# Ram Shankar & Ors v. State of U.P

- **Citation:** (2016) 5 ILRA 1516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shankar-ors-v-state-of-u-p-43782
- **Pages:** 11

## Text

1516 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

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

Criminal Appeal No.- 1338 Of 1986

Ram Shankar & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for Appellants:
O.P. Mishra, Ram Pratap Singh

Counsel for Respondent:
A.G.A.

Headnote:
Murder - Common intention - Credibility of eye-witnesses - Prompt FIR - Medical and
forensic corroboration - Recovery of weapons - Motive - Appeal against conviction

The appellants were convicted under Section 302 read with Section 34 IPC for committing the murder of
the deceased Dhunmun by assaulting him with Tengari (axe-like weapon), spear and lathi in
furtherance of their common intention. The incident occurred in the morning at about 6.00 a.m., when the
deceased was ploughing his field. The FIR was lodged promptly at 6.45 a.m. by the brother of the deceased,
who was an eye-witness to the occurrence.

During pendency of the appeal, one of the appellants died and the appeal abated qua him. The remaining
appellants challenged the conviction primarily on the grounds that (i) the incident had taken place during
night and not in the morning, (ii) the deceased was not in a position to make a dying utterance due to the
nature of injuries, (iii) eye-witnesses were interested and unreliable, (iv) FIR and investigation were
mechanically conducted, and (v) recoveries and site plan were fabricated.

Held: dismissing the appeal, that:
Eye-witness testimony reliable: The testimonies of PW-1 (brother and informant) and PW-2 (co-villager)
were found to be natural, consistent and trustworthy. Their presence at the spot was duly explained and
corroborated by the site plan. Minor omissions or alleged exaggerations did not affect the core of the
prosecution case.

Prompt FIR rules out fabrication: The FIR was lodged promptly within a reasonable time after the
incident. Prompt lodging of FIR coupled with immediate commencement of investigation rules out
deliberation or false implication.

Medical evidence fully corroborative: Post-mortem injuries - incised, punctured, lacerated and
contusions - were fully consistent with the weapons used. The medical opinion did not rule out the possibility
5 All. Ram Shankar & Ors. Vs State Of U.P.

1517
of the deceased making a statement before death. The doctor specifically opined that death could have
occurred around 6.00 a.m. and such opinion remained unchallenged.

Dying utterance admissible: The deceased's statement made immediately after the assault, identifying the
assailants, was found to be voluntary and credible. It was not improbable that the deceased could speak a
few words before succumbing to injuries.

Motive established: Long-standing land dispute, mutation proceedings and prior criminal
litigations between the parties clearly established motive for the crime.

Recovery and forensic corroboration: Recovery of spear, Tengari and lathi at the instance of accused
persons stood proved. Forensic Science Laboratory report confirming presence of human blood on
recovered weapons and clothes lent strong corroboration to the prosecution case.

Common intention proved:
Simultaneous assault by multiple accused with deadly weapons, exhortation to kill, and collective conduct
before and after the occurrence established common intention under Section 34 IPC.

No illegality in trial court judgment:
The trial court had correctly appreciated the evidence on record and recorded conviction based on cogent
material. No perversity or illegality was found warranting interference in appeal.

Result:
Appeal dismissed.

Conviction and sentence of life imprisonment under Section 302/34 IPC affirmed.
Bail bonds of surviving appellants cancelled; they were directed to be taken into custody forthwith.

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

1. We have heard at length Sri O.P. Singh, Senior Counsel assisted by Sri S.K. Rao, Sri
Hari Narain Singh and Sri Manoj Srivasvata, learned counsel for the appellants, Sri Chandra Jeet
Yadav, learned AGA for the State and perused the record.

2. The instant criminal appeal has been preferred by the appellants against the judgment
and order dated 19.05.1986 passed by the Sessions Judge, Basti, in Session Trial No.96 of 1985
arising out of Case Crime No.103 of 1984, under Section 302/34 IPC, Police Station Kalwari,
District Basti whereby the appellants have been convicted and sentenced to life imprisonment
(under aforesaid sections of IPC).

3. In this case, appellant no.3, Ram Milan died during pendency of appeal. Therefore, his
appeal stood abated vide order of this Court dated 02.02.2015. Now there remains only three
surviving appellants.

