# Pratap Singh & Ors. (In Jail) v. State of U.P. 246 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 9 ILRA 245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** Criminal Appeal No. 5013 of 2012
- **Bench:** Munishwar Nath Bhandari, A.C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pratap-singh-ors-in-jail-v-state-of-u-p-246-indian-law-reports-allahabad-series-47567
- **Pages:** 24

## Headnote

law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Section 302 read with Section 34 - The
Code of criminal procedure, 1973 - Section
161,313 - right under Section 313 of the
Code is very valuable right of the accused,
where he can say whatever he has to in
his defence - It is open there for the
accused to show, particularly, the reason
for a mala fide or false implication, which
can then be established by entering
defence and leading evidence - motive is
not very relevant in a case of direct
evidence, where a dependable ocular
version is available. (Para - 17,68)

Informant's son, and another - applied for
Shiksha Mitra - selected - animosity on score
against the informant's son - riding a tonga -
intercepted and waylaid by four appellants -
came along riding a tractor - forced down the
informant's son from the carriage - saying that
"Lets make him into a Shiksha Mitra" - dragged
by the appellants through a distance, abusing
him - thrown in front of the tractor - run over
and crushed the informant's son to death under
the wheels of the tractor - PW-2 (Uncle of
deceased ) and PW-3 (another uncle of
deceased) besides the PW-4 (driver) of the
carriage, witnessed the incident (eye witness) -
informant proceeded to the spot - seen his son's
dead body lying in situ .(Para - 2 )

HELD:- Evidence of eye-witnesses is clear,
consistent and specific. It has not been shaken
in any manner, during cross-examination of the
three prosecution witnesses . Have clearly
established beyond all reasonable doubt, the
place, manner and the time of occurrence;
particularly, the fact that it was the appellants
alone, who acting in furtherance of a common
intention, committed a premeditated murder,
eliminating the deceased. Opportunity was
amply afforded to the appellants under Section
313 of the Code, but not availed. Prosecution
established the charge beyond all reasonable
doubt and there is no warrant for us to interfere
with the impugned judgment. (Para - 66,68,69)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,956 of 81,715. This is a partial read: ask again with offset=39956 for what follows._

9 All. Pratap Singh & Ors. Vs. State of U.P.
245
A denial of the prosecution case coupled
with absence of any explanation was held
to be inconsistent with the innocence of the
accused, but consistent with the hypothesis
that the appellant was a prime accused in
the commission of murder of his wife.

17. In Dnyaneshwar vs. State of
Maharashtra [(2007) 10 SCC 445], the
Hon'ble Court observed that since the deceased
was murdered in her matrimonial home and the
appellant had not set up a case that the offence
was committed by somebody else or that there
was a possibility of an outsider committing the
offence, it was for the husband to explain the
grounds for the unnatural death of his wife.

18. The law, therefore, is quite wellsettled that the burden of proving the guilt of an
accused is on the prosecution, but there may be
certain facts pertaining to a crime that can be
known only to the accused or are virtually
impossible for the prosecution to prove. These
facts need to be explained by the accused and if
he does not do so, it is a strong circumstance
pointing out to his guilt based on those facts.

19. In the present case in hand, it was
duty of appellant-husband to offer plausible and
cogent explanation regarding the circumstances
under which the occurrence took place because
factum of death of the deceased was 'especially'
within the knowledge of the appellant-husband.
But, he failed to do so and on account of this
reason, the trial court came to the conclusion
that on the basis of evidence available on record
it is undisputedly proved that deceased died in
her matrimonial home, rather in the room of
accused and it was unnatural death. Learned
trial court observed that Dr.Manoj Kumar Ekka
(PW4) is independent witness and his evidence
is most relevant. It is clear from medical
evidence that deceased died by creating the
pressure on her neck and it was given the colour
of suicide by hanging.

20. Learned trial court also opined that the
injury found on the neck of the deceased was
not the result of abrasion by cloth, but it was the
result by giving pressure on her neck, resulting
her death. Learned trial court found the offence
of the appellant under Section 304 (2) IPC,
which needs no interference because this Court
is also of definite opinion that on the basis of
evidence available on record and surrounding
circumstances of this case, the trial court rightly
reached to the conclusion of the guilt of the
appellant under Section 304(2) IPC and rightly
convicted him, accordingly. But so far as the
quantum of sentence is concerned, keeping in
view the totality of circumstances, this Court
finds it proper to reduce the sentence up to
seven years, which will be sufficient to meet the
ends of justice.

