# Sri Kant & Anr v. State of U.P

- **Citation:** (2022) 5 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Criminal Appeal No. 1314 of 2005
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-kant-anr-v-state-of-u-p-48583
- **Pages:** 15

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
5 All. Sri Kant & Anr. Vs. State of U.P.
75
Penal Code, 1860-Sections 302/34 &
323/34-Challenge
to-conviction-motivePW-2 the complainant hearing the noise
of altercation over thorny bushes reached
the spot where the accused persons were
beating the deceased with lathi-danda,
meanwhile the other two accused fired
upon the deceased of which he died-one
appellant was not aware of the fact that
the co-appellants will cause death by
firing upon the deceased-Hence, this
appellant deserves the benefit of doubt
and held liable only for the offence under
323 IPC for causing simple injuries to the
complainant-While the other co-convicts
have
rightly
been
found
guilty
and
punished
u/s
302
r/w
34
IPC-The
sentence awarded to them by the trial
court is hereby affirmed.(Para 1 to 44)

B. The intendment of Section 34 IPC is to
remove the difficulties in distinguishing
the acts of individual members of a party,
acting
in
furtherance
of
a
common
intention. There has to be a simultaneous
conscious
mind
of
the
persons
participating in the criminal action of
bringing about a particular result. A
common intention qua its existence is a
question of fact and also requires an act "
in furtherance of the said intention". One
need not search for a concrete evidence,
as it is for the court to come to a
conclusion on a cumulative assessment. It
is only a rule of evidence and thus does
not create any substantive offence.(Para
35 to 37)

The appeals are partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,902 of 49,584. This is a partial read: ask again with offset=39902 for what follows._

74 INDIAN LAW REPORTS ALLAHABAD SERIES
sense in which that word was used by the
Legislature in that section.

28.
The
second
illustration,
namely, illustration (b) is in these words :

"But if, while A is beating Z, Y
interferes, and A intentionally strikes Y,
here, as the blow given to Y is no part of
the act whereby A voluntarily causes hurt
to Z, A is liable to one punishment for
voluntarily causing hurt to Z, and to
another for the blow given to Y."

29.
This
illustration
further
clarifies the position, for it makes it clear
that when an offence is committed by an
individual as against two separate persons,
though, broadly speaking, both the offences
may have been committed during the
course of one transaction, he is made liable
for the assault on both the individuals. It is
Important to note that the first part of
Section 71, I.P.C., really deals with a case
in which the whole of the act is punishable
under the same section or under allied
sections, namely, where a series of offences
partake of the same nature. This part of the
section, to my mind, does not deal with a
case where a part of man's action
constitutes one kind of offence and another
part of his action, though committed in a
sequence in the course of one transaction,
falls under another section, not allied.

30. The second part of Section 71
of the Code makes provision for a
contingency when the same act constitutes
more offences than one."

28. There is no evidence of demand of
dowry as the witnesses produced to
establish the fact have turned hostile.
hence, the conviction under Section 4 of
The Dowry Prohibition Act is also set
aside.

29. To sum up, the appellant is held
guilty for the offence punishable under
Section 302 I.P.C., for alternative charge
already framed and the sentence of life
imprisonment awarded by the trial court is
hereby confirmed but under Section 302
I.P.C. instead of under Section 304-B I.P.C.
The conviction of the appellant/convict U/S
323, 326 and 498-A I.P.C. and U/s 4 of The
Dowry Prohibition Act is hereby set aside.

29. The appeal is partly allowed,
accordingly.

30. Since the the appellant/ convict is
already in jail, he shall serve his sentence in
jail, confirmed hereinabove.

31. Let copy of this judgement
alongwith original record of trial court be
sent to the trial court concerned for
information and necessary action.
----------
(2022)05ILR A74
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1314 of 2005
connected with
Criminal Appeal No. 1529 of 2005

Sri Kant & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Anurag Shukla

Counsel for the Respondent:
Sri Umesh Chandra Verma, Additional Govt.
Advocate

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
5 All. Sri Kant & Anr. Vs. State of U.P.
75
Penal Code, 1860-Sections 302/34 &
323/34-Challenge
to-conviction-motivePW-2 the complainant hearing the noise
of altercation over thorny bushes reached
the spot where the accused persons were
beating the deceased with lathi-danda,
meanwhile the other two accused fired
upon the deceased of which he died-one
appellant was not aware of the fact that
the co-appellants will cause death by
firing upon the deceased-Hence, this
appellant deserves the benefit of doubt
and held liable only for the offence under
323 IPC for causing simple injuries to the
complainant-While the other co-convicts
have
rightly
been
found
guilty
and
punished
u/s
302
r/w
34
IPC-The
sentence awarded to them by the trial
court is hereby affirmed.(Para 1 to 44)

