# Ram Kishore & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Criminal Appeal No.1400 of 1993
- **Bench:** Arvind Kumar Mishra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishore-anr-in-jail-v-state-of-u-p-46079
- **Pages:** 10

## Headnote

Law-Appeal
Against
the
Conviction U/S 302,34, 201 IPC

Circumstantial
Evidence-
Circumstantial
Evidence must be interwoven to establish the
guilt. (Para 15)

Section 106 of Evidence Act- Fact especially
within knowledge of accused- burden of proof to
disprove the fact is on the accused. Burden not
discharged by Applicant No. 1. Hence, appeal by
Applicant No. 1 dismissed, is exonerated.
However, Applicant No. 2.

Appeal partly allowed. (E-2)

## Text

9 All. Ram Kishore & Anr. Vs. State of U.P.
797
his innocence, the view which is favourable
to the accused should be adopted. [Vide
Kali Ram Vs. State of Himachal Pradesh,
(1973) 2 SCC 808; State of Rajasthan Vs.
Raja Ram, (2003) 8 SCC 180; Chandrappa
& Ors. Vs. State of Karnataka, (2007) 4
SCC 415; Upendra Pradhan Vs. State of
Orissa, (2015) 11 SCC 124 and Golbar
Hussain & Ors. Vs. State of Assam and
Anr., (2015) 11 SCC 242]. In the instant
case, considering entire evidence carefully
it is quite manifest that the long delay in
holding the test identification parade
coupled
with
other
infirmities
and
inconsistencies, as pointed out above,
render the prosecution case doubtful. As
stated earlier no recovery has been effected
from possession of any of the accusedappellants and that it is also thoroughly
doubtful whether the accused-appellants
have been arrested in the manner as alleged
by the prosecution. In view of all these
facts, it would not be safe to base
conviction of accused-appellants merely on
the basis of their alleged identification.

41. All the five accused-appellants
deserve benefit of doubt. Accordingly,
impugned
judgment
and
order
of
conviction and sentence is set aside and
accused appellants Ram Shanker, Mahesh,
Bodhu, Chhotey Lal and Ram Babu are
acquitted of the charge levelled against
them. Accused-appellants are stated on bail,
their personal bonds are cancelled and
sureties discharged.

42. Appeal allowed.

43. Office is directed to transmit the
record of trial court as well as copy of this
judgment to the court below.
----------
(2020)09ILR A797
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No.1400 of 1993

Ram Kishore & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Lallu Singh, Sri Rahul Mishra

Counsel for the Opposite Party:
A.G.A.

Criminal
Law-Appeal
Against
the
Conviction U/S 302,34, 201 IPC

Circumstantial
Evidence-
Circumstantial
Evidence must be interwoven to establish the
guilt. (Para 15)

Section 106 of Evidence Act- Fact especially
within knowledge of accused- burden of proof to
disprove the fact is on the accused. Burden not
discharged by Applicant No. 1. Hence, appeal by
Applicant No. 1 dismissed, is exonerated.
However, Applicant No. 2.

Appeal partly allowed. (E-2)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J. &
Hon'ble Gautam Chowdhary, J.)

1. Heard Sri Lallu Singh and Rahul
Mishra, learned counsel for the appellants
and Sri Rajiv Kumar Rai, learned A.G.A.
for the State and perused the record.

2. By way of the instant appeal
challenge has been made to the authenticity
and veracity of the judgment and order of
conviction dated 19.8.1993 passed by the
798 INDIAN LAW REPORTS ALLAHABAD SERIES
IV Additional Sessions Judge, Fatehpur in
S.T. No. 403 of 1992 State Versus Ram
Kishore and others under sections 302/34
I.P.C. whereby the appellants have been
convicted under sections 302/34 I.P.C. and
sentenced to imprisonment for life in the
first count. In the second count convicted
and sentenced under section 201 I.P.C. for
five years rigorous imprisonment. Both the
sentences have been directed to run
concurrently.