4. Briefly stated facts of this case, as discernible from record appears to be; that the first
informant Ram Pher Yadav son of Ram Sewak Yadav, resident of village Tahirpur, P.S. Kalwari,
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
District Basti, lodged the written report at P.S. Kalwari on 21.10.1984 at 6.45 am alleging therein
that his brother Dhunmun was ploughing / working in his field on 21.10.1984 in the morning in
Arazi No. 15 where gram was sown. Some litigation regarding the same field was going on with
Ram Shanker. The first informant had gone to answer to nature's call the very same day in the
morning. It was around 6.00 a.m. when his brother Dhunmun raised alarm 'Bachao'-'Bachao', that
he was being killed by Ram Shanker. After hearing the hue and cry, when the first informant and
other persons working in the nearby field namely Badri Yadav, Sumiran Yadav and Chunmun
arrived at the spot then they saw Ram Milan son of Dihal possessing Tengari (axe like weapon),
Ram Shanker son of Siddhu possessing spear (Ballam) and Daya Shanker son of Siddhu and Dudh
Nath Gosai son of Bhanu possessing Lathi were assaulting Dhunmun in furtherance of their
common intention. Ram Shanker was exhorting others for killing Dhunmun. As soon as the first
informant and others tried to catch the assailants and challenged them when they were threatened
by the assailants that in case they proceeded onward or chased them, they will be killed. Thereafter
the assailants made their escape good from the place of occurrence towards village.

5. The first informant and the others saw Dhunmun writhing with pain lying on the field.
When they came close to him, he told that these four persons were lying in ambush in the sugar
cane field, after making preparation and all of a sudden they opened assault by Tengari, spear and
Lathi. As soon as he uttered these words, he expired. The dead body of complainant's brothers is
lying in the field. Report be lodged and action be taken. This written report is Exhibit Ka-1 on
record. Entries of written report were taken down in the check FIR on the same day at 6.45 am at
crime no. 103 of 1984, under Section 302/34 IPC. This check FIR is Exhibit Ka-3 on record. On
the basis of entries made in the check FIR, the case was registered vide report no. 7 at crime no.
103 of 1984 under Section 302/34 IPC at police station Kalwari, District Basti on 21.10.1984. Copy
of relevant GD entry is Exhibit Ka-4. Thereafter, investigation followed and various steps were
taken by the Investigation Officer and in the process, the inquest report was got prepared the very
same day and it commenced at 7.30 a.m. and completed at 9.00 am. Inquest report is exhibit Ka-13
on record.

6. Relevant to mention that steps were also taken for preparation of relevant papers for
sending the dead body of Dhunmun for post mortem examination at mortuary, Basti. Some of the
relevant papers need reference: letter to RI (Police form-33) is Exhibit Ka-14, Challan of dead body
(Police form-13) is Exhibit Ka-15, Photonash is exhibit Ka-16, letter to Chief Medical Officer,
Basti is Exhibit Ka-17.

7. Post mortem examination on the dead body of Dhunmun took place at Mortuary, Basti
on 21.10.1984 at 4.30 p.m. wherein following ante-mortem injuries were found on his body:

i. Incised wound 5 cm x 1 cm x bone cut left side scalp 10 cm above the left ear.

 ii. Incised wound 4 cm x 15 cm x bone cut left side eyebrows laterally.
5 All. Ram Shankar & Ors. Vs State Of U.P.

1519

 iii. Incised wound 6 cm x 1.5 cm x bone cut left side face over the mandibular area
5 cm below and medial to the left ear.

 iv. Abraded contusion 12 cm x 2.5 cm left side neck 3 cm below the left angle of
mandible.

v. Five punctured wounds in the right side left in an area 15 cm x 6 cm including
upper and middle part smallest measuring 1 cm x Â1⁄2 cm x muscle deep and largest measuring 2
cm x 1 cm x bone deep.

vi. Lacerated wound 4 cm x 2 cm x bone deep left side leg underneath both bones
fractured into multiple pieces.

 vii. One punctured wound 1 cm x 0.5 cm x bone deep two cms above injury no. 6.

8. In the opinion of doctor, the duration was said to be Â1⁄2 days old and cause of death was
due to shock and haemorrhage as a result of aforesaid ante-mortem injuries. PW-3 Dr. P.N. Bansal
has proved the post mortem report as Exhibit Ka-2.

