Allahabad HC Speedy Trial Judgment

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AFR
Reserved
Case :- JAIL APPEAL No. - 5192 of 2005
Appellant :- Ram Lakhan

Respondent :- State
Counsel for Appellant :- From Jail, Dharmendra Singh
Counsel for Respondent :- A.G.A.
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon'ble Chandra Dhari Singh,J)
1. Heard Mr. Arvind Kumar Singh, learned Amicus Curiae for

the appellant, Mr. Nagendra Bahadur Singh, learned A.G.A. for
the State and perused the record.
2. This instant jail appeal has been preferred against the

judgment and order dated 24.01.2001, passed by the 7 th
Additional District and Sessions Judge, Farrukhabad in Session
Trial No.525 of 1997, by which the accused-appellant had been
convicted for offence punishable under Section 302 I.P.C. and
sentenced to undergo life imprisonment along with fine of
Rs.2,000/-. In the event of default in payment of fine, the
appellant would further undergo simple imprisonment for six
months.
3. Brief facts of the case.
(I) The story of the prosecution is that on 13.09.1996, when

deceased Chhavinath was coming back from Mainpuri Bazar to
his village, near Nagla-Ghus at about 8:00 p.m., the accused-
appellant Ram Lakhan and his two unknown friend started
inflicting knife blow on him. He started crying and asked help
from the people. After hearing his loud noise, Shivpal PW-3 and
Manoj PW-4 reached at the spot with torch and in the torch
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light, they had seen that the accused Ram Lakhan was inflicting
knife blow to deceased. They tried to save him but the
accused-appellant fled away from the place of incident while
threatening them. Chhaviram died on the spot. The Tehrir was
made on 14.09.1996, by complainant Shivpal PW-3 at police
station Mohammadabad. On the basis of the Tehrir, an F.I.R.
was lodged against the accused-appellant and other two
unknown person for offence punishable under Section 302
I.P.C.
(II) The police after registering the F.I.R., sent the dead body
of the deceased to hospital for post-mortem. After completion of
the investigation, the police filed charge-sheet against the
accused Ram Lakhan, Jauhari Lal Jatav and Brijbhan for
offence punishable under Section 302 I.P.C.
III. Upon considering the materials available on record and

hearing the counsel of both sides, the appellant was charged
for offence punishable under Section 302 I.P.C. The charge
was read over and explained to him. The applicant pleaded not
guilty and claimed for trial.
IV. The prosecution in order to prove, its case examined

PW-1 Harpal, PW-2 Ram Shree, PW-3 Shiv Pal, PW-4 Manoj
Kumar, PW-5 Assistant Sub-Inspector Nabab Sher Khan, PW-6
Dr. Jagmohan Verma, PW-7 S.I. Har Prasad Singh. Site plan
Ex.Ka-5, memo of blood stained soil and simple soil Ex.Ka-6,
memo of recovery of blood stained shirt, paint, etc. Ex.Ka-7
were prepared by the police.
V. After appreciation of the evidences on record and other

circumstances, the trial court had convicted the appellant for
offence punishable under Section 302 and sentenced him to
undergo imprisonment for life and to pay a fine of Rs.2000/-, in

default of payment to undergo simple imprisonment for six
months.
4. The Criminal Jail Appeal bearing No. 5192 of 2005 was

filed against the order dated 24.01.2001, passed by the learned
trial court in S.T. No.525/97 before this Court.
5. Mr. Arvind Kumar Singh learned Amicus Curiae appearing

for the appellant has submitted that appellant has been falsely
implicated in the crime for offence punishable under Section
302 I.P.C. It is submitted that the incident took place on
13.09.1996 at 8:00 p.m., but F.I.R. was lodged on next day i.e.
14.09.1996 at about 8:35 a.m. The delay in lodging F.I.R. was
not explained with any adequate reason, therefore, unexplained
long delay in filing the complaint, creates doubt as to the
genuineness of the prosecution case. He further submitted that
PW-1 Harpal, PW-2 Ram Shree and PW-3 Shivpal have stated
in their deposition that when PW-1 and PW-3 reached at the
spot, the dead body of deceased was lying there, they had not
seen any person at the spot. In the main chief testimony, PW-1
and PW-3 stated that they had saw the incident but in cross
examination, they denied that they had seen any person to kill
the deceased. PW-1, PW-3 and PW-4 have not declared as
hostile witnesses. Therefore, the prosecution is bound by the
statement of the witnesses though not declared hostile. He
further submitted that the weapon used in the offence has also
not been recovered. Therefore, in view of the above facts and
circumstances, conviction of appellant under Section 302 I.P.C.
is unwarranted and thus, the criminal appeal deserves to be
allowed.
6. On the other hand, learned A.G.A. appearing for the State

has vehemently opposed the appeal, contending that there was

no adequate delay in lodging the F.I.R., some delay in lodging
the F.I.R. would not be fatal to the prosecution case. The ocular
evidences as well as other material evidences corroborated to
each other and supported the case of the prosecution. There
are sufficient materials against the accused person to convict
him for offence punishable under Section 302. Therefore, the
appeal lacks a merit and is liable to be dismissed.
7. We have considered the rival submissions made by the

learned counsel for the parties and perused the records.
8. PW-1, Harpal son of Ram Bhajan stated in his deposition

that about two and half years before, the deceased was
murdered when he was coming back from Manipur Bazar. In
the chief testimony, he has stated that he had seen that the
appellant had given knife blow to deceased. But in the cross
examination, PW-1 has put dent on the story of the prosecution
by stating that he had not seen any person to kill the deceased
on the site, and when he reached, only dead body was lying.
But he had not been declared as hostile witness.
9. PW-2, Ms. Ram Shree stated in her testimony that the

complaint had been written by her on the dictation given by,
PW-3, Shivpal. It was further stated in the testimony that the
said Tehrir (Complaint) had been filed in the police station on
the signature of PW-3 Shivpal. Tehrir was also read out in front
of PW-3, Shivpal. In the cross examination, she denied that
police had taken her statement in the police station.
10. PW-3, Shivpal son of Ram Bhajan stated in his chief

testimony that when he reached on the spot after hearing of
loud cry of the deceased, they saw that accused and other two
co-accused were inflicting knife below on the body of

deceased. They objected and tried to save the deceased, but
the accused ran away from the place of incident. He further
stated in his testimony that he had seen the incident in light of
torch. But in cross-examination PW-3, complainant has put
dent on the story of the prosecution by stating that when they
reached on the spot after hearing cry of the deceased, the
deceased was lying on the earth. He was not dead at that time,
he died after sometime. He further stated in his statement that
he had not seen the accused at the place of the incident. PW-3
has also not declared as hostile witness.
11. PW-4, Manoj Kumar son of Harpal Singh stated that

