# Sher Singh & Ors. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 05 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-27
- **Case number:** Criminal Appeal No. 05 of 1996
- **Bench:** Mrs. Sunita Agarwal, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-singh-ors-in-jail-v-state-of-u-p-46180
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code (45 of
1860)-Section 302 - Murder - Motive -
Previous enmity as a motive of murder
mentioned in FIR - enmity is a two-edged
sword - It may be a reason for murder or a
reason for false implication of the accused
persons - Held - In view of the proof of
enmity between the first informant and
the
accused
party,
material
contradictions/omissions
in
the
first
report drawn by PW-1 become much more
important. (Para 23)

Evidence law-Evidence Act (1 of 1872)-
Section 134 - Murder - Solitary witness -
Conviction on evidence of single witness -
oral testimony of a single witness can be
classified into three categories namely, (i)
Wholly reliable, (ii) Wholly unreliable, (iii)
Neither
wholly
reliable
nor
wholly
unreliable - Where the single witness is
neither
wholly
reliable
nor
wholly
unreliable - the Court should look for
corroboration in material particulars by
reliable testimony, direct or circumstantial
before acting upon the testimony of the
single witness - On any suspicion about
the truthfulness of the solitary witness,
his testimony has to be discarded (Para 24)
Evidence Law-Evidence Act (1 of 1872) -
Section 3, Section 45- Inconsistency
3-5 All. Sher Singh & Ors. Vs. State of U.P.
21
between ocular and medical evidence -
Ocular evidence has primacy - Unless
completely ruled out by medical evidence
- when the contradiction between medical
and ocular evidence is so extreme that the
medical evidence completely rules out all
possibilities of the ocular evidence being
true at all, that the ocular evidence is
liable to be disbelieved - where the oral
evidence is totally irreconcilable with the
medical evidence, it becomes obligatory
for
the
prosecution
to
clarify
the
discrepancy - In case, the prosecution fails
to do so, benefit has to go to the accused
(Para 28)

Entire prosecution case rests on the evidence of
solitary witness, PW-1, brother of deceased - In the
FIR informant PW1(brother of deceased) did not
mention that he was present on the spot or had seen
the incident- no mention of the weapons carried by
the accused persons or their roles in the assault - No
detail as to how incident had occurred - For the first
time, in his deposition before the Court, PW-1 gives
detail narration of the incident - testimony of solitary
witness
PW1
full
of
contradictions,
material
improvements - Held - prosecution failed to explain
material improvement in the evidence of PW-1 - It
was obligatory for the prosecution to have clarified
the discrepancy between the medical evidence and
the oral evidence - Prosecution not been able to
prove its case beyond all reasonable doubts -
Conviction set aside - Appeal allowed

Appeal Allowed (E-5)

List of cases cited :

1.Darbara Singh Vs St. Of Punjab 2012 (10) SCC
476

2.Moti Vs St. of U.P. 2003 (9) SCC 444

3.St. of U.P. Vs Ashok Kumar & anr., 1979 (3) SCC 1

4.St. of Raj. Vs Bhola Singh & anr. AIR 1994 SC 542

5.Lallu Manjhi & anr. Vs St. of Jh

## Text

_Characters 0–39,818 of 59,092. This is a partial read: ask again with offset=39818 for what follows._

20 INDIAN LAW REPORTS ALLAHABAD SERIES

65. The conviction and sentence of
accused Mouni for the offence under
section 363 and section 201 IPC is not
sustainable under law and is set aside and
consequently, he is acquitted from the said
charge.

66. In view of above, affirming the
conviction, we modify the death sentence
awarded for the offence under section 302
IPC
to
accused
Mouni
into
life
imprisonment with the direction that the
life imprisonment shall continue for the
whole span of natural life of accused and
could not be less than 25 years rigorous
imprisonment
without
remission.
The
sentence of fine is modified to Rs. 50000/-,
and in default, for 6 months additional
imprisonment. The sentence awarded under
section 376(2)(f) IPC would mean a
sentence of life imprisonment for the
offence under 376(2)(f) IPC read with
section 5(n) read with 5(m)/6 of the
POCSO Act and the sentence of fine is
modified to Rs. 25000/- and in default, 4
months additional imprisonment. Both the
sentences shall run concurrently.

67. With the above modification, the
Criminal Appeal and Reference are finally
disposed of.

68. The Senior Advocate Shri Saghir
Ahmad shall be given Rs. 15000/- for his
work as Amicus Curiae and legal assistance
to the Court.

69. Office is directed to send the
certified copy of this judgment along with
lower court record to the court concerned
for information and compliance.
----------
(2020)03-05ILR A20

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DEEPAK VERMA, J.

