# Satya Narain Yadava & Ors v. State of U.P

- **Citation:** (2023) 10 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-03
- **Case number:** J. Criminal Appeal No. 2704 of 1985
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-narain-yadava-ors-v-state-of-u-p-49371
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 201 -
Criminal Procedure Code, 1973 - Section
313 - Murder - Evidence Reliability -
Perverse Findings Criminal Appeal No. 2704
of 1985 challenging the judgment and order
dated 05.10.1985 in Sessions Trial No. 262 of
1982, convicting the appellants under Sections
148,
302/149,
and
201
IPC
with
life
imprisonment, two years' RI, and three years' RI
respectively, for the murder of Sant Prasad
10 All. Satya Narain Yadava & Ors. Vs. State of U.P.
985
Shukla on 28.09.1980. The FIR alleged that the
appellants, armed with farsa, gun, katta, and
ballam, shot and beat the deceased, dragging
his
body
toward
the
Saryu
River.
The
prosecution relied on the testimony of P.W.-2
(deceased's wife), a recovery memo dated
04.10.1980 (wrist watch and axe), and a
telegram indicating motive. The court found
P.W.-2's
testimony
unreliable
due
to
inconsistent versions (Paras 19-20), classifying it
as wholly unreliable (Vadivelu Thevar, Rajesh
Yadav). Non-examination of key witnesses
(informant
Ghisiyawan,
Vimla
Kumari,
Investigating Officer) and failure to prove
recovery memos, absence of human blood on
the axe, and unproven ownership of the
recovered watch rendered the prosecution's
case unproven beyond reasonable doubt (Paras
24-26). The telegram was inadmissible, and no
evidence supported claims of the body being cut
or disposed of (Paras 29-30). The trial court's
findings were perverse, heavily relying on
unproven recovery and unreliable testimony
(Para 28). The appeal was allowed for surviving
appellants (Chakradhari, Ram Singh, Vijai
Shanker, Ram Karan, Pabbar, Nav Ratan),
convictions were set aside, and bail bonds
discharged.

Appeal Allowed.

Case Law Cited:

## Text

984 INDIAN LAW REPORTS ALLAHABAD SERIES
to ante-mortem injuries caused by accusedappellant and to hide the facts and
evidences and to mislead the accusedappellant concocted a false story of fire
accident and set ablazed the dead body of
the deceased so as to give it a colour of fire
accident. Thus, we find no error in the
impugned Judgement and Order dated
16.11.2016 passed by the Additional
Sessions Judge/F.T.C. No. 1 in Session
Trial No. 454 of 2008 (State of Uttar
Pradesh vs. Shivnath) convicting the
accused-appellant under Section 302 IPC,
with life imprisonment and a fine of Rs.
10,000/- and on failure to deposit fine, to
undergo further imprisonment for another
one year.

18. For all the reasons aforenoted, we
do not find any merit in this appeal.
Consequently, the appeal is dismissed. The
appellant is languishing in jail. He shall be
kept there to serve out the sentence
awarded by the Trial Court and affirmed by
us.

19. Office is directed to communicate
this order to the court concerned and remit
the trial court record forthwith.

20. After the judgement was dictated
in open Court learned Amicus Curiae
submitted that in view of the law laid down
by the Coordinate Bench of this Court in
Criminal Appeal No. 544 of 2010 (Raggu
Baniya @ Raghwendra vs. State of U.P)
decided on 26.10.2021, direction may be
issued to the opposite party to consider the
case of the accused-appellant for remission
inasmuch as the accused-appellant is a very
poor person and has remained in prison for
more than 14 years and two months.

21. Learned AGA submits that it is
always open for the accused-appellant to
apply to the competent authority for
remission and for that purpose no specific
direction is required to be issued by this
Court. We agree with the submission of the
learned AGA and, accordingly, we leave it
open for the accused-appellant to apply for
remission in accordance with law and if
permissible in law.

----------
(2023) 10 ILRA 984
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.10.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Criminal Appeal No. 2704 of 1985

Satya Narain Yadava & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.D. Giri, Sri Azad Rai, Sri Birendra
Prasad Maurya, N/A, Sri Rama Shankar
Mishra, Sri Anurag Shukla, Sri Gopal
Chaturvedi (Sr. Adv.)

