# Amar Singh & Anr. (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 511
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Criminal Appeal No. 1752 of 2012
- **Bench:** Pritinker Diwaker, C.J. Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-anr-in-jail-v-state-of-u-p-50234
- **Pages:** 17

## Headnote

Sri
Amit
Sinha,
A.G.A.,
Ms.
Mayuri
Mehrotra, State Counsel, Sri Ram Nath, Sri
S.K. Tripathi

A. Criminal Law - Criminal Procedure
Code,1973 - Section 378 - Indian Penal
Code, 1860-Sections 302, 307, 394, 323Challenge to-Conviction-Variations found
in statements of eye-witnesses-FIR was
lodged
promptly-However,
witnesses
were examined after lapse of time but if
the
eye-witnesses
are
cogent
and
trustworthy and prevails over medical
evidence in all aspects where autopsy
report is found in conflict with that of
ocular evidence-Conviction and sentence
upheld.(Para 1 to 74)

B. So far as charge under Section 307 IPC
is concerned, the settled law is that it is
not necessary that injury, capable of
causing death, should have been inflicted.
What is material to attract the provisions
of Section 307 of IPC is the intention or
knowledge with which the all was done,
irrespective of its result. The intention and
knowledge are the matters of inference
from totality of circumstances and cannot
be measured merely from the results. In
fact the important thing to bear in mind
for
determining
the
question
as
to
whether the offence under Section 307
IPC is made out, is the intention and not
the injury, even if it may be simple or
minor. Question of intention to kill or
knowledge of death is always a question
of fact and not of law. the intention or
knowledge of the accused must be such as
is necessary to constitute murder. Section
307 IPC does not require that injury
should be on vital part of the body. Merely
causing hurt with intention or knowledge
of causing death is sufficient to attract
Section 307 IPC.(Para 71)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,996 of 55,994. This is a partial read: ask again with offset=39996 for what follows._

5 All. Amar Singh & Anr. Vs. State of U.P.
511
dismissed with above observations. The
judgment of conviction and sentence
passed by learned trial court is affirmed. As
the fact has already brought on record that
appellant has completed full sentence
awarded in impugned judgment, he need
not surrender to suffer the sentence
anymore.

27. Let a copy of this judgment along
with lower court record be sent to court
concerned for necessary information and
compliance.
----------
(2023) 5 ILRA 511
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1752 of 2012

Amar Singh & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Jitendra Kumar Mishra, Sri Anjani Kumar
Dubey, Sri S.S. Yadav, Sri Vijay Singh

Counsel for the Opposite Party:
Sri
Amit
Sinha,
A.G.A.,
Ms.
Mayuri
Mehrotra, State Counsel, Sri Ram Nath, Sri
S.K. Tripathi

A. Criminal Law - Criminal Procedure
Code,1973 - Section 378 - Indian Penal
Code, 1860-Sections 302, 307, 394, 323Challenge to-Conviction-Variations found
in statements of eye-witnesses-FIR was
lodged
promptly-However,
witnesses
were examined after lapse of time but if
the
eye-witnesses
are
cogent
and
trustworthy and prevails over medical
evidence in all aspects where autopsy
report is found in conflict with that of
ocular evidence-Conviction and sentence
upheld.(Para 1 to 74)

B. So far as charge under Section 307 IPC
is concerned, the settled law is that it is
not necessary that injury, capable of
causing death, should have been inflicted.
What is material to attract the provisions
of Section 307 of IPC is the intention or
knowledge with which the all was done,
irrespective of its result. The intention and
knowledge are the matters of inference
from totality of circumstances and cannot
be measured merely from the results. In
fact the important thing to bear in mind
for
determining
the
question
as
to
whether the offence under Section 307
IPC is made out, is the intention and not
the injury, even if it may be simple or
minor. Question of intention to kill or
knowledge of death is always a question
of fact and not of law. the intention or
knowledge of the accused must be such as
is necessary to constitute murder. Section
307 IPC does not require that injury
should be on vital part of the body. Merely
causing hurt with intention or knowledge
of causing death is sufficient to attract
Section 307 IPC.(Para 71)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Chacko Vs St. of Ker. (2004) 12 SCC 269

2. Raj Narain Singh Vs St. of U.P. (2010) AIR
SCW 521

3. Dharnidhar Vs St. of U.P. (2010) 6 SCJ 662

4. Ramesh Vs St. of U.P. (2009) 15 SCC 513

5. Ravi Kumar Vs St. of Punj. (2005) 9 SCC 315

6. Premsagar Manocha Vs St. (NCT Delhi)
(2016) 4 SCC 571

7. St. of A.P. Vs S. Rayappa & ors. (2006) 4 SCC 512

8. Bikau Pandey Vs St. of Bih. (2003) 12 SCC
616
512 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Anil Rai Vs St. of Bih. (2001) 7 SCC 318