3. The facts relevant for adjudication
of this appeal as gathered from the record,
appear to be that some written report was
presented by the informant Ram Saran,
scribed by one Kishori Lal Pradhan
addressed to the Station House Officer of
Police Station Husainganj district Fatehpur
with the allegations that the informant is
the resident of village Latikpur within the
police station Thariyon. The informant's
brother Goverdhan had lent Rs. 500/- to
Ram Kishore son of Maiku Lodh and on
demand being raised for paying back the
money, it was refused and dilly dallying
tactic was adopted for the last for months.
It so happened that Kishori Lal began to
reside in village Kazipur within the police
station Husainganj with his brother-inlaw(Sarhu) Chheddu and used to visit his
village occasionally. It was on Saturday
24th August, 1991, the informant's brother
Goverdhan raised demand for the money
whereupon his brother( Ram Kishore),
Ram
Kripal
asked
Goverdhan
to
accompany them to Kazipur where the
money will be given to him, whereupon,
the two brothers departed in the company
with the deceased. When the deceased did
not return, inquiry was made at Kazipur
also, besides being made at several places
but no trace of the deceased was made.
While the process of search was on, the
dead body of the informant's brother was
found/traced in the western side lake of the
village Hasanapur. Information of the same
was given at the police station. It is
gathered from the record that this written
report was received at P.S. Husainganj at
3.30 p.m. and relevant note of the same
entered in the G.D. Rapat No. 22 at 3.30
P.M. on 28.8.1991. The investigation
ensued and the same was entrusted to the
Investigating Officer R.B.Singh,the S.O.
who after lodging of the report proceeded
to the spot and prepared the inquest report
and also prepared the relevant papers for
sending the dead body for post mortem
examination.

4. Dr. S.S. Banarjee, P.W. 4
conducted the autopsy on the cadaver of the
deceased on 24.8.1991 at 3.00 P.M. The
dead body was identified by Constable
Ram Sukh and Constable Rajendra Prasad.
Following ante mortem injuries were noted
at the time of examination by the doctor on
the cadaver of the deceased.

1. Firearm wound of entry 5 cm x
4 cm just behind left ear, bone deep,
blackening around wound was present. On
dissection there was fracture of temporal
and occipital bone. 24 pellets and one
wadding were present in the brain cavity.

2. Firearm wound of entry 3 cm x
2.5 cm left mid axillary line on left lateral
aspect of abdomen 8 cm above illiac crest
cavity deep. Blackening around wound was
present. On dissection spleen and left
kidney lacerated. Stomach and intestine
perforated. About 1 lit. of blood present 33
pellets, 1 Tikuli and 1 wedding pieces
recovered.

5. The post mortem examination
report has been proved which is exhibit Ka2.
9 All. Ram Kishore & Anr. Vs. State of U.P.
799

6. Besides, he also prepared the site
plan Exhibit Ka-10. These papers are
exhibit Ka-4 to Ka-10. The further course
of investigation from hence onward was
taken over by the second Investigating
Officer Ghanshyam Ahirwar on 9.9.1991.
He recorded the statement of the wife of
the deceased Yasodiya and Ram Raj and
after completing the investigation filed the
charge sheet Exhibit Ka-3.

7. Consequently, the case was
committed to the court of Sessions from
where it was transacted to the trial court of
Additional Sessions Judge, Fatehpur, who
in turn heard the prosecution and the
accused on the point of charge under
sections 302/34 and 201 I.P.C., charges
explained to the accused but the same were
denied by the accused and they opted for
trial.
Consequently,
the
prosecution
produced in all seven witnesses. Brief
sketch of the same is ut infra:-

8. P.W. No. 1 Ram Raj, is a witness
of fact of last seen. Ram Saran, is P.W. 2
who is the informant and has proved the
written report, which is exhibit Ka-1.
Yasodiya, P.W. 3 is the wife of the
deceased and star witness and she is the
witness of fact of last seen, apart from
proving the fact of the lending transaction
(worth Rs 500/-) between the deceased
Goverdhan and Ram Kishore.