Counsel for the Opposite Party:
G.A., Sri Bhairo Prasad Dwivedi, Sri Sanjay
Mani Tripathi, Sri Shesh Narain Mishra

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 201 -
Criminal Procedure Code, 1973 - Section
313 - Murder - Evidence Reliability -
Perverse Findings Criminal Appeal No. 2704
of 1985 challenging the judgment and order
dated 05.10.1985 in Sessions Trial No. 262 of
1982, convicting the appellants under Sections
148,
302/149,
and
201
IPC
with
life
imprisonment, two years' RI, and three years' RI
respectively, for the murder of Sant Prasad
10 All. Satya Narain Yadava & Ors. Vs. State of U.P.
985
Shukla on 28.09.1980. The FIR alleged that the
appellants, armed with farsa, gun, katta, and
ballam, shot and beat the deceased, dragging
his
body
toward
the
Saryu
River.
The
prosecution relied on the testimony of P.W.-2
(deceased's wife), a recovery memo dated
04.10.1980 (wrist watch and axe), and a
telegram indicating motive. The court found
P.W.-2's
testimony
unreliable
due
to
inconsistent versions (Paras 19-20), classifying it
as wholly unreliable (Vadivelu Thevar, Rajesh
Yadav). Non-examination of key witnesses
(informant
Ghisiyawan,
Vimla
Kumari,
Investigating Officer) and failure to prove
recovery memos, absence of human blood on
the axe, and unproven ownership of the
recovered watch rendered the prosecution's
case unproven beyond reasonable doubt (Paras
24-26). The telegram was inadmissible, and no
evidence supported claims of the body being cut
or disposed of (Paras 29-30). The trial court's
findings were perverse, heavily relying on
unproven recovery and unreliable testimony
(Para 28). The appeal was allowed for surviving
appellants (Chakradhari, Ram Singh, Vijai
Shanker, Ram Karan, Pabbar, Nav Ratan),
convictions were set aside, and bail bonds
discharged.

Appeal Allowed.

Case Law Cited:

1. Vadivelu Thevar Vs St. of Madras, AIR 1957
SC 614 (Paras 20, 22)

2. Rajesh Yadav Vs St. of U.P., (2022) 12 SCC
200 (Para 21)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
 Hon'ble Ms. Nand Prabha Shukla, J.)

1. Heard Shri Gopal Chaturvedi,
learned Senior Advocate assisted by Shri
Anurag Shukla, learned counsel for the
appellants, Shri Shoeb Khan, learned AGA
for the State and Shri Sanjay Mani Tripathi,
learned counsel for the son of the deceased.

2. This criminal appeal has been filed
by the accused-appellants praying to set
aside the judgement and order dated
05.10.1985 in Sessions Trial No.262 of
1982 (State vs. Satya Narain Yadava And 9
Others) under Sections 148, 302/149 and
201 I.P.C., P.S.- Gola, District- Gorakhpur
arising out of Case Crime No.194 of 1980
under Sections 147, 148, 149, 302 and 201
I.P.C., P.S.- Gola, District- Gorakhpur. By
the impugned judgement, all the accusedappellants have been convicted with life
imprisonment for the offence punishable
under Section 302 read with Section 149
I.P.C., two years R.I. for the offence
punishable under Section 148 I.P.C. and
three years R.I. for the offence punishable
under Section 201 I.P.C. All the sentences
were to run concurrently.

3. The appeal of the appellant no.1Satya Narain Yadava, appellant no.4-Jagat
Narain and appellant no.7-Phool Chand
was abated vide order of this Court dated
05.12.2018 and the appeal of the appellant
no.2-Dhanush Dhari was abated vide order
of this Court dated 17.07.2019. Now, this
appeal survives only in respect of the
appellant nos.3, 5, 6, 8, 9 and 10, namely,
Chakradhari, Ram Singh, Vijai Shanker,
Ram Karan, Pabbar and Nav Ratan
respectively.

Facts:

4. Briefly stated facts of the present
case are that an F.I.R. No.171 being Case
Crime No.194/1980 under Sections 147,
148, 149, 302 and 201 I.P.C., P.S.- Gola,
District- Gorakhpur was lodged by one
Ghisiyawan
alleging
that
when
he
alongwith the deceased-Sant Prasad Shukla
and one Markandey Chaubey son of Kamta
Prasad Chaubey were returning from
Gopalpur, near the house of the deceased-
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Sant Prasad Shukla at about 10 P.M. in the
night, when they reached at the house of
Jokhai, he saw in the light of his torch three
accused persons, namely, Satya Narain
Yadava
armed
with
Farsa, his son
Chakradhari @ Laldhari armed with a gun
and Jagat Narain son of Tapai Yadav armed
with Katta and on exhortation of Satya
Narain Yadava, Chakradhari @ Laldhari
and Jagat Narain fired at the deceased-Sant
Prasad Shukla due to which he fell on the
ground on receiving the gun shot injury.
Thereafter, Dhanush Dhari, Phoolchanda,
Navratan and Ram Singh armed with
Ballam and Vijay Shankar, Ram Karan and
Pabbar and two other persons armed with
Farsa came and started beating the
aforesaid Sant Prasad Shukla. On hearing
the cry and sound of fire, the wife of
deceased-Sant Prasad Shukla and his
daughter Vimla Kumari came on the spot
having torch in their hands, whose house
was near to the place of incident. Despite
persuasion by the wife and daughter of the
deceased-Sant Prasad Shukla, the accused
persons mercilessly caused injuries to the
deceased-Sant Prasad Shukla resulting in
his death. Thereafter, the accused persons
dragged the body of the deceased to the
south side of the village towards Saryu
river, which was about four furlong from
the place of incident but due to fear, she
(wife of the deceased) could not chase
them. It was apprehended that either the
accused persons would have hidden the
dead body somewhere or would have
thrown it in the river Saryu.

5. The aforesaid F.I.R. was registered
in the night of 28/29.09.1980 at 00:30
hours. The Investigating Officer reached on
the spot and prepared the recovery memo,
recovering one torch from the eye witness
Markandey Chaubey, one torch from the
informant-Ghisiyawan and one torch from
the eye witness Vimla Kumari (daughter of
the deceased-Sant Prasad Shukla). The
aforesaid recovery memo is of 29.09.1980
(Exhibit Ka-6), which bears the signature
of five witnesses, namely, Ghisiyawan,
Komal, Ram Charan, Vimla Kumari and
Markandey Chaubey. Another recovery
memo dated 29.09.1980 was prepared by
the Investigating Officer in presence of the
witnesses, namely, Komal and Ram Charan
recovering plain earth and blood stained
earth from the spot in two separate
containers.

6. Another recovery memo dated
04.10.1980
was
prepared
by
the
Investigation Officer showing Badri Prasad
Shukla (P.W.-4) and Krishna Mohan
Pandey as witnesses of the recovery memo,
under which recovery of a wrist watch
allegedly of the deceased and an axe
(allegedly used in the commission of the
offence to cut the body of the deceasedSant Prasad in pieces), were shown. As per
recovery memo, the aforesaid wrist watch
and the axe both contained blood stains.
This recovery memo was not signed by the
accused-Jagat Narain on whose pointing
out these articles were recovered.

7. The plain and the blood stained
earth, the wrist watch and the axe were sent
for chemical examination. As per report of
the chemical examiner dated 25.09.1981,
human blood was found in the sample of
the blood stained earth and on the wrist
watch but no human blood was found on
the axe.

8. The chargesheet was prepared on
29.12.1980 and was filed against all the
accused persons. Charges were framed by
the learned Trial Court on 28.07.1982. The
prosecution
examined
four
witnesses,
namely, P.W.-1 eye witness-Markandey
10 All. Satya Narain Yadava & Ors. Vs. State of U.P.
987
Chaubey, P.W.-2 eye witness-Chandrawati
wife of the deceased-Sant Prasad Shukla,
P.W.-3 Constable Moharrir-Daya Shankar
Dubey, who registered the chik F.I.R. and
the P.W.-4 Badri Prasad Shukla (munsi of
the deceased-Sant Prasad Shukla), who is
one of the witnesses of the aforesaid
recovery memo dated 04.10.1980.

9. Eye witness P.W.-1 (Markandey
Chaubey) turned hostile. The informant/eye
witness-Ghisiyawan was not examined by
the prosecution. The third eye witness
Vimla Kumari (daughter of the deceasedSant Prasad Shukla) was also not examined
by the prosecution. The Investigation
Officer, who investigated the case and
prepared the recovery memos, was also not
examined
by
the
prosecution.
The
statements of the accused persons under
Section 313 Cr.P.C. were recorded in
which they denied all the allegations
levelled against them.

10. The learned Trial Court convicted
all the accused persons mainly on the basis
of recovery memo dated 04.10.1980
(Exhibit ka-4) and the evidence of P.W.-2.
Aggrieved, all the accused-appellants have
filed the present appeal.

Submissions:

11. Shri Gopal Chaturvedi, learned
Senior Advocate submits as under:

(i) The findings recorded by the
learned Trial Court for convicting the
accused-appellants is perverse and based on
no evidence. The evidence of P.W.-2 is
wholly unreliable and totally inconsistent.

