Laxman vs State Of U.P.
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Allahabad High Court

Laxman vs State Of U.P. on 17 March, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:37657-DB
 
A.F.R.
 
Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 1876 of 1983
 

 
Appellant :- Luxman
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.P. Dixit
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Praveen Kumar Giri,J.

1. List revised. No one appears on behalf of the appellant to press the present appeal.

2. Learned counsel for the appellant died long back and as such, appellant was issued notice to engage another counsel vide order dated 24.10.2018. As per the report submitted by Chief Judicial Magistrate, Etawah dated 11.01.2022, the appellant Luxman is missing since last 30 years. Noticing the aforesaid fact on 27.04.2024, following order was passed:

"The Chief Judicial Magistrate, Etawah, by a letter dated 11.1.2022, has informed that the appellant Luxman is missing/absconding for the last 30 years.

The Chief Judicial Magistrate, Etawah, with the help of administration may adopt all possible measures to search out the appellant. The measures which he would take would include the measure of tapping the sureties.

List this case on 27.5.2024. "

3. According to the office report dated 24.05.2024, based on the report of Chief Judicial Magistrate, Etawah dated 23.05.2024, whereabouts of the appellant and his family members are not known. Names and addresses of sureties could not be ascertained as the bail bonds furnished by appellant-accused were not found in the trial court's record. The Chief Judicial Magistrate, Etawah vide letter dated 25.07.2024 has again reported that the appellant and the sureties could not be located.

4. In Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 SCC 222, the Hon'ble Apex Court has held that it is always not necessary to adjourn the matter in case both appellants or his counsels/lawyers are absent and the Court can decide the appeal on merits after perusal of the record and the judgement of the trial Court. It has further been observed that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. It has also been observed that appointment of Amicus Curiae is also on the discretion of the court. In paragraph 26 of the said judgement, it was held that it is always not essential for the High Court to an appoint Amicus Curiae, paragraphs 24 and 26 of the said judgement whereof are quoted as under:

"24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his Counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:

"19.1. that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2. that the Court is not bound to adjourn the matter if both the Appellant or his Counsel/lawyer are absent;

19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.

19.5. that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6. that if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

25.....

26. Reverting back to the facts of the present case a perusal of the impugned order makes it abundantly evident that the High Court has considered the case in all its complexities. The argument that the High Court was duty-bound to appoint an amicus curiae is not legally sound. Panduranga correctly considers Mohd. Sukur Ali v. State of Assam (1996) 4 SCC 729 as per incuriam, inasmuch as the latter mandates the appointment of an amicus curiae and is thus irreconcilable with Bani Singh vs. State of U.P. (1996) 4 SCC 720. In the case in hand the High Court has manifestly discussed the evidence that have been led, and finding it of probative value, has come to the conclusion that the conviction is above Appellate reproach correction and interference. In view of the analysis of the law the contention raised before us that it was essential for the High Court to have appointed an amicus curiae is wholly untenable. The High Court has duly undertaken the curial responsibility that fastens upon the Appellate Court, and cannot be faulted on the approach adopted by it. In this respect, we find no error."

(Emphasis supplied)

5. The aforesaid view has been followed by the Hon'ble Full Bench in Criminal Reference No.1 of 2024, In Re- Procedure To Be Followed In Hearing Of Criminal Appeals vs. State of U.P., decided on 22.01.2025, paragraph Nos. 151 and 152 whereof are quoted as under:

"151. The crux of the aforesaid observations of the three celebrated judgments rendered by the Hon'ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13, thus, covers the entire length and breadth of Question No. 5 formulated by the Division Bench at Lucknow for consideration by this Bench and no fresh exercise, in our considered opinion, is required to be undertaken by this Bench, including on one point which has been highlighted by the Division Bench at Lucknow i.e. whether the amicus curiae may be appointed even when the presence of the convict, appellant or accused-respondent may be secured and without his consent.