B. The intendment of Section 34 IPC is to
remove the difficulties in distinguishing
the acts of individual members of a party,
acting
in
furtherance
of
a
common
intention. There has to be a simultaneous
conscious
mind
of
the
persons
participating in the criminal action of
bringing about a particular result. A
common intention qua its existence is a
question of fact and also requires an act "
in furtherance of the said intention". One
need not search for a concrete evidence,
as it is for the court to come to a
conclusion on a cumulative assessment. It
is only a rule of evidence and thus does
not create any substantive offence.(Para
35 to 37)

The appeals are partly allowed. (E-6)

List of Cases cited:
1. Marudanal Augusti Vs St. of Ker. (1980) SCC
(Cri) 985

2. Lakshmi Singh & ors. etc. Vs St. of Bih.
(1976) AIR SC 2263

3. Nawazish Ali & ors. Vs St. (2000) 41 ACC 181
(Alld. H.C. D.B.)

4. Mohar Singh Vs St. of M.P. (2007) 4 MPLJ 39

5. Sardar Singh Rawat Vs St. of M.P. (2006)
Supreme MP 579

6. Kalu Ram Vs St. of Raj. (2000) AIR SC 3630

7. Kanwarlal & anr.. Vs St. of M.P (2002) 7 SCC
152

8. Jasdeep Singh @ jassu Vs St. of Punj. (2022)
SCC ONLINE SC 20.

9. Ramesh @ Dapinder Singh Vs St. of H.P.
(2021) SCC Online SC 243

10. Bishu Sarkar & ors. Vs St. of W.B. (2017) 11
SCC 105; 2017 (2) JIC 163 SC

11. Bhikhari Vs St. of U.P (1965) 3 SCR 194

12. Dayanand Vs St. of Har. (2008) 15 SCC 717

13. Ramesh Krishna Madhusudan Nayar Vs St.
of Mah. (2008) 14 SCC 491

14. Sukhlal Sarkar Vs UOI & ors. (2012) 5 SCC
703

15. St. of H.P. Vs Trilok Chand & anr. (2018) 2
SCC 342
16. Kartik Malhar Vs St. of Bih. (1996) 1 SCC
614

17. Kunju @ Bala Chandran Vs St. of T.N.
(2008) 2 SCC 151

18. Jayanti Lal Verma Vs St. of M.P (Now
Chattisgarh) (2020) SCC Online SC 944

19. Bimla Devi Vs Rajesh Singh & anr.. (2016)
15 SCC 448

20. Narsingh Pal Vs St. of U.P (2020) 14 SCC
281

21. Ombir Singh Vs St. of U.P. (2020) 6 SCC 378

22. Ramaswami Ayyanger & ors. Vs St. of T.N.
(1976) SCC (Cri. 518

23. Ramesh Singh @ Photti Vs St. of A.P. (2004)
SCC (Cri) Supp. 70
76 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Jasdeep Singh @ Jassu Vs St. of Punj.
(2022) SCC Online SC 20

(Delivered by Hon'ble Saroj Yadav, J.)

1. The Criminal Appeal No.1314 of
2005 has been filed by the appellants/
convicts Sri Kant and Ram Lakhan and the
Criminal Appeal No.1529 of 2005 by
appellants/ convicts Kamla Kant and Sunil
Kant, being aggrieved of the judgement and
order dated 30.9.2005 passed by the
Additional Sessions Judge/ F.T.C. No.1,
Hardoi in Sessions Trial No.257 of 2002
and 252 of 2003 jointly, whereby the
appellants/ convicts have been awarded a
sentence for life imprisonment under
Section 302/34 of the Indian Penal Code (in
short 'I.P.C.') and imprisonment of six
months under Section 323/34 I.P.C.

2. Since appellant Ram Lakhan died
during pendency of the appeal, appeal filed
by him stood abated vide order dated
22.7.2019 passed by this court.

3. The facts necessary for disposal of
these appeals, shorn of unnecessary details
are as under :-

4. A First Information Report ( in
short 'F.I.R.') was registered at Case Crime
No.128 of 2001 under Section 302/323/504
I.P.C. against the appellants/ convicts at
Police Station Harpalpur, District Hardoi
on the basis of a written report submitted
by the complainant Ram Babu Shukla. It
was stated in the written report that Anoop
Kumar son of Natthu belonging to the
family of complainant, put some thorny
bushes at the boundary of own paddy-field.
Due to this, a way was created through the
field of Hari Babu so his cousin Hari Babu
during day time at about 1.00 P.M. went to
the field to remove thorny bushes on the
boundary of the field. As soon as he started
removing the thorny bushes, Sri Kant,
Kamla Kant and Sunil Kant son of Ram
Chandra and Ram Lakhan son of Devi
Sahai reached there and started abusing and
beating Hari Babu with sticks (lathis).
Hearing the noise, he, Natthu Singh and
Ram Avtaar resident of same village,
reached the spot. As soon as he reached on
the spot Ram Lakhan and Sri kant started
beating him also, with sticks and Sunil
Kant and Kamla Kant fired on Hari Babu
with country made pistols. Hari Babu
sustained injuries on his stomach and on
left side of the head. As soon as fire hit
Hari Babu, he ran to save himself towards
the grove of Babu Singh, he fell down and
died there. Thereafter all the above four
miscreants went away towards their own
house and the dead body was lying in the
grove.

