# Ravindra v. State of U.P

- **Citation:** (2021) 11 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-30
- **Case number:** Criminal Appeal No. 2114 of 1993
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-v-state-of-u-p-46686
- **Pages:** 7

## Headnote

A.G.A.

Human tendency to run away from the scene of
crime-particularly heinous crime-and when victim is
not a close associate or relative-dying declaration
indicts co-accused -it is inconclusive in respect of
appealant-entitled for benefit of doubt.

Appeal allowed. (E-9)

List of Cases cited:

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES
was recovered half a kilometer away from the
place of occurrence and as per medical opinion
he died of loss of blood (hemorrhage). For want
of adequate justification, the State has not
argued that there was any pre-meditation or the
appellants had acted in any cruel or unusual
manner.

38. The Court may note that the
prosecution as a matter of routine does not lay
emphasis on the production of independent
witnesses during the course of trial or fails to
record their statements during investigation.
Such a lapse on the part of investigating agency
must be viewed seriously by the courts of law
and time is not far when the courts may have to
invoke the suo motu powers to summon such
witnesses for which there ought to exist a
witness protection law.

39. For the reasons recorded above, the
conviction of the appellants under Section 302
IPC is modified as conviction under Section 304
Part-I IPC and the substantive sentence of life
imprisonment is reduced to the period of
sentence already undergone by them and the two
appeals preferred by the appellants separately as
noted above, are partly allowed. Let a copy of
the judgement be kept on the record of Criminal
Appeal no. 2078 of 2007 as well.

40. All the accused-appellants be set at
liberty forthwith if not wanted in any other
case.
----------
(2021)12ILR A966
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2114 of 1993
Ravindra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri K.D. Tripathi, Ms. Seema Pandey, A.C.

Counsel for the Respondent:
A.G.A.

Human tendency to run away from the scene of
crime-particularly heinous crime-and when victim is
not a close associate or relative-dying declaration
indicts co-accused -it is inconclusive in respect of
appealant-entitled for benefit of doubt.

Appeal allowed. (E-9)

List of Cases cited:

1. Shivaji Sahabrao Bobade & anr. Vs St. of Mah.
(1973) 2 SCC 793
(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Sameer Jain, J.)

1. Heard Ms. Seema Pandey (Amicus
Curiae) for the appellant; Sri Amit Sinha,
learned AGA and have perused the record.

2. This appeal is against the judgment and
order of conviction and punishment dated
09.11.1993 and 16.11.1993, respectively, passed
by III Additional Sessions Judge, Ghaziabad in
Sessions Trial No.166 of 1990 whereby the
appellant (Ravindra) has been convicted under
Section 302 read with Section 34 IPC and
awarded life imprisonment whereas co-accused
Smt. Rajni who was tried for the charge of
criminal conspiracy for murder has been
acquitted.

Introductory Facts

3. (i) The prosecution case, in brief, is that
in the morning of 24.10.1988, at about 7.30 a.m.,
while Devendra Singh (Informant - PW1), a
11 All. Ravindra Vs. State of U.P.
967
police constable, was going to attend nature's
call, he was informed by one Ram Mehar (PW2) that, on the road side, in a sewer pit
(manhole), a person is lying injured and is
groaning. On receipt of the information, PW-1
went to the spot and with the help of PW-2, Sri
Chand Chowkidar (not examined) and Prakash
Yadav (PW-5) pulled out the person injured
from the manhole (sewer pit) and discovered
that he was badly injured and his intestine had
come out. On being queried, that person
disclosed his name (Shiv Kumar Pathak - the
deceased), parentage and place of residence.
That injured person also stated that "he (the
injured), Munna (absconding accused) son of not
known, resident of village Tesuwa, police station
Faridpur, district Bareilly and Ravindra (the
appellant) son of Siya Ram, resident of village
Tesuwa,
police
station
Faridpur,
district
Bareilly, today, in the morning, at about 5.00
a.m., were going to village Barauk to purchase
vegetables; Munna (co-accused) owed Rs.500/-
to him (the deceased); he (the deceased) had
been requesting Munna to return the money, and
when, on way, he (the deceased) made a demand
for the money, Munna, all of a sudden, inflicted
him (the deceased) a knife blow on his
(deceased's)
abdomen
and
Ravindra
(the
appellant) held him; thereafter, he (deceased)
fell unconscious and, later, when he regained
consciousness he is feeling the pain" after
stating as above, the injured pointed towards his
injury. Narrating the aforesaid incident and the
statement of the person injured (the deceased)
recited above in vernacular, PW1 lodged a
written report (Ex. Ka1) at police station Dadri,
district Ghaziabad at 7.30 am on 24.10.1988,
which was registered as first information report
(FIR) (Ex. Ka-2).