21. Hence, this appeal is liable to be
dismissed with the modification of sentence, as
above.

22. The appeal is dismissed, accordingly,
with the modification of sentence.

23. Let a copy of this judgment be sent to
court-below for necessary information to jail
authorities.
----------

(2021)09ILR A245
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No. 5013 of 2012

Pratap Singh & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Apul Misra, Sri Noor Mohammad, Sri
Shivam Yadav

Counsel for the Respondent:
A.G.A., Sri Ram Babu Sharma

(A)
Criminal
law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Section 302 read with Section 34 - The
Code of criminal procedure, 1973 - Section
161,313 - right under Section 313 of the
Code is very valuable right of the accused,
where he can say whatever he has to in
his defence - It is open there for the
accused to show, particularly, the reason
for a mala fide or false implication, which
can then be established by entering
defence and leading evidence - motive is
not very relevant in a case of direct
evidence, where a dependable ocular
version is available. (Para - 17,68)

Informant's son, and another - applied for
Shiksha Mitra - selected - animosity on score
against the informant's son - riding a tonga -
intercepted and waylaid by four appellants -
came along riding a tractor - forced down the
informant's son from the carriage - saying that
"Lets make him into a Shiksha Mitra" - dragged
by the appellants through a distance, abusing
him - thrown in front of the tractor - run over
and crushed the informant's son to death under
the wheels of the tractor - PW-2 (Uncle of
deceased ) and PW-3 (another uncle of
deceased) besides the PW-4 (driver) of the
carriage, witnessed the incident (eye witness) -
informant proceeded to the spot - seen his son's
dead body lying in situ .(Para - 2 )

HELD:- Evidence of eye-witnesses is clear,
consistent and specific. It has not been shaken
in any manner, during cross-examination of the
three prosecution witnesses . Have clearly
established beyond all reasonable doubt, the
place, manner and the time of occurrence;
particularly, the fact that it was the appellants
alone, who acting in furtherance of a common
intention, committed a premeditated murder,
eliminating the deceased. Opportunity was
amply afforded to the appellants under Section
313 of the Code, but not availed. Prosecution
established the charge beyond all reasonable
doubt and there is no warrant for us to interfere
with the impugned judgment. (Para - 66,68,69)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Bipin Kumar Mondal Vs St. of West Bengal,
(2010) 12 SCC 91

2. Naresh Kumar Vs St., 2013 SCC Online Del
3440

3. Rana Partap & ors. Vs St. of Har., (1983) 3
SCC 327

4. Pruthiviraj Jayantibhai Vanol Vs Dinesh
Dayabhai Vala & Ors. , 2021 SCC Online SC 493

5. Dhanaj Singh Vs St. of Pun., (2004) 3 SCC
654

6. Ram Bali Vs St. of U.P., (2004) 10 SCC 598

7. Abu Thakir & ors. Vs St. of T.N. , (2010) 5
SCC 91

8. Mritunjoy Biswas Vs Pranab, (2013) 12 SCC
796

(Delivered by Hon'ble J.J. Munir, J.)

1. The appellants here, who are four
in number, have been convicted by Mr.
S.N. Tripathi, the then Additional Sessions
Judge, Court No. 6, Budaun of an offence
under Section 302 read with Section 34 of
the
Indian
Penal
Code,
18601
and
sentenced to suffer imprisonment for life,
and a fine of Rs. 40,000/- each. In the event
of default, the appellant concerned has been
ordered to suffer an additional simple
imprisonment for a period of ten months.
The aforesaid judgment has been passed by
the learned Additional Sessions Judge in
Sessions Trial No. 213 of 2006, State v.
Pratap Singh and others (arising out of
Case Crime No. 212 of 2003), under
9 All. Pratap Singh & Ors. Vs. State of U.P.
247
Section 302/34 of the Penal Code, Police
Station - Kadar Chowk, District - Budaun,
decided on 27.11.2012.

2. The First Information Report2
leading to the prosecution, that has since
culminated in the impugned conviction,
was lodged on 11.11.2003 at 12:25 in the
afternoon hours by one Sirajuddin, son of
Bajruddin, a native of Village Nauli
Fatuabad, Police Station - Ushait, District -
Buduan. It reported an occurrence that took
place earlier in the day at 10:30 a.m. It was
said in the F.I.R. that about a year and a
half
ante-dating
the
occurrence,
the
informant's son, Riazuddin and another
resident of the village, Pratap Singh, had
both applied for the position of a Shiksha
Mitra. The informant's son, Riazuddin, was
selected. Pratap Singh and his family
allegedly harboured animosity on this score
against the informant's son. It is claimed
that Pratap Singh had told the informant's
son that though the latter had succeeded in
becoming a Shiksha Mitra, but Pratap
would not spare his life. On 11.11.2003, the
informant's son was riding a tonga
(described as a buggi) to Kadar Chowk.
The horse-driven carriage had on board
Hasanuddin,
son
of
Basaruddin
and
Fisauddin, son of Waziruddin, both natives
of the informant's village. As the party
reached between Mahmurganj and a place
called Gadhiya, they were intercepted and
waylaid by the four appellants, who came
along riding a tractor. They are said to have
forced down the informant's son from the
carriage, saying that "Lets make him into a
Shiksha Mitra". The informant's son was
forced down the carriage at about 10:30
a.m. and dragged by the appellants through
a distance, abusing him. He was thrown in
front of the tractor. The other three
appellants are said to have exhorted Pratap
Singh to run him over. Pratap Singh is
alleged to have run over and crushed the
informant's son to death under the wheels
of the tractor. It is reported that Hasanuddin
and Fisauddin, besides the driver of the
carriage, witnessed the incident. The
informant too said that he proceeded to the
spot and had seen his son's dead body lying
in
situ,
where
a
large
crowd
had
congregated.

