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

- **Citation:** (2022) 8 ILRA 365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Government Appeal No. 3339 of 1985
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ram-naresh-ors-48772
- **Pages:** 22

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 107, 117, 154, 378
& 428 - Indian Penal Code, 1860 -
Sections - 148, 149, 302, 304-(II) & 307 -
Indian Evidence Act,1872 - Sections 3, 27
& 116 : - Govt. Appeal - against acquittal -
Offence of murder & attempt to murder -
Prosecution alleging that the incident was took
place at his own house where a Panchayat was
assembled for settlement of an quarrel arises
between the both the parties wherein accused
persons
hurled
Gandasa
and
co-accused
persons armed with gun, Lathi, fired upon
deceased-father of complainant and other
injured persons - FIR lodged promptly - Trial
court acquitted all the accused by giving finding
that, prosecution were failed to proved the
motive, place of occurrence, manner of incident
and testimony of the witnesses are full of
contradiction on the point of theory of
Panchayat, theory of light and further being all
the witness are family members - Appeal - on
scrutinizing the evidence on record - Court held
that - Trial court taken pains & stretched itself in
366 INDIAN LAW REPORTS ALLAHABAD SERIES
fishing out very minor discrepancies to dislodge
the prosecution case by ignoring overtly the
consistent testimony of the ocular witnesses -
order of acquittal is liable to be set aside.(Para -
37, 38, 66, 67, 68, 69)

(B) (A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 154 & 378 - Indian
Penal Code, 1860 - Sections 148, 149,
302, 304 (II &, 307 - Indian Evidence Act,
1872 - Sections 3, 27 & 116 : - Common
intention - Offence of murder and attempt to
murder - Accused exhorted to finish deceased
for falsely implicating them - Accused hurled
Gandasa to cause injury but missed the target -
Though accused had not caused injury , they
are vicariously liable for acts of co-accused, as
all came together on spot - Overt acts and
active participation established their common
intention. (Para 67, 68, 69)

Appeal Allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,935 of 74,531. This is a partial read: ask again with offset=39935 for what follows._

8 All. State of U.P. Vs. Ram Naresh & & Ors.
365
deceased had died and in the cremation
ceremony, maternal side of the deceased
were present.

45. Meticulously, analysing the
prosecution case in the backdrop of the
testimony of the prosecution witnesses and
the documents so produced before the trial
court this Court finds that the prosecution
story proceeds on weak evidence and the
same in no manner whatsoever completely
links
the
accused
with
respect
to
commission of crime. Notably, not only the
first information report has been lodged
after 5 days and the occurrence took place
on
23/24.10.2010,
FIR
lodged
on
29.10.2010,
absence
of
plausible
explanation in lodging of the FIR coupled
with the fact that even the prosecution has
failed to prove that the death of the
deceased occurred on account of dowry
attracting the provisions contained under
Sections 498A IPC and further the fact that
improvement has been sought to be made
as certain allegations have been sought to
be inserted, which did not find place in the
first information report that too in a such
situation wherein the first informant was
present at the time of the alleged
occurrence and the fact that he is the real
brother of the deceased.

46. Nonetheless, this Court finds that
the view taken by the learned Trial Court
while acquitting the accused does not
warrant any interference as no other view is
possible even if it is possible also, this
Court will not grant indulgence while
reversing the judgment of the acquittal
while convicting them in absence of wreak
evidence so sought to be propagated by the
prosecution.

47. In view of above, the Criminal
Appeal is dismissed.

48. The records be sent back to the
court-below.
----------
(2022) 8 ILRA 365
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Government Appeal No. 3339 of 1985

State of U.P. ...Appellant
Versus
Ram Naresh & Ors.
 ...Accused-Respondents

Counsel for the Appellant:
A.G.A., Sri A.D. Giri

Counsel for the Respondents:
Sri Ravindra Rai, Sri Ashok Kumar Mishra,
Sri Ramji Singh Patel, Sri Rupak Chaubey

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 107, 117, 154, 378
& 428 - Indian Penal Code, 1860 -
Sections - 148, 149, 302, 304-(II) & 307 -
Indian Evidence Act,1872 - Sections 3, 27
& 116 : - Govt. Appeal - against acquittal -
Offence of murder & attempt to murder -
Prosecution alleging that the incident was took
place at his own house where a Panchayat was
assembled for settlement of an quarrel arises
between the both the parties wherein accused
persons
hurled
Gandasa
and
co-accused
persons armed with gun, Lathi, fired upon
deceased-father of complainant and other
injured persons - FIR lodged promptly - Trial
court acquitted all the accused by giving finding
that, prosecution were failed to proved the
motive, place of occurrence, manner of incident
and testimony of the witnesses are full of
contradiction on the point of theory of
Panchayat, theory of light and further being all
the witness are family members - Appeal - on
scrutinizing the evidence on record - Court held
that - Trial court taken pains & stretched itself in
366 INDIAN LAW REPORTS ALLAHABAD SERIES
fishing out very minor discrepancies to dislodge
the prosecution case by ignoring overtly the
consistent testimony of the ocular witnesses -
order of acquittal is liable to be set aside.(Para -
37, 38, 66, 67, 68, 69)