10. Deepak Verma Vs St. of H.P. (2011) 10 SCC
129

11. Bhagwan Jagannath Markad Vs St. of
Mah.(2016) 10 SCC 537

12. Surinder Kumar Vs St. of Punj.(2020) 2 SCC
563

13. Ashok Kumar Chaudhary Vs St. of Bih.
(2008) 12 SCC 173

14. Mukesh v. St. (NCT of Delhi) (2017) 6 SCC 1

15. Maqsoodan Vs St. of U.P. (1983) 1 SCC 218

16. Sat Kumar Vs St. of Har. (1974) 3 SCC 643

17. C. Muniappan Vs St. of T.N. (2010) 6 SCJ
822

18. Hari Kishan & St. of Har. Vs Sukhbir Singh
(1988) AIR SC 2127

19. St. of M.P. Vs Harjeet Singh & anr. (2019)
AIR SC 1120

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

1. Present criminal appeal has been
preferred by appellants Amar Singh and
Panjabi against the judgement and order
dated 6.4.2012 passed by Additional
District & Sessions Judge, Court No.1,
Kannauj in Sessions Trial No.181 of 2011
(State vs. Amar Singh and another)
convicting the appellants for the offence
punishable under Sections 302, 394 and
307 IPC and sentencing them to undergo
rigorous life imprisonment and a fine of Rs.
10,000/-, ten years rigorous imprisonment
and a fine of Rs. 5,000/- and seven years
rigorous imprisonment and a fine of Rs.
4,000, respectively, with stipulation of
default clause. All the sentences were
directed to run concurrently.

2. Brief facts of the case, as culled out
from the record, are that informant Mijaji
Lal son of Ramadin Yadav, resident of
village Mansukhpurwa, Majra Bahosi,
Police
Station
Indergarh,
District
Farrukhabad gave a verbal information on
28.12.1989 at about 20.30 hours at Police
Station Indergarh that on 28.12.1989, his
brothers Mewa Lal and Prahlad and
nephew Veer Singh had gone to sow wheat
in barren land. Mewa Lal and Veer Singh
had returned to home, but Prahlad Singh
was digging and weeding grass with spade.
Amar Singh, resident of the same village,
had grudge for about 10-12 years because
of the said barren land. When Amar Singh
came to know that wheat has been sown in
the field, he armed with ''farsa', Panjabi
armed with ''sword', Chaubey armed with
Tawal and Nanhu with lathi reached at the
field at about 4.00 p.m. and started abusing
and beating Prahlad. On his shrieks, Pappi,
daughter of Mewaram, who was cutting
grass nearby, rushed to the house and
informed about the incident. Thereafter,
informant armed with licensee gun No.
55380 with belt and eight cartridges
alongwith his both sons, namely, Mahendra
and Surendra reached the spot. The accused
persons left Prahlad Singh and started beating
Mewa Lal, Veer Singh and Mahendra Singh
and caused injury to every one. Amar Singh
snatched the gun with belt and cartridges and
ran away towards Majhila. Incident was
witnessed by the informant, Pappi, Narendra,
Surendra and all other villagers. Condition of
Prahlad Singh, Mewalal and Veer Singh was
serious.

3. On the basis of the information
aforesaid, chik F.I.R. (Ext. Ka-1) was
registered at Police Station concerned on
28.12.1989 at 08.30 p.m. under Sections
307, 394 and 324 IPC. G.D. entry was also
made at the same time, which is Ext. Ka-6.
5 All. Amar Singh & Anr. Vs. State of U.P.
513

4. Investigation of the case proceeded.
Injured were sent for medical examination
and on the way, Prahlad Singh succumbed
to his injuries. The Investigating Officer
recorded the statement of witnesses. He
inspected the spot and prepared site plan
(Ext. ka-8). He also prepared the inquest
report (Ext. ka-3) of the deceased and
papers relating to post mortem. The
Investigating
Officer
also
took
the
specimen of plain and bloodstained soil
from the place of occurrence and prepared
the memo (Ext. ka-9).

5. Post mortem of the dead body of
the deceased was performed and autopsy
report (Ext. ka-2) was prepared by Dr. O.P.
Gangwar on 30.12.1989 at 1.10 p.m. On
examination of the dead body of the
deceased, following ante-mortem injuries
were found:

"(1) Lacerated wound 3.5 cm X 1
cm scalp deep left side head 11 cm above
left ear.

(2) Abraded contusion 10 cm X 4
cm over left side face involving middle of
nose underlying nasal bone and left maxilla
fractured.

(3) Lacerated wound 1.5 cm X .5
cm X muscle deep over left side upper lip.

(4) Incised wound 2 cm X .3 cm X
bone deep over angle of lower jaw on the
left side margin clear cut both angle of
sharp.

(5) Incised wound 4 cm X 1 cm X
bone deep left side chin , margin clear cut
both
angle
sharp
obliquely
placed
underlying bone cut fracture.

