# Prem Lal v. State Of U.P

- **Citation:** (2016) 8 ILRA 1138
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-04
- **Bench:** Bharat Bhushan, Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-lal-v-state-of-u-p-44149
- **Pages:** 11

## Headnote

Section 302 IPC and life sentences passed on 07.06.1983 by the 5th Additional Sessions Judge, Budaun
(Sessions Trial No. 427 of 1981). According to the informant Savitri Devi (P.W.-10), her husband Charan Singh
was murdered on 20.07.1980 at 6:30 a.m. near village Nachni because the appellants were infuriated by his
alleged illicit relationship with appellant Prem Pal's sister, Susheela. The deceased, who had been bailed out
from an Arms Act arrest just a day prior, was allegedly accosted and shot 5-6 times each by Prem Pal and
Babu Lal using shotguns.

Paragraphs 4-7 (Investigation & Trial Court Verdict): The prosecution later added a secondary motive
involving appellant Babu Lal's sister, Kiran. Following an investigation by P.W.-13, a charge-sheet was
submitted. The trial court framed murder charges on 27.11.1982, and the prosecution examined 13 witnesses,
including seven purported eye witnesses. The accused denied the charges under Section 313 Cr.P.C., claiming
false implication due to village rivalry. Appellant Babu Lal raised an alibi defence, examining two witnesses
(D.W.-1 and D.W.-2) to prove he was in Sultanpur. The trial court rejected the alibi, found both guilty, and
sentenced them to life imprisonment.

Paragraphs 8-13 (Arguments of Both Sides): Senior counsels for the appellants argued that six out of
seven eye witnesses turned hostile, and the remaining lone witness, Savitri Devi, was highly unreliable and
contradicted by medical evidence. They also emphasized Babu Lal's solid alibi backed by a senior government
officer (D.W.-1). Conversely, the learned AGA supported the conviction, arguing that the FIR was logged
promptly within two hours despite a 5-kilometer distance, leaving no room for concoction. He maintained that
the prior arrest provided immediate motive, and dismissed the defence witnesses as unreliable.
8 All. Prem Lal Vs State Of U.P.
1139
Paragraphs 14-16 (Legal Standard for a Solitary Hostile Witness): The High Court observed that
because six out of seven eye witnesses refused to support the prosecution, the case rested entirely on the
solitary testimony of the wife, Savitri Devi (P.W.-10). The Court noted that while a conviction can legally stand
on a single witness, the testimony must be of "sterling quality," wholly natural, credible, and free from
blemish, requiring an extraordinarily close and cautious critical scrutiny when all other witnesses turn hostile.

Paragraphs 17-20 (Glaring Contradictions & Backdated FIR): Upon close scrutiny, the Court found
vital contradictions in Savitri's testimony. She initially stated she went to the police station completely alone,
but later claimed the village Chowkidar accompanied her. Furthermore, the police General Diary and the
Investigating Officer confirmed that she was actually accompanied by her father-in-law, Man Singh. Since Man
Singh lived in Aligarh, it was logistically impossible for him to arrive in Budaun within two hours of the crime,
strongly indicating that the FIR was backdated and that Savitri was concealing facts.

Paragraphs 21-25 (Absence of Motive & Spatial Fabrications): The Court found no independent proof
of the alleged illicit relationships. Appellant Babu Lal's sister had already left for her matrimonial home days
prior, leaving him with zero motive, and the two accused shared no established friendship or caste affinity.
Furthermore, Savitri changed her story regarding their direction of travel, referenced landmarks (a culvert)
missing from the official site plan, and falsely claimed she slept next to the corpse overnight at the police
station-a claim directly disproved by the constable (P.W.-12) who transported the body straight to the
mortuary by noon.

Paragraphs 26-30 (Ocular Account vs. Medical Evidence & Logic): The physical circumstances
completely discredited the informant's presence. She claimed she stood four paces away while the accused
fired over a dozen shotgun round

## Text

1138 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1138
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 1497 Of 1983

Prem Lal ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
Shri S.B. Johari, Shri G.C. Saxena, Shri Mohit Singh

Counsel for the Respondent:
D G.A.

Held -

Paragraphs 1-3 (Introduction & Prosecution Case): The appellants challenged their conviction under
Section 302 IPC and life sentences passed on 07.06.1983 by the 5th Additional Sessions Judge, Budaun
(Sessions Trial No. 427 of 1981). According to the informant Savitri Devi (P.W.-10), her husband Charan Singh
was murdered on 20.07.1980 at 6:30 a.m. near village Nachni because the appellants were infuriated by his
alleged illicit relationship with appellant Prem Pal's sister, Susheela. The deceased, who had been bailed out
from an Arms Act arrest just a day prior, was allegedly accosted and shot 5-6 times each by Prem Pal and
Babu Lal using shotguns.