9. It is gathered from record that Investigating Officer also prepared certain papers, few of
which deserve mention. Memo of simple and blood stained soil is Exhibit Ka-19, memo of slipper
(chappal) and one bed sheet is Exhibit Ka-20. The memo of diary recovered from body of deceased
is Exhibit Ka-21, memo of blood stained Gamchha and one used bed sheet is Exhibit Ka-22.

10. It is further gathered from record that on 21.10.1984 accused-appellants Ram Shanker
and Ram Milan were arrested and at the pointing out of accused Ram Shanker, spear was recovered
from his house at 11.50 am, memo of this recovery is Exhibit Ka-23, site plan of this recovery
memo was also prepared on the spot which is Exhibit Ka-24. Similarly, Tengari (axe like weapon)
was recovered from the house of Ram Milan. Recovery memo whereof was prepared which is
Exhibit Ka-25, site plan of the same was also prepared which is Exhibit Ka-26. Further during the
course of investigation, recovery of Lathi was made on the pointing out of Dudh Nath Gosai on
27.10.1984 at about 10.45 a.m., memo of the same was prepared which is Exhibit Ka-29 and site
plan of recovery memo is Exhibit Ka-30. Exhibit Ka-33 is report of Vidhi Vigyan Prayogshala,
Agra dated 24.10.1985.

11. The Investigating Officer also recorded statements of various persons and after
completing the investigation, he submitted charge sheet against appellants under Section 302/34
IPC, which is Exhibit Ka-32 Thereafter, the case was committed to the court of Session where the
accused persons were heard on the point of charge. Accordingly, charge under Section 302/34 IPC
was framed against appellants who abjured the charge and opted for trial
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
12. In order to prove its case, the prosecution was asked to adduce its testimony,
whereupon, the prosecution produced, in all, six witnesses. Brief reference of the same is as
hereunder:-

 Ram Pher PW-1 is the first informant and eye witness of the incident. Badri Prasad
PW-2 is also an eye witness of the incident. Dr. P.N. Bansal is PW-3 who has conducted post
mortem examination on the dead body of deceased Dhunmun on 21.10.1984 and has proved the
post mortem report Exhibit Ka-2. Tohwar Ali Khan PW-4 the then Head Moharrir of P.S. Kalwari
has proved certain papers, check FIR (Exhibit Ka-3), concerned report no. 7 of relevant GD dated
21.10.1984 regarding registration of case against appellants Exhibit Ka-4, sending of special report
on 21.10.1984 vide report no. 10 at 9.45 am and the relevant return entry of the same as Exhibit
Ka-6 and Ka-7, respectively. Babu Ram Pandey PW-5 is the constable who took the dead body of
Dhunmun for post mortem examination to Mortuary, Basti and has proved the same. Mahendra
Prasad PW-6 is the Investigating Officer. He has described the various steps undertaken by him in
completing the investigation. He has filed the charge sheet against the appellants. He has also
proved certain material exhibits like simple and blood stained soil, slipper, bed sheet, diary and
blood stained cloth etc. as material exhibits 1, 2, 3, 4, 5, 6 & 7. He has also proved site plan Exhibit
Ka-18. Thereafter, evidence for the prosecution was closed and the statement of appellants was
recorded under Section 313 Cr.P.C. wherein they termed their implication false and claimed to be
innocent. They were asked to lead their defence whereupon defence did not produce any ocular
testimony, whereas, they filed certain papers Exhibit Kha-1 and Kha-2, extract of khatauni and
statement of Ram Surat in the court of Tehsildar, Basti.

13. Relevant to mention that statement of witness Badri has been proved as Exhibit Kha-2,
whereas, statement of Ram Surat Singh also has been marked as Exhibit Kha-2, therefore, for the
purpose of convenience, statement of Badri recorded under Section 161 Cr.P.C. marked as Exhibit
Kha-2 will be referred as Exhibit Kha-2A, as and when the context so requires in the judgment.

14. The learned trial court after hearing both the parties on merit and after appraisal of the
evidence on record and considering the facts and circumstances of the case, passed the aforesaid
judgment of conviction and imposed sentence of life imprisonment on each of the appellants.

