# Umesh Mahto & Anr v. State of U.P

- **Citation:** (2022) 9 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-20
- **Case number:** Criminal Appeal No. 6384 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-mahto-anr-v-state-of-u-p-49046
- **Pages:** 15

## Headnote

(A) Criminal Law - Indian Penal Code, 1860
- Section 302/34 & 307/34 - The Code of
criminal procedure, 1973 - Section 313 -
Indian Evidence Act, 1872 - Section 134 -
No particular number of witnesses shall in
any case be required for the proof of any
fact - It is quality of evidence which is
required to be taken note of by Courts -
Distinctions between normal discrepancies
and material discrepancies - when the direct
evidence establishes the crime, motive is of
no significance and pales into insignificance
- 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. (Para -21,30,39,55 )

Accused persons killed his brothers - motive and
enmity - P.W.1(brother of deceased) is sole
witness of fact - prosecution case fully
corroborated with medical evidence - offence of
murder committed by both accused appellants - in
furtherance of common intention of both - each
and every circumstance leading to homicidal death
of deceased - proved by cogent & trustworthy
evidence - murder committed at public place - no
material contradiction about whole occurrence
right from the beginning till the death of deceased.
(Para -28,29,34,57,63,66 )

HELD:-Prosecution proved charge under Section
302/34 I.P.C. beyond reasonable doubt against
both accused appellants. Offence under Section
307/34 not proved against accused appellants
beyond reasonable doubt. (Para - 65,66)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,774 of 49,450. This is a partial read: ask again with offset=39774 for what follows._

126 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Where the death of a woman is
caused by any burns or bodily injury or occurs
otherwise than under normal circumstances
within seven years of her marriage and it is
shown that soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband for, or
in connection with, any demand for dowry,
such death shall be called "dowry death", and
such husband or relative shall be deemed to
have caused her death.

Explanation. For the purposes of
this sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death
shall be punished with imprisonment for a
term which shall not be less than seven years
but which may extend to imprisonment for
life.

20. While going through the provision of
Section 304B of IPC, it is very clear that it can
be read with Section 106 of the Indian
Evidence Act and coupled with Section 113B
of the Indian Evidence Act. We are fortified in
a view that the matter is covered by the
ingredients of the said sections. The fact that
Section 302 IPC conviction cannot stand but
the same time acquittal cannot be ordered in
favour of the accused. The ground allegedly
taken by accused is also not stated by any
cogent evidence being led under Section 313
of Cr.P.C. As we considered the totality we are
of the confirmed opinion that the accused has
to be dealt with Section 304B IPC and
acquittal under Section 304B IPC and
conviction under Section 302 IPC cannot be
sustained.

21. In case of offence under Section
304B of IPC, there is reverse burden of proof
on the accused, which is not in the case of
Section 302 of IPC. The learned trial court has
committed manifest error by convicting the
accused-appellant under Section 302 of IPC
on the basis of reverse burden of proof on the
shoulders of the appellant. The evidence in this
case does not show that Section 302 of IPC is
applicable to the facts of this case.

22. Hence, we upturn the judgement and
order of the learned trial court to the extent of
conviction and sentence of accused-appellant
with regard to the offence under Section 302
r/w Section of 149 IPC and convict the
accused-appellant for the offence under
Section 304B of IPC. The period undergone
would be just and proper as the accusedappellant is in jail for more than 10 years. The
conviction and sentence of appellant under
Section 302 of IPC is set aside and appellant is
convicted and is sentenced under Section
304B of IPC to the period already undergone.
The conviction and sentence under Section 3
and 4 of Dowry Prohibition Act is maintained.
All the sentences to run concurrently as
directed by learned trial court. Fine and default
sentence maintained.

23. With these observations, the appeal is
partly allowed as modified above.

24. Record and proceedings be sent back
to the court below.
----------
(2022) 9 ILRA 126
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 6384 of 2009

Umesh Mahto & Anr. ...Appellants
Versus
State of U.P. ...Respondent
9 All. Umesh Mahto & Anr. Vs. State of U.P.
127
Counsel for the Appellants:
Sri
Mahesh
Prasad
Yadav,
Sri
P.C.
Srivastava,
Sri
Abhishek
Kumar,
Sri
Ajatshatru Pandey, Sri Ajit Singh, Sri S.N.
Srivastava, Sri Swapnil Srivastava, Sri Vimal
Chandra Pathak