Paragraphs 4-7 (Investigation & Trial Court Verdict): The prosecution later added a secondary motive
involving appellant Babu Lal's sister, Kiran. Following an investigation by P.W.-13, a charge-sheet was
submitted. The trial court framed murder charges on 27.11.1982, and the prosecution examined 13 witnesses,
including seven purported eye witnesses. The accused denied the charges under Section 313 Cr.P.C., claiming
false implication due to village rivalry. Appellant Babu Lal raised an alibi defence, examining two witnesses
(D.W.-1 and D.W.-2) to prove he was in Sultanpur. The trial court rejected the alibi, found both guilty, and
sentenced them to life imprisonment.

Paragraphs 8-13 (Arguments of Both Sides): Senior counsels for the appellants argued that six out of
seven eye witnesses turned hostile, and the remaining lone witness, Savitri Devi, was highly unreliable and
contradicted by medical evidence. They also emphasized Babu Lal's solid alibi backed by a senior government
officer (D.W.-1). Conversely, the learned AGA supported the conviction, arguing that the FIR was logged
promptly within two hours despite a 5-kilometer distance, leaving no room for concoction. He maintained that
the prior arrest provided immediate motive, and dismissed the defence witnesses as unreliable.
8 All. Prem Lal Vs State Of U.P.
1139
Paragraphs 14-16 (Legal Standard for a Solitary Hostile Witness): The High Court observed that
because six out of seven eye witnesses refused to support the prosecution, the case rested entirely on the
solitary testimony of the wife, Savitri Devi (P.W.-10). The Court noted that while a conviction can legally stand
on a single witness, the testimony must be of "sterling quality," wholly natural, credible, and free from
blemish, requiring an extraordinarily close and cautious critical scrutiny when all other witnesses turn hostile.

Paragraphs 17-20 (Glaring Contradictions & Backdated FIR): Upon close scrutiny, the Court found
vital contradictions in Savitri's testimony. She initially stated she went to the police station completely alone,
but later claimed the village Chowkidar accompanied her. Furthermore, the police General Diary and the
Investigating Officer confirmed that she was actually accompanied by her father-in-law, Man Singh. Since Man
Singh lived in Aligarh, it was logistically impossible for him to arrive in Budaun within two hours of the crime,
strongly indicating that the FIR was backdated and that Savitri was concealing facts.

Paragraphs 21-25 (Absence of Motive & Spatial Fabrications): The Court found no independent proof
of the alleged illicit relationships. Appellant Babu Lal's sister had already left for her matrimonial home days
prior, leaving him with zero motive, and the two accused shared no established friendship or caste affinity.
Furthermore, Savitri changed her story regarding their direction of travel, referenced landmarks (a culvert)
missing from the official site plan, and falsely claimed she slept next to the corpse overnight at the police
station-a claim directly disproved by the constable (P.W.-12) who transported the body straight to the
mortuary by noon.

Paragraphs 26-30 (Ocular Account vs. Medical Evidence & Logic): The physical circumstances
completely discredited the informant's presence. She claimed she stood four paces away while the accused
fired over a dozen shotgun rounds from close range, yet she did not receive a single scratch or pellet injury.
Crucially, she testified that the accused shot the deceased face-to-face during a confrontation, but the postmortem report conclusively revealed multiple firearm entry wounds on the back of the deceased. Additionally,
the prosecution failed to explain how the accused could have known about the couple's highly private, earlymorning travel plans.

Paragraphs 31-35 (Procedural Lapses, Alibi Validated & Final Disposal): The Court criticized the trial
judge for failing to question Babu Lal about the alleged motive during his Section 313 examination. It also
ruled that the trial court improperly brushed aside the defence evidence, noting that defence witnesses must
be evaluated using the same yardstick as the prosecution. The Court found the alibi provided by D.W.-1 (a
senior officer) completely cogent and credible. Finding Savitri's lone testimony weak, uncorroborated, and
unsafe, the High Court granted the appellants the benefit of doubt, allowed the appeal, set aside the
conviction, and ordered their immediate release.

List of Citations
Bhimapa Chandappa Hosamani and others v. State of Karnataka, (2007) 1 SCC (Cri) 456

(Delivered by Hon'ble Bharat Bhushan, J.)

