# Prakash (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-17
- **Case number:** Nagar in Sessions Trial No. 382 of 1982
- **Bench:** R.S.R. (Maurya, Umesh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-in-jail-v-state-of-u-p-44565
- **Pages:** 14

## Headnote

A. Indian Penal Code, 1860 - Sections
302 read with Section 34, Section 307
112 INDIAN LAW REPORTS ALLAHABAD SERIES
read with Section 34 IPC - statements of
witnesses under Section 161 Cr.P.C -
charge sheet under Section 302, 307,
504
IPC-
Statements
of
accusedappellants under Section 313 Cr.P.C -
confessions and statements - recorded
under Section 164 - Section 238 of
Cr.P.C. - compliance with section 207
Cr.P.C. - contradict the witnesses under
Section 145 of Evidence Act -convicted
and sentenced for life imprisonment -
Section 437-A, Cr.P.C.- Bail to require
accused to appear before next appellate
court. (Para 4,8,28,31 & 33)

B. Indian Evidence Act, 1872 - mode of
assessing reliability of a witness - material
discrepancies - Court to scrutinise the
testimony more particularly keeping in
consideration the deficiencies, drawbacks
and infirmities pointed out in the evidence.

The Law of Evidence does not require any
particular number of witnesses to be
examined in proof of a given fact. However,
faced with the testimony of a single witness,
the Court may classify the oral testimony
into three categories, namely (1) wholly
reliable (2) wholly unreliable and (3) neither
wholly reliable, nor wholly unreliable. In the
case of first two categories, there may be no
difficulty in accepting or discarding the
testimony
of
the
single
witness.
The
difficulty arises in the third category of the
cases where the Court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial,
before
acting
upon
the
testimony of a single witness or as the case
may be. (Para 19 &20)

C. Code of Criminal Procedure, 1973 -
Section 238 - compliance with section 207
Cr.P.C. - Non supply of copies of documents
such as statement under section 161 Cr.P.C,
Section 154 Cr.P.C , the confessions and
statements, if any, recorded under Section
164, panchayatnama and other relevant
record to the accused, in the case in hand
has caused serious prejudice during trial to
contradict the witnesses under Section 145
of Evidence Act. (Para 28 & 31)

Criminal Appeal allowed (E-7)

## Text

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2 All. Prakash Vs State of U.P.
111
by the accused appellants making the
prosecution version unbelievable and
incredible on any other hypothesis except
that the accused appellants are guilty for
the commission of said crime. The motive
being a state of mind of the accused
persons may not be known to others as to
what was the motive for a particular
offence.The mere fact that the prosecution
failed to translate mental disposition of
the accused appellants into evidence does
not mean that no such mental condition
existed in their mind. The accused
appellants had perpetuated the crime in a
very relentless and devilish manner as the
prosecution has successfully proved the
recovery of screw driver and iron piece
from the possession of the accused
persons which were used in the murder of
Ramesh.

56. On the basis of verbose and
prolix discussions made here in above and
also considering the material evidence on
record, we are of the considered opinion
that findings of conviction for the offence
punishable under Sections 302/34 of the
Indian Penal Code recorded by the Trial
Court are well substantiated by the
evidence on record. The Trial Court has
appreciated the evidence in the right
perspective.
We
don't
find
any
justification to interfere with the findings
of conviction recorded for the offence
punishable under Sections 302/34 of the
Indian
Penal
Code,
therefore,
the
conviction recorded against the accusedappellants under section 302/34 IPC is
hereby maintained and affirmed. The
appeal is accordingly dismissed.

57. The order dated 8/9-7-2014
passed by the Additional District &
Sessions Judge Court No.10, Muzaffar
Nagar in Sessions Trial No. 382 of 1982
(State vs. Sheela @ Sushila and others)
under Sections 302/34 IPC is hereby
affirmed. The accused appellant Sheela is
in jail. The co-accused Irfan is on bail.
His bail bond is hereby cancelled. He be
taken into custody forthwith . They shall
serve out the sentence as awarded by the
learned trial court and affirmed by this
Bench.

58. Let a copy of the judgment be
certified and sent along with the lower
court
record
to
the
court
below
immediately
for
compliance
and
necessary entries be made in the relevant
register.
----------

(2019)10ILR A 111

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2019

BEFORE

THE HON'BLE R.S.R. (MAURYA), J.
THE HON'BLE UMESH KUMAR, J.

Criminal Appeal No. 3609 of 2015
connected with
Criminal Appeal No. 1807 of 2015

Prakash ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Mangala Prasad Rai, Sri Rajiv Lochan
Shukla, Sri Sharangpani Vikramdhar Dw,
Sri Brijesh Sahai, Sri Bhavya Sahai.