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Indian Penal Code, 1860
- Section 302/34 & 307/34 - The Code of
criminal procedure, 1973 - Section 313 -
Indian Evidence Act, 1872 - Section 134 -
No particular number of witnesses shall in
any case be required for the proof of any
fact - It is quality of evidence which is
required to be taken note of by Courts -
Distinctions between normal discrepancies
and material discrepancies - when the direct
evidence establishes the crime, motive is of
no significance and pales into insignificance
- 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. (Para -21,30,39,55 )

Accused persons killed his brothers - motive and
enmity - P.W.1(brother of deceased) is sole
witness of fact - prosecution case fully
corroborated with medical evidence - offence of
murder committed by both accused appellants - in
furtherance of common intention of both - each
and every circumstance leading to homicidal death
of deceased - proved by cogent & trustworthy
evidence - murder committed at public place - no
material contradiction about whole occurrence
right from the beginning till the death of deceased.
(Para -28,29,34,57,63,66 )

HELD:-Prosecution proved charge under Section
302/34 I.P.C. beyond reasonable doubt against
both accused appellants. Offence under Section
307/34 not proved against accused appellants
beyond reasonable doubt. (Para - 65,66)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-
1. Raj Narain Singh Vs St. of U.P. ,2010 AIR
SCW 521
2. Kusti Mallaiah Vs St. of A.P. ,(2013) 12
Supreme Court Cases 680
3. Vadivelu Thevar Vs The St. of Madras ,AIR
1957 SC 614
4. Lallu Manjhi & anr. Vs St. of Jhar., (2003) 2
SCC 401,
5. Prithipal Singh & ors. Vs St. of Punj. & anr.,
(2012) 1 SCC 10
6. Jhapsa Kabari & ors. Vs St. of Bihar, (2001)
10 SCC 94
7. Amar Singh Vs St. (NCT of Delhi), (2020) 19
Supreme Court Cases 165
8. Ashok Kumar Chaudhary. Vs St. of Bihar,
2008 (61) ACC 972 (SC)
9. Bikau Pandey Vs St. of Bihar, (2003) 12 SCC
616
10. Anil Rai Vs St. of Bihar, (2001) 7 SCC 318
11. Deepak Verma Vs St. of H.P., (2011) 10 SCC
129
12. Gopal Singh Vs St. of Uttrakhand, (2013) 7
SCC 545
13. Hema Vs St., (2013) 81 ACC 1 (Supreme
Court)
14. Bhagwan Jagannath Markad Vs St. of Maha.,
(2016) 10 SCC 537
15. Surinder Kumar Vs St. of Punj., (2020) 2
SCC 563
16. Indrapal Singh Vs St. of U.P., (2022) 4 SCC
631
128 INDIAN LAW REPORTS ALLAHABAD SERIES
17. Saudan Singh Vs St. of U.P., S.L.P. (Cr.) No.
4633 of 2021, Criminal Appeal No. 308/2022
18. Vishnu Vs St. of U.P. , Criminal Appeal No.
204 of 2021

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

1. This criminal appeal is directed
against the judgement and order dated
07.10.2009 passed by Special Judge (E.C.
Act), Gorakhpur in Session Trial No. 270 of
2000 arising out of Case Crime No. 126 of
2002,
P.S.-Sahpur,
District-
Gorakhpur
convicting and sentencing the appellants
under Section 302/34 I.P.C. to undergo life
imprisonment further imposing fine of Rs.
10,000/- each and in default of payment of
fine
to
undergo
one
year
rigorous
imprisonment and under Section 307/34
I.P.C. to undergo seven years rigorous
imprisonment and fine of Rs.5,000/- each and
in default of payment of fine to undergo six
months rigorous imprisonment.