3. On the basis of the written report
lodged by the informant, Ex.Ka1, the chik
F.I.R. Ex.Ka.3, also dated 11.11.2003,
giving rise to Case Crime No. 212 of 2003,
under Section 302 of the Penal Code was
registered at Police Station - Kadar Chowk,
District - Budaun. The crime aforesaid was
registered vide G.D. entry no. 17 at 12:25
p.m. at the police station last mentioned. A
copy of the said G.D. is available on
record.

4. The Police, after registration of the
crime, proceeded to investigate the same. The
inquest was held on 11.11.2003, commencing
01:15 p.m. and ending at 03:30 p.m. The
inquest is on record as Ex.Ka.4. The dead
body was sent for autopsy. The doctor
undertook
the
necessary
postmortem
examination and an autopsy report dated
12.11.2003 was submitted, that is on record
as Ex.Ka.2. A site plan was drawn and
statements of witnesses taken down. Samples
of blood-stained soil and unstained soil were
also collected, besides a pair of sandals that
the deceased had worn.

5. All the accused, except Pratap
Singh, surrendered in Court. Pratap Singh
is said to have been arrested on 21.12.2003
along with the Tractor of Sonalika make
bearing registration no. UP-24B-2647.

6. PW-5, Dr. D.S. Misra, who
conducted the autopsy on 12.11.2003 found
248 INDIAN LAW REPORTS ALLAHABAD SERIES
the following antemortem injuries on the
body of the deceased:

"(1) A crush injury on Rt. side of
skull size 7.5cm x 6 cm underneath skull
bone found fractured. Meninges and brain
matter found lacerated clotted blood
present in brain cavity.

(2) Contusion with abrasion in
front of chest in an area ranging 10cm x 5
cm. Both clavicles, 2nd, 3rd, 4th and 5th
ribs on both sides found fractured. Liver
and lungs found lacerated.

(3) Multiple abrasions on whole
of the right upper limb size ranging from 2
x 1 cm to 4 x 2.2 cm.

(4) Multiple abrasions on whole
of the left upper limb size ranging from
2.5cm x 1.5cm to 3.5cm x 2cm.

(5) An abrasion on anterior aspect
of right upper leg sizing 2.5cm x 1.2 cm.

(6) An abrasion on anterior aspect
of left knee sizing 4cm x 2cm.

(7) An abrasion sizing 5cm x
2.2cm on posterior aspect of the left thigh."

7.

The
Investigating
Officer,
Devendra Pandey, PW-8, submitted two
charge sheet; the first bearing no.5 of 2004
dated 10.02.2004 against the appellants,
Pratap Singh, Sadhu and Devendra and the
other, bearing no.5A of 2004, dated
19.04.2004
against
the
appellant,
Srikrishna. The two charge sheets are
marked
as
Ex.
Ka-13
and
Ka-14,
respectively. All the appellants were
challaned for an offence punishable under
Section 302 of the Penal Code.

8. The case was committed to the
sessions by the learned Chief Judicial
Magistrate, Budaun vide order dated
20.02.2006. Post committal, the case came
up before the Additional Sessions Judge,
Court no.5, Budaun for framing of charges
on 27.09.2006. The learned Additional
Sessions Judge, after hearing the learned
Counsel for the parties, proceeded to frame
a charge against the appellants under
Section 302 read with Section 34 of the
Penal Code. The appellant pleaded not
guilty and claimed trial.

9. In order to prove their case, the
prosecution have examined the following
witnesses:

(1) PW-1, Sirajuddin (father of
the deceased and informant of the case, a
witness of fact);

(2) PW-2, Fisauddin (uncle of the
deceased,
an
eye
witness
of
the
occurrence);

(3) PW-3, Hasanuddin (another
uncle of the deceased, another eye witness
of the occurrence);

(4) PW-4, Anwar (the driver of
the buggi, also an eye witness of the
occurrence);

(5) PW-5, Dr. D.S. Misra (the
doctor
who
conducted
postmortem
examination of the deceased's corpse);

(6) PW-6, HCP Shri Krishna
Sharma (who registered the case, drew up
the chik and made the requisite G.D. Entry
in the Station Diary. He is a formal
witness);

(7)
PW-7,
S.I.
Gandhi
Lal
Sharma (who prepared the inquest and
other
fard
and
sent
the
body
for
postmortem); and,

(8) PW-8, S.I. Devendra Pandey
(Investigating Officer of the case).