(B) (A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 154 & 378 - Indian
Penal Code, 1860 - Sections 148, 149,
302, 304 (II &, 307 - Indian Evidence Act,
1872 - Sections 3, 27 & 116 : - Common
intention - Offence of murder and attempt to
murder - Accused exhorted to finish deceased
for falsely implicating them - Accused hurled
Gandasa to cause injury but missed the target -
Though accused had not caused injury , they
are vicariously liable for acts of co-accused, as
all came together on spot - Overt acts and
active participation established their common
intention. (Para 67, 68, 69)

Appeal Allowed. (E-11)

List of Cases cited: -

1. Anwar Ali Vs St. of H.P. (2020) 10 SCC 166.

2. Babu Vs St. of Kerala - (2010) 09 SCC 189,

3. Atley Vs St. of UP - (AIR) 1955 SC 807,

4. Chandrappa Vs St. of Karn. - (2007) 4 SCC
415,

5. Murugesan Vs State - (2012) 10 SCC 383,

6. Tarsem Kumar Vs Delhi Administration 1994
Suppl. 3 SCC 367,

7. Mukesh Vs St. (NCT of Delhi) - 2017 (6) SCC
1,

8. Sardul Singh Vs St. of Punjab (1994) Cr.
LJ626 (SC),

9. St. of UP Vs Anil Singh (1988) Suppl. SCC
686,

10. Leela Ram Vs St. of Har., (1999) 9 SCC 525,

11. Gangadhar Behera Vs St. of Orissa (2002) 8
SCC 381,

12. Miller Vs Minister of Pensions (1947) 2 All ER
373,

13. In Masalti Vs St. of U.P. (AIR 1965 SC 202,
(1965) 1 Cr. L.J. 226,

14. Lalji Vs St. of U.P. - (1989) 1 SCC 437,

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Vikas Goswami, learned
A.G.A. for the State and Sri Ashok Kumar
Mishra, learned counsel for the accused
respondents.

2. The instant appeal has been filed
against the judgment and order dated
05.09.1985, passed by the Ist Additional
District and Session Judge, Varanasi, in
Session Trial No. 244 of 1984, under
sections 302/149, 307/149 I.P.C., whereby,
the
accused
respondents
have
been
acquitted.

3. The appeal has been filed against
all the acquitted accused. During pendency
of the appeal the second respondent-
Yadurai, S/o Sri Alakh Narain, and third
respondent-Harishankar, S/o Sri Brajnath
Singh, have died. Accordingly, the appeal
against
them
stands
abated.
First
respondent-accused Ram Naresh, fourth
respondent-Devendra and fifth respondentVirendra are opposing the appeal and the
present appeal is confined to the said
accused.

Prosecution case:

4. As per prosecution case, accused
Yadurai was assigned the role of firing and
accused-Harishankar of causing injury by
lathi. First, fourth and fifth respondent have
been assigned assault weapon gadasa and
farsa. Fourth and fifth respondents are
brothers and sons of first respondent.
8 All. State of U.P. Vs. Ram Naresh & & Ors.
367

5. As per F.I.R., complainant
Udaynath Singh (P.W.-1) alleged that about
20-25 days prior to the incident there was
quarrel between the accused and Baba @
Digvijay Nath Dubey. Attempts were made
to arrive at a compromise between the
quarrelling
parties,
but
failed.
On
08.04.1984, at about 9 P.M., a community
panchayat was convened at the door of the
complainant to settle the matter between
the parties, both the parties were invited to
the panchayat. It is stated that Baba @
Digvijay Nath Dubey (P.W.-3), his sister
Pramila Devi, his aunt Indrawati Devi, his
younger brother Narendra Nath Dubey and
Dhirendra Nath Dubey had come to attend
the panchayat. The complainant's father
Kedar Singh (deceased) and his younger
brother Mahendra (P.W.-2), Surendra,
Rajendra and the wives of Rajendra and
Surendra were also present. Panchayat was
convened by father of the complainant on
the consent of both the parties.