(ii) The injured was rushed to the All
India Institute of Medical Sciences, New Delhi
(AIIMS). He was admitted there at 10.00 am.
There he died at 11.20 am on 24.10.1988 itself.
The summary of his admission and death
provided by Department of Forensic Medicine,
AIIMS is there on record as Paper No. Ex. Ka-3.
Prior to his death, an effort was made to record
his statement but the doctor noted "unfit for
statement", paper with regard thereto is on
record as Ex. Ka-8. On 25.10.1988, the body
was identified by deceased's wife Rajni (coaccused) and Rajni's brother (Avnish Kumar),
papers with regard thereto, are on record as Ex.
Ka-5 and Ex. Ka-4, respectively . Autopsy was
conducted on 25.10.1988 at about 4.30 pm, the
autopsy report was admitted under section 294
CrPC. Autopsy report stated that death could be
about 28 hours before. The Autopsy report
recorded following ante-mortem injuries:

1. Incised wound present in left lumbar
area size 8 cm x 6 cm going deep and intestine
coming out, 18 cm below left nipple and 6 cm
left axillary line. On exploration small intestine
and transverse colon cut, peritoneal cavity
contained about 2500 cc blood.

2. Incised wound 6 cm x 2 cm x 0.5
cm in mid-umbilical area just 2 cm lateral to the
right of injury no.1 and 18 cm below left nipple.

3. Three small lacerated wound size 1
cm x 1 cm x 0.2 cm, 0.5 cm x 0.5 cm and 1 cm x
1 cm just lateral to injury no.2 to the right.

(iii) During investigation the police
lifted blood stained and plain earth from the
spot, collected chappals (slippers) and prepared
memorandums thereof on 24.10.1988, which
were marked Ex. Ka10 and Ex. Ka 9
respectively. On 04.11.1988, a shirt of the
deceased from the manhole of the sewer from
where the injured was taken out; and a knife
from the bushes around, was recovered allegedly
on the pointing out of the appellant, while in
police custody. A memo of that recovery (Ex.
Ka-9) was made, which was witnessed by
Rajendra Prasad (PW-6) and another.

4. After investigation, on the strength of
material collected during investigation, the
police sent three persons for trial, namely,
Ravindra (the appellant); Munna (the person
968 INDIAN LAW REPORTS ALLAHABAD SERIES
who inflicted the knife injury); and Smt. Rajni
(wife of the deceased). Notably, Munna was
challaned as an absconder. After taking
cognizance on the police report, the case was
committed to the Court of Session. Through out
the trial Munna remained absconding therefore
evidence was recorded against him as under
section 299 CrPC.

Evidence

5. During the course of trial following
prosecution witnesses were examined: Constable
Devendra Singh (PW-1), the person who lodged
the first information report and before whom the
deceased had allegedly made statement as noted
above; Ram Mehar (PW-2), the person who first
noticed the deceased lying in the manhole and
on whose information the deceased was taken
out from the manhole; Ram Pal Singh (PW-3),
who was examined by the prosecution to
demonstrate that all the three accused were
residing at his premises as his tenant, and that
the male accused persons had developed illicit
relations with co-accused Rajni (the wife of the
deceased), however, this witness completely
resiled from the prosecution story and was
declared hostile; Inder Singh (PW-4), a police
personnel, posted at Defence Colony police
station, New Delhi, who proved: the admission
of the injured (i.e. the deceased) at AIIMS on
24.10.1988,
his
death,
shortly
thereafter,
identification of his body by co-accused Rajni
(deceased's wife) and Avnish Kumar (Rajni's
brother), inquest and handing over of body for
autopsy as also papers connected therewith;
Prakash (PW-5), the person who helped PW-1
and others to take out the injured from the
manhole; Rajendra Prasad (PW-6), the person in
whose presence the knife was recovered - he
proved the recovery memo (Ex. Ka-9); and Sub
Inspector
Bahadur
Singh
(PW-7),
the
Investigating
Officer,
who
started
the
investigation. It be noted that post mortem report
as well as charge sheet and forensic reports were
admitted under section 294 CrPC therefore
formal proof requirement was dispensed with.

6. After the prosecution evidence was led,
the incriminating circumstances appearing in the
prosecution case were put to the appellant who
denied his involvement in the crime and claimed
that he has been falsely implicated.

