# Ram Sahai & Anr v. State of U.P

- **Citation:** (2020) 6 ILRA 1069
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-18
- **Case number:** Criminal Appeal No. 1596 of 2005
- **Bench:** Mrs. Rekha Dikshit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sahai-anr-v-state-of-u-p-45748
- **Pages:** 11

## Headnote

Criminal Law-Indian Penal Code, 1860Sections 148, 302/149 and 506.-Appeal
against conviction.

Testimony of single witness-
The testimony of the single witness is enough
for conviction of found to be reliable on the
touchstone of credibility. The statement of
P.W.-1 was recorded after lapse of 66 days,
without any explanation by the Investigating
Officer. (Para-35)

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it becomes a relevant
factor in the process of the evaluation of
evidence. (Para-39)

Benefit of doubt-
These facts raise strong suspicion that the
accused-appellants committed the murder of
the deceased and the sole testimony of single
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
eye witness be recorded as conclusive of the
circumstances of the case. (Para-44)

Criminal Appeals allowed. (E-2)

List of cases cited: -

## Text

6 All. Ram Sahai & Anr. Vs. State of U.P. 1069
manner.
The
expression
"undue
advantage" as used in the provision
means "unfair advantage".

37. In the light of above, we are of the
view that case in hand clearly falls within
the exceptions provided for in Section 300
I.P.C.

38. Accordingly, we uphold the view
taken by Court below that accused
appellants are guilty of committing murder
of deceased Laxmi Narain but the offence
committed comes within the ambit of
Section 304 Part-I IPC and not 302 IPC.
However, for the reasons mentioned herein
above, we modify the punishment awarded
to accused-appellants by Court-below.

39. The conviction of accusedappellants under Section 302 I.P.C. as
imposed by VIIIth Additional Sessions
Judge, Court No. 8, Kanpur vide judgement
and order dated 11.04.1983 is converted
into conviction under Section 304 Part-I
I.P.C.
Consequently,
appellants
shall
undergo rigorous imprisonment for a period
of 10 years if not already completed.
Appellants
shall
be
released
after
calculating
remission
under
relevant
provisions
of
Code
of
Criminal
Procedure/completion
of
sentence.
Appellants, namely, Onkar and Uma
Shanker are in jail. They shall serve out the
sentence so awarded if not already
completed.

40. The appeal is partly allowed.

41. Office is directed to send back the
lower court record to the concerned Court
below forthwith.

42. Let a copy of this order be
communicated
to
concerned
Jail
Superintendent as well as Legal Services
Authority, High Court, Allahabad.
----------
(2020)06ILR A1069
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.06.2020

BEFORE

THE HON'BLE MRS. REKHA DIKSHIT, J.

Criminal Appeal No. 1596 of 2005
&
Criminal Appeal No. 114 of 2006
&
Criminal Appeal No. 1650 of 2005

Ram Sahai & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Pawan Kumar Singh, Ashok Kumar Singh,
B.P. Singh, Manish Bajpai

Counsel for the Respondent:
Government Advocate

Criminal Law-Indian Penal Code, 1860Sections 148, 302/149 and 506.-Appeal
against conviction.

Testimony of single witness-
The testimony of the single witness is enough
for conviction of found to be reliable on the
touchstone of credibility. The statement of
P.W.-1 was recorded after lapse of 66 days,
without any explanation by the Investigating
Officer. (Para-35)

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it becomes a relevant
factor in the process of the evaluation of
evidence. (Para-39)

Benefit of doubt-
These facts raise strong suspicion that the
accused-appellants committed the murder of
the deceased and the sole testimony of single
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
eye witness be recorded as conclusive of the
circumstances of the case. (Para-44)

Criminal Appeals allowed. (E-2)

List of cases cited: -

1. Sajjan Singh & ors. Vs St. of M.P. (1999)
SCC (Cri.) 44.

(Delivered by Hon'ble Mrs. Rekha Dikshit, J.)

1. Since above-mentioned appeals
have been filed against conviction order
passed by the trial court by a common
judgment, the same are being decided by
a common judgment.

