Swami Dayal And Another vs State Of U.P.

Neutral Citation No. – 2026:AHC-LKO:79464-DB
Judgment Reserved on 25.09.2026
Judgment Delivered on 03.11.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 408 of 1986
Swami Dayal and another
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Nagendra Mohan, Dheeraj
Srivastava
Counsel for Respondent(s) : Govt.advocate,
Alongwith
CRIMINAL APPEAL No. - 362 of 1986
Jan Mohammad Alias Gotey Baj
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Nagendra Mohan, Shailesh Kumar
Singh, Susheel Kumar, Umajeet
Gupta
Counsel for Respondent(s) : Govt.advocate,
Court No. - 11
HON'BLE ABDUL MOIN, J.
HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

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CRLA No. - 408 of 1986
1. Heard Shri Rizwanul Haque Ansari, learned counsel appearing on
behalf of appellant no. 2 Jagannath in leading Criminal Appeal No. 408
of 1986, Shri Arun Kumar, learned Amicus Curiae appointed on behalf
of appellant no.1 Swami Dayal, Shri Manish Vaish, learned counsel for
appellant Jan Mohammad @ Gotey Baj in connected Criminal Appeal
No. 362 of 1986 and learned Additional Government Advocate (A.G.A.)
appearing for the State-respondent in both the connected appeals.
2. The instant criminal appeals under Section 374(2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) have been
instituted assailing the common judgment and order of conviction and
sentence dated 27.05.1986 passed by the learned II Additional Sessions
Judge, Kheri in Sessions Trial No. 528 of 1985 (State vs. Swami Dayal
and Others), arising out of Case Crime No. 10 of 1985, under Sections
452, 323 and 302 of the Indian Penal Code (hereinafter referred to as
‘IPC’), Police Station Nighasan, District Lakhimpur Kheri.
3. By means of the impugned judgment and order dated 27.05.1986,
the learned trial court convicted all three accused-appellants, namely
Swami Dayal, Jagannath and Jan Mohammad @ Gotey Baj, under
Section 302 read with Section 34 IPC and sentenced each of them to
undergo imprisonment for life. All three appellants were further
convicted under Section 449 IPC and sentenced to undergo rigorous
imprisonment for a period of five years and under Section 323 read with
Section 34 IPC and sentenced to undergo rigorous imprisonment for a
period of six months. All sentences were directed to run concurrently.
BRIEF FACTS OF THE CASE
4. The prosecution matrix of the case, in brief, is that in the
intervening night of 30/31.01.1985, informant Sharda Prasad (P.W. 1)
and his cousin brother (phuphera bhai) Maiku (deceased) were sleeping
in a bungalow (chhappar / thatched hut made of grass and wood), after
having their night meal. At about 1:30 A.M., the informant and his
cousin Maiku got awakened upon hearing some rustling noise. By the

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CRLA No. - 408 of 1986
light of an burning lantern hanging inside, they saw accused Swami
Dayal, Jagannath, Gotey Baj and one unknown person entering into the
thatched hut (chhappar). Out of them, Swami Dayal and Jagannath were
armed with bankas, while Gotey Baj and the other unknown person were
armed with dandas. The accused persons launched an assault and
inflicted banka blows upon Maiku. When informant Sharda Prasad
objected and resisted, the assailants also attacked him with dandas. The
informant sustained injuries on the index finger of his right hand and on
his right elbow. Informant Sharda Prasad fled from the spot raising an
alarm and shouting for help, whereupon accused Gotey Baj and the other
unknown associate chased him. On the alarm and hue and cry raised by
informant Sharda Prasad, co-villagers Sundar son of Mihin (P.W. 2),
Sundar Bhurji son of Mullu (P.W. 3) and several other villagers arrived
at the spot. Seeing the witnesses, the miscreants fled towards the east.
When the informant, along with the witnesses, returned inside the
thatched hut (chhappar), he saw that his cousin Maiku had succumbed to
his injuries and was lying dead in a pool of blood.
5. It was further averred that informant Sharda Prasad had taken
agricultural land from one Mangu Lohar on contract (theka) and accused
Swami Dayal and his associates also wanted to take the same land on
contract; on account thereof, pre-existing enmity existed between the
accused persons and the informant and deceased Maiku. On the morning
of 31.01.1985, informant Sharda Prasad moved a written tehreer (Exhibit
Ka-1) scribed by Sri S.K. Singh at Nighasan, narrating the aforesaid
facts, before Police Station Nighasan. On that basis, the First
Information Report (hereinafter referred to as ‘FIR’) was registered on
31.01.1985 at 8:00 A.M. as Case Crime No. 10 of 1985 against Swami
Dayal, Jagannath, Gotey Baj and one unknown person under Sections
452, 323 and 302 IPC via Chik FIR No. 10/85 (Exhibit Ka-2) and
General Diary Entry No. 11 (Exhibit Ka-3).
6. Following the registration of the FIR, the Investigating Officer,
S.O. Om Shanker Shukla (P.W. 4), visited the place of occurrence,