5. After investigation, chargesheet
no.96/2001 was submitted in the court
against Kamla Kant, Sunil Kant and Sri
Kant under Section 302, 323/34 I.P.C.; and
chargesheet No.96-A/2001 against Ram
Lakhan.

6. After taking cognizance, concerned
Magistrate committed both the cases to
Sessions court for trial where the case
against Sri Kant, Kamla and Sunil Kant
was registered as Sessions Trial No.257 of
2002 and against Ram Lakhan, Sessions
Trial No.292/2002. Both the sessions trials
were consolidated and tried together.
Charges were framed against appellants/
convicts. They denied the charges and
claimed to be tried.

7. In order to prove the charges
levelled against the appellants/ convicts,
the prosecution examined seven witnesses
in toto. These seven witnesses are :-
5 All. Sri Kant & Anr. Vs. State of U.P.
77

(i). P.W.-1 Natthu Lal, alleged eye
witness.

(ii). P.W.-2 Ram Babu Shukla, the
complainant and the injured eye witness.

(iii). P.W.-3 Dr. V.V. Tripathi,
Autopsy
Surgeon
who
conducted
postmortem on the cadaver of the deceased.

(iv). P.W.-4 Raja Ram Singh, the
third investigating officer who investigated
the case partially.

(v). P.W.-5 Har Narain Singh,
second
investigating
officer
who
investigated the case partially.

(vi). P.W.-6 Suresh Pal, first
investigating officer who did investigation,
initially.

(vii). P.W.-7 Dr. C.P.Rawat who
medically examined the injured.

8. Apart from the above oral
evidences, relevant documents were also
proved and exhibited as under :-

(i). Exhibit Ka-1- Written report.

(ii). Exhibit Ka-2 - Post Mortem
Report.

(iii). Exhibit Ka-3- Chargesheet
No.96 of 2001 submitted against Kamla
Kant, Sunil Kant and Sri Kant.

(iv). Exhibit Ka-4- Chargesheet
No.96A/2001
against
appellant/convict.
Ram Lakhan.

(v). Exhibit Ka-5 - F.I.R.

(vi). Exhibit Ka-6 - Copy of the
relevant G.D. of registration of F.I.R.

(vii). Exhibit Ka-7 - Inquest
report.

(viii). Exhibit Ka-8- 'Photo Nash'.

(ix). Exhibit Ka-9 letter to R.I.

(x). Exhibit Ka-10 - Letter to
C.M.O. for conducting autopsy.

(xi). Exhibit Ka-11- Police form
No.13 containing the information regarding
the case, while sending the dead-body for
post mortem.
(xii). Exhibit Ka -12 - Challan 'Laash'.

(xiii). Exhibit Ka-13 - Site-plan
of the spot.

(xiv). Exhibit Ka-14-recoverymemo of collection

of blood soaked soil and plain
soil from the spot.

(xv). Exhibit Ka-15 - Injury
report
of
Ram
Babu
Shukla,
the
complainant.

(xvi). Exhibit Ka-16 report of
forensic science lab of examination of
blood soaked soil and plain soil collected
from the spot.

9. After completion of the prosecution
evidence, the statements of appellants/
convicts were recorded under Section 313
of the Code of Criminal Procedure, 1973 (
in short 'Cr.P.C.') wherein they denied the
crime and submitted that witnesses have
deposed falsely.

10. Appellant/convict
Sri
Kant
submitted that the case was registered due
to enmity and refused to give any evidence
in defence. Appellant Sunil Kant and
Kamla Kant also stated that the case was
lodged due to enmity. Appellant Kamla
Kant also refused to give any evidence in
defence but Sunil Kant stated that he wants
to produce evidence in defence. Appellant/
convict Ram Lakhan also stated that the
case was lodged due to enmity and he was
not at the spot. He was in the temple at the
relevant time and he has been implicated
falsely. He also wished to produce evidence
in defence.

11. No witness was produced in
defence by either of the appellants/
convicts, though opportunity was given.
The learned trial court after hearing the
arguments of both the sides on the basis of
the evidence available on record came to
78 INDIAN LAW REPORTS ALLAHABAD SERIES
the conclusion that the evidence of P.W.-1
Ram Babu Shukla who is an injured
witness and also the complainant is
trustworthy. He did not name the other two
brothers of the appellants/ convicts Sri
Kant, Kamla Kant and Sunil Kant. Only
those were named who caused the incident.
No motive of false implication could be
established by the appellants/ convicts. The
challan under Section 107/116 of the
Cr.P.C. which has been filed by the
appellants/ convicts was subsequent to the
present F.I.R. hence have no importance.
The witnesses should not be counted but
the evidence should be weighed. If the sole
witness gives a truthful account of the
incident, he should be believed. Hence the
trial court held the appellants/ convicts
guilty under Section 302 and 323 readwith
Section 34 I.P.C. and punished them
accordingly.