Counsel for the Opposite Party:
A.G.A., Sri Avanish Kumar Singh, Sri
Krishna Kumar Singh

A. Indian Penal Code, 1860 - Sections
302 read with Section 34, Section 307
112 INDIAN LAW REPORTS ALLAHABAD SERIES
read with Section 34 IPC - statements of
witnesses under Section 161 Cr.P.C -
charge sheet under Section 302, 307,
504
IPC-
Statements
of
accusedappellants under Section 313 Cr.P.C -
confessions and statements - recorded
under Section 164 - Section 238 of
Cr.P.C. - compliance with section 207
Cr.P.C. - contradict the witnesses under
Section 145 of Evidence Act -convicted
and sentenced for life imprisonment -
Section 437-A, Cr.P.C.- Bail to require
accused to appear before next appellate
court. (Para 4,8,28,31 & 33)

B. Indian Evidence Act, 1872 - mode of
assessing reliability of a witness - material
discrepancies - Court to scrutinise the
testimony more particularly keeping in
consideration the deficiencies, drawbacks
and infirmities pointed out in the evidence.

The Law of Evidence does not require any
particular number of witnesses to be
examined in proof of a given fact. However,
faced with the testimony of a single witness,
the Court may classify the oral testimony
into three categories, namely (1) wholly
reliable (2) wholly unreliable and (3) neither
wholly reliable, nor wholly unreliable. In the
case of first two categories, there may be no
difficulty in accepting or discarding the
testimony
of
the
single
witness.
The
difficulty arises in the third category of the
cases where the Court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial,
before
acting
upon
the
testimony of a single witness or as the case
may be. (Para 19 &20)

C. Code of Criminal Procedure, 1973 -
Section 238 - compliance with section 207
Cr.P.C. - Non supply of copies of documents
such as statement under section 161 Cr.P.C,
Section 154 Cr.P.C , the confessions and
statements, if any, recorded under Section
164, panchayatnama and other relevant
record to the accused, in the case in hand
has caused serious prejudice during trial to
contradict the witnesses under Section 145
of Evidence Act. (Para 28 & 31)

Criminal Appeal allowed (E-7)

(Delivered by Hon'ble Umesh Kumar, J.)

1. These two criminal appeals have
been filed challenging the judgment and
order
dated
30.04.2015
passed
by
Additional Sessions Judge, Court No.3,
Fatehpur in S.T. No. 1185 of 2001 ( State
Vs. Ravi Karan and others) by which the
appellants have been convicted and
sentenced for life imprisonment and a fine
of Rs. 20,000/- each under Sections 302
read with Section 34 IPC and in default to
undergo 2 years R.I., and under Section
307 read with Section 34 IPC, to undergo
7 years R.I. and fine of Rs. 10,000/- each;
and in default to further undergo one year
R.I. All the sentences are directed to run
concurrently. The accused-Bhola died
during trial.

2. P.W.1 Shiv Prasad-informant has
given a written report at Police Station
Kishanpur district, Fatehpur alleging that
in the evening on 16.2.1992 at about 6.00
P.M. some altercation took place between
Moti Lal with Pitai Kumhar of his village;
his son Hira Lal and Awadesh intervened
and brought Moti Lal to the house. Soon
thereafter, Ravi Karan son of Ram Naresh
having Rifle, Prakash armed with DBBL
gun and Bhola having lathi in his hand
came abusing in front of the door of Moti
Lal; Moti Lal asked them not to abuse,
upon hearing the noise, the informant, his
son Suresh Chandra, sister-in-law ( wife
of Babu Lal), wife of Moti Lal, and Chiya
daughter of Moti Lal and Awadhesh
arrived and forbade them not to abuse, on
which, accused Bhola exhorted saying kill
them as their bullying has increased and
now they have started teasing their own
persons;
in
the
meantime,
accused
Prakash and Ravi Karan having Rifle and
2 All. Prakash Vs State of U.P.
113
gun in their hands fired on Moti Lal
which hit on his stomach; the wife of Moti
Lal-Sarla, his daughter Chiya and informant's
son Suresh Chandra and his sister-in-law
received injuries. The accused appellants ran
away from the spot abusing and they could
not be caught hold due to fear. The injured
were sent to hospital for treatment along with
villagers and he has come to lodge first
information report.

3. On the basis of the said
information, chick FIR (Ex.Ka-2) was
prepared and a case under Sections
307/504 IPC at Case Crime No. 30 of
1992 was registered against the accused
namely Ravi Karan, Prakash and Bhola
and relevant entry was made in the G.D.,
but the GD and the said FIR is not
available on record. Subsequently, after
death of injured-Moti Lal on 17.2.1992,
the offence under Section 307/504 IPC
was converted into Section 302 IPC and
relevant entry in the GD regarding
conversion of the case was entered at GD
No. 21 at 5.30 P.M. Dated 17.2.1992.

4. Investigation of case was made by
P.W.6 S.I. Ravi Chandra Mishra. He
recorded the statements of witnesses
under Section 161 Cr.P.C., inspected the
spot, prepared site plan, sent dead body
for post mortem to the District Hospital,
Fatehpur
and
after
completing
investigation
submitted
charge
sheet
under Section 302, 307, 504 IPC.