(6) Incised wound 9 cm X 2 cm X
muscle deep posterior lateral aspect Rt side
upper part neck margin clear cut, both
angle sharp.

(7) Incised wound 8 cm X 3 cm X
bone deep over front of Rt wrist region
margine clear cut, both angle sharp
underlying Bone cut.

(8) Incised wound 7 cm X 2 cm X
Bone deep dorsum of Rt hand involving
wrist margin clear cut both angle sharp,
underlying Bone cut.

(9) Incised wound 6 cm X 1.5 cm
X Bone outer side Rt knee margin clear cut,
both angle sharp underlying Bone cut
partially.

(10) Incised wound 2.5 cm X .5
cm X muscle deep back of left wrist, margin
clear cut, both angle sharp.

(11) Lacerated wound 14 X .5
cm X muscle deep outer side left
ankle."

6. In the opinion of the doctor, death
was caused due to shock and haemorrhage
as a result of ante mortem injuries.

7. Injured Veer Singh was medically
examined on 28.12.1989 at 10.30 p.m. and
during his examination, following injuries
were found :

"(1). A lacerated wound 2" x 1/2"
x 1 and 1⁄4 present on the right eye brow,
bleeding present.

(ii) Haematoma of R cheek & eye
lids present 4" x 4".

(iii) Haematoma with lacerated
wound of upper lip 1" x 1/2" X 1/2"
present.

(iv) A incised wound 4" x 1" x 1
and 1/2" present on the left lateral
malleolus, incising malleolus and adjoining
bones, bleeding present. "

8. In the opinion of the doctor, all the
injuries were fresh and simple except injury
no. (iv), which was grievous and caused by
sharp weapon, whereas others were caused
by some blunt weapon. Injury report (Ext.
ka-4) was prepared.
514 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Injured Mewalal was medically
examined on 28.12.1989 at 10.45 p.m. and
during his examination, following injuries
were found :

"(1). A lacerated wound 1/2" x
1/2" x 1/4" present on the left parietal
eminence of scalp.

(ii) A lacerated wound present on
the right cheek near right tragus 1/4" x 1⁄2"
x 1/4".

(iii) A lacerated wound 1" x 1/2"
x 1/4" present on the left eye brow.

(iv) Fracture of left maxilla
present haematoma of lids of left eye and
left cheek 4" x 4". "

10. In the opinion of the doctor, all
the injuries were fresh and simple except
injury no. (iv), which was grievous. Injury
report Ext. ka-5 was prepared.

11.

After
completing
the
investigation, charge-sheet (Ext. ka-10)
against the four accused persons was filed.
Concerned Magistrate took the cognizance.
The case being exclusively triable by the
Sessions Court, was committed to the Court
of sessions.

12. Accused persons appeared before
the trial court and charges under Sections
394, 307, 302, 324 and 325 of IPC were
framed against them. They denied the
charges and claimed trial.

13. Trial proceeded and during trial
accused Nanhu son of Amar Singh and
Arvind @ Chaubey were declared juvenile
in conflict with law and their cases were
separated and sent to Juvenile Justice
Board for trial

14. In order to bring home the charges
against the accused persons, prosecution
has examined seven witnesses, who are as
follows:

1
Mija Ji
PW-1 (informant /
eye witness)
2
Mewa Lal
PW-2 (injured /
eye witness)
3
Veer Singh
PW-3 (injured /
eye witness)
4
Dr.
O.P.
Gangwar
PW-4
(who
conducted
post
mortem
of
the
deceased)
5
Ishwar Dayal
PW-5 (witness of
inquest)
6
R.S.
Kamal
(pharmacist)
PW-6
(who
proved the injury
reports
of
the
injured)
7
S.I.
Munnu
Lal Katiyar
PW-7 (scribe of
the
F.I.R.
and
secondary witness
for I.O.)

15. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Chik F.I.R.
Ext. A-1
2
Post Mortem
Report
Ext. A-2
3
Inquest
report
Ext. A-3
4
Injury report
Ext. A-4
5
Injury report
Ext. A-5
6
Copy of G.D.
Entry
Ext. A-6
7
Tarmimi
G.D.
Ext. A-7
8
Site plan
Ext. A-8
9
Memo
of
plain
and
blood stained
soil
Ext. A-9
5 All. Amar Singh & Anr. Vs. State of U.P.
515
10
Charge sheet
Ext. A-10

16. After conclusion of evidence,
statements
of
accused
persons
were
recorded under Section 313 of Cr.P.C., in
which they pleaded their false implication
due to enmity and party-bandi.

17. PW-1, PW-2 and PW-3 are the
witnesses of fact.

18. P.W-1, namely, Mijaji Lal
(informant), in his oral testimony, has
supported the F.I.R. version. He has proved
his T.I. over chik F.I.R. (Ext. A-1). He has
explained the whole occurrence and the
role of all the accused persons in the
commission of crime in his testimony.

