# Sukhey & Ors v. State Of U.P

- **Citation:** (2016) 3 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-01
- **Bench:** Shashi Kant Gupta, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukhey-ors-v-state-of-u-p-43487
- **Pages:** 20

## Headnote

against the judgment and order dated 04.02.1983 passed by the III Additional Sessions Judge, Bijnor
in Sessions Trial No. 461 of 1980, whereby the accused appellants were convicted under Sections 147
and 302 IPC and sentenced to undergo three months' rigorous imprisonment and imprisonment for life
with fine. During pendency of the appeal, appellant nos. 3, 4 and 5 namely Shesh Ram, Misri and
Nihal died and the appeal stood abated against them vide order dated 30.09.2015. The appeal
survived only in respect of remaining appellants Sukhey and Bhagwat.

Procedure

A written FIR was lodged by Tulsi Singh on 30.09.1979 at 12:15 PM at Police Station Kotwali City,
Bijnor. After investigation, inquest was conducted, post-mortem was performed, site plan prepared
and charge-sheet was submitted under Sections 302 and 364 IPC. Charges were framed under
Sections 147 and 302/149 IPC. The prosecution examined nine witnesses including medical and
investigating officers. The defence produced documents but no oral witness. The trial concluded in
conviction which led to filing of the present appeal.

Penal Sections
570 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 147 IPC
Section 302 IPC
Section 302/149 IPC
Section 364 IPC (during investigation stage)

Case Law (Bullet Format)

Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172
Kanhaiya Lal v. State of Rajasthan, (2014) 2 SCC (Cri) 413
Ramesh Bhai v. State of Rajasthan, (2009) 12 SCC 603
Padala Veera Reddy v. State of A.P., AIR 1990 SC 79
Rishipal v. State of Uttarakhand, 2013 (81) ACC 442
State of Goa v. Sanjay Thakran, (2007) 3 SCC 755
Bodh Raj v. State of J&K, (2002) 8 SCC 45

Head Notes

The present criminal appeal arises out of conviction based solely on circumstantial evidence of last
seen. The prosecution alleged that the deceased was last seen in the company of the accused prior to
his death. The Court examined the reliability of last seen theory, contradictions in witness testimonies,
absence of motive against surviving appellants, absence of recovery of weapon and delay in FIR. It
was held that conviction cannot be sustained on weak and unreliable circumstantial evidence.

Facts

Hari Singh went to his field on 29.09.1979 and did not return.
His dead body was found next morning in the field of Shankar Singh.
There was prior enmity over drainage (parnalas), chur and land boundary.
FIR was lodged by Tulsi Singh.
Post-mortem revealed multiple gunshot injuries and abrasions.
Prosecution relied mainly on last seen theory through witnesses Surja, Lallu and Shyama.

Contentions

For the Appellants:

FIR was delayed and result of deliberation.
No motive attributed to surviving appellants Sukhey and Bhagwat.
Last seen witnesses were interested and contradictory.
Medical evidence contradicted eyewitness version.
No recovery of weapon.
Case is based on weak circumstantial evidence.

For the State:

Accused had strong motive due to land dispute.
Three witnesses proved last seen together.
Chain of circumstances was complete.
Minor contradictions do not demolish prosecution case.

Analysis

The deceased had serious enmity with accused, making voluntary companionship improbable.
3 All. Sukhey & Ors. Vs State OF U.P.
571
Witness Lallu heard only one gunshot whereas post-mortem showed two entry wounds.
Contradictions found between statements of Swarup, Surja, Tulsi, Lallu and Shyama.
Witnesses failed to disclose last seen fact at the first opportunity.
Timing of meetings and disclosures varied materially.
No weapon was recovered.
No motive proved against surviving appellants.
The chain of circumstances was incomplete and unreliable.
Benefit of doubt clearly arose in favour of the accused.

Final Conclusion

The prosecution failed to establish guilt of the appellants beyond reasonable doubt. The alleged last
seen evidence was unreliable, contradictory and unsupported by medical or independent
corroboration. No motive

## Text

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3 All. Sukhey & Ors. Vs State OF U.P.
569
warranting interference by this Court. The conviction and sentence of the appellant as
awarded by the learned trial judge is hereby maintained and upheld.

Resultantly this appeal fails and is hereby dismissed. The appellant who is on bail
be taken into custody forthwith to serve out the sentence as awarded by the court below.
Office is directed to send back the record to the trial court.

20. Judgment be certified and placed on record.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Criminal Appeal No. - 295 Of 1983

Sukhey & Ors ....Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
Shri D.N. Wali, Shri Gaurav Kakkar, Shri Vinod Tripathi, Shri Virendra Singh

Counsel for the Respondent:
Govt. Advocate

Proceedings

This Criminal Appeal was preferred by the appellants Sukhey, Bhagwat, Shesh Ram, Misri and Nihal
against the judgment and order dated 04.02.1983 passed by the III Additional Sessions Judge, Bijnor
in Sessions Trial No. 461 of 1980, whereby the accused appellants were convicted under Sections 147
and 302 IPC and sentenced to undergo three months' rigorous imprisonment and imprisonment for life
with fine. During pendency of the appeal, appellant nos. 3, 4 and 5 namely Shesh Ram, Misri and
Nihal died and the appeal stood abated against them vide order dated 30.09.2015. The appeal
survived only in respect of remaining appellants Sukhey and Bhagwat.