5. Learned Trial Court framed
charges against the accused-appellants.
Accused-Bhola
was
charged
under
Section 302/34 and section 307/34 IPC.
The accused Ravi Karan and Prakash
were charged under Sections 302/307
IPC. The accused-appellants denied their
guilt and claimed to be tried.

6. The prosecution in support of its
case has examined 8 witnesses. P.W.1
Shiv Prasad is the informant, P.W.2 Sarla
Devi-injured witness, P.W.3 Jhallu Prasad
Misra-Head Constable, P.W.4 Dr. Bharat
Namdeo who conducted post mortem,
P.W.5
Dr.
Devendra
Kumar
who
examined and prepared injuries reports of
Chiya, Suresh and Phulmati w/o Babu
Lal, P.W.6 Ravindra Mishra, I.O., P.W.7
Subhash Chandra Singh-Pharmacist and
P.W.8 Chiya.

7. Here, it is note worthy that entire
prosecution documents were lost before
committal of the case and was reconstructed under the orders of the then
District
Judge,
Fatehpur.
After
reconstruction of the documents such as
nakal tahrir (Ex.Ka.2), G.D (Ex.Ka.3),
post mortem report (Ex.Ka.4), injury
reports of Phulmati (Ex.Ka.5), injury
report of Chiya (Ex.Ka.6) and Suresh
(Ex.Ka.7), the case was committed to the
Court of Sessions on 20.12.2001 by
Judicial Magistrate, Khaga, Fatehpur
which was registered as S.T. No. 1185 of
2001( State Vs. Ravi Karan and others)

8. Statements of accused-appellants
under Section 313 Cr.P.C. was recorded
thrice; Firstly on 4.11.2009, after the
examination of prosecution witnesses 1 to
6. They denied the prosecution allegation
and stated that evidence against them
have been led on the basis of forged
document;
they
have
been
falsely
implicated. The accused Ravi Karan has
further stated that under the influence of
enemies, entire prosecution story has been
concocted and false evidence has been led
in the case. He has also taken plea of
alibi. The prosecution on 20.7.2013 again
produced P.W.7 and P.W.8. The accused
Prakash denied the evidence against him
114 INDIAN LAW REPORTS ALLAHABAD SERIES
and claimed to be innocent; he asserted
that unknown dacoits during course of
commission of dacoity have caused death
of Moti Lal and he has been falsely
implicated in the case in collusion with
local police. Simultaneously, accused
Ravi Karan has also made similar
statement. Thirdly, statement of accusedPrakash and Ravi Karan under Section
313 Cr.P.C. was recorded on 19.10.2013
after filing of FSL report (Ex.Ka.8). The
accused said that they do not know about
the report. The extract of medico legal
report Register page No. 47 injury report
of Sarla Devi dated 17.2.1992 has been
filed by P.W.7 who stated that this report
has not been prepared before him.
Moreover, he stated that he cannot tell by
whom this report was prepared.

9. In the autopsy report, following
injuries were found on the body of
deceased;

1. Fire arm wound of entry 8 cm
x 5 cm x cavity deep over left iliac fossae
of abdomen 5 cm. to A.S. aliac spinal.
Blackening present. Direction from right
to left and little upward. Blackening
present. Liver and intestine loops coming
out of
wound and
wadding piece
recovered from muscle.

2. Fire arm wound of entry 8
cm. x 4 cm. bone deep over right leg
middle part anterior surface. Tibia and
fibula bones fractured into multiple
pieces. No blackening and tattooing.
Three small pellets recovered. Seven
small pellets recovered from abdominal
cavity.

3. Multiple fire arm wound of
entry in an area of 15 cm. x 6 cm. x 0.1
cm. over left thigh postero-lateral surface
upper part. No blacking and tattooing.
Two small pellets recovered from wound
cavity.

4. Multiple fire arm wounds of
entry in an area of 7 cm. x 3 cm. over left
leg lower part lateral surface. No
blackening or tattooing. One small pellet
recovered from wound.

10. Photo copies of the injury
reports of injured Phulmati, Chiya and
Suresh are not much visible and therefore,
relevant extract from the statement of the
doctor is quoted here in below;

Jherh Qwyerh

pksV ua0&1 QVk gqvk ?kko 05 lseh x
fLdu Mhi tks fd vxzckgq ij lkeus dh vksj
fjLV tksM+ ls 3-5 lseh mij FkkA ykfyek ;qDr
[kwu dk FkDdk yxk FkkA \ pksV ua0&2 QVk
gqvk ?kko 0-5 lseh x 0-5 lseh x Ropk dh
xgjkbZ rd tks fd nkfguh fupys vxzckgq ij
lkeus dh vksj 6-5 lseh nkfguh fjLV ykbu ls
mij FkkA rFkk ykfyek ;qDr [kwu dk FkDdk
yxk FkkA