10. The prosecution have relied on the
following documentary evidences:

Sr. No. Exhibit
No.
Exhibited documents
with brief particulars
9 All. Pratap Singh & Ors. Vs. State of U.P.
249
1.
Ex. Ka1
Written report lodged
with the Police Station
Kadar Chowk by PW-1,
Sirajuddin, relating to
the occurrence.
2.
Ex. Ka2
Postmortem report of
the
deceased
dated
12.11.2003
3.
Ex. Ka3
Chik
F.I.R.
dated
11.11.2003 scribed by
PW-6,
HCP
Shri
Krishna Sharma
4.
Ex. Ka4
Inquest report drawn up
by PW-7, S.I. Gandhi
Lal
Sharma,
dated
11.11.2003
5.
Ex. Ka5
Sketch of the corpse
(photo
Lash),
dated
11.11.2003
6.
Ex. Ka6
Sample Seal
7.
Ex. Ka7
Challan Lash (Police
Form
-
13),
dated
11.11.2003
8.
Ex. Ka8
Letter sent to RI, dated
11.11.2003
9.
Ex. Ka9
Letter sent to C.M.O.
for postmortem, dated
11.11.2003
10.
Ex. Ka10
Recovery
memo
of
slippers of the deceased
11.
Ex. Ka11
Recovery
memo
of
plain and blood-stained
earth
12.
Ex. Ka12
Site plan of the place of
occurrence,
dated
11.11.2003
13.
Ex. Ka13
Charge-sheet no.5 of
2003, dated 10.02.2004
14.
Ex. Ka14
Charge-sheet no.5A of
2003, dated 19.04.2004

11. The appellants, Pratap Singh,
Sadhu, Devendra and Srikrishna, in their
statements under Section 313 of the Code
of Criminal Procdure, 19733 have denied
the incriminating circumstances appearing
against them and said that they have been
falsely implicated on account of Village
party-bandi
and
animosity.
All
the
appellants said that they wanted to enter
defence. It must, however, be remarked that
no evidence in defence was led.

12. The learned Trial Judge, vide his
judgment and order, proceeded to convict
the appellants, sentencing each of them in
the manner hereinbefore detailed.

13. Aggrieved, the instant appeal has
been preferred.

14. Heard Mr. Apul Misra, learned
Counsel for the appellants, Ms. Kumari
Meena, learned A.G.A. and Ms. Manju
Thakur, learned A.G.A. for the Staterespondent.

15. It is submitted by Mr. Apul Misra,
learned Counsel for the appellants, that the
prosecution could not establish motive,
enough for the appellants, to do the deceased
to death and that too, brutally. He says that the
motive assigned by the prosecution, that
Pratap Singh harboured animosity and ill-will
against the deceased due to the fact that the
latter was selected as a Shiksha Mitra, whereas
Pratap Singh was unsuccessful, hardly affords
a motive for a brutal murder, like the one the
prosecution seeks to establish.

16. The learned A.G.A., on the other
hand, submits that both the deceased and
250 INDIAN LAW REPORTS ALLAHABAD SERIES
Pratap Singh had vied for the position of a
Shiksha
Mitra
and
the
deceased's
appointment to the said position had left
Pratap Singh seething with anger. He had
sworn revenge, which culminated in this
crime.

17. To our outstanding, motive is not
very relevant in a case of direct evidence,
where a dependable ocular version is
available.
Once
there
is
evidence
forthcoming on the basis of an eye-witness
account, that is consistently narrated by
multiple
witnesses,
motive
is
hardly
relevant. If an unimpeachable ocular
testimony
is
there
to
establish
the
prosecution case, an investigation into the
motive or the sufficiency of it to result in
the crime and the manner in which it has
been perpetrated, would not at all brook
inquiry. The testimony of PW-2, PW-3 and
PW-4, as would be analyzed in greater
detail later in this judgment, is broadly
consistent about the time, place and manner
in which the deceased was done to death by
the appellants. All the three witnesses have
stood by their account of the occurrence in
their cross-examination. There is a broad
consistency of version amongst all the three
eye-witnesses, that is to say, PW-2, PW-3
and PW-4. In a case that rests on ocular
evidence motive for the accused to have
acted in the manner they did, is besides the
point.
In
this
connection,
there
is
authoritative statement of the law to be
found in the decision of the Supreme Court
in Bipin Kumar Mondal v. State of West
Bengal4. In Bipin Kumar Mondal, it has
been held:

"21. The issue of motive becomes
totally irrelevant when there is direct
evidence of a trustworthy witness regarding
the commission of the crime. In such a
case, particularly when a son and other
closely related persons depose against the
appellant, the proof of motive by direct
evidence loses its relevance. In the instant
case, the ocular evidence is supported by
the medical evidence. There is nothing on
record to show that the appellant had
received any grave or sudden provocation
from the victims or that the appellant had
lost his power of self-control from any
action of either of the victims.