12. Being aggrieved of this judgement
and order, these criminal appeals have been
filed.
The
appellants/
convicts
have
challenged the impugned judgement in the
memo of appeals mainly on the ground that
the learned lower court has passed the
entire judgement on the sole testimony of
P.W.-1
Ram
Babu
Shukla
whereas
considering in totality this evidence, in the
light of factual scenario of the case, it is
manifest that he (P.W.-1) was not present at
the place of the occurrence and he was not
an eye-witness of the case. P.W.-1 Natthu
Lal, the independent witness did not
support the happening of the alleged
occurrence. The alleged eye witness Ram
Avtar was not produced in the court. In the
post-mortem-report, a single firearm injury
was found on the dead body of the
deceased Hari Babu and no injury of 'lathi'
or 'danda' was found. P.W.-2 Ram Babu
Shukla himself made superficial injury on
his person, as his medical-examination was
conducted after four days of the alleged
incident. The appellants/ convicts were
implicated due to the enmity and the
judgement
and
order
is
based
on
conjectures and surmises, and should be set
aside.

13. Heard Shri R.K.Dwivedi, learned
Amicus Curiae on behalf of the appellant
no.1/Kamla Kant and appellant no.2 /Sunil
Kant in Criminal Appeal No.1529 of 2005,
Shri Anurag Shukla, learned counsel for the
appellant no.1/Sri Kant in Criminal appeal
no.1314 of 2005 and Shri Umesh Chandra
Verma, learned Additional Government
Advocate for the respondent/ State.

14. The learned Amicus Curiae on
behalf of the appellant Kamla Kant and Sunil
Kant submitted that the F.I.R. was lodged
after an inordinate delay and the same was
ante-time. The F.I.R. was not forwarded to
the concerned Magistrate forthwith. Pramod,
Kumar Bajpai, scribe of the written report
was not produced in the witness-box by the
prosecution. The process of inquest was made
with inordinate delay. Constable clerk Shakti
Deen, scribe of the chik F.I.R. was not
produced in the witness box by the
prosecution. The witnesses of the recovery of
the blood stain soil and plain soil have not
been produced in the witness-box by the
prosecution. The medical evidence belies the
ocular testimony. According to the post-
mortem-report, Exhibit Ka-2 as well as the
testimony of P.W.-3 Autopsy Surgeon, no
injuries of 'lathi'-danda' were found on the
person of the deceased while the complainant
has stated that the appellants/convicts beat the
deceased with lathis and dandas also. In the
injury report of injured Ram Babu Shukla,
the doctor P.W.-7 has only indicated colour of
the injury no.1 and 4 and he has not indicated
colour of other injuries which creates a
serious doubt about the existence of said
5 All. Sri Kant & Anr. Vs. State of U.P.
79
injuries on the person of the injured. There
are major contradictions in the testimonies of
P.W.-2, P.W.-3, P.W.-6 and P.W.-7. There are
major contradictions in the testimony of P.W.-
2 itself. No independent witness has
supported the prosecution case. P.W.-2 Ram
Babu Shukla, is a related and interested
witness. His presence on the spot is doubtful.
No blood stain on 'Makka', 'Chari' or 'paddy'
crops were found. No paddy crop was found
by the investigating-officer P.W.-6 in any of
the fields near the spot as alleged by P.W.-2.
No weapon of assault was recovered by the
investigating-officer
either
from
the
possession of the appellants/ convicts or on
their pointing out. No blood was found on the
spot over which the dead body of the
deceased was lying. In the site-plan, Exhibit
Ka-13 no tree has been shown by the
investigating-officer in the grove of Babu
Singh where the deceased allegedly fell down
and died. It indicates that the site-plan was
not prepared by the investigating-officer on
the spot at the pointing out of the complainant
P.W.-2 and a concocted story has been
hatched after the recovery of the dead-body
of the deceased who was murdered at some
lonely place in the night by some unknown
miscreants in the dark hours and the
assailants fled away from the spot and the
appellants/ convicts were implicated falsely
on account of village party-bandi and enmity.

15. Shri Rajesh Kumar Dwivedi,
learned Amicus Curiae relied upon the
following case laws :-

i). Marudanal Augusti Vs. State
of Kerala : 1980 SCC (Cri) 985.

ii). Lakshmi Singh and others
etc. Vs. State of Bihar : AIR 1976 SC
2263.

iii). Nawazish Ali and others Vs.
The State : 2000(41) ACC 181 (Alld. H.C.
D.B.)

16. Shri Anurag Shukla, learned
counsel for the appellant/ convict submitted
that the appellant/ convict has not been
assigned the role of firing upon the deceased.
He has been assigned the role of beating with
lathi and danda. According to the postmortem report, the deceased died of firearm
injury and no injury of lathi or danda was
found on the cadaver of deceased. The
injuries found on the body of the complainant
Ram Babu Shukla are simple in nature hence
the appellant Sri Kant cannot be held guilty
and punished for the offence punishable
under Section 302 I.P.C. with the help of
Section 34 I.P.C. So he should be acquitted of
the offence punishable under Section 302
readwith Section 34 of I.P.C. He relied upon
the following case laws :-

i). Mohar Singh Vs. State of M.P.