19. P.W.-2 Mewalal is the injured
witness. He has also corroborated the F.I.R.
version and supported the testimony of
PW-1.

20. PW-3 Veer Singh is also the
injured witness. He has also corroborated
the F.I.R. version and supported the
testimonies of PW-1 and PW-2.

21. PW-4, PW-6 and PW-7 are formal
witnesses.

22. PW-4 - Dr. O.P. Gangwar has
performed the autopsy of the deceased and
prepared the Autopsy Report (Ext. ka-2).

23. PW-5 - Ishwar Dayal is the
witness of inquest and has proved the
inquest report Ext. ka-3.

24. PW-6 - R.S. Kamal, Pharmacist at
Vinod Dixit Hospital, Kannauj has proved
the injury reports of injured Mewa Lal and
Veer Singh as (Ext. ka-4), (Ext. ka-5)
respectively and also the signature of Dr.
B.N. Agrawal, who examined the said
injured as secondary witness, as Dr. B.N.
Agrawal has expired .

25. PW-7 - S.I. Munnu Lal Katiyar,
who was posted as C. Mhr. at Police
Station Indergarh, in his deposition has
proved his signature over chik F.I.R. (Ext.
ka-1),
registration
G.D
(Ext.
ka-6),
(Amending) Termimi G.D. (Ext. ka-7) and
the proceeding of investigation, as Ganga
Ram, who was the Investigating Officer has
expired. As secondary witness for I.O. he
has proved site plan (Ext. ka-8), Memo
(Ext. ka-9) and charge sheet (Ext. ka-10).

26. On the basis of aforesaid oral and
documentary evidence, learned trial court
recorded the conviction of the appellants
and sentenced them, as mentioned hereinabove.

27. The impugned judgment and order
of the trial court has been assailed by the
learned counsel for the appellants on
various grounds.

28. Heard Shri Jitendra Kumar
Mishra, learned counsel for the appellants,
Shri Amit Sinha, learned AGA and Ms.
Mayuri Mehrotra, learned State Counsel for
the State and perused the entire record.

29. In a criminal trial, the prosecution
has a bounden duty to prove its case
beyond reasonable doubt on the basis of
cogent and reliable evidence and not on the
weaknesses
of
the
defence.
If
the
prosecution case rests upon eyewitness
account, the ocular evidence must be
reliable and free from all infirmities and the
eye witness must fall into the category of
''sterling witness' and if such ocular
evidence is also supported and corroborated
with
the
medical
evidence,
in
all
516 INDIAN LAW REPORTS ALLAHABAD SERIES
probabilities, the prosecution may succeed
in proving its case beyond reasonable
doubt.

30. Present is a case which rests upon
eyewitness account and two, out of the
three, witnesses of fact are injured
witnesses.

31. PW-2 Mewalal and PW-3 Veer
Singh are the injured witnesses and from
the perusal of their entire testimony, we
find that they have made almost similar
statements regarding the role of accused
persons in commission of the crime, place
of occurrence, weapons used in crime and
other relating factors. They have sustained
injuries in the said occurrence and on
account of being injured witnesses their
evidence
stand
on
a
different
and
distinguished footing and deserves to be
seen as a cogent and reliable piece of
evidence.

32. PW-2 and PW-3 both have clearly
stated that at the time of the incident when
after having informed by Km. Pappi
regarding the assault on Prahlad Singh by
four accused persons, they rushed to the
place of occurrence to save him. PW-2 has
made a specific statement supported by
PW-1 and PW-3 as well that when he
rushed to the field to save Prahlad Singh,
he also took his single barrel gun alongwith
eight cartridges, Veer Singh, Mahendra and
Surendra also accompanied him and this
statement is also corroborated by PW-3.

(i) PW-3, who is the son of the
deceased, has stated that when they reached
the site of occurrence, accused persons left
his father and caused injuries to him and
his uncle Mewalal (PW-2). He sustained
grievous injuries upon his eye, leg and face
and his uncle Mewalal, father Prahlad
Singh also sustained grievous injuries.

(ii) PW-1, PW-2 and PW-3 stated
in a single voice that accused Amar Singh
snatched the gun and belt of cartridges
from Mewalal and flew away. They have
also made identical statements on the point
that during the incident accused Amar
Singh caused injuries to the deceased and
injured persons by use of farsa, Panjabi by
sword, Chaubey by tawal and Nanhu by
lathi.

33. A primary objection has been
raised by the learned counsel for the
appellants in respect of non-production of
Km. Pappi as prosecution witness. It has
been argued that statement of deceased
Prahlad Singh, while he was alive, was not
recorded by the police under Section 161
CrPC, hence it was incumbent upon the
prosecution to produce Km. Pappi as
witness, who was the best person to tell as
to how occurrence started. This plea was
vehemently opposed by the learned State
counsel and the learned counsel for the
informant.