Procedure

A written FIR was lodged by Tulsi Singh on 30.09.1979 at 12:15 PM at Police Station Kotwali City,
Bijnor. After investigation, inquest was conducted, post-mortem was performed, site plan prepared
and charge-sheet was submitted under Sections 302 and 364 IPC. Charges were framed under
Sections 147 and 302/149 IPC. The prosecution examined nine witnesses including medical and
investigating officers. The defence produced documents but no oral witness. The trial concluded in
conviction which led to filing of the present appeal.

Penal Sections
570 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 147 IPC
Section 302 IPC
Section 302/149 IPC
Section 364 IPC (during investigation stage)

Case Law (Bullet Format)

Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172
Kanhaiya Lal v. State of Rajasthan, (2014) 2 SCC (Cri) 413
Ramesh Bhai v. State of Rajasthan, (2009) 12 SCC 603
Padala Veera Reddy v. State of A.P., AIR 1990 SC 79
Rishipal v. State of Uttarakhand, 2013 (81) ACC 442
State of Goa v. Sanjay Thakran, (2007) 3 SCC 755
Bodh Raj v. State of J&K, (2002) 8 SCC 45

Head Notes

The present criminal appeal arises out of conviction based solely on circumstantial evidence of last
seen. The prosecution alleged that the deceased was last seen in the company of the accused prior to
his death. The Court examined the reliability of last seen theory, contradictions in witness testimonies,
absence of motive against surviving appellants, absence of recovery of weapon and delay in FIR. It
was held that conviction cannot be sustained on weak and unreliable circumstantial evidence.

Facts

Hari Singh went to his field on 29.09.1979 and did not return.
His dead body was found next morning in the field of Shankar Singh.
There was prior enmity over drainage (parnalas), chur and land boundary.
FIR was lodged by Tulsi Singh.
Post-mortem revealed multiple gunshot injuries and abrasions.
Prosecution relied mainly on last seen theory through witnesses Surja, Lallu and Shyama.

Contentions

For the Appellants:

FIR was delayed and result of deliberation.
No motive attributed to surviving appellants Sukhey and Bhagwat.
Last seen witnesses were interested and contradictory.
Medical evidence contradicted eyewitness version.
No recovery of weapon.
Case is based on weak circumstantial evidence.

For the State:

Accused had strong motive due to land dispute.
Three witnesses proved last seen together.
Chain of circumstances was complete.
Minor contradictions do not demolish prosecution case.

Analysis

The deceased had serious enmity with accused, making voluntary companionship improbable.
3 All. Sukhey & Ors. Vs State OF U.P.
571
Witness Lallu heard only one gunshot whereas post-mortem showed two entry wounds.
Contradictions found between statements of Swarup, Surja, Tulsi, Lallu and Shyama.
Witnesses failed to disclose last seen fact at the first opportunity.
Timing of meetings and disclosures varied materially.
No weapon was recovered.
No motive proved against surviving appellants.
The chain of circumstances was incomplete and unreliable.
Benefit of doubt clearly arose in favour of the accused.

Final Conclusion

The prosecution failed to establish guilt of the appellants beyond reasonable doubt. The alleged last
seen evidence was unreliable, contradictory and unsupported by medical or independent
corroboration. No motive or recovery connected the surviving appellants with the crime. The
impugned judgment of conviction was found perverse and based on misreading of evidence.

Accordingly, the appeal was allowed, the judgment dated 04.02.1983 was set aside, and
appellants Sukhey and Bhagwat were acquitted of all charges. Their bail bonds were
cancelled and sureties discharged.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This Criminal Appeal has been preferred by the appellants namely No. (1) Sukhey,
(2) Bhagwat, (3) Sheshram, (4)Misri and (5) Nihal against the judgment and order dated
4.2.1983 passed by III Additional Sessions Judge, Bijnor in S. T. No. 461 of 1980, State Vs.
Sukhey and others convicting the accused appellants under Sections 147 and 302 of the
Indian Penal Code (in short "the IPC"), Police Station Kotwali City Bijnor, District Bijnor
and sentencing them to undergo three months' R.I. and rigorous imprisonment for life and
to pay fine of Rs. 1000/- each.

2. During the pendency of the present appeal, the accused appellants no. 3, 4 and 5
namely Sheeshram, Misri and Nihal died and the present appeal stood dismissed by this
Court as abated against them, vide order dated 30.9.2015, by this court. Thus, the present
appeal is being taken up for consideration on behalf of the remaining appellants
namely Sukhey and Bhagwat only.