fp;k

pksV & QVk gqvk ?kko 1 lseh x 1 lseh x
ekal rd xgjk tks fd nkfguh tka?k ds lkeus
dh vksj rFkk ?kqVus ds tksM+ ls 8 lseh mij
vUnj dh rjQA ?kko ds vUnj dksbZ oLrq ?kqalh
gq;h izrhr gks jgh FkhA ?kko vfu;fer Fkk rFkk
og oLrq tks ?kko esa /kalh gq;h og ?kko ls 1
lseh vkxs FkhA ?kko esa dkfyek ekStwn FkhA ?kko
ls ykfyek ;qDr inkFkZ fjl jgk FkkA pksV dks
,Dl js dh lykg nh x;h FkhA

esjh jk; esa ;g pksV lk/kkj.k Fkh vkSj
vXus;kL= }kjk igqapkbZ x;h FkhA pksV 3@4 fnu
iqjkuh FkhA ;g pksV Hkh fnukad 16-02-92 dks 600 cts lka; dks vkuk lEHko gSA

lqjs'k
2 All. Prakash Vs State of U.P.
115

pksV & QVk gqvk ?kko 4 lseh x 1 lseh x
ekal rd xgjk tks fd nkfguh Nkrh esa lkeus
dh vksj 5-5 lseh nkfguh fuIiy ls nwj FkkA bl
pksV ls [kwu fjl jgk Fkk rFkk ?kko ds fdukjs
vfu;af=r FksA?kko ds fdukjs dkfyek ;qDr FksA
pksV ds ,Dl js dh lykg nh x;h FkhA pksV dks
fuxjkuh es j[kk x;k FkkA

11. We have heard Sri Brijesh Sahai,
learned Senior Counsel assisted by Sri
Bhavya Sahai for appellant-Prakash and
Sri Mangala Prasad Rai, learned Senior
Counsel assisted by Sri Ashok Kumar for
appellant- Ravi Karan, Sri Anil Kumar
Kushwaha for informant and the learned
AGA on behalf of State and have perused
the record.

12. Learned Counsel for the
appellants argued that entire proceeding
of trial is based on illegal evidence
adduced by the prosecution; allegations of
prosecution even if assumed to be true, in
committing the said offence, no role has
been assigned to the appellant. Learned
Counsel appearing for appellant- Ravi
Karan has raised argument that no role
has been assigned; the appellant has been
said to be armed with Rifle, where as no
rifle injury was found either on the body
of deceased-Moti Lal or any of the
injured, and this indicates that in the
commission of offence, appellant was not
involved; only on the statement in chief of
the witnesses, conviction has been based
and not on the totality of the evidence
adduced by prosecution; it was the
categorical averment of the witnesses that
they are not in a position to say by whom
exhibited documents were prepared but
even then the exhibited papers were relied
upon by the Trial Court; merely saying
that when these papers were being
reconstructed, no objection was made by
the defence, whereas the fact remains that
while
documents/papers
were
being
exhibited, serious objection was raised by
defence counsel which is apparent by
perusal of oral evidence of the witnesses.
These facts have also been asserted in
their
statements
under
Section
313
Cr.P.C. It was further argued by learned
Counsel for the appellant that prior to
committal, copies of relevant documents
viz statement under Section 161 and other
relevant documents were never provided
to the accused and therefore, they failed to
controvert the witnesses during trial and
this major defect of the prosecution,
affects the principle of just and fair trial
rendering the entire prosecution case
under shadow of doubt, besides causing
prejudice and thus, the appellants are
entitled for acquittal giving benefit of
doubt.

13. Per contra, learned AGA and Sri
Anil Kumar Kushwaha, learned Counsel
for informant opposed the submissions
made
by
learned
Counsel
for
the
appellants;
supported
the
impugned
judgment and order by saying that the
learned Trial Judge has passed a detail
and
reasoned
order
believing
the
testimony of prosecution witnesses, there
is no illegality or infirmity and thus, the
appeal is liable to be dismissed.