1. The appellants have directed this appeal against the judgment and order dated 7.6.1983
passed by the then 5th Addl. Sessions Judge, Budaun in Sessions Trial No. 427 of 1981 arising out
of Case Crime No. 135 of 1980 (State VS Prempal and another), Police Station (in short P.S.) -
Islamnagar whereby the appellants were convicted under Section 302 IPC and sentenced to life
imprisonment.
1140 INDIAN LAW REPORTS ALLAHABAD SERIES

2. According to the informant Savitri Devi (P.W-10), her deceased husband Charan Singh
was practicing medicine and living at the residence of appellant/accused Prem Pal Singh Thakur, at
village Nachni, District Budaun. It is alleged that the deceased Charan Singh developed illegitimate
physical relationship with one Susheela, sister of appellant Prem Pal Singh. Prem Pal Singh and his
family members got infuriated and kept on looking the opportunity to eliminate deceased Charan
Singh.

3. Informant tried to reason with her husband but of no avail. In fact he procured a country
made pistol for his protection. Six days prior to the incident both the appellants Prem Pal Singh and
Babu Lal got the deceased Charan singh arrested for possession of unlicensed weapon. He was
bailed out one day prior to the episode. Next day i.e. on the date of occurrence the deceased Charan
Singh along with his wife Savitri Devi (informant) went to the village Nachni for realization of
remaining dues from patients. Appellants accosted them on their way to Village Nachni. Appellant
Prem Pal Singh was holding Double Barrel Gun and appellant Babu Lal was wielding Single Barrel
gun. They fired 5-6 shots each upon the deceased Charan Singh who died instantaneously. The
incident was allegedly witnessed by Yadram, Gendan Lal (P.W.-9), Chunni (P.W.-1), Bhagirath
(P.W.-2), Tinku, Kallu (P.W.-4) and Bheekam Singh (P.W.-3). They reportedly rescued the
informant Savitri Devi (P.W.-10) also. The incident is said to have been occurred on 20.7.1980 at
about 6.30 a.m. P.W.-10 Savitri Devi lodged the FIR on the same day at about 8.30 a.m. The
distance between the place of occurrence near village Nachni and police station Islam Nagar is
indicated to be 5 Kilometers as per chik report (Ex-Ka-2).

4. The aforesaid story was later on improved upon and it was also added that the deceased
Charan Sigh had also developed intimate relationship with Kiran, Sister of second
appellant/accused Babu Lal. The police went to the place of occurrence immediately in the
aftermath of the incident. It is stated that the police personnel reached the place of occurrence at
about 9.30 a.m. Inquest was conducted and investigation ensued. On completion of investigation
the Investigating Officer Sri Harimaya Sharma (P.W.-13) submitted a charge sheet (Ex-Ka15)
against both the accused appellants.

5. Trial court framed charges against both the accused under Section 302 IPC on
27.11.1982. Appellants pleaded not guilty and claimed to be tried. The prosecution adduced
testimony of as many as 13 witnesses namely P.W.-1 Chunni (eye witness), P.W.-2 Bhagirath (eye
witness), P.W-3 Bheekam Singh (eye witness), P.W-4 Kallu (eye witness), P.W-5 Dr. N. P. Singh,
(who conducted autopsy), P.W.-6 H.C. Radhey Shyam Sharma (who recorded the FIR), P.W-7
H.C. Om Prakash (who prepared inquest), P.W.-8 Tilak Singh (eye witness), P.W.-9 Gendan Singh
(eye witness), P.W.-10 Savitri Devi (informant/eye witness), P.W.-11 Constable Kanwar Pal Singh
(who registered a case against the deceased Charan Singh under Arms Act on 14.7.1980), P.W.-12
Constable Subhash Chandra who took corpse of deceased to the mortuary and P.W.-13 Harimaya
Sharma (Investigating Officer).

6. The appellants denied all the allegations in their statements under Section 313 Cr.P.C.
and have claimed false implication due to village party bandi. Appellant Prem Pal has not adduced
8 All. Prem Lal Vs State Of U.P.
1141
any evidence, oral or documentary in his defence. However, second appellant Babu Lal has raised
the plea of alibi and produced two witnesses namely D.W.-1 A.S. Rizvi, the then A.C.O.
(Consolidation), Sultanpur and D.W.-2 Malkhan Singh, then Kannungo, Sultanpur who is also
father of the appellant Babu Lal.