2. These appeals arise against the
judgment of conviction and order of
sentence dated 25.11.2005 passed by
learned
Additional
Sessions
Judge,
Lucknow in Sessions Trial No.1189 of
2001, arising out of Case Crime No.92 of
2000, under Sections 148, 302/149 and
506 I.P.C., Police Station - Bakshi-KaTalab, District - Lucknow, whereby the
learned Additional Sessions Judge has
convicted the accused-appellants, namely,
Ram Sahai, Lachiman Pasi, Darshan Pasi,
Gaya Prasad and Maharaj Deen under
Sections 148, 302/149 and 506 I.P.C., and
sentenced them under Section 302 IPC
read with Section 149 I.P.C. to undergo
life imprisonment, under Section 148
I.P.C. to undergo three years' rigorous
imprisonment and under Section 506 IPC
to
undergo
one
year
rigorous
imprisonment.

3. At earlier occasion, the learned
members of the Division Bench, Hon'ble
Prashant Kumar and Hon'ble Dinesh
Kumar Singh, JJ. hearing the appeals, had
given different opinion and delivered
separate judgements in the aforesaid
appeals. Hon'ble Prashant Kumar,J. vide
order dated 27.10.2018 allowed the
aforesaid appeals and set aside the
impugned
order
of
conviction
and
sentence
dated
25.11.2005.
Hon'ble
Dinesh Kumar Singh,J. vide order dated
27.10.2018
dismissed
the
aforesaid
appeals upholding the impugned order of
conviction and sentence.

4. In view of difference of opinion,
the matter was laid before Hon'ble the
Chief Justice under section 392 Cr.P.C
and by order dated 17.11.2018 of the
Hon'ble the Chief Justice, matter has been
nominated to this Bench.

5. On the issue relating to the scope
of hearing of appeals by the third Judge
nominated under section 392 Cr.P.C., it
was admitted to the learned counsel for
the parties that in view of settled position
of law, the judgment delivered by the
third Judge would be the judgment in
Appeals and that would bind the outcome
of the appeals and the previous opinions
expressed by the learned Hon'ble Judges
will not affect the determination of the
third Judge, whether or not the third
Judge agrees with either of them or with
both of them or records a separate finding
on the issues involved in the appeals. In
this regard, it would be sufficient to
reproduce,
the
observations
of
the
Supreme Court given in the case of
Sajjan Singh and others vs. State of M.P.
reported in (1999) SCC (Cri.) 44, which
is as follows:

"10. Statement of law is now
quite explicit. It is the third Judge whose
opinion matters; against the judgment
that follows therefrom that an appeal lies
to this Court by way of special leave
petition
under
Article
136
of
the
6 All. Ram Sahai & Anr. Vs. State of U.P. 1071
Constitution or under Article 134 of the
Constitution or Under Section 379 of the
Code. The third Judge is, therefore,
required to examine whole of the case
independently and it cannot be said that
he is bound by that part of the two
opinions of the two Judges comprising the
Division Bench where there is no
difference. As a matter of fact third Judge
is not bound by any such opinion of the
Division Bench. He is not hearing the
matter as if he is sitting in a three Judge
Bench where the opinion of majority
would prevail".

6. The accused-appellant Lachiman
Pasi has reportedly died, as such,
Criminal Appeal No.1651 of 2005 against
him stands abated vide order dated
16.05.2016.

7. Now, the appeal proceeds against
Ram Sahai and Darshan Pasi (Criminal
Appeal No.1596 of 2005), Gaya Prasad
(Criminal Appeal No.114 of 2006) and
Maharaj Deen (Criminal Appeal No.1650
of 2005).

8.

Narrated
concisely,
the
prosecution case against the appellants is
that on 25.08.2000, in the election of
Gramsabha of village Shivpuri, Sonapati
(PW-3) a candidate of Up-pradhan
[supported by Sandeep Singh (deceased)]
was declared elected, whereas Ram
Dayal, another candidate of up-pradhan
(supported by the appellant Maharaj
Deen) had lost the election. It is alleged
that because of the aforesaid reason the
appellant Maharaj Deen had developed
animosity with the deceased.

