# Attar Singh & Ors v. State of U.P

- **Citation:** (2025) 5 ILRA 841
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-16
- **Case number:** Criminal Appeal No. 1846 of 1983
- **Bench:** Vivek Kumar Birla, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/attar-singh-ors-v-state-of-u-p-53456
- **Pages:** 24

## Headnote

Occular evidence-Motive takes backstage in a
case of direct ocular evidence -in the present
case there are three injured witnesses whose
presence on the spot is natural being family
members.
Appeal dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,881 of 78,251. This is a partial read: ask again with offset=39881 for what follows._

5 All. Attar Singh & Ors. Vs. State of U.P.
841
accused appellant as on date, the
efflux of time since the date of occurrence,
we are of the view that while maintaining
the conviction of the accused appellant the
sentence imposed is modified to the period
already undergone.

15. Accordingly, the appeal is
allowed in part. The accused appellant is
availing the benefit of bail by furnishing
adequate sureties and bonds, the same
stands discharged.

16. Lower Court record along with
a copy of this judgement be sent back
immediately to District Court concerned for
compliance and further necessary action.
----------
(2025) 5 ILRA 841
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 1846 of 1983

Attar Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.N. Mishra, Sri A.N. Mulla, Sri R.R.
Singh, Sri Aditya Prakash, Sri Saurabh
Chaturvedi, Sri V.S. Choudhary, Sri I.K.
Chaturvedi (Sr. Adv.)

Counsel for the Opposite Party:
D.G.A., Sri Satish Kumar Tyagi

Occular evidence-Motive takes backstage in a
case of direct ocular evidence -in the present
case there are three injured witnesses whose
presence on the spot is natural being family
members.
Appeal dismissed. (E-9)

List of Cases cited:

1. Upendra Pradhan Vs St. of Orissa, 2015 (11)
SCC 124

2. Balaka Singh & ors.Vs St. of Pun., AIR 1975
SC 1962

3. Darshan Singh Vs St. of Pun., 2010 (2) SCC
333

4. Krishna Mochi & ors.Vs St. of Bihar, (2002) 6
SCC 81

5. Masalti Vs St. of U.P., AIR 1965 SC 202

6. Darya Singh Vs St. of Pun., AIR 1965 SC 328

7. Appabhai & anr. Vs St. of Guj., AIR 1988 SC
696,

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

9. Satbir Singh & ors.Vs St. of U.P., (2009) 13
SCC 790

10. Jayabalan Vs U.T. of Pondicherry, 2010 (68)
ACC 308 (SC)

11. Dharnidhar Vs St. of U.P., (2010) 7 SCC 759

12. Baban Shankar Daphal & ors.Vs The St. of
Mah., 2025 SCC Online SC 137

13. Shahaja @ Shahajan Ismail Mohd. Vs St. of
Mah., (2023) 12 SCC 558

14. Pahalwan Singh & ors.Vs St. of U.P., 2020
(6) ALJ 166

15. Kaptan Singh Vs St. of UP, 2020 (1) ADJ 106
(DB)

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Shri I.K. Chaturvedi, learned
Senior Counsel assisted by Shri Aditya
Prakash
alongwith
Shri
Saurabh
842 INDIAN LAW REPORTS ALLAHABAD SERIES
Chaturvedi,
learned
counsel
for
the
surviving appellants, Shri Satish Kumar
Tyagi, learned counsel for the informant,
Shri O.P. Dwivedi, learned AGA-I for the
State of U.P. and perused the record.

2. Present Criminal Appeal has
been filed against the judgment and order
dated 02.08.1983, passed by Ist. Additional
Sessions Judge, Ghaziabad in S.T. No. 73
of 1982 (State Vs. Attar Singh and Others)
convicting and sentencing appellant Boondi
and Khajan Singh to 18 months R.I. under
section 148 of I.P.C. and sentencing the
remaining appellant namely; Attar Singh,
Bani Singh, Om Prakash, Nathu Singh son
of Afimi, Harphool, Tej Ram, Tota Ram
Chhattar, Buddha, Omi, Nathu son of
Khacheru, Sarni, to one years R.I. under
section 147 of Indian Penal Code and
further sentencing all the appellants to life
imprisonment under section 302 I.P.C. read
with section 149 I.P.C. further sentencing
all the appellants to undergo 5 years R.I. on
each count under section 307 I.P.C. read
with section 149 I.P.C. and further
sentencing all the appellants to 6 month
R.I. under section 323 I.P.C. read with
section 149 I.P.C. The sentences on all the
counts shall run concurrently.