6. It was further stated that there was
electric light burning at the door of the
complainant and a mercury light at the
crossing of the road. It was moonlit night.
A person was sent to call the accused
persons. He returned informing that they
will come shortly. It is alleged that in the
mean time accused Yaduri armed with gun,
accused Harishankar with lathi, accused
Ram Naresh, Devendra and Dhirendra
armed with gadasa came on the spot.
Accused
started
hurling
abuses
and
exhorted that family of Kedar Singh
(deceased) wants to suppress and humiliate
them in collusion with the family of Baba;
and at that moment accused Yadurai fired
five shots from his gun injuring Kedar,
Smt. Nirmala Devi, Mahendra, Smt.
Pramila and Smt. Indrawati. Mahendra is
said to have also received single blow of
lathi afflicted by accused Harishankar. Ram
Naresh Singh, Virendra and Devendra
wielded gadasa, but, no one was injured.
An alarm was raised, patrol police reached,
accused escaped. The complainant send his
injured father, Nirmala Devi, Pramila,
Indrawati alongwith his younger brother
Rajendra to district Hospital at Varanasi;
father of the complainant (Kedar Singh)
succumbed to the injuries in the hospital on
the same night.

7. On written complaint, F.I.R. was
promptly
registered,
the
case
was
investigated and upon investigation, charge
sheet was submitted against the accused
under sections 302/149, 307/149 I.P.C. The
case was committed to the court of session
for trial. The prosecution examined in all
eight witnesses. (P.W.-1) complainant
Uday Nath Singh, eye witness and he
proved the report; (P.W.-2) Mahendra
Singh brother of the complaint is an injured
eye witness; (P.W.-3) Digvijay @ Baba is
also the eye witness; (P.W.-4) Nirmala a
family member of complainant, is an
injured eye witness; (P.W.-5) constable
Achhaiber Nath Yadav took the dead body
to the mortuary for post mortem; (P.W.-6)
Dr. T.B. Rai examined the injuries of
deceased Kedar Singh and other injured
persons. He found the following injuries
caused to Kedar Singh.

1. Gun shot wound 1 cm x 1 cm
depth not probed on the back of right high
lower part with blackening and charring.
Kept under observation. Advised X-ray.

2. Gun shot wound 1 cm x 1 cm
depth not probed with blackening and
charring on right knee joint kept under
observation. Advised X-ray.

8. He also examined Smt Nirmala
(P.W.-4)
and
found
the
following
injuries:
368 INDIAN LAW REPORTS ALLAHABAD SERIES

Gun shot wound on the left elbow
with blackening and charring. Kept under
observation. Depth not probed. Advised Xray and expert opinion.

9. He examined Smt. Indrawati and
found the following injuries:

1. Gun shot wound 25 cm x 25 cm
x depth not probed with blackening and
charring on back of right fore-arm upper
part.

2. Gun shot wound 25 cm x 25
cm x through and through with blackening
and charring on the right index finger on
top.

3. Gun shot wound 25 cm 25 cm x
depth not probed on front and outer of
right elbow joint.

4. Gun shot wound multiple eight
in number each 25 cm x 25 cm x depth not
probed with blackening and charring on
right thigh is already 20 cm x 3 cm.

5. Gun shot wound 25 cm x 25 cm
blackening and charring present on front of
right leg middle.

6. Multiple gun shot wound with
blackening and charring 25 cm x 25 depth
not probed on middle of abdomen.

7. Multiple gun shot wound each
25 cm x .25 cm depth not probed with
blackening and charring on front and out
of left thigh.

10. He also examined Smt. Pramila
Devi and found the following injuries:

1. Gun shot wound 2 cm x .5 cm x
depth not probed blackening and charring
on right side thigh outer aspect upper part.

2. Gun shot would 25 cm x .25 cm
x depth not probed will blackening and
charring on front and outer right thigh
lower part.

11. He examined Mahendra Singh
(P.W.-2) and found the following injuries:-

1. Lacerated wound 4 cm x .5 cm
x scalp deep on back of head 13 cm above
left ear.

2.
Gun
shot
wound
with
blackening and charring 2 cm x .5 cm x
depth not probed on right thumb kept under
observation advised X-ray.

12. (P.W. 6) Dr. T.B. Rai proved the
injury reports Ex- Ka-2 to Ex. Ka-6.

13. (P.W.-7) S.I. Shiv Shaknar
Tripathi investigated the case and proved
the report Ex. Ka-7 and case diary entry
Ex. K-8. He prepared the site plan (Ex. Ka9) and after the death of Kedar Singh
converted the case into Section 302 I.P.C.
vide case diary Ex. Ka-10. He also
collected blood smear soil and plain earth
and an empty cartridge from the spot and
prepared memo Ex. Ka-10 and Ka 12,
respectively.
He
prepared
the
panchayatnama Ex. Ka-13 and various
other documents Ex. Ka 14 to Ka 16 for the
post mortem. P.W.-7 submitted charge
sheet under section against the accused Ex.
Ka 17.

14. (P.W.-8) Dr. A.K. Kocher
conducted the post mortem of deceased
Kedar Singh and found the following
injuries:

1. Gun shot wound 1 cm x 1 cm
depth not probed on the back of right high
lower part with blackening and charring.
Kept under observation. Advised X-ray.