(ii) The eye witness/informantGhisiyawan was not examined by the
prosecution. The other alleged eye witness
Vimla (daughter of the deceased-Sant
Prasad Shukla) was also not examined by
the prosecution. The Investigating Officer
was also not examined. The recovery
memos could not be proved by the
Investigating Officer, who prepared them.

(iii) There is no whisper about
use of the axe either in the First
Information Report or in the evidence of
the alleged eye witness P.W.-2. There is no
allegation or evidence that any of the
accused persons were armed with axe. As
per forensic report, no human blood was
found on the allegedly recovered axe. The
evidence of P.W.-4 regarding recovery is
totally unreliable, as he has not seen the
alleged axe and the watch but he saw it in
the hands of the Investigating Officer. The
Investigating
Officer
has
not
been
examined to prove the recovery. Therefore,
neither it could be proved that the allegedly
recovered axe is connected with the offence
nor the recovery of the axe could be
proved. The recovery of wrist watch could
not be proved and it was also not even
produced during trial and particularly
before the P.W.-4 when he was being
examined. Even, the eye witness P.W.-2
has not stated that the allegedly recovered
watch is the watch of her deceased
husband.

(iv) As per evidence of P.W.-2,
she received blood stains of the deceasedSant Prasad Shukla on her clothes but her
clothes were not recovered and were not
sent for forensic examination to find out the
truth and for corroboration of her evidence.

(v) The conduct of alleged eye
witness
P.W.-2
is
totally
unnatural
inasmuch as, as per her version she chased
the accused persons to a short distance but
thereafter she returned. She had not chased
988 INDIAN LAW REPORTS ALLAHABAD SERIES
the body of her husband being allegedly
dragged by the accused persons.

(vi) No evidence could be led by the
prosecution that the accused persons have
killed the deceased, cut his body into pieces
and thrown it in river Saryu. It is merely an
apprehension, which has been expressed in
the First Information Report. Therefore,
merely on apprehension, the accused
persons cannot be held guilty.

12. Learned AGA submits as under:

(i) The First Information Report
is prompt inasmuch as the time of incident
is 10 P.M. and the First Information Report
was lodged at 00:30 hours in the night of
28/29.09.1980. The motive is proved
because of the incident of 2nd of March,
1980 and in respect of which the aforesaid
Ghisiyawan has lodged an F.I.R. No.38
being Case Crime No.49/1980 dated
02.03.1980 under Sections 147, 148, 149,
323, 452 and 427 I.P.C., P.S.- Gola,
District- Gorakhpur. Since the deceasedSant Prasad Shukla had helped the
aforesaid informant-Ghisiyawan in pairvi
of the aforesaid case crime, therefore, the
accused persons have killed the deceased.

(ii) The deceased has sent a
complaint by telegram dated 03.07.1980 to
the Senior Police Officers expressing threat
of his life from the accused-Satya Narain
Yadava and a photocopy of the aforesaid
telegram being Paper No.50 Kha was also
filed by the prosecution during trial. The
prosecution has proved the guilt of the
accused-persons beyond reasonable doubt
as is evident from the evidence of eye
witness P.W.-2 and witness of recovery
memo dated 04.10.1980 i.e., P.W.-4. Thus,
the prosecution has proved the guilt of the
accused-persons beyond reasonable doubt.
Therefore, the accused-persons have been
lawfully and correctly convicted by the
learned Trial Court by the impugned
judgement and order dated 05.10.1985.

13. Shri Sanjay Mani Tripathi,
learned counsel for the son of the deceased
submits that direct evidence being evidence
of eye witness P.W.-2, telegram indicating
motive/rivalry being Paper No.50 Kha
dated 03.07.1980 and evidence of P.W.-4
(witness
of
recovery
memo
dated
04.10.1980) proving recovery of watch and
the axe are sufficient evidences to hold the
accused persons guilty of commission of
offence under which they have been
charged. Therefore, the learned Trial Court
has not committed any manifest error of
law and there is no perversity in the
findings recorded by the learned Trial
Court. Therefore, the impugned judgement
and order passed by the learned Trial Court
cannot be interfered with.