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CRLA No. - 408 of 1986
prepared the site plan (Exhibit Ka-11), collected articles including plain
and blood-stained earth, cash of Rs. 42/-, an Eveready torch and the
burning lantern from the spot under recovery memos (Exhibits Ka-9 and
Ka-10). The I.O. conducted the inquest proceedings (panchayatnama,
Exhibit Ka-5) on the cadaver of deceased Maiku between 9:00 A.M. and
10:00 A.M. on 31.01.1985. Along with the requisite police papers
(Challan Lash Exhibit Ka-7, Photo Lash Exhibit Ka-6, Sample Seal
Exhibit Ka-8), the dead body was dispatched in a sealed cover through
Constable CP 96 Rajendra Prakash (P.W. 5) and Chowkidar Kallu for
post-mortem examination. Informant Sharda Prasad was sent with a
police memo (chitthi majrubi, Exhibit Ka-4) to Primary Health Centre,
Nighasan, where he was medically examined by Dr. R.C. Shukla (P.W.
7) at 10:00 A.M. on 31.01.1985.
7. On 01.02.1985 at about 1:30 P.M., Dr. R.C. Singh (P.W. 6),
Surgeon, District Hospital, Lakhimpur Kheri, conducted the autopsy on
the dead body of deceased Maiku and proved the Post-Mortem Report
(Exhibit Ka-15), recording ten ante-mortem injuries and opining the
cause of death to be coma resulting from ante-mortem injuries.
8. In the course of investigation, the Investigating Officer recorded
the statements of witnesses under Section 161 Cr.P.C. The accused
persons surrendered in court on 04.02.1985. Upon conclusion of the
statutory investigation, the Investigating Officer submitted the Charge-
Sheet (Exhibit Ka-14) on 25.03.1985 against accused Swami Dayal,
Jagannath and Jan Mohammad under Sections 302, 449 and 323 IPC.
9. The learned Munsif Magistrate, Kheri, after ensuring compliance
with Section 207 Cr.P.C., found a prima facie case exclusively triable by
the Court of Session and committed the case to the Court of Session vide
committal order dated 11.10.1985. The case was registered as Sessions
Trial No. 528 of 1985 and made over to the Court of II Additional
Sessions Judge, Kheri for trial according to law.

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CRLA No. - 408 of 1986
10. On 05.11.1985, the learned trial court framed formal charges
against accused Swami Dayal, Jagannath and Jan Mohammad under
Sections 302/34, 449 and 323/34 IPC. The charges were read over and
explained to the accused persons in Hindi, who pleaded not guilty and
claimed trial.
EVIDENCE ON BEHALF OF THE PROSECUTION
11. In order to substantiate its charges and bring home the guilt of the
accused persons, the prosecution adduced oral and documentary
evidence. The prosecution produced and examined as many as seven
witnesses, whose ocular, medical and formal roles are summarized in the
table below:
Witness
Name &
Role / Evidence Type
Particulars
No.
Sharda Prasad
P.W. 1
Informant / Injured Eye-Witness
s/o Hansa
Sundar Teli s/o
P.W. 2
Named Eye-Witness
Mihin
Sundar Bhurji s/o
P.W. 3
Named Eye-Witness
Mullu
S.O. Om Shanker
P.W. 4
Investigating Officer (I.O.)
Shukla
Constable CP 96
P.W. 5
Police Carrier of Dead Body
Rajendra Prakash
Dr. R.C. Singh
P.W. 6
Autopsy Surgeon
(Surgeon)
Dr. R.C. Shukla
P.W. 7
Medical Officer, PHC Nighasan
(Medical Officer)