Motive

22. In fact, motive is a thing
which is primarily known to the accused
himself and it may not be possible for the
prosecution to explain what actually
prompted or excited him to commit a
particular crime.

23. In Shivji Genu Mohite v. State
of Maharashtra [(1973) 3 SCC 219 : 1973
SCC (Cri) 214 : AIR 1973 SC 55] this
Court held that in case the prosecution is
not able to discover an impelling motive,
that could not reflect upon the credibility of
a witness proved to be a reliable
eyewitness. Evidence as to motive would,
no doubt, go a long way in cases wholly
dependent on circumstantial evidence. Such
evidence would form one of the links in the
chain of circumstantial evidence in such a
case. But that would not be so in cases
where there are eyewitnesses of credibility,
though even in such cases if a motive is
properly
proved,
such
proof
would
strengthen the prosecution case and fortify
the court in its ultimate conclusion. But that
does not mean that if motive is not
established, the evidence of an eyewitness
is rendered untrustworthy.

24. It is settled legal proposition
that even if the absence of motive as
alleged
is
accepted
that
is
of
no
consequence and pales into insignificance
when direct evidence establishes the crime.
Therefore,
in
case
there
is
direct
trustworthy evidence of witnesses as to
9 All. Pratap Singh & Ors. Vs. State of U.P.
251
commission of an offence, the motive part
loses its significance. Therefore, if the
genesis of the motive of the occurrence is
not proved, the ocular testimony of the
witnesses as to the occurrence could not be
discarded only by the reason of the absence
of motive, if otherwise the evidence is
worthy of reliance. (Vide Hari Shanker v.
State of U.P.[(1996) 9 SCC 40: 1996 SCC
(Cri) 913], Bikau Pandey v.State of Bihar
[(2003) 12 SCC 616: 2004 SCC (Cri) Supp
535] and Abu Thakir v. State of T.N.
[(2010) 5 SCC 91: (2010) 2 SCC (Cri)
1258])"

18. Mr. Misra was at pains to impress
upon us the fact that the motive attributed
to the appellant, Pratap Singh, that is to say,
his non-selection for the position of a
Shiksha Mitra and the deceased's selection
instead, does not afford a motive strong
enough to kill the deceased, and that too, in
the brutal fashion the crime is said to have
been committed. The way a man would
think and act is best known to him. We do
not wish to analyze the question of motive
in this case any further for the good reason
that principle guides us not to investigate
the motive, in a case that primarily rests on
direct evidence of eye-witnesses.

19. It is next submitted by Mr. Apul
Misra, learned Counsel for the appellants,
that the presence of the three eye-witnesses at
the scene of crime is highly suspect. He
submits that each of the three witnesses, PW2, PW-3 and PW-4 have not at all seen the
occurrence. He moots the point that these
witnesses have spun a false story of murder
around an event involving Riazuddin's
accidental death. To the above end, the
learned Counsel for the appellants submits
that the unexplained delay in lodging the
F.I.R. is in itself an index of the absence of
these eye-witnesses. He submits that in the
event any of these eye-witnesses had been
present along with the deceased when he was,
as they say, forced down the tonga and
brutally murdered, at least one of them would
have immediately rushed to the police station
and lodged an F.I.R. It is pointed out that the
distance of the police station from the place
of occurrence was just 4 kilometers, whereas
the F.I.R. came to be lodged some one hour
and fifty-five minutes after the occurrence.
And to add to it, is the story that all the three
eye-witnesses, instead of rushing to the police
station, behaved in a queer fashion, where
PW-2, Fisauddin rushed off to Riazuddin's
father, Sirajuddin, then in his native village,
to inform him of his son's murder. This
behaviour of the three witnesses has been
emphatically underscored by the learned
Counsel for the appellants to submit that none
of these witnesses ever saw the incident. The
conduct of all the three eye-witnesses is
castigated, as shown, to submit that under the
circumstances obtaining, their presence at the
scene of the crime has to be disbelieved.

20. Dilating on the issue, Mr. Misra
submits that PW-2, Fisauddin was a
relative of the deceased, the deceased
being his nephew. The other eye-witness,
PW-3 is also said to be an uncle of the
deceased. Given this background of
kinship between the two eye-witnesses,
PWs-2 and 3, it is submitted that the
inaction
of
these
witnesses
in
not
endeavouring to save the deceased when
he was forced down the carriage, dragged
through a distance and then crushed to
death under the wheels of the tractor, is
unbelievable. If these witnesses had, in
fact, been present, the learned Counsel for
the appellants says that they would have
done a
lot
to
save
the deceased,
particularly given the fact that the entire
episode took about 10-15 minutes to reach
its fatal culmination.
252 INDIAN LAW REPORTS ALLAHABAD SERIES

21. It is also emphatically urged that
the eye-witnesses have falsely said for the
first time in their dock evidence that the
accused were carrying firearms, which
prevented
them
from
rescuing
the
deceased. This fact has never been
mentioned by these witnesses in their
statements to the Police under Section 161
of the Code. In this connection, our
attention has been drawn to the crossexamination of PW-2, Fisauddin, to which
we will presently allude. The story about
the appellants being armed, that the
witnesses have put forth for the first time in
their dock evidence, is also assailed by the
learned Counsel for the appellants on the
foot of the reasoning that if this were true,
the appellants would have simply shot the
deceased, instead of undertaking that rather
unconservative,
cumbersome
and
inherently risky method of doing Riazuddin
to death.

