# Ram Krishna v. State of U.P

- **Citation:** (2024) 11 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-05
- **Case number:** Criminal Appeal No. 748 of 1983
- **Bench:** Siddhartha Varma, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-krishna-v-state-of-u-p-50988
- **Pages:** 8

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections-161, 207 & 313 -
Indian Penal Code,1860 - Section 302 -
Arms Act,1959 - Sections - 25, 25(1)(a) &
25(1)(b) - Appeal - against conviction &
sentence - offence of murder - FIR - allegation
that, when the accused called the deceased son
of informant from his house and when he
reached at door he shot at and died on spot -
investigation - trial by session judge -
conviction & sentence - benefit of doubt -
Evaluation of evidence - court finds that, in the
light of finding of trial court its becomes
imperative to examine the witness on two
aspects - firstly motive & secondly the act
performed by the accused in commission of
crime - the motive behind the commission of
murder according to PW-1 (informant, father of
deceased) that despite reprimand the deceased
kept working with Bhagwan Singh with whom
he had animosity - convention is based solely
on the testimony of PW-1 and PW-3 - PW -1 in
stated that the incident was witnessed/seen by
Murlidhar, Ram Ratan, Ram Asrey, Chaman,
Rafiq, but filed to justify except Ram Asrey (PW-
11 All. Ram Krishna Vs. State of U.P.
141
2) as to why the police are not produced the
other witnesses - and police witness Bhagwan
Singh whose name is also figured in FIR and
whom had animosity with accused has also not
produced which caste serious doubt on the
prosecution story - Moreso when suggestion
was given to the PW-1 that his son's name was
arrayed as an accused in the murder of
Bhagwan Singh's father, showed ignorance
which also cast doubt on the truthfulness of the
witness deposited - held, conviction, based on a
testimony which is neither wholly reliable nor
wholly
unreliable,
would
be
unsafe
-
accordingly, appellant is entitled for the benefit
of doubt as suspicion so raised cannot take the
place of evidence - Appeal allowed - impugned
conviction and sentence is hereby set-aside.
(Para - 18, 24, 25, 26, 27)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

140 INDIAN LAW REPORTS ALLAHABAD SERIES
of jurisdiction, the argument of the Counsel
for the petitioner cannot be sustained as
there is no error or infirmity in the order
impugned dated 10.03.2023 passed by the
Commercial Court, Lucknow and the same
is upheld."

14. In the matter of Bharat Petroleum
Corporation Ltd.(Supra) Allahabad High
Court has taken the very same view.

15. Now coming to the present case. It
is undisputed that the dispute is arising out
of acquirement of land of petitioners at
District Etawah, meaning thereby, property
and assets of the petitioners is situated at
there, therefore, even if the office of
petitioners is at Kanpur or arbitration award
was pronounced at Kanpur, that would
make no difference in filing of execution
proceeding
at
Etawah
in
light
of
interpretation made by the Hon'ble Apex
Court and the provision of CPC as well as
Act, 1996 occupying the field. Therefore,
this Court is of the firm view that
impugned order is very well in conformity
of the law laid down by the Hon'ble Apex
Court.

16. Now coming to the another
argument of the learned counsel for the
petitioners about the acquiescing the right
to raise objection about the jurisdiction.
Undisputedly against an award given at
Kanpur,
petitioners
themselves
have
preferred appeal under Section 34 of the of
the Act, 1996 before District Judge,
Etawah, therefore, petitioners acquiesce
their right and their objection is certainly
barred by Section 4 of the Act, 1996. He
cannot raise these objections at this stage.