3. The prosecution story, in nutshell, is as follows:-

4. As per prosecution story, about 3-4 months prior to the alleged incident an
altercation took place between the accused Sukhey, Bhagwat, Seshram, Misri and Nihal on
one hand and Hari Singh on the other hand over the opening of Paranalas (water drainage)
towards the house of Hari Singh. On 29.9.79 at about 8-8.30 P.M. Hari Singh while
proceeding towards his field to spread soil told his wife Smt. Kamla that he would be
returning soon. When Hari Singh did not return home till mid-night, his wife Smt. Kamla
went out in search of him to the field but was unable to find him. Next morning, when Tulsi
Singh (P.W.5) and others came to know that Hari Singh was missing, they also tried to
search for him, and at about 11.00 AM. one Gama son of Sukhan Singh informed Swarup
Singh that he had seen the dead body of Hari Singh in the field of Shanker Singh son of
572 INDIAN LAW REPORTS ALLAHABAD SERIES
Jhabba resident of Mohalla Kazipara. Surja, Shyama and Lallu also informed Tulsi Singh
that they had seen the accused persons Sukhey, Bhagwat, Sheashram, Nihal and Mishri near
Eedgah taking the deceased Hari Singh along with them towards the jungle.

5. A written report of this incident was lodged by Tulsi Singh (informant ) on 30.09.79
at 12.15 noon at P.S. Kotwali City Bijnor. Thereafter during investigation an inquest report
was prepared by the Investigating officer and the dead body was sent through police
constable to the mortuary where the post mortem examination of the dead body was done on
1.10.79 by Dr. J.P. Srivastava who found gun shot wounds, abrasion etc. on the body of the
deceased. During the investigation the I.O. found one pair of Chappal and lathi belonging
to the deceased lying near the dead body. After necessary investigation the police submitted
charge sheet under sections 302, 364 I.P.C against the accused persons.

6. The court framed the charges under sections 147 and 302/149 I.P.C against all the
five accused named above to which each one of them pleaded not guilty and claimed to be
tried.

7. The prosecution examined Dr. J.P. Srivastava P.W.1 Swarup Singh P.W.2, Lallu
P.W.3, Surja Singh P.W.4, Tulsi Singh P.W.5, Smt. Kamla P.W.6, Shyama P.W.7, S.I. Sri
Harish Chand Saxena P.W.8, constable Duli Chand P.W.9 . The accused did not examine
any witness in defence but filed six papers Exts. Kha-1 to 6 in defence.

8. Smt. Kamla P.W.6 wife of deceased Hari Singh has deposed that about three and
half years back at night after dinner her husband went out to the field saying that he would
return soon. She further stated that 10-15 minutes later Mishri Singh came looking for him
whom she informed that Hari Singh had gone to the field. Mishri Singh went away, she
closed the door and went off to sleep. At about 11-11.50 P.M. she woke up and realising that
her husband was not back home, she went to the field and also to the well to search for him
but found nowhere, so the next morning she informed her mother in law and others about
missing of her husband . She further stated that about two months prior to this incident the
accused Nihal Singh, in spite of Hari Singh's objection, had opened three parnalas from his
house into his land. She also further stated that the accused Mishri had erected a chur on the
rasta towards the house of Hari Singh thereby, narrowed the width of the passage. On
being objected to it by Hari Singh, a Panchayat was convened about 10-20 days before the
incident and it was agreed that Nihal Singh would divert the water of his parnalas and
Mishri Singh would remove his Chur from that place but they failed to keep their promise.
According to her, the field of the accused Sheeshram was adjoining the field of Hari Singh
and a Bari tree also existed in the field of Hari Singh. Sheesram extended the boundary of
his field and encroached that part of the field of Hari Singh on which the Bari tree was
standing. She further stated that a day prior to the night of the incident, her husband
restored/re-establish the boundary line of his field which was altered/dismantled by
Sheeshram as a result of which, the Bari tree again came into his possession. Furthermore,
Hari Singh was harassed and troubled so much by Sheeshram that he was compelled to sell
one of his plot (which was situated near the field of Sheeshram) to Sheeshram. She further
stated that about two months prior to this incident when her husband was making Thalas for
3 All. Sukhey & Ors. Vs State OF U.P.
573
sowing Lauki seeds, the accused Sheesram abused Hari Singh, leading to a quarrel during
which Sheesram threatened him with dire consequences. Earlier also he had tried to stop
the labourers from working in the field of Hari Singh.

9. Surja P.W.4 has deposed that more than two years back at about 9.00 P.M. when
there was moon light he saw the accused Sukhey, Sheesram, Bhagwat, Mishri and Nihal
Singh sitting with Hari Singh(deceased) and the next morning he came to know that Hari
Singh had been murdered. Lallu Singh P.W.3 has deposed that at the night of the incident at
about 10 PM he heard sounds of gun shots from the field of Shankar Singh. After hearing
the gunshot fire, he got scared and hid himself in the field for around an hour and thereafter
he proceeded towards his house and on the way met the accused persons at the Tiraha and
clearly identified them in the moon light. Next morning, he came to know that the dead
body of Hari Singh was lying in the field of Shanker Singh so he informed Tulsi Singh.

10. Shyama P.W.7 has stated that at the night of incident at about 7.00 P.M. he went to
the house of one Jeeju in village Kherki and while returning saw the deceased in the
company of the above named accused Sukhey, Sheesram, Bhagwat, Mishri and Nihal Singh
at about 9.00 P.M. He could identify them in the moon light. The next morning when he
came to know about Hari Singh's murder, he informed Tulsi about what he saw on the
previous night.