before two and half years, when the deceased was coming
back from the Mainpuri Bazar near Nagla-Ghus in the field of
one Ahibaran at about 8-9 p.m., Ram Lakhan and his two
unknown friend had killed the deceased by inflicting the knife
blow on her body. After hearing loud cry of deceased, he,
Harpal and Shivpal reached on the spot with torch and in the
light of torch, they had seen the incident where the accused
person were inflicting knife blow to the deceased. In his cross-
examination, he stated that when he reached on the spot, the
deceased was lying and nobody was present on the spot. He
had seen three-four people were running away but due to
darkness, they could not be recognized. The prosecution had
also not declared this witness as hostile witness.
12. PW-5, A.S.I. Nawab Sher Khan stated in his testimonies

that on the written complaint of Shivpal, prepared the chik of
F.I.R. and also prepared the G.D. Report. On the basis of the
F.I.R., he lodged the Case Crime No.327 of 1996 under Section
302 I.P.C. against the accused/appellant. He also proved his
signature on the G.D. as Ex.Ka-3. He clarified in the cross-

examination that the complainant came to the police station at
about 8:30 p.m. and on written complaint, he lodged the case
as Case Crime No.327 of 1996, under Section 302 I.P.C.
against accused Ram Lakhan and other two unknown person.
He further stated that he had not taken any statement of the
complainant at that time when the complainant had come in the
police station with the written complaint. He also refused to
remember that the accused person was arrested during his
posting in the concerned police station.
13. PW-6, Dr. Jagmohan Verma stated in his deposition that

on 14.09.1996, when he was posted in Ram Manohar Hospital,
Farrukhabad, the dead body of deceased Chhavinath aged
about 55 years was brought by Constable Police, Kanhaiya Lal
and Constable Police Dinesh Chandra in evening at about 4-10
p.m. for the post-mortem. The post-mortem of the dead body
was conducted by him. As per post-mortem report there were
following injuries :
1. Incised wound of 6 cm x 2 cm x deep till head was

present on the left side of the head, aligning the
eyelid. Frontal wound was present above the brain,
the brain was rapture and the blood was oozing out.
(Sir I am not confirmed about what is Aluda).
2. Incised wound of 4 cm x 1 cm x bone deep entering
into left eye, aligning the eye and nose. Nose bone
was also incised.
3. Incised wound of 4 cm x 3 cm x muscle deep, on the
left side of the face at the distance of 1.5 cm from
injury no.2.
4. Incised wound of 2 cm x 1 cm x deep till mouth was
present on the left corner of the face.

5. Five incised wounds measuring between 4.5 cm x
1.5 cm x bone deep to 1.5 cm x 0.3 cm x muscle
deep were present on the left side of the face in the
area admeasuring 12 cm x 9 cm.
6. Incised wound of 5 cm x 1.5 cm x bone deep,
present on the left side of the neck at 2 cm from the
ear.
7. Incised wound of 3 cm x 1 cm x deep till chest on the
front of right side at the distance of 10 cm from the
right nipple, present deep upwards.
8. Linear abrasions which are ten in number were found
on the left side of the neck in the region measuring
11 cm x 9 cm and they were admeasuring from 1 cm
to 3 cm.
9. Marks of abrasion of 6 cm x .2 cm on the left side of
chest on at below region.
10. Incised wound 3 cm x 1.5 cm x deep till mouth on the
upper lip at the right side. Teeth were broken and
gums were crushed.
Doctor opined that the reason of the death of the

deceased was due to ante-mortem injuries and he further
opined that the death was occurred at about 8:00 p.m. on
13.09.1996.
14. PW-7, A.S.I. Har Prasad Singh, who was Investigating

Officer of the case stated in his testimony that at the instance of
the complainant the site plan was made. The blood stain soil
and without blood stain soil was collected from the site. He
recovered blood stained shirt, angauchha, chappal and other
articles of the deceased from the spot and made recovery
memo. On 20.09.1996, the accused was surrendered in the

court below and his arrest was entered in the case diary. On
22.09.1996, post-mortem report of deceased Chhaviram was
received by the police. He went to the village Bhatkurri on
25.09.1996, and had taken the statement of complainant and
witnesses of panchnama.
15. For every question put to the appellant under Section 313
Cr.P.C., the same reply was given that he was innocent and he
submitted that he would not adduce any evidence in his
defence. He further stated that he had been falsely implicated
in the offence punishable under Section 302 I.P.C.
16. Before we proceed to examine the impugned judgment of

the court below and facts of the case, it may be desirable to
refer to the settled principles of law which have to be applied in
the instant case.
17. Section 300 I.P.C. reads as under:
300. Murder. Except in the cases hereinafter

excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of
causing death, or
Secondly. If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is
caused, or
Thirdly. If it is done with the intention of causing
bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or
Fourthly. If the person committing the act knows that

it is so imminently dangerous that it must, in all

probability, cause death or such bodily injury as is likely
to cause death, and commits such act without any
excuse for incurring the risk of causing death or such
injury as aforesaid.
18. The term 'murder' is derived from the Germanic word

'morth', which means 'secret killing'. 'Murder' is when one is
slain with a man's will, and with malice or forethought. Murder
is unlawful homicide with malice afterthought. Murder is a more
serious offence than the culpable homicide. Culpable homice is
a genus, whereas murder is a species. An offence cannot
amount to murder unless it falls within the definition of the
culpable homicide.
19. Section 300 I.P.C. defines murder with reference to

culpable homicide defined in Section 299.
Homicide is a causing of the death of one person by
another. Homicide may be culpable, and culpable homicide
may amount to murder.
20. Homicide is culpable homicide simplicitor, if death is
caused by the doing of an act with the intention of causing
death, or with the knowledge that the doer of the act is likely by
such act to cause death, or with the intention or knowledge of
causing death, following circumstances namely :
(i) If the offender, while deprived of the power of self
control under rage and sudden provocation, caused
the death of the person who gave the provocation,
or causes the death of any other person by mistake
or accident.
(ii) If the offender, whilst exercising in good faith the
right of private defence, exceeds the power given by
10
the law and causes the death of the person against

whom he is asserting the right, without
premeditation and intention of doing more harm
then is necessary for such offence.
(iii) If the offender causes the death by doing a lawful
act in an unlawful manner.
21. Essentials of the offence of murder
The offence is murder in the following cases :

(i) If the act is done with the intention of causing death.
(ii) If the act is done with intention of causing such
bodily injury as the offender knows to be likely to
cause the death of the preson to whom the harm is
caused.
(iii) If the act is done with the intention of causing such
bodily injury as is sufficient in the ordinary course of
nature to cause death.
(iv) If the act is done with the knowledge, that it is so

imminently dangerous that it must, in all probability,
cause death by such bodily injury as is likely to be
caused death, such act is permitted without any
excuse of incurring the risk of causing death or
injury.
22. In Virsa Singh vs. State of Punjab (AIR 1958 Supreme