17. Therefore, on both counts, I found
no illegality or infirmity in the impugned
order dated dated 05.08.2024.

18. Petition lacks merit and is hereby
dismissed.
----------
(2024) 11 ILRA 140
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 748 of 1983

Ram Krishna ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
N.K. Saxena, Ashok Kumar Dwivedi, Ram
Kishore Gupta

Counsel for the Respondent:
K.P. Shukla, A.G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections-161, 207 & 313 -
Indian Penal Code,1860 - Section 302 -
Arms Act,1959 - Sections - 25, 25(1)(a) &
25(1)(b) - Appeal - against conviction &
sentence - offence of murder - FIR - allegation
that, when the accused called the deceased son
of informant from his house and when he
reached at door he shot at and died on spot -
investigation - trial by session judge -
conviction & sentence - benefit of doubt -
Evaluation of evidence - court finds that, in the
light of finding of trial court its becomes
imperative to examine the witness on two
aspects - firstly motive & secondly the act
performed by the accused in commission of
crime - the motive behind the commission of
murder according to PW-1 (informant, father of
deceased) that despite reprimand the deceased
kept working with Bhagwan Singh with whom
he had animosity - convention is based solely
on the testimony of PW-1 and PW-3 - PW -1 in
stated that the incident was witnessed/seen by
Murlidhar, Ram Ratan, Ram Asrey, Chaman,
Rafiq, but filed to justify except Ram Asrey (PW-
11 All. Ram Krishna Vs. State of U.P.
141
2) as to why the police are not produced the
other witnesses - and police witness Bhagwan
Singh whose name is also figured in FIR and
whom had animosity with accused has also not
produced which caste serious doubt on the
prosecution story - Moreso when suggestion
was given to the PW-1 that his son's name was
arrayed as an accused in the murder of
Bhagwan Singh's father, showed ignorance
which also cast doubt on the truthfulness of the
witness deposited - held, conviction, based on a
testimony which is neither wholly reliable nor
wholly
unreliable,
would
be
unsafe
-
accordingly, appellant is entitled for the benefit
of doubt as suspicion so raised cannot take the
place of evidence - Appeal allowed - impugned
conviction and sentence is hereby set-aside.
(Para - 18, 24, 25, 26, 27)

Appeal Allowed. (E-11)

List of Cases cited:

1. Harchand Singh & anr. Vs St. of Har. (1974
vol. 3 SCC 397),

2. Vadivelu Thevar Vs St. of Madras (AIR 1957
SC 614),

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Shri Ram Kishor Gupta,
learned counsel for the appellant, Shri Amit
Sinha, learned A.G.A. assisted by Ms.
Mayuri Mehrotra, learned brief holder for
the State-respondent, and perused the
record.

2. Upon completing the investigation
in Case Crime No.49 of 1981, u/s 302 IPC
and in Case Crime No.51 of 1981, u/s 25 of
Arms Act, both registered at P.S. Kharela,
District Hamirpur, the police filed the
charge-sheet against the accused-appellant
Ram Krishna and he was charged u/s 302
IPC
and
section
25 of
Arms Act
respectively,
wherein,
he
denied
the
prosecution case and claimed trial.

3. The learned trial court vide
impugned judgment and order dated
8.3.1983 convicted the accused-appellant
Ram Krishna, and sentenced him to
undergo life imprisonment for the offenses
under Sections 302 IPC and section 25 of
the Arms Act. Aggrieved by the impugned
judgment of conviction and order of
sentence, the accused-appellant preferred
the instant appeal before this Court.

4. The prosecution case, in brief, is
that a written complaint was lodged at
Police Station Kharela, District Hamirpur,
on 11.8.1981 at 17:30 p.m. regarding an
incident took place in broad day light in
Mohalla Manik Kasba Kharela, by one
Siddha- father of the deceased- Bahadur
with the allegation that the accused Ram
Krishun Singh called his son Bahadur at
gate and when his son reached at the gate
of his house, he shot dead his son with a
double barrel gun. On hearing the rescue
cry by the complainant, Murli s/o Bhannu
Teli, Ram Asrey s/o Daya Ram Teli, Ram
Ratan s/o Buddh Kori also reached at the
place of incident. The deceased died on
spot. For clarity the contents of tehrir are
reproduced herein below:

"श्रीमान थानेदार साहब थाना खरेला
जिला हमीरपुर सेवा में ननवेदन है मै और मेरा
लड़का बहादुर अपने घर के आंगन में बैठकर
गेह ूँ बीन रहे थे कक ददन लटकत की वेरा राम
ककशुन ससंह वल्द राम सहाय ससंह साककन
मुहल्ला माननक कस्बा खरेला िो अपने हाथ में
दुनाली बन्द क सलये था मेरे दरवािे पर आया
और मेरे लड़के बहादुर को दरवािे से बुलाया
िैसे ही मेरा लड़का दरवािे पर गया कक राम
ककशुन ने मेरे लड़के पर बन्द क से फायर कर
ददया फायर की आवाि सुनकर मे दरवािे पर
142 INDIAN LAW REPORTS ALLAHABAD SERIES
गया और चिल्लाया कक मुरली पुत्र भन्न तेली
साककन मुहल्ला माननक राम आसरे पुत्र दयाराम
तेली मुहल्ला सादराम व राम रतन पुत्र बुद्ध
कोरी मुहल्ला बरूआ कस्बा खरेला मौके पर आ
गये कक राम ककशुन ने दुबारा मेरे लड़के पर
फायर करके भाग गया मेरा लड़का तड़प तड़प
कर दरवािे पर चगर कर मर गया। राम ककशुन
ससंह ने मेरे लड़के को कई बार मना ककया कक
तुम भगवान ससंह के यहाूँ जिन से मेरा िमीन
के सम्बन्ध में झगड़ा िला आ रहा है। नौकरी
मत करो मेरा लड़का नहीं माना इसी विय पर
राम ककशुन ससंह ने मेरे लड़के को िान से मार
ददया ररपोटट सलखकर उचित कायटवाही की िावे।
प्राथी ससद्धा पुत्र हल्क बेहना साककन मुहल्ला
सादराय कस्बा खरेला थाना खरेला ता० 11.8.81
नन०अं० ससद्धा लेखक बाब खाूँ पुत्र नवी बक्स
मुहाल सादराय कस्बा व थाना खरेला जिला
हमीरपुर ता० 11.8.81"

5. The motive assigned in the tehrir is
that the deceased- son of the complainant
was working with one Bhagwan Singh,
who had a land dispute with the accused
and the accused has reprimanded the
complainant's son not to work with one
Bhagwan Singh or else he would be killed.

6. On receipt of the information, after
registration
of
the
FIR,
the
police
conducted the investigation and recorded
the statement of the witnesses under section
161 Cr.P.C. and filed the charge-sheet
against the accused-appellant.

7. The Chief Judicial Magistrate took
the cognizance and after complying with
the provisions of section 207 Cr.P.C.
committed the case to the court of sessions
for its trial. The trial court framed the
charge under section 302 IPC against the
accused-appellant and a separate charge
was framed under section 25(1)(a) and
25(1)(b) of the Arms Act and the same was
read over and explained to the accused,
who pleaded not guilty and claimed trial.

8. The prosecution has produced the
following documentary evidence to prove
its case:

"(i)
Written
Report
dated
11.8.1981 marked as exhibited as Ex.Ka1

(ii) First Information Report
dated 11.8.1981, marked and exhibited as
Ex.Ka-2

(iii) First Information Report
dated 25.8.1981, marked and exhibited as
Ex.Ka-18

(iv) Recovery memo of 12 bore
pistol dated 25.8.1981, marked as exhibited
at Ex.Ka-18

(v) Recovery memo of blood
stained vest & 'Gamchha' dated 11.8.1981
marked and exhibited as Ex.Ka-10

(vi) Recovery memo of one pellet
dated 11.8.1981 marked and exhibited as
Ex.Ka-11

(vii) Recovery memo of plain and
blood stained soil dated 11.8.1981 marked
and exhibited as Ex.Ka-14

(viii) Recovery memo of 12 bore
pistol dated 25.8.1981, marked as exhibited
at Ex.Ka-4