11. Swarup Singh P.W.2 has stated that Hari Singh had to sell one of his plot to
Sheeshram under pressure from Sheeshram. According to him, Sheeshram dismantled the
Mend of the plot of Hari singh and extended his boundary up to the Bari tree which existed
in the field of Hari Singh. He also stated that about 8-10 days prior to this incident an
altercation had taken place between the accused Mishri and Hari Singh because Mishri had
made a Chur on the road leading to the house of Hari Singh and that the accused Nihal
Singh had also opened parnalas from his house into the land of Hari Singh in spite of
objection to it. A Panchayat was also called to settle the dispute, wherein Nihal Singh
agreed to divert the course of parnalas and Mishri too agreed to remove the said Chur but
none of them kept their promise. The next morning of the incident, he met Gama, who told
him about the dead body of Hari Singh lying in the field of Shankar Singh. He thereafter
informed Tulsi Singh about it.

12. Tulsi Singh P.W. 5, uncle of deceased Hari Singh, also stated the alleged enmity
between the accused Nihal, Mishri and others on one hand and Hari Singh on the other due
to the opening of parnalas erecting chur in Hari Singh's land. According to him, he was
informed by P.W. 2 Swaroop on 30.9.1979 about the disappearance of deceased since the
previous night and later on in between 10.45 AM and 11.30 A.M. Swarup Singh informed
him that Gama told him that the dead body of Hari Singh is lying in the field of Shankar
Singh and Chappal, lathi and a Khoka cartridge were also found near the dead body
thereafter he met Lallu, Surja and Khubbi on the way to the police station who informed him
that on the previous night they had seen Hari Singh going with the accused. Thereafter, he
got a report Ext. Ka-2 of this incident written from Jishan and lodged the same at the police
station.
574 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Constable Duli Chand P.W.9 has filed his affidavit stating therein that the dead
body of Hari Singh sealed in a cloth was sent through him for post mortem examination.
S.I. Sri Harish Chand Saxena P.W.8, who was posted as Sub Inspector at P.S. Kotwali City
Bijnor on 30.9.79, has stated that the Chick report Ext. ka 3 of this incident is in the hand
writing of H.C. Sompal and that Ext. Ka-4 is a true copy of the G.D. Entry prepared by that
very constable. He further stated that during the course of investigation of the case, he
recorded the statement of the witnesses, inspected the dead body and prepared the inquest
report Ext. Ka 5 in presence of the witnesses and prepared the necessary papers Ext. Ka 7,
Ka-8, Ka-9 and Ka-10 and sealed the dead body and sent it through constable for post
mortem examination. He has further stated that he took the sample of blood stained and
simple soil from the place of the recovery of dead body and prepared memo Ext. Ka-11 and
then took the Khokha of cartridges, lathi and chappal in his custody from the spot and
prepared the memo Ext.Ka 12 and 13 for the same in presence of the witnesses. He also
inspected the place of incident and prepared the site plan Ext. Ka 14 and thereafter arrested
the accused Nihal and Sheesram on 5.10.79 and 6.10.79 respectively and after completing
the investigation, submitted charge sheet Ext. Ka 15 against all the accused .

14. Dr. J.P. Srivastava P.W.1, who was posted as a Medical Officer at District
Hospital, Bijnor on 1.10.79 on that day, stated that he conducted the post mortem on the
dead body of the deceased Hari Singh brought by constable Duli Chand and another in a
sealed position and found the following ante mortem injuries on the body of the deceased.

(1) One gun shot wound right supra 1 1⁄4 cm lateral chest cavity deep wound of
entry.

(2) One gun shot wound right side neck 1-1/2 cm in diameter wound exit soft
tissue deep posterior side near scapula.

(3) Two gun shots wounds front of chest 1 1⁄2 cm lateral deep each 2 cm apart
wound of entry.

(4) Abraded contusion 6 cm x 6 cm x left hip.

(5) Abraded contusion 4 cm x 4 cm right leg back.

(6) Abraded contusion 3cm x 2 cm right hip.

(7) Abraded contusion 4 cm. X 3 cm. left calf .

15. On the internal examination of the dead body he found that both the lungs were
lacerated. According to him, the deceased died on account of shock and haemorrhage on
account of above injuries. The post mortem report is Ext. Ka-1. Dr. J.P. Srivastava has
further stated that he took out two pallets each weighing 135 grams and sent the same to S.P.
3 All. Sukhey & Ors. Vs State OF U.P.
575
Bijnor through a constable. In his opinion the injuries could have been caused by gun
shot fire in the night between 29th and 30th day of September 1979 at about 1.00 P.M.

16. Mr. Gaurav Kakkar, learned counsel for the appellants submitted that the F.I.R.
was lodged after considerable lapse of time only after the recovery of the dead body and no
missing report was lodged even though the police station was just 2 Km. away. He further
submitted that the F.I.R. was lodged after deliberation, consultation and afterthought and
this fact stands corroborated by the statement of P.W. 2, Swaroop Singh.

17. It was further submitted that no motive has been assigned to the surviving
appellants for the commission of the offence and as such the involvement of the appellants
in the present case appears to be far- fetched and this fact also stands corroborated by the
F.I.R. The specific motive for the commission of the alleged offence has been assigned to
other accused namely Nihal, Misri and Seeshram who have already died and the appeal
against them has already been dismissed as abated. He further submits that the version given
in the F.I.R. that the witnesses namely Sarju , Shyama and Lallu informed him about Hari
Singh ( deceased) being taken towards the jungle by the accused persons Sukhey,
Bhagwat, Sheesram Nihal and Misri stands completely belied and contradicted by the
statements of P.W. 3, P.W. 4 and P.W. 7.