9. On 31.08.2000 in a meeting of
Gram Sabha for appointment of various
committees, the deceased asked all the
non-members to vacate the meeting hall,
as
such,
the
deceased
along with
Devendra Singh (PW-1), Santosh Singh,
Ram Vilas Lodh (DW-1), Virendra Yadav
(DW-5) came out of the meeting hall and
sat on chairs kept under the sycamore
(Guller) tree. A little later, the accused
persons, namely, Darshan Pasi, Lachiman
Pasi, Gaya Prasad, Sahai Pasi and
Maharaj Deen also left the meeting hall
and went towards their home. After a
little while, Darshan Pasi possessed with
Addhi (fire arm), Lachiman Pasi and
Sahai
Pasi
possessed
with
katta
(countrymade pistol), Maharaj Deen and
Gaya Prasad possessed with Banka (a
sharp cutting weapon) exhorted to kill the
deceased Sandeep Singh, whereupon
Darshan Pasi shot fire on the deceased,
who ran and took shelter inside the
boundary wall of Ram Avtar. All the
accused- appellants chased and kill the
deceased inside the boundary wall of Ram
Avtar. The aforesaid occurrence was
witnessed by Devendra Singh, Santosh
Singh, Ram Vilas Lodh, Virendra Yadav,
up-pradhan Sonapati and her husband
Kallu.

10. The FIR was lodged on 31.08.2000
at 16.05 hours, registered as Case Crime
No.92 of 2000, under Sections 147, 148, 149,
506 and 302 IPC against the accusedappellants. The dead body of the deceased
Sandeep Singh was sent for postmortem,
where he was examined by Dr. Vinod Kumar
(P.W.-4), Exhibit Ka-2 is postmortem report
in which antemortem injuries are as follows:-

"1. Incised wound 5 cm X 1.5 cm
bone deep present on back of head on left side
just behind left ear;

2. Incised wound 4 cm X 1.0 cm
X bone deep on back of head left side just
behind and below injury no. 1;
1072 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Incised wound 1.5 cm X 1.0
cm bone deep on left side (left side) face
2 cm infront of tragus of left ear;

4. Incised wound 2 cm X 0.5 cm
X cartilage deep in upper part of pinna of
left ear;

5. Multiple incised wound in
area of 12 cm X 6 cm X skin deep on left
side neck 3 cm below lobule of left ear;

6. Incised wound 3 cm X 1 cm
X bone deep vertically present on right
side face just below outer angle right eye;

7. Incised wound 3 cm X 1 cm
X muscle deep obliquely situated on
upper part of front of neck 4 cm below
chin;

8. Incised wound 4 cm X 3 cm
X trachea deep present in middle of front
of neck underlying trachea larger cut
through and through;

9. Multiple incised wounds in
area of 9 cm X 7 cm present in front of
neck above and below injury no. 8;

10. Incised wound 10 cm X 0.5
cm X muscle deep on top of left shoulder
situated anteroposteriorly;

11. Multiple firearm wound of
entry in an area of 10 cm X 7 cm present
on front of left side chest and outer aspect
of left shoulder 8 cm above left nipple
varying in size from 0.3 cm X 0.5 cm X
skin deep to 0.5 cm X 0.5 cm muscle
deep;

12. Firearm wound of entry 4
cm X 3 cm X bone deep present on left
palm at the base of index and middle
finger;

13. Incised wound 2 cm X 1 cm
X muscle deep on back of left wrist
joint."

11. Subsequent to lodging the FIR
Ram Chandra Dixit (P.W.-5), initially
commenced with the investigation, which
was handed over to Shri Abdul Rahman
(P.W.-7), later on, who proceeded with
the same and submitted chargesheet
(Exhibit Ka-15) after completion of
investigation. The charge was framed
against the accused-appellants under
Sections 148, 302/149 and 506 IPC by the
trial court.

12. To bring home the guilt of the
accused-appellants,
the
prosecution
examined as many as eight witnesses,
namely, P.W.-1 - Devendra Singh (eye
witness), P.W.-2 - Om Prakash Singh
(Informant),
P.W.-3
-
Sonapati
(eyewitness), P.W.-4 - Dr. Vinod Kumar,
P.W.-5
-
Ram
Chandra
Dixit
(Investigating Officer), P.W.-6 - Uday
Narayan Shukla, P.W.-7 - Abdul Rahman
(Investigating Officer) and P.W.-8 -
Vishambhar Singh (scribe of the FIR).