2. The prosecution story unfolds with
an FIR lodged at P.S. Shahpur, District-
Gorakhpur on the basis of written report
given on 22.03.2002 at 19 p.m. by
Muneshwar Mahto, S/o Sipahi Mehto,
brother of the deceased. It was narrated in the
written report by the informant that he as well
as his brothers Suraj Mehto and Rameshwar
Mehto work as sales men in the bakery. The
accused persons Umesh Mehto and Krishna
Mehto, who happen to be their relatives have
been on inimical terms on account of some
land disputes and litigation. On 22.03.2002 at
about 5:30 pm when he and his brother Suraj
Mehto were coming to the city Gorakhpur
from Pipraich after finishing their duty, the
accused persons Umesh Mehto and Krishna
Mehto chased them by motor cycle and
surrounded both of them in front of the farm
of Jitendra Jaiswal near Padri Bazar Kasba.
Both the accused persons got down from the
motor cycle and opened fire with country
made pistols upon the informant and his
brother Suraj Mehto. When they rushed from
the spot to save themselves, the accused
persons fired upon his brother Suraj Mehto
who fell down in the wheat field and died.
The
accused
persons
fled
away
on
motorcycle.
The
informant
Muneshwar
Mehto and the people nearby witnessed the
occurrence. On the basis of the written report
Exhibit A-1
given
by
the
informant
Muneshwar Mehto, Chik FIR Exhibit A-4
was prepared by Cons.Moharrir Saroj Kumar
on 22.3.2002 at 19 pm and its entry was
made in the G.D. rapat number 37, Exhibit A5 at the same time.

3. The investigation was started and the
inquest report Exhibit A-2 was prepared on
23.03.2002, the papers required for post
mortem Exhibit A-7 to A-11 were also
prepared and the autopsy of the dead body of
the deceased was performed by doctor V.K.
Dubey on 23.3.2002 who prepared the
autopsy report Exhibit A-3 and found the
following anti mortem injuries on the body of
the deceased.

(i) fire arm wound of entry 1 cm x
1 cm x cavity deep on right side chest 5 cm
lateral to right nipple margin inverted,
blackening and charring present in an area 14
cm x 7 cm

(ii) fire arm wound of exit 1.5 cm x
1.5 cm on left side chest 5 cm. Below to left
nipple margins everted.

(iii) fire arm wound of entry 3⁄4 cm
x 1⁄2 cm on medial side of right upper arms in.
Middle margin inverted.

(iv) fire arm wound of exit 1 cm x
1 cm on lateral side of right upper arm in
middle, margins inverted.

Internal Examination
9 All. Umesh Mahto & Anr. Vs. State of U.P.
129

Right and left pleura were found
punctured. Both lungs were also punctured.
Clotted blood about 1-1/2 litre was found
present in thoracic cavity, eyes and mouth
closed, rigor mortis present on both limbs.

Cause of death in his opinion was
haemorrhage and shock due to anti mortem
injuries.

4. The I.O. recorded the statement of
the witnesses of fact and formal witnesses,
prepared map Exhibit A-13 after spot
inspection
and
after
completing
the
investigation charge sheet Exhibit A-6 was
submitted to the Court.

5. The case of the accused persons
after their appearance before the Court
being exclusively triable by Sessions Court
was committed to the Court of Sessions by
the Chief Judicial Magistrate, Gorakhpur
on 27.6.2002.

6. The charges under Section 302 read
with Section 34 I.P.C. and Section 307 read
with Section 34 I.P.C. were framed against
the accused persons who denied of the
charges and claimed to be tried.

7. To bring home the guilt of the
accused
persons,
oral
evidence
was
recorded as PW-1 Muneshwar Mehto- first
informant, P.W.-2 Rameshwar witness of
inquest report, P.W.-3 Dr. V.K. Dubey,
P.W.-4 Constable Saroj Kumar Scribe,
P.W.-5 S.I. Parshuram Singh, Second I.O.
P.W.-6 S.I. Suresh Singh witness of inquest
report and secondary witness of S.I.
Rameshwar, first I.O and C.W.-1 Constable
Musafir Prasad.

8.

Documentary
evidence
was
produced as written report Ex. A-1 , inquest
report Ex.A-2, autopsy report Ex.A-3, FIR
Ex.A-4, G.D Ex. A-5, charge sheet Ex.A-6,
photo nash Ex.A-7, Form No. 33 Ex.A-8,
Form No.13 Ex.A-9, R.I. letter Ex.A-10,
C.M.O. letter Ex.A-11, Memo of recovery
of articles taken from the spot Ex.A-12 and
site plan Ex.A-13.

9. The statements of the accused
persons were recorded under Section 313
Cr.P.C. The accused persons denied the
allegations and incriminating evidence
against them and stated that due to family
enmity they have falsely been implicated in
this case, however, no defence evidence has
been adduced by the accused persons.