3. Vide order dated 20.04.2012 the
appeal stood abated in respect of appellant
no.10-Boondi son of Harpal Singh and
Appellant no.11-Harphool son of Chhajju;
vide order dated 21.08.2017 the appeal
stood abated in respect of appellant no.1Attar Singh son of Johri Singh, appellant
no.5-Nathu son of Khacheru, appellant
no.6-Buddha son of Murari; vide order
dated 09.09.2021 the appeal stood abated in
respect of appellant no.4-Nathu son of
Afimi, appellant no.8-Omi son of Sukhan,
appellant no.14-Khazan son of Chhaju
Singh; and vide order dated 03.04.2025 the
appeal stood abated in respect of appellant
no.12-Tej Ram son Phartey. Now the
appeal is surviving only in respect of
appellant no.2- Bani Singh son of Johari
Singh, appellant no.3-Om Prakash son of
Johari Singh, appellant no.7-Chittar son of
Murari,
appellant
no.9-Serni
son
of
Manglu, appellant no.13-Tota Ram son of
Pratap Singh.

4. The prosecution story in brief is
that accused Harphool and Nathu happened
to be relatives of the first informant
Brahmjeet. They had some dispute with
Fagna, father of the first informant, for
passage (Rasta) on account of which
relations between them were strained. On
28.10.1981
at
8.00
PM
informant-
Brahmjeet, and his father Fagna and
witnesses Ram Singh, son of Sukkhan,
Chaman Lal, Dal Chand, sons of Hari
Singh
were
sitting
at
the
platform
(Chabutara) of Fagna. When they were
talking about the distribution potato, Atar
Singh, Bani Singh, Om Prakash, Jai Singh,
Nathu son of Afimi, Harphool, Tej Ram,
Tota, Phool Singh, Boondi, Chhattar,
Budha, Omi, Nathu son of Khacheru, Sarni,
Khajan, Dharampal and Johari armed with
lathis and ballam reached there and
exhorted that they would see who stop
them from passing through the passage and
began to assault them with lathis and
ballam. The father of the complainant-
Fagna also wielded lathi in his self-defence
whereupon the miscreants named above,
surrounded Fagna and assaulted him with
lathis and ballam. They dragged him to the
Gher of accused Nathu S/o Afimi and after
beating Fagna they killed and threw him in
the house of Nathu S/o Khacheru. It was
alleged in the FIR that the miscreants were
breaking the house of Nathu by 'Koomal'
or 'Nakkab' or 'Saindh'. This report was
lodged by Brahmjeet at police station on
5 All. Attar Singh & Ors. Vs. State of U.P.
843
29.10.1981 at 2.45 AM. On the basis of the
said report Crime No. 756 A under
Sections 147, 149, 302/149 IPC was
registered and thereafter investigation was
started by the Investigating Officer and
after concluding the same a charge-sheet
was submitted against the accused persons.
The accused pleaded not guilty to the
charge they claimed to have been falsely
implicated due to enmity.

5. The prosecution has examined as
many as 7 witnesses, namely, P.W.1-Dr.
V.P. Agarwal, Medical Officer, who had
examined the injured from the side of the
prosecution,
P.W.2-
Brahmjeet,
first
informant as well as victim of the crime.
P.W.3- Dal Chand and P.W.4- Ram Singh
are the eye witnesses as well as the victim
of the crime, P.W.5- Dr. L.M. Pareekh,
P.W.6-
S.I.
Daya
Ram
Sharma,
Investigating
Officer,
P.W.7-Head
Constable Anokhey Lal who is the scribe of
the first information report.

6.
The
prosecution
has
also
submitted documentary evidence, which
were marked as Exhibit Ka-1-Injury Report
of Ram Singh, Exhibit Ka-2-Injury Report
of Dal Chand, Exhibit Ka-3-Injury Report
of Brahmjeet, Exhibit Ka-4-Injury Report
of Chamanlal, Exhibit Ka-5-FIR, Exhibit
Ka-6-Post Mortem Report, Exhibit Ka-7Panchayatnama, Exhibit Ka-10-Site Plan
with Index, Exhibit Ka-11-Recovery Memo
of Bloodstained Bhusa, earth, Exhibit Ka12-Recovery memo of bloodstained and
plain earth, Exhibit Ka-13, Chargesheet
Mool.