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12. Further, the prosecution proved and exhibited contemporaneous
documentary materials, details whereof are tabulated hereunder:
Exhibit No. Description of Document
Ex. Ka-1 Written Complaint ( Tehreer )
Ex. Ka-2 Chick First Information Report
Ex. Ka-3 Carbon Copy of G.D. Entry No. 11
Ex. Ka-4 Police Medical Memo ( Chitthi Majrubi )
Ex. Ka-5 Inquest Report ( Panchayatnama )
Ex. Ka-6 Diagram / Sketch of Dead Body ( Photo Lash )
Ex. Ka-7 Challan Lash
Ex. Ka-8 Specimen Sample Seal
Ex. Ka-9 Recovery Memo ( Fard )
Ex. Ka-10 Recovery Memo / Supurdaginama
Ex. Ka-11 Site Plan ( Naksha Nazari )
Ex. Ka-12 Police Statement u/s 161 Cr.P.C.
Ex. Ka-13 Police Statement u/s 161 Cr.P.C.
Ex. Ka-14 Charge-Sheet No. 14/1985
Ex. Ka-15 Post-Mortem Examination Report
Ex. Ka-16 Medical Injury Report of Informant

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CRLA No. - 408 of 1986
DEPOSITIONS OF PROSECUTION WITNESSES
P.W. 1, Sharda Prasad (Informant / Injured Witness):
13. P.W. 1 deposed in his examination-in-chief that he and deceased
Maiku were cousin brothers (phuphera bhai), lived together and ate their
meals together. His residential house was situated 10–15 paces away
from his thatched hut (chhappar / bungalow). On the night of the
incident, he and Maiku were sleeping under the thatched hut by the light
of a burning lantern. Around 1:00–1:30 A.M., hearing rustling sounds, he
woke up and told Maiku. Thereupon, accused Swami Dayal, Jagannath,
Gotey Baj and one unknown person entered the hut. Swami Dayal and
Jagannath were armed with bankas, while Gotey Baj and the unknown
associate carried dandas. Swami Dayal and Jagannath inflicted banka
blows upon Maiku. When P.W. 1 intervened, the accused struck him with
dandas, injuring his right finger and elbow. He fled shouting 3–4 paces
into the paddy field, whereupon Sundar Bhurji and Sundar Teli arrived
and the assailants fled eastwards. Maiku died on the spot. Regarding
motive, he stated that accused Swami Dayal had taken the field of
Mangu Lohar on contract for 10 quintals of grain yearly, but deceased
Maiku outbid him and took it for 11 quintals yearly.
14. In his cross-examination, P.W. 1 made material admissions. He
admitted that he owned a pucca residential house having an operational
flour mill (chakki), situated 10–12 paces away from the thatched hut,
where his children resided. He admitted that deceased Maiku had 2–3
acres of land and his surviving wife was sleeping on a cot merely 3–4
paces away from where he and Maiku were lying; that she was dumb
(goongi), did not reach the spot during the assault and did not lodge any
report. He further admitted that he had blood on his clothes, but never
produced them before the police. He admitted that two months prior to
the incident, an unregistered will was purportedly executed by Maiku in
his favor; that after Maiku's death, he applied for mutation during