15. Hence this appeal.

16. Sri O.P. Singh, learned Senior Counsel for the appellants has vociferously contended
that the incident in fact took place in the darkness of night and it was only when the dead body of
Dhunmun was discovered in the next morning, a false story was cooked up and the appellants were
deliberately roped-in, in this case by the first informant in collusion with the police, on account of
enmity and pendency of several litigation between the complainant (side) and the appellants (side).

17. Learned counsel for the appellants further added that the very perusal of injuries caused
to the deceased will reveal that a person who sustained so many injuries will hardly be believed to
be in a position to utter even a single word as he would become unconscious; but here in order to
5 All. Ram Shankar & Ors. Vs State Of U.P.

1521
give colour to the prosecution story, some utterances were deliberately manufactured as if the same
have been made by the deceased just before his death. Therefore, such story of utterance/ statement
given by the deceased to the first informant and the other co-villagers just before his death only
confirms the height of deliberation made by the first informant for falsely implicating the
appellants. Whether the injuries so caused on the body of deceased were of such degree and
magnitude that the deceased would ever speak even a single word? This is most pertinent aspect of
the case and this aspect escaped serious concern of the trial court.

18. The Incident took place in the night is corroborated and supported by fact that faecal
matter was found in the intestine of deceased Dhunmun as he was going to answer to the nature's
call in the morning of 21.10.1984. In the opinion of doctor, death might have occurred in the night
intervening 20/21.10.1984. Further the very statistical calculation pertaining to time management,
first for scribing the FIR, then lodging of the same at the police station and secondly, the
consequent follow up action establishes that things have been done in mechanical way, which
under circumstances, is not natural and probable. The Incident allegedly took place at 6.00 am, FIR
was got scribed in 5 minutes and thereafter, it was lodged at 6.45 am. Ante-mortem injury nos. 1 to
4 are incised wounds, injury no. 5 is punctured wound. Injuries are not on vital parts of the body.
Motive for false implication is borne out and reflected from the deposition of PW-2 given in the
last two paras of his testimony.

19. In fact both the witnesses PW-1 and PW-2 were not present on the spot. They did not
witness the incident and they are not reliable witnesses. How surprising is the fact that after the
incident took place at 6.00 a.m. the first informant went to his house, took his bicycle and within 10
minutes, FIR was written and he went to lodge the FIR at the police station. Things are happening
in quick succession without proper explanation. No plough has been recovered from the spot.
Theory of ploughing field by Dhunmun has been deliberately devised for falsely implicating the
appellants.

20. The Investigating Officer deliberately prepared several papers like recovery memo,
memo of slipper and bed sheet etc. which show that the Investigating Officer is improving on the
prosecution story. Site plan is defective and it does not prove the place of occurrence as such.

21. Sri Chandra Jeet Yadav, learned AGA has refuted the aforesaid argument by
contending that prosecution story and the charge have been consistently proved by fair testimony of
eye witnesses. Their presence on the spot is most natural. After the incident took place, FIR was
quickly lodged and investigation followed immediately. This quick follow up action by itself will
not render the first informant and the Investigating Officer over active and over smart. Even the
deceased has stated about the names of the appellants that they assaulted him.

22. Learned AGA has further added that motive for committing the crime is proved to be
pending litigation between the parties. In the Forensic Laboratory report presence of human blood
was found on item 1, 2 and 7. There is no inconsistency in the prosecution version. It cannot be
said that after sustaining so many injuries, a person cannot utter a single word.
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
23. Also considered the rival submissions.

24. After considering the submissions, various aspects and circumstances of the case, the
moot point arises for consideration is confined to fact as to whether the prosecution witnesses of
fact have witnessed the incident and their presence on the spot is natural and the incident was
caused by the appellants by using the weapons assigned to them?

25. in this context, we will find that the prosecution has produced the two eye witnesses of
the incident namely Ram Pher PW-1 who is the brother of the deceased and first informant and
Badri Prasad PW-2 who is a co-villager. Bare perusal of their testimony reflects that Ram Pher was
present nearby the place of occurrence and was responding to the nature's call around 6.00 a.m.,
whereas, Badri Prasad PW-2 was also working in his field at that point of time by levelling its soil.
It has come in his testimony that he arrived at the spot after hearing alarm from Dhunmun. Both
these witnesses arrived at the spot when they saw appellants assaulting the deceased Dhunmun.
Ram Shanker was assaulting with spear, Ram Milan with Tengari (axe like weapon), whereas,
Daya Shanker and Dudh Nath were causing blow with Lathi. These two eye witnesses along with
others (Sumiran and Chunmun) rushed to the spot and tried to save the victim whereupon both the
eye witnesses and the other two persons were threatened by the assailants that in case they tried to
chase them they will be killed.