7. Shri I.K. Chaturvedi, learned
Senior Counsel for the 5 surviving
appellants, at the very outset, submits that
the case was argued at full length before
the Co-ordinate Bench of this Court of
which one of us (Ms. Nand Prabha Shukla,
J.) was a member. By drawing attention to
orders dated 19.07.2023 and 20.07.2023
learned Senior Counsel submits that his full
length argument has already been noted by
this Court and he reiterates and reaffirms
the same. Paragraph No.3 of the order
dated 19.07.2023, and paragraph 2 of the
order dated 20.07.2023 are quoted as
under:-

 Paragraph No.3 of the order
dated 19.07.2023

 "3. Sri I.K.Chaturvedi, learned
Senior Advocate, submits as under :

 (i) That in the house of the
appellant - Nathu, Nakab was being made
by the deceased Fagna for theft and as
such action was taken by the accuseds -
Nathu and others which resulted in the
death of Fagna on 29.10.1981 at about 8
P.M. The accused - appellant immediately
lodged
a
First
Information
Report
No.756/1981 which was registered at about
2 A.M. under Sections 457, 511 IPC, PS.
Hapur, Sub-District - Hapur, District
Ghaziabad.
The
Investigating
Officer
proceeded on the spot after getting First
Information Report. Subsequently, from the
side of the deceased, a cross First
Information Report No.756-A/1981, under
Sections 147, 148, 149, 302 I.P.C. was
lodged by Brahamjeet at the same police
station, Sub-District Hapur, District -
Ghaziabad. Based on this cross First
Information Report, the appellants herein
were prosecuted. Out of 18 accuseds, four
accused, namely, Jai Singh, Phool Singh,
Dharampal and Jauhari were acquitted by
the trial court but on the same set of facts
and
evidences
and
charges,
equally
situated persons i.e. the present appellants
14 in number were convicted by the trial
844 INDIAN LAW REPORTS ALLAHABAD SERIES
court in S.T. No.73 of 1982 (State Vs. Atar
Singh and others) by judgment and order
dated 02.08.1983, passed by the First
Additional Session Judge, Ghaziabad. Out
of 14 convicted accused - appellants, 8
have died as has been noted in the order
dated 12.07.2023 and appeal qua those
accused - appellants has been abated. Now,
this appeal survives only in respect of 6
surviving accused - appellants, namely, the
accused - appellants no.2 - Bani Singh,
accused appellants no.3 - Om Prakash,
accused appellant no.7 - Chhittar, accused
appellant no.9 Serni, accused appellant
no.12 Tej Ram and accused-appellant
no.13 Tota Ram. All these appellants have
been convicted for the alleged murder of
"Fagna" who is the accused in the first
FIR
No.756
of
1981.
The
accused
appellants of the present appeal have been
convicted by judgment and order passed by
the Session Court in the aforesaid Session
Trial arising out of cross case i.e. Case
Crime No.756-A/1981. Since the accused in
the first FIR no.756/1981 was only Fagna
who died, therefore, the FIR was closed as
the accused was dead.

 (ii) After the aforesaid Fagna
died, the persons of the side of the Fagna
attacked in revenge in which four
persons, namely, Ram Singh, Dal Singh,
Bhramjeet (informant) and Chhaman Lal
were injured and from the accused side
Khazan Singh, Atar Singh, Jauhari and
Jai Singh were injured. At this point of
time, Bhramjeet (informant) lodged the
cross
First
Information
Report
No.756/1981 at about 02.45 AM on the
same day and in trial the appellants
herein have been convicted. Out of four
accused, injured accused Jauhari and the
injured accused Jai Singh were acquitted
by the trial court.

 (iii)
Pursuant
to
FIR
No.756/1981 the I.O. proceeded and
recovered on 29.10.1981 the dead body of
Fagna from the back side of house of Nathu
near Nakab which fact is evident from the
recovery memo appearing at page 3 of the
paper book and inquest report appearing at
page 28 of the paper book.

 (iv) He also recovered certain
utensils near Nakab and also found that
Nakab was made in the house from the side
of the agricultural land. Pursuant to the
cross First Information Report No.756-A,
he took samples of blood found on the earth
from the place of incidence Chabutara of
the house of the deceased Fagna. He
submits that the Chabutara of the house of
Fagna is the place of subsequent incidence,
in respect of which the cross First
Information Report No. 756-A was lodged
by Bhramjeet (informant). In support of his
submissions he drew attention to the First
Information Report and recovery memos
etc. appearing at pages 2 to 5 of the paper
book. The injuries received by four persons
of the defence side were also examined by
the Medical Officer which were also found
to be simple as appearing on page nos.14
to 20 of the Paper Book.