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consolidation proceedings based on that will; that Maiku's widow
objected, terming it forged; and that his mutation claim was rejected,
with the land being mutated in the widow's name. He admitted that the
brother of Swami Dayal owned a competing flour mill 50–60 paces
away. Crucially, he admitted in Para 9 that he filed the written report at
the police station at 10:00–11:00 A.M. and returned to the village by
10:00–10:30 A.M. and that the I.O. met him at the village at around 2:00
P.M.
P.W. 2, Sundar Teli s/o Mihin (Eyewitness – Declared Hostile):
15. P.W. 2 deposed that his house and shed were situated south of
Maiku's shed. Around midnight, he heard an alarm that a dacoity was
taking place. He rushed to Maiku's shed along with co-villagers and
found Maiku lying dead. He categorically testified: "
मैंनेमैकूकाकत्लकरते
" (I did not see anyone committing the murder of
किसीकोनहींदेखा।
Maiku). Having resiled, he was declared hostile and cross-examined by
the State, wherein he denied making any statement under Section 161
Cr.P.C. to the I.O. naming the accused.
P.W. 3, Sundar Bhurji s/o Mullu (Eyewitness – Declared Hostile):
16. P.W. 3 deposed that around 1:30–2:00 A.M., he rushed to the spot
upon hearing commotion and found Maiku lying dead. He specifically
testified: " " (I did not
मैंनेमुल्जि मानकोमैकूमारतेनहींदेखानमुल्जि मानकोदेखा।
see the accused persons assaulting Maiku nor did I see the accused
persons). Upon being declared hostile, he denied his Section 161 Cr.P.C.
statement and stated he never told the police that the accused committed
the murder.
P.W. 4, S.O. Om Shanker Shukla (Investigating Officer):
17. P.W. 4 deposed regarding the receipt of the written report at 7:00
A.M. and registration of GD Entry No. 11 at 8:00 A.M. on 31.01.1985.
He proved the chick FIR (Exhibit Ka-2), GD copy (Exhibit Ka-3),
medical memo (Exhibit Ka-4), inquest report (Exhibit Ka-5), recovery

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CRLA No. - 408 of 1986
memos (Exhibits Ka-9 and Ka-10), site plan (Exhibit Ka-11) and charge-
sheet (Exhibit Ka-14). In cross-examination, he admitted that the
location of the torch was not shown on the site plan, that the distance
from the sleeping place to the lantern was not marked, that no soot
(kalikh) on the lantern was verified and that independent neighbors
Natha and Prabhoo were not interrogated.
P.W. 5, Constable CP 96 Rajendra Prakash (Police Carrier):
18. P.W. 5 deposed that he took custody of the sealed dead body of
Maiku and police papers from the I.O. on 31.01.1985 at 10:00 A.M. at
Village Patia and carried it intact to the District Sadar Hospital, Kheri for
autopsy.
P.W. 6, Dr. R.C. Singh (Autopsy Surgeon):
19. P.W. 6, Dr. R.C. Singh, proved the Post-Mortem Report (Exhibit
Ka-15). On 01.02.1985 at 1:30 P.M., he conducted the autopsy on the
cadaver of deceased Maiku, estimating the time since death to be about
1½ days prior. He recorded ten ante-mortem injuries, including deep
incised wounds cutting the skull bones, brain tissues and vertebrae;
lacerated wounds; contusions; and Injury No. 5: Punctured wound 0.5
cm × 0.2 cm × 1.0 cm on the right molar prominence. The stomach
contained pasty matter weighing 150 grams and the small intestine
contained partially digested food. The cause of death was opined to be
coma resulting from ante-mortem injuries. In his cross-examination, he
admitted that Injury No. 5 could not have been caused by a sooja, but
could have been caused by the point of a large knife, or by a banka only
if its thickness did not exceed 0.2 cm.
P.W. 7, Dr. R.C. Shukla (Medical Officer, PHC Nighasan):
20. P.W. 7 proved the injury report of informant Sharda Prasad
(Exhibit Ka-16) examined on 31.01.1985 at 10:00 A.M. He noted: (i)
contusion 8 cm x 2 cm on left shoulder; (ii) contusion 10 cm x 2 cm on
back of right elbow; and (iii) lacerated wound 0.8 cm x 0.3 cm skin-deep