13. P.W.-1, the alleged eyewitness of
the said incident, has categorically stated that
on the date of incident, the deceased asked all
the non-members of the Gram Sabha to leave
the meeting hall, as such, he himself along
with Santosh Singh, Ram Vilas Lodh,
Virendra Pratap Yadav, Kallu Raidas left the
meeting hall and sat under sycamore (Guller)
tree. It has further been deposed that accused
Maharaj Deen, Darshan Pasi, Lachiman Pasi,
Gaya Prasad and Sahai Pasi also left the
meeting hall and headed towards their houses.
After sometime all of them returned back,
possessed with firearm, and banka and chased
the deceased with the intention of inflicting
fatal injuries to him. He has further deposed
that Maharaj Deen and Gaya Prasad assaulted
the deceased with Banka, whereas Lachiman
Pasi and Sahai Pasi inflicted injuries from
their Katta, consequently, the deceased
received injuries on his neck and skull.

14. P.W.-2 Om Prakash, the
complainant and father of the deceased
6 All. Ram Sahai & Anr. Vs. State of U.P. 1073
has deposed in his oral testimony that the
incident took place on 31.08.2000 and has
reiterated the testimony of P.W.-1. It has
further been stated that when he returned
from school, Devendra Singh, Santosh
Singh, Ram Vilas and Virendra Yadav,
who were accompanying the deceased
came to him and narrated the incident,
thereafter he got the complaint scribed by
Vishambhar Singh and after signing the
same lodged it in the police station
concerned. He has also specified that he
received the first information report of
murder of a son at his home from
Devendra Singh and Santosh Singh
around 3.00 PM, subsequently the process
of
scribing
and
lodging
of
FIR
commenced.

15. P.W.-3 Sonapati wife of Kallu
reiterated
the
political
animosity
between the parties and also identified
the accused-appellants during the trial.
She has further narrated the entire
incident and categorically stated that the
accused applicant present in the court
have not committed the said crime but
some outsiders murdered the deceased
as such she has been declared hostile by
the court.

16. P.W.-4 Dr. Vinod Kumar Singh
conducted postmortem of the dead body of
the deceased and submitted report (Exhibit
Ka-2) in which cause of death of the
deceased has been assigned to antemortem
firearm injuries.

17. P.W.-5 Ram Chandra Dixit
initially was entrusted the investigation of
the present case. He prepared necessary
prosecution documents relating to the crime
and
forwarded
the
dead
body
for
postmortem.

18. P.W.-6 Uday Narain, Head
Constable has proved in his oral testimony
the chik FIR (Exhibit Ka-13) of the present
case.

19. P.W.-7 Abdul Rahman, who
received the investigation subsequently
from P.W.-5 recorded the statement of the
witnesses
after
completion
of
the
investigation,
submitted
chargesheet
(Exhibit Ka-15) against the accusedappellants.

20. P.W.-8 - Vishambhar Singh, the
scribe of the written complaint lodged by
the complainant, has proved the said report
in his oral testimony which is exhibit Ka-1.

21. Incriminating evidence and
circumstances were put to the appellants
under Section 313 Cr.P.C. in which they
categorically stated that they have been
falsely implicated in the present case due to
political enmity. The accused-appellants
Maharaj Deen has specifically denied his
presence at the place of occurrence. It has
also been stated that the Investigating
Officer has submitted chargesheet on wrong
and false facts as he has not committed the
alleged offence.

22. The appellants have adduced as
many as six witnesses in defence, namely,
D.W.-1 Ram Vilas, D.W.-2 Ramdayal,
D.W.-3 Nadir, D.W.-4 Prem Ashutani,
D.W.-5 Virendra Pratap Yadav, D.W.-6
Aneesh Kumar Singh.

23. D.W.-1 Ram Vilas has deposed
in his oral testimony that he is familiar
with both the parties as he is resident of
the same village. He has categorically
denied the murder of the deceased by the
accused-appellants and has stated that he
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
does not know, who were the assailants of
the deceased.

24. D.W.-2 Ramdayal, membership
of Shivpuri Gram Panchayat, has deposed
in his oral testimony that the deceased
was killed on the date of incident but the
assailants fled away from the place of
occurrence.
The
present
accusedapplicants are not the assailants. He has
also stated that he witnessed the assailants
fleeing away but could not recognize
them.