18. It was further submitted that the statement of Lallu (P.W. 3) is not corroborated by
the post mortem report because , as per his statement, he had only heard the sound of a
single gun shot whereas the post mortem report shows that there were atleast two gun shot
wounds of entry on the body of the deceased. P.W. 3 is also stated to have kept himself
under cover for approximately more than an hour after hearing the gunshot and thereafter,
when he was returning back home, at Tiraha he saw the accused persons. This appears to
be highly improbable as there was no occasion for the accused persons to remain in the
near vicinity of the place of occurrence for an hour after committing such heinous offence.
He further submits that P.W. 2, Swarup, P.W. 3 Lallu, P.W. 4, Surja, P.W. 5 Tulsi , P.W. 6
Smt. Kamla and P.W. 7 Shyama are all interested witnesses either on account of blood
relations, family ties or some previous grudge. He further submits that the statements of
P.W. 2(Swarup) and P.W. 4 (Surja) are contradictory to each other.

19. It was further submitted that, admittedly, as per the testimony of the prosecution
witnesses, relations between Hari Singh and accused persons were absolutely strained and
inimical and in such a situation, it was quite unnatural and impossible that the deceased
would have accompanied the accused persons and that too at odd hours of the night.

20. It was further submitted that except the only evidence of the so called last seen,
there is nothing on record to connect the appellants with the commission of the alleged
offence. He further submits that in the present case the evidence of last seen given by the
witnesses is not trustworthy as the witnesses are interested persons and there are material
contradictions and discrepancies in the statements of the witnesses which belies the so called
evidence of the last seen. He further submits that the circumstances sought to be proved
against the accused have to be established beyond reasonable doubt and such circumstances
576 INDIAN LAW REPORTS ALLAHABAD SERIES
must form a complete chain leaving no option but to hold that the accused is guilty of the
offence with which he is charged with but it has not been done in the present case.

21. Per contra, Mr. Rajeev Gupta, learned A.G.A. for the State, supported the
impugned judgement and order of conviction and submitted that as per the evidence
available on record the accused persons were on inimical terms with the deceased and they
had strong motive to commit the murder of the deceased. He further submitted that there are
three witnesses namely Lallu Singh ( P.W. 3), Surja Singh( P.W. 4) and Shyama ( P.W. 7)
who have very categorically stated that they had seen the deceased in the company of the
accused persons shortly before commission of the present offence and there is a close
proximity with the factum of place and time of death of the deceased and the chain of
circumstances is complete. He further submitted that the factum of seeing the deceased in
the company of the accused persons was disclosed by three witnesses namely Surja, Shyama
and Lallu in the morning of the very next day. He further submits that from perusal of the
material available on record, it is evident that there was reasonable proximity between
time when the deceased was killed and lastly seen alive with the accused persons. He
further submits that so far as the discrepancies in the depositions of the witnesses is
concerned, normal discrepancies are bound to occur in the depositions of such rustic
witnesses due to normal errors of observation viz. errors of memory due to lapse of time or
due to mental disposition, such as shock and horror at the time of occurrence and such minor
contradictions, as pointed out by the learned counsel for the appellants, do not affect the
core of the prosecution case and , therefore, the same should not be made a ground on which
the evidence can be rejected in its entirety.

22. It was further submitted that in the cases where the accused was last seen with the
deceased just before the incident, it becomes the duty of the accused to explain the
circumstances under which the death of the victim occurred.

23. Heard Mr. Gaurav Kakkar, learned counsel for the appellants and Mr. Rajeev
Gupta, learned A.G.A. for the State and perused the record.

24. According to the F.I.R, the deceased ( Hari Singh) had left his house late in the
evening of 29.9.1979 for agricultural purpose and when he did not return home on the said
night, the next morning, his wife Smt. Kamla ( P.W. 6) informed about it to his relatives but
his whereabouts could not be traced. Later on, at about 11. 00 A.M. one Gama son of
Sukkhan resident of the same village told Swarup Singh (brother of the informant) that the
dead body of the deceased was lying in the field of one Shankar . It was further averred in
the said F.I.R. that three persons namely Surja, Shyama and Lallu , who were residents of
the same mohalla had also told the informant that on the previous night, the deceased was
seen being taken towards the jungle by the accused persons. Admittedly, it is a case of
circumstantial evidence.

25. Perusal of the record shows that, in fact, no specific motive has been attributed to
the surviving accused appellants nos. 1 and 2 namely Sukhey and Bhagwat. The main
allegations have been made against the remaining appellants no. 3, 4 and 5 who were having
3 All. Sukhey & Ors. Vs State OF U.P.
577
dispute with the deceased Hari Singh. Appellant nos. 3, 4 and 5 namely Sheshram , Misri
and Nihal are now no longer alive and their appeals have already been dismissed as abated
against them.