152. The aforesaid legal precedents would evidently canvass that the emphasis of the Apex Court has been on providing opportunity of being heard to the appellant who is willing to cooperate with the appellate court or his counsel and in this regard a process to cause his presence for the purpose of giving opportunity of being heard is required to be issued to him and when the court is satisfied that such appellant is deliberately avoiding his presence before the court, in such a situation, the court may dispose of the appeal in the manner approved by the Hon'ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13 (i.e. after perusing the record/evidence vis-a-vis judgment of the trial court with the assistance of prosecutor and Amicus, if appointed) and we do not have any reason to deviate from the settled proposition laid down by the Apex Court in the above mentioned cases, moreover, the appointment of amicus is only for the purpose to provide fair trail to the appellant and also for rendering the assistance to the Court."

6. Under such circumstances, we proceed to consider the present appeal on merits with the help of Shri Rahul Asthana, learned AGA for the State.

7. The present appeal has been filed challenging the Judgment and order dated 30.07.1983 passed by Sri R.C. Pandey, 3rd Additional Sessions Judge, Etawah, in Session Trial No. 80 of 1983, convicting the appellant under Sections 302 read with 149 IPC, sentencing him to undergo life imprisonment.

8. Prosecution story, in brief is that in the night of 25/26.10.1982 at about 1.00 AM. six miscreants armed with gun, country made pistols, lathi, kanta and kulhari came to the deceased house and called Kunji Lal (deceased). Therefore, Kunji Lal came out of the house on which miscreants caught hold of him and dragged him. One of the miscreants fired at him which hit him in perineum region. After that another miscreant fired at him which hit him on the chest. As a result of which Kunji Lal died on the spot. It was also alleged in the written report that few minutes before the incident Kunji Lal had come out to urinate. It was also alleged that complainant Shyam Lal (P.W.1) his son Jasrath as well as Ram Mahesh (P.W.2), Bachhi Lal, Ganga Ram besides others were sleeping outside on chhappar, who have also seen the incident. It was also alleged that a lantern was alight in the chhappar and among the miscreants Shiv Nath @ Captain and accused Luxman were armed with gun and the rest were armed with country made pistol, lathi, kanta and kulhari. In the light of the lantern the miscreants were fully identified.

9. On the basis of written report of the complainant Shyam Lal (P.W.-1) nephew of the deceased, a prompt first information report was lodged on 26.10.1982 at 02:00 A.M. (night) against six persons namely, Shivnath @ Captain, Luxman and four unknown persons as Case Crime No. 110 of 1982 under Sections 147, 148, 149 and 302 IPC, Police Station- Phaphund, District- Etawah. The distance from the place of incident to the police station was only two miles.

10. Against the accused persons, several F.I.R. of dacoity and murder were lodged in different police stations. Hence, Kunji Lal (deceased) being Chowkidar of the village used to help the police to secure the arrest of the accused-appellant, therefore, the accused-appellant as well as other accused persons named in the F.I.R were annoyed and due to that motive they committed murder of the deceased Kunji Lal.

11. The accused-appellant absconded for about three months then surrendered before the court and sent to the jail while other co-accused Shivnath @ Captain was killed in a police encounter after the alleged incident.

12. After lodging F.I.R., investigation was given to S.I. Mahaveer Singh (P.W.-3) Investigating Officer, the Investigating Officer started investigation and first of all recorded statement of Constable Vinod Kumar Dixit, who scribed the Check F.I.R. The Investigating Officer thereafter, recorded the statement of informant Shyam Lal.

13. The Investigating Officer reached on the place of incident in the night at 04:00 A.M. on 26.10.1982 for preparation of Panchayatnama but due to improper light, the Investigation was postponed for 07:00 A.M. (morning) but in the light of the another lantern, statement of Jasrath and Ram Mahesh were recorded by the Investigating Officer.

14. The Investigating Officer (P.W.-3) prepared Panchayatnama at 07:00 A.M. in the morning and the witnesses of the Panchayatnama stated that the deceased died due to fire arm injuries.

15. The Investigating Officer took the blood stained earth from the place of incident. He has also collected wads, pelletes and empty cartridges lying near the dead body and prepared a memo.

16. The Investigating Officer prepared site plan/Topography Report on 26.10.1982 of the place of incident.

17. Accused Luxman and Shivnath @ Captain were absconding, therefore, the Investigating Officer for securing arrest of the accused obtained non-bailable warrants and proceedings of Section 82 and 83 Cr.P.C were initiated. but later on, accused Shivnath @ Captain was killed in a police encounter while accused-appellant Luxman surrendered before the court and sent to jail on 15.01.1983. Thus, the post conduct of the accused-appellant is that he remained absconded for a period of about three months and he surrendered before the court on 15.01.1983 while incident occurred on 25/26.10.1982. Thus, no recovery of weapon could be made in these circumstances.

18. During investigation, it had come in the knowledge of the Investigating Officer (P.W.-3) that the accused-appellant Luxman had criminal history of following eight cases of heinous crime:

(i) Case Crime No. 36 of 1978 under Sections 395/397 IPC, Police Station- Bakewar.

(ii) Case Crime No. 333 of 1980 under Section 302 IPC, Police Station- Bakewar.

(iii) Case Crime No. 93 of 1982 under Sections 395, 397, 412, 307, 147, 148, 149 IPC, Police Station- Bakewar.

(iv) Case Crime No. 203 of 1980 under Sections 396 IPC, Police Station- Ajitmal.

(v) Case Crime No. 236 of 1980 under Sections 399/402 IPC, Police Station- Ajitmal.

(vi) Case Crime No. 241 of 1981 under Sections 395/397 IPC, Police Station- Ajitmal.

(vii) Case Crime No. 115 of 1980 under Section 396 IPC, Police Station- Ajitmal.

(viii) Case Crime No. 111 of 1982 under Sections 147, 148, 149, 302 IPC, Police Station- Phaphund.

19. P.W.4 Dr. M. Ali, Medical Officer Sadar Hospital, Etawah conducted the post-mortem of the dead-body of deceased Kunji Lal on 27.10.1982. The post-mortem report mentioned following ante-mortem injuries on the dead body:

"1. Gun shot wound 3.00 cm x 3.00 cm x lung cavity deep on the left side of font of chest 8.00 cm above the left nipple. Margins were inverted lacerated tattooed and chared (wound of entry).

2. Four gun shot wounds of entry of an area of 5.00 cm x 3.00 cm on the front of left thigh upper part each wound is measuring 0.5 cm x 0.5 cm to 1.00 cm x 1.00 cm x communicating with the wound of exist.

3. Two gun shot wounds of exist in the left scrotum 3.00 cm below the penis in an area of 3.00 cm x 3.00 cm each measuring 1.5 cm x 1.5cm x communicating with the wound of entry.

4. Two gun shot wounds of exist on the medial side of root of left thigh 3.00 cm apart each measuring 1.00 cm x 1.00 cm x communicating with the wound of entry."

On internal examination he found a fracture on second and third left ribs. He found pleura lacerated, left lung was lacerated. Pericardium and heart was also lacerated, there was 200 gram of pasty food. He found 27 matelic pellets inside the body. According to him, the cause of death was due to shock and bleeding from the injuries.

20. The Investigating Officer (P.W.-3) after investigation submitted charge-sheet on 15.02.1983 under Sections 147, 148, 149 and 302 IPC against Luxman (appellant), as one named co-accused Shivnath @ Captain died and other accused could not be identified by the police.

21. Learned Judicial Magistrate took cognizance on the charge-sheet and committed the case to the court of Session after compliance of Section 207 Cr.P.C. and the case was numbered as S.T. No. 80 of 1983 (State vs. Luxman) under Sections 302 read with 149 IPC, Police Station- Phaphund, District- Etawah.

22. Learned Sessions Judge framed charges under Section 302 IPC read with Section 149 IPC against the accused-appellant.

23. The accused-appellant had not pleaded guilty, therefore, the prosecution was permitted to produce its witnesses.

24. The prosecution, in order to prove its case, had examined as many as 4 witnesses namely, PW-1 Shyam Lal (complainant) and PW-2 Ram Mahesh who were the witnesses of fact; PW-3, S.I. Mahavir Singh Tomar, the Investigating Officer; PW-4, Dr. M. Ali who conducted the post-mortem of the dead body.

25. In addition to the aforesaid, the prosecution produced certain documents, which were exhibited during the trial as (i) Written Report as Ext. Ka.1 (ii) Recovery Memo of 'Tikli' 'Charra' and Pieces of 'Kartoos' as Ext. Ka.9 (iii) Recovery Memo and 'Supurdginama' of Lantern as Ext. Ka.2 (iv) Recovery Memo of Plain and Blood Stained Soil as Ext. Ka.8 (v) P.M. Report as Ext. Ka.15 (vi) 'Panchayatnama as Ext. Ka.3 (vii) Charge-sheet 'Mool' as Ext. Ka.12 (viii) Site Plan with Index as Ext. Ka.10.

26. Shyam Lal (P.W.-1) who is the informant of the present case proved the contents of the F.I.R. and deposed that his uncle Kunji Lal (deceased) was sleeping inside the house. A lantern was burning on a peg in the thatched roof, which was giving of a lot of light. It was about 01:00 A.M. (night) when the goons came, they called out Kunji Lal from the house. A little while ago, his uncle Kunji Lal was lying down after urinating. On hearing the sound, Kunji Lal came out and shouting goons, goons, he tried to run inside the house but the goons caught him and dragged him on the platform and one of the goons fired a shot which hit Kunji Lal's urinary tract. Kunji Lal sat there itself. They fired the second shot from the gun which hit Kunji Lal's chest due to which his uncle Kunji Lal fell down and died on the spot. Luxman and Captain @ Shiv Nath were carrying guns, he already knew both of them. As for the rest, he had recognised the faces of the four miscreants in the light of the lantern. These four miscreants were carrying axe, lathi, dagger and country made pistol. Apart from the informant (Shyam Lal), Jasrath, Ram Mahesh, Ganga Ram and Bachchi Lal had also witnessed the incident. The miscreants went towards Kajipur after the incident. The criminals were angry with his uncle Kunji Lal because he was a police watchman and he kept giving information to the police to get them arrested.

27. Ram Mahesh (P.W.-2) has deposed on the line of P.W.-1 Shyam Lal.

28. Mahaveer Singh S.I. (P.W.-3) Investigating Officer of the case, deposed about the entire work done during the course of investigation. Relevant extracts of his deposition is quoted hereinunder:

"करीब एक साल से मैं थाना से फफूंद में तैनात हूँ। 25/26.10.82 की रात में दो बजे यह मुकद‌मा थाना फुफुंद पर मेरी मौजूदगी में कायम हुआ था और इसकी तफतीश मेरी सुपुर्द हुई थी। उसी समय मैने इस मुकदमा की तफतीश शुरू की। थाना पर C/ मोहरिर विनोद कुमार दीक्षित का ब्यान लिया इसके बाद थाना पर ही श्याम लाल वादी का ब्यान लिया और दो सिपाही व दो S.I. के साथ मय जिल्द पंचायतनाम व अन्य जरूरी कागजात के वादी को साथ लेकर जीप द्वारा थाना से 3-40 बजे रात रवाना हुआ। करीब 4 बजे घटना स्थल पर पहुंचा रोशनी का उचित प्रबन्ध न होने के कारण उस समय कुंजी लाल मृतक की लाश का पंचायतनामा नहीं भरा जा सकता। दूसरी लालटेन जलवाकर गवाहान जसरथ, राम महेश के ब्यानात लिये। सुबह 7 बजे पंच मुहरिर करके कुंजी लाल मृतक की लाश का पंचायतनामा भरा जो मैंने बोल कर S.I. चन्दनलाल से लिखवाया। उस पर मेरे व गवाहान पंचो के दस्तखत व निशानी अंगूठा है। इस पर प्रदर्श क 3 डाला गया। पंचायत नामा के साथ अन्य सम्बन्धित कागजाता भी मैंने S.I. चन्दन लाल से बोल कर लिखवाये थे जिन पर मेरे भी दस्तख्त है। यह कागजात फोटू लाश प्रदर्श क-4, चालान लाश प्रदर्श क-5, चिट्ठी C.M.O. प्रदर्श क 6 व चिट्ठी R.I. प्रदर्श क-7 है जिस के साथ F.I.R. की नकल भेजी थी जो शामिल मिसिल है। कुंजी लाल की लाश को सर्व मोहर करके C/ राम बाबू व तारा चन्द्र के सुपुर्द वास्ते कराने पोस्टमार्टन कर दी थी। कुंजी लाल की लाश के पास चबूतरा पर खून पड़ा था। खून आलूद व उसके पास से सादा मिट्टी लेकर अलग-अलग डिब्बों में /सर्व मोहर किया। यह दो डिब्बा मेरे सामने है इन पर प्रदर्श 4 व 5 डाले गये। मौके पर ही उस की बावत फर्द प्रदर्श क 8 अपने लेख व हस्ताक्षर में तईयार की उस पर गवाहन के भी हस्ताक्षर है। कुंजी लाल की लाश के पास टिकली एक छर्रा व कारतूस खोका के टुकड़े पड़े देखे। इनको भी मैंने अपने कब्जा में लिया और एक अलग डिब्बा में सर्व मोहर किया। टिटली, छर्रा व कारतूस का टुकड़ा मेरे सामने है इस सब पर प्रदर्श 6 डाला गया। उसकी बावत मौके पर मैंने फर्द प्रदर्श क-9 तईयार की जो मेरी लिखी व दस्तखत है उसपर गवाहान के भी हस्ताक्षर है। मैंने घटना स्थल पर छप्पर में दरवाजा के पास लालटेन जलती हुयी देखी उसी लालटेन की रोशनी में बदमाशों को देखना बताया गया। उस लालटेन को मैंने कब्जा में लिया। देखने पर चालू हालत में पाया इस के बाद लालटेन को वादी की सुपुर्दगी में (Sic) इसकी बावत फर्द प्रदर्श क-2 अपने लेख व हस्ताक्षर में तईयार की और उस पर गवाहान के दस्तखत व वादी श्याम लाल का निशानी अंगूठा बनवाया। यह लालटेन प्रदर्श 3 है। इस के बाद घटना स्थल की मौका मुआईना किया व नक्शा नजरी बनाया जो मेरे सामने है। मेरे लेख व हस्ताक्षर में है। मौके के अनुसार सही है। खसरा दर्ज है उस पर प्रदर्श क-10 डाला गया। मैंने मौका मुआईना के समय जिस खूंटी पर लालटेन जलती हुई टंगी हुई देखी उस के पास दीवाल पर हल्का काला धब्बा देखा था। इसके बाद गवाहान गमी राम, बच्ची लाल के ब्यानात लिखे। यह दोनों गवाहान मुलजिम से मिल गये है उस के बाद पंचायत नामा के गवाहान के ब्यानात लिखे व अन्य लोगों से पूछे ताछे थे। दिनांक 26.10.82 को रात को 10-35 बजे थाना वापस आया और घटना स्थल से कब्जा में लिये सभी डिब्बा सर्व मोहर मिट्ठी खून आलूद व सादा तथा टिकली, छर्रा, कारतूस के टुकड़े सर्व मोहर हालत में लाकर थाना के बाल खाना में रखवा दिये। जब तक यह डिब्बा मेरे कब्जा में रहे बराबर सर्व मोहर रहे। दिनांक 27.10.82 को बदमाशों की सुरागरसी तथा पता रसी के लिये ग्राम काजीपुर सिंगलामऊ, गदनपुर, चिरियापुर गया पर कोई पता बदमाशान का नहीं चला। दिनांक 15.12.82 को मुलजिम लक्षमन व शिवनाथ उर्फ कैप्टन के वारन्द गिरफ्तारी व इश्तहार प्राप्त हुये थे। दिनांक 20.12.82 को शिवनाथ उर्फ कैप्टन की गिरफ्तारी हेतु वारन्त व इश्तहार की तामील हेतु ग्राम राम नगर गया था तो यह मालूम हुआ कि शिवनाथ फरार है। अतः एक पर्त? इश्तहार दरवाजा मकान पर चस्पा किया और शिवनाथ की कुर्की हेतु रिपोर्ट दी गई। शिवनाथ पृर्फ कैप्टन दिनांक 3.6.86 को पुलिस मुठभेड़ में मारा गया। दिनांक 30.12.82 को यह मालूम हुआ कि लक्षमण मुलजित अदालन में हाजिर होकर वापसी जेल भेजा गया। लक्षमन गुलजिम के विरूद्ध वारन्ट बनाये जाने हेतु दिनांक 10.1.83 को मैंने रिपोर्ट दी थी जो मेरे लेख व हस्ताक्षर में है इस पर प्रदर्श क-11 डाला गया। दिनांक 15.1.83 को न्यायालय द्वारा इस मुकदमा में वारन्त बनाकर जेल भेजा गया। दौरान तफतीश मुझको यह मालूम हुआ कि मुलजिम लक्षमन के विरूद्ध थाना वलेवर से अपराध सं० 26/78 u/s 395/397 I.P.C., अपराध सं० 333 सन् 80 थाना वलेवर U/s 302 IPC व अपराध सं० 96 सन् 1982 U/s 395, 397, 412, 307, 147, 148, 149 IPC के मुकदमा चल रहे थे। मुलजिम लक्षमन के विरूद्ध थाना सजतिमली से अ०सं० 203सन् 80 u/s 396 IPC, अ.सं. 236 सन् 80 u/s 399/402 IPC व अ.सं. 241 सन् 81 u/s 395/397 IPC के मुकदमें चल रहे थे। इन के अलावा थाना फफूंद से उस मुकदमा के अलावा अ.सं. 183/80 147, 148, 149, 307 I.P.C. व अ.सं. 111/82 u/s 147, 148, 149, 302 IPC के मुकदमा चल रहे थे। तफतीश पूरी करके दिनांक 15.2.83 को मुलजिम लक्षमन के विरूद्ध चार्जशीट प्रदर्श क-2 अपने लेख व हस्ताक्षर में प्रेषित थी। C/ मोहरिर विनोद कुमार दीक्षित मेरे साथ रहा है उसका लेख व हस्ताक्षर मैं पहचानता हूँ। दिनांक 25/26.10.82 को रात में दो बजे वादी श्याम लाल के थाना पर आकर तहरीर प्रदर्शक क-1 दाखिल की थी जिस के आधार पर C/ मोहरिर विनोद कुमार दीक्षित ने चिक रिपोर्ट प्रदर्श क 13 अपने लेख है व हस्ताक्षर में तईयार की। यह मेरे सामने है यह C/ मोहरिर विनोद कुमार दीक्षित के हाथ की लिखी व दस्तक्षती है। कायमी मुकदमा का इन्द्राज थाना की G.D. में रपट नं0 3 उसी समय रात के दो बजे C/ मोहरिर विनोद कुमार दीक्षित ने किया था। असल G.D. मेरे सामने है जो C/ मोहरिर विनोद कुमार दीक्षित के हाथ की लिखी व दस्तखती है। उसकी सही नकल शामिल मिसिल है जिस पर मेरे हस्ताक्षर है प्रदर्श क-14 है।

29. Dr. M. Ali (P.W.-4), Medical Officer Sadar Hospital, Etawah, who has conducted the post-mortem on the person of the deceased, deposed that on 27.10.1982, he was in the Sadar Hospital. That day, he examined the dead body of Kunji Lal son of Param Sukh resident of Singlamau, Police Station Phaphud, District Etawah. The dead body was one and a half days old since the death of the deceased. The cause of death was shock and hemorrhage. The injuries could have been caused by two shots of gun and were sufficient to cause death. The probable time of death can be night of 25/26.10.1982 at about 1.00 A.M. The post-mortem report prepared and proved by this witness is Ext. Ka-15 on record, and the matelic pellets are Ext.3. In his cross-examination he has stated that there was tattooing and charing on the injury no.1 and injury no.1 was single wound and injury nos. 3 and 4 were the exist wound of injury no.2. He found no tattooing and charing on injury no.2. He has also stated that level of injury no.2 was lower to exist wound no.3 and 4. He has also stated that the injury no.2 can not be caused while urinating.

30. We have carefully perused the record and judgment of the trial court and have heard Shri Rahul Asthana, learned AGA in support of the prosecution case.

31. The other accused Shivnath @ Captain admittedly died in a police encounter, as such, the session trial itself stood abated in respect of Shivnath @ Captain.

32. The sole appellant herein was convicted and the instant appeal has been filed on his behalf.

33. P.W.-4, Dr. M. Ali has proved the injuries as he was extensively cross-examined as well, and P.W.-4 has categorically stated that the injuries were caused in the manner as alleged and specifically stated that injury No.2 was not caused while the appellant was urinating. He has also proved that there was a tattooing and charing on injury No.1.

34. We find that it is not necessary that all members of the unlawful assembly be identified and brought before the trial court thus, the conviction of the appellant under Section 302 read with 149 IPC by the trial court is in accordance with law.

35. We find that the Investigating Officer has also supported the injuries while supporting the exhibits in respect of recovery of Tikli' 'Charra' and pieces of 'Kartoos' as well as the Investigating Officer had also supported the manner of injury by clearly stating that in Panchayatnama the cloths worn by the deceased clearly indicates the damage caused to the cloths worn by the deceased by the fire arms. Therefore, the manner in which the injury was caused was proved.

36. The trial court further recorded a finding that the date and time of the incident was not disputed by the defence. Death caused by the firearm injury was also not disputed by the defence and, therefore, it was found that due to the firearm injury caused by the accused Luxman, Kunji Lal died on the date, time and place as mentioned by the prosecution.

37. We further find that incident had taken place on 25/26 October, 1982 at about 01:00 A.M. (night) and the report was promptly lodged at about 02:00 A.M. (night) and the distance of police station was about two miles. The Investigating Officer has also certified that he has recorded the statement of the witnesses in the night itself and as the light was not sufficient, therefore, Panchayatnama was conducted in the morning at 07:00 A.M. In this background, the trial court found that the death was caused by firearm injury on the date, time and place so given.

38. The manner of causing firearm injury was seriously disputed by the defence by stating that in view of the ante-mortem injuries, the same could not have been caused in the manner as alleged in the F.I.R. Dealing with this issue, trial court has considered the ante-mortem injury, statement of P.W.- 4 Dr. M. Ali and also considered the eye-witness accounts of P.W.-1 Shyam Lal, who is the informant also and P.W.-2, Ram Mahesh. Both were related to the deceased and were present on the spot. They have specifically stated the manner in which injuries were caused and accused Luxman was specifically named in causing firearm injuries.

39. There was also recovery of lantern from the spot and it has specifically come in the statement that second lantern was used just before the Investigating Officer has arrived at the spot. The first lantern was found to be hanging and there was sufficient light and as the assailants were known to the eye-witnesses, therefore, they were clearly identified in the light and the manner in which the firearm injuries were caused. Therefore, it was found by the trial court that the injuries so caused were caused by the accused-appellant and the same has been proved beyond reasonable doubt.

40. The defence had taken a ground that there were several eye-witnesses as well as formal witnesses but only two eye-witnesses were produced for deposition before the trial court by the prosecution.

41. In Gulam Sarbar v. State of Bihar (now Jharkhand), (2014) 3 SCC 401, hon'ble Apex Court has held that the conviction can even be based on the testimony of a sole eye-witness, the relevant extracts of the judgement are quoted hereinunder:

"19. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide:

Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638; Mahesh & Anr. v. State of Madhya Pradesh(2011) 9 SCC 626; Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of Haryana JT 2013( 1) SC 222)."

(Emphasis supplied)

42. In Anil Phukan v. State of Assam, (1993) 3 SCC 282, hon'ble Apex Court has observed as under:

"3. This case primarily hinges on the testimony of a single eye witness Ajoy PW3. Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW3 Ajoy.

4. mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime''

(Emphasis Supplied)

43. As per Section 134 of the Evidence Act; quality of evidence is required rather than quantity. Section 134 of Evidence Act is reproduced hereinbelow:-

" Section 134: No particular number of witnesses shall in any case be required for the proof of any fact".

44. Defence had raised one argument that admittedly, the case of prosecution is that the deceased Kunji Lal was sleeping in a room and, therefore, the assailants could have opened fire on him in the room itself, whereas, the murder had taken place on chabutara which causes serious doubt on the correctness of the prosecution story. The trial court found that as per the prosecution story, deceased was sleeping inside the room and it is only when the assailants arrived on the spot, deceased came out of the house to see as to who has come and for this reason he was on chabutara where he was surrounded and shot dead. All such narrations of fact stated by P.W.-1 and P.W.-2 could not be dislodged even in their cross-examination.

45. In regard to injury caused to the deceased in scrotum area, the Doctor has clearly opined that in case the deceased was urinating in a siting position, the injury No.2 could not have been caused by firing. Doctor has further certified that two firearm injuries were sufficient to cause immediate death. The pellets were also recovered from the body. With these findings, the accused was found guilty of having committed offence under Section 302 read with Section 149 of the IPC and was punished with imprisonment for life.

46. Learned AGA has supported the prosecution version and submits that there is no scope of any interference in the findings so recorded by the court below. He submits that evidence on record, clearly proves that appellant-accused Luxman has caused the death of deceased Kunji Lal, who was a village Chowkidar and was instrumental in arresting of different accused persons and, therefore, there was a motive as well.

47. We have also scrutinized the evidence on record independently. P.W.-1 is nephew of the deceased who has lodged the first information report and was present on the spot. He has specifically stated that Ram Mahesh P.W.-2 was also present on the spot and both were related to the deceased. We find that both have given evidence of source of light as one lantern hanging on one hook and the incident had taken place at around 01:00 A.M. (night). We further found that the F.I.R. was lodged promptly within one hour at 02:00 A.M. and the distance of police station was about two miles. The Investigating Officer has clearly stated that statement of the witnesses were recorded in the same night during 04:00 A.M. to 07:00 A.M. and thereafter, the Panchayatnama was prepared after 07:00 A.M., therefore, it was a case of a prompt F.I.R. The wads, pellets and piece of empty cartridges were also recovered from the spot. Doctor, P.W.-4 M. Ali has also proved the recovery of pellets from the body of the deceased. It is also on record, which is also not in dispute, that deceased Kunji Lal was a village Chowkidar and was instrumental in arrest of several criminals. It is also on record that accused Luxman was a history-sheeter and was accused in several heinous offences and was facing criminal trial and the accused was absconding after the incident for a long time. The details of the criminal cases against accused Luxman have been noticed at page No.33 of the paper-book in the statement of P.W.-3 Mahaveer Singh S.I., who was the Investigating Officer of the incident. We, therefore, find that although it is a case of direct evidence, however, strong motive was also present in the instant case.

48. In respect of promptly lodged F.I.R., the hon'ble Supreme Court in Jai Prakash Singh v. State Of Bihar And Another , (2012) 4 SCC 379, has observed as under:

"12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir Samsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC 37)"

(Emphasis Supplied)

49. As far as motive is concerned, in Bipin Kumar Mondal v State of West Bengal, (2010) 12 SCC 91, hon'ble Apex court has observed hereinunder:

22. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

23. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55, 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 eye- witnesses 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 notestablished, the evidence of an eye-witness is rendered untrustworthy.

24. 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. (Vide Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91).

25. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. (Vide Ujagar Singh Vs. State of Punjab, (2007) 13 SCC 90).

26. 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."

(Emphasis Supplied)

50. We find that after the alleged incident, the accused-appellant has surrendered after about three months before the trial court and he was sent to the jail rather remanding him to the police custody, therefore, used weapon in the crime could not be recovered. Though, the incident occurred in the night but the prosecution has proved the source of light. We have also observed that prompt F.I.R. was lodged in respect of the alleged incident. The deceased being Chowkidar was facilitating the police to arrest the accused-appellant and other co-accused as they have long criminal history of dacoity and murder thus, the appellant-accused and other co-accused have motive to kill the deceased (Chowkidar). The ocular testimony is supporting/corroborating to the medical testimony and other prosecution evidences. There were several witnesses but before the trial court only two eye-witnesses were produced by the prosecution for the deposition. However, quality of evidence is required to prove the prosecution case rather than the quantity. The hon'ble Apex Court in Gulam Sarbar (supra) and Anil Phukan (supra) has observed that on the testimony of sole eye-witness, an accused may be convicted.

51. We, therefore, are of the opinion that the present appeal lacks merit and is, accordingly, dismissed. The conviction of surviving appellant- Luxman is confirmed.

52. Since, the accused-appellant is absconding, his bail bonds are cancelled and the sureties are discharged. He shall be taken into custody forthwith. The Chief Judicial Magistrate and Senior Superintendent of Police/Superintendent of Police concerned shall ensure the arrest of the accused-appellant, Luxman.

53. Lower court record be sent to the concerned Court forthwith.

54. Let a copy of this order be communicated by the Registrar (Compliance) to the Court concerned for compliance.

Order Date :- 17.3.2025

K.Tiwari