34. From the perusal of the record, we
find that in charge sheet (Ext. ka-10), name
of Km. Pappi has been shown as witness,
which reveals that her statement under
Section 161 CrPC was recorded by the
Investigating Officer. The question arises
as to whether non-production of Km.
Pappi, as witness, makes any adverse effect
upon the prosecution version and the
answer we find in negative. It is always the
prerogative of the prosecution to decide as
to how many and which of the witnesses
have to be examined by it before the Court.
The law, as provided under Section 134 of
the Evidence Act, is that "no particular
number of witnesses shall in any case be
required for the proof of any fact."
5 All. Amar Singh & Anr. Vs. State of U.P.
517

35. We rely upon Chacko vs. State of
Kerala, (2004) 12 SCC 269 wherein it has
been held that no particular number of
witnesses is required to establish the case.
Conviction can be based on the testimony
of a single witness, if he is wholly reliable.
Corroboration may be necessary when he is
only partially reliable. If the evidence is
unblemished and beyond all possible
criticism and the court is satisfied that the
witness was speaking the truth then on his
evidence
alone
conviction
can
be
maintained.

36. Reference can also be placed on
the Hon'ble Apex Court decision in Raj
Narain Singh Vs. State of U.P. 2010 AIR
SCW 521 wherein it has been held that it is
not necessary that all those persons, who
were present at spot, must be examined. It
is the quality of evidence, which is required
to be taken note of by Courts and not the
quantity.

37. We can very well remind here that
PW-1, PW-2 and PW-3 are the eye
witnesses. PW-1 in his deposition has
stated that Pappi has told that all the four
accused persons are bitterly assaulting
Prahlad Singh by farsa, taval, sword and lathi
and when he along with PW-2 and PW-3
reached the field, Prahlad Singh was lying
unconscious there in injured condition and at
the same time they caused injuries to
Mewalal and Veer Singh with the aforesaid
weapons and ran away. He has also stated
that all the three injured were taken to
hospital by the police. The police taking into
account the serious condition of the injured
persons immediately sent them for medical
treatment and Prahlad Singh died on the way.

38. PW-2 also corroborated this story
and stated that when they reached the place
of occurrence, he saw all the four persons
from a distance of 20-25 meters causing
injuries to Prahlad Singh and as soon as he
reached near the Nali, the accused persons
left Prahlad Singh and attacked over him
and his gun was also snatched. In the same
fashion, PW-3 also states that when they
reached the field, accused persons leaving
his father Prahlad Singh attacked over him
and his uncle Mewalal. He further states
that when he reached the field alongwith
Mewalal, all the accused persons were
assaulting Prahlad Singh and when the
accused persons made assault upon him
and Mewalal, Prahlad Singh was lying on
the ground. This witness also clarifies that
his statement given to the Investigating
Officer to the extent that when he reached
the spot, accused persons had already
caused injuries to his father Prahlad Singh,
was correct.

39. Learned counsel for the appellants
have
pointed
out
that
there
are
contradictions in the statements of the
aforesaid witnesses on the point that when
they reached the spot, any incident was
carrying on or not and their ocular version
at this juncture is highly doubtful.

40. The aforesaid plea draws our
attention to a glaring fact that the incident
in
the
present
matter
happened
on
28.12.1989 and the statement of PW-1 was
recorded in the year 2007, PW-2 in the year
2008 and PW-3 in the year 2011, hence, the
evidence of witnesses of fact has been
recorded after 18 - 22 years of the incident.
No normal man can be expected to have a
computerized and calculated memory of
any incident which occurred before him 15
or 20 years back. When the Court evaluates
the veracity of deposition of any witness of
fact, it should always take into account as
to after a gap of how much time the
evidence of such witness has been
518 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded. The human memory has its own
limitations and it is natural to be faded into
a gap of long span of time. It is not possible
for a normal person to describe in verbatim
and in the same fashion the whole incident,
which was witnessed by him before 15-20
years and what he had stated before the
Investigating Officer at that time. The
contradictions, if any, found in the
testimonies of PW-1, PW-2 and PW-3
should be considered with this prospect
also. The view of this Court finds support
from Dharnidhar vs. State of U.P., 2010
(6) SCJ 662 wherein it has been held that
when the witnesses are examined in the
Court after a considerable lapse of time, it
is neither unnatural nor unexpected that
there can be some minor variations in the
statements of the prosecution witnesses and
in fact, as held in Ramesh vs. State of
U.P.,
(2009)
15
SCC
513,
minor
contradictions in the testimonies of the
prosecution witness are bound to be there
and in fact they go to support the
truthfulness of the witnesses. We have
meticulously
scrutinized
the
entire
testimony of PW-1, PW-2 and PW-3 and
we find no material contradictions in their
depositions.