7. On conclusion of the trial, trial court held both the accused guilty of offence under
Section 302 IPC and both of them were sentenced to life imprisonment vide judgment and order
dated 7.6.1983. It is this judgment which is under challenge before this court in appeal.

8. Heard Sri V. P. Srivastava, learned senior counsel assisted by Mr Mohit Singh for
appellant Babu Lal and Mr Brijesh Sahai and Mr Sharad Srivastava advocate on behalf of appellant
Prem pal and Mr Syed Ali Murtaza, learned AGA for the State.

9. Learned counsel for the appellants have submitted that there is virtually no evidence on
record to support the allegations against the appellants. They have submitted that out of seven eye
witnesses, six have not supported the prosecution version. They have argued that presence of sole
remaining witness Savitri Devi on spot is highly doubtful in view of her weak testimony. She has
not been able to narrate the incident in convincing manner.

10. Learned counsel appearing on behalf of appellant Babu Lal has also claimed that
appellant Babu Lal was in Sultanpur with his family at the time of incident. His father was posted at
Sultanpur as Consolidation (Chakbandi) Kannungo. Senior Officer D.W.-1 A. S. Rizvi and his own
father testified on oath that on the date of incident the appellant Babulal was present in district
Sultanpur, situated at very long distance from District Budaun.

11. Learned counsel for the appellants have also argued that the ocular testimony is
inconsistent with the medical evidence, thereby creating doubt about the veracity of testimony of
sole remaining witness P.W.-10 Savitri Devi.

12. To the contrary, learned AGA has submitted that the incident occurred at 6.20 in the
morning and the report was lodged within two hours at Islam Nagar police station at 8.30 a.m.
despite the distance of 5 Kilometers. He has argued that there was no occasion and opportunity for
the informant to concoct the story and that there was no reason for the wife to lie about the murder
of his husband. He has drawn the attention of the court towards the arrest of Charan Singh
(deceased) six days prior to the incident at the instigation of both the appellants. Both the appellants
have admitted the arrest of deceased Charan Singh under Arms Act in their evidence under Section
313 Cr.P.C.

13. Learned AGA has further argued that this clearly provides a motive to both the
appellants as deceased Charan Singh had been bailed out one day prior to the incident annoying the
appellants. He has further submitted that the marriage of Kiran, sister of appellant Babu Lal was
admittedly solemnized at village Nachni on 15.7.1980, five days prior to the incident and this was
precisely the reason, deceased was arrested at the instigation of appellants. Learned AGA has also
1142 INDIAN LAW REPORTS ALLAHABAD SERIES

submitted that this prior arrest and the subsequent release of Charan Singh had angered both the
appellants. Both of them were unhappy because of rumours floating around regarding the
relationships of deceased with their respective sisters. Learned AGA has denounced the testimony
of both the Defence Witnesses saying that the presence of Babu Lal at Village Nachni is admitted
till 18.7.1980 even to the appellants and there is no evidence on record to suggest that family of
Babu Lal had left village Nachni for Sultanpur on 18.7.1980 as claimed by him.

14. Perusal of evidence on record would reveal that as many as seven eye witnesses were
named by the informant Savitri Devi (P.W-10) in the FIR meaning thereby this incident was seen at
least by eight person, if we include Savitri Devi in the list of witnesses. Seven witnesses were
produced by the prosecution. Six stated eye witnesses have refused to support the prosecution
version. They have categorically denied the involvement of appellants in the murder of deceased
Charan Singh, therefore, that leaves only Savitri Devi (P.W.-10) wife of deceased as sole witness of
the incident.

15. Learned trial judge has relied completely upon the testimony of Savitri Devi. Trial
Judge has concluded that the testimony of Savitri Devi is sufficient to hold the appellants guilty of
offence under Section 302 IPC.

16. As a matter of law, there is no doubt that the testimony of solitary witness can be the
basis of conviction provided found to be trustworthy. Where the prosecution has produced a single
witness in support of the offence, same can used for conviction of accused provided such evidence
is found credible and trustworthy. But where seven eye witnesses have been produced and as many
as six such witnesses have declined to support prosecution case then it is absolutely necessary to
undertake a very close and critical scrutiny of remaining solitary witness. There is no law which
says that the conviction of the accused cannot be based on evidence of solitary witness but the
evidence of solitary witness must be scrutinized with great caution. While appraising such evidence
the court must be satisfied that his testimony is of such sterling quality that the court finds safe to
base conviction solely on that witness. Evidence of such witness must be free from any blemish or
suspicion. Evidence of solitary witness must impress the court as wholly truthful and convincing.
(Bhimapa Chandappa Hosamani and others State of Karnataka, (2007) 1 SCC (Cri) 456. It is
well established principle of law that evidence is weighed and not counted but it is essential that
such appraisal is done with great caution. The evidence must appear to be natural and so convincing
that the court has no hesitation in recording the conviction solely on the basis of single witness.