2. Gun shot wound 1 cm x 1 cm
depth not probed with blackening and
charring on right knee joint kept under
observation. Advised X-ray.
8 All. State of U.P. Vs. Ram Naresh & & Ors.
369

1. Gun shot wound of entry of 1
cm diameter in front of right knee just
above the patella bone with margin
contused
and
lacerated
and
margin
inverted distance 52 cm above right heel.
The missile has passed through skin,
subcut..... tissue, muscles, fractured into
pieces to the lower end of femur bone,
raptured poplitial vessel, passed through
thigh muscle, subcut.... Tissue and made
on.

2. Wound of exits 1.5 cm in
diameter, circular with irregular lacerated
and everted margin on the posterior
surface of right thigh 52 cm above right
heel. Direction front to back.

3. Multiple abraded contusion 1.5
c.m. x 2 cm on the right side of front of
abdomen at the level of umbilicus and 8 cm
outer to umbilicus.

Internal Examination:

Both lungs pale, part both side
empty.

Stomach: digested food one litre.

15. Accused pleaded not guilty and
alleged that they have been falsely implicated
due to enmity; accused Ram Naresh stated
that complainant had always attempted to
grab his land. For this purpose, a false sale
deed was got executed by the complainant
and Badri, a suit in that regard is pending.
The accused further stated that he was not
present; the deceased and injured received
gun shot injuries from some unknown
persons. He has been falsely implicated due
to enmity. Accused Devendra and Virendra
stated that Badri and deceased wanted to grab
land of Ram Naresh for which a false sale
deed was executed and they were implicated
due to enmity. Accused have filed various
documents in defence.

16. The trial court upon examining
the evidence reached a finding that the
prosecution failed to prove the charge
framed under Sections 148, 302/149,
307/149 I.P.C., accordingly, the accused
were held not guilty for the offence and
were acquitted.

Submissions:

17. Learned State Counsel, in the
backdrop of the prosecution evidence,
submits that the finding reached by the trial
court
is
perse
perverse
on
misreading/appreciation of the evidence
and the site plan; place and time of incident
was duly proved by the witnesses of fact,
including, injured witnesses; the identity of
the
accused
is
not
disputed
being
neighbours; the site plan shows the spot of
firing duly corroborated by the witnesses of
fact; injury report and post mortem report
corroborates the prosecution case. The
witnesses had categorically stated that the
place of incident was duly illuminated;
light was at the door of the complainant, as
well as, street light at the crossing of the
road; further, it was a moonlit night. The
F.I.R.
was
lodged
promptly;
empty
cartridges of 12 bore rifle was recovered
from the spot; marks caused by pellet was
found on the wall of the house of P.W.-1;
the deceased and injured received pellet
injury fired from close range. Learned State
counsel submits that prosecution proved the
case
beyond
reasonable
doubt,
the
impugned judgment and order is liable to
be set aside and the accused-respondents
are liable to be convicted.

18. Learned counsel appearing for the
accused-respondents
submits
that
the
impugned judgment is well reasoned based
on appreciation of evidence; role of firing
was assigned to accused Yadurai and
accused Hari Shankar was assigned the role
of causing injury by lathi on the head of
370 INDIAN LAW REPORTS ALLAHABAD SERIES
Mahendra Singh, both the accused have
since died during the pendency of the
appeal. The accused-respondents are father
and sons and were assigned the role of
exhortation and hurling gadasa, but no
injury was caused with the assault weapon.
He further submits that insofar the case of
the accused-respondents is concerned the
offence would not travel beyond Section
304 Part (II) I.P.C. He accordingly submits
that appeal is liable to be dismissed.

Appellate Court-Scope of enquiry:

19. At the out set, it would be
apposite to examine the law on the scope of
enquiry by an appellate court under Section
378 Cr.P.C. while dealing with an appeal
against acquittal.

20. The Supreme Court in Anwar Ali
v. State of Himanchal Pradesh held as
under:

"14.2. When can the findings of
fact recorded by a court be held to be
perverse has been dealt with and
considered in paragraph 20 which reads
as under: [Babu v. State of Kerala2]:

"20.
The
findings
of
fact
recorded by a court can be held to be
perverse if the findings have been
arrived at by ignoring or excluding
relevant material or by taking into
consideration
irrelevant/inadmissible
material. The finding may also be said to
be perverse if it is "against the weight of
evidence",
or
if
the
finding
so
outrageously defies logic as to suffer
from the vice of irrationality. (Vide
Rajinder Kumar Kindra v. Delhi Admn.
[(1984) 4 SCC 635], Excise & Taxation
Officer-cum-Assessing Authority v. Gopi
Nath & Sons [1992 Supp (2) SCC 312],
Triveni Rubber & Plastics v. CCE[1994
Supp (3) SCC 665], Gaya Din v.
Hanuman Prasad[(2001) 1 SCC 501],
Aruvelu v. State, [(2009) 10 SCC 206]
and Gamini Bala Koteswara Rao v. State
of A.P. [(2009) 10 SCC 636])."