10. P.W-1 namely Muneshwar Mahto,
who is the sole witness of fact in his oral
testimony has stated that he, his brothers
Suraj Mehto and Rameshwar Mehto are
engaged in the business of sale of biscuits
and slice bread. Accused persons Umesh
Mahto and Krishna Mahto are their
relatives and cousins to each other. Both
the parties had earlier village disputes and
the accused persons were not ready to
compromise. On 22.3.2002 when the
informant along with his brother Suraj
Mahto, was returning from Pipraich to
Gorakhpur after routine business work,
accused persons Umesh Mahto and Krishna
Mahto coming from the side of Pipraich by
motorcycle surrounded both of them near
farm house of Pappu Jaiswal at 5.30 p.m.
When the accused persons pulled desi
pistol from their pockets, the informant and
his brother ran away and when looked
back, the accused persons opened fire upon
his brother, who got injured and died. He
and
the
passers-by
witnessed
the
occurrence. A report in respect of the
occurrence was written by Ajay Kumar
Ojha, which was given in the police station
and FIR was lodged. He has further stated
that it was broad light at the time of
occurrence and the accused persons killed
130 INDIAN LAW REPORTS ALLAHABAD SERIES
his brothers due to enmity of the village.
He has proved the written report Ex. A-1
and has also stated that the inquest report
was prepared before him. Inquest Ex.A-2
has also been proved by this witness.

11. P.W.-2 Rameshwar, the real
brother of the informant is also a witness of
the inquest report who had identified his
thumb impression made over the inquest
report Ex.A-2 in his deposition. He has
stated that his brother Muneshwar Mahto
had informed him regarding the murder of
his brother Suraj. He has further stated that
at the time of occurrence he was at his
room and preparing dinner.

12. P.W.-3 Dr. V.K. Dubey has
prepared autopsy report of the deceased
which he has proved as Ex.A-3 in his
evidence. He has opined that the cause of
death of the deceased was haemorrhage and
shock due to anti mortem fire arm injuries.

13. P.W.-4 Head Moharrir, Saroj
Kumar, the Scribe in his evidence has
proved the FIR of the case as Ex.A-4 and
has stated that on the basis of the written
report of the informant Muneshwar Mahto
he had prepared the Chick FIR which is on
record before him. He has also proved the
G.D. of the case as Ex.A-5 as secondary
witness for Head Cons. Musafir Prasad.
However, the aforesaid Head Cons. Musafir
Prasad has subsequently been examined as
C.W.-1 who has proved his hand writing
and signature over the G.D. Ex. A-5, rapat
no. 37 prepared on 22.03.2002 at 19 p.m.

14. P.W.-6 S.I. Suresh Singh, who is
the witness of the inquest report has proved
his hand writing and signature over the
inquest report Ex.A-2 and has also narrated
that the related documents i.e. photo nash
Ex. A-7, form number 33 Ex.A-8, form
number 13 Ex.A-9, R.I. letter Ex.A-10,
C.M.O. letter Ex.A-11 were also prepared
by him in his own hand writing and
signature. This witness has also proved the
fard recovery Ex. A-12 relating to the
articles found on the body of the deceased
and also the articles found on the spot. This
witness is a secondary witness to S.I. Ram
Singh, the first I.O. of the case and has
proved the site plan Ex.A-13.

15. P.W.-5 S.I. Parshuram Singh is the
second I.O. of the case, who has deposed
before the Court that he started the
investigation
on
7.5.2002
and
after
recording the evidence of the eye-witnesses
and witnesses of fard recovery and scribe
and submitted charge sheet Ex.A-6 to the
Court.

16. On the basis of the aforesaid
evidence, the learned trial Court came to
the conclusion that the prosecution has
succeeded in establishing the guilt against
the accused persons, on the basis of cogent,
consistent and reliable evidence and the
charges against the accused persons were
proved beyond reasonable doubt and,
accordingly, conviction order was passed.

17. Learned counsel for the appellants
has assailed the impugned judgement on
various grounds. It has been argued that the
prosecution version rests upon the sole
testimony of P.W.-1 Muneshwar Mahto,
who is not a reliable witness. It is submitted
that it is mentioned in the FIR that several
independent persons came over the spot but
none was examined by prosecution during
trial. It has also been argued that the place
of occurrence is not fixed which creates
doubt in respect of truthfulness of the
prosecution story. It has further been
submitted that it is an admitted fact that the
parties were on inimical terms since prior
9 All. Umesh Mahto & Anr. Vs. State of U.P.
131
to the occurrence and the accused persons/
appellants have falsely been implicated due
to enmity but the learned trial Court did not
pay attention to this fact at all. It has also
been argued that the prosecution story does
not find corroboration from the medical
evidence and the investigation of the case
has been very faulty. The trial Court in an
arbitrary manner without considering the
evidence on record in proper way passed
the conviction order, which is liable to be
set aside by allowing the appeal.