 (v) The inquest report prepared
by the I.O. pursuant to the cross case crime
No. 756-A contains recital that the death
was caused by riot but he mentioned the
recovery of utensils found pursuant to the
first FIR No.756/1981. This shows that
after Fagna died, the quarrel in revenge
took place in which four persons from the
side of the prosecution and four persons
from the defence side were injured. The
aforesaid Fagna died while making Nakab
in the house of Nathu son of Khacheru -
informant of the first FIR.
5 All. Attar Singh & Ors. Vs. State of U.P.
845
 (vi) Thus the real incident was
that the deceased Fagna was making
Nakab for theft/criminal trespass in the
house of Nathu son of Khacheru and in that
incidence he died which fact is further
proved from this evidence that the back
side from where Nakab was made, was
agricultural filed which was wet as noted
by I.O. in recovery memo dated 29.10.1981
(page 5 of the paper book) and the
description of the dead body of Fagna as
noted in the inquest report (at page 28 of
the paper book) that clay on the legs of
Fagna was found. Therefore, the story of
the prosecution pursuant to cross First
Information Report No.756-A is totally
inconsistent with the evidences found on
the spot at the time of incidence.

 vii) It is evident from the evidence
of PW 2 and his cross examination read
with inquest report that cross First
Information Report No.756-A is ante time
and was lodged by the Bhramjeet to falsely
implicate the accused-appellant and to
cover up the criminal act committed by his
father Fagna and other persons of the
prosecution side. Even the PW 2 could not
state whether the thumb impression which
on FIR is his or of any other person.

 (viii) In paragraph 7 of his
evidence the PW 2 has stated that police
came at about 1 AM in the village and when
in the morning at 9 AM the police returned to
the police station then at the police station he
came to know that the his father Fagna has
been killed by the accused. This statement of
the PW 2 informant read with the statement
in paragraphs 2, 3 , 8, 10, 11 itself goes to
show that the entire story of the prosecution
is concocted.

 (ix) In Para 11 of the evidence of
PW 2 (cross examination) stated that
Daroga Ji has not taken his statement
either before or after lodging of the FIR.
This goes to show that the statement
recorded by the I.O. under Section 161
Cr.P.C. is concocted. No immediate motive
for commission of alleged crime could be
proved by the prosecution.

 (x)
Evidence
of
PW
2
in
paragraph 19 that during scuffle candle
was lighting and it was dark night. This
evidence is in conflict with the cross
examination
of
PW
3
Dal
Singh,
(paragraph 5) where he stated that the
accused had shutoff the candle immediately
and thereafter it could not be noticed that
who beaten to whom. From the cross
examination of PW 3 (para 8) it is evident
that the deceased - Fagna was a habitual
thief. Evidence of PW 3, PW 4 and PW 5
does not support the prosecution story."

 Paragraph 2 of the order dated
20.07.2023

 2. Sri I.K. Chaturvedi, learned
Senior Advocate, submits as under:-

 (i) As per medical examination
report, the samples of blood stained earth
taken by the Investigating Officer, from two
places, have been found to be similar.
According to the prosecution, one was
taken from the Chabutara of the house of
the deceased- Fagna and the other was
taken from the room where the dead body
of Fagna was found. But soil of both the
places cannot be similar. This proves that
blood-stained soil samples are of some
other place. Hence, the prosecution has
completely failed to establish the actual
place of incident. Since the actual place of
incident is neither ascertainable nor has
been established by the prosecution,
therefore, the entire story set up by the
846 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution becomes unreliable and the
accused/appellants are entitled for benefit
of doubt.

 (ii) The accused persons never
absconded rather they remained present
during entire investigation before the
Investigating
Officer.
Therefore
their
conduct has not been blameworthy and it
shows that they have not participated in the
commission of the alleged offence.

 (iii) No incised wound with
reverted margins was found on the body of
the deceased-Fagna as evident from the
Post Mortem Report and the evidence of
PW-5. Hence, there was no injury by
Ballam. Therefore,
the
case
of
the
prosecution that the accused attacked by
Ballam upon
the deceased-Fagna
is
established to be unreliable.

 (iv) There is no evidence that the
"Kumal" was made by the accused. Even
there is no recovery of any instruments
from the accused, allegedly used by the
accused for making "Kumal". Therefore,
the story of making of "Kumal" by the
accused has been concocted to give a
different colour to the case on the basis of
false evidence.

 (v)
Motive
set
up
by
the
prosecution against accused that there was
some
dispute
with
respect
to
the
passage/pathway, is baseless. As per
prosecution the dispute arose about 20
years ago. No evidence has been led by the
prosecution for any immediate cause. No
evidence could be led by the prosecution to
establish that any quarrel or litigation took
place near to the date of incident or in
immediate proximity of the incident.
Therefore, the motive as alleged by the
prosecution is totally unestablished. In the
absence of any motive, the entire story set
up by the prosecution has no legs to stand.