41. In this backdrop, we are of the
opinion that non-production of Km. Pappi,
as witness, was not fatal for the prosecution
and also that PW-1, PW-2 and PW-3 are
the reliable and trustworthy witnesses
having consistency in their statements and
as such they fall into the category of
''sterling witnesses'.

42. We consider it apposite to
examine the prosecution witnesses from the
angle of medical evidence also. The
statement of PW-4, who performed the
autopsy of the deceased, reveals that as
many as 11 injuries were found on the body
of the deceased, which were in the form of
lacerated wounds, abrasion, and incised
wounds inflicted upon various parts of the
body, such as skull, face, neck, hand, etc..
The autopsy report shows that cause of
death was shock and haemorrhage as a
result of ante mortem injuries. PW-4 has
opined that death of the deceased might be
caused by injuries inflicted by the sharp
weapon on 28.12.1989 at about 4.00 p.m..
The witnesses of fact clearly state that
farsa, sword, taval and lathi were the
weapons used in the occurrence. No doubt
they stated about the use of some blunt
objects also in the commission of crime.
Nature of injury nos. 1,2,3,4 and 11 shows
that these injuries might be inflicted by use
of hard and blunt object. We find that
overall, there is no major contradiction
between the ocular and medical evidence. It
has been pointed out by the learned counsel
for the appellants that PW-4, the doctor, in
his deposition has opined that death of
the deceased might have been caused by
injuries inflicted by use of sharp edged
weapons but if the argument is even
taken to be correct, we find that the
medical evidence nowhere rules out the
use of hard and blunt object to inflict
injuries to the deceased. Hence, there is
no material contradiction between ocular
and medical evidence and even if it is
pointed out, in a catena of decisions it has
been held that if the ocular evidence is
found trustworthy and credible, the
medical
evidence
based
on
the
probabilities only cannot prevail over the
ocular evidence.

43. In Ravi Kumar vs. State of
Punjab, (2005) 9 SCC 315, it has been
held that when ocular evidence is cogent
and reliable, medical evidence to the
contrary cannot corrode the evidentiary
value of the former.
5 All. Amar Singh & Anr. Vs. State of U.P.
519

44.

Likewise,
in
Premsagar
Manocha vs. State (NCT Delhi), (2016) 4
SCC 571, it was held that being based on
his knowledge, expert opinion may be
subject to change on coming across any
authentic material subsequently. Opinion of
expert witness is different from testimony
of witness of fact. Duty of expert is to
render his opinion along with reason and
relevant material. It would then be for the
Court to see correctness of opinion and
reach its conclusion accordingly.

45. In the light of the aforesaid
established legal position, we conclude that
the evidence of PW-1, PW-2 and PW-3, as
eyewitnesses of the occurrence, is cogent
and trustworthy and prevails over the
medical evidence in all aspects wherever
the autopsy report is found in conflict with
that of the ocular evidence.

46. From a perusal of the record, it
reveals that Dr. B.N. Agrawal, who
medically examined both the injured
persons Veer Singh and Mewalal, had
expired in a road accident and PW-6 in the
form of secondary evidence deposes for
him and proves the injury reports of injured
Veer Singh and Mewalal as Ext. ka-4 and
Ext. ka-5 respectively, on the basis of
original medico legal register. He states
that
both
the
injured
persons
were
examined on 28.12.1989 by Dr. B.N.
Agrawal at 10.30 p.m. and 10.45 p.m.,
respectively. Perusal of the injury report
(Ext. ka-4) of injured Veer Singh clearly
indicates that he has sustained a lacerated
wound present on the right eye brow,
incised wound present on the left lateral
malleolus incising malleolus and adjoining
bones and haematoma of right chest and
eye side and on lacerated wound of upper
lip. Injury no. (iv) incised wound was
found grievous caused by sharp weapon
and x-ray was advised, whereas other
injuries were caused by some other blunt
object. In the same manner, (Ext. ka-5),
injury report of injured Mewalal clearly
indicates that he has sustained lacerated
wounds present on the left parietal
eminence of scalp, present on the right
cheek near right tragus, present on the left
eye brow and fracture of left maxilla. All
the injuries were found simple. Injury no.
(iv) was grievous, x-ray was advised.
Nature of injuries caused to both the
injured persons are indicative of fact that
all the injuries were caused by PW-2 and
PW-3. It is true that there is no x-ray report
or supplementary report on record but the
medical reports of both injured persons,
which are on record, have been proved by
secondary evidence of PW-6, which was
admissible in law as the original doctor
expired before recording evidence in the
Court. In that fashion, testimonies of PW-1,
PW-2 and PW-3 prove the prosecution case
and gets full corroboration from the
medical evidence in material aspects.