(ix) Post-mortem report dated
12.8.1981 marked and exhibited as Ex.Ka6

(x) Report of Vidhi Vigyan
Prayogshala marked and exhibited as
Ex.Ka-24

(xi) Letter to chemical examiner
dated 12.8.1981

(xii)Report of Chemical examiner
marked and exhibited as Ex.Ka-26
11 All. Ram Krishna Vs. State of U.P.
143

(xiii)
Panchayatnama
dated
11.8.1981 marked and exhibited as Ex.Ka7

(xiv) Charge-sheet 'mool' dated
11.10.1981 marked and exhibited as
Ex.Ka-17

(xv) Charge-sheet 'mool' dated
23.9.1981 marked and exhibited as Ex.Ka20"

9. Besides the above documentary
evidence, the prosecution has examined the
complainant- Siddha as PW-1; Ram Asrey
who had reached the place of incident after
hearing the rescue call as PW-2; Kumari
Chaman, an eye-witness as PW-3; Ct.
Moharrir Mohan Swaroop Pachauriya as
PW-4; Kamta Prasad, witness to the
recovery of gun as PW-5; Dr. Ghanshyam
Pandey, who conducted the post-mortem of
the deceased as PW-6; Inspector Satya
Narayan, the 1st I.O. as PW-7; H/Ct. Ram
Vilas Chaturvedi as PW-8; Kewal Singh,
the 2nd I.O. as PW-9.

10.
Complainant
Siddha
-
the
deceased's father- was examined as PW-1.
In his examination-in-chief, he reiterated
the facts mentioned in the impugned FIR
and stated that accused Ram Kishun
present in the court had committed his
son's murder, who was working with one
Bhagwan Singh. Accused Ram Kishun had
enmity with Bhagwan Singh. The witness
states that he and complainant's son was at
home when the accused Ram Kishun
reached at his door and called the deceased
Bahadur and as the complainant's son
reached at the Dehri (door step) of his
house, accused - appellant - Ram Kishun
fired at him and because of gun shot injury
his son died on spot. The accused-appellant
threatened the witness to leave the place
failing
which
he
would
shot
the
complainant as well. The said incident was
also seen by Babu Khan, Ram Asrey,
Murlidhar and Ram Ratan and witness
Babu Khan scribed the tehrir at his
instance, the witness also identified the gun
by whom his son was killed.

11. As per the impugned judgment, the
complainant supported the prosecution
case. PW-2 & PW-3, the eye witness had
also seen the incident, they have supported
the prosecution case. The rest of the
witnesses are police witnesses and their
testimony shall be examined in the
subsequent paragraphs. PW-6 Ghanshyam
Pandey conducted the post-mortem and
opined that death was caused due to shock
and haemorrhage as a result of antemortem injuries.

12.
The
incriminating
material
produced by the prosecution during the trial
was then confronted by the accused
persons, who recording his statement u/s
313 Cr.P.C. He said that he has been falsely
implicated by one Bhagwan Singh as he is
a witness in the case of murder committed
by said Bhagwan Singh and he wanted to
save real culprits. The trial court discussed
the evidence adduced by the prosecution
and relied upon the testimony of PW-1,
PW-2 & PW-3 and convicted accusedappellant Ram Kishun.

13. Per contra, learned A.G.A. for the
State vehemently espoused the case of
complainant and argued that the order
passed by the trial court is just and
reasonable and sustainable in the eyes of
law. The testimony of eye witness PW-1 &
PW-3 cannot be brushed aside. The
statement of eye witness are coherent,
consistent
and
cogent
and
fully
corroborates by the medical evidence; thus,
prosecution has proved the charges beyond
reasonable doubt. The conviction and
144 INDIAN LAW REPORTS ALLAHABAD SERIES
sentence of the accused-appellant do not
impart interference. The court below was
justified in relying the testimony of PW-1,
which is wholly proved and corroborated
by the testimony of PW-3 and PW-6 Dr.
Ghanshyam Pandey, who conducted the
post-mortem of the deceased. There are no
material contradictions in the evidence
adduced on behalf of the prosecution. PW1 Siddha being the father of the deceased,
would be the most reluctant to spare the
actual assailants and falsely mentioned the
name of other person, who is not
responsible for the death of his son.