Criminal Appeal No. 05 of 1996

Sher Singh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri U.N. Sharma, Sri R.S. Prasad, Sri Anoop
Trivedi, Sri Abhishek Shukla

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code (45 of
1860)-Section 302 - Murder - Motive -
Previous enmity as a motive of murder
mentioned in FIR - enmity is a two-edged
sword - It may be a reason for murder or a
reason for false implication of the accused
persons - Held - In view of the proof of
enmity between the first informant and
the
accused
party,
material
contradictions/omissions
in
the
first
report drawn by PW-1 become much more
important. (Para 23)

Evidence law-Evidence Act (1 of 1872)-
Section 134 - Murder - Solitary witness -
Conviction on evidence of single witness -
oral testimony of a single witness can be
classified into three categories namely, (i)
Wholly reliable, (ii) Wholly unreliable, (iii)
Neither
wholly
reliable
nor
wholly
unreliable - Where the single witness is
neither
wholly
reliable
nor
wholly
unreliable - the Court should look for
corroboration in material particulars by
reliable testimony, direct or circumstantial
before acting upon the testimony of the
single witness - On any suspicion about
the truthfulness of the solitary witness,
his testimony has to be discarded (Para 24)
Evidence Law-Evidence Act (1 of 1872) -
Section 3, Section 45- Inconsistency
3-5 All. Sher Singh & Ors. Vs. State of U.P.
21
between ocular and medical evidence -
Ocular evidence has primacy - Unless
completely ruled out by medical evidence
- when the contradiction between medical
and ocular evidence is so extreme that the
medical evidence completely rules out all
possibilities of the ocular evidence being
true at all, that the ocular evidence is
liable to be disbelieved - where the oral
evidence is totally irreconcilable with the
medical evidence, it becomes obligatory
for
the
prosecution
to
clarify
the
discrepancy - In case, the prosecution fails
to do so, benefit has to go to the accused
(Para 28)

Entire prosecution case rests on the evidence of
solitary witness, PW-1, brother of deceased - In the
FIR informant PW1(brother of deceased) did not
mention that he was present on the spot or had seen
the incident- no mention of the weapons carried by
the accused persons or their roles in the assault - No
detail as to how incident had occurred - For the first
time, in his deposition before the Court, PW-1 gives
detail narration of the incident - testimony of solitary
witness
PW1
full
of
contradictions,
material
improvements - Held - prosecution failed to explain
material improvement in the evidence of PW-1 - It
was obligatory for the prosecution to have clarified
the discrepancy between the medical evidence and
the oral evidence - Prosecution not been able to
prove its case beyond all reasonable doubts -
Conviction set aside - Appeal allowed

Appeal Allowed (E-5)

List of cases cited :

1.Darbara Singh Vs St. Of Punjab 2012 (10) SCC
476

2.Moti Vs St. of U.P. 2003 (9) SCC 444

3.St. of U.P. Vs Ashok Kumar & anr., 1979 (3) SCC 1

4.St. of Raj. Vs Bhola Singh & anr. AIR 1994 SC 542

5.Lallu Manjhi & anr. Vs St. of Jharkhand 2003 (2)
SCC 401

6.Munna @ Pooran Yadav Vs St. of M.P. 2009 (1)
SCC 202

7.Takdir Samsuddin Sheikh Vs St. of Guj. & anr AIR
2012 SC 37

8.St. of U.P. vs. Punni & ors. 2008 (11) SCC 153

9.Babu & ors. vs. St. of U.P. AIR 1983 SC 308

10.Atmaram & anr Vs St. of M.P. 2012 (3) Supreme
593

11.Hiralal Pandey & ors. Vs St. of U.P. 2012 (3)
Supreme 1

12.St. of U.P. v. Naresh 2011 (4) SCC 324
13.Darshan Singh @ Bhasuri & ors. Vs St. Of Punj.
AIR 1983 SC 554

14.Eqbal Baig Vs St. Of a.P. AIR 1987 SC 923

15.Rohtash Vs St. of Raj. 2006 (12) SCC 64

16.Animireddy Venkata Ramana & ors. Vs Public
Prosecutor, High Court of AP 2008 (5) SCC 368

17.Ranjit Singh & ors. Vs St. of MP 2011 (4) SCC 336

18.Yudhisthir vs. St. of M.P. 1971 (3) SCC 436

19.St. Of U.P. vs. M.K. Anthony 1985 (1) SCC 505

20.Vadivelu Thevar vs. St. of Madras AIR 1957 SC
614

21.St. of U.P. v. Hari Chand 2009 (13) SCC 542

22.Bhajan Lal @ Harbhajan Singh and ors. v. St. of
Haryana 2009 (13) SCC 542

23.Jayabalan vs. U.T. of Pondicherry 2010 (1) SCC
199

24.Dalip Singh Vs St. of Punjab AIR 1953 SC
364

25.Raju @ Balachandran & ors. Vs St. of Tamil
Nadu 2012 (12) SCC 701

26.St. of U.P. Vs Samman Dass AIR 1972 SC
677

27.Yogesh Singh Vs Mahabeer Singh & ors.,
2017 (11) SCC 195
22 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Deepak Verma, J.)