 (vi) No recovery of weapon,
allegedly used in commission of the
offence, could be made.

 (vii) Total 18 persons were
falsely implicated and were made accused
in the incident in question. On the same set
of facts and evidence, four of them were
acquitted on the ground of age and giving
them benefit of doubt. Therefore, the
appellants herein cannot be convicted on
the same set of evidence.

 (viii) As per evidence of PW-4,
the body of the deceased-Fagna was
dragged for about 90 steps. As per
evidence of PW-5 (Doctor, who conducted
the post mortem) grass and ordinary soil
were found on the body of deceased. There
is no description that the Dhoti and Kurta,
which the deceased was wearing, were
found torn as a natural consequence of
dragging the body for about 90 steps.
Therefore,
the
entire
story
of
the
prosecution that the quarrel took place at
the Chabutara of the house in which
injuries were caused to deceased-Fagna
and thereafter he was dragged for 90 steps
so to take him in the room where his body
was found lying, is not supported by any
credible evidence.

 (ix) On the contrary the presence
of the body of deceased-Fagna and the
"Kumal" as found by the prosecution
witnesses and also the fact that Fagna was
habitual thief, leaves no manner of doubt
that Fagna has made "Kumal" for theft and
also took away some utensils, which were
also recovered by the Investigating Officer,
as evident from the recovery memo. No
evidence regarding trail of blood stains for
5 All. Attar Singh & Ors. Vs. State of U.P.
847
90 steps while dragging the body allegedly
from the Chabutara was found or could be
led by the prosecution. Therefore the entire
story of dragging the body of deceasedFagna from Chabutara of the house to the
room where body was found is totally
unproved. Neither blood sample from the
place of dragging was taken by the
prosecution nor dragging was established
by any scientific evidence. The death of
Fagna was caused on account of house
breaking in night, which is fully protected
by the provisions of sections 104 & 105
I.P.C."

8. Shri Satish Kumar Tyagi,
learned counsel for the informant submits
that his argument have been noted by Coordinate Bench of this Court in its order
dated 26.07.2023 and he reiterates and
reaffirms the same. Paragraph no.2 of the
order dated 26.07.2023 is quoted as under:-

 "2. Shri Satsh Kumar Tyagi,
learned counsel for the complainant
submits as under:

 (i)
Recovery
memo
dated
29.10.1981 showing recovery of certain
articles near 'Nakab' has not been exhibited
and, therefore, the said recovery memo
dated
29.10.1981
prepared
by
the
Investigating Officer, cannot be read and
relied by the accused-appellants.

 (ii)
Four
persons
from
the
accused side received simple injuries while
four persons from the deceased side
received simple injury and the deceasedFagna died due to the injuries caused by
the accused. Thus, it becomes undisputed
that the incident took place on 29.10.1981
in the night of 28.10.1981 and due to the
injuries caused by the accused, the
deceased-Fagna died.
 (iii)
The
prosecution
has
established its case beyond reasonable
doubt and, as such, the conviction of the
accused by the impugned judgement and
order cannot be interfered with."

9. Shri O.P. Dwivedi, learned AGA
has also reiterated and reaffirmed the
argument advanced by the then learned
AGA, which have been noted by the Coordinate Bench of this Court vide order
dated 26.07.2023 in paragraph no.3.
Paragraph no.3 is quoted as under:-

 "3. Shri A.N. Mulla, learned AGA
submits that the date and time of the
incident cannot be disputed by the accusedappellants. The only dispute that may be
raised is about the place of incident. The
prosecution has established the guilt of the
accused-appellants
beyond
reasonable
doubt and, as such, the accused-appellants
have been rightly convicted by the learned
Trial Court."

10. Query put by the Court and
reply thereof by the learned counsel for the
complainant as well as learned AGA
contained in paragraphs 4 and 5 of the
order dated 26.07.2023 are also quoted as
under:-

 "4. On a query made by this
Court to the learned counsel for the
complainant and the learned AGA drawing
their attention to the evidence of P.W.-2
(paragraph nos.7, 10 and 19) and the
evidence of P.W.-3 (paragraph nos.5 and
7) that the date on which the incident took
place was a dark night having no source of
artificial light except one candle kept in a
shelf
('Aala')
near
to
the
platform
('Chabutra') measuring 10 yds X 7 yds,
which was immediately blown out by the
accused persons the moment they came
848 INDIAN LAW REPORTS ALLAHABAD SERIES
and, thereafter, it is not known in the dark
night that who beaten whom and by which
weapon. Then, how the informant and other
alleged eye witnesses could see 18 accused
persons
assigning
them
role/different
weapons?