: 2007 (4) MPLJ 39.

ii). Sardar Singh Rawat Vs. State of
M.P.

: 2006 Supreme MP 579.

iii). Kalu Ram Vs. State of
Rajasthan

: 2000 AIR SC 3630.

iv). Kanwarlal & another Vs.
State of M.P.

: 2002 (7) SCC 152.

v). Jasdeep Singh @ Jassu Vs.
State of Punjab

: 2022 SCC ONLINE SC 20.

vi). Ramesh @ Dapinder Singh
Vs. State of Himanchal Pradesh

: 2021 SCC Online SC 243

vii). Bishu Sarkar and others Vs.
State of West Bengal

: 2017 (11) SCC 105 ; 2017 (2)
JIC 163 SC.

viii). Bhikhari Vs. State of U.P.

: 1965 (3) SCR 194.

ix).
Dayanand Vs. State
of
Haryana

: 2008 (15) SCC 717.
80 INDIAN LAW REPORTS ALLAHABAD SERIES

x). Ramesh Krishna Madhusudan
Nayar Vs. State of Maharasthra.

: 2008 (14) SCC 491.

xi). Sukhlal Sarkar Vs. Union of
India and others

: 2012( 5) SCC 703.

xii). State of H.P. Vs. Trilok
Chand and another

: 2018 (2) SCC 342.

17. Contrary to it, learned A.G.A. Shri
Umesh Chandra Verma countered the
above submissions by submitting that
testimony of injured witness P.W.-2 Ram
Babu Shukla cannot be doubted because his
injuries have been proved by the doctor
P.W.-7 who examined his injuries and
prepared the medico-legal- report. The
P.W.-7 has clearly stated that the injuries
found on the body of the injured Ram Babu
Shukla cannot be created. There is no dent
in the evidence of Ram Babu Shukla and
his testimony is trustworthy and reliable so
learned trial court has rightly relied upon
his sole-testimony and held guilty the
appellants/ convicts and punished them. He
further submitted that the G.D. has been
proved as Exhibit Ka-6, F.I.R. was lodged
promptly and there is no delay in lodging
of the F.I.R. and F.I.R. cannot be even
termed as ante-timed. 'Panchnama' was also
filled within reasonable time. All the
accused persons went on the spot armed
with lathis, dandas and fire-arms. There
was prior concert in minds of the
appellants/ convicts. So the appellants Sri
Kant cannot be absolved of his liability for
the offence punishable under Section 302
I.P.C. and he has rightly been held guilty
and punished under Section 302 and 323
read with Section 34 of the I.P.C. Hence
both the appeals should be dismissed.

18. Considered the rival submissions
and perused the record of the present
appeal as well as of the learned trial court
and gone through the case laws cited
above.

19. According to the F.I.R., all the
four accused persons abused and assaulted
the deceased with lathis/dandas and when
the complainant P.W.-2 reached there after
hearing the noise alongwith others, accused
Sri Kant and Ram Lakhan ( now dead)
assaulted him with lathis/dandas. As Sri
Kant and Ram Lakhan assaulted the
complainant, so the complainant could not
help the deceased, meanwhile Kamla Kant
and Sunil Kant fired upon the deceased of
which he died. The complainant Ram Babu
Shukla, who is an injured witness has
proved what he has written in the first
information report while being examined in
the court as P.W.-2. In cross-examination
also, this witness has stood the test of
veracity except some minor contradictions.
The injuries of this witness have been
proved by P.W.-7 Dr. C.P.Rawat, who
examined the injured and prepared the
medico-legal report exhibit Ka-15. This
witness P.W.-7 has denied the suggestion
put forward by the defense counsel that
these injuries found on the person of the
injured Ram Babu Shukla could be selfcreated. Eight injuries were found on the
person of the complainant P.W.-2 and all
were simple in nature caused by hard and
blunt object. Duration was found about 4
days' old. It is noteworthy that the incident
occurred on 3.8.2001 and the injured was
examined on 6.8.2001. The time coincides
with the time when the incident occurred
and the injured received the injuries. The
testimony of an injured witness carries a
special weight. The presence of this witness
at the time of occurrence is also natural
because as per the evidence available on
record, he resides near to the place of
occurrence and he reached at the spot after
5 All. Sri Kant & Anr. Vs. State of U.P.
81
hearing the noise which was ensuing due to
the assault made by accused persons on the
deceased Hari Babu. Though P.W.-1 who
was mentioned in the F.I.R. as an eye
witness has turned hostile and did not
support the prosecution case, another eye
witness Ram Avtar mentioned in the F.I.R.
was not produced by the prosecution, yet
the evidence of P.W.-2 is sufficient enough
with a ring of truth to prove the incident
and also what has been written in the F.I.R.
by him. No major contradiction could be
brought by the defence in the cross
examination of this witness. No reason of
false implication could be brought forward
by the appellants by this witness i.e.
complainant, though they tried to put
forward that due to some challan under
Section 107/116 of Cr.P.C., the complainant
was annoyed, so he implicated them falsely
but this is not believable because the
challan is subsequent to the incident of this
case
and
this
defence
was
rightly
disbelieved by the trial court. Much
emphasis has been given by the counsel of
appellants that the conviction has been
based on the testimony of a single witness
which is not proper. This argument of the
counsel for the appellants is of no
importance because it is a settled law that a
conviction can be based on a sole testimony
of a witness if the court finds the testimony
of that witness creditworthy.