25. D.W.-3 Nadir, Member Village
Panchayat Committee, has deposed in his
oral testimony that meeting of panchayat
members was scheduled at Panchayat
Bhawan on 31.08.2000 and the deceased
was killed on the same day around 2-2.30
P.M. in the courtyard of Ram Avtar
situated near Panchayat Bhawan. After
hearing a lot of noise, committee member
came out and saw six people fleeing from
the place of occurrence. They were
possessed
with
country-made
pistol,
spears and bankas. He has further stated
that none of the accused-appellants has
caused murder of the deceased as far as
the identification of the assailants is
concerned, he could not see their faces.

26. D.W.-4 Prem Ashutani, Joint
Director, Saudaik Sahbhagita Unit, U.P.
Jal Nigam, has established the presence of
accused-appellant Maharaj Deen on duty
on the date of incident from 10.00 A.M.
to 5.00 P.M. as his signatures were
obvious on the attendance register and the
register was in the custody of dispatcher,
Kali Shankar, as such there is no scope of
manipulation.

27. D.W.-5 Virendra Pratap Yadav
has stated in his oral testimony that he is
acquainted with both the parties and is an
eye witness of the said incident. It has
further been deposed that none of the
accused-appellants has committed the
murder of the deceased. He has reiterated
the
version
of
the
other
defence
witnesses.

28. D.W.-6 Aneesh Kumar Singh,
Development Officer, Village Shivpuri,
has deposed in his testimony that he was
posted at the aforesaid place from 1999 to
2000 and is well-acquainted with the fact
of meeting being held at Panchayat
Bhawan. The accused-appellants were not
involved in the murder of the deceased
and has also categorically stated that he
saw the assailants, who murdered the
deceased but could not recognize them.

29. The trial court held that the
appellants committed the said offence and
prosecution
established
the
circumstances, proving the appellants'
guilty under Sections 148, 302/149 506
I.P.C. and sentenced them under Section
302 IPC read with Section 149 I.P.C. to
undergo life imprisonment, under Section
148 I.P.C. to undergo three years'
rigorous imprisonment and under Section
506 IPC to undergo one year rigorous
imprisonment. Aggrieved by the verdict
of the conviction, the appellants preferred
the present appeals.

30. Heard Shri Mridul Rakesh,
Senior Advocate assisted by Shri Manish
Bajpai, learned counsel for the appellants,
Shri Arun Sinha, learned counsel for the
appellant in connected appeal and Shri
Ranvijay Singh, learned AGA for the
State of U.P.

31. Learned counsel for the
appellants
have
submitted
that
the
6 All. Ram Sahai & Anr. Vs. State of U.P. 1075
allegations made in the first information
report by the complainant are not in
consonance with the facts narrated by
P.W.-1 Devendra Singh, the sole witness
in support of the prosecution case. It has
further been argued that the testimony of
P.W.-1 do not correspond with the
medical evidence which creates doubt as
to whether P.W.-1 has witnesses the
incident or not. No firearm injury was
found on the neck and skull of the
deceased as stated by P.W.-1, instead it
was sharp edged weapon injury. It has
further been submitted that the alleged
eyewitness
mentioned
in
the
first
information report, namely, Ram Vilas
Lodh (D.W.-1), Sonapati (P.W.-3) and
Virendra Pratap Yadav (D.W.-5) have not
supported the prosecution story, denying
the involvement of appellants in the said
commission of crime.

32. Learned counsel for the appellants
have further submitted that the statement of
P.W.-1,
the
alleged
eyewitness
was
recorded by Investigating Officer after a
period of 66 days, though, allegedly he was
present at the place of occurrence. It has
also not been clarified by the complainant
(P.W.-2) as to how he came to know about
the alleged incident as he has named the
accused-appellants in the first information
report, though, admittedly, he was not
present at the time of incident. P.W.-1 has
categorically stated that he could not meet
P.W.-2 to inform about the incident and
when he returned to the spot, police was
present there. This fact is also admitted that
when the first information report was
scribed by P.W.-8 at the spot, the police
was already present there. It has been
specifically submitted that the prosecution
has not explained as to how, and on what
basis, the police arrived at the spot, which
cause a serious dent in the prosecution case.

33. Per contra, learned AGA for the
State contended that the prosecution has
established the guilt of appellants in the
commission
of
offence
through
the
evidence of P.W.-1 which is fully reliable
as his presence at the place of occurrence
has not been disputed. The FIR version has
fully
been
supported
by
oral
and
documentary evidence, based on the said
evidence, the court below rightly convicted
the appellants and the impugned judgment
warrants no interference . In this context,
learned AGA has referred the following
judgments:

34. Considered the rival contentions
and perused the impugned judgment and
order of the trial court and material on
record.