17. In this case too, testimony of sole witness, Savitri Devi (P.W.-10) has to be subjected to
serious scrutiny. The FIR was lodged by the informant Savitri Devi allegedly within two hours of
the incident. The contents of the FIR gives impression that she alone went to the police station for
lodging the FIR. She has clearly mentioned in the FIR that she left the witnesses by side of corpse
of her husband and then went to the police station to file the FIR. Same fact was reiterated by the
informant on oath while deposing before the trial court as P.W.-10. She has stated that she escorted
her deceased husband on the day of occurrence at 6 a.m. in the morning while going to Islam
Nagar. It is pertinent to point out that it is the case of prosecution that P.W-10 Savitri Devi was
8 All. Prem Lal Vs State Of U.P.
1143
living at Islam Nagar at the time of incident and that her slain husband used to live at village
Nachni. As soon as the informant and deceased reached the culvert, the appellants Babu Lal and
Prem Pal, armed with DBBL and SBL Guns respectively, accosted them and opened fire
indiscriminately at her husband who died instantaneously on the spot. Interestingly, this time, she
simply named one Yadram only as eye witness, although, she did mention that few other persons
also arrived at the spot but she did not name them. However, it is pertinent to point out that she
named at least seven eye witnesses in her first information report (EX-Ka-2) though six of those
eye witnesses have refused to support the prosecution case.

18. In paragraph no. 5 of her testimony, she has clearly and emphatically asserted that she
alone went to the police station for lodging the FIR and that no other person had accompanied her
to the police station. This part of statement was recorded on 19.3.1983 during initial stage of cross
examination. After six days i.e. on 25.3.1983 during last leg of her cross examination she changed
her version in paragraph no. 18 and stated that one Chowkidar also accompanied her to the police
station at the time of lodging of the FIR. This is vital contradiction.

19. The FIR gives impression that informant went alone to the police station for lodging the
FIR. In her initial testimony also, she categorically reiterated that she alone went to the police
station but on the last leg of her cross examination she resiled from her earlier statement and said
that village Chowkidar also accompanied her. But the fact of the matter is, that she was not
completely truthful even at this stage. While recording the FIR the relevant entries were made in
the General Diary of police station, extract of which is available on record as (Ex-Ka-3) wherein it
has been mentioned that the informant Savitri Devi was accompanied by one Chunni Lal, Kallu and
her father-in-law Man Singh (father of deceased). Now the question arise why was this solitary
witness refusing to acknowledge the presence of these other persons at the police station ? It is
pertinent to point out that P.W.-10 Savitri Devi has admitted during her cross examination that her
father-in-law, a healthy person of 68 years, was resident of District Aligarh. She has emphatically
denied that Man Singh, her father-in-law lived at Islam Nagar with them. She again reinforced this
statement by saying that no other member of family used to live with them. Now the question is if
incident occurred at 6.30 a.m. and report was lodged at 8.30 a.m., how the presence of Man Singh
could be accounted for ? There is nothing on record to demonstrate when the father of deceased,
resident of Aligarh, arrived at Budaun. There is no way Man Singh could have arrived at Village
Nachni in time to accompany Savitri Devi to the P.S. Islam Nagar. The fact that Man Singh was
present at the time of lodging of FIR bolster the argument of appellants that the FIR had been antetimed. It really creates doubt about truthfulness of testimony of P.W.-10 Savitri Devi as well. Why
is she denying the presence of Chunni, Kallu and Man Singh at the police station ? Prosecution has
failed to provide any answer to this question.

20. The investigating Officer Harimaya Sharma, P.W.-13 has admitted in paragraph no. 3
of his testimony that Chunni Lal (witness) and village Chowkidar Kallu and Man Singh, father of
deceased had accompanied Savitri Devi to the police Station. If presence of Man Singh is
established then it begs the question why is his presence being disowned by the informant and how
1144 INDIAN LAW REPORTS ALLAHABAD SERIES

could Man Singh arrived at village Nachni or Islam Nagar from District Aligarh within two hours
of the incident ?