47. It is pointed out by the learned
counsel for the appellants that all the fact
witnesses rendered by the prosecution are
the witnesses related to the deceased and as
such they are interested witness as well and
in the same manner it has also been
submitted that the prosecution witnesses
and the informant had strong motive to
implicate the appellants in a false case. It is
further
pointed
out
that
since
the
occurrence happened in day light at a
public place, in all probabilities persons
from public must have been present at the
time of incident, but independent witnesses
were concealed by the prosecution in this
case and were not examined. Learned
AGA, per contra, vehemently opposing the
aforesaid contention, has argued that
relationship is not a factor to discard the
520 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of any witness of fact, if the
same inspires confidence of the Court. It
has been further argued that since it is a
case of ocular evidence, motive has no
significance in this matter.

48. While dealing with the aforesaid
issue, this fact cannot be lost sight that in
the present matter out of the three witnesses
of fact, PW-2 Mewalal and PW-3 Veer
Singh are the injured witnesses. It will be
pertinent to mention here that witness of
fact if himself sustains injuries in the same
incident and deposes accordingly before the
Court, his evidence stands on a different
footing and the credibility of his evidence
cannot be doubted only because he is
related to the deceased and as such is an
interested witness.

49. It is true that in the F.I.R. itself, it
has been mentioned that many villagers had
seen the occurrence apart from the
witnesses of fact, who have been examined
before the Court. PW-2 the injured states
that on their shrieks, Mija Ji, Bharat and
several persons of the village reached the
spot. PW-1 also states that many village
persons came to the spot at the time of
occurrence and similar statement is found
in the testimony of PW-3 also. We have
also sifted the charge sheet (Ext. ka-10)
submitted
in
this
matter
by
the
Investigating Officer and from a perusal
of the same it is apparent that Km. Pappi,
Mahendra Singh and Surendra Singh are
also named as eye witnesses of the case.
The point to be dealt with is whether the
prosecution case is adversely affected if
the witnesses of fact named in the charge
sheet, who are said to be independent
witnesses, are not adduced before the
Court and at the same place it is also to
be examined whether witnesses of fact,
who are said to be related / interested
witnesses, are credible and reliable
witnesses or not.

50. The testimonies of PW-1, PW-2
and
PW-3
have
been
scrutinized
meticulously by the learned trial court
and also examined by us and we have no
hesitation to hold that after a careful
scrutiny
the
evidence
of
aforesaid
witnesses has been found credible and
reliable. In view of that, in our considered
view, the prosecution was not required to
adduce any other witness just to show
that it was going to prove its case by
some independent witness also.

51. There is another practical aspect
of the matter, which cannot be ignored by
any Court of law that independent
persons of public often avoid to stand as
witness for prosecution in any criminal
trial for so many reasons. In State of
Andhra Pradesh vs. S. Rayappa and
others, (2006) 4 SCC 512, the Hon'ble
Supreme Court examined several aspects
of a criminal trial and this aspect was also
taken into account as to why independent
witnesses ignore to depose in favour of
the
prosecution
and
in
what
circumstances the probability of false
implication may be ruled out. It was also
clarified as to why the prosecution in so
many cases is bound to rely upon the
witnesses, who happen to be the relative
to the deceased (victim). It was held in
paras 6 and 7 as under :

"6.......By now it is a wellestablished principle of law that testimony
of a witness otherwise inspiring confidence
cannot be discarded on the ground that he
being a relation of the deceased is an
interested witness. A close relative who is a
very natural witness cannot be termed as
an interested witness. The term interested
5 All. Amar Singh & Anr. Vs. State of U.P.
521
postulates that the person concerned must
have some direct interest in seeing the
accused person being convicted somehow
or the other either because of animosity or
some other reasons.

7. On the contrary it has now
almost become a fashion that the public is
reluctant to appear and depose before the
court especially in criminal case because of
varied reasons. Criminal cases are kept
dragging for years to come and the
witnesses are harassed a lot. They are
being threatened, intimidated and at the top
of all they are subjected to lengthy crossexamination. In such a situation, the only
natural witness available to the prosecution
would be the relative witness. The relative
witness is not necessarily an interested
witness. On the other hand, being a close
relation to the deceased they will try to
prosecute the real culprit by stating the
truth. There is no reason as to why a close
relative will implicate and depose falsely
against somebody and screen the real
culprit to escape unpunished. The only
requirement is that the testimony of the
relative witnesses should be examined
cautiously. The High Court has brushed
aside the testimony of PW 1 and PW 2 on
the sole ground that they are interested
witnesses being relatives of the deceased."