35. In the present case, the entire
prosecution story rests on the sole
testimony of P.W.-1, as the other alleged
eyewitness of the occurrence D.W.-1,
P.W.-3 and D.W.-5 have not supported
the prosecution case and admittedly P.W.-
2 (complainant), was not present at the
place
of
occurrence.
This
legal
proposition is not disputed that the
conviction in any case can be based on
sole testimony of single witness, subject
to its trustworthiness and credibility. In
this case, the entire case of prosecution
rests on the evidence of P.W.-1, who was
present at the time of incident, as well as,
at the time of preparation of documents
by the police, regarding the incident and
the dead body, but his statement was not
recorded on that day and the reason for
the
same
is
unexplained
by
the
Investigating Officer. The statement of
P.W.-1 was recorded after lapse of 66
days, without any explanation by the
Investigating
Officer
in
his
oral
deposition also, as P.W.-7. The delay
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
caused in recording the statement of an
eyewitness do not create a doubt in the
credibility of his evidence but, then, it has
to
be
scrutinized
strictly,
while
appreciating the evidence.

36. A reference may be made to
Mohd. Iqbal M. Shaikh & ors versus The
State of Maharashtra reported in 1998 (4)
SCC 494, wherein it has been observed as
under:

"Let
us
now
examine
the
reliability of the prosecution witnesses
through whom the prosecution has to
establish that the case against the
appellants has been proved beyond
reasonable doubt. As has been stated
earlier the six witnesses who were
supposed to be the eye-witnesses to the
occurrence are PWs 1, 2, 3, 4, 9 and 10.
It is to be noticed that while PW 4 was
examined by the police on 17.1.1993 and
PW 3 was examined by the police on
18.1.1993 but PW 2 Surya Kant was
examined on 25.1.1993 and the three
other eye- witnesses were examined on
29.1.1993 while the occurrence was on
7.1.1993. It is established from the
prosecution evidence itself that these
witnesses were the inhabitants of Gandhi
Chawl
where
the
ghastly
incident
occurred and immediately on the next day
of the occurrence they were shifted to a
local school for safety and were staying
there. Normally, therefore, there was no
justification
on
the
part
of
the
investigating agency in not examining
them for this length of time. The only
explanation offered by the investigating
officer is that on account of riot the
Police was busy with law and order
problem but that problem did not
continue for this length of time and in fact
the investigating officer has failed to
indicate as to why the eye-witnesses
though available had not been examined
till 29.1.1993. We are conscious of the
fact that merely because a witness was
examined after a considerable period
from the date of occurrence his evidence
need not be discarded on that ground
alone but at the same time while testing
the credibility and assessing the intrinsic
worth of such witnesses the delay in their
examination by the police has to be borne
in mind and their evidence would require
a
stricter
scrutiny
before
being
accepted..........."
(emphasis added)

37. The foremost argument of
learned counsel for the appellants to be
considered, relates to the fact averred in
the first information report and the facts
narrated by P.W.-1, the eyewitness, in his
oral
testimony.
This
witness
has
substantiated the fact related to the
scheduled meeting in Panchayat Bhawan
on the date of the incident, where a
number of people along with accusedappellants and the deceased were present
but left the meeting hall before it started.
After sometime the accused persons came
possessed with addhi (firearm), katta and
banka with intention of assaulting the
deceased. As per his testimony, Darshan
Pasi armed with Addhi, Lachiman Pasi
and Sahai Pasi armed with a countrymade pistol, Maharaj Deen and Daya
Prasad with banka, chased the deceased,
who took shelter inside boundary wall of
Ram Avtar where Lachiman Pasi and
Sahai Pasi inflicted injuries from their
Katta on his neck and skull, Maharaj
Deen and Gaya Prasad assaulted with
banka. At the first instance, Darshan Pasi
shot fire at him causing injuries on the
chest and hand of the deceased. The
factual position of assault and injuries as
6 All. Ram Sahai & Anr. Vs. State of U.P. 1077
narrated by P.W.-1 do not corroborate
with the medical evidence and the
postmortem report, as, instead of firearm
injuries on head and neck, it was sharp
edged weapon injuries, which is not in
consonance with the oral testimony of
P.W.-1. The fact that the Dharshan Pasi
shot fire on the deceased on his chest and
palm under the tree do not found support
from
the
physical
findings
of
Investigating Officer as neither any empty
cartridge or blood was found under or
around the tree.