14. Learned A.G.A. further contends
that merely because of minor contradiction
and inconsistent brought by the witness
cannot be a ground to discard of the
testimony of PW-1. He further submits that
there is no reason to disbelieve the
testimony of PW-1 & PW-3, who are covillagers and had reached the place of
incident soon after hearing the rescue call.

15. Learned counsel for the appellant
primarily assailed the impugned order on
the ground that ocular testimony does not
corroborate with the medical and scientific
evidence, therefore, the testimony of PW-1
needs appreciation with great caution. The
testimony of eye witness PW-1 & PW-3
cannot be relied upon because it contains
material contradictions and improvements.
PW-1's statement was contrary to the
statement recorded by police u/s 161
Cr.P.C. and no explanation was given as to
why the Investigating Officer did not
record certain material facts which were
necessary to establish the prosecution case
beyond reasonable doubt and he also
resiled from the prosecution's case. The
motive of offence is absurd and prosecution
has failed to prove the motive beyond
reasonable doubt. Prosecution has not
produced witness Murlidhar and Ram
Ratan whose names are figured in the FIR
for reasons best known to the prosecution.
The person with whom the accused had
enmity i.e. Bhagwan Singh has not been
produced
by
the
prosecution
as
prosecution's witness for the reasons best
known to them. The prosecution has
miserably failed to connect the accused
with the commission of offence. The
testimony of PW-1 and PW-3 is full of
contradictions
and
embellishment
and
cannot
be
relied
upon.
Further
the
prosecution has failed to prove the
corroboration. The deposition of PW-1 &
PW-3 should be disbelieved as it ought to
be in view of the evidence surfaced during
the trial. Other material on record, do not
show the accused's complicity in the
offence; thus, the appellant is liable to be
acquitted of the charges. The prosecution
could not establish any link between the
accused and one Bhagwan Singh. The sole
motive for the commission of offence is
absurd and non-conclusive. It is not safe to
rely upon the testimony of the interested
witness, which are full of contradictions
and embellishment without corroboration.

16. The scientific evidence do not
corroborate with the medical evidence. The
ballistic report does not support the
commission of offence in the way as it has
been presented by the prosecution. The
witness to the inquest report are not
produced before the trial court to the reason
best known to the prosecution, in fact name
of one Bhagwan Singh is shown in the
inquest report as witness no.3, but he was
not produced as witness. Ram Swaroop,
Murlidhar, Chaman Lal, Ram Ratan,
Mohan Lal, Rameshwar, Rafiq Ahmad are
all police witnesses, but none of them has
been brought to the witness box. Kamta
Prasad and Bhagwan Singh were also seen
11 All. Ram Krishna Vs. State of U.P.
145
their names as witness nos.12 & 13 of the
charge-sheet, but the prosecution could not
produce them.

17. A perusal of the trial court
judgment would reveal the conviction is
based on the testimony of PW-1 & PW-3
while recording the finding of conviction
against accused-appellant, the trial court
believed that there was no question to
disbelieve the testimony of PW-1 Siddha,
who is father of the deceased and was
present at the time of incident. The learned
trial court found the statement of Kumari
Chaman (PW-3), wholly reliable but not
marred
in
material
discrepancy
or
contradiction
even
though
she
was
subjected to a nagging cross examination at
the hands of experienced lawyers. Kumari
Chaman is innocent child and having no
seeds of animosity in her heart.

18. In the light of the finding of trial court
its becomes imperative to examine the witness
on two aspects; firstly, the motive and
secondly, the act performed by the accused in
the commission of the crime. It is an admitted
case of the prosecution that the accused called
the deceased from his house and when he
reached at this door step he was shot at and
died on spot. The sole motive behind the
commission of murder was that despite
reprimand the deceased kept working with
Bhagwan Singh with whom he had animosity.

