
The witness has further stated that the
accused persons since much before the date
of the incident were looking to kill him
whenever he used to go to attend his fields
in the nights. Before the incident, the
accused tried to kill ''Ramashre' near Kuna
Nala and a report was lodged in connection
therewith against Prahlad (of village Moora
Dih) and his father Bhirgun with one
Hanuman. They also lodged a report
against him.

30. On the complaint of accused
Prahlad's father, Bhirgun (of village Moora
Dih), the P.W.-1, Mohan, Chandrika (father
of the deceased Ramashre and brother of
P.W.-1), Poojan, Ramdhan and Nagina were
4 All. Prahlad & Ors. Vs. State of U.P.
1221
arraigned in a case in Court which was
going on at the time of incident. This
witness
has
admitted
in
the
crossexamination that he and Bhirgun (father of
accused Prahlad of Village Moora Dih)
were in bitter inimical relations for a long
time. He has further asserted in the crossexamination that both the accused persons,
Prahlad (of village Moora Dih) and Prahlad
(of Village Bhimpur) were hatching enmity
against him.

31.