Discussion and Findings:

14. We have carefully considered the
submissions of learned counsels for the
parties and perused the record.

15. We find that the informantGhisiyawan was not in comfortable terms
with the accused persons. Against some of
the accused persons, he had lodged the
aforesaid F.I.R. No.38 of 1980 being Case
Crime No.49 of 1980 dated 02.03.1980,
P.S.- Gola, District- Gorakhpur under
Sections 147, 148, 149, 323, 452 and 427
I.P.C. making allegations of beating. The
informant of the F.I.R. in question being
F.I.R. No.171 of 1980 (Case Crime No.
194 of 1980) dated 29.09.1980 is also the
aforesaid Ghisiyawan, who also alleged
himself to be the eye witness. He was not
examined by the prosecution. Even in the
10 All. Satya Narain Yadava & Ors. Vs. State of U.P.
989
aforesaid F.I.R., he has alleged the accused
persons armed with specific weapons,
which does not include axe. He has not
proved the aforesaid F.I.R. In the F.I.R., he
has merely expressed apprehension that the
dead body of the deceased-Sant Prasad
Shukla either would have been hidden by
the accused persons or would have been
disposed of in the river Saryu. Even the
torch used by him to see the accused
persons was not proved by the prosecution.

16. The P.W.-1, Markandey Chaubey,
who was allegedly accompanying the
deceased at the date, time and place of
incident, was examined by the prosecution
as P.W.-1 but he has not supported the
prosecution story. Therefore, he was
declared hostile.

17. Eye witness P.W.-2, who is the
wife of the deceased-Sant Prasad Shukla, in
her examination-in-chief has stated that she
came on the place of incident alongwith her
daughter Vimla Kumari on hearing the
sound of fire and cry of Ghisiyawan and
her husband. She further stated that she was
having a torch and her daughter was also
having a torch and in the light of the torch,
they saw the accused persons from behind
the house of one Jokhai. She stated that she
saw that the accused-persons were beating
her husband. She further stated that the
accused persons, namely, Satya Narain,
Vijai, Ram Karan and Babbar were armed
with Farsa, accused persons, namely,
Chakradhari, Ram Singh, Phool Chand and
Navratan were armed with Bhala, the
accused-Chakradhari was armed with gun
and the accused-Jagat was armed with
Katta and the accused persons armed with
gun and Katta were guarding while other
accused persons were beating her husband.
She stated that the moment she reached at
the place of incident, she covered the body
of her husband but the accused persons
removed her and took away her husband
towards south side of the Madai of
Dhuniram and she chased the accused
persons to some distance but thereafter
returned and she could not find the body of
her husband. She stated that her daughter
Vimla Kumari, Markandey Chaubey and
Ghisiyawan have seen the incident.

18. During her cross examination, the
P.W.-1 admitted that the accused-Satya
Narain Yadava is the village Pradhan. She
stated that when she reached at the place of
incident, her husband was lying on the
earth and the accused persons were beating
him, then she threw away the torch and
covered the body of her husband due to
which her clothes also received blood
stains of blood of her husband. During her
further cross examination, she changed her
version and stated that when she reached at
the spot, she found that the accused persons
were dragging her husband. On further
cross examination, she again changed her
version and stated that when she reached at
the place of incident, she saw that accused
persons were dragging her husband to the
south side till the door of the house of one
Phool Chand. She showed her total
unawareness about any talk with the
alleged eye witnesses Ghisiyawan and
Markandey or the lodging of the F.I.R. but
she admitted that the Investigation Officer
came to her village on the date of incident
at about 12:00 in the night and was sitting
at
her
house
door
and
when
the
Investigating
Officer
came,
she,
her
daughter and eye witnesses Markandey and
Ghisiyawan were present. She stated that
she was weeping at her house door. She
further stated that the Investigating Officer
has not made any queries or enquiry from
her and she has not met with the
Investigating Officer after the night of the
990 INDIAN LAW REPORTS ALLAHABAD SERIES
day of incident. On a query by Court, she
stated that Investigating Officer has taken
her statement on the next day. On further
cross examination, she stated that she has
told the Investigating Officer that she was
having a torch but if it is not written in her
statement, then she cannot give any reason
for that.