1. Heard Sri Anoop Trivedi learned
Senior Advocate assisted by Sri Abhishek
Shukla, learned Advocate for the appellants
and Sri Jai Narayan learned A.G.A.-I, for
the State-respondent.

2. This appeal is directed against the
judgment and order dated 22.12.1995
passed by the Additional Sessions Judge,
Muzaffarnagar in Sessions Trial No. 51 of
1993 (State vs. Sher Singh and others) for
offence under Section 302 readwith Section
34 IPC, registered at the Police Station
Kandhala, District Muzaffarnagar. Four
appellants herein have been convicted and
sentenced for life for the offences under
Section 302 readwith Section 34 IPC, out
of whom one appellant no. 3 (Sadhu) had
died during pendency of the present appeal.

3. A written report dated 12.8.1992
was filed by Jaiveer Singh son of Neturam,
resident of village Garhi Ram Kaur, Police
Station Kandhala, District Muzaffarnagar at
about 9:45 AM, stating therein that, at
about 8:00 AM, while his brother Ramesh
was going to the field from his house
carrying 'Bogie' 'Jhhota' and food, as soon
as he reached at the 'Chak Road' in front of
the field of Jai Singh son of Multan, four
accused persons named in the FIR had
murdered him by firearms. The name of the
accused persons indicated in the first
information report are Sher Singh son of
Ram Singh, Sahendra son of Ram Singh,
Sadhu son of Swarup and Gulab son of
Malkhan. It is averred therein that the
incident was witnessed by Atar Singh son
of Chhota, Sahi Ram son of Chhajju and
Others. The motive to commit the crime as
indicated therein was the litigation going
on between the parties and the resultant
animosity. The written report was scribed
by Brijpal Singh son of Prakash Chand,
resident of the same village.

4. As the prosecution story unfolded,
police had reached the spot and recovery
memos were prepared of the blood stained
and plain earth; one steel glass, a bowl and
a box of Aluminum with lid and a rubber
slipper (Relaxo No. 7); an empty cartridge
12 Bore Red Colour at the bottom of which
KF Special 12 Indian Ordinance Factory
was written and another empty cartridge
315 Bore Brass at the bottom of which
8MM KF91 was written, all items found
besides the dead body. They are marked as
Exhibits 'Ka-10', 'Ka-11' and 'Ka-12'. The
inquest report marked as Exhibit 'Ka-7'
mentioned the time of its commencement
as 10:15 AM on 12.8.1992 and completion
at about 11:15 AM. There is also a mention
therein of the recovered empty cartridges
and articles from besides the dead body as
kept in the recovery memos mentioned
above.

5. A careful reading of the inquest
report indicates that the dead body of
Ramesh Singh was sealed in a black
blanket and handed over on 12.8.1992 to
the Constables Kishori Lal and Vijay Pal
and that they moved to the Sadar Hospital,
Muzaffarnagar alongwith relevant papers
for postmortem. The postmortem was,
however, conducted on 13.8.1992 at about
10:15 AM. It is mentioned in the
postmortem report that the body brought by
Constables Kishori Lal and Vijay Pal was
received in 'Sealed' state. The estimated
time of death mentioned therein is about
one day.

6. The external condition of the dead
body as described therein is as under:-
3-5 All. Sher Singh & Ors. Vs. State of U.P.
23

"Average
built
body,
Rigor
Mortis present in upper and lower
extremities. Adbomen distended , greenish
discolouration present over lower part of
abdomen, face bloated, bloody mucous
coming out from nostrils, genital organ
slightly swollen, Surgical dressing present
over left little finger over a leeking wound.

Ante-mortem injuries are:-

"(i) Gunshot wound of entrance
present on right side face just in front of
ear, margins are irregular & inverted. With
blackening present, direction from right
below to left upwards. Right temporal
bone, Right middle cranial fossa fractured
underneath.

(ii) Gunshot wound of entrance
2c.m. x 11⁄2c.m. x muscle present on right
Lateral aspect of neck 8c.m. below from
right ear lobe, margins of the wound are
irregular & inverted, blackening present,
direction form right side to left side back &
below.

(iii) Gunshot wound of exit 7 c.m.
x 4 c.m. x through its rough with injury no.
(ii) present on back of left chest upper part
2 c.m. below & left of 7th cerebral spine,
margins of the wound are irregular &
inverted.

(iv) Gunshot wound of entrance
41⁄2 c.m. x 31⁄2 c.m. x chest and abdomen
cavity deep present on posterior lateral
aspect of right chest lower part, 12 c.m.
below from inferior angle of right scapula
& 14 c.m. away from mid line, margins of
the wound are irregular & inverted,
blackening,
scorching
and
tattooing
present, direction from right back to left
front, 7th & 8th right ribs fractured
underneath. Right dome of diaphragm,
right lower to lope of right lung, liver
lacerated body underneath."