26. Since the eye-witnesses and the co-villagers were unarmed, they did not intervene and
in the meanwhile, the assailants after committing the crime made their escape good towards village.
Thereafter, these witnesses came to the victim who was writhing with pain and he also told these
witnesses that he was assaulted by the appellants Ram Shanker, Daya Shanker, Ram Milan and
Dudh Nath and he expired immediately after making such utterance.

27. It trickles out from testimony of PW-1 Ram Pher that after 4-5 minutes of the incident,
he went to home and changed his clothes. Thereafter he went to police station Kalwari on bicycle
and lodged a written report around 6.45 a.m. The police party also arrived on the spot thereafter. It
also emerges out in the testimony of PW-1 that a long series of litigation has taken place between
the first informant side and the appellants. The appellants have formed an association and they
worked in collusion with each other. The very motive for committing crime has been stated to be
pending litigation.

28. It has been stated that Dhunmun was ploughing his field situated in Arazi No. 15 which
field was purchased by him from Ram Sugan on 10.01.1983 and appellant Ram Shanker had
fabricated a false sale deed on 13.01.1983 from the same Ram Sugan who had expired on
12.01.1983. Mutation proceeding was pending between Dhunmun and Ram Shanker and both had
filed objection in this proceeding. This case was pending in the court of Tehsildar. Evidence of
Dhunmun was recorded and concluded, whereas, Ram Shanker took time for adducing his
testimony. Tehsildar imposed Rs.20/- as cost on Ram Shanker on 27.01.1984. Against this order,
Ram Shanker preferred revision which was dismissed. The mutation proceeding was pending.
Besides, proceeding under Section 107/117 Cr.P.C. was also drawn between the first informant on
5 All. Ram Shankar & Ors. Vs State Of U.P.

1523
the one hand and Ram Shanker, Daya Shanker, Ram Milan and Dudh Nath on the other hand. This
proceeding ended after six months.

29. The deceased Dhunmun has also lodged a case under Section 324 IPC against Ram
Shanker, Daya Shanker, Bhagwan Deen etc. Similarly, Ram Shanker also had lodged criminal case
against Dhunmun, Ram Pher, Uma Shanker. Therefore, in the backdrop of aforesaid factual aspects
regarding pending litigation, we may conveniently record that there was sufficient motive for
committing crime. It cannot be said that there was no cause or motive for committing the crime.

30. The argument advanced by learned Senior counsel regarding the fact that the incident
of murder took place some time in the night is to be considered on strength of testimony on record
and the circumstances of the case. Upon careful scrutiny of evidence and circumstances of the case
we may observe that we have no supporting evidence or circumstance before us emerging from
cross examination of both the aforesaid witnesses of fact which may allude to any such inference
like the one that the incident might or could have taken place in the night. Some relevant material
can be drawn from the testimony of Dr. P.N. Bansal who conducted post mortem examination on
the dead body of Dhunmun on 21.10.1984 at 4.30 pm at Mortuary, Basti wherein he has
categorically stated that the incised wounds can be caused by use of sharp edged weapon like Axe
and punctured wounds can be caused by use of spear.

31. Dr. P.N. Bansal has opined that these injuries could have been caused around 6.00 a.m.
His cross examination is quite relevant. He has stated that there may be a difference of 6 hours in
the time of death on either side and that way he has opined that death might have occurred around
12.00 mid night i.e. 20/21.10.1984. He has been put specific question qua presence of faecal matter
and gases in the larger intestine and on this basis it was proposed that by that time when death
occurred, the deceased might not have eased out. The suggestion / question so put to this witness
has been replied in the negative that presence of faecal matter and gases does not mean that the
person concerned has not eased out because these matter remain present even after one has
responded to nature's call. He has also stated that nature of injuries is of such magnitude that a
person sustaining injuries might have become unconscious and may remain conscious and this fact
can be told only by a person who has seen him. He has also expressed view that he cannot say that
the person who sustained these injuries can utter words or cannot utter words. He further stated that
rigor mortis had not passed off and it was present, therefore, the duration of death was opined to be
Â1⁄2 day (12 hours).

32. The most relevant part of doctor's testimony is his specific assertion in the very last line
of his examination in chief that death might have been caused around 6.00 am and this specific
assertion has not been specifically challenged by the appellants before the trial court. On the point
of ante-mortem injuries, it has been stated that injury no. 1, 2 and 3 are the incised wounds on skull,
eyebrows and left side face, respectively. Injury no. 4 is abraded contusion 12 cm x 2.5 cm left side
of neck. Injury no. 5 is in form of five punctured wounds. Injury no. 6 is lacerated wound which is
4 cm x 2 cm x bone deep left side leg. Initially both bones fractured into multiple pieces. Injury no.
7 is one punctured wound 1 cm x 0.5 cm x bone deep 2 cm above injury no. 6.
1524 INDIAN LAW REPORTS ALLAHABAD SERIES
33. The doctor has very well opined regarding these injuries that these injuries can be
caused by axe like weapon and by use of spear. Even this specific testimony of doctor has not been
specifically challenged by the appellants before the trial court. Therefore, it cannot be said that the
weapons assigned to the appellants will not cause such injuries like incised wound and punctured
wound and of course abraded contusion as ante-mortem injury no. 4. We do not gather from facts
and circumstances that PW-1 Ram Pher was not present nearby the scene of occurrence and he
cannot be said to be not present in and around for answering nature's call in the morning of
21.10.1984 around 6.00 am; in the absence of any supporting material or cogent circumstance.

34. Similarly, presence of PW-2 in his field for levelling the soil cannot be taken to be
unexpected. Further no worthy suggestion has come forth that at that point of time, PW-1 and PW2 would have been engaged in some other work somewhere. Even the Investigating Officer, also
did not find any material during the course of investigation regarding their non presence on the spot
nor do the circumstances so reflect in this case. We discover from record that the Investigating
Officer has also recovered Tengari (axe like weapon) and spear and the memo of the same have
been proved as Exhibit Ka-25 and Ka-23 respectively and site map of these recoveries have been
prepared separately and proved by the Investigating Officer. The special report of the incident also
has been sent on very same day i.e. 21.10.1984 as proved by PW-5.

35. Admittedly, the FIR has been lodged promptly after the incident. Argument to the
extent that in this case, lodging of the FIR was very prompt and mechanical and things have been
managed at the instance of complainant, will not on its face reduce impact of fact of actual
occurrence, because to respond to a particular situation by a particular person is his/ her individual
mindset and personality and it depends on overall capacity of a person to view and respond to a
particular situation. Magnitude of reaction varies from person to person. A person can react over
smartly than others, but that by itself will not reduce quotient of truthfulness of occurrence merely
because the person reacted over smartly in the existing scenario.

36. Admittedly, since the fact of enmity and pending litigation have been proved between
the parties, how and why the prosecution witnesses will spare the real culprits and falsely implicate
the appellants when they have not committed offence. Testimony on record indicates that the
appellants laid in ambush in field and all of a sudden opened assault on the deceased who at that
point of time was ploughing his gram field and the prosecution witnesses arrived at the spot only
after hearing alarm raised by Dhunmun and witnessed the incident. Testimony by witnesses of fact
is indeed innocuous and inspiring confidence.

37. In so far as argument that the incident cannot be witnessed by the eye-witnesses is
concerned, we may consider topography of the site plan of the occurrence Exhibit Ka-18. Place 'A'
is the place where dead body of Dhunmun was lying and the place marked with 'B' is the spot from
where Badri Prasad and Ram Sumiran who were working in their field started running towards the
place of occurrence after hearing the hue and cry. Place 'D' has been shown as the place where
appellants laid in ambush in the sugar cane field, from where one bed sheet, one pair of slipper
were recovered and recovery memo of the same was prepared. Place 'E' is the place from where
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1525
complainant was responding to nature's call. The distance between 'A' and 'E' was measured 80
steps and the distance from place 'A' to 'B' was measured 113 steps. Therefore, all the relevant
places in the map appears to have been properly discussed and shown. How can one say that from
place 'B' the incident cannot be seen? It is not the case that from place 'B' Badri Prasad witnessed
the occurrence, but Badri Prasad after hearing alarm started running towards place of occurrence
from place 'B' likewise complainant started running from place 'E' after hearing alarm raised by the
deceased and then they rushed close to the spot and watched the entire incident.