14. P.W.1 Shiv Prasad scribe of the
first information report has stated that on
16.2.1992, an altercation took place
between Moti Lal and Pitai Kumhar; his
son Hira Lal and Awadhesh brought Moti
Lal home. Then about 20 minutes later,
Bhola having Lathi, Prakash armed with
DBBL gun and Ravi Karan armed with
Rifle were seen going towards the house
of Moti Lal; they were exhorting "bldh
xqUMbZ c< xbZ gS] ;g vius vknfe;ks dks Hkh lrkus
yxk gS bls tku ls ekj nsxsA" He followed
116 INDIAN LAW REPORTS ALLAHABAD SERIES
them; the above accused reached at the
door of Moti Lal, upon which Moti Lal
told that why they were abusing and
exhorting; hearing noise, the wife of Moti
Lal Sarla, his daughter Chiya, wife of
Babu Lal-Phulmati and his son Suresh
and Awadhesh arrived there. Bhola
exhorted to kill Moti Lal on which,
accused Ravi Karan and Prakash started
firing; his son Suresh received injuries on
his chest, his sister-in-law Sarla received
injuries in her thigh, Chiya and wife of
Babu Lal namely Phulmati received pellet
injuries and Moti Lal received injuries in
the stomach and leg. The accused fled
away from the spot after committing the
offence. In examination-in-chief, this
witness stated that Moti Lal fell down and
when he was rescuing/lifting Moti Lal,
the S.P. Guru Darshan Singh and police
personal came and took Moti Lal to
Dariyapur police outpost; his sister-in-law
Sarla
was
also
with
them.
From
Dariyapur, they went to Vijaipur police
outpost
where
he
wrote
the
first
information report. His brother Babu Lal
took Moti Lal and Sarla both injured to
the District Hospital, Fatehpur. Other
injured were examined on the next day at
Vijaipur hospital. He further stated that
Moti Lal expired on 16.2.1992 while he
was in the way to Dariyapur and he has
given written report on the same day at
9.00 P.M. in the night at police outpost
Vijaipur; from Vijaipur he never went to
police station, Kishunpur. Re-constructed
first information report ( Ex. Ka-1) was
read over to him which he accepted to
have given at the police outpost. This
exhibit was objected by the defence
Counsel, but the objection was rejected by
the Trial Judge. In the statement in Court,
he explained that Moti Lal received
injuries in his stomach and leg. In chief,
this witness has stated that police never
interrogated him at any point of time
during
investigation,
though
in
his
statement he stated that he reached on the
spot just from behind the accused persons,
but this fact has not been described in the
first information report. In his cross
examination, he stated that he was just
behind 10 steps from the accused and
when he was watching the incident, he
was not stand still but was moving 2-3
steps here and there. This statement of the
witness that he saw the entire incident
from
behind
the
accused
is
not
corroborated by the site plan available on
record where place ''A' has been shown as
the place from where Suresh, Shiv Prasad,
Phulmati
came
out
and
saw
the
occurrence and they sustained injuries. It
is admitted that in the incident, Shiv
Prasad has ever received any injury. His
presence on the spot becomes doubtful
according to the site plan and the version
of first information report, he has shown
himself to be present on the spot behind
the accused. He stated that he cannot tell
how many shots were fired and which
shot was fired by which of the accused as
the firing was being made at some
intervals; when firing was being made, he
was behind 2-3 steps, his daughter was at
distance of 4 steps south to him, wife was
towards west at a distance of 2-3 steps.
Phulmati was at a distance of about 10
steps towards western side of deceasedMoti Lal and Suresh was 5 steps towards
south west from deceased. They received
injuries. The mode and manner of assault,
as has been stated by P.W.1, is not only
contrary to the statement of P.W.2 an
injured witness, but is also not supported
by the site plan available on record. Even
the presence of other person as stated by
this witness is contrary to the statements
of other witnesses, whereas this witness
stated that on shouting of Bhola, wife of
2 All. Prakash Vs State of U.P.
117
Moti
Lal,
his
daughter
Chiya,
Phulmati(wife of Babu Lal) and Suresh
reached on the spot.

15. P.W.2 stated that she and her
husband were sitting on a bench outside
the house, whereas P.W.8-Chiya injured
stated that she was playing in front of
house; her father was sitting with Suresh
and was discussing something when the
accused came and exhorted. How all
injured and P.W.1 reached on the spot, in
the statements of P.W. 1, P.W.2, P.W.8
are not corroborating each other so as to
place
reliance
on
their
statements.
Though, it has been asserted by P.W.1
and P.W.2 that pellets hits wall and
window
of
Babu
Lal,
but
during
investigation, neither any pellet has been
recovered by the Investigating Officer nor
any such recovery memo was prepared
during investigation. P.W.1 in his cross
examination, has stated that accused
Prakash and Ravi Karan were firing from
one place. He did not remember that in
which leg and where Moti Lal-deceased
received injuries; he cannot say that
whose fire hit the leg of Moti Lal, though
he admitted that after this injury in the
leg, Moti Lal fell down. He cannot say
that whether it was first or the second fire,
but it might be third or fourth fire, but
which shot hit, he did not count. He stated
that daughter Chiya and sister]-in-law
started running towards the house of Moti
Lal. He stated that although he is a license
holder of 12 gun, but he is not in a
position to explain the difference of shots
between rifle and 12 bore gun. The injury
of stomach sustained by the deceased, has
not been explained by any of the
witnesses in their statements.