22.

The
learned
Additional
Government Advocate has refuted the
above contentions advanced on behalf of
the appellants. It is urged by the learned
A.G.A. that there is consistent eye-witness
account, not of a solitary witness, but three,
all of whom have described the occurrence
consistently in all material particulars.
There is no inherent contradiction between
the testimonies of PWs-2, 3 and 4
regarding the time, manner and place of
occurrence; and also about the identity and
role of the appellants in the crime. The
learned A.G.A. submits that the ocular
version is dependable, consistent and free
from blemish. There is no ostensible reason
for three men - the three prosecution
witnesses to falsely implicate the appellants
in a case that involves a heinous offence.

23. The fact that none of the three
eye-witnesses immediately rushed to the
police station to lodge an F.I.R. is not a
circumstance that may, by itself, lead us to
the conclusion that they never witnessed
the occurrence. The conduct of a person,
who witnesses a morbid, dangerous and
bizarre
occurrence,
like
a
murder,
particularly one carried out in a dastardly
fashion, like the one in hand, cannot be
expected to exhibit the copy-book conduct
of
a
vigilant
and
educated
citizen
proceeding to the police station to report a
crime. The behaviour of an individual in a
life threatening situation, like the one these
witnesses were apparently exposed to,
would much differ on an individual basis
governed by different parameters. The
behaviour, in expecting an eye-witness to
hold
his
nerves
calm
and
proceed
confidently to the police station to report a
murder of this kind, would depend on
diverse factors like the personal mental
makeup of the individual concerned, his
background and status in life, his personal
exposure to similar situations in the past
and the associated experiences, the outlook
of an individual based on his profession
and the training or the age and maturity of
the individual, to name but a few. To
illustrate these varying individualities of
behaviour, one may, except a policeman or
an army-man, to remain unperturbed by the
fatal violence witnessed and proceed
fearlessly to the police station to report the
matter. Likewise, an ordinary person, who
is inherently endowed with strong nerves
and has not, in past, suffered any
psychologically
debilitating
experience,
may react in the ideal way that Mr. Misra
submits, of walking the distance of four
kilometers to report the incident to the
Police.

24. By contrast, a timid man may get
so scared on witnessing an occurrence of
this kind that he may not share it with
9 All. Pratap Singh & Ors. Vs. State of U.P.
253
anyone, let alone report it to the Police.
Also, in a situation of this kind, judicial
notice must be taken of the fact when
evaluating evidence, that turns upon the
conduct of men, that the Police generally,
and without casting any stigma on them,
have earned the reputation of often
implicating the man, who comes to them to
report a crime involving a homicide or
accident; or at least detaining him and
subjecting
the
person
to
searching
interrogation. It may be a necessary way
for the Police to do so, but it does act as a
deterrent for many individuals to fearlessly
step into a police station to report an
incident of murder. It is for this reason that
it is the closest of kin, who becomes the
first informant even if he/ she is not an eyewitness. Here, if the one sees the two
witnesses, PW-2 and PW-3, who were
related to the deceased, one nearer than the
other, what cannot be lost sight of is the
fact that all these three men came from a
rural and ordinary background. There is
nothing to show that they were particularly
resourceful or had any kind of training or
position in society, that would make them
boldly move to the police station and report
the matter. Also, there is nothing to show
that there was any background of these men
that would leave them unshaken and free
from fear for their own lives to make that
move. If these ordinary men from a village
had witnessed the appellants, murdering a
kindred or an acquaintance in such a
dastardly fashion, one can reasonably
expect them to steer clear of the prompt
action of rushing to the police station,
where the one who did so could expect an
immediate reprisal from the appellants and
an
abominable
fate,
similar
to
the
deceased's. It is in these circumstances that
the conduct of all the three witnesses in not
promptly moving to the police station has
to be evaluated. Still, one could have
thought that the inaction of three men who
had witnessed the crime, two related to the
deceased, was a factor with some weight to
doubt their presence. But, that would be so,
if these witnesses were confronted with
their conduct about not promptly reporting
the crime to the police, shortly after the
appellants' exit from the scene of crime.