21. The FIR says the appellant Prem Pal Singh was unhappy on account of alleged illicit
relationship between the deceased Charan Singh and his sister Susheela. This is the motive
suggested by prosecution for the murder of deceased Charan Singh. The fact of the matter is that
there is no evidence on record to support the claim of the illicit relationship between Susheela and
deceased Charan Singh. All witnesses of facts have denied this claim barring P.W.-10 Susheela but
even if we assume for a moment that this story of illicit relationship between Susheela, sister of
appellant Prem Pal Singh and deceased Charan Singh is true then the question would arise why was
Babu Lal involved in the murder of deceased Charan Singh ? The record reveals that accused Prem
Pal belongs to high caste and appellant Babu Lal belongs to lower caste. Appellant Prem Pal alone
could have killed Charan Singh. There is no evidence on record to suggest the close affinity
between the appellant Prem Pal and appellant Babu Lal. There is no allegation of prior concert or
prior meetings of mind. There is no whisper to suggest that both were friends. During course of
trial, feeble suggestion was made that the deceased Charan Singh also had close intimacy with
Kiran, sister of Babu Lal, but this claim is neither mentioned in the FIR nor supported by any eye
witness including P.W.-10 Savitri Devi. Infact she has denied the knowledge of any relationship
between the deceased Charan Singh and sister of appellant Babu Lal. She has clearly stated that she
did not even know the name of that girl.

22. The evidence further reveals that the marriage of Kiran was solemnized on 15.7.1980
and she had already left for her matrimonial home on next date i.e. on 16.7.1980; that leaves
appellant Babu Lal with no motive and there is no suggestion of any friendship between the
appellant Babulal and Prem Pal. Prosecution has not given any suggestion in this regard.

23. Testimony of P.W.-10 Savitri Devi is shaky on several counts. We have noted earlier
that in paragraph no. 2 of her testimony, this witness had asserted that they were going towards
Islam Nagar. Later on she changed her story and stated both her husband and she were going
towards village Nachni from Islam Nagar. This really changes the place of occurrence. The FIR
says that they were going to village Nachni. P.W.-10 Savitri Devi in her initial part of statement
says that they were going to Islam Nagar but in paragraph no. 6 of her testimony she changed her
version and stated that they were going from Islam Nagar to village Nachni for realizing the money
dues from village folks. If the narration of P.W.10 Savitri Devi is taken in account then the place of
occurrence shown in the site plan (Ex-Ka-11) becomes doubtful. Savitri Devi indicates that incident
occurred near culvert of village Nachni. No culvert is shown in the site plan (Ex-Ka-11). It is
alleged that the incident occurred near seed warehouse (cht xksnke) and she was merely four steps
away from her husband. The fact of the matter is that the incident did not occur near seed
warehouse. The contents of site plan indicate that there is distance of at least 60 yards between the
seed warehouse and place of occurrence. This witness could not name the farmers of agricultural
fields nearby. The site plan further reveals that the place of occurrence is not a desolate place and
yet not a single witness of vicinity has supported the prosecution case.
8 All. Prem Lal Vs State Of U.P.
1145
24. The credibility of P.W-10 (Savitri Devi) has further got hit by her another assertion.
She has said in her testimony that the corpse of deceased was sent first to Police Station Islam
Nagar on the same date at about 4 p.m. and next day dead body was sent to Budaun. She claims to
have spent whole night with the corpse at Police Station but this cannot be true because P.W-12
constable Subhash Chandra has testified on oath that he took the body of deceased Charan Singh
from village Nachni directly to District Head Quarter Budaun for postmortem on the same day. He
has deposed that he took the corpse in his possession at about 12 p.m. on 20.7.1980 and deposited
the dead body at district Headquarter Budaun at 7 p.m. Then he specifically and categorically
denied that the dead body was kept whole night at the police station Islam Nagar. One of two
witnesses must be lying. There is no reason for the P.W.-12 to lie about the status of the dead body.
But the discrepancy of Savitri Devi can be explained by observing that she was not present at the
place of occurrence at the time of incident and that her testimony has been later on concocted and
manufactured to lend weight to prosecution case. Inquest report (Ex-Ka-4) itself says that the
proceedings were initiated by 12.15 p.m. on the day. There was no reason for the police to keep the
dead body at village Nachni or police station subsequent to the completion of the inquest
proceedings.

25. There is something wrong about the stated knowledge of the incident of P.W-10 Savitri
Devi. Her attempt to conceal the presence of Man Singh, her father in law and other witnesses at
Police Station also creates doubt about her veracity. It is pertinent to point out that the story of
residing at Islam Nagar too has been disclosed for the first time during her testimony in the court.