18. Per-contra, learned A.G.A. has
contended
that
the
prosecution
has
succeeded to prove its case on the basis of
cogent and reliable evidence, there is no
force in any of the contentions raised by the
appellants and the appeal as such is liable
to be dismissed.

19. Heard Shri M.P. Yadav, for the
original accused-appellant herein, Shri
N.K. Srivastava, learned A.G.A. for the
State and perused the record.

20. From perusal of the record it is
evident that P.W.1 Muneshwar Mahto,
brother of the deceased is the sole witness
of fact examined by the prosecution. In
charge sheet Ex. A-6 the names of some
other witnesses as eye witness of the case
have been mentioned. P.W.1 in his
examination in chief has also stated that the
other passers-by and the neighbours

21. Whether non-examination of other
eye-witnesses by the prosecution vitiates
the prosecution story, needs to be examined
in light of the legal position. It is an
established principle of law that to prove a
given fact particular number of witness
need not be examined. In 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. Reference can be
placed 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 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.

22. A close scrutiny of the entire
evidence of P.W.1 goes to show that his
evidence is quite natural, innocent and
trustworthy and he is wholly reliable
witness. His deposition in its continuity is
quite natural and bears no material
contradiction in material particulars such as
to the manner of assault, place of
occurrence, participants of the crime and
the weapon used in the occurrence and all
relating factors are concerned he was real
brother of the deceased and used to work in
bakery shop along with the deceased
bother. They lived in the city of Gorakhpur
and on the fateful day they were returning
from Pipraich to Gorakhpur. In the evening
both the brothers were going together when
the occurrence happened near Jaiswal farm
house. In this way the presence of P.W.1 on
the spot at the time of occurrence was quite
natural. He is not a chance witness but he
was accompanying the deceased at the time
of occurrence. He has clearly stated in his
evidence that both the accused persons
chased them and opened fire and his
brother died due to the fire arm injury. Prior
to this they were surrounded by the accused
persons who came on spot by motor cycle
and got their country made pistols out from
their pockets. When P.W.1 and his brother
ran away they were chased by the accused
persons. This shows the intention of the
accused persons to kill the deceased. They
had come on spot with full preparation to
finish the deceased, Suraj Mahto. There is
132 INDIAN LAW REPORTS ALLAHABAD SERIES
nothing in the cross-examination of P.W.1
which goes to show any infirmity or
material contradiction. In the autopsy
report Ex.A-3 the doctor has found that the
cause of death was haemorrhage and shock
due to anti mortem injuries and two fire
arm entry wounds coupled with the exit
wounds were found on the body of the
deceased. In the inquest report Ex.A2, the
panchas have also opined that due to the
gun shot injury the death of the deceased
has been caused. During investigation, this
theory was found reliable and cogent and
decision of trial Court is based on these
facts. P.W.1 has also deposed regarding the
prior enmity between the parties.

23. Learned counsel for the appellants
has vehemently argued that P.W.1 in his
cross-examination has stated that they were
coming by cycles and the accused came
from behind by motor cycle from the right
direction but while driving the motor cycle
they did not open fire upon them. He has
also stated that the accused persons had
opened only two fires and the injuries
thereof were inflicted only upon his
brother. Learned counsel has further
submitted that the statement of P.W.1
creates a doubt regarding the truthfulness
of the prosecution story. Had the accused
persons any intention to kill the deceased, it
was very easy for them to fire upon him
when he was on bicycle and the accused
persons were coming from behind.

24. We do not find any force in this
contention of the learned counsel for the
appellants.

25. The perusal of the statement of
P.W.1 shows that the accused persons
firstly surrounded the informant and his
brother and when they tried to escape they
opened fire and committed the murder of
the deceased. It makes no difference if they
did not open fire on them when they were
on their bicycles. It was the choice of the
accused persons as to what mode of attack
they opted.