 5. To this query, learned counsel
for the complainant and the learned AGA
jointly submitted that since the parties were
known and related to each other, therefore,
they could have identified them by the voice
and body appearance. Therefore, dark
night and non-availability of artificial light
at the place of incident would not be fatal
to the case of the prosecution, insofar as
occurrence of the incident, recognizing the
accused persons and other activities that
took place, are concerned."

11. All the three learned counsels,
however, taken us to the paper book and
have
refreshed
their
submissions
by
drawing attention to relevant parts of all the
documents including reports, site plan and
statement of witnesses.

12. That apart, elaborating and
refreshing his argument the crux of
argument of learned Senior Counsel is that
when Koomal was being made in the house
of Nathu for theft by deceased Fagna,
action was taken by the accused side
resulting in Fagna died on 29.10.1981 at
about 8.00 PM. and in this respect a First
Information
Report
No.756/1981
was
registered from the side of deceased at
about 2.00 AM, under sections 457, 511
IPC whereas from the side of accused, a
cross First Information Report No.756A/1981, under Sections 147, 148, 149, 302
IPC was registered. It was pointed that after
Fagna died, the informant side attacked in
revenge, wherein 4 persons, namely, Ram
Singh, Dal Singh, Brahmjeet (informant)
and Chhaman Lal were injured and from
the accused side Khazan Singh, Atar Singh,
Johari and Jai Singh were injured; the dead
body of Fagna was recovered from the
house of Nathu and utensils which were
being taken away was found outside the
house in the field just behind Koomal.
Chabutara of the house of Fagna is the
place of subsequent incident and it is
incorrect to say that injures were caused to
Fagna and even in presence of informant
side Fagna was dragged to the house of
Nathu; this clearly shows that Fagna died
while making Koomal in the house of
Nathu son of Khacheru and the first
information report No.756A/1981 was
lodged from the side of accused persons.
He submits that this fact is supported by
medical evidence as clay (wet soil) and
grass on the body of Fagna was found. By
drawing attention to various pages of the
paper
book
it
was
submitted
that
subsequent FIR No.756A/1981 is ante
time; there was no motive to commit such
offence from the side of the accused
persons; soil recovered from both places is
similar which is not possible and as such
place of incident is not ascertained and
benefit of doubt must be given to the
accused persons as per settled law; the
accused never absconded after the incident
that is also shows their bonafide that they
have not committed any offence; there is no
evidence that Koomal was fabricated by the
accused side as alleged in the first
information report; there was no recovery
of any weapon in the present case; there
was no trail of bloodstains in the entire
passage of 90 steps as the allegation is that
Fagna was beaten at his Chabutara and
dragged 90 steps to the house of Nathu
where the dead body was found; no
bloodstained soil was recovered from this
passage as such dragging of the body is not
proved and is not corroborated by the ante-
5 All. Attar Singh & Ors. Vs. State of U.P.
849
mortem injuries suffered by Fagna. Lastly,
it was submitted that there were total 18
accused persons whereas on the same set
up facts, 4 accused persons have been
acquitted on the ground of age and giving
them benefit, therefore, the conviction of
other accused persons is not sustainable in
the eye of law.

13. In support of his argument
learned Senior Counsel for the appellants
has placed reliance upon the judgment of
Hon'ble Apex Court in the case of Upendra
Pradhan vs. State of Orissa, 2015 (11) SCC
124 to contend that on appreciation of law
and evidence view favouring the accused
persons is accepted as it is the human right
of the accused persons. He has further
placed reliance on the judgment of Balaka
Singh and Others vs. State of Punjab,
AIR 1975 SC 1962 to contend that in case
few accused have been acquitted on same
set of facts, the entire prosecution version
must be discarded and benefit of the same
must be extended to the other accused
persons also. It is a case of exercise of right
to defence as the deceased Fagna was doing
Koomal for the purpose of theft. He has
also placed reliance on the judgement of
Hon'ble Apex Court in the case of
Darshan Singh vs. State of Punjab, 2010
(2) SCC 333, Paragraph 58 of the said
judgment reads as under:-

 "58. The following principles
emerge on scrutiny of the following
judgments:

 (i) Self-preservation is the basic
human instinct and is duly recognised by
the criminal jurisprudence of all civilised
countries. All free, democratic and civilised
countries recognise the right of private
defence within certain reasonable limits.