26. There is another strange phenomenon. If we consider the contents of the FIR as well as
the testimony of P.W.-10 (Savitri Devi), it would reveal that both the husband and wife were
traveling on foot despite the availability of bicycle. Obviously they were traveling together. Savitri
Devi has admitted in her testimony that she was closely walking with her husband. She has
admitted that she was four paces aside from her husband. She has also conceded that it was not her
practice to accompany her husband in ordinary course. She merely accompanied her husband for
the first time due to safety concerns. It has also come in evidence that each accused fired more than
5-6 shots. Medical report and the testimony of P.W.-5 Dr. N. P. Singh discloses that several pellets
were recovered from the body of the deceased Charan Singh. The doctor has testified that as many
as 126 pellets, one cork piece, 4 "Tiklee" and several pieces of corks were taken out from the body
of deceased. The nature of injuries and description of weapon including presence of blackening and
tattooing would indicate that shots were fired from close range. P.W.-10 Savitri Devi has also stated
that accused persons first came and shook hands with the husband, searched him and then opened
fired from a few steps away. The deceased was holding his bicycle at the time. Informant was
standing by his side. More than dozen shots were fired upon him and yet not a single pellet even
touched the wife of deceased who was allegedly standing by his side. Not even a scratch resulted on
her person with this kind of indiscriminate use of two guns.

27. The effect produced by the shot gun vary according to the distance of weapon from the
body and choking device. Three injuries indicate blackening and two injuries indicate tattooing but
the deceased sustained as many as nine gun shot injuries. Injury no. 4 disclose multiple gun shot
1146 INDIAN LAW REPORTS ALLAHABAD SERIES

wound of entry each 0.25 cm X 0.25 cm and dispersal of pellets must in ordinarily course result in
some injuries to a person standing nearby. The doctor has opined that he had recovered several
pieces of corks indicating disintegration of cork at the time or prior to the impact of shot upon the
body. The medical evidence and injuries sustained would reveal that at least some pellets would
have touched the person standing nearby due to dispersal. Evidence reveal that appellant Babu Lal
allegedly refilled his gun several times, indicating discharge of guns more than once. In such a
scenario absence of even the scratch on the person of the informant is surprising. Cumulatively,
these circumstances give rise to serious doubt about the presence and truthfulness of P.W.-10
Savitri Devi.

28. In addition to that, there is inconsistency between the ocular testimony and medical
report. The testimony of Savitri Devi, solitary witness would indicate that accused persons came
from opposite side and then shot her husband after shaking hands with him and searching him, prior
to killing. She has categorically stated in paragraph no 9 of her testimony that at the time of
discharge of guns accused and deceased were standing face to face and they kept firing upon him.
This story does not explain the medical report which says that several firearm shots were found on
the back of body of the deceased. This inconsistency between the ocular testimony and the medical
evidence is also fatal to the prosecution case. Infact, it clearly belies the claim of presence of Savitri
Devi on the spot at the time of incident.

29. P.W.-10 Savitri Devi further says that she showed the place of occurrence to the
Investigating Officer. But P.W.-13 Hari Maya Sharma (Investigating Officer) disputes this
assertion. He says that the site plan was prepared at the instance of Chunni Lal. He did not even
refer to any assistance from Savitri Devi (informant).

30. Learned counsel for appellants have also raised another question. They have argued that
deceased Charan Singh was bailed out on Saturday and later on murdered on Sunday. The
testimony of Savitri Devi (informant) reveals that they were going to realize remaining dues from
the people of village Nachni and some other place. They deliberately left early with the intention of
returning back early. They did not share this information with any body, then how come accused
became knowledgeable about the whereabouts of deceased and time of his arrival? There is nothing
on record to show that such information was publicly available.