21. In Atley v. State of U.P.,
Supreme Court observed and held as
under:

"It has been laid down by this
Court that it is open to the High Court on
an appeal against an order of acquittal to
review the entire evidence and to come to
its own conclusion, of course, keeping in
view the well- established rule that the
presumption of innocence of the accused
is not weakened but strengthened by the
judgment of acquittal passed by the trial
court which had the advantage of
observing the demeanour of witnesses
whose evidence have been recorded in its
presence.

It is also well settled that the
court of appeal has as wide powers of
appreciation of evidence in an appeal
against an order of acquittal as in the
case of an appeal against an order of
conviction, subject to the riders that the
presumption of innocence with which
the accused person starts in the trial
court continues even up to the appellate
stage and that the appellate court should
attach due weight to the opinion of the
trial court which recorded the order of
acquittal.

If the appellate court reviews the
evidence, keeping those principles in mind,
and comes to a contrary conclusion, the
judgment cannot be said to have been
vitiated."

22. In Chandrappa v. State of
Karnataka, Supreme Court has laid down
the general principles regarding the powers
8 All. State of U.P. Vs. Ram Naresh & & Ors.
371
of the appellate Court while dealing with an
appeal against an order of acquittal. Para 42
of the judgment which is relevant reads as
under:

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate court while dealing with an
appeal against an order of acquittal
emerge:

(1) An appellate court has full
power
to
review,
reappreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court.

(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."

23. In Murugesan v. State,
Supreme Court held:

"only
in
cases
where
conclusion recorded by the trial court is
not a possible view, then only the High
Court can interfere and reverse the
acquittal to that of conviction. In the
said judgment, distinction from that of
"possible view" to "erroneous view" or
"wrong view" is explained. In clear
terms, this Court has held that if the view
taken by the trial court is a "possible
view", the High Court not to reverse the
acquittal to that of the conviction."

Analysis: Case of the prosecution
witness.

24. To appreciate the submissions of
learned State counsel in the backdrop of
the general principles regarding powers
and scope of the appellate court, we
would briefly refer to the prosecution
case and the evidences in support thereof,
and examine as to whether the finding
reached by the trial court acquitting the
accused is against the weight of evidence
and is the ''possible view'; and or whether
the finding defies logic as to suffer from
the vice of irrationality.

25. The incident is alleged to have
taken place on 08.04.1984, at 9.00 P.M.,
report was lodged promptly at 12.35 in
the night on the same day.
372 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Udaynath Singh (P.W.-1), son of
the deceased, alleged that Baba @ Digvijay
Nath Dubey and the accused persons Ram
Naresh, Yadurai, Harishankar, Devendra
and Virendra had a quarrel on the occasion
of Holi, efforts were being made to settle
the dispute and for that purpose the
complainant had convened a panchayat
(meeting) of both the quarrelling sides at
9.00 P.M. at his door (house). Baba @
Digvijay Nath Dubey (P.W.-3) along with
his family arrived, however, to call the
other side i.e. Ram Naresh, Yadurai,
Harishankar,
Devendra
and
Virendra,
complainant sent a person. The person
returned and stated that they will arrive
shortly. Immediately, thereafter, accused
Yadurai armed with gun, Harishankar with
lathi, Ram Naresh, Devendra and Virendra
with gadasa reached the spot and started
hurling abuses; they rushed towards the
door of the complainant exhorting that the
family of Kedar (deceased), in connivance
with Baba @ Digvijay Nath Dubey wants
to intimidate and falsely implicate them,
today the family would be eliminated.
Yadurai with the intention to kill fired five
shots at the complainant, his father and
brothers,
consequently,
complainant's
father (Kedar), younger brother and Smt.
Nirmala, wife of his younger brother,
Surendra, Mahendra, Smt. Pramila Devi
and Indrawati incurred gun shot injuries. In
the firing the condition of Kedar, Smt.
Nirmala Devi, Smt. Pramila Devi and
Indrawati became serious; Rajendra Pratap
the younger brother of the complainant
immediately had taken them to the hospital.

27. Udaynath Singh (P.W.-1) was
examined, he reiterated the prosecution
version and deposed in detail regarding the
location of his house and that of his younger
brother, his father Kedar Singh (deceased),
the direction from where the accused had
come and the place from where firing was
resorted. He stated that 24-25 days earlier at
the Holi festival the accused and Baba @
Digvijay Nath Dubey had a quarrel and the
panchayat was convened on 08.04.1984, at
9.00 P.M. at his residence to settle the
dispute. On specific query, he categorically
stated that meeting was convened by his
father Kedar Singh (deceased) on the request
of the rival parties. He further stated that
there was sufficient illumination at his door
and the mercury light at the road crossing
was illuminating his entrance door. He
further stated that it was moonlit night. He
reiterated
that
Yadurai
had
a
gun,
Harishankar was armed with lathi, Ram
Naresh and his sons Devendra and Virendra
were armed with gadasa. The accused
exhorted to eliminate the family membe+rs of
Kedar Singh and in furtherance thereof,
Yadurai continuously fired five shots, which
hit his father and other family members.
Accused Hari Shankar, thereafter, assaulted
with lathi on the head of his younder brother
Mahendra (P.W.-2), whereas, Ram Naresh,
Virendra and Devendra hurled gadasa to
assault, but, no injury was caused. The
accused escaped upon arrival of patrol police.