19. Perusal of the evidence of eye
witness P.W.-2 shows that she has changed
her version thrice about the scene at the
time of commission of offence. Firstly, she
stated that when she reached the place of
incident on hearing the sound of fire and
cry of her husband and Ghisiyawan, she
saw the accused persons from behind the
house of one Jokhai and described the
weapons with which the accused persons
were armed and, thereafter, she covered her
husband but the accused persons removed
her. When cross examined, she stated that
when she reached at the place of incident,
she found that her husband was lying on
the south-west corner of the pond situated
on the west side of the house of Jokhai and
the accused persons were beating him.
Then she thrown her torch and covered her
husband due to which she received blood
stains of the blood of her husband on her
clothes. The third version, which came in
her cross examination is that when she
reached at the place of incident, she saw
that the accused persons were dragging her
husband towards south side and they
brought her husband beating and dragging
to the door of the house of Phool Chand.
Thus, the evidence of P.W.-2 is not
consistent. Her blood stained clothes could
neither be recovered nor could be sent for
forensic examination so as to corroborate
with her evidence and particularly with
respect to her presence on the spot as an
eye witness. The torch, in the light of
which she allegedly saw the accused
persons, was also neither produced by her
nor could be recovered by the Investigating
Officer. In her cross examination, she
stated that the Investigating Officer came at
about 12:00 (zero hours) in the night while
F.I.R. was registered at 00:30 hours in the
night. In her cross examination, she
admitted that the Investigating Officer was
sitting at her house door but she had not
met him while at the same time, she
admitted that she herself was sitting at her
house door. The inconsistent evidence of
P.W.-2 renders her to be an interested
witness instead of an eye witness. These
inconsistencies leads her to be an unreliable
and untrustworthy witness.

20. In Vadivelu Thevar vs. The State
of Madras reported in AIR 1957 SC 614
(paras 11, 12 and 13), Hon'ble Supreme
Court has classified oral testimony into
three categories as (i) wholly reliable (ii)
wholly unreliable and (iii) Neither wholly
reliable nor wholly unreliable; and held as
under:

"11.
In
view
of
these
considerations, we have no hesitation in
holding that the contention that in a murder
case, the court should insist upon plurality
of witnesses, is much too broadly stated.
Section 134 of the Indian Evidence Act, has
categorically laid it down that " no
particular number of witnesses shall in any
case, be required for the proof of any fact."
........................ Generally speaking, oral
testimony in this context may be classified
into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable.
10 All. Satya Narain Yadava & Ors. Vs. State of U.P.
991

12. In the first category of proof,
the court should have no difficulty in
coming to its conclusion either way-it may
convict or may acquit on the testimony of a
single witness, if it is found to be above
reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court, equally has no
difficulty in coming to its conclusion. It is
in the third category of cases, that the court
has to be circumspect and has to look for
corroboration in material particulars by
reliable testimony, direct or circumstantial.
There is another danger in insisting on
plurality of witnesses. Irrespective of the
quality of the oral evidence of a single
witness, if courts were to insist on plurality
of witnesses in proof of any fact, they will
be indirectly encouraging subornation of
witnesses. Situations may arise and do
arise where only a single person is
available to give evidence in support of a
disputed fact. The court naturally has to
weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and
free from all taints which tend to render
oral testimony open to suspicion, it
becomes its duty to act upon such
testimony. The law reports contain many
precedents where the court had to depend
and act upon the testimony of a single
witness in support of the prosecution. There
are exceptions to this rule, for example, in
cases of sexual offences or of the testimony
of an approver; both these are cases in
which the oral testimony is, by its very
nature, suspect, being that of a participator
in crime. But, where there are no such
exceptional
reasons
operating,
it
becomes the duty of the court to
convict,if it is satisfied that the
testimony of a single witness is
entirely reliable. We have, therefore,
no reasons to refuse to act upon the
testimony of the first witness, which is
the only reliable evidence in support of the
prosecution.

(13) ................................... If
the court is convinced about the truth of the
prosecution story, conviction has to follow.
The question of sentence has to be
determined, not with reference to the
volume or character of the evidence
adduced by the prosecution in support of
the prosecution case, but with reference to
the fact whether there are any extenuating
circumstances which can be said to
mitigate the enormity of the crime. If the
court is satisfied that there are such
mitigating circumstances, only then, it
would be justified in imposing the lesser of
the
two
sentences
provided
by
law........................."

21. In Rajesh Yadav and Another vs.
State of Uttar Pradesh reported in (2022)
12 SCC 200 (para 20), Hon'ble Supreme
Court has considered the aspects of
appreciation of evidence, classified them in
three categories i.e., (i) wholly reliable (ii)
wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable; and held as
under:

"20. We have already indicated
different classification of evidence. While
appreciating the evidence as aforesaid
along with the matters attached to it,
evidence can be divided into three
categories broadly namely, (i) wholly
reliable, (ii) wholly unreliable and (iii)
neither
wholly
reliable
nor
wholly
unreliable. If evidence, along with matters
surrounding it, makes the court believe it is
wholly reliable qua an issue, it can decide
its existence on a degree of probability.
Similar is the case where evidence is not
believable. When evidence produced is
neither
wholly
reliable
nor
wholly
992 INDIAN LAW REPORTS ALLAHABAD SERIES
unreliable, it might require corroboration,
and in such a case, court can also take note
of the contradictions available in other
matters.