31. Surprisingly, learned Trial Judge did not question accused persons regarding alleged
relationship between Kiran and deceased during examination of accused person under Section 313
Cr.P.C. This was very pertinent question as far as appellant Babu Lal was concerned. There was no
motive for appellant Babu Lal to join any body for murder of deceased Charan Singh. Even Savitri
Devi has not made any reference regarding Kiran, sister of Babu Lal, who had already gone to her
matrimonial home four to five days prior to the incident. An opportunity should have been given to
appellant Babu Lal for explaining the alleged relationship of deceased Charan Singh with Kiran,
sister of Babu Lal under Section 313 Cr.P.C.
8 All. Prem Lal Vs State Of U.P.
1147
32. It is evident from the perusal of the impugned judgment of trial court that the defence
evidence has not been carefully considered by it. We do not understand why the statements of the
D.W.-1 A. S. Rizvi, ACO (Consolidation) and D.W.-2 Malkhan Singh, father of appellant Babu Lal
have been brushed aside in the manner as done by the Trial Judge. There is no reason why their
evidence should not be accepted when they have asserted before the trial court on oath that
appellants Babulal was present in Sultanpur on the date of incident. The courts below have held that
the two witnesses produced by the defence are unreliable. But the Trial Judge has not given any
satisfactory reason for the same. It is necessary to point out that as far as courts are concerned,
witnesses of both sides, prosecution and defence, sail in the same boat. Both have to appraised on
the touchstone of credibility and truthfulness. Courts cannot say that she will not trust some
witnesses merely because they have been produced by defence. Testimony of defence witnesses has
to be evaluated in same manner as that of prosecution. Same yardstick has to be applied. Testimony
of D.W.-1 A.S. Rizvi is cogent and credible. There was no reason for him to lie. D.W-2 Man Singh
was his subordinate. There was no pressure upon him to favour Babu Lal. We have carefully
examined the testimony of D.W.-1 A. S. Rizvi. He has established the presence of appellant Babu
Lal on the date of incident in District Sultanpur, situated at long distance away. We feel that there is
no reason to disbelieve his evidence especially in the light of shaky, weak and untrustworthy
evidence of P.W-10 Savitri Devi who alone tried to support the prosecution story, out of seven eye
witnesses produced by the prosecution.

33. As discussed above, P.W. 10 (informant) is not reliable and there is no other evidence
on record to support the conviction of appellants. There are very serious and significant
inconsistencies in the prosecution. Six stated witnesses have not supported the prosecution case.
Presence of remaining witness P.W.-10 Savitri Devi is highly doubtful. We have carefully
scrutinized her evidence. We believe the evidence of P.W.-10 Savitri Devi is not of such sterling
quality so as to make it safe to base conviction solely on her testimony. Her evidence is not free
from blemish or suspicion. We do not find her evidence trustworthy. We have a lurking suspicion
about her presence on the spot at the time of incident. We therefore, find it unsafe to sustain the
conviction of the appellants on the sole testimony of PW-10 Savitri Devi. We, therefore, hold that
the appellants are entitled of benefit of doubt.

34. In the result, we allow this appeal and set aside the conviction and sentence of the
appellants and direct that they shall be released forthwith, if in jail, unless required in any other
case. In case the appellants are on bail, the bail bonds are cancelled and sureties are discharged.

35. Let this judgment be certified to the concerned Court within 15 days. The concerned
court shall report a compliance within one month thereafter.
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1148 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1148
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE MRS. VIJAY LAXMI, J.

Criminal Appeal No.- 1873 Of 2016

Sanjeev @ Sanju ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
Shri Jitendra Rana

Counsel for the Respondent:
G.A.

Held -

Paragraph 1: Appeal and Conviction Details
This criminal appeal challenges the judgment dated December 24, 2015, passed by the Additional Sessions
Judge/F.T.C., Baghpat, in S.T. No. 443 of 2012. The trial court convicted the appellant, Sanjeev @ Sanju,
under Sections 376 and 506 of the Indian Penal Code (IPC) for allegedly raping and threatening the
prosecutrix. He was sentenced to seven years of rigorous imprisonment under Section 376 IPC and one year
under Section 506 IPC, to run concurrently.

Paragraph 2-3: The Prosecution's Case
The prosecution alleged that in late June 2012, while the prosecutrix's husband was away in Gauhati for a
family ritual, the appellant (the husband's nephew) called her to his house at 6:00 AM under the pretext of
milking his cow. Once there, he allegedly forced her into his bedroom and raped her. The trial court found this
account reliable and convicted the appellant.

Paragraph 4: Grounds of Appeal
The appellant challenged the conviction on multiple grounds: the absolute lack of external/internal bodily
injuries or chemical evidence of spermatozoa; material contradictions in the sole testimony of the prosecutrix;
and the complete disregard of defense evidence showing a financial dispute where the prosecutrix falsely
implicated the appellant to evade a loan repayment.

Paragraph 5-6: Arguments and Witness Layout
The State (A.G.A.) supported the conviction, arguing that a rape conviction can stand solely on the
uncorroborated testimony of the victim. Upon reviewing the record, the High Court noted the prosecution
examined six witnesses (only the prosecutrix being a witness of fact), while the defense produced two
witnesses, including the victim's own husband (DW-2).

Paragraph 7: Testimony of the Prosecutrix (PW-1)