26. The main contention of the learned counsel for the appellants is that if the deceased
had so serious inimical relations and enmity with the accused persons, then by no stretch of
imagination it can be presumed that the deceased Hari Singh would have accompanied
accused persons particularly at odd hours of the night. Further contention of the learned
counsel for the appellants was that the witnesses of last seen were set up by the prosecution
after consultations and deliberations just to work out the case and to fill up the lacuna of the
prosecution case. In fact it was a case of blind murder. After the recovery of dead body of
the deceased from the field of Shankar, the story was concocted against the accused persons
with whom the deceased was having enmity by setting up close relative and interested
persons as the witnesses of the last seen evidence. In this connection, the learned counsel for
the appellants referred to the testimonies of the alleged witnesses of last seen evidence
namely Surja, Shyama and Lallu and stated that the said testimonies are full of
contradictions, improvements and embellishments.

27. In order to ascertain the truthfulness and credibility of the prosecution story, we
have to closely scrutinise the testimonies of the witnesses and all the relevant attending
circumstances to separate falsehood from truth.

28. For the purpose of analysis , it would be profitable to quote the paragraphs 2,3 and
8 of the deposition of P.W. 3, Lalloo Singh, which are as follows:

"2- कर ब 1-1/2 र्माह कर्म दो साल की बात है र्मैं अपने खेत पर चक्कर लगाने िाया करता था,
उस रोि भी गया हुआ था। र्मैने एक फायर आिाि रात के 10 बिे के कर ब सुनी। ये आिाि फायर की शींकर
के खेत की तरफ से आई थी। र्मैं कुछ देर बाद देखभाल कर अपने घर की तरफ को चला। र्मुझे पााँचों
र्मुलल्िर्मान हाल्िर अदालत चक्कर पर र्र्मले। र्मैने इनको चााँद की रोशनी र्में पहचान र्लया। र्मैं भी इनके पीछे
पीछे चला और कफर र्मैं अपने घर चला गया।

3- र्मैं अपने घर से अपने खेत पर रात के 8, 8-1/2 बिे चला था। र्मैने र्मेढ़ पर बोररींग के पास
शीशरार्म भगित, हर , र्र्मश्री, र्नहाल सुक्खे को बैिे देखा। सुबह पता चला आि बिे कक हर को र्मार कदया है,
और लाश शींकर के खेत र्में पड है। र्मैने ये बात तुलशी को बता द थी। "

8- र्मैने एक फायर की आिाि सुनी थी। दो फायर की आिाि नह सुनी थी। र्मैंने दरोगा िी को दो
फायर की आिाि सुनना बता कदया होगा। र्मैं फायर की आिाि सुनकर डर गया और िहााँ अपने खेत पर
छुपकर बैि गया। कफर र्मैं कर ब एक घन्टे बाद अपने खेत से अपने घर को चला था। "

29. Evidence of Lallu Singh ( P.W. 3) as to witnessing the deceased in the company of
the accused before the alleged incident on the fateful night appears to be doubtful. In this
regard it is noteworthy that the said witness in his testimony has specifically stated that in
between 8.00 P.M. and 8.30 P.M. on 29.9.79 when he was proceeding towards his field, he
578 INDIAN LAW REPORTS ALLAHABAD SERIES
saw that the accused persons sitting and chatting on the mend near the boring. Thereafter, at
around 10.00 P.M. he heard the sound of a single gunshot fire from the field of Shanker. In
the cross examination has further stated that after hearing the gunshot fire, he got scared and
he hid himself in the field for around an hour and thereafter while he was proceeding
towards his home, he again met the accused persons on the way to whom he recognised in
the moon light. The aforesaid testimony of P.W. 3 does not inspire our confidence. First of
all, it is most improbable that the deceased, who was having so serious inimical relations
and enmity with the accused persons, would have remained in their company for more than
an hour as the P.W. 3 himself had stated that between 8- 8.30 P.M. he had seen the deceased
sitting and chatting with each other on the Mend near a boring and thereafter at around 10
P.M. he heard the sound of a single gun shot fire , meaning thereby, the deceased was killed
after nearly one and half hours. Secondly, the accused persons, after committing such
heinous offence, would not have stayed in close vicinity of the place of the incident for so
long ( for more than an hour after committing the alleged offence), as such, the testimony of
this witness does not appear to be trustworthy as no prudent person will believe the story as
projected by the P.W.3. Under these circumstances, we find difficult to place reliance on the
version of P.W. 3, Lallu .

30. Evidence of Lallu (P.W. 3) is also not reliable for the reason that as per his
statement, he had heard the sound of only a single gun shot fire whereas the post mortem
report shows that there were at least two gun shot wounds of entry on the body of the
deceased. As such, oral evidence is not corroborated by the medical evidence.

31. On a careful perusal of record, We also find that testimonies of P.W. 2 (Swarup)
and P.W. 4 ( Surja) are contradictory to each othe. As per the statement of P.W. 2, Swaroop
only P.W.5 Tulsi accompanied him to the place where the dead body of Hari Singh was
found as in para 7 of his testimony he has categorically stated that he met Syama(P.W.7)
near the dead body at 11.00 A.M., had not met before 11.00 A.M. and had also not met P.W.
4 Surja and P.W.3 Lallu, whereas, as per the statement of Surja (P.W.4) he also
accompanied Tulsi and Swaroop while they were proceeding to the place of occurrence to
see the dead body of the deceased and he at that time merely informed them of his having
last seen the deceased in the company of the accused persons sitting on the mend and had
not told him that the accused persons were taking the deceased towards the jungle as
disclosed in the F.I.R. As per the statement of Tulsi ( P.W. 5), he had received the
information of last seen while he was proceeding all alone from the place of incident ( where
the dead body of the deceased was recovered) towards the police station for lodging F.I.R.
Therefore, there is material contradiction in the statements of the witnesses as regards time
and place of their meeting on 30.9.79 which puts a question mark on the reliability of the
prosecution story.