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CRLA No. - 408 of 1986
on tip of right index finger. He opined that all injuries were simple,
fresh, caused by blunt objects like lathi/danda and could not be self-
inflicted.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C. &
DEFENCE PLEA
21. Upon the closure of prosecution evidence, the incriminating
circumstances were put to the accused persons under Section 313 Cr.P.C.
All three accused-appellants denied the allegations in toto and pleaded
false implication due to enmity. Accused Swami Dayal specifically
stated:
"
शारदाप्रसादसेपहलेमारपीटहुईथी।चक्कीदोनोंकीहैइसीकाकम्पीटीशन
"
थायहीझगड़ाथा।
22. Accused Jagannath and Jan Mohammad denied all association and
attributed the case to enmity. At the juncture of defence evidence, no oral
or documentary evidence was adduced on behalf of the accused persons.
FINDINGS OF THE TRIAL COURT
23. The learned trial court, after hearing the parties and perusing the
record, held that the prosecution had proved its case beyond reasonable
doubt, accepting the testimony of P.W. 1 as an injured witness
corroborated by medical evidence and convicted and sentenced the
accused-appellants as aforesaid. Aggrieved, the appellants preferred the
instant appeals before this Court.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
24. Learned counsel appearing for the appellants and learned Amicus
Curiae submitted that the learned trial court failed to evaluate the
evidence in its correct perspective and passed the impugned judgment in
an arbitrary and mechanical manner, which is not in consonance with
law. They submitted that two eyewitnesses, namely Sundar Teli (P.W. 2)
and Sundar Bhurji (P.W. 3), did not support the prosecution at all; both

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CRLA No. - 408 of 1986
resiled, testified that cries of dacoity were raised and denied having seen
any of the accused. Thus, independent corroboration is completely
lacking. They submitted that in the FIR, the full name of accused Jan
Mohammad was not disclosed, only an alias "Gotey Baj" was stated and
his role was merely alleged to be chasing the informant; no Test
Identification Parade (T.I.P.) was ever conducted. They submitted that as
per the FIR, the land of Mangu Lohar was taken on contract by
informant Sharda Prasad and accused Swami Dayal also wanted it;
hence, enmity was between the informant and the accused. There was no
plausible reason for the accused to spare the informant and murder
Maiku. They submitted that deceased Maiku had sufficient land for his
livelihood and the alleged motive regarding the contract of land is flimsy
and unproved. They contended that as admitted by P.W. 1, he owned a
pucca residential house situated 10–12 paces away where his family
resided; therefore, no occasion arose for him to leave his house and sleep
with Maiku under a thatched hut in the freezing night of January. They
contended that deceased Maiku's wife was sleeping on a cot merely 3–4
paces away, but neither did she raise an alarm nor lodged an FIR nor was
she produced by the prosecution during trial, creating a serious dent in
the prosecution story. They submitted that other independent public
witnesses residing in the immediate vicinity (such as Natha and
Prabhoo) were not examined. They submitted that the source of light
(lantern and torch) was developed subsequently, as no mention of
hanging the lantern was made in the initial report. Furthermore, no
recovery of any weapon was made from any of the accused. They
submitted that on the alleged place of occurrence, no paddy grains were
recovered by the I.O., whereas the prosecution case was that the
deceased and P.W. 1 were sleeping there specifically to guard the
harvested paddy. They contended that P.W. 1 is not a witness of sterling
quality and resting a capital conviction solely on his uncorroborated
testimony is wholly unsafe. Therefore, the findings of the trial court are
perverse and the impugned judgment is liable to be set aside.

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CRLA No. - 408 of 1986
SUBMISSIONS ON BEHALF OF THE STATE
25. Per contra, learned A.G.A. appearing for the State-respondent
submitted that the learned trial court, after evaluating the entire record,
passed a well-reasoned judgment in consonance with law. He submitted
that merely because P.W. 2 and P.W. 3 turned hostile, the entire
prosecution case cannot be thrown out. He submitted that the incident
occurred in late January when agriculturists routinely sleep near their
crops; in that sequence, the deceased and informant were sleeping under
the thatch where paddy was stored. He submitted that P.W. 1 is an
injured eyewitness; therefore, his testimony stands on a higher pedestal
than any ordinary witness. He submitted that the informant duly
recognized the accused by the light of a lantern and torch, which were
recovered by the I.O. from the spot under recovery memos. He
submitted that the FIR is not an encyclopedia and minor omissions
cannot dismantle the prosecution case. Under the Evidence Act, plurality
of witnesses is not required; only the quality of evidence matters. He
submitted that the ocular testimony of P.W. 1 is corroborated by medical
evidence and minor discrepancies do not dilute the core prosecution
version.
26. To substantiate his contentions, the learned A.G.A. placed reliance
in the judgments of Abdul Sayeed vs. State of M.P.: (2010) 10 SCC
259, Tori Singh vs. State of U.P., AIR 1962 SC 399, Shakti Patra and
Anr. vs. State of West Bengal, AIR 1981 SC 1217 & State of U.P. vs.
Ram Kumar and Others, (2017) 14 SCC 614 .
POINTS FOR DETERMINATION
27. Upon hearing learned counsel for the parties and perusing the
record, the following points arise for determination in these appeals:
(I) Whether the prosecution has succeeded in proving its case
beyond reasonable doubt against the accused-appellants?