26. The Hon'ble Supreme Court in
Kusti Mallaiah Vs. State of Andhra
Pradesh (2013) 12 Supreme Court Cases
680 has laid down as follows:

"23. It has been held in catena of
decisions of this Court that there is no legal
hurdle in convicting a person on the sole
testimony of a single witness if his version
is clear and reliable, for the principle is
that the evidence has to be weighed and not
counted. In Vadivelu Thevar v. The State
of Madras AIR 1957 SC 614, it has been
held that if the testimony of a singular
witness is found by the court to be entirely
reliable, there is no legal impediment in
recording the conviction of the accused on
such proof. In the said pronouncement it
has been further ruled that the law of
evidence does not require any particular
number of witnesses to be examined in
proof of a given fact. However, faced with
the testimony of a single witness, the court
may classify the oral testimony into three
categories, namely, (i) wholly reliable, (ii)
wholly unreliable, and (iii) neither wholly
reliable nor wholly unreliable. In the first
two categories there may be no difficulty in
accepting or discarding the testimony of the
single witness. The difficulty arises in the
third category of cases. The court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial,
before acting upon the testimony of a single
witness. Similar view has been expressed in
Lallu Manjhi and another v. State of
Jharkhand (2003) 2 SCC 401, Prithipal
Singh and others v. State of Punjab and
9 All. Umesh Mahto & Anr. Vs. State of U.P.
133
another (2012) 1 SCC 10 and Jhapsa
Kabari and others v. State of Bihar (2001)
10 SCC 94.

27. The same 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).

28. On the analysis of evidence of
P.W.1 we find that his evidence is cogent
and
trustworthy
and
further
gets
corroboration from the medical evidence.

29. The minor discrepancies found in
his evidence are ignorable and he is a
wholly reliable witness.

30. In Ashok Kumar Chaudhary.
Vs. State of Bihar 2008 (61) ACC 972
(SC) it has been categorically held that if
the testimony of an eyewitness is otherwise
found trustworthy and reliable, the same
cannot be disbelieved and rejected because
certain insignificant, normal or natural
contradictions have been appeared into his
testimony.
If
the
inconsistencies,
contradictions,
exaggerations,
embellishments and discrepancies in the
testimony are only normal and not material
in nature, then the testimony of an
eyewitness has to be accepted and acted
upon.
Distinctions
between
normal
discrepancies and material discrepancies
are that while normal discrepancies do not
corrode the credibility of a party's that the
case, material discrepancies do so. The
evidence of P.W.1 has also been assailed on
the ground that he is the real brother of the
deceased and as such he is an entrusted
witness and his evidence cannot be
accepted as a gospel truth.

31. Learned counsel for the appellants
has contended that the prosecution case
does not find support from the medical
evidence and has submitted that there are
material contradictions between the occular
evidence and medical evidence. He has
referred the deposition of P.W.1, who in his
examination-in-chief has stated that when
the informant and his brother were running
away they were chased by both the accused
persons
who
opened
fire
upon
the
deceased. It has been argued that in the
autopsy report a fire arm entry wound has
been found on right side chest which was 5
cm lateral to the right nipple. The second
fire arm entry wound was found on medial
side of right upper arm in middle. Both the
entry wounds had corresponding exit
wounds. It has been argued by the learned
counsel for the appellants that if the
informant and the deceased were running
and they were being chased by the accused
persons then how the one gun shot injury
could be inflicted into the chest of the
deceased instead of, on the back of the
chest. In this respect my attention is drawn
towards the statements of P.W.1 who in his
examination-in-chief has stated that when
134 INDIAN LAW REPORTS ALLAHABAD SERIES
he and his brother were being chased by the
accused persons they looked back them and
at the same time the fire was opened. In his
cross-examination also he has clarified that
when he and his brother were being chased
by the accused persons they turned and
looked back and at the same moment the
fire was opened. That is why the fire was
not inflicted upon the back of the deceased
but since he was in a little bit turning
position the fire inflicted upon his chest and
also upon the right upper arm. The doctor
P.W.3 in his deposition has proved the
autopsy report. He has also stated that in
the first entry wound blackening and
charring was present, which means that it
was a close fire. P.W.1 in his crossexamination has stated that fire was made
from a distance 2-1/2 -3 feet, which
inflicted upon his brother.

32. Keeping in view the principles of
medical jurisprudence, it can be safely
opined that broadly speaking rifles, pistol
and revolvers, if fired within 3 feet may
show blackening, tattooing, charring and
wad of cartridge may be present in or
around the wound.