Court 465), it was held that in the absence of any
circumstances to show that the injury was caused accidental or
unintentional, the presumption would be that the accused had
intended to cause the inflicted injury and the conviction was
upheld. The Supreme Court, further laid down in order to bring
a case within Clause 3 of Section 300, the prosecution must
prove the following:
11
i. Firstly, it must establish, quite objectively, that a

bodily injury is present.
ii. Secondly, the nature of injury must be proved, it is
purely objective investigation.
iii. Thirdly, it must be proved that there was an intention
to inflict the particular bodily injury, that is to say,
that it was not accidental or unintentional or that
some other kind of injury was intended.
Once these three elements are proved to be
present, the inquiry proceeded further, and
iv. Fourthly, it must be proved that the inquiry of the

type just described made up of the three elements
set out above, is sufficient to cause death in the
ordinary course of nature. This part of the inquiry is
purely objective and in inferential and as nothing to
do with the intention of the offender.
23. In Thangaiya vs. State of Tamilnadu 2005 9 SCC 650,

the Hon'ble Supreme Court categorically ruled that Clause 4 of
Section 300 would be applicable where the knowledge of the
offender as to probability of death of a person approximates to
a practical certainty. Such knowledge on the part of the
offender must be of the highest degree of probability.
24. In Sehaj Ram vs. State of Haryana, AIR 1983 Supreme

Court 614, the accused who is a Constable fired several shots
with a 303 Rifles at another Constable. One shot hit the victim
beneath the knee of his right leg and he fell down. Even after
that, the accused fired another shot at him, though the shot did
not hit him.
Since the bullet hit the deceased below the knee, it was
contended that intention of the accused was only to frighten the
12
deceased or cause grievous hurt and not to kill him. The

Hon'ble Supreme Court rejected the contention and held that
the act would fall within the ambit of Clause 4 of Section 300
and convicted the accused of murder.
If a witness is not declared hostile by prosecution.
25. In the instant case the PW-1 Harpal, PW-3 Shivpal and
PW-4 Manoj Kumar had not supported the case of the
prosecution, but they had not been declared as hostile witness
by the prosecution. The issue in the instant case is that if a
witness is not declared hostile by prosecution, then what is the
relevance of the such witnesses for purpose of prosecution to
prove its case. In the instant case, it is not known as to why the
public prosecutor in the trial court failed to seek permission of
the court to declare them hostile. In the present case, the
prosecution never declared Pws 2, 3 and 4 hostile. Their
evidence did not support the prosecution. Instead, it supported
the defence. There is nothing in law that precludes the defence
to rely on their evidence.
26. In Mukhtiar Ahmad Ansari vs. State (NCT of Delhi), the

Hon'ble Supreme Court held that :
29. The learned counsel for the appellant also urged

that it was the case of the prosecution that the police
had requisitioned a Maruti car from Ved Prakash Goel.
Ved Prakash Goel had been examined as a
prosecution witness in this case as PW-1. He,
however, did not support the prosecution. The
prosecution never declared PW-1 hostile. His
evidence did not support the prosecution. Instead, it
supported the defence. The accused hence can rely on
that evidence.
30. A similar question came up for consideration before
this Court in Raja Ram vs. State of Rajasthan. In that
case, the evidence of the doctor who was examined as
a prosecution witness showed that the deceased was
being told by one K that she should implicate the
13
accused or else she might have to face prosecution.

The doctor was not declared hostile. The High Court,
however, convicted the accused. This Court held that it
was open tot he defence to rely on the evidence of the
doctor and it was binding on the prosecution.
31. In the present case, evidence of PW-1 Ved

Prakash Goel destroyed the genesis of the prosecution
that he had given his Maruti car to the police in which
the police had gone to Bahai Temple and apprehended
the accused. When Goel did not support that case, the
accused can rely on that evidence.
27. In the case of Akil @ Javed vs. State of (NCT of Delhi),

the Hon'ble Supreme Court held that:
27. In the earlier part of our judgment we have
referred to the reliance placed upon by the trial Court
as well as by the High Court on the evidence of PW.20
as regards the identity of the appellant. Both the Courts
had made a pointer to the adjournment granted at the
instance of the accused for the cross-examination of
PW.20. The chief- examination of PW.20 was recorded
on 18.09.2000 and for the purpose of cross-
examination the case was adjourned by two months
and was posted on 18.11.2000. The reason for
adjournment was a request on behalf of the appellant
that his counsel was busy in the High Court. PW.20
identified the appellant as the person who attempted to
molest the complainant PW.17 and that when the same
was questioned by the deceased the appellant shot at
him who fell down on the bed and who was later
declared dead by the doctors. However, in the cross-
examination PW.20 stated that the identity of the
appellant on the earlier occasion was at the instance of
Inspector Rajinder Gautam who tutored him to make
such a statement.
28. It is also relevant to note that the said witness PW-
20 was not treated as a hostile witness in spite of
diametrically opposite version stated by him as regards
the identity of the appellant. Nevertheless, both the
Courts below proceeded to hold that the identification
made by PW.20 cannot be ignored. By relying upon
Section 155 of the Evidence Act and also the decision
reported in Paramjeet Singh and Suraj Mal learned
counsel for the appellant contended that such a
testimony of the witness is wholly unreliable. In
14
Paramjeet Singh SCC pp. 445-46, para 10, this Court

held that howsoever SCC p.726, para 2 . where
witnesses make two inconsistent statements in their
evidence either at one stage or at two stages, the
testimony of such witnesses become unreliable and
unworthy of credence and in the absence of special
circumstance no conviction can be based on the
evidence of such witnesses.
29. Apart from the above decisions relied upon by
learned counsel for the appellant, we ourselves have
noted in the decisions in Kunju Muhammed, Nisar
Khan, Mukhtiar Ahmed Ansari and Raja Ram, wherein
this Court has specifically dealt with the issue as
regards hostile witness who was not treated hostile by
the prosecution and now such evidence would support
the defence (i.e.) the benefit of such evidence should
go to the accused and not to the prosecution. In
paragraph 16 of the decision in Kunju Muhammed alias
Khumani (supra), this Court has held as under:
16. We are at pains to appreciate this reasoning
of the High Court. This witness has not been treated
hostile by the prosecution, and even then his evidence
helps the defence. We think the benefit of such
evidence should go to the accused and not to the
prosecution. Therefore, the High Court ought not to
have placed any credence on the evidence of such
unreliable witness.
30. In Nisar Khan alias Guddu (supra) in paragraph 9

this Court has held as under:
9.We are of the view that no reasonable
person properly instructed in law would allow an
application filed by the accused to recall the
eyewitnesses after a lapse of more than one year that
too after the witnesses were examined, cross-
examined and discharged.
31. In Mukhtiar Ahmed Ansari (supra), this Court in

paragraphs 29 and 30 dealt with the hostile witness
who was not declared hostile and the extent to which
the version of the said witness can be relied upon as
under:
29. The learned counsel for the appellant also
urged that it was the case of the prosecution that the
police had requisitioned a Maruti car from Ved Prakash
Goel. Ved Prakash Goel had been examined as a
15
prosecution witness in this case as PW 1. He,

however, did not support the prosecution. The
prosecution never declared PW 1 hostile. His
evidence did not support the prosecution. Instead, it
supported the defence. The accused hence can rely on
that evidence.
30. A similar question came up for consideration

before this Court in Raja Ram vs. State of Rajasthan.
In that case, the evidence of the doctor who was
examined as a prosecution witness showed that the
deceased was being told by one K that she should
implicate the accused or else she might have to face
prosecution. The doctor was not declared hostile. The
High Court, however, convicted the accused. This
Court held that it was open to the defence to rely on
the evidence of the doctor and it was binding on the
prosecution.
32. In the decision reported in Raja Ram a similar

issue was dealt with in paragraph 9 and it was held as
under:
9. But the testimony of PW 8 Dr. Sukhdev Singh,
who is another neighbour, cannot easily be
surmounted by the prosecution. He has testified in very
clear terms that he saw PW 5 making the deceased
believe that unless she puts the blame on the appellant
and his parents she would have to face the
consequences like prosecution proceedings. It did not
occur to the Public Prosecutor in the trial court to seek
permission of the court to heard (sic declare) PW 8 as
a hostile witness for reasons only known to him. Now,
as it is, the evidence of PW 8 is binding on the
prosecution. Absolutely no reason, much less any good
reason, has been stated by the Division Bench of the
High Court as to how PW 8's testimony can be
sidelined.
33. We have referred to the above legal position

relating to the extent of reliance that can be placed
upon a hostile witness who was not declared hostile
and in the same breath, the dire need for the Courts
dealing with cases involving such a serious offence to
proceed with the trial commenced on day to day basis
in de die in diem until the trial is concluded. We wish to
issue a note of caution to the trial Court dealing with
16
sessions case to ensure that there are well settled

procedures laid down under the Code of Criminal
Procedure as regards the manner in which the trial
should be conducted in sessions cases in order to
ensure dispensation of justice without providing any
scope for unscrupulous elements to meddle with the
course of justice to achieve some unlawful advantage.
In this respect, it is relevant to refer to the provisions
contained in Chapter XVII of the Criminal Procedure
Code whereunder Section 231 it has been specifically
provided that on the date fixed for examination of
witnesses as provided under Section 230, the
Sessions Judge should proceed to take all such
evidence as may be produced in support of the
prosecution and that in his discretion may permit cross-
examination of any witnesses to be deferred until any
other witness or witnesses have been examined or
recall any witness for further cross-examination.
28. A similar question came up for consideration before the

Hon'ble Supreme Court in Raja Ram vs. State of Rajasthan,
(2005 5 SCC 272). In that case, the evidence of the Doctor who
was examined as a prosecution witness showed that the
deceased was being told by one K. that she who implicate the
accused or else, she might have to face prosecution. The
doctor was not declared hostile. The High Court, however,
convicted the accused. The Hon'ble Supreme Court held that it
was opened to the defence to rely on the evidence of the doctor
and it was binding on the prosecution. Therefore, the testimony
of PW-2, PW-3 and PW-4 are binding on the prosecution as it
is.
Motive
29. When the direct witnesses are not reliable and

contradictions in the statement goes to the roots of the case,
then the motive gets relevance for establishing the case of the
prosecution against accused beyond any doubt. In the present
case, the prosecution has also failed to establish the cogent
17
motive.
30. In the instant case, it was argued that there were no

motive to kill the deceased and therefore, if the prosecution has
failed to prove its case on the basis of eye witnesses which
have not supported the case of the prosecution, the motive
aspect become very important to prove the case of the
prosecution.
31. In Shivji Genu Mohite Vs. State of Maharashtra, this

Court held that in case the prosecution is not able to discover
an impelling motive, that could not reflect upon the credibility of
a witness proved to be a reliable eye-witness. Evidence as to
motive would, no doubt, go a long way in cases wholly
dependent on circumstantial evidence. Such evidence would
form one of the links in the chain of circumstantial evidence in
such a case. But that would not be so in cases where there are
eyewitnesses of credibility, though even in such cases if a
motive is properly proved, such proof would strengthen the
prosecution case and fortify the court in its ultimate conclusion.
But that does not mean that if motive is not established, the
evidence of an eye-witness is rendered untrustworthy.
32. It is settled legal proposition that even, if the absence of

motive as alleged is accepted that is of no consequence and
pales into insignificance when direct evidence establishes the
crime. Therefore, in case there is direct trustworthy evidence of
witnesses as to commission of an offence, the motive part
loses its significance. Therefore, if the genesis of the motive of
the occurrence is not proved, the ocular testimony of the
witnesses as to the occurrence could not be discarded only by
the reason of the absence of motive, if otherwise the evidence
is worthy of reliance. (Hari Shankar Vs. State of U.P., (1996) 9
18
SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12
SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu).
33. While dealing with a similar issue, this Court in State of

U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:
"The motive may be considered as a circumstance

which is relevant for assessing the evidence but if the
evidence is clear and unambiguous and the
circumstances prove the guilt of the accused, the
same is not weakened even if the motive is not a very
strong one. It is also settled law that the motive loses
all its importance in a case where direct evidence of
eyewitnesses is available, because even if there may
be a very strong motive for the accused persons to
commit a particular crime, they cannot be convicted if
the evidence of eyewitnesses is not convincing. In the
same way, even if there may not be an apparent
motive but if the evidence of the eyewitnesses is clear
and reliable, the absence or inadequacy of motive
cannot stand in the way of conviction."
34. In the case of Dhananjay Shankar Shetty vs. State of

Maharashtra 2002 6 SCC 596, the Hon'ble Supreme Court
held that merely because motive is neither alleged nor proved,
the same would ipso facto not affect the prosecution case but in
case there are other circumstances to create doubt regarding
veracity of the prosecution case, this may also become
material.
35. In the instant case, the prosecution witnesses PW-1, PW-

2 and PW-4 had not supported the case of the prosecution and
therefore, the prosecution miserably failed to prove its case. In
such circumstances, another weak chain of the prosecution
case is that the motive of the accused has also not been
established. If the prosecution has proved its case by ocular
evidences and other material evidence i.e. medical evidence,
etc., then in that case the motive is not relevant for the
19
prosecution to prove its case. But where the other material

evidences are also not supporting the case of the prosecution
and motive is also absent, then this benefit will go to the
accused and it will be the sufficient ground to acquit the
accused person from the offence which is allegedly committed
by him.
No recovery of the weapon
36. The weapon used in the offence has not been recovered
in the instant case.
37. In the case of Mrityunjai Vishwas vs. Pravab @ Gutti

Vishwas and others,2012 13 SCC 796, the Hon'ble Supreme
Court observed that where unimpeachable ocular testimony
supported by medical evidence is available, none recovery of
the weapon of assault is of no advantage to the accused.
38. The decision of the judicial Committee of the Privy

Council in Sambasiram vs. Public Prosecutor Federal of
Malaya, (1950) AC 458, it is held:
The acquittal of Pritam Singh Lohar of that was

tantamount to a finding that the prosecution had failed
to establish the possession of the revolver Ex.P56 by
him. The possession of that revolver was a fact in
issue which had to be established by the prosecution
before, he could be convicted for the offence with
which he had been charged.
39. In the instant case, the ocular testimony is not

unimpeachable, therefore, the non-recovery of the weapon of
the assault is of advantage of the defence. The counsel is right
in contending that non-recovery of the knife in present case is
vital for the prosecution to prove its case beyond a reasonable
doubt.
20
Proof beyond reasonable doubt
40. Beyond a reasonable doubt in the higher standard of

proof that must be met in any trial. Reasonable doubt is a
standard of proof used in criminal trials. When a criminal
defendant is prosecuted, the prosecution must prove the
defendant's guilt beyond a reasonable doubt, if the judge has a
reasonable doubt as to the defendant's guilt, the Judge should
pronounce the defendant not guilty. If the Judge have no doubt
as to the defendant's guilt, or if there only doubts are
unreasonable doubts, then the prosecution has proved the
defendant's guilt beyond a reasonable doubt and the defendant
should be pronounced guilt.
41. In the case of Bhagwan Singh vs. State of Punjab, AIR

1952 SC 214, the Hon'ble Supreme Court held that:
But even if the fact be true that the deposition was not
read over, that would only amount to a curable
irregularity and, as the Privy Council observed in Abdul
Rahman vs. King Emperor, in the absence of prejudice
which must be disclosed in an affidavit which shows
exactly where the record departs from what the witness
actually said, there is no point in the objection. The
object of the reading over prescribed by Section 360 of
the Code of Criminal Procedure is not to enable the
witness to change his story but to ensure that the
record faithfully and accurately embodies the gist of
what the witness actually said. Therefore, before
prejudice can be substantiated on this score, it must be
disclosed by affidavit exactly where the inaccuracy lies.
The next and last objection is on similar lines. Jit Singh,
P.W. 2., and Jagir Singh, P.W. 4, said that their
statements before the Committing Magistrate were
made under the threats and duress of the police. It was
argued that that should not have been rejected without
further enquiry, and a ruling in which a further enquiry
was considered necessary was cited. Here (1) [1952]
S.C.R. 526. (2) A.I.R. 1936 P.C. 253 at 258. (3) A.I.R
1927 P.C. 44 at 45-47. again, it is no part of a Court's
duty to enter upon a roving enquiry in the middle of a
21
trial on matters which are collateral to the main issue.

The burden is on the person making these allegations
to substantiate them and if he chooses to rely on
evidence.which does not satisfy the Court he must'
suffer the same fate as every other person who is
unable to discharge an onus which the law places upon
him. It was also argued that there was no proper
compliance with the provisions. of section 342 of the
Criminal Proce- dure Code. We are satisfied that there
was substantial compliance in this case. The facts were
simple and few and the crucial matters were brought to
the attention of the appellant. In any event, the learned
counsel was unable to tell us even at the argument
stage exactly how his client was prejudiced and tell us
what answers his client would have given to the
questions which, according to counsel, ought to have
been put to the appellant. We pressed him several
times to disclose that but he was unable to do so. As
we said at the outset, the case is a very simple one in
which a man was caught red-handed with a pistol still
in his hand and in which the first information report was
recorded practically on the spot within 15 minutes of
the occurrence. The murder was committed in day light
and there was no dearth of eye-witnesses. Two have
been believed, and in the case of the other two, certain
statements made by them in the Sessions Court
resiling from statements previ- ously recorded in the
committal proceedings have been disbelieved.
42. In the casse of State of M.P. vs. Ram Krishna

Sampatrao Limsey, AIR 1954 SC 20, the Hon'ble Supreme
Court held that:
8. There is considerable force in these contentions.

We are, however, unable to find that the High Court
was necessarily in error in holding that the
circumstantial evidence in the case was not wholly
incompatible with the innocence of the accused and
that it did not lead to an irresistible presumption that
Dattu was murdered by Limsey. It is unlikely that
Limsey would have invited Dattu to his own place on
the 8th October by a letter with the intention of
murdering him. There is no evidence of a preconceived
plan to that effect. If the estrangement between the two
was still continuing Dattu would not have so readily
come to Limsey's house. Ganpat having been
22
disbelieved, there is no evidence of any act or conduct

on the part of Kisanrao and Shaligram indicating their
participation in this affair. In such circumstances the
conclusion as to the guilt of the accused cannot be
reached perhaps by introducing an element of
conjecture in the case.
It may well be that Dattu and Limsey had some quarrel
while they were drinking and smoking together and
were trying to adjust their differences and that in the
heat of the moment he was struck by Limsey in a
manner which brought about his end, or that Limsey
administered poison to him to finish him as he was
obstinate and would not desist from his defamatory
propaganda or even that Dattu died of heart failure. All
these possibilities cannot be ruled out. These are,
however, pure matters of speculation in the absence of
any material pointing to a definite conclusion. It cannot,
therefore, be said that the High Court acted improperly
when it held that there was no evidence to establish
that Dattu was murdered.
The strongest weapon in the armoury of the learned
Advocate-General is the existence of a freshly
constructed tomb in the loft of Limsey's house wherein
the dead body of Dattu was entombed. The conduct of
Limsey in constructing Dattu's tomb in the third storey
of his house more or less verges on lunacy and is not
conclusive evidence of the fact that Dattu had been
murdered by him, though it raises a very strong
suspicion against him. The High Court was dealing
with the case of a person whose mind was so
perverted that he could not see that such conduct on
his part would surely recoil on himself and be the
strongest proof against his innocence. The possibility,
therefore, cannot be ruled out that he may have acted
in a similar way in case he wanted to conceal for
reasons of his own, the death of a person brought
about by natural causes in his house. It is not difficult
to visualize that Dattu died a natural but sudden death
and in a moment of panic and confusion Limsey
conceived the idea of concealing his death by
entombing him in his own house.
There are no such circumstances that militate against
the theory that Dattu might have died of alcoholic
poisoning or of heart failure while sitting in the
company of Limsey and drinking heavily. Limsey
having been flabbergasted at what had happened
23
might well have thought of disposing of his body in the

manner he did in order to conceal the fact that his
death took place while he was in his company and was
taking liquor and smoking ganja, his object being to
avoid bad repute and his place being described as a
den of drunards and resort of ganja-smokers.
9. Moreover, it is not quite clear that the strained
relations between Dattu and Limsey were continuing till
October 1949. In August 1949 Dattu made efforts of
reconciliation and it is not unlikely that he was
successful in his effort. The informal letter that Limsey
wrote to Dattu on 8th October inviting him to come to
his house & Dattu's response to his call suggest that
apparently at that moment they were on good terms.
There was thus no strong motive for Limsey to murder
Dattu. No doubt, a very strong suspicion arises against
Limsey by reason of the existence of the tomb of Dattu
in his house but we are unable to hold that the High
Court after taking into consideration all the
circumstances in the case was wrong in not treating
this circumstance as conclusive of the guilt of Limsey.
As against the other two respondents, there is not the
slightest evidence to hold that they are in any way
responsible for the murder of Dattu.
43. In the case of Sucha Singh vs. State of Punjab, (2003)

7 SCC 643, the Hon'ble Supreme Court held that:
20. Exaggerated devotion to the rule of benefit of

doubt must not nurture fanciful doubts or lingering
suspicion and thereby destroy social defence. Justice
cannot be made sterile on the plea that it is better to let
a hundred guilty escape than punish an innocent.
Letting the guilty escape is not doing justice according
to law. [See: Gurbachan Singh vs. Satpal Singh and
others [AIR 1990 SC 209]. The prosecution is not
required to meet any and every hypothesis put forward
by the accused. [See State of U.P. vs. Ashok Kumar
Srivastava [AIR 1992 SC 840]. A reasonable doubt is
not an imaginary, trivial or merely possible doubt, but a
fair doubt based upon reason and common sense. It
must grow out of the evidence in the case. If a case is
proved perfectly, it is argued that it is artificial; if a case
has some inevitable flaws because human beings are
prone to err, it is argued that it is too imperfect. One
wonders whether in the meticulous hypersensitivity to
24
eliminate a rare innocent from being punished, many

guilty persons must be allowed to escape. Proof
beyond reasonable doubt is a guideline, not a fetish.
[See Inder Singh vs. State (Delhi Admn. (AIR 1978 SC
1091)]. Vague hunches cannot take place of judicial
evaluation.
"A Judge does not preside over a criminal trial, merely
to see that no innocent man is punished. A judge also
presides to see that a guilty man does not escape.
Both are public duties." (Per Viscount Simon in Stirland
v. Director of Public Prosecution (1944 AC 315) quoted
in State of U.P. vs. Anil Singh (AIR 1988 SC 1998).
Doubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot afford
any favourite other than truth.
21. In matters such as this, it is appropriate to recall

the observations of this Court in Shivaji Sahebrao
Bobade vs. State of Maharashtra [1974 (1) SCR 489
(492-493]:
"The dangers of exaggerated devotion to the rule of
benefit of doubt at the expense of social defence and
to the soothing sentiment that all acquittals are always
good regardless of justice to the victim and the
community, demand special emphasis in the
contemporary context of escalating crime and escape.
The judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our
law should not be stretched morbidly to embrace every
hunch, hesitancy and degree of doubt.......The evil of
acquitting a guilty person light-heartedly as a learned
author '(Glanville Williams in 'Proof of Guilt') has
sapiently observed, goes much beyond the simple fact
that, just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead
to a cynical disregard of the law, and this in turn leads
to a public demand for harsher legal presumptions
against indicated 'persons' and more severe
punishment of those who are found guilty. Thus too
frequent acquittals of the guilty may lead to a ferocious
penal law, eventually eroding the judicial protection of
the guiltless.....'a miscarriage of justice may arise from
the acquittal of the guilty no less than from the
conviction of the innocent....."
25
22. The position was again illuminatingly highlighted in

State of U.P. Vs. Krishna Gopal (AIR 1988 SC 2154).
Similar view was also expressed in Gangadhar Behera
and others vs. State of Orissa (2002 (7) Supreme 276).
44. In the case of Bhupendra Nath Prasad vs. State of

Bihar (1992) 3 SCC 547, the Hon'ble Supreme Court held that:
We find considerable force in this submission. P.W. 6,

the Doctor, in his chief examination itself has stated
that the family members who brought the deceased to
the hospital told him that somebody made him to take
wine and betel and that since thereafter he started
vomitting the feeling giddiness. In cross-examination
P.W. 6 further admitted that he has written in the bed-
ticket that the death was due to cardio respiratory
failure. It is also elicited from him that such failure
could be due to over-drinking of wine or due to poison.
He also stated that when brought to the hospital, the
wine odour was coming from the mouth of the
deceased. So his evidence is not very helpful as to the
cause of death. As already mentioned the Doctor, who
conducted the post-mortem, has not been examined.
However, the post-mortem certificate is on record. It
only shows that the viscera was preserved for chemical
analysis and the opinion as to the cause of death was
reserved till the report of the Chemical Examiner
regarding the viscera was received. As already noted
no such report of the Chemical Examiner has been
produced nor the Doctor who conducted the post-
mortem has given any opinion as to the cause of
death. Therefore we are left with the Chemical
Examiner's report given on the basis of the test
examination of the stomach wash and the vomitted
substance, said to have been seized by the Police and
sent to the Chemical Examiner. P.W. 6 the Doctor does
not speak about any such seizure. P.W. 1, a
Compounder in the hospital, however, deposed that
the vomitted substance was put in a bottle and sealed
but he does not say that the same was seized. P.W. 3,
however, deposed that the police officer seized the
vomitted substance at the house of the deceased and
a seizure report was prepared and he affixed his
signature. P.W. 12, an Investigating Officer also stated
that he seized the vomitted substance. It is needless to
say that in a criminal case the cause of death has to be
26
ascertained conclusively. As already noted the post-

mortem report does not in any manner establish the
same. Even accepting that Nux voice was found in the
vomitted substance it cannot be concluded that the
death was due to poisoning and particularly when P.W.
6, the Doctor has noted that the death was due to
cardio respiratory failure either due to taking excess
wine or due to poison. Admittedly the alcoholic smell
was coming from the mouth of the deceased when he
was unconscious. Therefore a reasonable doubt arises
about the cause of death. Even otherwise there is no
satisfactory evidence in this case that it was the
accused who gave the betel containing poison to the
deceased. The wife and the daughters of the deceased
who took the deceased to the hospital stated before
P.W. 6, the Doctor that the deceased told them that
somebody gave him wine and betel and thereafter he
became giddy. These witnesses were cross-examined
with their earlier statements and P.W. 12, an
Investigating Officer admitted that the wife of the
deceased did not state before him that the accused
had taken her husband with him. Thus the evidence
regarding the so-called oral dying declaration is also
unsatisfactory and does not inspire confidence. It is
well-settled that in a case depending upon
circumstantial evidence all the circumstances should
conclusively point towards the guilt of the accused. In
this case even the cause of death has not been
conclusively established. Therefore, we are
constrained to interfere.
Delay in institution of an F.I.R.
45. In the instant case, the F.I.R. was lodged by the

complainant after an inordinate and unexplained delay of
twelve hours at police station Mohammadabad, District
Farrukhabad against the appellant and two unknown person,
which renders the F.I.R. in this case wholly unreliable. The
delay in lodging the F.I.R. corrodes the credibility of the
prosecution story. The Supreme Court in several cases held
that delay in lodging the F.I.R. creates a doubt if the said dealy
is not properly explained.
27
46. In the case of Apren Joseph @ Current Kunjukunju

and others vs. State of Kerala, AIR 1973 SC 1, the Hon'ble
Supreme Court held that :
It is always better that the F.I.R. is rendered before

there in time and opportunity to embellish or before the
informant's memory fades. Undue or unreasonable
delay in lodging the F.I.R., therefore, inevitably gives
rise to suspicion which puts the court on guard to look
for the possible motive and the explanation for the
delay and consider its effect on the trustworthiness or
otherwise of the prosecution version. Effect of delay in
lodging the F.I.R. would always depend on the facts
and circumstances of a given case.
47. In the case of Genesh Bhavan Patel and another vs.
State of Maharashtra, AIR 1979 SC 135, the Hon'ble Supreme
Court held that:
In the instant case, some of the main reasons given

by the trial court could not be effectively and rationally
dispelled. One of such reasons, which cast a cloud
on the credibility of the prosecution evidence, was that
there was inordinate delay of several hours on the part
of the police in recording the statement which was
treated as F.I.R. and further undue delay in recording
the statements of the alleged eye-witnesses by the
investigating officer, and no credible explanation of
these delays was forthcoming.
48. In the case of State of M.P. vs. Kriparan, (2003) 12 SCC

675, the Hon'ble Supreme Court held that:
Inordinate and unexplained delay in lodging the F.I.R.

is fatal to the case of the prosecution particularly when
the facts and circumstances of the case demonstrate
such an inference.
49. In the case of Sahebrao and another vs. State of

Maharashtra 2006 (9) SCC 794, The Hon'ble Supreme Court
has held that :
The settled principle of law of this Court is that delay

in filing F.I.R. by itself cannot be a ground to doubt the
prosecution case and discard it. The delay in lodging
28
the F.I.R. would put the court on its guard to serve if

any plausible explanation has been offered whether it
is satisfactory.
Delay in disposal of criminal appeal
50. The instant criminal jail appeal bearing No.5192 of 2005
has been pending since 2005 in this Court for the disposal. The
appellant had been convicted for offence punishable under
Section 302 I.P.C. vide judgment/order dated 24.01.2001 of
Additional District and Session Judge, Farrukhabad. The
incident took place on 13.09.1996 and the appellant was
arrested in the said crime on 20.09.1996, therefore, he is still
confined in the jail from 21 years.
51. The delay in disposal of criminal appeals pending in the

High Court is matter of serious concern to all those involved in
the administration of criminal justice. The Hon'ble Supreme
Court has repeatedly emphasized the fact that speedy trial or
disposal of the criminal appeals pending before High Courts are
a fundamental right implicit in the broad sweep and content of
Article 21 of the Constitution of India. The aforesaid Article
confers a fundamental right on every person not to be deprived
of his life or liberty except in accordance with the procedure
prescribed by law. If a person is deprived of his liberty under a
procedure which is not reasonable, fair, or just, such
deprivation would be violative of its fundamental right under
Article 21 of the Constitution of India. It has also been
emphasized by the Hon'ble Supreme Court that the procedure
so prescribed must ensure a speedy trial for determination of
the guilt of such person. It is conceded that some amount of
deprivation of personal liberty cannot be avoided, but if the
period of deprivation pending trial/disposal of criminal appeal
becomes unduly long, the fairness assured by Article 21 would
29
receive a jolt
52. In the case of Sheela Barse and others vs. Union of

India and others: [1986] 3 SCR 562, The Hon'ble Supreme
Court held that:
A Division Bench comprising Bhagwati and R.N.

Misra, JJ. re-affirmed that the "right to speedy trial is a
fundamental right implicit in Article 21 of the
Constitution" and observed "the consequence of
violation of fundamental right to speedy trial would be
that the prosecution itself would be liable to be
quashed on the ground that it is in breach of the
fundamental right."
53. In the case of Srinivas Gopal vs. Union of Territory of

Arunachal Pradesh, (Now State) 1988 1 SCR 477, the
Hon'ble Supreme Court held that:
The Hon'ble Supreme Court quashed the proceedings

against the appellant on the ground of delay in
investigation and commencement of trial. In this case,
investigation commenced in November, 1976 and the
case was registered on completion of the investigation
in September, 1977. Cognizance was taken by the
court in March, 1986. These facts were held sufficient
to quash the proceedings particularly when the offence
charged was a minor one namely, Section 304-A read
with 338 of I.P.C.
54. In the case of Machander vs. State of Hyderabad,1955
Cri LJ 1644, The Hon'ble Supreme Court held that:
This Court observed that while it is incumbent on the
court to see that no guilty person escapes, it is still
more its duty to see that justice is not delayed and
accused persons are not indefinitely harassed. The
scales, the court observed, must be held even between
the prosecution and the accused. In the facts of that
case, the court refused to order trial on account of the
time already spent and other relevant circumstances of
that case.
55. In Strunk vs. United States, 37 Law Edn. 2Nd 56, it was
held that an accused's right to a prompt inquiry into criminal
charges is fundamental and the duty of the charging authority is
30
to provide a prompt trial. It was observed that the desires or

convenience of the accused or other individuals are of little
relevance and make no difference to the prosecutor's obligation
to ensure a prompt trial. The main question considered in this
case was whether the violation of the said guarantee entails
dismissal of the charges. It was held that dismissal of charges
is the only possible remedy where a speedy trial has been
denied. Indeed, in this case, the court of appeals was also of
opinion that the accused's right to speedy trial was denied but it
did not quash the charges but directed merely that the
sentence awarded to the accused should be reduced by the
period of unconstitutional delay. (The matter was taken to
appellate court after the district court had convicted and
sentenced the accused).
56. In the case of Bell vs. Director of Prosecution,

Jamaica [1985] 2 A.E.R. 585, the Privy Council expressely
affirmed the principles enunciated in Barker in the following
words :
Their Lordships acknowledge the relevance and

importance of the four factors lucidly expanded and
comprehensively discussed in Barker v. Wingo. Their
Lordships also acknowledge the desirability of applying
the same or similar criteria to any constitution, written or
unwritten, which protects an accused from oppression by
delay in criminal proceedings. Th weight to be attached to
each factor must however vary from jurisdiction to
jurisdiction and from case to case.
57. In this case, the Privy Council emphasized the necessity

of taking notice of the delays inherent in a particular system.
The Privy Council was dealing with a case from Jamaica. The
Court of Appeals of Jamaica held that having regard to the
circumstances obtaining in that country, a delay of 32 months
cannot be said to infringe the constitutional right of an accused
31
to speedy trial. The Privy Council observed that this opinion of

the Jamaican court, which must be deemed to be acquainted
with the conditions in that country, must be accepted. But,
inasmuch as, it was a case of re-trial, the Privy Council held
that the said delay must be held to have infringed the said right.
The Board emphasized that a re-trial must be held with greater
speed and that the delay which may be ignored in the case trial
may not be ignored in the case of re-trial.
58. In the Criminal Appeal No.509 of 2017, Hussain and

others vs. Union of India, the Hon'ble Supreme Court vide
judgment dated 09.03.2017 held that delay in deciding the
criminal appeals are violation of right of accused guaranteed
under Article 21 of the Constitution of India. The Hon'ble
Supreme Court had framed the guidelines for speedy trial and
disposal of criminal appeals.
59. Delay in the context of justice denotes the time consumed

in the disposal of case, in excess of the time within which a
case can be reasonably expected to be decided by the Court.
No one expect a case to be decided overnight. However,
difficulty arises when the actual time taken for disposal of the
case for exceeds its expected life span and that is when we say
there is a delay in dispensation of justice. In its 41 st report, the
Law Commission had observed that the Criminal Appeals
should be heard at earliest by the High Court to avoid
miscarriage of justice and to secure a uniform standard in
dealing with such criminal appeals.
60. In the instant case, the prosecution has miserably failed

to prove its case beyond reasonable doubt. The ocular
evidences of PW-1, PW-3 and PW-4 stated in their deposition
that they had not seen the accused on the place of the incident.
32
They had not supported the case of the prosecution, but

prosecution has chosen not to be declared them as hostile
witnesses. The prosecution has also failed to establish the
motive and to recover the weapon used in the crime. F.I.R. was
lodged next day and delay in lodging the F.I.R. was not
explained. There are several material contradictions in the
statements of the ocular evidences. Accused has already
undergone 21 years in jail. The criminal appeal has been
pending since 2005 before this Court.
61. The appellate court is under an obligation to consider and

identify the error in the decision of the trial court and then to
decide whether the error is a gross enough to warrant
interference. The appellate court is not expected to merely
substitute its opinion for that of the trial court and that it has to
exercise its discretion very cautiously to correct an error of law
or fact, if any and significant enough to warrant reversal of the
verdict of the trial court.
62. The prosecution case, when judged on the touchstone of

totality of the facts and circumstances, does not generate the
unqualified and unreserved satisfaction indispensably required
to enter a finding of guilt against the appellant. Having regard to
the evidence on record as a whole, it is not possible for this
court to unhesitatingly hold that charge levelled against the
appellant has been proved beyond reasonable doubt. In
contrast, the findings of the trial court are decipherably strained
in favour of the prosecution by overlooking many irreconcilable
inconsistencies, anomalies and omissions rendering the
prosecution case unworthy of credit. We are of the unhesistant
opinion that the prosecution has failed to prove the charge
against the appellant to the hilt as obligated in law and thus, he
33
is entitled to the benefit of doubt. The appeal thus succeeds

and is allowed. The impugned judgment and order is set aside.
It is directed to release the appellant from the custody forthwith,
if he is not required in other crime/case.
63. The Registry is directed to send a certified copy of the

judgment with all original documents to the concerned court
below for compliance.
64. The learned Amicus Curiae Sri Arvind Kumar Singh shall
be paid Rs.10,000/- for providing active assistance to the Court
from the fund of State Legal Services Authority.
Order Date :-15.11.2017

Jitendra
(Chandra Dhari Singh,J.) (Shri Narayan Shukla, J.)

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The Indian Jurist | www.theindianjurist.

Appellant :- Ram Lakhan

Hon'ble Shri Narayan Shukla,J.

(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Heard Mr. Arvind Kumar Singh, learned Amicus Curiae for

2. This instant jail appeal has been preferred against the

3. Brief facts of the case.

(I) The story of the prosecution is that on 13.09.1996, when

III. Upon considering the materials available on record and

IV. The prosecution in order to prove, its case examined

V. After appreciation of the evidences on record and other

undergo imprisonment for life and to pay a fine of Rs.2000/-, in

4. The Criminal Jail Appeal bearing No. 5192 of 2005 was

5. Mr. Arvind Kumar Singh learned Amicus Curiae appearing

6. On the other hand, learned A.G.A. appearing for the State

has vehemently opposed the appeal, contending that there was

7. We have considered the rival submissions made by the

8. PW-1, Harpal son of Ram Bhajan stated in his deposition

9. PW-2, Ms. Ram Shree stated in her testimony that the

10. PW-3, Shivpal son of Ram Bhajan stated in his chief

co-accused were inflicting knife below on the body of

11. PW-4, Manoj Kumar son of Harpal Singh stated that

12. PW-5, A.S.I. Nawab Sher Khan stated in his testimonies

signature on the G.D. as Ex.Ka-3. He clarified in the cross-

13. PW-6, Dr. Jagmohan Verma stated in his deposition that

1. Incised wound of 6 cm x 2 cm x deep till head was

present on the left corner of the face.

Doctor opined that the reason of the death of the

14. PW-7, A.S.I. Har Prasad Singh, who was Investigating

memo. On 20.09.1996, the accused was surrendered in the

16. Before we proceed to examine the impugned judgment of

17. Section 300 I.P.C. reads as under:

300. Murder. Except in the cases hereinafter

Fourthly. If the person committing the act knows that

it is so imminently dangerous that it must, in all

18. The term 'murder' is derived from the Germanic word

19. Section 300 I.P.C. defines murder with reference to

the law and causes the death of the person against

The offence is murder in the following cases :

(iv) If the act is done with the knowledge, that it is so

22. In Virsa Singh vs. State of Punjab (AIR 1958 Supreme

i. Firstly, it must establish, quite objectively, that a

iv. Fourthly, it must be proved that the inquiry of the

23. In Thangaiya vs. State of Tamilnadu 2005 9 SCC 650,

24. In Sehaj Ram vs. State of Haryana, AIR 1983 Supreme

deceased or cause grievous hurt and not to kill him. The

26. In Mukhtiar Ahmad Ansari vs. State (NCT of Delhi), the

29. The learned counsel for the appellant also urged

accused or else she might have to face prosecution.

31. In the present case, evidence of PW-1 Ved

27. In the case of Akil @ Javed vs. State of (NCT of Delhi),

Paramjeet Singh SCC pp. 445-46, para 10, this Court

30. In Nisar Khan alias Guddu (supra) in paragraph 9

31. In Mukhtiar Ahmed Ansari (supra), this Court in

prosecution witness in this case as PW 1. He,

30. A similar question came up for consideration

32. In the decision reported in Raja Ram a similar

33. We have referred to the above legal position

sessions case to ensure that there are well settled

28. A similar question came up for consideration before the

29. When the direct witnesses are not reliable and

30. In the instant case, it was argued that there were no

31. In Shivji Genu Mohite Vs. State of Maharashtra, this

32. It is settled legal proposition that even, if the absence of