On internal examination, it was
found that:-

"brain and membranes of the
skull were lacerated at places, Right middle
cranial fossa fractured, Rt. lacerated under
injury
of
chest,
Rt.
pleural
cavity
containing one point of blood. Rt. lungs
lacerated. Heart membrane lacerated at
places, cavity containing 50 ml. blood.
Abdomen membrane lacerated at places,
cavity containing 2 point of blood, stomach
empty, small intestine containing gases and
large intestine containing gases & faecal
matter. Liver lacerated.

Few pellets, bullets were taken
out from the body of deceased and were
sealed.

Cause of death is due to shock &
Hemorrhage as a result of ante-mortem
injuries noted above. The estimated time of
death is about one day ago.

7. The prosecution produced two
witnesses of fact namely Jaiveer Singh, the
first informant as PW-1 and Sahi Ram son
of Nain Singh as PW-2 being eye-witnesses
of the incident. Amongst formal witnesses,
PW-3 Dr.
M.M.
Sharma, who had
conducted postmortem, proved his report as
Exhibit 'Ka-2'. In cross-examination, PW-3
stated that all papers pertaining to the
postmortem were received in the Mortuary
on 13.8.1992 at about 10:00 AM, and the
said fact had been mentioned in the Challan
Lash Paper No. 14/8. When confronted,
PW-3 stated that since gases and faecal
matter were present in the Large Intestine,
it was possible that death was caused on
12.8.1992 in the morning between 5-6 AM
before deceased went to ease himself. On a
suggestion, he replied that in the event of
having meal, stomach would be empty
within 5 to 6 hours. As to the nature of
injuries, he replied that injury no. 4 might
have been caused from a distance of about
3 to 4 ft.
24 INDIAN LAW REPORTS ALLAHABAD SERIES

The Investigating Officer had
appeared in the witness box as PW-4 and
proved that the site plan was prepared in
his handwriting and signature, exhibited as
Exhibit 'Ka-3'. The accused Sher Singh was
arrested on 21.8.1992. The statements of
the eye-witnesses Sahi Ram son of Chhajju,
Achpal and another Sahi Ram son of Nain
Singh were recorded on 23.8.1992. The
statement of other accused persons, namely
Sahendra was recorded after he surrendered
in the Court of the Chief Judicial
Magistrate, and of Sadhu and Gulab Singh
were recorded in the District Jail after they
surrendered.
The
charge
sheet
was
submitted in the Court on 20.9.1992 and
was proved being his handwriting and
signature as Exhibit 'Ka-4'.

PW-5 is the Head Constable
Sridatt Tyagi who had proved the Chik FIR
and GD entry of about 9:45 AM of the
registration of the first information report
being in his handwriting and signature as
Exhibit 'Ka-5' and 'Ka-6'. He has denied the
suggestion of the FIR being lodged after
deliberations with the Investigating Officer.
PW-6 Constable Chetram proved the
recovery memos and inquest report being
in his handwriting and signature (Exhibits
'Ka-8' to 'Ka-13'). On being confronted
about overwriting in the inquest report, he
explained that the same had occurred
because of fault of the pen. He denied
suggestion
of preparation
of
inquest
without the existence of first information
report of the incident. Constable Kishori
Lal appeared in the witness-box as PW-7
and proved that the dead body was handed
over to them for postmortem and it was
sealed after the inquest. They received the
dead body on 12.8.1992 at about 11:15 AM
and took it to the Mortuary through tractor,
which was about 65-70 kms. from the place
of the incident. They reached back to the
police station on the next day. The first
informant was not accompanying them
whereas other family members were with
them.

By reading the statement of PW7, learned Senior Advocate appearing for
the appellants pointed out that PW-7 had
deposed that the dead body was handed
over to him after inquest in the Jungle of
Gram Garhi Ram Kaur. The submission,
thus, is that the statement of the first
informant in the written report that his
brother was done to death at the Chak Road
in front of the field of Jai Singh is wrong.
The place of incident mentioned in the
Chik FIR is also the Jungle of Gram Garhi
Ram Kaur located at a distance of about 6
kms. towards South-East of the police
station. The place of incident being the
Chak Road has neither been mentioned in
the first information report nor there is any
evidence on record to prove the same.
Further, the Investigating Officer though
collected blood stained and plain earth
allegedly from the place of incident but the
same
was
not
sent
for
chemical
examination so as to ascertain the place of
occurrence or that the blood collected by
the police from the site was in fact human
blood. There is no recovery of weapons of
offence allegedly committed by four
persons and as such there was no question
of tallying two empty cartridges (one of 12
Bore and another of 315 Bore) recovered
from the spot. The submission, thus, is that
the accused persons could not be connected
with the crime-in-question by bringing any
cogent evidence.

8. As far as the eye-witness account is
concerned, it is vehemently urged that the
statement of the first informant as PW-1 in
the Court that he was also going to the field
on foot behind the 'Bogie' is nothing but a
material improvement in the narration
made
by
him.
The
said
fact
is
3-5 All. Sher Singh & Ors. Vs. State of U.P.
25
conspicuously
missing
in
the
first
information report. By reading the written
report submitted by PW-1, it is contended
that in his earliest account of the incident,
he did not even mention that he was present
on the spot or had seen the incident. His
narration in the first information report
gives a clear indication that the incident
was seen by other villagers namely Atar
Singh, Sahi Ram and some more persons
(unnamed). That means the report of the
incident was made by him on the
information received about the occurrence
from other alleged witnesses. For the first
time, in his deposition before the Court,
PW-1 gives detail narration of the incident,
which as urged by the learned counsel for
the
appellants,
is
nothing
but
an
improvement.

9. The submission is that PW-1 was
not present at the place of incident,
inasmuch as, deceased Ramesh Singh was
killed in the late night or early hours of the
morning on 12.8.1992. No one had actually
seen the incident and for this reason the
names of eye-witnesses have been vaguely
indicated in the written report lodged by
PW-1, whereas he did not mention himself
as an eye-witness. The names of other two
witnesses who were related to him was
introduced in his deposition in the Court for
the first time, whereas two others, whose
names have been mentioned in the first
information report, were also related to the
first informant, all being members of the
immediate extended family. A suggestion
in this regard has been given to PW-1 in the
cross-examination
but
all
questions
pertaining to his relation with the witnesses
were answered in an evasive manner. It,
however, became clear that Atar Singh,
Achpal, Sahi Ram son of Chhajju and
another Sahi Ram son of Nain Singh, all
the alleged witnesses were related to him.
Further, it was admitted by PW-1 in the
cross-examination that accused Sher Singh
contested election of Pradhan against Jaipal
and PW-1 was supporter of Jaipal. It has
also come up in the deposition of PW-1
that his brother Munna was an accused in
the murder of brother of Gulab (one of the
accused). On a suggestion given by the
defence that no independent witness had
been examined, PW-1 averred that Sahi
Ram and Atra were working at about 100
paces towards North from the place of
incident. PW-1 was also confronted on the
fact that he did not mention himself as an
eye-witness in the first information report,
in reply he states that he dictated the said
fact but it was not known as to why it was
not written there.

10. Learned Senior Advocate for the
appellants further pointed out from the
deposition
of
PW-1
in
the
crossexamination
that
according
to
him,
deceased had his meal at about 8:00 AM,
i.e. before he proceeded to the field. PW-1
states that the place of incident was about
11⁄2 kms. of the village and the first
informant was about 100 paces behind the
deceased. The written report was scribed at
the place of incident by Brij Pal who
brought papers from his Boring. They then
went to the police station between 9:00 to
09:15 AM through motorcycle. PW-1 states
that his brother was dragged to the ground
and was not killed on the 'Bogie'. He states
that the blood scattered on the ground was
not collected by the Investigating Officer;
two empty cartridges were, however,
collected from the spot and all papers were
prepared on the spot itself.

Placing the above extract of the
statement of PW-1, it is vehemently argued
by the learned counsel for the appellants
that PW-1 cannot be said to be an eye-
26 INDIAN LAW REPORTS ALLAHABAD SERIES
witness of the incident. His testimony in
this regard is wholly unbelievable for the
simple fact that according to him, deceased
proceeded to the field after having his meal
which included Dal and Roti. It is urged
that according to the written report dictated
by PW-1, his brother deceased Ramesh
Singh left his home at 8:00 AM and was
murdered within 15 minutes thereafter, at
about 8:15 AM. On internal examination of
the dead body, as indicated in the
postmortem report, both Stomach and
Small Intestine of deceased were found
empty whereas gases and faecal matter
were present in the Large Intestine. This
condition of the dead body clearly reveals
that deceased was murdered before he
defecated. It is, thus, argued that looking to the
improvement in the deposition of PW-1 in the
Court and inherent improbability of the
prosecution story about the time of occurrence
of the incident as is evident from the medical
report, it cannot be accepted that PW-1 was an
eye-witness of the incident. There is a serious
doubt about the time and place of occurrence of
the
incident.
The
improvements
and
inconsistencies in the deposition of PW-1 are
material and go to the root of the matter to
shake the version of the prosecution about PW1 being an eye-witness. The testimony of PW1, as such, is to be discarded as a whole.
Reliance is placed on the decisions of the Apex
Court in Darbara Singh vs State Of Punjab1,
Moti vs. State of U.P.2 and State of U.P. vs.
Ashok Kumar and another3 to assert that
where the oral evidence is totally irreconcilable
with the medical evidence, it becomes
obligatory for the prosecution to clarify the
discrepancy. In case, the prosecution fails to do
so, benefit has to go to the accused.

11. It is further contended that another
eye-witness PW-2 Sahi Ram son of Nain Singh
though stated that he reached the spot of
occurrence after hearing the sound of gunshot
and saw that Ramesh Singh was hit by the
firearm and that Jaiveer his brother was present
on the spot, but he has refused to identify the
assailants by saying that he had seen them only
fleeing away from the spot. And for this reason,
this witness was declared hostile and was crossexamined by the prosecution. However, on
confrontation with his statement under Section
161 Cr.P.C., he categorically stated that he did
not mention the name of the assailants to the
Investigating Officer but he did not know as to
how their names were mentioned in his
statement. He further denied suggestion of
being won over by the accused persons.

The submission is that other
witnesses who allegedly had seen the
occurrence have not been produced by the
prosecution nor any independent person
who was owner of the surrounding fields
had appeared in the witness-box to
corroborate either the time or the place of
occurrence. The testimony of PW-2 in his
examination-in-chief that he reached at the
place of occurrence and had seen the first
informant being present on the spot, is
unbelievable,
inasmuch
as,
his
own
presence on the spot does not seen to be
natural. It is pointed out that PW-2 was not
named as witness in the FIR. PW-2 stated
that he was going alongwith Achpal
another villager and had reached at the
place of occurrence, i.e. at the Chak Road
near the field of Jai Singh by chance, on
hearing the sound of gunshot. Even if, this
part of his testimony is believed to be true,
at the best, he can be said to be a Chance
witness. Nothing has been brought by the
prosecution to prove that the presence of
PW-2 at the scene of occurrence was
natural and it was possible for him to reach
the spot in the natural course of events.
PW-2 is a hostile witness, according to the
learned counsel for the appellants, even this
part of his testimony in the examination-in-
3-5 All. Sher Singh & Ors. Vs. State of U.P.
27
chief is not to be taken of any assistance to
the case of the prosecution. In that event,
the entire prosecution case rests on the
evidence of solitary witness, PW-1, who
happens to be brother of deceased. It is
contended that the testimony of solitary
witness has to be examined with great care
and circumspection and cannot be made
basis for conviction unless wholly reliable.
On any suspicion about the truthfulness of
the solitary witness, his testimony has to be
discarded.

Reliance
is
placed
on
the
decisions of the Apex Court in State of
Rajasthan vs. Bhola Singh and another4,
Lallu Manjhi and another vs. State of
Jharkhand5, Munna alias Pooran Yadav
vs. State of Madhya Pradesh6 and
Takdir Samsuddin Sheikh vs. State of
Gujarat and another7 to assail the same.

12. It is contended that moreover, the
presence of enmity between the solitary
witness (PW-1) and the accused persons is
proved from the cross-examination of PW1 itself. The alleged eye-witness, thus, is
not only a related witness but also an
interested one. His testimony has to be
discarded for this reason also. In any case,
it was incumbent on the prosecution to
produce independent witness/persons who
were occupying the adjoining fields, as
according to the alleged eye-witness, the
incident had occurred during day time on
the Chak Road. No one whose presence
was natural at the scene of occurrence had
been
produced.
Adverse
inference,
therefore, has to be drawn against the
prosecution and the benefit has to go to the
accused persons. Reliance is placed on the
decision of the Apex Court in State of
Uttar Pradesh vs. Punni and others8.

Lastly, placing decisions in Babu
and others vs. State of Uttar Pradesh9
and Takdir Samsuddin Sheikh7, it is
contended that substantial improvement in
the version of eye-witness before the Court
and contradiction between oral testimony
and medical evidence prove fatal to the
whole prosecution case. The trial court has
erred in basing conviction on the shaky
version of the sole eye-witness ignoring all
the above inconsistencies and discrepancies
inherent in it. The judgment of conviction
of the appellants, therefore, deserved to be
set aside and the appeal may be allowed.

13. Learned A.G.A., on the other
hand, urged that the incident-in-question is
a broad day-light incident. It had occurred
at about 8:15 AM and the first information
report was promptly lodged at 9:45 AM.

The place of incident indicated in
the Chik FIR is the Jungle of Gram Garhi.
Jungle of a village or field near the village
in the local language is one and the same
place. It cannot be assumed that the
incident had occurred in a Jungle or a forest
away from the village as there is nothing on
record to believe so. The first informant is
the brother of the deceased. His narration
of accompanying the deceased to the field
is natural. There are four accused persons
whose names were clearly indicated in the
first information report being the assailants.
The FIR discloses not only the names of
two persons as witnesses but indicates that
apart from them, others had also seen the
occurrence. The empty cartridges of 12
Bore and 315 Bore recovered from the spot
support the deposition of PW-1 in the Court
regarding weapons in the hands of the
assailants. The inquest was done on the
same day and soon after it was completed
at
11:15
AM,
body
was
sent
for
postmortem from the place of incident
itself. The distance of the Mortuary from
the place of incident being 65-70 kms. is
clearly mentioned in the deposition of PW-
28 INDIAN LAW REPORTS ALLAHABAD SERIES
7 Kishori Lal. In the said scenario, if the
postmortem was done on the next day i.e.
13.8.1992 in the morning at 10:15 AM, that
would not be a factor to create any dent in
the
story
of
the
prosecution
being
immaterial.
Moreso,
when
PW-7
categorically proved that he took the dead
body to the Mortuary straight way from the
place of incident and handed over to the
doctor in sealed condition.

Lastly, it is contended that
presence of the first informant Jaiveer at
the place of incident was also proved by
PW-2 Sahi Ram in his deposition in the
examination-in-chief, who also belong to
the same village. And PW-1 in his
deposition in the Court categorically stated
that the incident was witnessed by PW-2
Sahi Ram son of Nain Singh. The presence
of PW-1 at the place of occurrence,
therefore, is corroborated by another eyewitness. Even though PW-2 was declared
hostile but this part of his testimony has to
be taken as consistent to accept that he had
seen PW-1 at the relevant time on the spot
of occurrence.

14. In the above scenario, the trial
court on appreciation of the entire evidence
cumulatively has rightly accepted the
prosecution version to base the conviction
on the evidence led by it. There is no
infirmity in the decision of the trial court.
The appeal deserves to be dismissed being
devoid of merits.

Reliance is placed on the decisions
of the Apex Court in Atmaram and others vs.
State of Madhya Pradesh10 and Hiralal
Pandey and others vs. State of U.P.11.

15. We have considered the rival
submissions made by the learned counsels for
the parties and perused the record. The first
information report was registered on a written
report filed by the brother of deceased.
Noticeable is the fact that in the written report
which was the first/earliest account of the
incident, there is not even a whisper that the
first informant was present or had seen the
occurrence. The report rather suggests that two
named witnesses therein including some other
persons had seen the occurrence. The
averments of the first information report are in
the nature of information given to the police
about the murder of Ramesh Singh, brother of
the first informant, based on the knowledge
gathered by the first informant which seems to
be hearsay. There is no mention of the weapons
carried by the accused persons (four in number)
or their roles in the assault. Virtually no detail as
to how incident had occurred has been given,
though motive of previous litigation with the
accused persons has been clearly indicated in
the first information report. For the first time in
his deposition before the Court, PW-1 narrates
the whole account of the incident while
mentioning
himself
as
an
eye-witness
accompanying deceased to the field. No doubt,
FIR need not be an encyclopedia. Each and
every detail need not be stated in it. It may not
and need not contain all the details of the
incident.

It was considered in State of U.P.
v. Naresh12 that not naming of the accused
in the FIR cannot be a ground to doubt the
contents thereof, in case, the statement of
the witnesses is found to be trustworthy. It
may be that because the informant fully
acquainted with the facts lacks necessary
skill or ability to reproduce details of the
entire incident without anything missing
from this. Some people may miss even the
most
important
details
in
narration.
Therefore, missing facts in the FIR cannot
be taken as a ground to tilt the balance of
the case in favour of the accused.

Reference may also be made, in
this regard, to the decisions of the Apex
3-5 All. Sher Singh & Ors. Vs. State of U.P.
29
Court in Darshan Singh @ Bhasuri &
Ors vs. State Of Punjab13, Eqbal Baig vs
State Of Andhra Pradesh14, Rohtash vs.
State
of
Rajasthan15,
Animireddy
Venkata Ramana & Ors vs. Public
Prosecutor, High Court of Andhra
Pradesh16 and Ranjit Singh and others
Vs. State of Madhya Pradesh17.

However, there cannot be a
quarrel that prompt report of the incident
with all its vivid details gives an assurance
regarding truth of its version and that the
allegations may not be an afterthought or
having a colourable version of the incident.

It has been held in Yudhisthir vs.
State of M.P.18 that any fact if not
disclosed in the FIR or during investigation
and stated for the first time in trial, that
statement
would
amount
to
an
improvement and may not be relied upon.
However, it all depends upon the credibility
of witnesses produced by the prosecution to
support its story.

It
is
also
a
settled
legal
proposition
that
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution case,
should not be made a ground on which the
evidence can be rejected in its entirety. The
Court has to form its opinion about the
credibility of the witness and record a
finding as to whether his deposition
inspires confidence. Minor variations in the
statements of a witness cannot be dubbed
as improvements as the same may be
elaboration of the statement made by the
witness earlier. The omissions which
amount to contradictions in material
particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of
the witnesses liable to be discredited.

The Apex Court in the State Of
U.P. vs. M.K. Anthony19 has laid down
the principle as to what approach should be
adopted by the Court, in a case, where there
are some discrepancies and improvements
in the statement of the witnesses.

Relevant
observations
in
paragraph '10' of the said report are to be
noted as under:-

"10.
While
appreciating
the
evidence of a witness, the approach must
be whether the evidence of the witness read
as a whole appears to have a ring of truth.
Once that impression is formed, it is
undoubtedly necessary for the court to
scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to
find out whether it is against the general
tenor of the evidence given by the witness
and whether the earlier evaluation of the
evidence is shaken as to render it unworthy
of belief. Minor discrepancies on trivial
matters not touching the core of the case,
hyper-technical
approach
by
taking
sentences torn out of context here or there
from the evidence, attaching importance to
some technical error committed by the
investigating officer not going to the : root
of the matter would not ordinarily permit
rejection of the evidence as a whole.