Findings of the Trial Court

7. The trial court found that - (a) there was
no occasion to doubt the version narrated in the
FIR as the police witnesses had no reason to
make false allegation; (b) during investigation the
investigating officer (PW-7) found that the
deceased, his wife (Rajni); Munna and Ravindra
(appellant) resided in one room let out by PW-3;
(c) PW-4 proved that the deceased in an injured
condition was admitted in AIIMS were he
expired shortly after admission and his statement
could not be recorded as the doctor did not allow
him to do so; (d) autopsy report established that
the deceased was inflicted knife blows which
resulted in his death and the estimated time of
death also correlated with the prosecution story;
(e) PW-6 established recovery of knife at the
instance of the appellant; (f) blood stained shirt
was also recovered from the manhole at the
instance of the appellant; (g) the chemical
examiner report established the presence of
human blood on knife, clothes, soil etc therefore,
the place of occurrence and the weapon used was
proved; (h) the statement of the deceased made
before his death is admissible under section 32 of
the Evidence Act which clearly establishes that
the appellant caught hold the deceased whereas
Munna inflicted knife blows resulting in injuries
and ultimately his death, the appellant therefore,
is liable to be convicted for the offence
punishable under Section 302 read with Section
34 IPC. The trial court however found no
evidence of conspiracy to nail co-accused Rajni.

Submissions
11 All. Ravindra Vs. State of U.P.
969

8. Assailing the judgment and order of the
trial court, learned counsel for the appellant
contended : (a) that the prosecution failed to prove
any motive against the appellant; (b) that the
motive was exclusively with Munna; (c) the story
in the FIR reciting the manner of incident suggests
that it was the individual act of Munna; (d) the
statement of the deceased as recited in the FIR is
inconclusive as against the appellant; (e) that
admittedly the doctor did not certify the condition
of the deceased as fit to record statement hence no
reliance can be placed on his (deceased's)
statement; (f) that recovery of incriminating
articles is from an open place already discovered
hence it is inconsequential; and (g) that there is no
ocular account or any other evidence that the
deceased was in the company of the appellant or
any body else on or about the time of the incident.
It was argued that this is a case where there is
virtually no evidence, ocular or circumstantial, to
complete the chain of incriminating circumstances
to rule out all other hypothesis than the guilt of the
appellant. Hence, it is a fit case where the appellant
be acquitted of the charges for which he has been
tried.

9. Per contra, Sri Amit Sinha, learned AGA,
submits that this is a case where the presence of
the appellant with the deceased and the other coaccused at the time when the deceased was
inflicted injury is substantiated from the statement
made by the deceased to PW-1; and the recovery
of knife on the pointing out of the appellant
corroborates that statement of the deceased
therefore, the burden was on the appellant to
explain the circumstances in which the deceased
had suffered injuries and in absence whereof, the
conviction of the appellant would be justified
under section 302 IPC with the aid of section 34
IPC.

Analysis

10. We have considered the rival
submissions and have perused the record
carefully. Admittedly, there is no ocular version
of the incident therefore, the case would have to
be decided on the basis of proven circumstances.
Before we proceed to analyse the prosecution
evidence, we may notice that the explanation of
the appellant in his statement, under section 313
CrPC, is nothing except that he denies the
incriminating circumstances. He does not
dispute his identity or the identity of the
deceased. He also does not claim that he does
not know anything about the deceased. In that
light, we will have to analyse the prosecution
evidence. The prosecution evidence against the
appellant can be divided into two parts. One is
the statement of the deceased made to PW-1 and
other persons who pulled him out of the
manhole, admissible under section 32 of the
Evidence Act, and the other is the circumstantial
evidence of recovery of shirt of the deceased
from the manhole, and the knife from the bushes
around, on the information provided by the
appellant. In so far as recovery is concerned, that
was made on 4.11.1988, that is ten days later,
from the same spot which is accessible to all and
from where the deceased was taken out in an
injured condition. Hence, in our view, the
recovery is inconsequential and appears to have
been developed to fortify an otherwise weak
prosecution case. Even assuming that it is a
genuine recovery, it, at best, would be reflective
of the knowledge of the appellant where the
knife was thrown, suggestive of appellant's
presence at the scene of crime. But not that the
appellant participated in the act of infliction of
injuries on the body of the deceased with the
other co-accused Munna.

11. In so far as the statement of the
deceased made to the witnesses is concerned, we
may observe that it is not a formal dying
declaration which a Magistrate records after
being satisfied with regard to the condition of its
maker. Importantly, it has come on record that at
AIIMS when an effort was made to record the
statement of the deceased, the doctor did not
970 INDIAN LAW REPORTS ALLAHABAD SERIES
permit as the person was not fit to give his
statement. This was just within three to four
hours after the deceased was pulled out of the
manhole. Even in the FIR, wherein the statement
of the deceased is recited, the deceased, while he
was alive, stated that after infliction of injury he
had turned unconscious and has now regained
consciousness. Bearing all these circumstances
in mind we have to very carefully analyse as to
what the deceased actually stated and whether
from his statement could it be said with certitude
that the deceased was caught hold by the
appellant to enable co-accused Munna to inflict
injuries with knife.