16. P.W.2- Sarla in her chief stated
same version in support of the first
information report and stated that in the
said occurrence of firing made by Ravi
Karan and Prakash, her husband, she
herself, daughter Chiya and Phulmati
received injuries, whereas P.W.1 stated
that first information report was written
by him at Vijaipur police outpost, but this
witness in her chief states that his brotherin-law Shiv Prasad wrote this paper at
home
and
went
to
Police
Station
Kishunpur, which is totally contrary to the
statement of P.W.1. She stated that her
husband Moti Lal died before reaching
Fatehpur, Hospital. She stated that at the
time of occurrence, she along with her
husband were sitting on a Bench facing
south; when the accused were firing, she
saw Shiv Prasad, Chiya and Phulmati
were also there. She did not count number
of shots, but 7-8 shots were fired. She had
seen gun and rifle from before the
incident.
She
stated
that
without
watching, only on sound, she can identify
whether shots were fired from gun or by
rifle. She categorically stated that first fire
was made by gun which missed the target
and she and her husband did not run
towards house but moved 10 steps
towards field and she was 2-3 steps
behind her husband. Second shot was
fired by rifle which also did not hit any
one; none tried to escape even after said
firing; Chiya, Phulmati and Suresh also
did not run away; the first and second shot
did not hit any one and pellets entered in
the wall and window of Babu Lal, but
third fire of rifle hit the leg of her
husband,she was 4 steps towards north
from the place where her husband was
standing. This fact is not corroborated by
the evidence available on record and also
by the site plan. The third fire was made
by rifle which hit right leg of her husband
and that time, she was one step away from
her husband. Even after receiving injury,
118 INDIAN LAW REPORTS ALLAHABAD SERIES
neither her husband fell down nor he sat,
but was still in standing position. She
stated that fourth fire by gun hit her but
what injury was sustained by her, has not
been explained in the entire testimony and
not the husband and at that time, daughter
Chiya was towards west, Phulmati was
towards north and Suresh was towards
southern side. She stated that the shot
which hit her was made from four
furlongs from south eastern side. On
query made by the Court, she stated that
one furlong is equal to one hand and if it
is so, injuries shown in the injury report
(Ex.Ka-7) is not corroborated. She stated
that fifth shot was fired by Prakash from
gun which hit Suresh and Phulmati and
firing was made from same place from
where 4th shot was made; she further
stated that sixth shot was fired by Prakash
from gun which hit Chiya. P.W.2 stated
that P.W.1-informant accompanied her
from village to Fatehpur all time, whereas
P.W.1 has stated that he sent Moti Lal and
her sister-in-law(Sarla) along with his
brother Babu Lal to District Hospital,
Fatehpur and he went to police out post to
lodge report. The mode and manner stated
by this witness and the injuries received
during commission of offence, is not
corroborated
by
medical
evidence
available on record. This witness also
stated that she and other injured witnesses
went to the police station, which creates
doubt and her statement badly damages
the prosecution version.

17. It is significant to note that there
is no inquest report available on record.
P.W.2 has stated that inquest was
prepared at 7.00 P.M. on the day of
occurrence where police Inspector was
present and her jeth Shiv Prasad was also
present there. It is also strengthen by the
statement of P.W.1 Shiv Prasad that Moti
Lal expired on 16.2.1992 while in the way
to police outpost, Dariyapur.

18. P.W.8-Chiya in chief has stated
that at the time of occurrence, she, her
father, mother Sarla Devi, Suresh and
Phulmati were present on the spot and
Ravi Karan armed with rifle, Prakash
armed with DBBL gun and Bhola armed
with Lathi came and they assaulted her
father,
mother,Phulmati,
Suresh
and
Chiya by firing from their weapons and
her father after receiving injuries fell
down They went to Vijaipur hospital, but
doctor was not available there, so her
father Shiv Prasad and Sarla went to
Sadar Hospital. They were examined on
the next day at Vijaipur Hospital. Her
father expired on the next day in Sadar
Hospital, Fatehpur due to injuries caused
by the accused. The Investigating Officer
of the case recorded her statement during
investigation. The statement of this
witness that her father expired next day in
Sadar Hospital, Fatehpur is contrary to the
statement of P.W.2 (Sarla Devi), where
she stated that they reached Sadar
Hospital, Fatehpur at about 12.00 in the
night and when reached to the hospital,
her husband expired, the fact remains that
at one place she stated that her husband
expired at 7.00 PM on the same day and
inquest was prepared by the Investigating
Officer. Exactly when Moti Lal-deceased
expired is not clearly stated by any of the
witnesses, hence the time of death of
deceased is not ascertainable from the
statement of so called eye witnesses, more
so in the absence of inquest report on
record. In her examination in chief, she
stated that she, her mother,father, Suresh
and Phulmati were present in front of
house just prior to the occurrence,
whereas in cross examination, she has
stated that when assailants came in front
2 All. Prakash Vs State of U.P.
119
of her house, her mother-Sarla was in the
house and she was playing outside the
door; her father and Suresh were there.
She has stated that she cannot say that
how many fires were made on her father;
she cannot say how many shots were
fired. However, this witness has admitted
the fact that the Investigating Officer has
recorded her statement and the statements
of Phulmati and Suresh also, but she has
not answered any question properly and
deposed that she has forgotten every thing
regarding incident. On careful scrutiny of
the testimony of this witness, we are of
the opinion that she is not wholly reliable
and trustworthy. The statements of these
witnesses comes within the purview of
partly reliable and partly not reliable,
hence in totality, it would not be safe to
record conviction on the testimonies of
these witnesses.