38. No doubt, the Investigating Officer has not shown the very nearby spot from where
these witnesses actually witnessed the incident, but it is obvious as per testimony of these witnesses
that they watched the occurrence from a distance of 8 to 20 steps. Therefore, it cannot be said that
the incident cannot be witnessed by the prosecution witnesses. Therefore, argument in that regard is
legally not sustainable.

39. Similarly the Investigating Officer has also proved collection of blood stained soil and
simple soil from the place of occurrence and proved the memo of the same Exhibit Ka-19. We
come across the testimony that as soon as the FIR was lodged at police station at 6.45 am,
statement of first informant was recorded by the Investigating Officer which took about 20 minutes
and thereafter the Investigating Officer proceeded to the place of occurrence and reached there
within 15 minutes. The distance from police station to the place of occurrence has been told by the
Investigating Officer Mahendra Prasad to be 3 kms.

40. From perusal of the inquest report Exhibit Ka-13, it transpires that it's preparation
commenced at 7.30 am and ended at 9.00 a.m. Therefore, we cannot assume with liberty that things
were deliberated and there was time left for deliberation for false implication of the appellants in
this case. All the weapons namely spear, Tengari and Lathi used by the appellants were recovered
and memo of the same have been proved as Exhibit Ka-23, Ka-25 and Ka-29, respectively. These
recovery memos also bear signatures of witnesses before whom the recovery was made. Therefore,
authenticity of these recovery memos cannot be minimized any further.

41. On perusal of report Exhibit Ka-33 submitted by Forensic Laboratory, Agra it is
reflected that human blood was found on item no. 1, 2, 6 & 7, item no. 1 was axe, item no. 2 spear,
item no. 6 was Gamchha, item no. 7 was bed sheet. Therefore, presence of human blood on the
weapons used in the occurrence stands corroborated by the Forensic Laboratory report. How can it
be said that the entire facts vis-a-vis circumstances taken as a whole do not prove the charge that
the appellants in furtherance of their common intention caused murder of Dhunmun on 21.10.1984
around or at 6.00 a.m. by using Tengari (axe like weapon), spear and Lathi and the incident was
witnessed by PW-1 and PW-2 and their presence on the spot is found to be natural one. Their
testimony corroborates each other in material particulars regarding the manner and style of
occurrence. Such lively description of incident proves reasonably the charge made against the
appellants and the learned trial court has taken comprehensive view of circumstance and evidence
available on record and has recorded finding of conviction which is based on and supported by
material on record. Consequently, we do not see any apparent or inherent error or illegality in the
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
finding of conviction. On the contrary, we have every reason to confirm the finding of conviction
recorded by the trial court. In cases, where the testimony of eye witness appears to be reliable,
clinching and complete in material particulars like the present case, then the same has to be
believed and acted upon and any finding recorded upon such testimony shall be taken to be fair
enough for recording conviction of an offender against whom the testimony is forthcoming.

42. In view of above discussion, it is obvious that the grounds urged and contention raised
in support of this appeal are devoid of force. The judgment and order dated 19.05.1986 passed by
the Sessions Judge, Basti, in Session Trial No.96 of 1985 arising out of Case Crime No.103 of
1984, under Section 302/34 IPC, Police Station Kalwari, District Basti is upheld.

43. Accordingly, the appeal is dismissed.

44. In this case, all the three surviving appellants namely Ram Shanker, Daya Shanker and
Dudh Nath are on bail. Their personal bonds and bail bonds are cancelled and sureties discharged.
They be taken into custody forthwith to serve out the remaining part of their sentences imposed
upon them in the aforesaid sessions trial.

45. Let a copy of this judgment be certified to trial court for information and necessary
follow up action.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 2129 Of 1984

Rafi Ullah & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
G.P. Mathur, G.S. Chaturvedi, Kartikeya Saran, Mukhtar Alam, S.N. Singh, S.U. Khan

Counsel for the Respondent:
D.G.A., H.D. Verma, V.P. Mathur

Proceedings:
The present criminal appeal was preferred against the judgment and order dated 02.08.1984 passed by the
Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of 1982 and 76 of 1983, whereby appellant
no.1 was convicted under Section 302 IPC and appellant nos. 2 to 4 were convicted under Section 302 read