32. For ready reference, the evidence of P.W. 2 at para 7 in this regard is quoted herein
below:

"श्यार्मा र्मुझे 11 बिे लाश पर र्र्मले थे। 11 बिे से पहले नह ीं र्र्मला। सुरिा लजलू भी नह र्र्मले।
र्मुझे नह ीं र्मालूर्म कक हर र्सींह को िींगल की तरफ ले िाते लजलू श्यार्मा, सुरिा ने सुक्खे, शीशरार्म, भगित
3 All. Sukhey & Ors. Vs State OF U.P.
579
र्नहाल ि र्र्मश्री के साथ देखा है। दरोगा िी ने पहले र्मेरा बयान र्लया था कफर लजलू, श्यार्मा और सुरिा का
र्लया था। व्यान देने के बाद र्मुझे पता चला कक इन लोगों ने ले िाते देखा है। कफर कहा कक इन लोगों ने ब्यान
के सर्मय र्मुझ से भी बता कदया था और दरोगा िी से भी बता कदया था। र्मैने दरोगा िी से ये नह कहा कक "
र्मालूर्म हुआ है कक हर र्सींह को िींगल की तरफ ले िाते लजलू, श्यार्मा, सुरिा ने सुक्खे, शीशरार्म, भगित,
र्नहाल र्र्मश्री को साथ देखा है। गिाह को म्यान सुनाया गया। कहा कक र्मैं नह ीं कह सकता कक कैसे र्लख
र्लया। इन तीनों श्यार्मा, सुरिा, लजलू ने र्मुझे बताया था कक इन्होंने हर र्सींह के पााँचो र्मुलल्िर्मान के साथ
िाते देखा है।

33. The aforesaid statement further shows that even though Shyama, one of the alleged
witnesses of last seen, who was allegedly present on the spot (where the dead body was
found) with Tulsi and Swaroop Singh at 11 A.M. on 30.09.79 did not choose to divulge the
fact of last seen of the deceased with the appellants at that point of time. The aforesaid
unnatural conduct of the P.W. 7 Shyama of not disclosing the vital fact at the very first
opportunity also throws a cloud of suspicion in the prosecution story with regard to last seen
evidence.

34. Tulsi Singh, P.W.5 in his testimony before the trial court had deposed that on
30.9.1979 when he was proceeding towards the police station to lodge a report after the
recovery of the dead body, he met Surja,Shyama and Lalloo on the way who told him that
on the previous night at about 10.30 P.M. they had seen deceased Hari Singh near the
Masjid going along with the accused appellants and upon asking him, he told them that they
were going towards Meerpur.

35. However, subsequently, P.W.5 Tulsi Singh in para 11 of his testimony stated that
he met Surja , Shyama and Laloo at around 10 A.M. Near the Kabristan and they had not
told him that they saw the accused persons taking the deceased Hari Singh towards jungle
although in the F.I.R as well as in the statement recorded under Section 161 Cr.P.C. Tulsi
had stated that they had told him that they saw the accused appellants taking the deceased
Hari Singh towards the jungle . In this context, it is necessary to observe that P.W. 2 Swarup
Singh in his testimony at para 4 has very categorically stated that when Tulsi Singh returned
home at around 10 A.M. in the morning from his duty, he was informed about the
mysterious disappearance of the deceased Hari Singh at around 11 AM. This fact shows that
Tulsi Singh was totally unaware about the disappearance of Hari Singh till around 11 A.M.
on 30.9.1979. As such, there is material contradictions and inconsistency regarding the
alleged meeting of the first informant, Tulsi with the alleged last seen witnesses ie. Surja,
Shyama and Lallu on 30.9.1979.

36. Para 4 of the testimony of P.W. 2 Swaroop Singh in this context is relevant and is
quoted herein below for quick reference:

"4. उपरोि पर और परनाले की बातें र्मुझे र्मालूर्म थीीं पींचायत का पिा दुलशी को नह ीं आ गोड
नौकर पर रहता था। तुलसी को ये पता नह था कक र्र्मश्री ने चर श्णा ली और र्नहाल र्में पिनाले उतारे। तुलशी
को ये भी पता नह था कक उसने डॉत सदाकर र्मेर अपने अींत र्में कर ली और डॉस पर झगडा हुआ। र्मुझे अपनी
580 INDIAN LAW REPORTS ALLAHABAD SERIES
र्मालूर्म है। र्मुझे सुबह 8 बिे पता चला कक हर नह ीं है। 10, 10-1/2 बिे तक उसे बूढा। र्मेरे साथ तुलशी नह
था। दुलसी को 11 बिे पता चला। दुलशी अपनी ड्यूट पर से कर ब 10 बिे बाया था। इयूट पर कर गया था
पता नह ीं। उसकी ड्यूट कब से कब तक रहती है नह ीं र्मालूर्म। तुलशी से र्मेर बात 11 बिे हुई। हर्मार आपस र्में
बातचीत हुई थी। तुलशी ने पूछा था कक ककसने र्मारा तो र्मैने कहा था कक िीक पता नह ीं है ककसने र्मारा। िह
शुबे की बातचीत हुई थी कक ककस ककस पर शुबा है। तब 11 बिे र्मैंने ये सब बाते तुलशी को बताई थी कक
पींचायत र्में झगडा था र्नहाल की घर पतनाले पर भी झगडा था और डौल बढ़ाकर र्मेर को अपने खेत र्में लेने
पर भी झगडा था। उसके अगले कदन िाकर दुलशी ने ररपोटि र्लखाई। ररपोटि तुलसी ने थाने र्में र्लखाई थी। थाने
र्में िो र्लखने िाले हैं उन्होंने र्लखी थी।"