............xxxxxxxxxxxxx.........................x
xxxxxxxxxxx.....................................
Even
honest and truthful witnesses may differ in
some details unrelated to the main incident
because power of observation, retention
and reproduction differ with individuals.
Cross examination is an unequal duel
between a rustic and refined lawyer.
....................xxxxxxxxxxxxxxx........"

16. The crux is that it is the totality of
the circumstances, which has to be culled
out after careful scrutiny and assessment of
prosecution evidence and which is to be
30 INDIAN LAW REPORTS ALLAHABAD SERIES
taken note of. Difference in some minor
details which do not otherwise affect core
of the prosecution case, even if present, that
itself would not prompt the Court to discard
the evidence.

17. Keeping this principle in mind,
when we carefully appreciate the evidence
before us, we find that the first informant,
brother of deceased in his statement before
the Court, for the first time, gave details of
the occurrence. In his examination-in-chief,
the first informant (PW-1) stated that his
brother was going to the field in a 'Bogie'
carrying food for his father. Four accused
persons named as Sahendra, Sher Singh,
Gulab and Sadhu met him on the way.
They stopped the 'Bogie' and dragged
deceased to the ground and at that time
Shadu exhorted by yelling "मारो साले को
गोली", thereafter, Gulab, Sahendra and Sher
Singh opened fires from the country-made
pistols and gun in their hands. Countrymade pistols have been assigned to accused
Sahendra and Sher Singh whereas Gulab
was carrying gun according to the first
informant. All three fires hit the deceased.
PW-1 raised cries. Hearing the same, four
witnesses Atra, Sahi Ram and another Sahi
Ram and Achpal came on the spot. Seeing
them, accused persons ran away in the field
towards East. After narrating the above,
PW-1 states that he was also going to the
field on foot behind the 'Bogie'. The above
narration of PW-1 in his deposition in the
Court has been termed as a material
improvement in his testimony by the
learned Senior Counsel for the appellants
as every such detail is missing in the FIR.

18. It is contended that PW-1 was not
present at the scene of occurrence and as
such he did not give any detail in the first
informant report as he was not sure about
the manner of death of his brother.
According to the learned Senior Counsel,
deceased was assaulted in the late night
hours and in the early hours of morning, on
the fateful day and no one had seen the
occurrence. The entire story was cooked up
after the medical evidence were brought in,
in consultation with the expert. Not a single
fact as noted above from the deposition of
PW-1 can be found in the first information
report except the names of four accused
persons and the alleged motive. It is
contended that after postmortem was
conducted and the prosecution became sure
that three fires hit the deceased, three
accused persons were assigned firearms
and forth one was given the role of
exhortation in the testimony before the
Court.

19. Considering the above arguments,
we find that crucial question before us, in
the instant case, is to ascertain the presence
of PW-1, i.e. the first informant on the spot.
While doing the same, we may also note
that in the margin notes of the site plan, the
Investigating Officer indicated that four
accused persons came to the spot from
opposite directions. As per the description
in Note no. 3 of the Margin in the site plan,
two accused persons namely Sher Singh
and Gulab came out from the field of Jai
Singh whereas other two persons namely
Sadhu and Sahendra reached at the spot
from the field of Nakli and both the fields
are opposite to each other. The site plan
was prepared at the pointing of the first
informant as deposed by him as PW-1 after
the inquest was completed as is clear from
the description at Note no. 4 in the Margin
of place "x", i.e. the place where deceased
was assaulted by the accused. The above
noted details, surprisingly, are completely
missing in the statement of PW-1. He
simply stated that all four accused met the
deceased on the Chak Road.
3-5 All. Sher Singh & Ors. Vs. State of U.P.
31

20. Amongst other evidences about
the presence of PW-1, we further find that
PW-2 has been produced in the witnessbox to support/corroborate the version of
PW-1 projected as an eye-witness of the
occurrence though he has not been
mentioned as a witness in the first
information report. In his deposition before
the Court, PW-2 states that he was going to
the village alongwith Achpal (another
alleged
eye-witness)
and
when
they
reached in the Jungle near the field of Jai
Singh on the Chak Road, he heard the
sound of gunshot and upon reaching on the
spot, he saw the deceased having been hit
by fires while brother of the deceased
namely Jaiveer being present on the spot.
He then states that he did not identify the
assailants as he had only seen them fleeing
away from the spot. At this juncture, this
witness was declared hostile by the
prosecution. Nothing much can be elicited
from his cross-examination wherein he
simply stated that he did not mention the
names of assailants to the Investigating
Officer and as to how it was written in his
statement under Section 161 Cr.P.C. was
not known to him.

21. Having carefully sifted the
testimony of this witness (PW-2), keeping
in mind that he was declared hostile by the
prosecution, we find that he was merely a
Chance witness. PW-2 in a casual manner
though stated that he was passing the way
with Achpal but did not disclose anything
more than that, i.e.