20. In Kartik Malhar Vs. State of
Bihar : (1996) 1 SCC 614, the Hon'ble
Apex Court has held as under ( relevant
paragraphs 2, 3, 4, 6 and 7 ) :-

"2. The well-known maxim that
"Evidence has to be weighed and not
counted"
has
been
given
statutory
placement in section 134 of the Evidence
Act which provides us under :

"134. No particular number of
witness shall in any case be required for the
proof of any fact."

3. This section marks a departure
from the English law where a number of
statutes still prohibit convictions for certain
categories of offences on the testimony of a
single witness. This-difference was noticed
by the Privy Council in Mahamed Sugal
Esa Mamasah Rer Alalah v. The King,
A.I.R. (1946) P.C, 3 .............

4. The Privy Council decision
was considered by this Court in Vadivelu
Thevar v. The State of Madras, A.I.R.
(1957) S.C. 614 in which it was observed
as under : -

"On a consideration of the
relevant authorities and the provisions of
the
Evidence
Act.
the
following
propositions may be safely stated as firmly
established :

(1) As a general rule, a court can
and may act on the testimony of a single
witness
though
uncorroborated.
One
credible witness outways the testimony of a
number of other witnesses of indifferent
character.

(2)
Unless
corroboration
is
insisted upon by statute, courts should not
insist on corroboration except in cases
where the nature of the testimony of the
single witness itself requires as a rule of
prudence, that corroboration should be
insisted upon for example, in the case of a
child witness, or of a witness whose
evidence is that of an accomplice or of an
analogus character.

(3) Whether corroboration of the
testimony of a single witness is or is not
necessary, must depend upon facts and
circumstances of each case and no general
rule can be laid down in a matter like this and
much depends upon the judicial discretion of
the Judge before whom the case comes.
82 INDIAN LAW REPORTS ALLAHABAD SERIES

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'. The Legislature
determined,
as
long
ago
as
1872
presumably after due consideration of the
pros and cons. that, it shall not be
necessary for proof or disproof of a fact, to
call any particular number of witnesses."

This Court further observed as
under :

"It is not seldom that a crime has
been committed in the presence of only one
witness, leaving aside those cases which
are not of uncommon occurrence where
determination of guilt depends entirely on
circumstantial evidence. If the Legislature
were to insist upon plurality of witnesses,
cases where the testimony of a single
witness only could be available in proof of
the
crime,
would
go
unpunished............................

5. xxxxx.

6. Some other cases of this Court
in which the question of sole witness
constituting the basis of conviction or
otherwise has been considered are State of
Haryana v. Manoj Kumar, [1994] 1 SCC
495;Brij Basi Lal v. State of M.P., [1991]
Suppl. 1 SCC 200; Jai Prakash v.
State(Delhi Administration), [1991] 2 SCC
379; Peodireddi Subbareddi v. State of
Andhra Pradesh, AIR (1991) SC 1356;
Java Ram Shiva Tagore v. State of
Maharashtra, [1991] Suppl. 2 SCC 677
AIR (1991) SC 1735; Anil Pukhan v. State
of Assam, AIR (1993) SC 1462 and Ram
Kumar v. State of U.P., AIR (1992) SC
1602.

7. On a conspectus of these
decisions, it clearly comes out that there
has been no departure from the principles
laid down in Vadivelyu Thevar's case
(supra) and, therefore, conviction can be
recorded on the basis of the statement of
single eye witness provided his credibility is
not shaken by any adverse circumstance
appearing on the record against him and
the Court, at the same time, is convinced
that he is a truthful witness. The Court will
not then insist on corroboration by any
other eye witness particularly as the
incident might have occurred at a time or
place when there was no possibility of any
other eye witness being present. Indeed, the
Courts insist on the quality, and, not on the
quantity of evidence."

21. In Kunju @ Bala Chandran Vs.
State of Tamilnadu : 2008 (2) SCC 151,
the Hon'ble Apex court has also held that
the conviction can be based on the sole
testimony of a witness who is found
reliable. It is not the number of witness
but the quality of evidence which is
important.

22. In Jayanti Lal Verma Vs. State
of M.P. (Now Chattisgarh) 2020 SCC
Online SC 944, the Hon'ble Apex Court
has laid down the similar view.