37. P.W. 3, Lallu Singh in his testimony has deposed that after coming to know about
the disappearance of the deceased Hari Singh he went to the house of Kamla and from there
he along with Kamla went to the house of Tulsi Singh and Swarup Singh at 10 O'clock and
merely told them that when he was proceeding towards his field on the previous night , he
had seen the accused appellants sitting and chatting on the mend near Boring. However, it is
noteable that he did not disclose to Tulsi that he either saw the accused persons taking Hari
Singh along with them or saw Hari Singh going with them or saw them chatting with the
deceased .

38. Testimony of P.W. 3 Lallu Singh contained in para 7 in this regard for ready
reference is quoted herein below:

"7- सुबह 8, 8-1/2 बिे पता चला कक हर र्सींह गायब है। इस पर र्मैं हर र्सींह के घर गया। िहााँ
पर र्मुझे कर्मला ि उसकी सास भागीरथी र्र्मली। तुलशी ि स्िरूप र्सींह र्मुझे अींदािन 10 बिे र्र्मले होंगे। कर्मला
और र्मैं स्िरूप र्सींह ि तुलशी के घर गए थे। र्मैने बोररींग िाली र्मेढ पर र्मुलल्िर्मान का बैिा होना तुलशी ि
स्िरूप र्सींह को बता कदया था। र्मैने तुलशी से ये नह बताया था कक र्मैने र्मुलल्िर्मान को हर र्सींह को ले िाते
या उनके साथ िाते हुए देखा है।"

39. The aforesaid testimony of Lallu Singh is contrary to the FIR version as well as his
statement recorded under Section 161 Cr.P.C. No reason has been assigned as to why Lallu
Singh had not disclosed the fact of last seen at the very first opportunity when he visited
Tulsi at 10' clock in the morning along with Kamala.

40. P.W. 7, Shyama has stated that he met the deceased along with the accused
appellants at 9 O' clock in the night near the crossing of Eedgah where accused appellants
were walking along with the deceased, he recognised them in the moon light. Deceased Hari
Singh did not make any complaint to him. He further stated that he met Tulsi at around
10.30 A.M. on 30.9.1979 and informed him about what he had seen on the previous night.
He further stated that he does not know whether the accused persons were carrying on any
weapon or not and he had not seen any other witnesses namely Surja and Lallu near the
place of occurrence. The aforesaid statement of Shyama is again contradictory to the
deposition of Tulsi and P.W.2 Swarup. According to P.W.2 Swarup,Tulsi came to know
about the disappearance of Hari Singh at 11 A.M. on 30.9.79 and according to Tulsi he was
informed by P.W. 7 Shyama and other last seen witnesses when he was on the way to police
3 All. Sukhey & Ors. Vs State OF U.P.
581
station to lodge F.I.R. which was lodged at 12.15 P.M., meaning thereby, he was allegedly
informed shortly before 12.15 P.M. on 30.9.1979.

41. P.W.8 Harish Chand Saxena, S.I. has deposed in his cross examination that Lallu
Singh in his statement under section 161 Cr.P.C. had stated that he knew that Hari Singh
was not having good relations with the accused appellants. He further deposed that
witnesses did not tell him from which place they had seen Hari Singh in the company of the
accused persons.

42. It is also notable that P.W. 2 Swarup Singh has categorically stated in para 4 of his
deposition (para 4 is already quoted herein above) that Tulsi had returned to his house at 10
O' clock in the morning on 30.9.1979 from his duty and he told him about the disappearance
of Hari Singh at 11 O' clock. However, Tulsi Singh in his statement gave a different version
and stated that he returned home between 8.30 and 8.45 A.M. from his duty and when he
learnt from his brother Swaroop about the disappearance of Hari Singh, he along with
Swaroop Singh went to the house of Kamla in the morning . On the other hand, P.W. 3,
Lallu Singh in his testimony has stated that in the morning, in fact, he had gone to the house
of Hari Singh where he met Kamla and her mother in law Bhagirathi. As such, the story of
Lallu that he along with Kamla and Bhagirathi had gone to the house of Tulsi appears to be
contradictory and creates serious suspicion about its trustworthiness. Thus, there are
material contradictions in the statements of Swarup Singh, Lalloo Singh and Tulsi Singh.

43. In this context, para -2 of the testimony of P.W.5 is relevant and is quoted herein
below for ready reference: