# Tahar Singh & Anr. (In Jail) v. State

- **Citation:** (2022) 12 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Criminal Appeal No.2117 of 1988
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tahar-singh-anr-in-jail-v-state-48046
- **Pages:** 12

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 -Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 302, 307
& 324 - India Evidence Act, 1872 - Section
134 - Criminal Appeal - challenging the order
of Conviction & Sentence of Life imprisonment
U/section 302/34 IPC - Evaluation of Evidences -
Allegations that, accused persons inflicted the
injuries upon the deceased with sword & axe
respectively due to which deceased was died on
spot & they were also assaulted upon the PW-2
with above arms when PW-2 was trying to hold
the accused persons - Court finds that,
prosecution
has
proved
each
and
every
circumstances leading to the homicidal death of
the deceased by cogent and trustworthy
evidence beyond reasonable doubt - thus,
conviction & sentence of Life imprisonment
under section 302/34 IPC is confirmed -
directions accordingly.
(Para - 57, 61)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 302, 307
& 324 - India Evidence Act, 1872 - Section
134 - Criminal Appeal - Challenging Conviction
&
Sentence
of
-
Five
year
Rigorous
imprisonment U/section 307/34 IPC - Evaluation
of Evidences & Application of Section 307 -
Allegations that, accused persons inflicted the
injuries upon PW-2 when they were assaulted to
the deceased with sword & axe respectively due
to which deceased was died on the spot & PW-2
was injured when he was trying to hold them -
It is settled law that, Question of intention to kill
or knowledge of death is always a question of
fact and not of law - merely causing hurt with
intention or knowledge of causing death is
sufficient to attract section 307 IPC - from the
evidence on record and from the deposition PW2 court finds that - offence committed by the
appellants in respect of injured PW-2 falls in the
category of offence under section 324 IPC not
under section 307 IPC - thus, appeal is partly
allowed - conviction & sentence under section
307/34 of IPC is modified and is converted into
section 324/34 of IPC - directions accordingly.
(Para - 53, 54, 56, 61)

Appeal Partly allowed. (E-11)

List of Cases cited:

## Text

12 All. Tahar Singh & Anr. Vs. State
813
bonds are cancelled and sureties are
discharged.

35. The office is directed to send back
the lower court record along with a
certified copy of this judgment for
information and necessary compliance.

The
compliance
report
be
furnished to this Court through the
Registrar General, High Court, Allahabad
within one month.
----------
(2022) 12 ILRA 813
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No.2117 of 1988

Tahar Singh & Anr. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Haider Zaida, Usha Srivastava, Sri Vinod
Kumar Srivastava

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

(A) Criminal Law - Criminal Procedure
Code, 1973 -Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 302, 307
& 324 - India Evidence Act, 1872 - Section
134 - Criminal Appeal - challenging the order
of Conviction & Sentence of Life imprisonment
U/section 302/34 IPC - Evaluation of Evidences -
Allegations that, accused persons inflicted the
injuries upon the deceased with sword & axe
respectively due to which deceased was died on
spot & they were also assaulted upon the PW-2
with above arms when PW-2 was trying to hold
the accused persons - Court finds that,
prosecution
has
proved
each
and
every
circumstances leading to the homicidal death of
the deceased by cogent and trustworthy
evidence beyond reasonable doubt - thus,
conviction & sentence of Life imprisonment
under section 302/34 IPC is confirmed -
directions accordingly.
(Para - 57, 61)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 302, 307
& 324 - India Evidence Act, 1872 - Section
134 - Criminal Appeal - Challenging Conviction
&
Sentence
of
-
Five
year
Rigorous
imprisonment U/section 307/34 IPC - Evaluation
of Evidences & Application of Section 307 -
Allegations that, accused persons inflicted the
injuries upon PW-2 when they were assaulted to
the deceased with sword & axe respectively due
to which deceased was died on the spot & PW-2
was injured when he was trying to hold them -
It is settled law that, Question of intention to kill
or knowledge of death is always a question of
fact and not of law - merely causing hurt with
intention or knowledge of causing death is
sufficient to attract section 307 IPC - from the
evidence on record and from the deposition PW2 court finds that - offence committed by the
appellants in respect of injured PW-2 falls in the
category of offence under section 324 IPC not
under section 307 IPC - thus, appeal is partly
allowed - conviction & sentence under section
307/34 of IPC is modified and is converted into
section 324/34 of IPC - directions accordingly.
(Para - 53, 54, 56, 61)

Appeal Partly allowed. (E-11)

List of Cases cited:

1. Amar Singh Vs St. (NCT of Delhi), (2020) 19
SCC 165

2. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

3. Gopal Singh Vs St. of Uttrakhand, (2013) 7
SCC 545

4. Hari Kishan and St. of Har. Vs Sukhbir Singh,
AIR 1988 SC 2127
814 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Hema Vs State, (2013) 81 ACC 1 (SC)

6. Indrapal Singh Vs St. of U.P. (2022) 4 SCC
631

7. Maqbool Vs St. of Andhra Pradesh, AIR 2011
SC 184

8. Nankaunu Vs St. of U.P. (2016) 3 SCC 317

9. Raj Narain Singh Vs St. of U.P. 2010
AIR(SCW) 521

10. St. of Har. Vs Krishan, AIR 2017 SC 3125

11. Surinder Kumar Vs St. of Punj., (2020) 2
SCC 563

12. Sunil Kumar Vs St. (NCT of Delhi), (2003) 11
SCC 367

13. St. Vs Tahar Singh & ors., Sessions Trial No.
179 of 1986

14. St. of M.P. Vs Harjeet Singh & anr., AIR 2019
SC 1120

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This criminal appeal has been
preferred by the appellants Tahar Singh and
Bal Krishna against the judgement and
order dated 14.9.1988 passed by IInd
Additional District & Sessions Judge,
Kanpur Dehat in Sessions Trial No.179 of
1986 (State vs. Tahar Singh and others)
convicting the appellants for the offence
punishable under Sections 302/34 IPC and
307/34 IPC and sentencing them to
undergo life imprisonment and to undergo
five
years
rigorous
imprisonment,
respectively.
All
the
sentences
were
directed to run concurrently.

2. At the outset, it is to be noted that
against the impugned judgment and order,
accused Sughar Singh and Munshi Lal had
preferred Criminal Appeal No.2103 of
1988. Since these accused have expired,
appeal preferred by them has been abated
vide order dated 1.11.2022 passed by this
Court.

3. Brief facts of the case, as unfolded
by the informant Ramesh Chandra Yadav
son of Gajodhar Singh in the First
Information Report (in short 'F.I.R.'), are
that the informant was married with the
daughter of late Sovran Singh, resident of
village Rasoolpur, police station Kakwan in
the year 1971. He was having a brother-inlaw, who expired. His mother-in-law (Smt.
Kitab Shri) had no other issue except the
wife of the informant i.e. Smt. Chhidani
Devi. Informant had gone to village
Rasoolpur to attend the marriage ceremony
of daughter of Dharam Singh, cousin
brother-in-law of the informant (chachera
sala). On 25.6.1986, informant was about
to return home alongwith his wife and
mother-in-law by the bullock-cart of
Dharam Singh. At about 9.00 a.m. when
Dharam Singh entered the house just to get
them parking the bullock carts outside the
village and said aunt get ready soon, it is
getting late, close family members Tahar
Singh son of Sughar Singh armed with
sword, Balkarishna armed with axe and
Sughar Singh son of Lal Singh Yadav
armed with lathi entered into the house.
Sughar Singh asked to the mother-in-law of
the informant that he will not let her go and
if she goes, she will transfer the whole land
to her son-in-law. To this, she said that she
will definitely go. Hearing her words,
Munshi Lal exhorted to kill her. On this,
accused Tahar Singh and Bal Krishna
surrounded her and started assaulting with
their respective weapons. On call of the
informant and Dharam Singh, Arvind
Kumar son of Manfool, Nahar Singh son of
Ram Ram Autar, Ram Bhajan son of Dissa,
Ram Narayan son of Kuber Yadav and
12 All. Tahar Singh & Anr. Vs. State
815
several other people reached there and
made alarm. At this moment, Tahar Singh,
Bal Kishan and Sughar Singh surrounded
Dharam Singh and made lethal assault
upon him. Mother-in-law of the informant
died on the spot on account of the injuries
inflicted by them and Dharam Singh was
seriously injured.

4. On the basis of the written report
(Ext. ka-1), chik F.I.R. (Ext. Ka-4) was
registered at Police Station concerned on
25.6.1986 at 1.15 p.m. mentioning all the
details as described in Ext. Ka-.1. G.D. entry
was also made at the same time, which is Ext.
Ka-5.

5. Investigation of the case proceeded.
The Investigating Officer recorded the
statement of Dharam Singh at the police
station itself. He further recorded the
statement of other witnesses also and
recovered the murder weapons. He inspected
the spot and prepared site plan. He also
prepared the inquest report of the deceased
and papers relating to post mortem. The
Investigating Officer also took the specimen
of plain soil and bloodstained soil from the
place of occurrence and prepared the memo
Ext. ka-13. Post mortem of the dead body of
the deceased was performed.

6. Autopsy report (Ext. ka-3) was
prepared by Dr. O.P. Sharma (PW-5) after
performing the post mortem of the deceased
on 26.6.1986 at 1.00 p.m. On examination of
the dead body of the deceased, following
ante-mortem injuries were found:

"i. Incised wound 9 cm X 2.5 cm
bone cut 8.5 cm backward from right lower ear.

ii. Incised wound size 7 cm X 2.5
cm bone cut started from lower right ear
towards mouth obliquely.

iii. Incised wound size 6 cm X 2
cm it is one c.m. below injury no.2.Lower
jaw broken.

iv. Incised wound 16 cm X 2.5
cm, bone cut started from upper lip
towards frontal bone. Nose also cut.

v. Incised wound 5.2 cm X 2.5 cm
right side neck & backward, it is 7 cm
below right lower ear.

vi. Incised wound size 3 cm X 1
cm it is 4 cm upward from wrist, posterior
on the forearm."

7. In the opinion of the doctor, death
was caused by reason of shock and
haemorrhage due to injuries sustained.

8. Injured Dharam Singh was
examined on 25.6.1986 at 5.30 p.m. and
during his examination, following injuries
were found :

"(1). Incised wound on Rt. upper
arm 10 cm below acromodavicular joint
directed obliquely size 4 1⁄2 cm X 1 cm muscle
deep, clotted blood present on wrist.

(2) Linear abrasion on back 4 cm
below last cervical vertebra directed
obliquely size 7 cm X 0.1 cm.

(3) Contusion on fore head 2 cm
above left eye brow size 3 cm x 2 cm."

9. In the opinion of the doctor, all the
injuries were simple. Injuries no. 1 and 2
were caused by sharp edged weapon, while
no. 3 by blunt object. Injury report Ext. ka2 was prepared.

10.

After
completing
the
investigation, charge-sheet (Ext. ka-17)
816 INDIAN LAW REPORTS ALLAHABAD SERIES
against all the four accused persons was
filed. Concerned Magistrate took the
cognizance. The case being exclusively
triable by sessions court, was committed to
the Court of sessions.

11. Accused persons appeared before
the trial court and charges under Section
302 IPC read with Section 34 IPC and
Section 307 IPC read with Section 34 were
framed against them. They denied the
charges and claimed their trial.

12. Trial proceeded and to bring home
the charges against the accused persons,
prosecution has examined in all seven
witnesses, who are as follows:

1
Ramesh
Chandra
PW-1 (informant /
eye witness)
2
Dharam Singh
PW-2 (injured
3
Meghraj Singh
PW-3
(carrier
of
body of deceased for
post mortem)
4
Dr. Tej Bahadur
Singh
PW-4 (witness of
injury report)
5
Dr.
O.P.
Sharma
PW-5 (witness of
autopsy)
6
H.C.P.
Jag
Mohan
PW-6
(scribe
of
F.I.R.)
7
S.O. Anshuman
Singh
PW-7 (Investigating
Officer)

13. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Written report
Ext. A-1
2
Injury Report
Ext. A-2
3
Post mortem report Ext. A-3
4
Chik F.I.R.
Ext. A-4
5
G.D. entry
Ext. A-5
6
Inquest Report
Ext. A-6
7
Photo lash, challan
lash, letter to R.I.,
letter to C.M.O.
and specimen sea
Ext. A-7 to Ext.
A-11
8
Site plan
Ext. A-12
9
Memo of plain and
blood stained soil
Ext. A-13
10
Memo of cloth of
deceased
Ext. A-14
11
Seizure memo of
murder weapons
Ext. A-15
12
Site plan of place
of recovery
Ext. A-16
13
Charge sheet
Ext. A-17

14. After conclusion of evidence,
statements
of
accused
persons
were
recorded under Section 313 of Cr.P.C., in
which they pleaded their false implication.
However, no defence evidence has been
adduced.

15. PW-1 and PW-2 are the witnesses
of fact.

16. P.W-1, namely, Ramesh Chandra,
in his oral testimony, has stated that
deceased was his mother in law. She had
some property in the village concerned. At
the time of occurrence, she had only one
daughter, who was the wife of PW-1. He
further stated that since accused persons
wanted to inherit the property of the
deceased,
due
to
that
reason,
they
committed her murder. He has proved the
written report Ext. A-1. He has explained
the whole occurrence and the role of all the
12 All. Tahar Singh & Anr. Vs. State
817
accused persons in the commission of
crime in his testimony.

17. P.W.-2 Dharam Singh is the
injured witness. He has also corroborated
the F.I.R. version and supported the
testimony of PW-1. Both the aforesaid
witnesses have, in clear terms, disclosed
the role of the present appellants in
commission of crime and have stated that
Tahar Singh and Bal Krishna inflicted the
injuries upon the deceased with sword and
axe respectively, which resulted into her
spontaneous death. They have also proved
this fact that the present appellants also
made assault upon the injured - PW-2 with
their above mentioned arms and accused
Sughar Singh also inflicted injuries upon
the injured by lathi. They have also
specifically mentioned the role of other
accused Munshi Lal, who was exhorting
other co-accused persons to do away with
the deceased.

18. PW-3 to PW-7 are the formal
witnesses.

19. PW-3 - Constable Meghraj Singh,
in his deposition has proved this fact that
after the inquest proceeding of the deceased
performed by the S.O. Anshuman Singh, he
alongwith Constable Ram Bhajan had taken
away the dead body of the deceased for
post mortem to Kanpur.

20. PW-4 Dr. Tej Bahadur Singh has
medically examined the injured Dharam
Singh and has proved the injury report Ext.
ka-2.

21. PW-5 Dr. O.P. Singh has
performed the autopsy of the deceased and
prepared the Autopsy Report Ext. ka-3. He
has also opined that the death was possibly
caused on 25.6.1986 at 8.30 a.m..

22. PW-6 is the scribe of F.I.R., who
has proved chik F.I.R. Ext. ka-4 and
registration G.D. Ext. ka-5.

23. PW-7 S.O. Anshuman Singh is
the Investigating Officer of the case, who
has proved the proceeding of investigation
in his testimony and also identified material
exhibit-1 bloodstained baniyan of the
deceased and material exhibit -2 the murder
weapon lathi. He has also clarified this fact
that the plain and bloodstained soil
alongwith murder weapons ''sword' and
''axe' were sent to F.S.L., Agra for
examination.

24. On the basis of aforesaid oral and
documentary evidence, learned trial court
recorded the conviction of all the four
accused persons and sentenced them, as
mentioned above.

25. Since the appeal of accused
Sughar Singh and Munshi Lal has already
been abated, present appeal is operative
against convicts / appellants Tahar Singh
and Bal Krishna only.

26. The impugned judgment and order
of the trial court has been assailed by the
learned counsel for the appellants on
various grounds. It has been argued that the
prosecution story rests upon the testimonies
of two witnesses of fact, who are the
interested witnesses. No other witness of
the same vicinity has been produced,
whereas in the F.I.R. itself names of
independent
witnesses
have
been
mentioned. It is further submitted that due
to some property dispute, appellants have
been falsely implicated in this case but the
learned trial court has completely ignored
this fact. It has also been submitted that the
medical evidence does not corroborate the
prosecution version. Moreover, all the
818 INDIAN LAW REPORTS ALLAHABAD SERIES
murder weapons have not been produced
before the Court at the time of evidence
and no F.S.L. report was made part of the
record, which makes the prosecution story
highly doubtful. The investigation is faulty.
The trial court, in fact, without considering
the evidence on record in proper manner
and
without
appreciating
the
factual
scenario of the matter passed the conviction
order in an arbitrary manner which is not
liable to be sustained. It has been further
submitted that from a perusal of the injury
report Ext. ka-2 and on the basis of
evidence of PW-4, it is evident that no case
under Section 307 IPC is made out against
the present appellants.

27. Per contra, learned AGA has
contended that the prosecution case is fully
supported by the medical evidence and
injured witness and also the informant / eye
witness
have
fully
supported
the
prosecution case. There is no material fault
in the investigation of the case and the trial
court has committed no legal or factual
error in passing the impugned judgment
and order. The appeal has no merits and is
liable to be dismissed.

28. Heard Shri Vinod Kumar
Srivastava,
learned
counsel
for
the
appellants and Shri Amit Sinha, learned
AGA for the State.

29. From a perusal of the written
report it appears that there was some
property dispute between the parties. From
the statement of PW-1, it appears that the
deceased intended to give her property to
her daughter and son-in-law and accused
persons were not ready for that and in order
to prevent her to do so, they committed her
murder. It also comes out from a perusal of
the statement of PW-1 that he had come to
the house of his mother-in-law alongwith
his family to attend the marriage ceremony
of the daughter of Dharam Singh, who was
his cousin brother-in-law and at the time of
occurrence they were preparing to go back
to their home after attending the marriage.
In that way, the presence of PW-1 at the
place of occurrence is quite natural and
probable. The date, time and place, the
manner of assault, the arms used in crime
and the names of the participant accused
persons, all these facts have been clearly
stated in the testimony of PW-1, which
finds support from the deposition of PW-2
also. PW-1 has been cross-examined at
length on various points by the defence, but
nothing adverse comes out. Likewise, PW2 is the injured witness and as an injured
witness his deposition stands on a different
footing. All the material particulars finds
support from the testimony of PW-2. He
has specifically mentioned the names of the
accused persons, who inflicted injuries
upon him and also who made fatal blows
upon the deceased on the exhortation of
accused Munshi Lal.