23. In the present matter, though
another eye witness mentioned in the F.I.R.,
Natthu Lal has turned hostile but the
evidence of P.W.-2 who is also an injured
witness, has in a very natural manner step
by step, narrated the story before the court
and what has been written by him in his
written report on the basis of which the
F.I.R. was registered. No reason could be
evinced to disbelieve the testimony of this
witness.
5 All. Sri Kant & Anr. Vs. State of U.P.
83

24. The counsel for the appellants
also stated that this witness is a relative
witness as the deceased was the cousin of
this witness, so his testimony should not be
believed. This argument also of the
appellants
carries
no
force
because
testimony
of
a
witness
cannot
be
discredited only for the reason of his being
a relative of the deceased if the court
otherwise finds his testimony creditworthy
and reliable.

25. In Kartik Malhar's case (supra),
the Hon'ble Apex Court has held as under
(para 18 ) :-

"18. We may also observe that the
ground that the witness being a close relative
and consequently, being a partisan witness,
should not be relied upon, has no substance.
This theory was repelled by this Court as
early as in Dilip Singh's case (supra) in
which this Court expressed its surprise over
the impression which prevailed in the minds
of the members of the Bar that relatives were
not independent witnesses. Speaking through
Vivian Bose, J., the Court observed :

"We are unable to agree with the
learned Judges of the High Court that the
testimony of the two eye-witnesses requires
corroboration. If the foundation for such an
observation is based on the fact that the
witnesses are women and that the fate of
seven men hangs on their testimony, we know
of no such rules. If it is grounded on the
reason that they are closely related to the
deceased we are unable to concur. This is a
fallacy common to many criminal cases and
one which another Bench of this Court
endeavoured to dispel in Rameshwar v. The
State of Rajasthan, [1952] SCR 377 = AIR
1952 SC 54. We find, however, that it
unfortunately still persists, if not in the
judgments of the Courts, at any rate in the
arguments of counsel."

In this case, this Court further
observed as under :

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative would
be the last to screen the real culprit and
falsely implicate an innocent person. It is
true, when feelings run high and there is
personal cause for enmity, that there is
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth."

26. In the present case, the incident is
of day light and there is no reason on the
record to disbelieve the testimony of P.W.-
2, the complainant and also an injured. The
learned counsel for appellants Kamla Kant
and Sunil Kant also emphasised much on
the arguments that the site of the crime has
not been proved by prosecution, as no
witness of the recovery of blood soaked
soil and plain soil from the spot, has been
examined and it could not be established
that the incident occurred at the place
mentioned in the F.I.R. Though no witness
of recovery of blood soaked soil and plain
soil from the spot has been examined but
that has very well been proved by the
concerned investigating officer and Exhibit
Ka-16 a report of forensic Science
Laboratory, Lucknow which depicts that
both the soils i.e. blood soaked soil and
plain soil were similar. Hence, there
remains no reason to doubt the place of
occurrence, furthermore the place of
occurrence has very well been proved by
the P.W.-2 and also by the Investigating
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer P.W.-6. The post mortem report of
the deceased Exhibit Ka-2 shows that the
deceased
sustained
multiple
firearm
wounds of entries present on left side front
of chest and left arm, average measuring
0.3 cm X 0.3 muscle to chest cavity deep."

27. 11 Pellets were also recovered
from the left arm chest cavity and left lung
of the deceased, as has been noted in the
post-mortem-report by the autopsy surgeon.
The cause of death has been shown as
shock and hemorrhage as a result of antemortem injuries. This medical evidence is
in support of evidence of eye witness P.W.-
2 the complainant. However, the learned
counsel for the appellants have argued that
P.W.-2 has stated that the deceased was
beaten by the appellants by 'lathis/dandas'
also but no injury of 'lathi-danda' was
found, so the evidence of P.W.-2 is not in
consonance with the medical evidence.
This argument also on behalf of the
appellants has no force because mere
absence of injuries of 'lathi'-'danda' cannot
convince us to drop the conclusion that the
deceased was not fired upon by the
appellants Kamla Kant and Sunil Kant as
has been stated by P.W.-2 in his statement
and also written in the F.I.R. The injuries
noted in the Post-mortem-report supports
the version of P.W.-2 as far as firearm
injuries are concerned. So only for the fact
that no injury of 'lathi-danda' was found,
the
statement
of
P.W.-2
cannot
be
disbelieved.

28. The learned counsel for the
appellants Kamla Kant and Sunil Kant also
argued that the F.I.R. is a delayed one and
also ante-timed because the same was not
sent to the concerned Magistrate at the
earliest. This argument also carries no
weight
in
the
light
of
recent
pronouncements of Hon'ble Apex Court.