12. In this case, the statement of the
deceased made to PW-1 at the time when the
deceased, in an injured condition, was taken out
from the manhole, is recorded in the FIR, lodged
by PW-1, and nowhere else. Meaning thereby
that there is no record to suggest that the
statement of the deceased was recorded by way
of his statement made to the investigating officer
under section 161 CrPC. Thus, the recital in the
FIR with regard to what the deceased stated is
the last record of his statement. In this statement,
the deceased had specifically stated that the coaccused Munna had borrowed Rs.500/- from the
deceased and when the deceased raised a
demand upon him (Munna) for return of the
money, while they were moving together in the
company
of
the
appellant
to
purchase
vegetables, Munna all of a sudden inflicted him
with knife blow on his (deceased's) abdomen
and the appellant held him. In this statement of
the deceased, there is no specific allegation that
the appellant exhorted Munna to inflict knife
blows or that the appellant first caught hold the
deceased and then knife blows were inflicted.
This statement of the deceased therefore, is not
conclusive as regards the role of the appellant.
Rather, it leaves us guessing whether the
appellant held the deceased, to support him, after
he was inflicted knife injury by Munna, or to
enable Munna to inflict knife injuries. This
riddle could have been solved had the
prosecution been able to prove a motive for the
crime
against
the
appellant.
Here,
the
prosecution set out to prove twin motive for the
crime. One, which could not be proved, was that
the co-accused Munna and the appellant both
had an affair with co-accused Rajni, the wife of
the
deceased,
and,
therefore,
they
were
interested in finishing off the deceased; and the
other, which stood proved from the statement of
deceased, was that Munna was annoyed with the
pestering demand of the deceased to return his
money. Thus, the proven motive for the crime
was with Munna alone. Further, the statement of
the deceased made to PW-1 also attributes
infliction of knife injury to Munna alone, that
too, as a sudden response to the demand for
return of the money. In our view, therefore, to
convict the appellant for the charge of murder
with the aid of section 34 IPC would not be safe
even though the evidence led may cast suspicion
on the conduct of the appellant. But suspicion
alone is no substitute for legal proof. No doubt,
had it been a case where there was no statement
of the deceased in respect of infliction of injury
by Munna and circumstantial evidence had
proved the presence of the appellant with the
deceased at the time of occurrence, by virtue of
section 106 of the Evidence Act, burden would
have been on the appellant to explain the
circumstances in which the deceased suffered
injuries and, in absence of proper explanation,
he could have been held guilty. But, here, the
statement of the deceased conclusively indicts
co-accused Munna and, in respect of the
appellant it is inconclusive, therefore, taking the
aid of section 106 of the Evidence Act, when the
mode and manner of infliction of injury is
proved by the statement of the deceased, would
not be appropriate.

13. At this stage, we may notice that in the
statement of PW-1 and PW-2 made during trial
there is some improvement than what is stated in
the FIR with regard to what the injured (the
11 All. Ravindra Vs. State of U.P.
971
deceased) stated when he was taken out from the
manhole. In their statement in court the
witnesses stated that the deceased had informed
them that the appellant held his hand and Munna
inflicted knife blow. Importantly, in their
testimony in court, the sudden infliction of knife
blow by Munna is also not disclosed though, in
the FIR, according to what the deceased had
told, there was sudden infliction of knife blow
by Munna. Further, the sequence of such
infliction i.e. that the appellant first held
deceased's hands and then knife blow was
inflicted, was not there. This improvement goes
a step further in the testimony of PW-5 when he
states that the deceased on being pulled out of
the manhole stated that both Kalua @ Ravindra
(the appellant) and Munna had inflicted him
knife injuries. In our view, the statements made
during trial in so far as they are at variance with
the one put on record, that is the FIR in this case,
would have to be eyed with extreme suspicion
because here we are dealing with hearsay
evidence. No doubt, a dying declaration is an
exception to the rule against hearsay evidence
but where the contents of a statement, which is
to read as a dying declaration, are put on record,
parole evidence different to that what is codified
must not ordinarily be accepted unless there are
very strong reasons to do so, because the
accused gets no right to cross-examine its
maker. We are therefore of the firm view that
the so called statement of the deceased is not
conclusive as regards the role of the appellant
and therefore, by relying upon the same, it
would be unsafe to hold the appellant guilty with
the aid of section 34 IPC.

14. Now, a question may arise as to why an
inference with regard to the guilt of the appellant
be not drawn from the conduct which he
exhibited. One may say that if the appellant's
presence with the deceased had been proved,
had he not been guilty, common human courtesy
would have been to help out the deceased and
not run away by putting him in a manhole. In
this regard, we may observe that, firstly, there is
no reliable evidence that the appellant had, with
the help of co-accused, put the deceased in a
manhole. The oral narration of the witnesses in
that regard as to what the deceased had told
them is not acceptable for two reasons: (a) it is
at variance with what the deceased told, as
recited in the FIR; and (b) from the recital in the
FIR the deceased had stated that he had turned
unconscious after infliction of injuries, if that
was so, how would he get opportunity to notice
as to who put him in the manhole. Secondly,
there is no charge framed against the appellant
for an offence punishable under section 201 IPC;
and, thirdly, different persons react differently. It
is a natural human tendency to run away from
the scene of crime, particularly, when it is of a
heinous nature. Such a conduct is more
pronounced when the victim is not a close
associate or relative of the person whose conduct
is in question. In this case, noticeably, the
prosecution failed to prove close relationship
between the deceased and the accused persons.
PW-3, the witness, set up to do that, turned
hostile. Conspiracy allegation also could not be
proved. Thus, even if a question may arise as to
why the appellant did not help the deceased if he
held no guilt, that, by itself, is not a proof of his
guilt.

15. The upshot of the foregoing discussion
is that though the proven circumstances may
create a strong suspicion with regard to the
conduct of the appellant but they are not
conclusive to enable us to hold with certitude the
appellant guilty. At this stage, we may remind
ourselves of the observations made by Supreme
Court in its judgment in Shivaji Sahabrao
Bobade and another v. State of Maharashtra,
(1973) 2 SCC 793 where it was observed:
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between 'may be' and 'must be' is long
and divides vague conjectures from sure
972 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusions." The aforesaid legal principle is
time-tested and is the bedrock of criminal
jurisprudence.

16. In view of the discussion above, we are of
the considered view that the prosecution has failed
to prove the case against the appellant beyond the
pale of doubt. The appellant is therefore entitled to
the benefit of doubt. Consequently, the judgment
and order of the court below in so far as it relates to
the appellant is liable to be set aside. The appeal is
therefore allowed. The judgment and order of
conviction and sentence passed by the trial court as
against the appellant is set aside. If the appellant is
on bail, he need not surrender subject to compliance
of the provisions of Section 437-A CrPC to the
satisfaction of the trial court below.

17. Before parting, we record our
appreciation for the labour put in by Ms. Seema
Pandey, who assisted the Court as an Amicus with
commendable preparation. We, accordingly, direct
that she be paid Rs.10,000/- (ten thousand only) by
the High Court Legal Aid Services Committee for
her efforts.

18. Let a copy of this order be sent to the court
below for information and compliance.
----------
(2021)12ILR A972
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 2978 of 2010

Mohsin & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.K. Dubey, Sri Deepak Kumar Pandey, Sri
Pankaj Kushwaha, Sri Pankaj Kumar Kushwaha,
Sri Rajiv Lochan Shukla, Sri S.C. Kushwaha, Sri
Vinod Tripathi, Sri Uma Dutt Tripathi

Counsel for the Respondent:
A.G.A.

It is necessary to avoid undue leniency in imposing
sentence-criminal jurisprudence is reformative and
corrective-undue harshness to be avoided-Appeal not
pressed
on
merit-conviction
upheld-doctrine
of
proportionality-life
imprisonment
is
very
harsh
sentence converted from life imprisonment to 10
years and fine of Rs. 5000/.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC 1926]

2 Deo Narain Mandal Vs St. of U.P. [(2004) 7 SCC
257]

3. Ravada Sasikala Vs St. of A.P. AIR 2017 SC 1166

4. Jameel Vs St. of U.P. [(2010) 12 SCC 532]

5. Guru Basavraj Vs St. of Karn., [(2012) 8 SCC 734]

6. Sumer Singh Vs Surajbhan Singh, [(2014) 7 SCC
323],

7. St. of Punjab Vs Bawa Singh, [(2015) 3 SCC 441],

8. Raj Bala Vs St. of Har., [(2016) 1 SCC 463]
(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellants
have challenged the Judgment and order
20.4.2010 passed by court of Additional District
and Sessions Judge/FTC, Court No.2, Ghaziabad
in Session Trial No.393 of 2009 arising out of
Case Crime No.1310 of 2008 under Sections
354, 376 Indian Penal Code, Police Station-