9. Dr. S.S. Banarjee, P.W.4 has
conducted the autopsy and has proved it as
exhibit Ka-2. Ghanshyam Ahirwar P.W. 5
was the subsequent Investigating Officer,
he has proved the filing of the charge sheet
exhibit Ka-3. S.I. R.B. Singh P.W. 6 is the
first Investigating Officer who took over
the investigation on 28.8.1991 and took
several steps in furtherance of completion
of
the
investigation.
However,
the
investigation was taken over by another
Investigating Officer from him. Constable
Hakim Singh, P.W.7 is the formal witness
who has proved the entry made by him
after the receipt of the written report in the
concerned G.D. of date 28.8.1991 and has
proved it as exhibit Ka-1.

10. The prosecution evidence was
closed and the statement of the accused was
recorded under section 313 Cr.P.C. wherein
the case was stated to be false one and no
evidence whatsoever was led by the
accused-appellants. The court below after
considering various aspects of the case and
considering the nature of the case to be one
based
on
circumstantial
evidence
scrutinized the relevant record and the vital
circumstances of the case and recorded
finding of conviction under sections 302/34
and section 201 I.P.C. and consequently,
sentenced the accused to life imprisonment
and rigorous imprisonment for five years
respectively resultantly, this appeal.

11. Learned counsel Sri Rahul
Mishra, for appellant No. 2 Ram Kripal
claimed that it is a case of blind murder and
no one knows as to how it occurred and a
baseless, false concocted theory has been
setup
by
the
prosecution
regarding
existence of some money transaction
having taken place between the deceased
(Govardhan) and the brother of the present
appellant to the ambit that some lending
transaction worth Rs. 500/- took place
whereby Ram Kishore, in fact, obtained on
credit the above money from Goverdhan.
There is nothing in the shape of consistent
circumstances which may point out that the
appellant ever participated at any moment
of time in the commission of the crime.
More so, assuming it to be that the money
transaction had taken place between the
deceased and the brother (Ram Kishore) of
800 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant (Ram Kripal) and it was
existing even then the present appellant Ram
Kishore who is and was admittedly residing
separately in separate house in the village at
the time of the occurrence had no motive to
commit the offence because the money
transaction in question was exclusively
between the two persons, the deceased and
the accused Ram Kishore. Merely being real
brother of the main accused (Ram Kishore)
would not itself be sufficient to impute
motivation to commit the crime. On the
contrary, it would be highly conjectural to act
on that aspect as Ram Kripal being interested
in involving Govardhan, as such there is
every possibility of false implication of the
appellant Ram Kripal in this case. The
testimony of the prosecution witnesses is on
the face testimony of interested and partisan
witnesses, they are not worthy of credit.
There are various loopholes explicit and
implicit in the prosecution story. There is no
certainty as to what the witnesses of fact
depose either circumstantial or as direct
testimony that the accused appellants were
ever seen around the place from where the
dead body of deceased Govardhan was
recovered and no whisper in that regard
emerges from the entire testimony. The
prosecution evidence on the point of the
alleged presence of the accused on the spot at
the relevant point of time gives rise to the fact
that it is a case of false implication on the
ground that enmity existed between the
parties and hot altercation also took place
while
the
chakbandi
process
was
underway/followed in the village. The motive
suggested is weak. There is no direct and
clinching testimony on point showing fact
that the money transaction in fact assumed
graver objective for committing the murder
of Govardhan.

12. So far as the proximity of the time
gap between the last seen theory and the
recovery of the dead body is concerned,
admittedly the dead body was recovered on
28.4.1991 and the matter was reported
around 3.30 p.m. the very same day
however the last seen is stated to have
taken place after 3.00 p.m. on 24.8.1991.
No efforts made by the I.O to collect the
development that took place between the
above period.

13. There is no recovery of any sort
whatsoever from any of the accused what
to say about the appellants. Under the
aforesaid attendant facts and circumstances
of this case, possibility of some other
committing the offence cannot be ruled out
and it cannot be said that all the
circumstances
have
been
consistently
established by the prosecution against the
accused so as to establish the hypothesis of
guilt. The circumstances proved do not give
rise to any hypothesis of the guilt of the
accused that he alone is the author of the
crime to the exclusion of all others. The
various links in the chain of circumstances
are woefully incomplete in this case.

14. Surprisingly, the Investigating
Officer being highly enthusiastic and
zealous has perfunctorily investigated the
case and filed the charge sheet, apart from
other sections of Indian Penal Code, under
section 364 I.P.C as well. It means the act
of abduction was also found proved against
the appellants by the Investigating Officer
but there is no evidence in regard to any
abduction being made of the deceased
Govardhan.

15. All the prosecution witness are
highly interested and partisan witnesses and
their testimony cannot be believed to be
clinching one and in the absence of any
independent
corroboration
from
independent source the testimony becomes
9 All. Ram Kishore & Anr. Vs. State of U.P.
801
wholly unreliable. No one in fact saw the
deceased in the company of Ram Kishore.
There is no cogent evidence of fact of last
seen and the proximity of the time between
last seen and the day when the dead body
was recovered is huge not properly
explained. No one saw the appellants
accused near or around the place of
occurrence (lake) at any point of time after
the alleged disappearance of the deceased
Goverdhan from his house, which raises
serious doubt and questions authenticity of
the version of fact of accompaniment of the
deceased by the accused Ram Kishore. Fact
is that, no money transaction whatsoever
took
place
between
the
deceased
Goverdhan and Ram Kishore and a false
story has been set up in order to falsely
implicate the accused-appellants for no
worthy reason except on account of the
village enmity. All the circumstances as
were required to be proved in such a case
like
the
present
one,
based
on
circumstantial evidence have not been
properly proved. The circumstances proved
are weak, incomplete and inconsistent.
Normally, in a case based on circumstantial
evidence all the links in the chain of the
various circumstances must be consistently
interwoven to establish the guilt leading to
the inevitable evidence that the accused
was the perpetrator of the crime and to
exclude every hypothesis except the guilt
of the accused.

16. Learned counsel summed up that
the conduct of the informant side is most
unnatural. Assuming it to be that any such
incident as last seen occurred on 24.8.1991
as alleged by the prosecution, then till the
recovery of the dead body, the conduct of
all the family members of the deceased was
not natural as was expected in the wake of
disappearance of the deceased Goverdhan
from his house and that natural aspect has
neither been appraised by the trial court nor
established by the prosecution.

17. While replying to the aforesaid
contention the learned A.G.A. Sri Rajiv
Kumar Rai, vehemently claimed that it is a
case based on circumstantial evidence for
the reasons that no one saw the actual
occurrence, the dead body was recovered
on 28.8.1991 when alone the matter was
reported by P.W. 2 Ram Saran. The
occurrence has its genesis/origin in specific
motive to commit the murder on account of
fact that Rs. 500/- was obtained/borrowed
by Ram Kishore earlier from the deceased
Goverdhan and demand was raised by
Govardhan for payment of the same, the
evidence is overwhelming to the ambit that
out of Rs. 500/- some money- say Rs. 200/-
had been returned but Rs. 300/- remained
to be paid. It so happened that Goverdhan
was whisked away on 24.8.1991 after 3.00
p.m. by the accused Ram Kishore from his
house, while the wife of the deceased
(Goverdhan) was also present in the house.
The deceased took his meal/ lunch while
Ram Kishore waited outside the house
sitting on a cot. After the meal was over,
Ram
Kishore
took
the
deceased
(Goverdhan) in the name of paying back
the money by asking him (the deceased) to
accompany him upto Kazipur. Thereafter,
no trace of the deceased could be made
despite hectic search being made by the
members of the family of the deceased. But
prior to that it as emerged in the testimony
of the prosecution witness particularly- P.
W. 1 and P.W. 2 that Ram Kripal, the
brother of the main accused Ram Kishore,
who resided in a separate house in the same
village also joined Ram Kishore on way
with the deceased. This fact of last seen is
unimpeachable. Thus, the complicity of
both the accused being real brothers having
strong motive against the deceased in not
802 INDIAN LAW REPORTS ALLAHABAD SERIES
returning the money lent by the deceased to
Ram Kishore was the deciding factor for
committing the murder of the deceased
Goverdhan. The theory of last seen has
been proved by both P.W. 2 and P.W. 3
against both the appellants, and it cannot be
doubted from any stretch of imagination.
The various links in the chain of
circumstances
have
been
consistently
proved and these circumstances inevitably
point of guilt of the accused beyond
shadow of doubt. There is no reason for
false implication and leaving the real
culprit at wisdom.

18. So far as the Investigating Officer
is concerned, he has rightly conducted the
investigation and recorded the statement
and has rightly filed the charge sheet
against the accused in view of the proved
facts and circumstances. This being so the
onus to disprove the various facts
pertaining to the accompaniment of the
deceased by both the accused can be
discharged under section 106 of the Indian
Evidence Act, 1872. But this burden has
not been discharged even in the least.

19. Now, the disappearance of the
deceased from his house in company with
the accused is a fact specially within the
knowledge of both the accused and they
alone are required to disprove this fact by a
reasonable explanation as to at what point
of time they departed the company with the
deceased. This explanation is altogether
missing and in the absence of any such
explanation explicit or implicit, the only
hypothesis
that
emerges
from
the
circumstances proved that the accused are
guilty of the charge, thus leaving aside
every hypothesis of crime being committed
any other person but the accused. Not only
this but also suggestion has been made by
the defence in that regard that there was
some one else who could have committed
the murder.

20. Also considered the rival
submissions.

21. We may proceed upon the
material to co-relate the entire story say
exhibit Ka-1. The description of the
background of the incident and the incident
of last seen as claimed by the prosecution is
very much detailed in the report. The
written report was lodged after the dead
body of the victim was recovered from a
huge water body in village Hasanapur on
28.8.1991. It describes the incident in the
shape that some time prior to 24.8.1991 Rs.
500/- was demanded by Ram Kishore from
Goverdhan understood in terms of some
loan and the money was given by
Govardhan to Ram Kishore, on demand
being raised for return of the money, the
same was prolonged and not returned for
the last four months prior to the incident,
the deceased began to reside with his
brother-in-law Chheddu at village Kazipur
within police station Husainganj. On
24.8.1991 Goverdhan demanded from
Ram Kishore the money whereupon Ram
Kishore and his brother Ram Kripal asked
him to accompany them to Kazipur where
the money will be given and took away
with them the deceased but the deceased
did not return and on search being made no
trace of the deceased was found. The
search for trace continued from the day of
disappearance
(24.8.1991) and, it so
happened that the dead body of the
deceased Goverdhan was recovered from
the lake at village Hasanapur. It was only
after recovery of the dead body that the
information was given to the police station
Husainganj. It is noticeable that the case
was lodged at case crime no.181 of 1991
under section 364 I.P.C. 302/201 I.P.C. and
9 All. Ram Kishore & Anr. Vs. State of U.P.
803
the
investigation
was
commenced.
Particular to take note of the fact that the
Investigating
Officer
recorded
the
statement of the various witnesses and in
particular the statement of P.W. 1 and P.W.
3 to the effect that both the accused being
the real brothers somehow whisked away
the deceased Goverdhan and thereafter the
dead body of the deceased (Goverdhan)
was recovered from a pond/lake in village
Hasanapur.

22. In the backdrop of the aforesaid
asserted facts, we may scrutinize the
testimony of the witnesses of fact, but
before proceeding with the same certain
aspects of the case which are admitted to
both the sides need be referred for
convenience. It is admitted case that there
is no eye account testimony of the
occurrence by which the two firearm
wounds (as per PMR) were caused to the
deceased, therefore, it is a case purely
based on circumstantial evidence.

23. In this case, the various links in
the chain of evidence should be specific
and must be consistently interwoven so as
to point out and establish invariably the
guilt thus proving the case within the four
corners of circumstantial evidence case
and lastly, the various links in the chain of
circumstances being proved consistently
must be of nature leaving aside every
hypothesis of innocence but the one
proposed to be proved against the accused
that they alone committed the offence to
the exclusion of all others!

24. While considering the case on
meritorious count we come across the
testimony of the prosecution witnesses of
vital facts-say-the last seen in the shape of
P.W. 1 Ram Raj and P.W.3 Yasodiya. To
be specific, the testimony of P.W. 3
Yasodiya direct, is cogent and consistent
on the point of the specific day i.e.
24.8.1991 when the last seen episode
occurred. She has come out with the
description that it was around 3.00 p.m.
when her husband Goverdhan returned
home from market along-with Ram Kishore
and took his noon meals while Ram
Kishore was sitting outside the house on a
cot. Thereafter on the pretext of giving
money to the deceased, Ram Kishore took
the deceased with him and proceeded to
Kazipur. At this place there is no mention
of another co-accused say Ram Kripal that
he was either present on the spot or he
accompanied the deceased along-with Ram
Kishore at the starting point the house of
Goverdhan from where the last seen theory
commenced as emerging in the testimony
of P.W. 3, but the clue is supplied by the
testimony of P.W 1 Ram Raj regarding fact
of accompaniment of Ram Kripal with the
deceased. The magnitude of his statement
shows that while sitting at his house he
saw Ram Kishore and Goverdhan coming
together whereas while so proceeding Ram
Kripal who resides in another house of the
village joined them. This specific piece of
testimony of P.W. 3 and P.W. 1 when taken
as a whole goes to cumulatively establish
fact of 'last seen' of causing disappearance
of both the accused with the deceased at a
particular point of time on 24.8.1991, but
we have reasonable doubt regarding the
fact of such participation in the incident by
co-accused Ram Kripal particularly on the
point as to from where Ram Raj saw Ram
Kripal joining the deceased and Ram
Kishore, because there is no site plan
prepared of the place from where Ram Raj
in fact saw the house of Ram Kripal and it
cannot be said with certainty that Ram Raj
was either in front of the house of Ram
Kripal or the house of Ram Kripal was
near his house within the visibility of this
804 INDIAN LAW REPORTS ALLAHABAD SERIES
witness. In the absence of any such direct
testimony about the exact position of the
respective houses of Ram Raj and Ram
Kripal, we may conclude, in so far as the
point of presence of Ram Kripal in the act
of joining the accused is concerned the
same is rendered most suspicious, and this
is a vital link in the chain of circumstances,
thus rendering this act of participation in
the crime by Ram Kripal becomes doubtful.
Therefore,
Ram
Kripal
can
not
be
considered to have participated in the
incident of last seen thus this part of
evidence cannot be given credence. More
so, the witness P.W. 1 Ram Raj is also a
family member/relative of the deceased.
There are certain reasons for this witness
being interested in falsely involving the
real brother of the main accused (Ram
Kishore) in the incident. Therefore it is not
safe to believe the theory of last seen to
have been reasonably established and
proved as against the another co-accused
Ram Kripal. However, in so far as the fact
of last seen against the main accused Ram
Kishore is concerned then we have before
us not only the testimony but also the
circumstances
of
this
case,
which
innocuously and inevitably lead us to the
conclusion that Ram Kishore in fact took
with him Goverdhan to his house and
from there he took him to Kazipur and this
piece of testimony is virtually unassailable
and unimpeachable. P.W. 3 Yasodiya has
not been challenged even in the least
manner about the very fact of presence of
Ram Kishore at the house of Goverdhan.
Similarly, there is no challenge to the act of
accompaniment as has been alleged against
the accused Ram Kishore. Not only this
much, but also the fact of accompaniment
had a motive and that motive also stood
proved and has not been challenged even in
the least and in particular P.W.3 Yasodiya
by the defence particularly by the accused
Ram Kishore. For that count without
unnecessarily
scrutinizing
threadbare
dealing with fact of last seen and also on
the ancillary aspects of the case we may
unhesitatingly hold that in this case
prosecution has been able to prove and
establish the fact of strong motive to
commit the crime against the accused Ram
Kishore and each link on the chain has
been reasonably established. Theory of last
seen and the very motive behind the crime
have been proved and established beyond
doubt. Now the last seen stood unassailably
established against the accused Ram
Kishore along-with the motive. Now the
point is to be explained by Ram Kishore
himself as to where he took the deceased
with him after he departed with the
deceased from his house and this particular
aspect became a fact within the special
knowledge of accused Ram Kishore. Thus
this particular fact is a state of thing or
mental condition of which the accused is
conscious and in this case 'fact in issue' is
disappearance and consequent death of
Goverdhan. We may observe that burden
of proof of special and particular fact if
found to be within the knowledge of any
person then the person whosoever he may
be is required to prove that fact.

25. We have carefully perused the
entire statement of accused Ram Kishore
recorded under section 313 Cr.P.C. wherein
no specification in shape of reasonable
explanation of this particular fact has come.
At the time of arguing this appeal no
explanation is forthcoming on this point.
Argument has been raised to the ambit that
in this case the time gap between the last
seen and the time of recovery of the dead
body is huge and it indicates that the
offence might have been committed by any
one else. But the contention raised is
merely based on imagination for the reason
9 All. Ram Kishore & Anr. Vs. State of U.P.
805
that the doctor has deposed, inter alia, with
an explanation that the death of Goverdhan
might have taken place any time after 3.00
p.m. on 24.8.1991 up to the time of
recovery of the dead body (which day is
28.8.1991). In between that span of time
fact of death has been affirmed and there is
no one else who can be imputed to have
any interest in committing the murder of
the deceased nor any such circumstance is
found emerging, surprisingly not a single
suggestion on this point has been given by
the defence as to who else could have been
the interested person to have the animus to
commit the offence.

26. Upon consideration of the aspect
of investigation, we may observe that it
cannot be said that the I.O was somehow
interested in availing conviction of the
accused and with that motive in mind he
carried out unfair investigation and filed
the charge sheet against the accused.
Consequently, the contention raised in that
regard are hereby not accepted by us.
Moreover, no evidence or circumstance
exist in this case to think of argument that
the investigation of this case was shoddy.

27. We may conclude that the trial
court
while
analyzing/scrutinizing
the
various facts and circumstances of the case
vis a vis the testimony of P.W 1 and P.W 3
wrongly recorded the finding of conviction
against the accused Ram Kripal that he too
was involved in carrying away/abducting
Goverdhan in the company with Ram
Kishore. The case of Ram Kripal as
observed above becomes doubtful and for
the reason aforesaid his complicity in the
offence has becomes dubious and we can
observe with ease that he (Ram Kripal)
being the real brother of Ram Kishore, has
been falsely implicated in this case. We
may add here that he had no strong motive
to commit the murder and he resided
separately from his brother Ram Kishore.
At that point of time when the alleged
disappearance of the deceased was caused
by Ram Kishore, merely a balld statement
in the form that Ram Kripal also
accompanied his brother Ram Kishore and
Goverdhan on way while they were
proceeding towards Kazipur would not be
suffice to believe the theory of last seen as
against him though proved beyond doubt
against Ram Kripal.