25. A careful perusal of testimony of
PW-2, that is to say, his cross-examination
does not show that any question was put to
him as to the reason he did not proceed to
the police station from the place of
occurrence and report the matter himself,
instead of rushing back to the deceased's
village to inform his father. In the absence
of this witness being confronted about his
conduct in not proceeding to the police
station
straight
from
the
place
of
occurrence, it does not much lie in the
appellants' mouth to urge at the hearing
before us that this conduct of PW-2 makes
his presence doubtful. Likewise, is the case
with PW-3, where not a single word about
the witness's failure to go over to the Police
has been put.

26. So far as PW-4 is concerned, he is
an unrelated witness and a professional
driver of the tonga, that was carrying the
deceased and other witnesses, together with
other passengers when the party were
waylaid. It does appear that some question
was put to him about his inaction of not
reporting the matter to the Police. This
witness, in whatever manner confronted,
has said that he did go to the Police and
report the matter. He has said that Darogaji
there took down a written information from
him and made him thumb mark it. He also
took this witness's statement at the station.
The Darogaji, after about two hours and a
half, proceeded to the place of occurrence,
where he came across the first informant,
254 INDIAN LAW REPORTS ALLAHABAD SERIES
Sirajuddin. The relevant part of this
witness's
testimony
during
crossexamination reads:

"थाने में जाकर मैंने सूचना दी दरोगा
जी ने मेरी सूचना नलखी मेरा अिंगूठा लगवाया।
मेरा ब्यान वहीिं पर नलया था नर्र दो ढाई घन्टे
बाद मुझे लेकर दरोगा जी मौके पर चले गये
उसके बाद मौके पर नसराजउद्दीन पहुचे नर्र
उसके बाद मैं नसराज उद्दीन व दरोगा जी थाने
आये थे।"

27. Now, this testimony of PW-4 does
show that he went to the police station and
gave a written information of the occurrence.
He was asked to thumb mark it. He is
apparently an illiterate man, who did not know
what was scripted there. No doubt, the factum
of PW-4 reporting the incident to the police
has been denied by the Investigating Officer,
about which Mr. Misra has something else to
say in criticism of the prosecution. But, that is
quite another matter; that would be dealt with
later on in this judgment.

28. So far as the three eye-witnesses are
concerned, in the opinion of this Court, the
mere fact that none of them actually lodged
the F.I.R. relating to this incident does not, in
the circumstances, derogate from the factum
of their being eye-witnesses. The overall
conduct of PW-2 and PW-3, in not directly
proceeding to the police station and instead,
going back to the deceased's father in the
village, also in the circumstances, should not,
in our opinion, cast suspicion about their
presence at the scene of crime. In this regard,
reference may be made to the observations of
a Division Bench of the Delhi High Court in
Naresh Kumar v. State5. In Naresh
Kumar, one Ashu, a prosecution witness and
a nephew of the deceased, Mukesh was an
eye-witness of the occurrence, who had made
no efforts to save or report the matter to the
relatives or the Police. His conduct was,
therefore, criticized by the appellants as
unnatural and unrealistic in order to discredit
his
eye-witness
account.
In
those
circumstances, it was remarked by the
Division Bench:

"16. It is prudent to say that in
normal circumstances, it is quite grotesque of
any person who is a witness of a crime to not
inform the police or the relatives of the victim
of the crime reporting the incident and such a
behavior on the part of such eye witness
normally would be considered unnatural,
abnormal and ludicrous. Nevertheless, no
straight-jacket formulae or principle can be
laid down as to how a particular witness will
react at such a situation. It may depend upon
couple of circumstances depending upon the
facts of each case. It is not always necessary
that at a given situation similarly placed
person will react in a same fashion. Much
will depend on the fact situation of each
incident and also the individual behavior of
the person including his psyche. One may be
timid or may be very bold and it is also
possible that a person otherwise timid in his
life may turn out to be bold at a particular
moment or vice versa. The prompt reaction or
the immediate outcry whether being bold or
timid of the person is an important aspect
which has to be taken care of while dealing
with such terrifying crimes......"

29. On an overall view of the matter,
therefore, the conduct of the three eyewitnesses in not reporting the incident to
the Police promptly, after witnessing a
ghastly murder, cannot lead to an inference,
in our considered opinion, that these
witnesses never saw the crime or that they
were not present at the place of occurrence.

30. The next part of Mr. Misra's
submission, by dint of which he assails the
9 All. Pratap Singh & Ors. Vs. State of U.P.
255
very presence of the three eye-witnesses, is
the fact that their conduct in not attempting
to rescue the deceased is so unnatural that
their presence on the spot has to be ruled
out; at least seriously doubted. He has,
particularly, emphasized the fact that PWs2 and 3 are kinsmen of the deceased and it
cannot be imagined that they would have
allowed the deceased to be done to death
by the appellants through a course of
violence that lasted 10-15 minutes, without
demur. The reason that they did not do so,
according to the prosecution, is that
appellants were carrying firearms. This has
been criticized by Mr. Misra as an
unbelievable story and afterthought. This
part of the submission would be dealt with
a little later.