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

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

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

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

55. However, in the present case a
specific cause of animosity has been
assigned between the parties and that was
in respect of some barren field and this fact
of animosity finds place in the testimony of
witnesses
of
fact.
PW-1,
in
his
examination-in-chief,
states
that
the
informant side and the accused persons
were having animosity on account of the
barren field. Further, he has been crossexamined in respect of some will and he
has denied that his Dau Kamta Prasad has
executed any will in favour of Lilawati,
who was the sister of his uncle Bhaiyalal.
He has further denied that the land of
Lilawati was ploughed by deceased Prahlad
and Mewalal till the present occurrence
happened and due to that reason Lilawati
and her family members had some enmity
with deceased - Prahlad and injuredMewalal. He has further admitted that
Amar Singh, the accused in this case, and
other person Panjabi were prosecuted in the
case of murder of his uncle Brijwasi and
Pyare Lal wherein they were acquitted. He
has further admitted that the accused
persons belong to his own family and also
states that the accused persons had no
522 INDIAN LAW REPORTS ALLAHABAD SERIES
enmity with deceased Prahlad and other
injured persons prior to this occurrence.
PW-2 has also been cross-examined on the
aforesaid points. PW-3 also states that no
litigation in connection with any land or
property took place between him and his
father and accused Amar Singh.

56. Learned counsel for the appellants
has made an attempt to show from the
aforesaid statements of PW-1, PW-2 and
PW-3 that they are trying to conceal the
actual facts relating to the murder of the
deceased and in fact the appellants were not
the actual assailants, who have committed
the crime. In our opinion, in view of the
credible ocular version rendered by PW-1,
PW-2 and PW-3, no other person comes
into light as an assailant except the present
appellants
who
have
committed
the
offence. Further more, it has been clarified
above that in a case based on eye witness
account the question of motive loses its
significance.

57. The trial court has meticulously
scrutinized the evidence of fact adduced by
the prosecution and from a careful scrutiny
of the same, we also find that there are no
material contradictions in the testimonies of
witnesses of fact. Albeit, some minor
discrepancies have rightly been pointed out
by the appellants in the deposition of PW1, PW-2 and PW-3, but they do not go to
the root of the prosecution case and never
affects the prosecution case adversely. In
view of the legal position, as enumerated
earlier, the prosecution was not obliged to
examine the independent witnesses of fact
whose names have been mentioned in the
charge sheet (Ext. ka-10). Section 134 of
the Evidence Act is explicit on this issue
which, as mentioned above, provides that
no particular number of witnesses shall, in
any case, be required for the proof of any
fact. In Chacko case (supra), the Hon'ble
Apex Court has held that Section 134 of the
Evidence Act clearly states that no
particular number of witnesses is required
to establish the case. Conviction can be
based on the testimony of a single witness,
if he is wholly reliable. Corroboration may
be necessary when he is only partially
reliable. If the evidence is unblemished and
beyond all possible criticism and the court
is satisfied that the witness was speaking
the truth, then on his evidence alone
conviction can be maintained.

58. This fact is also not doubted by
either of the parties that eye witnesses of
the case were known to the appellants.
Hence, we find that there was no need of
identification of the appellants and the trial
court, while appreciating the various
aspects of the case, has correctly found that
it is not a case of false implication due to
old enmity between the parties, rather it is
well proved from the evidence on record
that due to enmity, the present crime has
been committed by the accused persons /
appellants and the factor of enmity goes
against the appellants and in the same manner
the issue of witnesses of fact being related to
the deceased also does not go in favour of the
appellants.

59. Reliance has been placed upon
Bhagwan Jagannath Markad Vs. State of
Maharastra, (2016) 10 SCC 537 wherein it
has been has held that the testimony of a
witness in a criminal trial cannot be discarded
merely because the witness is a relative or
family member of the victim of the offence.
In such a case, Court has to adopt a careful
approach in analyzing the evidence of such
witness and if the testimony of the related
witness is otherwise found credible, accused
can be convicted on the basis of the
testimony of such related witness.
5 All. Amar Singh & Anr. Vs. State of U.P.
523

60. Emphasis has been laid down on
Surinder Kumar Vs. State of Punjab
(2020) 2 SCC 563 by the learned A.G.A.,
wherein it has been reiterated that merely
because prosecution did not examine any
independent witness, would not necessarily
lead to conclusion that accused was falsely
implicated.

61. In Ashok Kumar Chaudhary v.
State of Bihar, (2008) 12 SCC 173, it was
held that if the testimony of an eye witness
is otherwise found trustworthy and reliable,
the same cannot be disbelieved and rejected
merely
because
certain
insignificant,
normal or natural contradictions have
appeared into his testimony. If the
inconsistencies,
contradictions,
exaggerations,
embellishments
and
discrepancies in the testimony are only
normal and not material in nature, then the
testimony of an eye witness has to be
accepted and acted upon. Distinctions
between normal discrepancies and material
discrepancies
are
that
while
normal
discrepancies do not corrode the credibility
of a party's case, material discrepancies do
so.

62. Further, it was held in Mukesh v.
State (NCT of Delhi), (2017) 6 SCC 1 that
non-examination of material witness is not
a mathematical formula for discarding the
weight of the testimony available on
record howsoever natural, trustworthy and
convincing it may be.