30. In State of Haryana vs. Krishan,
AIR 2017 SC 3125 it has been so held that
the deposition of an injured witness should
be relied upon unless there are strong
grounds for rejection of his evidence on the
basis of contradictions and discrepancies
for the reason that his presence on the
scene has been established in the case and
it is proved that he suffered injuries during
the incident.

31. In fact the presence of injured
witness at the time and place of occurrence
cannot be doubted, as he has received
injuries during the course of incident and
he should normally be not disbelieved.

32. It is desirable to have a glance
upon the injury report Ext. ka-2 of the
12 All. Tahar Singh & Anr. Vs. State
819
injured PW-2. As per the prosecution
version and as also affirmed by PW-2, he
was hit by sword, axe and lathi. PW-4, the
doctor, who had medically examined the
injured PW-2, has found three injuries on
the body of injured. He has specifically
opined that injury nos. 1 and 2 might be
caused by sword and axe. It is pertinent to
mention here that injury no.1 found on the
body of injured is an incised wound. Injury
no.3 is a contusion, which, according to
PW-4, might be caused by lathi. The injury
report was prepared on 25.6.1986 at about
5.30 p.m. and PW-4 has opined that the
injuries might be inflicted at 9.30 a.m.
same day.

33. Non-production of independent
witnesses has been made another point for
contention by the appellants.

34. Learned counsel for the appellants
has vehemently argued that the prosecution
has failed to explain as to why the
independent witness of the same locality
was not produced as witness in this case. In
the F.I.R. itself many witnesses have been
named but none was examined before the
Court.

35. The learned AGA has contended
that this is the discretion of the prosecution
to produce as many as witnesses before the
Court and the defence has nothing to do
with that.

36 . Under Section 134 of the Indian
Evidence Act, it has been provided that
"No particular number of witnesses shall in
any case be required for the proof of any
fact." In fact, this is the quality of evidence
of witness to prove a fact and not the
number
of
the
witnesses,
which
is
important. If wholly reliable, testimony of a
solitary witness may be sufficient to record
conviction of an accused. This view has
been reiterated in Amar Singh Vs. State
(NCT of Delhi) (2020) 19 Supreme Court
Cases 165, wherein it has been held as
follows:

"....As a general rule the Court
can and may act on the testimony of single
eye witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the sole testimony of a single
witness. That is the logic of Section 134 of
the Evidence Act, 1872. But if there are
doubts about the testimony Courts will
insist on corroboration. It is not the
number, the quantity but quality that is
material. The time honoured principle is
that evidence has to be weighed and not
counted. On this principle stands the
edifice of Section 134 of the Evidence Act.
The test is whether the evidence has a ring
of truth, is cogent, credible and trustworthy
or otherwise (see Sunil Kumar V/s State (
NCT of Delhi) (2003) 11 SCC 367)."

37. In fact, it is not the number of
witnesses, but material evidence which has
to be taken note of by the Courts to
ascertain truth of allegations made by the
prosecution. It is never necessary that all
the persons, who were present on the spot,
even in a murder case, must be examined.

38. If we translate the aforesaid legal
principles into the facts of this case, we
find that the testimonies of PW-1 and PW-2
have a ring of truth and are cogent, credible
and trustworthy and corroborate each other
and there was no necessity for the
prosecution to search for any further
corroboration of their evidence. Reference
can be made on the Hon'ble Apex Court
decision in Raj Narain Singh Vs. State of
U.P. 2010 AIR SCW 521, wherein it has
been held that it is not necessary that all
820 INDIAN LAW REPORTS ALLAHABAD SERIES
those persons, who were present at spot,
must be examined. It is quality of evidence
which is required to be taken note of by
Courts.

39. It is true that PW-1 is the son-inlaw of the deceased and deceased was
Mausi (aunt) of PW-2. Hence, they were
relatives of the deceased. The learned
counsel for the appellants has contended
that the evidence of related witnesses
cannot be taken as gospel truth because
they are interested witnesses. We have
carefully gone through the depositions of
PW-1 and PW-2 and find that a natural
flow of occurrence has been deposed by
them in their respective testimonies. Their
evidence is not such as may be discarded
on the ground of their being related to each
other or related to the deceased. The
evidence of PW-2, his being an injured
witness, stands on a different and strong
footing. It is to be remembered that the
occurrence happened at the house of the
deceased. The presence of PW-1 alongwith
his family members was quite natural at the
house of his mother-in-law and likewise,
the presence of PW-2 was also not
unnatural because he had gone to the house
of his Mausi (aunt) to take away the
informant and his family members, who
had come to attend the marriage ceremony
of his own daughter. He happened to be the
cousin of the informant's wife. In these
circumstances, the evidence of PW-1 and
PW-2 cannot be discarded on the ground
that they are the witnesses related to the
deceased.

40. In the present context, the Hon'ble
Apex
Court
in
Bhagwan
JagannathMarkad
Vs.
State
of
Maharastra (2016) 10 SCC 537 has held
that the testimony of a witness in a criminal
trial cannot be discarded merely because
the witness is a relative or family member
of the victim of the offence. In such a case
Court has to adopt a careful approach in
analyzing the evidence of such witness and
if the testimony of the related witness is
otherwise found credible, accused can be
convicted on the basis of the testimony of
such related witness.

41. Reliance has been placed on
Surinder Kumar Vs. State of Punjab
(2020) 2 SCC 563 by the learned A.G.A.
wherein it has been reiterated that merely
because prosecution did not examine any
independent witness, would not necessarily
lead to conclusion that accused was falsely
implicated.

42. The Autopsy Report Ext. ka-3 is
an important piece of evidence. According
to the evidence of PW-1 and PW-2
deceased was assaulted by sword and axe,
as appellants Tahar Singh and Bal Krishna
carried the aforesaid arms respectively.
PW-5, who performed the post mortem of
the deceased, has found in total six injuries
on the dead body of the deceased and it is
pertinent to mention here that all the
injuries
are
incised
wound
which,
according to PW-5, could probably be
caused by use of sword and axe on
25.6.1986 at 8.30 a.m.. These injuries were
inflicted over the sensitive parts of the
body. Hence, the Autopsy Report also
supports the prosecution case and it is
proved that the injuries were inflicted by
use of sword and axe on the body of
deceased, as witnesses of fact also deposed.

43. Learned counsel for the appellants
has also made it a point that the murder
weapons have not been produced before the
Court and no F.S.L. report is also on
record. It has also been submitted that this
is a big omission on the part of the
12 All. Tahar Singh & Anr. Vs. State
821
Investigating Officer of the case and as
such faulty investigation also diminishes
the entire prosecution story. Learned AGA,
on the other hand, submitted that if the
prosecution case is proved on the basis of
other reliable evidence, non-production of
murder weapon before the Court or nonavailability of F.S.L. report on record may
be no ground to discard the prosecution
case. It has also been submitted that any
fault or omission found into investigation is
no ground to reject or disbelieve the
otherwise reliable prosecution case.

44. The aforesaid pleas taken by the
learned counsel for the appellants take us to
go through the deposition of PW-7, the
Investigating Officer.

45. PW-7, in his deposition, has stated
that when co-accused Sughar Singh was
arrested by the police, murder weapon
bloodstained sword, bloodstained axe and
lathi were recovered on his pointing out from
his house. A memo of recovery was also
prepared before the witnesses which has been
proved as Ext. ka-15 by PW-7. A site pan of
the place of aforesaid recovery has also been
prepared by the Investigating Officer and
proved as Ext. ka-16. It is pertinent to
mention here that the bloodstained baniyan of
the deceased and murder weapon lathi were
produced before the Court and proved as
material Ext.-1 and material Ext.-2 by the
Investigating Officer - PW-7, who has also
stated that bloodstained soil and bloodstained
sword and axe were sent to F.S.L., Agra for
examination. Hence, this is an admitted fact
that the murder weapon sword and axe were
not produced and proved before the Court, as
same were sent to F.S.L., Agra but murder
weapon lathi has been proved by the PW-7. It
is true that this was the duty of the
Investigating Officer to collect back the
murder
weapons
sent
for
chemical
examination and to produce it before the
Court but he omitted to do so, however, at the
same time, it is to be seen whether this
omission of the Investigating Officer affects
the prosecution case adversely in any way.

46. In this reference, emphasis may be
laid down upon Gopal Singh Vs. State of
Uttrakhand (2013) 7 SCC 545 (para 12 &
13) wherein the Hon'ble Apex Court found
that the "katta" and "knife" used in causing
the injuries to the victim were not recovered
by the Investigating Officer but the doctor's
evidence was available to prove that the
victim had sustained gun shot and knife
injuries, it was held that non-recovery of the
said weapon was not fatal to the prosecution
case as the injuries sustained by the victim
proved the nature of the weapon used.

47. It is submitted by the learned AGA
that even if the murder weapon is not
produced before the Court or is not sent for
chemical / technical examination or even if it
is not recovered by the Investigating Officer,
same is not fatal for the prosecution case, if it
is proved sufficiently by the ocular evidence.
Reliance has been placed upon Maqbool vs.
State of Andhra Pradesh, AIR 2011 SC 184,
wherein it has been held that not sending the
weapons of assault, cartridge, pellets to
ballistic expert for examination, would not be
fatal to the case of prosecution if the ocular
testimony is found credible and cogent.

48. In Nankaunu vs. State of U.P.,
(2016) 3 SCC 317, it has been held that when
there
is
ample
unimpeachable
ocular
evidence corroborated by medical evidence,
mere non-recovery of weapon from the
accused does not affect the prosecution case
relating to murder.

49. No other material negligence or
omission on the part of the Investigating
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer has been pointed-out by the learned
counsel for the appellants. From a perusal
of the evidence on record, particularly, the
deposition of the Investigating Officer of
the case, we also find no material
negligence or omission on the part of the
Investigating Officer. Moreover, since the
prosecution case is well established and
proved by the ocular evidence supported
with the medical evidence, negligence or
omission, if any, on the part of the
Investigating Officer does not adversely
affect the prosecution version at all.

50. In Hema Vs. State (2013) 81
ACC 1 (Supreme Court), it has been held
by the Hon'ble Apex Court that any
irregularity or deficiency in investigation
by I.O. need not necessarily lead to
rejection of the case on prosecution when it
is otherwise proved. The only requirement
is to use of extra caution. The defective
investigation cannot be fatal to prosecution
when ocular testimony is found credible
and cogent. It may be reiterated at the cost
of repetition that investigation, in the
present case, does not suffer with any
material irregularity.

51. One more material point has been
raised by the learned counsel for the
appellants, which is in respect of conviction
of appellants under Section 307/34 IPC. It
has been submitted that the injuries caused
to the injured Dharam Singh are simple in
nature. There is no X-Ray report of the
injured on record. Injuries caused to the
injured fall only to the extent of offence
under Section 324 IPC and offence under
Section 307 IPC in no way is made out.

52. Learned AGA has contended that
for the offence under Section 307 IPC, it is
the intention which is important and not the
injury inflicted upon the person. It is
submitted that the injury was caused to the
injured with intention to kill him and,
therefore, the appellants were rightly
convicted under Section 307 IPC.

53. The law settled in the context of
Section 307 IPC is that it is not necessary
that injury, capable of causing death,
should have been inflicted. What is
material to attract the provisions of Section
307 is the intention or knowledge with
which the all was done, irrespective of its
result. The intention and knowledge are the
matters of inference from totality of
circumstances and cannot be measured
merely from the results. In fact the
important thing to bear in mind for
determining the question whether the
offence under Section 307 IPC is made out
is the intention and not the injury, even if it
may be simple or minor. Question of
intention to kill or knowledge of death is
always a question of fact and not of law.
The Hon'ble Supreme Court in Hari
Kishan and State of Haryana vs. Sukhbir
Singh, AIR 1988 SC 2127 has held that the
intention or knowledge of the accused must
be such as is necessary to constitute
murder. In State of Madhya Pradesh vs.
Harjeet Singh and another, AIR 2019 SC
1120, it was reiterated that Section 307 IPC
does not require that injury should be on
vital part of the body. Merely causing hurt
with intention or knowledge of causing
death is sufficient to attract Section 307
IPC.

54. The aforesaid legal principle, if
examined in the context of the facts and
circumstances of the present case, we find
that offence under Section 307 IPC is not
made out against the accused-appellants.
The accused persons who, in continuation
of the offence of murder of the deceased
Kitab Shree, also attacked the injured
12 All. Tahar Singh & Anr. Vs. State
823
Dharam Singh, were clearly in a position to
kill him but only simple injuries have been
caused to him. In the F.I.R. it has been
mentioned that when the injured was trying
to hold the accused persons, he was
assaulted by them. PW-1 also stated that
when Dharam Singh tried to catch hold the
accused persons they assaulted him with
sword, axe and lathi. He has also deposed
that co-accused Munshi Lal exhorted the
other accused persons to do away with the
deceased but that was not so in the case of
injured. PW-2 injured himself, in his
deposition, has stated that when they were
trying to catch hold the accused persons by
surrounding them, he was attacked by
accused Tahar Singh, Bal Krishna and
Sughar Snigh and then they fled away. Nowhere, in the statements of PW-1 and PW2 it is found that the accused persons had
any intention to kill the injured.