19. The cumulative effect of both oral
testimony and documentary evidence is
paramount, to assess the sterling quality and
admissibility of the evidence presented
during the trial. The court must weigh the
credibility and reliability of both oral and
documentary evidence to determine their
overall probative value. To assess evidence as
of sterling quality, the court should consider
various
factors,
including
consistency,
corroboration, relevancy, and authenticity.
Additionally, the court should evaluate the
demeanor of the witnesses, the clarity and
coherence of the testimony, and veracity of
the documentary evidence.

20. Certainly the prosecution case would
have been at a better footing if the
Investigating Officer (PW-5) had sent the
pellets recovered from the deceased and
blood-soaked soil to the Forensic Science
Laboratory and had made efforts to recover
the weapon of offence, i.e. gun for
comparison. However, the report of the
ballistic expert and F.S.L. report would have,
in any case, been of the nature of an expert
opinion, and the same is not conclusive
evidence, but the failure of the Investigating
Officer in sending the blood-soaked soil and
pellets recovered from the deceased cannot
be said to fatal for prosecution, if the same is
fully established from the testimony of the
sole eyewitness (PW-1), in whose presence
the fire was shot at on the deceased, and
because of the firearm injury, the deceased
died.

21. It is the responsibility not only of the
investigating agency but also of the courts to
ensure that the investigation is conducted
fairly and does not infringe upon an
individual's freedom except as prescribed by
the law. Equally integral to criminal law is
the principle that the investigating agency
bears a significant responsibility to conduct
an investigation without bias and/or fairness.
The investigation should not, at first glance,
suggest a prejudiced mindset, and every
endeavor should be made to hold the guilty
accountable under the law, as no one is above
it, irrespective of their societal status or
influence.

22. The Supreme Court in Vadivelu
Thevar v. State of Madras has carved out
146 INDIAN LAW REPORTS ALLAHABAD SERIES
three categories of witnesses; (i) wholly
reliable, (ii) wholly unreliable, and (iii)
neither
wholly
reliable
nor
wholly
unreliable, and thus held:

"In view of these considerations,
we have no hesitation in holding that the
contention that in a murder case, the court
should insist upon plurality of witnesses, is
much too broadly stated. Section 134 of the
Indian Evidence Act has categorically laid
it down that "no particular number of
witnesses shall in any case be required for
the proof of any fact." The legislature
determined,
as
long
ago
as
1872,
presumably after due consideration of the
pros and cons, that it shall not be necessary
for proof or disproof of a fact, to call any
particular
number
of
witnesses.
In
England, both before and after the passing
of the Indian Evidence Act, 1872, there
have been a number of statutes as set out in
Sarkar's I Law of Evidence -9th Edition, at
pp. 1 100 and 1 101, forbidding convictions
on the testimony of a single witness. The
Indian Legislature has not insisted on
laying down any such exceptions to the
general rule recognized in s. 134 quoted
above. The section enshrines the wellrecognized maxim that "Evidence has to be
weighed and not counted". Our Legislature
has given statutory recognition to the fact
that administration of justice may be
hampered if a particular number of
witnesses were to be insisted upon. It is not
seldom that a crime has been committed in
the presence of only one witness, leaving
aside those cases which are not of
uncommon
occurrence,
where
determination of guilt depends entirely on
circumstantial evidence. If the Legislature
were to insist upon plurality of witnesses,
cases where the testimony of a single
witness only could be available in proof of
the crime, would go unpunished. It is here
that the discretion of the presiding judge
comes into play. The matter thus must
depend upon the circumstances of each
case and the quality of the evidence of the
single witness whose testimony has to be
either accepted or rejected. If such a
testimony is found by the court to be
entirely
reliable,
there
is
no
legal
impediment to the conviction of the accused
person on such proof. Even as the guilt of
an accused person may be proved by the
testimony of a single witness, the innocence
of an accused person may be established on
the testimony of a single witness, even
though a considerable number of witnesses
may be forthcoming to testify to the truth of
the case for the prosecution. Hence, in our
opinion, it is a sound and well- established
rule of law that the court is concerned with
the quality and not with the quantity of the
evidence
necessary
for,
proving
or
disproving a fact. Generally speaking, oral
testimony in this context may be classified
into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable."

23. The Supreme Court in Harchand
Singh & Anr. v. State of Haryana, held
that (i) the function of the court in a
criminal trial is to find whether the person
arrayed before it as the accused is guilty of
the offense with which he is charged. For
this purpose, the court scans the material on
record to find whether there is any reliable
and trustworthy evidence upon the basis of
which it is possible to found the conviction
of the accused and to hold that he is guilty
of the offense with which he is charged; (ii)
the court can base the conviction of the
accused on a charge of murder upon the
testimony of a single witness if the same
was found to be convincing and reliable. If
11 All. Vidhan Chandra Pandey & Anr. Vs. State of U.P. & Anr.
147
in a case the prosecution leads two acts of
evidence, each one of which contradictions
and strikes at the other and shows it to be
unreliable, the result would necessarily be
that the court would be left with no reliable
and trustworthy evidence upon which the
conviction of the accused might be based.
Inevitably, the accused would have the
benefit of such a situation.

24.
Based
on
the
foregoing
discussions, we conclude that PW-1 Siddha
stated in his statement that the incident was
witnessed/seen by Murlidhar, Ram Ratan,
Ram Asrey, Chaman, Rafiq, but failed to
justify except Ram Asrey (PW-2) as to why
the police witness Rafiq Ahmad, Rameshwar,
Mohan, Babu Khan, Chaman Lal, Murlidhar,
Ram Ratan, Ram Swaroop, Kamta Prasad
and Bhagwan Singh are not produced by the
prosecution. This fact assumes significance
that witness Bhagwan Singh police witness
has been figured in the FIR, had animosity
with accused, therefore, non production of
witness Bhagwan Singh casts serious doubt
on the prosecution story, moreso when
suggestion was given to the PW-1 that his
son's name was arrayed as an accused in the
murder of Phool Singh and Sheo Nath Singh,
he showed ignorance which also cast doubt
on the truthfulness of the witness deposition.
Witness PW-2 has denied his knowledge
about the murder of Bhagwan Singh's father
in which Siddha (PW-1), Babu Singh, Prithvi
Singh were arrayed as accused.

25. Therefore, applying the law held in
Vadivelu Thevar (supra) and Harchand
Singh (supra), we conclude that the PW1's testimony is neither wholly reliable nor
wholly unreliable and conviction based on
testimony of PW-1 would be unsafe.

26. In the given facts-circumstances,
the appellant is entitled for the benefit of
doubt as suspicion so raised can not take
the place of evidence.

27. As a result, the conviction and
sentence passed against the appellant vide
impugned judgment of conviction and
order of sentence dated 8.3.1983, passed by
3rd Additional Sessions Judge, Hamirpur in
Sessions Trial No.51 of 1982 titled State v.
Ram Krishna, u/s 302 IPC and Sessions
Trial No.16 of 1983 titled State v. Ram
Krishna, u/s 25 of Arms Act, registered at
Police Station Kharela, District Hamirpur,
is hereby set aside and the appellant is
acquitted of all the charges. Thus, the
appeal is allowed.

28. Office is directed to send back the
record of this appeal to the trail court
concerned along with a copy of this order
for compliance of section 437-A Cr.P.C.
----------
(2024) 11 ILRA 147
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.11.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal Defective No. 94 of 2024

Vidhan Chandra Pandey & Anr.
 ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Ravi Prakash Mishra

Counsel for the Respondents:

Civil Law-The Indian Evidence Act,1872Sections 107 & 108- Suit for declaration of
death---Section 107 provides that when the
question is whether a man is alive or dead, and
it is shown that he was alive within thirty years,