33. P.W.3 in his cross-examination
has stated that:

"मृर्ि िे शरीर पर िो अलि-अलि
फायर से चोटे आयी थी। पहली चोट सामने से शरीर
िे िागहने र्रफ से मारने से आयी होंिी। मृर्िा िे
शरीर पर आयी चोट नं० 3 िुछ ि र से िोली चलाने
से आयी होंिी। चोट नं० 1 िम ि री नजिीि से
िोली चलाने से आयी होिी।"

34. Hence, from the above, it is clear
that
the
prosecution
case
is
fully
corroborated with the medical evidence and
evidence of P.W.1 is also consistent with
the medical evidence.

35. It has been further contended by
learned counsel for the appellants that the
place of occurrence is doubtful which
creates
a
genuine
suspicion
about
truthfulness of the prosecution story.

36. The site plan Ex.A-13 is on
record, which has been proved by P.W.6
S.I. Suresh Sharma as secondary witness
for the first I.O. S.I. Raghuveer Singh. In
the site plan Ex.A-13 the places where the
accused persons were present and where
they stopped their motor cycle, the
direction towards which the deceased and
the informant ran away, the place from
where the fire was open, the field where the
dead body was recovered, and the other
existing fields, roads and village situated
nearby have been clearly shown by the
Investigating Officer. All the positions
shown in the site plan get support from the
evidence of P.W.-1.

37. P.W.6, who is the witness of inquest
report has stated that he had found the dead
body in the standing crops of wheat field and
the same has been shown in the site plan
Ex.A-13. The wheat field of Jitendra Jaiswal
which is situated on spot has also been shown
in Ex.A-13. It has been clearly stated in the
statement of P.W.1 and also find place in the
written report Ex.A-1 as to whom the
occurrence happened and the I.O. has
inspected the spot with the informant as P.W.1.
In the FIR Ex.A-4 the place of occurrence has
been mentioned as in the village Padri Bazar
infront of farm of Jitendra Jaiswal and the I.O
has also found the same. Thus the entire oral
and documentary evidence in respect of the
place of occurrence are in consonance with
each other and the place of occurrence is fixed
and proved without any doubt.

38. Learned counsel for the appellants
has vehemently argued that the motive
9 All. Umesh Mahto & Anr. Vs. State of U.P.
135
assigned behind the crime has not been
properly proved. It has also been argued
that if there was an enmity between the
parties the accused undoubtedly have been
falsely implicated due to enmity. To meet
out this plea, it is to be remembered that in
the factual scenario of this case it is very
much clear that the prosecution case rests
upon direct evidence. P.W.1 is the witness
of the occurrence who has clearly proved
the occurrence and all the incriminating
circumstances relating thereto.

39. The trial Court has discussed the
various aspects of motive and enmity existing
between the parties in the present case.
Reliance has been placed upon Bikau
Pandey Vs. State of Bihar (2003) 12 SCC
616 wherein it has been held that when the
direct evidence establishes the crime, motive
is of no significance and pales into
insignificance.

40. In Anil Rai Vs. State of Bihar
(2001) 7 SCC 318 it has been held that
enmity is a double edged weapon which can
be a motive for the crime as also the ground
for false implication of the accused persons.

41. There are catena of decisions on the
point that in a case based upon the eye
witness account, the motive loses its
significance. In Deepak Verma Vs. State of
Himachal Pradesh (2011) 10 SCC 129 It
has been held as under:

"...Proof of motive is not a sine qua
non before a person can be held guilty of
commission of crime. Motive being a matter
of mind, is more often than not difficult to
establish through evidence."

42. However, in this case a motive has
been assigned in the FIR to the effect that
the
 parties have been on enmical terms as they
have some land and litigation disputes.
Enmity between the parties is no doubt a
double edged weapon. If on account of
enmity
the
accused
can
be
falsely
implicated by the complainant party, at the
same time due to that very enmity the
accused may commit crime also against the
complainant party.

43. P.W.1 in his examination-in-chief
has admitted the factum of previous enmity
between the parties. He has been cross
examined at length, on this point wherein
he has clarified that the parties belonged to
one Khandan and they have some land
disputes in respect of the ancestral property.
Civil litigation had also been pending in
respect of the aforesaid land and the parties
had quarrel also in respect thereof much
before the present incident.

44. In the discussion mentioned
herein above, it has been found that the
evidence of P.W.1 is cogent, trustworthy
and innocent, hence, if there was any
enmity between the parties prior to the
present occurrence, it does not affect
adversely the prosecution case which is
otherwise proved by the reliable ocular
evidence of P.W.1 and the theory of false
implication fails as such.

45. On the basis of the above, I do not
find any substance in the contention of the
learned counsel for the appellants so far as
the motive is concerned.