28. In cross examination, P.W.-1 stated
that his family and that of the accused are not
enimical. He further stated that one hour
before the incident his family members were
seated in front of the house on the open land
which is part of their house. He further stated
that there is no chabutara (elevated platform)
but an open verandah without any cover. He
further stated that on the open verandah and
in front of the verandah on the ground people
were sitting.

29. The trial court picking up a single
sentence of P.W.-1 that there is no
chabutara in front of his house was of the
opinion that the place of incident is
8 All. State of U.P. Vs. Ram Naresh & & Ors.
373
doubtful, whereas, in contrast all the other
injured witnesses had stated that family
members of Baba @ Digvijay Nath Dube
and Kedar Singh had assembled and were
sitting on the chabutara and on the open
ground beyond the chabutara. Relevant
portion of the trial court judgment is
extracted:

"Not
only
this
there
are
conflicting version about the place of
Panchayat. According to Udai Nath Singh
P.W.-1 there is no chabutara attached to
his house. The prosecution case is that
there was a Chabutara whereupon certain
persons were sitting and waiting for the
accused. Udai Nath Singh has stated in
para 12 of his cross examination that there
is no Chabutara in his house but there is an
open verandah. People had collected in this
open verandah and open land. The
Chabutara
was
introduced
by
complainant's brother Mahendra Singh
P.W.-2. No Chabutara was found by the
I.O. nor the same has been shown any
where in the site plan."

30. P.W.-1 further testified in cross
examination that both the quarrelling
parties were asked to assemble at 9.00
P.M., Baba @ Digvijay Nath Dubey and
his family had arrived, Narendra Nath
Dubey was sent to call the accused. He
returned shortly within one and half
minutes and immediately thereafter the
accused arrived on the spot. P.W.-1 further
stated that he could not disclose the name
of Narendra Nath Dubey in the F.I.R. who
was sent to call the accused due to tension
of the incident. He further stated that the
accused came from the east direction and
when the accused arrived, he along with his
wife Shanti Devi, his younger brothers
Surendra, Rajendra and Ramnath Dubey
were sitting on the chabutara. The accused
were 2-3 steps away from the chabutara
and stood at north east corner and exhorted
that Kedar Singh in connivance with the
family of Baba @ Digvijay Nath Dubey
wants to show the accused down, to
pressurize them and to falsely implicate
them. Thereafter, Yadurai fired five gun
shots facing west-south corner. He further
stated that Yadurai fired the shots from the
same spot standing. Thereafter, P.W.-1
reiterated that Harishankar caused assault
with lathi upon Mahendra. He further
deposed that after the gun shots were fired,
thereafter, assault was made by lathi and
gadasa upon the injured.

31. P.W.-2 Mahendra Singh, the
injured witness, reiterated the prosecution
version stating that some of the family
members were sitting on the chabutara at
the door of P.W.-1 while the rest on the
ground beyond the chabutara. He further
stated that the assailants are known, they
were armed with gun, lathi and gadasa.
Upon exhortation to eliminate the family of
Kedar Singh, five shots was fired by
Yadurai; Harishankar assaulted with lathi
on his head and the other accused hurled
gadasa to cause injury, but no injury was
caused. He categorically stated that Baba
@ Digvijay Nath Dubey and his family
were sitting on the chabutara, whereas, his
family was sitting on the ground beneath of
chabutara. He further stated that the
accused fired from a distance of 2-4 steps
away from western and southern corner
from the chabutara. Yadurai was 3-4 steps
away from chabutara in front of the house
of Uday Nath Singh (P.W.-1).

32. P.W.-3 Digvijay Nath Dubey @
Baba, reiterated the prosecution version
and specifically assigned the role to the
accused of having caused injury by firing,
lathi and hurling gadasa. He stated that the
374 INDIAN LAW REPORTS ALLAHABAD SERIES
direction from where the accused came
(north and east) and the firing was made
from a distance of 3-4 steps away from the
chabutara.

33. P.W.-4 Nirmala, daughter-in-law
of the deceased, stated that she is a teacher
of primary school. She reiterated the
prosecution version and further stated that
at the door of the P.W.-1 both families
assembled. The door site was lit by a bulb
and street light at the road crossing. It was
moonlit night. In cross examination, she
stated that Yadurai facing north and east
direction was firing from a distance 3-4
steps away from the chabutara.