19. The mode of assessing reliability
of a witness has been explained time and
again by the Apex Court that certain factors
are to be kept in mind while assessing the
testimony of a witness. The Law of
Evidence does not require any particular
number of witnesses to be examined in
proof of a given fact. However, faced with
the testimony of a single witness, the Court
may classify the oral testimony into three
categories, namely (1) wholly reliable (2)
wholly unreliable and (3) neither wholly
reliable, nor wholly unreliable. In the case
of first two categories, there may be no
difficulty in accepting or discarding the
testimony of the single witness. The
difficulty arises in the third category of the
cases where the Court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial, before acting upon the
testimony of a single witness or as the case
may be.

20. The material discrepancies are
those which are not normal, and not
expected of a normal person. While
appreciating the testimony of a witness,
approach of the Court must be as to
whether the evidence of witness after
perusal appears to have line of credibility
and once that impression is formed, it will
be necessary for the Court to scrutinise
the testimony more particularly keeping
in
consideration
the
deficiencies,
drawbacks and infirmities pointed out in
the evidence and to evaluate the same to
arrive at a conclusion whether it is against
general tenor or it is shaken so as to
render it unworthy of belief. It is relevant
to mention that other injured witnesses
Suresh and Phulmati have not been
examined by the prosecution.

21. P.W.3 Head Moharrir is formal
witness who has executed chick FIR of
the case., Though original chick has been
lost, but he proved this document, which
has been objected by the defence counsel.
This witness has admitted the fact that
original (Ex.Ka.3) is not before him nor
available in the S.P. office, and he did not
know who prepared (Ex.Ka.3); GD in
respect to institution of case is not on
record, hence he is not in a position to
explain whether any chitthi majroobi was
prepared or not. He stated that the case
was investigated by SHO, R.C. Mishra.
This witness has stated that he has taken
blood stained clothes of injured in his
possession at the time of preparation of
chick FIR, fard was prepared and after
getting it sealed was kept in Malkhana,
but no such memo of recovery is available
on record, nor has been exhibited. Hence,
reliability of this assertion is meaning
less, specially when P.W.2 in her
statement has stated that she wore blood
stained sari having wholes of pellets for
120 INDIAN LAW REPORTS ALLAHABAD SERIES
about 7-8 days and none had taken the
same from her. Therefore, this witness
also is not reliable and trustworthy.

22. P.W.4 Dr. Bharat Namdeo
conducted autopsy of the body of
deceased Moti Lal on 18.2.1992 at 3.30
P.M. From perusal of post mortem report
it transpires that injuries caused to the
deceased was of gun fire and not by rifle
as pellets and wadding were found and
thus, it is clear that his injuries would not
have been caused by rifle. In his
statement, the doctor has given vague
reply by saying that the all four injuries
on the body of deceased might have been
caused minimum by two shots or
maximum by four shots.

23. P.W.5 Dr. Devendra Kumar
examined injured Phulmati, Chiya and
Suresh brought by constable Brijraj
Chaubey on 17.2.1992 at 4.25 PM and he
has opined the injuries to be simple
caused by fire arm. He has stated that he
cannot tell about the distance from which
the injuries were caused. He also stated
that he cannot ascertain as to from which
of the fire arm, these injuries were caused.

24. P.W.6 Ravi Chandra Mishra,
Investigated the case and submitted
charge sheet. He stated that as there is no
prosecution documents, he is unable to
described about the steps taken during
investigation. He disown his signature on
the photo copy of site plan available on
record and also stated that he did not
remember who has put signature on it. In
cross examination, he stated that what the
witnesses had stated, he cannot tell in
absence of case diary. This witness was
recalled and this time, he stated to have
investigated case crime no. 30 of 1992
under Section 302,307,504 IPC, P.S.
Kishunpur and submitted charge sheet
against accused Ravi Karan, Prakash and
Bhola, but today, neither original nor
photo copy of the charge sheet is
available before him. Although, this
witness has admitted to have recorded
statements
of
witnesses
during
investigation, but no statement recorded
under Section 161 Cr.P.C is available on
record. In this reference, argument of
learned Counsel for the appellants that
prior to committal, copies of the relevant
documents such as statements under
Section 161 Cr.P.C. were not provided to
the accused, hence, they failed to
controvert the witnesses during trial under
Section 145 of Indian Evidence Act, has
substance.

25. P.W.7 Subhash Chandra Singh-
Phamacist stated in his statement that
medico legal register dated 1.1.92 to
31.3.1992 is with me in which injuries
received by Sarla Devi is noted who was
examined on 17.2.1992 at 1.10 A.M. This
witness has stated that at the time of
examination, he was not present and thus,
he cannot tell who had prepared it.

26. In the present case, although the
accused were charged under Sections
302/307, but both the accused are
convicted with the aid of Section 34 IPC
without assigning any reason and no
stress has been laid down by learned
AGA on the point.

27. On the aforesaid facts and
circumstances of the case, we gave our
thoughtful consideration to remand the
case back for fresh trial but remanding
back case to the Trial Judge at this stage,
will never be proper and justified after
lapse of 27 years for the reason that
reconstruction of those documents/records
2 All. Prakash Vs State of U.P.
121
is impossible now and thus, initiation of
fresh trial today will never meet the ends
of justice.