 (ii) The right of private defence is
available only to one who is suddenly
confronted with the necessity of averting an
impending danger and not of self-creation.

 (iii)
A
mere
reasonable
apprehension is enough to put the right of
self-defence into operation. In other words,
it is not necessary that there should be an
actual commission of the offence in order
to give rise to the right of private defence.
It is enough if the accused apprehended
that such an offence is contemplated and it
is likely to be committed if the right of
private defence is not exercised.

 (iv) The right of private defence
commences as soon as a reasonable
apprehension arises and it is coterminous
with the duration of such apprehension.

 (v) It is unrealistic to expect a
person under assault to modulate his
defence step by step with any arithmetical
exactitude.

 (vi) In private defence the force
used by the accused ought not to be wholly
disproportionate or much greater than
necessary for protection of the person or
property.

 (vii) It is well settled that even if
the accused does not plead self-defence, it
is open to consider such a plea if the same
arises from the material on record.

 (viii) The accused need not prove
the existence of the right of private defence
beyond reasonable doubt.

 (ix) The Penal Code confers the
right of private defence only when that
unlawful or wrongful act is an offence.
850 INDIAN LAW REPORTS ALLAHABAD SERIES
 (x) A person who is in imminent
and reasonable danger of losing his life or
limb may in exercise of self-defence inflict
any harm even extending to death on his
assailant either when the assault is
attempted or directly threatened."

14. Per contra, Shri Satish Kumar
Tyagi, learned counsel for the informant
has refreshed his argument to the effect that
the
recovery
memo
dated
29.10.981
showing the recovery of certain articles
near Koomal were not exhibited in the
present case as the recovery memo was
prepared in the first information report
lodged
by
the
accused
persons
No.756/1981 and law requires that unless it
is exhibited in the present case, the same
cannot be looked into and relied on by the
accused persons. He has further submitted
that in view of the fact that one person died
and four persons received injuries from
both sides clearly proves that the incident
had taken place in the night of 28.10.1981
and in view of the recovery of bloodstained
soil from two spots and shown in the site
plan duly proved by the Investigating
Officer clearly proves the date, time and
place of occurrence and prosecution has
proved his case beyond any shadow of
doubt.

15. Learned A.G.A. adopting the
argument raised by the learned counsel for
the informant, however, submitted that date
and time of the incident is not disputed and
at the most dispute can be raised about the
place of incident whereas the evidence of
injured eye witnesses whose presence
cannot be disputed, clearly proves the place
of incident as well and nothing could be
found contrary in the cross examination of
the prosecution witnesses of fact as well as
of the formal witnesses; the post mortem
report and injury reports also support the
prosecution version. Submission, therefore,
is
that
the
impugned
judgment
of
conviction requires no interference.

16. Before proceeding further, it
would be appropriate to refer to various
relevant judgements of Hon'ble Apex
Court as well as of this Court.

17. In Krishna Mochi and others
vs. State of Bihar, (2002) 6 SCC 81, the
Hon'ble Apex Court laid emphasis on
realistic approach to be adopted by the
criminal courts while appreciating evidence
in criminal trial, paragraph 32 whereof is
quoted as under:

 "32. The court while appreciating
the evidence should not lose sight of these
realities of life and cannot afford to take an
unrealistic approach by sitting in an ivory
tower. I find that in recent times the
tendency to acquit an accused easily is
galloping fast. It is very easy to pass an
order of acquittal on the basis of minor
points raised in the case by a short
judgment so as to achieve the yardstick of
disposal. Some discrepancy is bound to be
there in each and every case which should
not weigh with the court so long it does not
materially affect the prosecution case. In
case discrepancies pointed out are in the
realm of pebbles, the court should tread
upon it, but if the same are boulders, the
court should not make an attempt to jump
over the same. These days when crime is
looming large and humanity is suffering
and the society is so much affected thereby,
duties and responsibilities of the courts
have become much more. Now the maxim
"let hundred guilty persons be acquitted,
but not a single innocent be convicted" is,
in practice, changing the world over and
courts have been compelled to accept that
"society suffers by wrong convictions and it
5 All. Attar Singh & Ors. Vs. State of U.P.
851
equally suffers by wrong acquittals". I find
that this Court in recent times has
conscientiously taken notice of these facts
from time to time........."

 (Emphasis supplied)

18. In Masalti vs. State of U.P.,
AIR 1965 SC 202, Hon'ble Apex Court in
paragraph 14 observed as under:

 "14. But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. ... The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice."