34. P.W.-6 Dr. T.B. Rai examined
injured Kedar Singh (deceased), Smt.
Nirmala Singh ( P.W.-4) and Indrawati,
seven gun shot injuries, blackening and
charring is noted; Smt. Pramila suffered
two gun shot injuries, blackening and
charring;
Mahendra
Singh
(P.W.-2)
suffered gun shot injury, blackening and
charring; lacerated wound 4 x 5 cm. scalp
deep on the back of the head.

35. P.W.-7 Shiv Shankar Tripathi,
Sub
Inspector/Investigating
Officer
deposed that the complainant (P.W.-1) and
his younger brother injured Mahendra
Singh (P.W.-2) came to the Thana to lodge
report; injured was sent to the hospital; on
the
subsequent
day
i.e.
09.04.1984
statement
of
Mahendra
Singh
was
recorded, blood smeared soil and plain soil
was collected from the spot; two empty
cartridges was recovered from the spot; he
prepared panchayatnama and the site plan
on the pointing of P.W.-1 and Mahendra
Singh P.W.- 2. He further, deposed that he
had
not
shown
the
place
of
panchayat/chabutara in the site plan, but
had shown the place from where the gun
shots was fired, which is marked "Ka" and
the distance ''X' is three steps away;
deceased was shot at the spot marked ''X'.
In cross examination, he stated that
chabutara is in front of the house of P.W.-1
extending east to the house of Mukhram;
house of P.W.-1 was shown in the site plan.
Blood was found three steps away from the
tea shop corner of Mukhram; he further
stated that pellet mark was seen on the wall
of the house of P.W.-1; blood was collected
from spot "X". On specific query, the
witness stated that ''X' is 5-6 steps away
from the house of P.W.-1; he further stated
that the gun shot was fired from three steps
towards the east of ''X'. He further stated
that there was sufficient light at the door of
P.W.-1, and there was street light.

36. P.W.-8 Dr. A.K. Kochar, Medical
officer, conducted the post mortem on the
body of the deceased on 09.04.1984, at
3.00 P.M. In his opinion, the deceased died
on 08.04.1984; deceased was healthy.

Grounds of acquittal:

37. In acquitting the accused, trial
court in the impugned judgment, inter alia,
recorded: (i) motive in the case is not
proved; (ii) theory of panchayat is doubtful:
(iii) theory of light at the place of
occurrence is highly doubtful; (iv) there is
inconsistent statement on the manner of the
incident and none of the witnesses could
see the incident ; (v) there is no
independent
witness
except
family
members; (vi) the prosecution story is not
correct.

38. The relevant portion of the
judgment and order is extracted:

"Thus in this case the motive, the
place of occurrence is not proved and the
8 All. State of U.P. Vs. Ram Naresh & & Ors.
375
manner in which the incident is said to
have taken place is also highly doubtful."

Findings and analysis:

39. The learned trial court reached a
finding that it is a case of no motive as
against the accused Yadurai and Hari
Shankar who joined hands with the accused
to commit the offence. The trial court
relying upon Ex. Ka-3, Ka-4 and Ka-5
noted that there was a quarrel between Ram
Naresh, his sons and Baba @ Digvijay
Nath Dubey and proceedings under section
107/117 Cr.P.C. was initiated, but, P.W.-1
categorically stated in his testimony that
this quarrel had taken place with all the
accused
persons.
Further,
P.W.-3
suppressed the fact about proceedings
under section 107 Cr.P.C. Ex Ka-5 shows
that P.W.-3 Digvijay Nath Dubey @ Baba
and others appeared in the court pursuant to
proceedings under section 107 Cr.P.C.
Meaning thereby, there was some quarrel
between Ram Naresh, his sons and
Digvijay Nath Dubey @ Baba, proceedings
under
section
107/117
Cr.P.C.
was
initiated. The relevant portion of the trial
court judgment is extracted:

"There is no evidence regarding
any such quarrel on the occasion of Holi.
No such witness has been examined. Thus
apparently there can be no motive for
accused Yadurai and Hari Shanker to join
hands with accused. There is nothing on
record to show that there was any privity
between Yadurai and other accused. Udai
Nath Singh P.W.1 has stated that the
quarrel of Holi had taken place but he did
not know about any proceedings u/s 107
Cr.P.C. He has categorically stated that
this quarrel had not taken place with the
family of only Ram Naresh but with all the
accused persons. In other words, he has
repeated the F.I.R. version. Mahendra
Singh
P.W.-2
the
real
brother
of
complainant has also stated the role of
Yadurai and hari Shanker in the quarrel
which took place on Holi. Digvijay Nath
Dubey P.W.-3 has also suppressed the fact
about the proceedings u/s 107 Cr.P.C.
where as the copy of notice Ex. Kha 5
clearly shows that Digvijay Nath Dubey
and others had appeared in the court in
pursuance of notice in the proceedings u/s
107 Cr.P.C. The copy of reports ex. Kha-3
and Kha 4 and Ex. Kha 5 clearly shows
that there was some quarrel between Ram
Naresh, his sons and Digvijay Nath Dubey
and the proceedings u/s 107/117 Cr.P.C.
was initiated. The defence papers referred
to above, clearly shows that accused
Yadurai and Hari Shanker had nothing to
do with the quarrel between Digvijay Nath
Dubey and family of Ram Naresh nor the
family of deceased had to do anything. If
the version given by the complainant in his
F.I.R. and in his statement about the
involvement of accused Yadurai and Hari
Shanker then their names must have been
in the first information report. Thus there
was absolutely no motive for accused Hari
Shanker and Yadurai to commit the offence.