38. It is worth mentioning that
P.W.-1 had categorically deposed that
after receiving gun-shot injuries on chest
and palm, the deceased ran and took
shelter inside the boundary wall of Ram
Avtar but no blood was found on the way,
and, moreover no point of entry of the
deceased inside the boundary wall has
been shown in the site plan, if it be taken
as that the deceased jumped four feet high
boundary wall, which appears to be
highly
improbable,
in
an
injured
condition. The aforesaid submission and
appreciation of testimony of P.W,-1 raises
a question mark on his credibility and
trustworthiness.

39. Thus, the position of law in
cases where there is a contradiction
between medical evidence and ocular
evidence can be crystallised to the effect,
that though the ocular testimony of a
witness has greater evidentiary value visà-vis medical evidence, when medical
evidence makes the ocular testimony
improbable, that becomes a relevant
factor in the process of the evaluation of
evidence. However, where the medical
evidence goes so far that it completely
rules out all possibility of the ocular
evidence being true, the ocular evidence
may be disbelieved.

40. In the instant case as referred to
hereinabove, as many as five assailants
attacked one person but the prosecution
case from the very inception of FIR, is
very clear that accused-appellant Darshan
Pasi shot fire when the deceased was
sitting under the tree, causing him injury
on chest and left palm, Lachiman Pasi and
Sahai Pasi fired on his neck and skull
inside boundary wall and Maharaj Deen
and Gaya Prasad assaulted the deceased
with banka. This fact is categorically
substantiated by P.W.-1 in his oral
testimony. The postmortem report reveals
no firearm injury, either on neck or skull
or any other part of the dead body,
whereas remaining injuries relate to sharp
edged weapon, which may be attributed
to alleged use of banka by Maharaj Deen
and Gaya Prasad.

41. In any event unless the oral
evidence is totally irreconcilable with
medical evidence, it has primacy but here
medical evidence makes ocular evidence
improbable, thus, ocular evidence may be
disbelieved, moreso in view of the fact
that the P.W.-1 is the sole witness to
shoulder the entire burden of prosecution
case, as such, he has to be wholly reliable
and trustworthy. A single fact discrediting
the
testimony
of
sole
witness
of
prosecution, on whose premise the guilt is
to be upheld, may lead towards his
untrustworthiness. Thus, it can reasonably
be concluded that a strict scrutiny and
appreciation of testimony of P.W.-1 do
not make him as much reliable and
trustworthy to base the conviction of the
accused-appellants
on
his
sole
and
uncorroborated testimony.
1078 INDIAN LAW REPORTS ALLAHABAD SERIES

42. It is fairly well settled that FIR is not
substantive piece of evidence, but in the
present case, the issue is whether FIR was
exactly lodged as narrated by P.W.-2. The
oral testimony of P.W.-2 indicates that he
filed a written complaint on the basis of
information received from P.W.-1 (Devendra
Singh), Santosh Singh, Ram Vilas (D.W.-1)
and Virendra Pratap Yadav (D.W.-5), but it
has been specifically denied by P.W.-1 that he
ever met P.W.-2 (the complainant) before the
scribing of written report. As far as the Ram
Vilas (D.W.-1) and Virendra Pratap Yadav
(D.W.-5) are concerned, they have deposed
before the court as defence witnesses and
have neither supported the prosecution case
nor the version of P.W.-2 (the complainant),
and Santosh Singh has not been produced as
witness from either side. As per statement of
P.W.-1 when he returned back to the spot, the
police was already present there. This fact is
also substantiated by P.W.-8 (scribe of the
FIR), who has gone to the extent of deposing
that it was written on the dictation of the
police. Thus, it can be logically and
reasonably concluded that the police got the
information of the incident prior to lodging of
any FIR, as they were present on the spot
even before scribing of the FIR, therefore,
creating a doubt in the entire prosecution case.
The
aforesaid
discussion
effectively
establishes the fact that it is not clear as to
how P.W.-2 got information of the incident
and, how come, the police was present at the
spot, even before lodging of any first
information report, thus leading towards a
serious doubt in the prosecution case. It raises
an issue about the information given to the
police of the incident, may be the present first
information report is an afterthought as the
enmity has been claimed by the parties.