28. Consequently, in so far as the
finding of conviction in respect of appellant
co-accused No. 2 Ram Kripal is concerned,
finding of conviction recorded under
section 302/34 I.P.C. and section 201 I.P.C.
against him is set aside and he is
exonerated of both the charges, accordingly
he is acquitted of the same. He is stated to
be on bail. His personal bond is cancelled
and sureties are discharged.

29. However, in so far as the case of
another appellant No. 1 Ram Kishore is
concerned his case stands proved in totality
qua the charges and he has been rightly
convicted by the trial court and this finding
of conviction recorded under sections
302/34, and section 201 I.P.C. are hereby
affirmed by us.

30. Consequently, this appeal in so far
as it relates to the conviction and sentence
of accused Ram Kishore; under aforesaid
sections of the Indian Penal Code is
concerned, is hereby dismissed whereas the
case of the appellant No. 2 is accepted and
his claim for exoneration is allowed. Thus,
this appeal is partly allowed in terms
aforesaid.

31. Appellant Ram Kishore is on bail,
his personal bail bonds are cancelled he be
806 INDIAN LAW REPORTS ALLAHABAD SERIES
taken into custody forthwith to serve out
the sentence imposed on him by the trial
court.

32. A copy of this order be certified
to the court concerned.
----------
(2020)09ILR A806
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAVI NATH TILHARI, J.

Criminal Appeal No.1557 of 2015

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

Counsel for the Appellant:
Sri Vinod Singh, Sri Rajeev Trivedi, Sri
Rohit Verma, Sri Shailesh Pandey, Sri S.S.
Tripathi

Counsel for the Opposite Party:
A.G.A., Sri Rahul Kumar Pandey

Appeal against Conviction U/S Section 302
& 307 of IPC

Criminal Law-Delay in Lodging F.I.R.- No
adverse inference\ for delay in lodging F.I.R.
(Para 19)

Prosecution version cannot be rejected solely on
the ground of delay in lodging F.I.R. (Para 22)

F.I.R. is not Encyclopaedia
Only essential and broad picture needs to be
stated in the F.I.R. (Para 35)

Section 313 of CrPC. - (Power to examine the
accused) - Once a plausible version has been
put in defence at the examination stage, then it
is for the prosecution to negate each defense
plea. (Para 40)
Importance of motive in direct witnesses-
Where the direct witness is worthy of credence
and can be believed then question of motive
does not carry much weight. (Para 61)

Appellant was rightly held guilty by the trial
court.

Appeal dismissed. (E-2)

List of Cases cited: -

1. Ravinder Kumar & anr. Vs St. of Punj.

2. Sahebrao & anr. Vs St. of Mah.

3. Palani Vs St. of T.N.

4. Amar Singh Vs Balwinder Singh & 4ors. &
Tara Singh Vs St. of Punj.

5. V.K. Mishra & ors. Vs St. of Uttar. & 6 ors. Latesh
Vs St. of Maha.

6. M. Abbas Vs St. of Kerala

7. Parminder Kuar @ P.P. Kaur @ Soni Vs St. of
Punj

8. Sampath Kumar Vs Inspector of Police,
Krishnagiri

9. Sachin Kumar Singhraha Vs St. of Madhya
Pradesh

10. Smt. Shamim Vs State of (GNCT of Delhi)

11. Shivraj Bapuray Jadhav & ors. Vs St. of
Karnataka

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

1. The instant appeal assails the
correctness of the judgment and order dated 16
February 2015, passed by the Additional
Sessions Judge, Court No. 3, Bulandshahr, in
State of U.P. vs. Tushar @ Golu, arising from:

i. Sessions Trial No. 3A of 2013
Crime No. 428 of 2012 under Sections 302
and
307
IPC;