46. The genuineness of the FIR has
also been hit by the learned counsel for the
appellants. It has been argued that FIR has
been lodged after 1-1/2 hours of the
occurrence whereas the police station is
only 5 km. away from the place of
occurrence.
136 INDIAN LAW REPORTS ALLAHABAD SERIES

47. Per-contra, learned A.G.A. has
contended that the FIR was prompt one and
has been lodged only after 1-1/2 hours of
the occurrence.

48. To examine this issue we have to
consider certain other aspects also. Chick
FIR Ex.A-4 and G.D. Ex.A5 have been
proved by the scribe of the FIR. Perusal of
Ex.A-4 shows that the FIR was lodged on
22.03.2002 at 19 p.m, the police station is
situated at a distance of 5 km from the
place of occurrence. P.W.1 in his crossexamination has stated that after the
occurrence he remained at the place of
occurrence for 45 minutes and then he
dictated the report to Ajay Kumar Ojha
who came over there. It can be easily
understood that after the blind murder of
his brother the informant-P.W.1- would
have been in a state of shock and grief. He
has further stated in his cross-examination
that after dictating the tehrir he along with
Ajay Ojha went to the police station by
cycle and then FIR was lodged. No doubt it
explains the whole story of time from the
occurrence up to the lodging of the FIR.
This fact cannot be ignored that the inquest
report has been prepared on 23.03.2002
which bears the crime number of the case
as 126 of 2002 under Section 302, 307
I.P.C. Hence it cannot be said from any
corner that the FIR was lodged delayed or
anti time or it was a result of deliberations
and after thought. The trial Court has
discussed this issue at length in the
impugned order and has arrived at the right
conclusion that the FIR was not delayed
and it was a genuine document.

49. Learned counsel for the appellants
has also pointed out some contradictions in
the statement of P.W.1. so far as the
contents of FIR and written report are
concerned but from perusal of the whole
testimony of P.W.1 it is evident that the so
called
contradictions
are
minor
contradictions and are ignorable. It is also
pertinent to mention here that the FIR is not
an
encyclopedia
and
there
is
no
requirement of law that every minute detail
should find place in the FIR. One should
always remember the mental state of P.W.1
before whom the real brother was shot
dead.

50. Another submission made by the
learned counsel for the appellants is that
investigation of this case is faulty and no
murder weapon has been recovered from
either of the accused persons.

51. So far as the recovery of the
murder weapon is concerned, 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.

52. No other material negligence on
the part of the I.O. as been pointed out by
the learned counsel for the appellants. From
perusal
of
the
evidence
on
record,
particularly on the deposition of the I.O. of
the case, no material negligence or
omission on the part of the I.O. is found.
Moreover, since the prosecution case is
well established and proved by the ocular
evidence of the sole eye-witness supported
with the medical evidence, negligence or
omission, if any, on the part of the I.O. does
9 All. Umesh Mahto & Anr. Vs. State of U.P.
137
not adversely effect the prosecution version
at all.

53. 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 cause of repetition that investigation in
the present case does not suffer with any
material irregularity in the investigation.

54. Learned counsel for the appellants
has vehemently argued that the P.W.1
Muneshwar Mahto, who is said to be the
sole eye-witness of the occurrence is the
real brother of the deceased and as such he
is an interested witness. The prosecution
was under obligation to produce any other
independent witness of fact but it has not
been done deliberately. It has been
submitted that the evidence of an interested
and relative witness cannot be relied upon
particularly when the ocular version of only
that witness is available on record.

55. In this 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.

56. 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.

57. In the present case, no doubt the
witness Muneshwar Mahto is the real
brother of the deceased but on this ground
his evidence cannot be discarded because
from the discussion made above even after
a careful scrutiny his evidence is found
credible and trustworthy and his presence
at the place of occurrence is quite natural .

58. From the aforesaid discussion, it
is very much clear that cumulative effect of
the statement of witnesses examined by the
prosecution, overwhelmingly establishes
commission of offence by the appellants
and in the facts and circumstances of the
case their guilt has been proved beyond
reasonable doubt.

59. One more aspect to be taken into
consideration is that both the accused
appellants have been convicted through the
aid of Section 34 I.P.C. Section 34 I.P.C.
reads like this:

Section 34. "Acts done by several
persons
in
furtherance
of
common
intention.--When a criminal act is done by
several persons in furtherance of the
common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone".

60.