22. Thus, oral testimony may be
classified into three categories, firstly,
wholly
reliable,
secondly,
wholly
unreliable, and, thirdly, neither wholly
reliable nor wholly unreliable. In the first
category of proof, the court should have no
difficulty in coming to its conclusion either
way - it may convict or may acquit on the
testimony of a single witness, if it is found
to be above reproach or suspicion of
interestedness,
incompetence
or
subornation. In the second category, the
court, equally has no difficulty in coming
to its conclusion. It is in the third category
of cases, that the court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial.
Situations may arise and do arise where
only a single person is available to give
evidence in support of a disputed fact. The
court naturally has to weigh carefully
such a testimony and if it is satisfied
that the evidence is reliable and free
from all taints which tend to render oral
testimony open to suspicion, it becomes
its duty to act upon such testimony. The
law reports contain many precedents
where the court had to depend and act
upon the testimony of a single witness
in support of the prosecution. There are
exceptions to this rule, for example, in
cases of sexual offences or of the
testimony of an approver; both these are
cases in which the oral testimony is, by
its very nature, suspect, being that of a
participator in crime. But, where there
are
no
such
exceptional
reasons
operating, it becomes the duty of the court
to convict, if it is satisfied that the
testimony of a single witness is entirely
reliable.

23. Applying the law laid down by
the
Hon'ble
Supreme
Court
in the
judgements aforenoted, on facts of the
present case, we find that the testimony of
P.W.-2 is unreliable, untrustworthy and she
is an interested witness.

24. In the impugned judgement, the
learned Trial Court has conveniently left
the important portions of the evidence of
P.W.-2, which renders her to be an
unreliable witness. The learned Trial Court
also ignored other important evidences and
important circumstances and facts, namely,
non-production/recovery of alleged torch,
unproved recovery memos, non-use of the
recovered axe in the alleged commission of
offence, own rivalry of the informant with
the accused persons, non-examination of
the informant witness, denial of the
accused-Jagat in reply to question no.16 of
his statement under Section 313 Cr.P.C.
that the Investigating Officer had carried
him from jail and had shown false recovery
and neither recovery memo was prepared in
his presence nor he has given any
statement, no evidence of the prosecution
that the alleged recovered watch was of the
deceased-Sant Prasad Shukla which could
neither be produced before the P.W.-4
during his examination nor its recovery was
proved. All these facts render findings of
the learned Trial Court to be perverse on
the point of holding the accused persons
guilty of commission of the alleged
offence.

25. The informant Ghisiyawan,
although an alleged eye witness; was not
examined by the prosecution. He has not
proved the First Information Reprot. The
Investigating Officer has neither proved the
10 All. Satya Narain Yadava & Ors. Vs. State of U.P.
993
recovery memos nor proved the recovery of
the alleged articles. As per recovery memo,
blood stains were found on the alleged
recovered
axe,
but
in
the
forensic
examination, no human blood was found on
it. No evidence could be led by the
prosecution to prove that the recovered
watch was of the deceased-Sant Prasad
Shukla.

26. Even, the P.W.-4, who is the
Munshi of the deceased and witness of the
recovery memo dated 04.10.1980, has
stated in his cross examination that he has
not seen the accused-Jagat Narain picking
up the watch and the axe from the place of
recovery but he has seen it in the hands of
the Investigating Officer. The P.W.-4 has
stated in his cross examination that the
recovered axe and the wrist watch were
burried under the earth in the sugarcane
field but these two articles did not contain
any mud rather both allegedly contained
blood stains. The evidence of P.W.-4
regarding recovery and particularly when
the recovered articles were not produced
during examination of P.W.-4, renders the
evidence of P.W.-4 to be totally doubtful
and unreliable inasmuch as it does not
conceive to reasons that the watch and the
axe burried under the earth in sugarcane
field
would
not
contain
any
mud
particularly when the recovery was made
after six days. No human blood was found
on the axe. It could not be proved by the
prosecution that the recovered watch was
of the deceased-Sant Prasad Shukla.

27. For all the reasons aforestated, we
are of the considered view that the
prosecution could not prove the guilt of the
accused persons beyond reasonable doubt.

28. We further find that the entire
analysis of the evidences made by the
learned Trial Court is in paragraph nos. 8 to
10 of the impugned judgement, which is
heavily based on the recovery memo dated
04.10.1980 (Exhibit Ka-4) and the built up
story that the body of the deceased-Sant
Prasad Shukla was cut into pieces by the
recovered axe. The recovery itself is totally
unproved. No human blood was found on
the recovered axe. Thus, the ocular
evidence does not corroborate with the
scientific evidence.

29. We further find that the alleged
telegram dated 03.07.1980, heavily relied
and made basis for imputing motive; is
totally unproved and inadmissible piece of
paper inasmuch as the said paper is
allegedly a photocopy of an alleged
telegram being Paper No.50 Kha, which
was neither admitted in evidence by the
learned Trial Court nor it could be proved
by the prosecution.

30. No witness has stated that the
body of the deceased-Sant Prasad Shukla
was cut into pieces by the accused persons
with the use of the alleged recovered axe
under
the
recovery
memo
dated
04.10.1980. The recovery memo dated
04.10.1980 was also not proved by the
Investigating Officer. In fact, Investigating
Officer was not even examined by the
prosecution. The evidence of P.W.-2 has
been
found
to
be
unreliable
and
untrustworthy. Under the circumstances,
the findings recorded by the learned Trial
Court in the impugned judgement so as to
hold the accused persons guilty; are
perverse.

31. For all the reasons aforestated, the
impugned judgement and order dated
05.10.1985 in Sessions Trial No.262 of
1982 (State vs. Satya Narain Yadava and 9
Others) convicting and sentencing the
994 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons under Sections 302, 148,
149 and 201 I.P.C. cannot be sustained and
is, therefore, set aside. All the accusedappellants are held not guilty of the charges
levelled against them. The surviving
accused-appellants i.e., accused-appellant
nos.3, 5, 6, 8, 9 and 10 need not to
surrender. Their bail bonds are discharged.
The present criminal appeal is allowed in
respect of accused-appellant nos.3, 5, 6, 8,
9 and 10.

32. Let a copy of this judgement be
send to the learned Trial Court.

33. Trial Court record be also
returned forthwith.

----------
(2023) 10 ILRA 994
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 1240 of 1989

Kaptan & Ors. ...Revisionists
Versus
State of U.P. ...Respondent

Counsel for the Revisionists:
Sri Tej Pal, Sri Amrendu Pal, Sri Rahul
Saxena, Sri S.P. Singh, Sri V.K. Rastogi

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 324, 326 & 34 - Criminal
Procedure Code, 1973 - Section 313 -
Probation of Offenders Act, 1958 - Section
4 - Grievous Hurt - Conviction Modification
- Probation Criminal Revision No. 1240 of 1989
challenging the judgment dated 25.07.1989 by
IV-Additional Sessions Judge, Pilibhit, partly
affirming the conviction and sentencing dated
04.02.1988 by Chief Judicial Magistrate, Pilibhit,
in Criminal Case No. 2408 of 1984 under
Sections 323, 324, 326, and 34 IPC. The case
arose from an incident on 27.08.1984 where
revisionists, objecting to a window infringing
their privacy, assaulted Lala Ram and his family,
causing injuries, including an incised wound to
Lala Ram's face. The trial court convicted all
accused under Sections 323, 324, 326, and 34
IPC; the appellate court acquitted them of
Section 324 and 324/34 but upheld convictions
under Sections 323, 323/34, 326, and 326/34
IPC, modifying sentences. The High Court found
injury no. 3 to Lala Ram (incised wound, 14cm x
1cm) not grievous under Section 320 IPC, as no
permanent disfiguration was proven, converting
the conviction from Section 326/34 to Section
324/34 IPC. Considering the 39-year lapse, the
senior citizen status of surviving revisionists
(Ram Din, Ram Ratan, Ram Bir), and no
prior/post-criminal
antecedents,
the
court
released them on two-year probation under
Section 4 of the Probation of Offenders Act,
requiring personal bonds and sureties of Rs.
50,000 each. Conviction under Section 323/34
IPC was affirmed.

Revision partly allowed.

Case Law Cited:

1. Laxmi Singh Vs St. of Bihar, 1976 CrLJ SC
1736 (Para 3)

2. Awadhesh Vs St. of MP, 1988 CrLJ 1158 (SC)
(Para 5)

3. Hari Kishan Vs Sukhbir Singh, 1989 CrLJ 116
(SC) (Para 5)

4. Dharnidhar Vs St. of UP, (2010) 7 SCC 759
(Para 32)

5. Dalvir Kaur Vs St. of Pun., (1976) 4 SCC 158
(Para 32)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)