43. It is pertinent to mention here that
the defence witnesses have narrated an
entirely different story, though D.W.-1 (Rama
Vilas) and D.W.-5 (Virendra Pratap Yadav)
are named as eye witnesses in the first
information report, filed by the complainant.
This fact goes a step further to create
suspicion regarding the genuineness of the
case.

44. In view of the above, it appears
that only facts which have been established
by the prosecution beyond doubt are, that
there was ill-will between the parties on
account of election, that the murder of the
deceased was committed and his dead body
was found inside the boundary wall of Ram
Avtar on 31.08.2000. These facts raise
strong suspicion that the accused-appellants
committed the murder of the deceased and
the sole testimony of single eye witness be
recorded as conclusive of the circumstances
of the case. It is highly improbable to
conclude on the basis of testimony of single
eye witness that the accused-appellants
committed murder of the deceased. The
prosecution has utterly failed to discharge
his burden of proving the accused beyond
reasonable doubt at the time and place as
alleged in the charge. The accusedappellants are entitled to get benefit of
doubt.

45. Thus, on the basis of analysis
made herein above, this Court is of the view
that the trial court's finding on the point of
holding guilty the accused appellants,
namely, Ram Sahai, Darshan Pasi, Gaya
Prasad and Maharaj Deen for the offence
under Sections 148, 302/149 and 506 I.P.C.
is not in accordance with the evidence and
law and the same is not sustainable, and the
appeals filed by the appellants namely Ram
Sahai, Darshan Pasi, Gaya Prasad and
Maharaj Deen are liable to be allowed.

46. For all the reasons stated above,
the appellants are entitled to the benefit of
6 All. Than Singh Vs. State of U.P. 1079
doubt and accordingly are entitled to
acquittal.

47. In the result, the appeals are
allowed and the judgment and order dated
25.11.2005 passed by learned Additional
Sessions Judge, Lucknow in Sessions Trial
No.1189 of 2001 is hereby set aside so far
as it relates to the appellants, namely, Ram
Sahai, Darshan Pasi, Gaya Prasad and
Maharaj Deen are acquitted on benefit of
doubt of the charges levelled against them.

48. The appellants Ram Sahai,
Darshan Pasi and Maharaj Deen are in
jail. They shall be released forthwith, if
they are not wanted in any other case. The
appellant, Gaya Prasad is on bail. He need
not surrender. His bail bonds and sureties
stand discharged.

49. The Senior Registrar is directed
to ensure compliance by forwarding a
certified copy of this judgement to the
court concerned forthwith.
----------
(2020)06ILR A1079
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE GHANDIKOTA SRI DEVI, J.

Criminal Appeal No. 2004 of 1986
connected with
Criminal Appeal 2026 of 1986

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

Counsel for the Appellant:
Sri Keshav Sahai, Sri Bhavya Sahai, Sri
Kailash Prasad Pandey
Counsel for the Opposite Party:
D.G.A.

Criminal Law-Indian Penal Code, 1860Sections 302/34, 201 and 511 - Appeal
against conviction.

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it becomes a relevant
factor in the process of the evaluation of
evidence. The medical evidence does not
corroborate the ocular version. (Para-26)
Prosecution has failed to prove this case
beyond reasonable doubt. (Para-32)

Criminal Appeal allowed. (E-2)

List of cases cited: -

1. Ram Laxman Vs St. of Raj., (2016) 12 SCC
398

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. Heard Sri Bhavya Sahai and Sri
Kailash Prasad Pandey, learned counsel
for the appellants and Sri Jitendra Kumar
Sisodia, learned State Law Officer for the
State.

2. These two appeals have been
filed by the appellants Than Singh and
Bhima against the judgement and order
dated 22.7.1986 passed by the Special
Judge, Mathura in S. T. No. 75 of 1986;
State Versus Bhima and three others,
under Sections-302/34, 201 and 511 I. P.
C., P. S.-Vrindavan, district-Mathura by
which the appellants have been convicted
and sentenced to imprisonment for life
under Sections-302/34 I. P. C.

3. Appellant Bhima (in Criminal
Appeal No. 2026 of 1986) died during the
pendency of the appeal, hence, Criminal
Appeal No. 2026 of 1986 was dismissed