29. The Hon'ble Supreme Court in
Bimla Devi Vs. Rajesh Singh and another
: (2016) 15 SCC 448 has held that
"although it is true that delay in sending the
F.I.R. to the concerned Magistrate can
vitiate the investigation, but it is settled
position that a cogent reasoning can
override this procedural lacuna. It is an
accepted fact that there was a delay of one
day in sending the F.I.R., however, no
motive in manipulating with the F.I.R. was
proved. The prosecution case is strongly
backed by testimonies of the six eye
witnesses who have testified the incident in
almost similar terms. A procedural lapse in
not sending the F.I.R. promptly did not
prejudice the present case."

30. The Hon'ble Apex Court in
Narsingh Pal Vs. State of U.P. : (2020) 14
SCC 281 has held that "the F.I.R. was lodged
promptly at 00.30 A.M. on 24.6.2005 by P.W.-
1 naming the appellant, promptly accusation
was not the result of any consultation but the
immediate confirmation of the appellant being
the assailant. The fact that there may have
been some delay in sending it to the
Magistrate, is therefore, inconsequential and
has caused no prejudice to the appellant."

31. Recently in Ombir Singh Vs. State
of Uttar Pradesh : (2020) 6 SCC 378, the
Hon'ble Apex Court has held that the delay in
compliance with section 157 of the Cr.P.C.
cannot in itself be a ground for acquittal of the
accused. The Apex Court has also held that in
cases where the date and time of the lodging
the F.I.R. is questioned, the report becomes
more relevant. But mere delay in sending the
report itself cannot lead to a conclusion that
the trial is vitiated or the accused is entitled to
be acquitted on this ground.

32. In the matter in hand, the incident
allegedly occurred at 1.00 P.M. and the F.I.R.
5 All. Sri Kant & Anr. Vs. State of U.P.
85
was lodged on the same day at 5.25 P.M. The
distance of the place of occurrence was 14
kilometers from the concerned police station.
The person who went to lodge the F.I.R. was
also got injured in the incident. In such
circumstances, the F.I.R. cannot be deemed to
be a delayed F.I.R. or ante-timed F.I.R. and
had rightly been so concluded by the trial
court. Thus, the delay in sending the F.I.R. to
the concerned Magistrate is of no importance.
Hence, there appears no reason to interfere
with the conclusions arrived at by the trial
court in holding guilty the appellants Kamla
Kant and Sunil Kant for the offence
punishable under Section 302 read with
Section 34 I.P.C. for causing the murder of
the deceased Hari Babu.

33. Now comes the case of another
appellant Sri Kant who has filed Criminal
Appeal No.1314 of 2005. The counsel for the
appellant Sri Kant argued that he has been
assigned the role of assaulting the injured
witness Ram Babu Shukla and he did not
cause any injury to the deceased with 'lathidanda' as there was no injury on the person of
the deceased of 'lathi-danda'. He played no
role in causing the death of the deceased,
hence he can, at the most be held liable for
the offence punishable under Section 323
readwith Section 34 I.P.C.

34. Learned A.G.A. opposed the above
arguments of the counsel for Sri Kant and
submitted that this appellant also played an
active role in the murder of the deceased as
he also came alongwith other accused
persons at the spot with the intention to
commit the murder of the deceased. So he is
also liable for the offence punishable under
Section 302 readwith Section 34 I.P.C.

35. Learned A.G.A. relied upon
paragraph 12 of the case Ramaswami
Ayyanger
and
others
Vs.
State
of
Tamilnadu : 1976 SCC (Cri.) 518 wherein
Hon'ble Apex Court has held as under :-

"12. ................Section 34 is to be
read along with the preceding Section 33
which makes it clear that the "act" spoken
of in Section 34 includes a series of acts as
a single act. It follows that the words "when
a criminal act is done by several persons"
in Section 34, may be construed to mean
"when criminal acts are done by several
persons". The acts committed by different
confederates in the criminal action may be
different but all must in one way or the
other participate and engage in the
criminal enterprise, for instance, one may
only stand guard to prevent any person
coming to the relief of the victim, or may
otherwise facilitate the execution of the
common design. Such a person also
commits an "act" as much as his coparticipants
actually
committing
the
planned crime. In the case of an offence
involving physical violence, however, it is
essential for the application of Section 34
that the person who instigates or aids the
commission of the crime must be physically
present at the actual commission of the
crime for the purpose of facilitating or
promoting the offence, the commission of
which is the aim of the joint criminal
venture. Such presence of those who in one
way or the other facilitate the execution of
the common design, is itself tantamount to
actual participation in the 'criminal act'.
The essence of Section 34 is simultaneous
consensus
of
the
minds
of persons
participating in the criminal action to bring
about a particular result. Such consensus
can be developed at the spot and thereby
intended
by
all
of
them...................................."

36. Learned A.G.A. has also relied
upon paragraph 12 of the case Ramesh
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh @ Photti Vs. State Andhra Pradesh
: 2004 SCC (Cri) Supp. 70, which runs as
under (relevant para 12) :-

"12. To appreciate the arguments
advanced on behalf of the appellants it is
necessary to understand the object of
incorporating Section 34 in the Indian
Penal Code.