55. In his cross-examination, PW-2
has also stated that after receiving three
injuries when he fell down, no assault was
made over him. Had the accused persons
any intention to kill the injured, they could
easily do away with him when he fell down
on the earth, has been vehemently argued
by the learned counsel for the appellants.

56. In the facts and circumstances of
the case, we find that the offence
committed by the appellants in respect of
injured PW-2 falls in the category of
offence under Section 324 IPC and not in
the category of Section 307 IPC.

57. From the discussions made above,
in
the
totality
of
the
facts
and
circumstances of the case, it is evident that
the prosecution has proved each and every
circumstance leading to the homicidal
death of the deceased by cogent and
trustworthy evidence. Both ocular and
medical evidence corroborate each other.
The depositions made by PW-1 and PW-2injured are wholly reliable and their ocular
version
finds
support
from
medical
evidence. They have deposed without any
material contradiction about the whole
occurrence right from the beginning till the
death of the deceased who succumbed to
her injuries. The learned trial court has
examined the matter meticulously and well
appreciated the evidence on record. No
infirmity, therefore, is found in the
judgment of the trial court. The appellants
alongwith other co-accused with prearranged plan armed with deadly weapons
reached the house of the deceased to do her
away and as such they acted in furtherance
of common intention of all. Hence, they
could be safely convicted with the aid of
Section 34 IPC.

58. In Indrapal Singh v. State of
U.P., (2022) 4 SCC 631, the Hon'ble Apex
Court held as under:

".......to attract the applicability of
Section 34 IPC the prosecution is under an
obligation to establish that there existed a
common
intention
which
requires
a
prearranged plan. That before a man can
be vicariously convicted for the criminal
act of another, the act must have been done
in furtherance of the common intention of
all. In the absence of a prearranged plan
and thus a common intention, even if
several persons simultaneously attack the
man, each one of them would be
individually liable for whatever injury he
caused and none could be vicariously
convicted for the act of any or the other.
Thus, it is necessary either to have direct
proof of prior concert or proof of
circumstances which necessarily lead to
that inference and incriminating facts must
be incompatible with the innocence of the
824 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and incapable of explanation or
any other reasonable hypothesis".

59. We have no hesitation to hold that
the principle enumerated in the aforesaid
case law is clearly applicable to the present
case and no error was committed by the
learned trial court to convict the appellants
with the aid of Section 34 IPC.

60. The evidence of PW-1 and PW-2
is wholly reliable and cogent and they fall
into the category of wholly reliable witness.
The date, time and place of occurrence, the
manner of assault, the names of assailants
all these factors have been fully proved by
the ocular evidence which finds support
from the medical evidence. F.I.R. of the
case is also prompt. We are, therefore, of
the considered opinion that the prosecution
has proved the charge under Section 302/34
IPC beyond reasonable doubt against both
accused, namely, Tahar Singh and Bal
Krishna but charge under Sections 307/34
IPC has not been proved on the basis of
evidence on record, instead, charge under
Section 324/34 IPC is proved against the
present
appellants
beyond
reasonable
doubt.

61. Resultantly, appeal is partly
allowed in the aforesaid terms. The
conviction and sentence under Section
302/34 is hereby confirmed and the
conviction and sentence under Section
307/34 I.P.C. is converted into Section
324/34
IPC
and
the
appellants
are
sentenced to undergo imprisonment for a
period of three years for the offence
punishable under Sections 324/34 of IPC.
Both the sentences are to run concurrently.

62. Appellants Tahar Singh and Bal
Krishna are on bail, their bail bonds are
cancelled and sureties are discharged. The
concerned Court is directed to take the
appellants Tahar Singh and Bal Krishna
into custody forthwith and send them to jail
to serve-out the remaining sentence.

63. Let the lower Court record be
transmitted back along with the certified
copy of this judgement for information and
necessary compliance.

64. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 12 ILRA 824
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKAR PRASAD, J.

Criminal Appeal No. 2126 of 2013

Manjoor Alam @ Nirahu
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri B.K. Tripathi, Sri Araf Khan, Sri
Mohammad Adnanul Haq, Sri Pradeep
Kumar

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 162, 162(2), 313 &
437 (A) - Indian Penal Code, 1860 -
Sections 302, 307, 308 & 326 - India
Evidence Act, 1872 - Sections 32 & 32(1)
- Criminal Appeal - challenging the order of
Conviction & Sentence of Life Imprisonment -
allegations upon accused-appellant that on
account of enmity had thrown acid upon the
deceased which caused serious injuries to him
resulted he was died during treatment -