Hridai Nath & Ors. vs State Of U.P.

Hon'Ble Harvir Singh, J.

The appeal has already been abated with respect to appellant Nos. 2 and 3 (Ashok Mishra and Ghanshyam Pandey), vide order dated 11.02.2026.

Heard learned counsel for the surviving appellant-Hridai Nath, learned A.G.A. for the State and perused the record.

The instant criminal appeal has been filed, assailing the impugned judgment and order of conviction dated 31.08.1988 passed by the learned VIIIth Additional Sessions Judge, Varanasi in Sessions Trial No. 146 of 1986 (State vs. Hridai Nath Pandey and Others), whereby, all the three accused/appellants were convicted for the offence punishable under Section 460 read with Section 34 of the Indian Penal Code (IPC) and sentenced to undergo five years’ rigorous imprisonment each.

The prosecution story, in a nutshell, is that, on the intervening night of 22/23-08-1984, in village Mahuarkala, Thana Banuwa, District Varanasi, the informant Smt. Savitri Devi (PW-1) was sleeping on a bed with her friend Gangajali. Next to her, on another bed, the informant’s mother, Smt. Phoolmati Devi, was also sleeping there. The main door of the house was closed with a bolt and a lamp was lit. At night, with the help of a rope, the accused persons climbed to the terrace and came down through the window into the room. Finding the door open, the informant, her friend Gangajali, and her mother woke up. Ghanshyam Pandey, Ashok Mishra, Hridai Nath Pandey and Bhairav Pandit, along with two other residents of the same village who had been riding around on their scooter, were also present there two days earlier. In the dim light, they noticed the thief’s face. Bhairav Pandit gave a blow in her mother’s womb for two consecutive times. He struck her mother, causing her to fall unconscious, and fled through the door. While fleeing, Ashok Mishra fired two shots from his pistol. Hearing the noise, the informant’s father/witness Kalu Ram, Bindra Ram, Shyam Narayan, and other villagers, Murahu Ram, Nirahu Ram, and several others, brandishing sticks, came to the door and beat up Hridai Nath, holding him at the door. The others fled. The complainant reported the incident, laid their mother on a cot, brought the captured thief, Hridai Nath and, with the help of Murahu Ram and Nirahu Ram and reached the police station.

On the basis of the complaint, a case was filed and an investigation began. During the investigation, the complainant took possession of the lamp and seven sticks and returned them to their owners. The delivery letters are Exhibits A-2 and A-3, respectively. The scooter on which the thieves Hridai Nath and Bhairav Pandey were going was seized, and a preliminary report was written as Exhibit A-4. The mother of the complainant died while being taken from the police station to the hospital due to shock at the time of the incident. After preparing the Panchayatnama of the dead body, the body was sent for postmortem. During investigation, without recording the statements of the witnesses, the Investigating Officer, Shri Ram Prasad Arya, inspected the spot and seized sand and plain soil from the spot and prepared the site plan, Exhibit A-13. After completing the investigation, the FIR against the accused under Section 460/34 IPC, Exhibit No. A-15, was transmitted to the court, on the basis of which the accused were produced before the Sessions Court for trial.

Investigation was entrusted to Sub-Inspector Ram Prasad Arya (P.W.-6). The I.O. reached the police station, took custody of the apprehended accused Hridai Nath Pandey, and subsequently visited the place of occurrence. He inspected the spot, prepared the site plan (Exhibit Ka-13), collected plain and blood-stained earth, and recovered the burnt wick/lantern and torches used for illumination at the time of incident.

The inquest (Exhibit Ka-5) on the dead body of Smt. Phoolmati Devi was conducted, and the body was sent for postmortem examination along with the requisite police papers (Exhibits Ka-9 to Ka-12).

After completion of the statutory investigation, a charge-sheet (Exhibit Ka-15) was submitted against all three accused under Section 460/34 IPC.

The case, being exclusively triable by the Court of Session, was committed to the Sessions Court, Varanasi, where charges under Section 460 read with Section 34 IPC were framed. The accused pleaded not guilty and claimed to be tried.

In support of its case, the prosecution examined as many as six witnesses, namely, Smt. Savitri Devi - Informant & Daughter of Deceased (PW-1), Murahu (PW-2), Nand Lal (PW-3), Dr. B. Das, Medical Officer (PW-4), Head Constable Ram Lakhan Yadav (PW-5) and S.I. Ram Prasad Arya, Investigating Officer (PW-6).

P.W.-1 informant, Smt. Savitri Devi, daughter of of the deceased has fully supported the prosecution case as set forth in the FIR. She deposed that during the intervening night of 22/23.08.1984, the accused scaled the roof/wall, unlatched the door, and entered the house of informant. In the light of lantern and torch, she identified Ghanshyam Pandey, Ashok Mishra, Hirdai Nath Pandey and Bhairav Pandit. She stated that the accused inflicted lathi blows upon the abdomen of her mother, Phoolmati Devi, which proved fatal and when she raised alarm, villagers arrived, and Hirdai Nath Pandey was caught while fleeing. She proved the written report (Ext.Ka-1) and identified the recovered torch (Material Ext.-1).

PW-1 Savitri Devi, in her examination, has stated that she is a resident of Village Mahua Kalan, Police Station Balwa, District Varanasi. On 22/23 August, 1984, after having dinner, she was sleeping with her friend Gangajali on a cot. Her mother, Phoolmati, was also sleeping on a cot nearby. The door of the house was closed from inside and a lantern was lit in the house as a routine everyday. There was sufficient light. She further deposed that at about 2:30 A.M., four thieves entered her house from the rooftop and got down at the place, where they were all sleeping. Upon hearing the whispering sound, the witness herself, her friend Gangajali and her mother Phoolmati have awakened. Outside the courtyard, in the light of the lantern, they saw that Ghanshyam Pandey, Ashok Mishra, Hiridai Nath and Bhairav Pandit were there. Out of these persons, accused Hiridai Nath and Ashok are present in the Court, who were identified by the witness. She knew Ghanshyam much prior to the incident. Out of these four persons, namely, Ghanshyam Pandey and Ashok Mishra belong to her village, whereas accused Hiridai Nath and Bhairav do not belong to her village. These two people belong to Chaubeypur, near Khanpur. They are the regular visitors to Ghanshyam Pandey and had also visited Ghanshyam Pandey two days earlier and were talking around, near her house everyday. For that reason, she herself, her friend Gangajali and her mother Phoolmati knew these people.

PW-1 has further deposed that, on seeing these people, they started making noise in the house. In the meantime, accused Bhairav Pandit inflicted knife injuries twice in the stomach of her mother, and she fell down on being injured. Thereafter, all four persons fled away by opening the door. While fleeing from the scene, Ashok fired from a country-made pistol (tamancha). Upon hearing the screams, the village people nearby, namely, Kalu, Bindra, Shyam Narayan, Nirahu, Shyam Dev, Sunnar, Munnar and Nand Lal etc., gathered with lathis and torches. They all witnessed all four persons fleeing away. These people tried to catch hold of the thieves and, while chasing them, Hiridai Nath was caught. Thereafter, he was beaten by the village people. The remaining three thieves fled away. She took her mother on a cot and then wrote down the report. The said report written by her, is part of the record and bears her signature, on which Exhibit Ka-1 was marked. By holding the report, herself, her injured mother and the thief who was caught there, proceeded towards the police station with the help of the village people, and the report was lodged at the police station. PW-1 also deposed that her mother was referred to the hospital, with the help of the police. Her mother was alive, when she reached the police station. While she, her mother, the police and the village people were proceeding towards the hospital, her mother succumbed to the injuries and died after traveling a short distance. PW-1 further deposed that presently, she is studying in Class-XI. She was studying in Class-VII at the time of the incident. She never lodged any report prior to Exhibit Ka-1. It is incorrect to say, that the report, Exhibit Ka-1, was not written by her. It is also incorrect to say, that the said report was written by her, on being dictated by the Head Constable. Today is the 30th date and the 30th date will begin from midnight. Gangajali used to sleep with her everyday, because she was studying with her. There are houses of Munawwar Sunar, Shyam Dhar and Jagan Nath. There are other houses besides these four houses, but she does not remember their names. On the day of the incident, PW-1 herself and Gangajali were sleeping on the same cot. The room, in which her mother was sleeping was separated by some space from the small cot. The door of her room opens into the veranda and there was thoroughfare from the door for going outside. Generally, they used to sleep at night, after closing the door. The fateful night was with light and shining. The sky was clear on the night of the incident. There were no clouds on the night of the incident. Her cot and her mother's cot were adjacent to each other. The door of the veranda opened towards the head side of the cot. The room in which, she was sleeping on the night of the incident, had no shutter on the door. Her house had five rooms fitted with complete doors.

PW-1, in her cross-examination, has deposed that all five doors of the house opened into the veranda, and only two doors had shutters. The remaining doors were without shutters. Some part of luggage was kept in the rooms, while the other rooms were having boxes etc. The rooms, in which there were no doors. They were open on the day of incident. The moment thieves entered her house, we have awaken there and then. The room, in which they were sleeping, there was no luggage. The lamp was being lit in our room. Whether there was some light due to the torch used by the thieves, cannot be ascertained and there was some light being spread from my lamp. The glass of the lamp was longer, and could be read in the light of the lamp. The lamp was not slowed down, while we were sleeping. We knew both Hiridai Nath Pandey and Bhairav, for about four or five months prior to the incident, as they used to visit the house of Ghanshyam Pandey. The house of Ghanshyam Pandey was about one hundred yards away from her house. PW-1 further deposed that she had never visited the house of Ghanshyam Pandey. She never visited the Brahmin settlement. She can not identify the houses located in the North, South, East, or West side of the house of Ghanshyam Pandey. She does not know, who resides, which side of that settlement. She used to watch Hirdai Nath Pandey and Bhairav, at the house of Ghanshyam Pandey, while they visited there normally, and that is why she knew them. They were the friends of Ghanshyam. She do not know their relationships. As and when these persons, used to move, they recalled the name of each other among them, that is why she knew their names also. Prior to the incident, these persons were seen with Ghanshyam Pandey 3 to 4 times. The way to market passes near the house of Gangajali, we saw these persons from her house, while roaming to and fro, we came to know their names. No one else, revealed their names directly. She did not know the names of fathers of Hiridai Nath and Bhairav, at the time of lodging the report. But, when Hiridai Nath was apprehended, he revealed the name of his father and that of Bhairav’s father. She lodged the report after the catch hold of Hiridai Nath. Accused Hiridai Nath was caught at about 9 to 10 paces towards the veranda of my house, leading from north to the west side. She had seen accused Hiridai Nath, when he was caught. When Hiridai Nath was caught by the village people, I saw him from outside the house.

PW-1 in examination-in-chief has deposed that, on the day of the incident, the thieves have not taken away any articles from her house. No lock of any of the boxes was broken. It is not the point, that the thieves have left any article on the way, while escaping on the way. On the day of the incident, her mother was wearing a worn fool (earring) of gold. She was wearing a chain around her neck. She was not wearing gold bangles in her hands, but was wearing a wristwatch. I do not remember the model of the watch. None of the articles was taken away by the thieves, those were worn by my mother. I have removed most of the articles from the body of my mother, except the watch and anklet (payal).

PW-1, in her examination-in-chief, has deposed that, the Investigating Officer inquired about the incident from her. The Sub-Inspector, who had questioned her about the incident, also came to her house. On his arrival at the house, she showed all the articles to Daroga Ji. The gold articles, which were removed from the body of her mother were not shown to Daroga Ji. Daroga Ji did not ask her, as to whether her mother was wearing any gold ornaments or not. Her mother was wearing an orange and white-coloured sari on the night of the incident and was wearing a half-sleeved blouse. The blouse was not covering the entire body, particularly the back, and was short by two, four or five inches from the body. The knife, which was used to assault her mother. By the blows caused by the knife, her mother's blouse and sari were full of blood. The Sub-Inspector, who inquired about the incident, at that time, she had taken her mother to the police station, and Hiridai Nath was beaten by the village people with lathis and dandas. No blood was seen on the face and head of accused Hiridai Nath, while looking from the door, and no such blood was found oozing out from the body of Hiridai Nath. The accused Ashok opened fire from a country-made pistol (tamancha), in her house. She had not seen the tamancha prior to this incident. She knows, that the sound of gunfire is similar to that of a tamancha. She knew about the sound of gunfire. There is a garden near her house. The sound was heard at that place, because people used to hunt birds with guns. Ashok fired three to four times from the tamancha. The shot was fired from outside, in the air. The barrel of the tamancha was towards the roof side, when it was fired. She could hear the sound of the firing by the tamancha. She did not see the tamancha being loaded or the firing thereafter. Ashok was three to four feet away from her. She does not know, whether there was any smoke after the firing made by the tamancha. No empty cartridge was found in her house, nor had she seen the same. She does not know whether any mark was made on the roof while firing the tamancha. She did not reveal to the Sub-Inspector whether the accused Ashok had opened fire leaving a mark on the roof or not, because Ashok was not caught on the night of the incident. Ashok did not fire, while fleeing away from the house. The accused Ashok had fired inside the house, while fleeing away. There is only one door in her house. While leaving through the door towards outside, accused Ashok did not open any fire. The village people, besides not surrounding the thieves, were leaving from the door. The village people arrived within one to two minutes of hearing the gunfire and screaming. The firing took place before the arrival of the village people. Bindra and Shyam Narayan are her uncles and they are residing in her village and not in a dera. It is incorrect to say conversely. The house of Kalu Ram is about eighty to eighty-five paces from her house towards the north-east. It is correct, that a road connects the village to Balwa. Before entering the village, another road connects towards Tanda with the present road. On the eastern side of the Tanda road is the house of Kalu. It is incorrect to say that, there are one or two houses near the house of Kalu; rather, there are ten to fifteen houses. Her house is situated about ten to fifteen paces from the house of Murahu on the north-west side, and the house of Nirahu is two to three houses further towards Murahu. The houses of Shyam Narayan and Bindra are old-phase houses ( khaprail). She was not asked about the location of the houses of Murahu and Nirahu, Bindra and Shyam Narayan.

The Sub-Inspector arrived only once at her house. They had left for their matrimonial house after the incident. To her knowledge, the Sub-Inspector did not ask any other person about the incident. One scooter was recovered by the village people and was found on the eastern side of her house. The correct place is not known to her. She could not remember the place where the scooter was recovered till date. The persons, who carried her mother were namely Kalu, Nirahu, Birahu and Bindra. Besides those persons, her friend Gangajali also accompanied her. Shyam Narayan, Pehlwan escorted Hiridai Nath, and some other persons also reached the police station. Her mother was taken on a cot by Kalu, Bindra, Nirahu and Birahu. She could not notice, while her mother was being carried on the cot, whether blood was dropping on the ground or not. The cot was woven with rope. Blood was not seen on the body of any person, who was carrying the cot. Her mother was conscious while being taken to the police station, but was not in a position to have much conversation. I do not remember, whether any paper was handed over to me by the police officials after the lodging of the FIR. When I was at the police station, one person, namely Nand Lal, who belongs to my village, brought the scooter, that was recovered from the village. I do not remember the colour of the scooter as on today. I have seen the said scooter in the village. The accused Hiridai Nath and Bhairo used to roam on the same scooter in my village. It happened four-five times, though I could not remember the colour of the scooter. I do not remember the mark of the scooter. I do not remember, whether my mother was questioned by any police official at the police station. It took about half an hour at the police station, and thereafter, we headed towards the hospital with a constable. I do not know the name of any Pandit in the village, but know Ghanshyam and Ashok of their locality. I know these persons for the reason, that I have seen them roaming towards the bazaar from the house of my friend. The house of my friend Gangajali is about ten to fifteen feet away from my house, and there are five to six houses in between the two houses. My mother was conscious, when she was taken to the hospital from the police station. My mother did not die at the police station, and she succumbed to the injuries on the way to the hospital. The fact, that my mother had died was known, when the people carrying her got tired and she was taken down to the ground. I do not remember that place exactly. Thereafter, we came back to the police station with the dead body of my mother and finally left for our home. At the time, when my mother was taken to the police station, accused Hiridai Nath Pandey was also taken to the police station. It is incorrect to say that accused Hiridai Nath was already at the police station prior to taking my mother to the police station. He was not locked in the lock-up. It is incorrect to say that, on the advice of Daroga ji, accused Hiridai Nath was nominated in the report. However, I had come to the police station with the written report. It is incorrect to say, that I could not witness the killers of my mother. It is incorrect to say, that the names of Ashok and Ghanshyam were nominated in the First Information Report and I acted on the advice of Daroga ji. However, I have seen the accused persons at my house in the night of the incident.

PW-2 Murahu, in his examination, has deposed, that he identified the accused in the light of the torch and caught accused Hirdai Nath with the help of the villagers. He also stated, that he knew all four accused prior to the incident. On the day of the incident, he went to sleep, but woke up at 2:30 in the night on hearing the noise of theft and reached the door of Savitri with a stick and a torch. At that time, Kalu, Bindra, Shyam Narayan, Nirahu, Shyamdev, Sunnar, Munnar, and Nand Lal also reached with torches lit. This witness saw the accused emerge from the door of Savitri under the torchlight, and Ashok Mishra fired a shot. With the help of others, the witness apprehended the accused, Hirdai Nath. Upon entering the house of the informant, the witness saw that, Phoolmati had been stabbed and was in a pool of blood. A search operation was made, but none of the accused persons was traced out. Instead, Hirdai Nath’s and Bhairo’s scooter was found on the side of the road, north of the village, on which they had been seen roaming around the village, two days prior to the incident. PW-2 further deposed that, with the help of the villagers, the mother of the informant (PW-1) was taken to the police station and, while being taken from the police station to the hospital, she succumbed to the injuries on the way.

PW-3 Nand Lal, in his examination, has deposed, that he knows the accused Ghanshyam, Ashok, Hirdai Nath, and Bhairo. Accused Ghanshyam and Ashok are natives of the same village, and accused Hirdai Nath and Bhairo used to visit the house of Ghanshyam. About two and a half years ago, he was sleeping at his doorstep, when he heard the noise and arrived at the door of Savitri with sticks. At that time, Sundar, Munnar, Kalu, Bindra, Shyam Narayan, and Nirahu also arrived with sticks. Using torches, the people saw the accused leaving Savitri's door. At that time, accused Ashok fired two or three shots with a country-made pistol. While fleeing, they surrounded and apprehended accused Hirdai Nath. While searching for the other thieves, they found a scooter parked on the north side of the road, which belonged to accused Hirdai Nath and Bhairo. He further deposed that, with the help of the other people of the village, along with Savitri Devi, he took accused Hirdai Nath, along with the recovered scooter, to the police station. Thereafter, the inquest proceedings started. The clerk did the paperwork of the scooter and put his signature on that register, Exhibit A-4. Phoolmati Devi died on the way, while being taken from the police station to the hospital. The Investigating Officer prepared the Panchayatnama (Exhibit Ka-5) and got it signed in the presence of witnesses. This witness put his signature on it.

PW-4 B. Das, who conducted the postmortem of the dead body of the deceased, has deposed that the postmortem examination of the dead body of the deceased, Phoolmati, was conducted on 24-8-1984 at 3:00 p.m. at the Shri Shiv Prasad Gupta Hospital in Varanasi. The Station House Officer, Babua, had sent the autopsy with a seal. It was brought by constables, namely Shri Vishamber Yadav and Shri Lallan Prasad, and the body was identified. The deceased was approximately 35 years old. At the time of the examination, she had died approximately one and a half days earlier. At the time of the examination, blisters had begun to form on the body of the deceased. PW-4, during the postmortem examination, has noted the following ante-mortem injuries:-

PW-5 Head Constable Ramakant Yadav, proved the registration of the Chik FIR (Ex. Ka-7) and the corresponding G.D. Entry No. 8 at 04:30 AM on 23.08.1984 (Ex. Ka-8).

PW- 6 S. I. Ramprasad Arya, Investigating Officer, proved the steps taken during the investigation: spot inspection, site plan (Ex. Ka-13), recovery of articles, preparation of inquest report (Ex. Ka-5), dispatch of the dead body for postmortem, arrest memos, and submission of the charge-sheet (Ex. Ka-15).

In their statements recorded under Section 313 Cr.P.C., the accused persons totally denied the prosecution allegations and pleaded innocence and false implication. Hirdai Nath Pandey stated that, he was fully innocent. He pleaded that his father, Ramnath, was involved in litigation and factional rivalry against one Rajnath and the local Gram Pradhan (Amarnath). He claimed, that he was falsely picked up from his house/market earlier in the evening by the police at the instance of his adversaries and was planted as an accused. Ashok Mishra and Ghanshyam Pandey similarly asserted that they were roped in falsely, due to village party-bandi and enmity with local influential persons.

During trial, the defence examined five witnesses to substantiate their plea of alibi, prior enmity, and false implication.

DW-1 Prabhunarayan Yadav deposed regarding land disputes and prior animosity between the families.

DW-2 Raj Narayan Singh and D.W.3 constable Sarju Ram deposed about the alleged arrest of Hirdai Nath from a different place, prior to the occurrence.

DW- 4 Paras Nath Pandey and DW-5 Kanhaiya Ram Yadav testified regarding ongoing civil/criminal disputes, cross-cases under Section 395/397 IPC from 1974 involving the parties, and proved defence documents (Exts. Ka-1 to Ka-9).

Learned counsel for the appellant submitted, that the witnesses shown in the case crime are planted witnesses, as neither PW1 nor PW2 and PW3 are eyewitnesses, but they have been planted to corroborate the incident and to support the case of the prosecution. He further submitted that the testimony of PW1, namely, Savitri, the daughter of the deceased, is not reliable, in as much as, at one point of time, she stated that the door of the house, where she was sleeping with her friend Gangajali was closed. On the other hand, she stated that, there was no shutter, it was an open door, and there are contradictions at large between the events and the statements recorded during the course of trial. He further submitted that another witness, namely, Gangajali, the friend of PW1, was not produced as an eyewitness during the course of trial. Had the said witness been produced during the course of trial, the truth would have prevailed, and being a non-partisan witness, she would have narrated the correct facts and the events as to the happening of the incident, and therefore, non-production of the said eyewitness weakened the story of the prosecution.

Learned counsel for the appellant further submitted that the false recovery of weapons, such as a knife and one country-made pistol ( tamancha), has been shown to have been effected, but the said recovery is false and fabricated. If the appellant-accused had any intention to kill the mother of PW1, in that event, they would have used the weapon, i.e., the tamancha, which they were carrying with them, and one gunshot would have been sufficient to kill the deceased. He further submitted that simply firing has been shown by accused, Ashok. If there was an intention to kill the deceased, another weapon, i.e., the tamancha, carried by another accused, Ashok, who allegedly opened fire in the air, would have been used to fire a gunshot towards the deceased, and there was no occasion to use the knife. Use of the knife time and again, as compared with the tamancha, is also doubtful, as the tamancha is a weapon, which is more convenient to murder any person than a knife.

Learned counsel for the appellant further submitted, that apart from the contradictions in the statement of PW1 herself, there are contradictions at large between the testimonies of PW1, PW2 and PW3, in as much as, the time of taking the deceased to the police station and hospital are different, and the time gaps shown in the sequence of events, i.e., the injuries caused by the assailants, then taking away the deceased to the police station and thereafter to the hospital, are not consistent. There are also variations regarding carrying the deceased to the police station, lodging of the FIR, then taking away the deceased to the hospital and thereafter, conducting the inquest report and finally the postmortem.

Learned counsel for the appellant submitted, that the nature of injury shown as per the statement of the doctor could not have been caused by the use of a knife, but by some other weapon. The doctor has further opined that the said injuries could also be caused by lathi blows, and therefore, some other weapon, such as lathis, had been used to assault the victim/deceased. Learned counsel for the appellant further submitted that the deceased died due to injuries caused by some other persons and not by the accused assailants. The appellant-accused has been falsely implicated because of old enmity between the parties. He further submitted that the investigation was not conducted in a fair and impartial manner, and the Investigating Officer merely collected evidence, which did not form part of the incident, but the same was stated to be part of the incident in order to prove the case of the prosecution. Learned counsel further submitted that all the witnesses such as Shyam Narayan, Shyam Dev and Munnar were not produced during the trial, which has weakened the case of the prosecution.

Learned A.G.A., in opposition to the argument raised, on behalf of the appellant has submitted that the prosecution case is fully established from the cogent, consistent and trustworthy testimony of PW-1 Savitri Devi, the daughter of the deceased and an eyewitness to the occurrence. Her presence at the place of occurrence is natural and undisputed, and she has categorically narrated the manner in which the accused persons entered the house during the night, assaulted her mother and thereafter fled from the place of occurrence. The identity of the accused persons was not based upon a fleeting or doubtful opportunity, as PW-1 had already seen accused Hridai Nath and Bhairo Pandit on several occasions prior to the incident and was acquainted with them. Her testimony is duly corroborated by PW-2 Murahu and PW-3 Nand Lal, who reached the spot immediately after hearing the alarm, saw the accused persons fleeing and participated in apprehending the appellant Hridai Nath. The police also seized the scooter used by the assailants, while planing to commit the crime.

Learned A.G.A. has further submitted that, the minor discrepancies and variations pointed out by learned counsel for the appellant regarding the exact sequence of events, the time taken in carrying the deceased to the police station and thereafter to the hospital, or the description of the doors and source of light, do not go to the root of the prosecution case. Such discrepancies are natural, when witnesses depose after a considerable lapse of time and are liable to occur in relation to peripheral details. The core of the prosecution version, namely, the presence of the accused persons in the house, assault upon the deceased, their subsequent escape and apprehension of Hridai Nath, remains consistent throughout the evidence. The testimony of a natural eyewitness cannot be discarded merely on account of minor inconsistencies, which do not affect the substratum of the prosecution case. Learned A.G.A. appearing on behalf of State has relied upon the following law, as settled by Hon’ble Supreme Court. In the case of Mustak vs. State of Gujarat, (2020) 7 SCC 237 the Hon’ble Supreme Court has held that “Minor discrepancies in evidence and inability to recall details of the description of houses, roads and streets after several years, do not vitiate the evidence of recovery itself.” In the case of Rakesh Vs. State of U.P., (2021) 7 SCC 188 The Hon’ble Supreme Court has held that “One is required to consider the entire evidence as a whole with the other evidence on record. Mere one sentence here or there and that too to the question asked by the defence in the cross-examination cannot be considered stand alone.” In the case of Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016 10 SCC 537 The Hon’ble Supreme Court has hald that “While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence......A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.” In the case of Dharnidhar Vs. State of U.P., (2010) (7) SCC 759, The Hon’ble Supreme Court has held that “Witnesses have been examined in the Court after a considerable lapse of time. It is neither unnatural nor unexpected that there could be some minor variations in the statements of the prosecution witnesses.” In the case of Sucha Singh Vs. State of Punjab, (2003) 7 SCC 643, The Hon’ble Supreme Court has held that ".......normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so......Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto."

Learned A.G.A. has also submitted that the medical evidence substantially corroborates the ocular account. PW-4, the doctor who conducted the postmortem examination, found ante-mortem injuries on the abdomen and other parts of the body of the deceased, together with rupture of internal abdominal organs and extensive internal haemorrhage. The cause of death was opined to be shock and internal haemorrhage resulting from severe blunt-force trauma to the abdomen. Thus, even if the precise description of the weapon used by the witnesses is not accepted in every detail, the medical evidence conclusively establishes that the deceased suffered fatal injuries during the occurrence. The variations in the recovery of the alleged weapon or any discrepancy concerning the same cannot demolish, an otherwise reliable ocular account.

Learned A.G.A. has further contended, that the plea of false implication on account of prior enmity does not create any reasonable doubt in favour of the appellant. The presence of the appellant at or near the place of occurrence, his apprehension while fleeing, the testimony of the prosecution witnesses and the prompt lodging of the FIR constitute a coherent chain of circumstances supporting the prosecution case. The non-examination of Gangajali, is not fatal, since the prosecution is not required to examine every person, who may have witnessed the occurrence, particularly when the evidence of the witnesses examined cogent , reliable and trustworthy.

Lastly, learned A.G.A. has submitted that the learned Trial Court, after considering the oral, medical and documentary evidence available on record and after affording full opportunity to the accused to establish their defence, has rightly recorded the finding of guilt under Section 460 read with Section 34 IPC. The appellant has failed to demonstrate any perversity, illegality or material contradiction of evidence in the impugned judgment warranting interference in appellate jurisdiction. The conviction is thus based upon legally admissible and sufficient evidence and does not suffer from any illegality, infirmity or perversity. So far as, the sentence is concerned, the learned Trial Court has already taken a lenient view by awarding five years’ rigorous imprisonment; therefore, neither the conviction nor the sentence calls for any interference and the appeal is liable to be dismissed.

Learned AGA has further submitted that the prosecution has proved its case beyond all reasonable doubts and the trial court after analytically appreciating the entire evidence and material on record, has rightly convicted the appellants and sentenced them, which order does not suffer from any illegality and there is no reason to reverse the finding of conviction recorded by the trial court and the impugned judgment and order of sentence is liable to be affirmed.

On the question of sentence, the learned Trial Court has already taken an exceptionally lenient approach by awarding a modest sentence of five years rigorous imprisonment, despite the heinous nature of the crime committed on an old lady. The sentence awarded by the trial court requires no interference whatsoever.

In view of the detailed discussion and findings recorded above, the Criminal Appeal is devoid of merit and is hereby dismissed.

The impugned judgment and order of conviction and sentence dated 17.01.1984 passed by the learned VIII Additional Sessions Judge, Varanasi in Sessions Trial No. 146 of 1986 (State vs. Hirdai Nath Pandey and others) is hereby confirmed.

Since non bailable warrant has been issued against surviving accused-appellant Hridai Nath Pandey by coordinate Bench of this Court, vide order dated 11.02.2026 for securing his presence before this Court on the next date fixed. The Chief Judicial Magistrate, Chhandauli was directed to get the NBW executed and submit report to this Court before the date fixed. At this stage, the accused shall comply the order himself.

If the appellant, Hridai Nath, is on bail, his bail bonds are cancelled and his sureties are discharged. The appellant shall be taken into custody forthwith to serve out the remaining period of his sentence.

Let a certified copy of this judgment along with the original Trial Court Record (LCR) be transmitted immediately to the learned Trial Court, Budaun for immediate compliance and necessary action.