28. Non supply of copies of
documents such as statement under section
161 Cr.P.C, panchayatnama and other
relevant record to the accused, in the case in
hand has caused serious prejudice during
trial to contradict the witnesses under
Section 145 of Evidence Act. It will not be
out of reference to note that an omission to
comply with section 207 Cr. P.C. read with
section 238 Cr. P.C. is bound to cause a
serious prejudice to the accused. It is
obligatory for the Trial Magistrate to ensure
supply of copies of the relevant documents
upon which the prosecution intends to rely
upon during trial. The Hon'ble Apex Court
held that it was incumbent upon the trial
court to supply the copies of these
documents
to
the
accused
as
that
entitlement was a facet of just, fair and
transparent
investigation/trial
and
constituted an inalienable attribute of the
process of a fair trial which Article 21 of the
Constitution guarantees to every accused.
We would like to reproduce the following
portion of the said judgment discussing this
aspect: "21.The issue that has emerged
before us is, therefore, somewhat larger than
what has been projected by the State and
what has been dealt with by the High Court.
The question arising would no longer be
one of compliance or non-compliance with
the provisions of Section 207 Cr.P.C. and
would travel beyond the confines of the
strict language of the provisions of Cr.P.C.
and touch upon the larger doctrine of a free
and fair trial that has been painstakingly
built up by the courts on a purposive
interpretation
of
Article
21
of
the
Constitution. It is not the stage of making of
the request; the efflux of time that has
occurred or the prior conduct of the accused
that is material. What is of significance is if
in a given situation the accused comes to the
court
contending
that
some
papers
forwarded to the court by the investigating
agency have not been exhibited by the
prosecution as the same favours the accused
the court must concede a right to the
accused to have an access to the said
documents, if so claimed. This, according to
us, is the core issue in the case which must
be answered affirmatively. In this regard,
we would like to be specific in saying that
we find it difficult to agree with the view
taken by the High Court that the accused
must be made to await the conclusion of the
trial to test the plea of prejudice that he may
have raised. Such a plea must be answered
at the earliest and certainly before the
conclusion of the trial, even though it may
be raised by the accused belatedly. This is
how the scales of justice in our criminal
jurisprudence have to be balanced. (This
was observed in Manjeet Singh Khera
Versus State of Maharashtra,SPECIAL
LEAVE
PETITION
(CRIMINAL)
NO.5897 OF 2013. Also see V.K. Sasikala
v. State Represented by Superintendent of
Police (2012) 9 SCC 771).

29. In para-33 of the impugned
judgment, although injuries sustained by Sarla
Devi is mentioned, but the facts remain that
wrongly, injuries sustained by Phulmati has
been mentioned in the name of Sarla Devi.

30. The accused is entitled to get copy
of police report and other documents and in
this respect, provisions of Section 207 are
necessary to be quoted here in below;

Section 207 in The Code Of
Criminal Procedure, 1973

207. Supply to the accused of
copy
of
police
report
and
other
122 INDIAN LAW REPORTS ALLAHABAD SERIES
documents. In any case where the
proceeding has been instituted on a police
report, the Magistrate shall without delay
furnish to the accused, free of cost, a copy
of each of the following:-

(i)the police report;

(ii)the first information report
recorded under section 154;

(iii)the
statements
record.ed
under sub- section (3) of section 161 of all
persons whom the prosecution proposes
to examine as its witnesses, excluding
therefrom any part in regard to which a
request for such exclusion has been made
by the police officer under sub- section
(6) of section 173;

(iv)the
confessions
and
statements, if any, recorded under section
164;

(v)any
other
document
or
relevant extract thereof forwarded to the
Magistrate with the police report under
sub- section (5) of section 173: Provided
that the Magistrate may, after perusing
any such part of a statement as is referred
to in clause (iii) and considering the
reasons given by the police officer for the
request, direct that a copy of that part of
the statement or of such portion thereof as
the Magistrate thinks proper, shall be
furnished to the accused: Provided
further that if the Magistrate is satisfied
that any document referred to in clause
(v) is voluminous, he shall, instead of
furnishing the accused with a copy
thereof, direct that he will only be
allowed to inspect it either personally or
through pleader in Court.

Section 208 in The Code Of
Criminal Procedure, 1973

208.
Supply
of
copies
of
statements and documents to accused in
other cases triable by Court of Session.
Where, in a case instituted otherwise than
on a police report, it appears to the
Magistrate issuing process under section
204 that the offence is triable exclusively
by the Court of Session, the Magistrate
shall without delay furnish to the accused,
free of cost, a copy of each of the
following:-

(i) the statements recorded
under section 200 or section 202, of all
persons examined by the Magistrate;

(ii)the
statements
and
confessions, if any, recorded under
section 161 or section 164;

(iii)any
documents
produced
before the Magistrate on which the
prosecution proposes to rely: Provided
that if the Magistrate is satisfied that any
such document is voluminous, he shall,
instead of furnishing the accused with a
copy thereof, direct that he will only be
allowed to inspect it either personally or
through pleader in Court.

31.