It is admitted to Digvijay Nath
Dubey that there was no altercation or
enmity with accused Yadurai except the
Holi incident which is not proved. Thus the
motive in the case is not proved."

 40. It is settled principle that F.I.R. is
not an encyclopedia and neither the
complainant is required to report the details
of the back ground of the crime. Merely not
stating or suppressing the involvement of
accused Yadurai and Hari Shankar during
Holi quarrel that would not be fatal to the
prosecution case. All the witnesses of fact,
including, injured witnesses have clearly
stated that the quarrel between the parties
376 INDIAN LAW REPORTS ALLAHABAD SERIES
had taken place 20-25 days earlier on the
festival of Holi and panchayat was
convened by the deceased at his door to
settle the dispute. It is then the incident had
occurred. The testimony supports the FIR
version of the prosecution case. Further,
motive is not relevant to disbelieve the
prosecution version on the face of sterling
and truthful eye witness account. The
finding reached by the trial court that the
motive of the case is not proved is perse
perverse and not borne from the evidence.
The exhortation by the accused to eliminate
the family of the deceased for siding with
Baba and to falsely implicate the accused
was the motive of the crime. Motive of
committing the offence in any case is not
relevant in the backdrop of the eye witness
account.

41. The Supreme Court in Tarsem
Kumar v. Delhi Administration held as
follows:

"8. Normally, there is a motive
behind every criminal act and that is why
investigating agency as well as the court
while examining the complicity of an
accused try to ascertain as to what was the
motive on the part of the accused to commit
the crime in question. It has been
repeatedly pointed out by this Court that
where the case of the prosecution has
been proved beyond all reasonable doubts
on basis of the materials produced before
the court, the motive loses its importance.
But in a case which is based on
circumstantial
evidence,
motive
for
committing the crime on the part of the
accused assumes greater importance. Of
course, if each of the circumstances proved
on behalf of the prosecution is accepted by
the court for purpose of recording a finding
that it was the accused who committed the
crime in question, even in absence of proof
of a motive for commission of such a crime,
the accused can be convicted. But the
investigating agency as well as the court
should ascertain as far as possible as to
what was the immediate impelling motive
on the part of the accused which led him to
commit the crime in question. ......."

42. The trial court doubted the theory
of panchayat merely for the reason that the
I.O. has not shown the place, in the site
plan, where the panchayat has taken place.
Further,
trial
court
relying
on
the
prosecution version of the F.I.R., was of the
opinion that there was no mention of the
light in the report, the theory of light was
setup for the first time when the witnesses
were examined also makes the place and
site of panchayat doubtful. The name of the
person sent to call the accused to attend the
panchayat was not disclosed in the FIR by
P.W.-1. Further, the trial court noted that
there is conflicting version about the exact
place of panchayat. Reliance was placed on
the contradictory statement of P.W.-1 and
the
injured
witness,
brother
of
the
complainant P.W.-2 in that regard. The
relevant portion of the finding is extracted:

"Besides this fact that motive in
the case is not proved, the theory of
Panchayat is also doubtful. The I.O. has
not shown any place in the site plan which
show that this Panchayat has taken place.
The oral testimony on this point also does
not inspire confidence. Complainant Udai
Nath Singh P.W. 1 has mentioned in the
F.I.R. that he has called the Panchayat.
When he entered in the witness box, he has
stated that his father had called the
Panchayat. Digvijay Nath Dubey who was
alleged to be one of the parties, whose
matter was to be settled in the Panchayat,
has stated that the Panchayat was called by
his younger brother Narendra Nath and
8 All. State of U.P. Vs. Ram Naresh & & Ors.
377
deceased Kedar Singh. Udai Nath Singh
P.W. 1 has stated that his family members
and the family members of Digvijay Nath
Dubey were sitting from one hour prior to
the incident for the said Panchayat.
Mahendra
Singh
the
brother
of
complainant has stated that they had
assembled just 2 or 3 minutes prior to the
incident. The two contradictory version
cannot be reconciled.