31. For the moment, we proceed on
the assumption that the appellants were not
armed and did Riazuddin to death in the
manner alleged. The question is: Would it
be correct to assume that the prosecution
witnesses' inaction to move in and save
Riazuddin from the clutches of the
assailants, as they perpetrated their fatal
violence, over a period of 10-15 minutes, is
cause enough to disbelieve that these
witnesses were present at the scene of
crime? The submission that the prosecution
witnesses' failure, particularly that of PWs2 and 3, to rush in and act in defence of the
victim, is based on an assumption about
some kind of a standard reaction of men,
when placed in the circumstances that the
prosecution witnesses were. It assumes a
standard reaction to come from a blood
relative of the victim of a murderous
assault, where the relative is inevitably
expected to rush in and attempt a rescue.

32. To our mind, this submission is
fallacious, because the assumption of a
standard behaviour, on the foundation of
which it proceeds, is imaginary. It has no
basis to it, inferable from the experience of
mankind about individual behaviour. Quite
contrary to what the learned Counsel for
the appellants submits, there is no standard
reaction of men when exposed to the
situation, where they witness another being
brutally murdered. Even for a relative,
generally
considered,
witnessing
a
gruesome kind of crime, is a harrowing
experience that excites generally the
emotion of fear or fright. A person,
depending on the individual's traits of
personality, may react very differently to
the
situation,
as
said
earlier.
The
individual's reaction, on witnessing a
gruesome crime, like the present one, may
vary
according
to
his
psychological
makeup, his professional training, his prior
exposure
to
like
situations
and
the
experience there. The causes that could
contribute to individually varying reactions
could be innumerable; and, so could be the
variation in the reaction or the response of
witnesses when exposed to a ruthless
crime, like murder. Therefore, to say that
all the three eye-witnesses, at least the two,
who were related to the deceased, ought to
have attempted a rescue, is a hypothesis
that does not stand the test of human
experience.

33. Assuming that the appellants were
not armed with any deadly weapons, the
eye-witness account does show extreme
violence exhibited by the perpetrators, and,
a particularly abominable mode of doing
the victim to death. It could have been a
possibility for the three witnesses to have
rushed to the victim's rescue and that would
be quite natural. The fact that they got a
scare of their life and did not move to
rescue the deceased is a possibility that is
equally likely and natural. There is no
element of incredibility about it. The
256 INDIAN LAW REPORTS ALLAHABAD SERIES
reaction of one of the witnesses that shows
him to be frightened into moving away
from the spot is well indicated in the crossexamination of PW-4, Anwar, where he
says:

"जैसे ही यह घटना हुई मैं बुग्गी लेकर
भाग आया था दूर हट गया था दो तीन नमनट के
बाद मैं सवाररयोिं को लेकर कादरचौक चला
आया।"

34. This reaction of PW-4 upon
witnessing the murder is one of the many
typical responses that are to be expected of
a man, circumstanced like him. PW-4 was
not a relative of the deceased, but a very
natural witness. He was the driver of the
tonga, that was carrying passengers,
amongst whom the deceased was one when
the party was waylaid. The other two
witnesses, PWs-2 and 3 did not move in to
rescue the deceased. They were apparently
scared into inaction. About this possible
variation in the response of men, when they
witness a gruesome crime, there is valuable
guidance to be found in the decision of the
Supreme Court in Rana Partap and
others v. State of Haryana6. In Rana
Pratap, it has been observed by their
Lordships, thus:

"6. Yet another reason given by
the learned Sessions Judge to doubt the
presence of the witnesses was that their
conduct in not going to the rescue of the
deceased when he was in the clutches of
the assailants was unnatural. We must say
that the comment is most unreal. Every
person who witnesses a murder reacts in his
own way. Some are stunned, become
speechless and stand rooted to the spot.
Some become hysteric and start wailing.
Some start shouting for help. Others run
away to keep themselves as far removed
from the spot as possible. Yet others rush to
the rescue of the victim, even going to the
extent of counter-attacking the assailants.
Every one reacts in his own special way.
There is no set rule of natural reaction. To
discard the evidence of a witness on the
ground that he did not react in any
particular manner is to appreciate evidence
in a wholly unrealistic and unimaginative
way."

35. In view of what has been said
above, we are clearly of opinion that the
submission advanced on behalf of the
appellants about the absence of eyewitnesses at the place of occurrence urged
to be inferable from their inaction in
attempting a rescue, deserves to be
negatived.

36. The next part of Mr. Misra's
submission, inviting us to disbelieve the
presence of the eye-witnesses, is a part of
his submission that we have just disposed
of. It is about the incredibility of eyewitnesses' explanation why they did not
come to the aid of the deceased when
assaulted
by
the
appellants.
The
explanation, why the eye-witnesses did not
come to the deceased's rescue, that has
fallen for Mr.