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CRLA No. - 408 of 1986
(II) Whether the findings of conviction and the sentence
recorded by the learned trial court suffer from any perversity
or illegality so as to warrant interference by this Court?
28. Since both the points are intrinsically interlinked, they are being
considered and evaluated together.
ANALYSIS, REASONING AND DISCUSSION
29. Firstly, it has to be seen whether the death of deceased Maiku was
homicidal or not. In the FIR, it was alleged that deceased Maiku was
caused injuries by banka blows. P.W. 1 Sharda Prasad deposed that the
deceased was assaulted with bankas and dandas and upon sustaining
multiple injuries, he succumbed on the spot. In the inquest report
(Exhibit Ka-5), proved by P.W. 4, cutting and lacerated wounds were
noted and the panchas opined that death was caused by sharp-edged
weapons. Autopsy Surgeon Dr. R.C. Singh (P.W. 6) found ten ante-
mortem injuries on the cadaver of Maiku, including deep incised wounds
cutting the parietal and occipital bones, brain membranes and vertebrae
and opined that death occurred due to coma resulting from ante-mortem
injuries caused by sharp-edged and blunt weapons. It is not the defence
case that the death was accidental or suicidal. Thus, it stands established
beyond cavil that the death of deceased Maiku was homicidal in nature.
30. Now, we proceed to consider the ocular testimony on record. As
per the prosecution case, upon the alarm raised by informant Sharda
Prasad, co-villagers Sundar son of Mihin (P.W. 2) and Sundar Bhurji son
of Mullu (P.W. 3) arrived at the spot. Both these witnesses were
produced by the prosecution as eyewitnesses of the occurrence.
31. Sundar Teli (P.W. 2) deposed that his shed is situated south of
Maiku's shed, near his house. He stated that at he heard cries that a
dacoity was being committed (" "). He rushed
हल्लाहुआकि डकैतीपड़गयीहै
to Maiku's shed and found Maiku lying dead, but categorically stated
that he did not see who killed Maiku and did not see any of the accused.
He turned hostile and in cross-examination by the State, denied making

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CRLA No. - 408 of 1986
any statement under Section 161 Cr.P.C. to the I.O. implicating the
accused.
32. Sundar Bhurji (P.W. 3) deposed that the incident occurred around
1:30–2:00 A.M.; he rushed to the spot and saw Maiku lying dead, but
specifically testified that he did not see who killed Maiku and did not see
the accused persons. Upon turning hostile, he denied giving any
statement to the I.O. implicating the accused.
33. It is a settled proposition of law that the testimony of a hostile
witness cannot be rejected outright. Both parties are entitled to rely upon
such portions of the testimony of a hostile witness which support their
case. However, from the depositions of P.W. 2 and P.W. 3, it is manifest
that both witnesses have completely denied the presence, identity and
overt acts of the accused persons, testifying instead that cries of dacoity
were raised. Therefore, their evidence affords no assistance whatsoever
to the prosecution. Consequently, the entire prosecution case rests solely
upon the uncorroborated testimony of a single witness, namely
informant Sharda Prasad (P.W. 1), who also claims to be an injured
witness.
34. It is well settled that the law of evidence does not require plurality
of witnesses. Under Section 134 of the Indian Evidence Act, 1872, it is
the quality and not the quantity of evidence that matters. In the landmark
decision of Vadivelu Thevar v. State of Madras, AIR 1957 SC 614,
reaffirmed in Lallu Manjhi v. State of Jharkhand, AIR 2003 SC 854,
the Hon'ble Supreme Court classified oral testimony into three
categories:
I. Wholly reliable;
II. Wholly unreliable; and
III. Neither wholly reliable nor wholly unreliable.
35. In the first category, the court has no difficulty in convicting the
accused on the uncorroborated testimony of a single witness. In the

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CRLA No. - 408 of 1986
second category, the court equally has no difficulty in discarding the
testimony. It is in the third category that the court must be circumspect
and seek corroboration in material particulars from reliable evidence,
direct or circumstantial, before acting upon such solitary testimony.
Furthermore, in Veer Singh v. State of U.P., (2014) 2 SCC 455 , the
Apex Court held that if the testimony of a sole witness is found reliable
on the touchstone of credibility, conviction can be recorded on its basis.
While assessing the testimony of an eyewitness, the Court must
examine:
(i) The presence of the witness on the spot;
(ii) Whether the witness actually saw the incident; and
(iii) The overall credibility and veracity of the witness.
36. Although the testimony of an injured witness stands on a higher
pedestal as his presence is stamped by his injuries (Abdul Sayeed,
Supra), sustained injuries are not an infallible guarantee of truth. An
injured witness is not incapable of telling lies or falsely implicating
enemies while shielding the real assailants. Therefore, the testimony of
P.W. 1 requires close and cautious scrutiny.
37. On a meticulous scrutiny of the deposition of P.W. 1 Sharda
Prasad, the following material facts and improbabilities emerge:
A) Unnatural Conduct Regarding Sleeping Place: P.W. 1
admitted that he owned a pucca residential house situated
barely 10–12 paces away from the thatched shed, equipped
with a functional flour mill, where his minor children resided.
It is highly unnatural that in the peak winter night of late
January, leaving his pucca house and minor children, he would
sleep under an open thatched shed (chhappar) on the ground
over straw (puaal).
B) Absence of Paddy Crop at the Scene: The explanation
offered for sleeping in the shed was to guard harvested paddy.

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CRLA No. - 408 of 1986
However, P.W. 1 admitted in cross-examination that no paddy
was seized by the I.O. nor did the I.O. find any stored paddy at
the spot during spot inspection.
C) Unexplained Conduct of Deceased's Wife: P.W. 1 admitted
that deceased Maiku's wife was sleeping on a cot merely 3–4
paces away in the adjoining shed, sharing a common courtyard
and single entrance. When a brutal assault was being
committed and P.W. 1 was raising alarms that attracted
neighbors from distance, it is inconceivable that the wife would
remain asleep or unaware. The explanation that she was dumb
(goongi) does not explain why she did not wake up or react, as
it is not the prosecution case that she was deaf or blind.
Crucially, she was never examined by the police nor produced
as a witness during trial.
D) Discrepancy and Flimsiness of Motive: In the FIR, P.W. 1
alleged that he had taken Mangu Lohar's land on contract,
creating enmity with the accused. In his deposition, he shifted
the version, stating that deceased Maiku had taken the land on
contract. If the enmity was over the contract taken by Sharda
Prasad, there was no reason for the assailants to spare Sharda
Prasad and murder Maiku. Moreover, Mangu Lohar was never
examined and no documentary proof of the alleged contract
was produced.
E) Pre-Existing Flour Mill Enmity & Trivial Injuries: Accused
Swami Dayal, in his statement under Section 313 Cr.P.C., set
up a specific defence that his brother Bramhdeen owned a flour
mill 50–60 paces away from Sharda Prasad's flour mill and
competition between the two mills was the real cause of
rivalry. P.W. 1 admitted the existence and proximity of the
competing flour mill. If four armed assailants harbored lethal
enmity and attacked in the dark of night, it is incredible that
they would spare P.W. 1 with merely two simple contusions

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CRLA No. - 408 of 1986
and a superficial skin-deep scratch on his finger, while
inflicting ten brutal injuries on Maiku.
F) Motive to Usurp Deceased's Land & Forged Will: P.W. 1
made a fatal admission in his cross-examination: he admitted
that two months prior to the incident, an unregistered will was
purportedly executed by deceased Maiku in his favor; that
following Maiku's murder, he set up this will to claim mutation
over Maiku's 2–3 acres of land during consolidation
proceedings; that Maiku's widow contested the will as forged;
and that his mutation claim was rejected, with the land being
mutated in the widow's name. This admission establishes a
strong motive for Sharda Prasad to eliminate Maiku to usurp
his property and falsely implicate his business rivals (Swami
Dayal and associates). The fact that the widow contested the
will in revenue court completely shatters the assumption that
her disability prevented her from participating in legal
proceedings, exposing a deliberate suppression of material
evidence by the prosecution.
G) Identity of Jan Mohammad & Lack of T.I.P.: The FIR
named only "Gotey Baj" without mentioning the name of Jan
Mohammad. P.W. 1 admitted that "Gotey Baj" is merely a
community/caste name in Village Gariyana and he did not
know all members by name. In the absence of a Test
Identification Parade, fastening criminal liability upon
appellant Jan Mohammad is legally unsustainable.
H) Glaring Discrepancy on FIR Timing: While the police
record shows that the FIR was registered at 8:00 A.M. on
31.01.1985, P.W. 1 categorically admitted in Para 9 of his
cross-examination that he submitted the written report at the
police station between 10:00 A.M. and 11:00 A.M. and
returned to the village by 10:00–10:30 A.M. and that the I.O.
met him at the village at around 2:00 P.M. This admission

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CRLA No. - 408 of 1986
demonstrates that the FIR was ante-timed and brought into
existence after spot consultations.
I) Medical Conflict Regarding Weapon: The ocular narrative
attributed only bankas and dandas to the assailants. However,
Autopsy Surgeon P.W. 6 found a distinct punctured wound (0.5
cm x 0.2 cm x 1.0 cm) on the cheek, admitting that it could be
caused by the point of a large knife, while P.W. 1 could not
even state whether the bankas were pointed or blunt.
38. The judicial precedents relied upon by the learned A.G.A.
[Abdul Sayeed, Tori Singh, Shakti Patra and Ram Kumar,
(supra)] embody well-established legal principles; however, their
application is contingent upon the evidence being credible and
cogent. Where the testimony of the solitary witness is riddled with
material contradictions, tainted by pre-existing property and business
rivalries and contradicted by the surrounding physical circumstances,
the prosecution cannot derive benefit from those decisions.
39. In view of the above discussion, the testimony of P.W. 1 Sharda
Prasad falls in the category of "neither wholly reliable nor wholly
unreliable," bordering on wholly unreliable and fails to attain the
benchmark of a "sterling witness" (Rai Sandeep v. State (NCT of
Delhi), (2012) 8 SCC 21) . In the complete absence of independent
corroboration, it is wholly unsafe to sustain the conviction of the
appellants on his solitary, interested and tainted testimony. The learned
trial court failed to appreciate these vital aspects of the case, rendering
its findings perverse and unsustainable in law. Consequently, the
appellants are entitled to the benefit of doubt.
40. In view of the above facts and circumstances of the case, both the
connected criminal appeals are hereby allowed .
41. The impugned judgment and order of conviction and sentence
dated 27.05.1986 passed by the learned II Additional Sessions Judge,
Kheri in Sessions Trial No. 528 of 1985 is hereby set aside. The

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CRLA No. - 408 of 1986
appellants, namely Swami Dayal, Jagannath and Jan Mohammad @
Gotey Baj, are acquitted of all charges framed against them under
Sections 302/34, 449 and 323/34 IPC.
42. Appellant no. 2 Jagannath (in Criminal Appeal No. 408 of 1986),
who is detained in District Jail, Lakhimpur Kheri, shall be released
forthwith, if not required in connection with any other case.
43. Appellant no. 1 Swami Dayal (in Criminal Appeal No. 408 of
1986) and appellant Jan Mohammad @ Gotey Baj (in Criminal Appeal
No. 362 of 1986) are on bail. Their bail bonds are cancelled and their
sureties are discharged. Non-bailable warrants/proceedings pending
against them, if any, stand discharged.
44. The appellants shall comply with the provisions of Section 437-A
Cr.P.C. by furnishing personal bonds and sureties to the satisfaction of
the trial court concerned within a period of one month from today.
45. The trial court record be returned as per rule.
46. Shri Arun Kumar, learned amicus curiae appearing on behalf of
the appellant no.1 would be paid an amount of Rs.25,000/- as fee, as per
rules, within six weeks.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
November 03, 2026
Haseenuddin
Digitally signed by :-
HASEENUDDIN
High Court of Judicature at Allahabad,
Lucknow Bench