 (Emphasis supplied)

19. In Darya Singh vs. State of
Punjab, AIR 1965 SC 328, the Hon'ble
Apex Court has also taken the view that
related witness does not necessarily mean
or is equivalent to an interested witness. A
witness may be called interested only when
he or she derives some benefit from the
result of litigation; a decree in a civil case,
or in seeing a person punished in a criminal
trial, paragraph 6 whereof is quoted as
under:

 "6. On principle, however, it is
difficult to accept the plea that if a witness
is shown to be a relative of the deceased
and it is also shown that he shared the
hostility of the victim towards the assailant,
his evidence can never be accepted unless
it is corroborated on material particulars."

20. In Appabhai and another vs.
State of Gujarat, AIR 1988 SC 696, the
Hon'ble Apex Court in paragraph 11
observed as under:

 "11.........Experience reminds us
that
civilized
people
are
generally
insensitive when a crime is committed even
in their presence. They withdraw both from
the victim and the vigilante. They keep
themselves away from the Court unless it is
inevitable. They think that crime like civil
dispute is between two individuals or
parties and they should not involve
themselves. This kind of apathy of the
general public is indeed unfortunate, but it
is there everywhere whether in village life,
towns or cities. One cannot ignore this
handicap with which the investigating
agency has to discharge its duties. The
court, therefore, instead of doubting the
prosecution case for want of independent
witness must consider the broad spectrum
of the prosecution version and then search
for the nugget of truth with due regard to
probability if any, suggested by the
accused. The Court, however, must bear in
mind that witnesses to a serious crime may
not react in a normal manner. Nor do they
react uniformly. The horror stricken
witnesses at a dastardly crime or an act of
egregious nature may react differently.
Their, course of conduct may not be of
ordinary type in the normal circumstances.
The Court, therefore, cannot reject their
evidence merely because they have behaved
or reacted in an unusual manner....."

 (Emphasis supplied)

21. Similar view has been taken in
State of A.P. vs. S. Rayappa and others,
(2006) 4 SCC 512 wherein it has been
observed that it is now almost a fashion
that public is reluctant to appear and depose
before the court especially in criminal cases
and the cases for that reason itself are
852 INDIAN LAW REPORTS ALLAHABAD SERIES
dragged for years and years, paragraph 6
whereof is quoted 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
interested witness. The term interested
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."

(Emphasis supplied)

22. In Pulicherla Nagaraju @
Nagaraja Reddy v. State of AP, (2006) 11
SCC 444, the Hon'ble Apex Court in
paragraph 16 has held as under:

 "16. In this case, we find that the
trial court had rejected the evidence of
PW1 and PW2 merely because they were
interested witnesses being the brother and
father of the deceased. But it is well settled
that evidence of a witness cannot be
discarded merely on the ground that he is
either partisan or interested or closely
related to the deceased, if it is otherwise,
found to be trustworthy and credible. It
only requires scrutiny with more care and
caution, so that neither the guilty escape
nor the innocent wrongly convicted. If on
such careful scrutiny, the evidence is found
to be reliable and probable, it can be acted
upon. If it is found to be improbable or
suspicious, it ought to be rejected. Where
the witness has a motive to falsely implicate
the accused, his testimony should have
corroboration
in
regard
to
material
particulars before it is accepted."
 (Emphasis supplied)

23. In Satbir Singh and others vs.
State of U.P., (2009) 13 SCC 790, the
Hon'ble Apex Court in paragraph 26 held
as under:

 "26. It is now a well-settled
principle of law that only because the
witnesses are not independent ones may not
by itself be a ground to discard the
prosecution case. If the prosecution case
has been supported by the witnesses and no
cogent reason has been shown to discredit
their statements, a judgment of conviction
can certainly be based thereupon ...... "

 (Emphasis supplied)

24. In Jayabalan vs. U.T. of
Pondicherry, 2010 (68) ACC 308 (SC),
the Hon'ble Apex Court in paragraph 21
held as under:

 "21. We are of the considered
view that in cases where the court is called
upon to deal with the evidence of the
interested witnesses, the approach of the
court, while appreciating the evidence of
such witnesses must not be pedantic. The
court must be cautious in appreciating and
accepting the evidence given by the
interested witnesses but the court must not
be suspicious of such evidence. The
primary endeavour of the court must be to
look for consistency. The evidence of a
witness cannot be ignored or thrown out
solely because it comes from the mouth of a
person who is closely related to the victim."

 (Emphasis supplied)

25. In Dharnidhar vs. State of
U.P., (2010) 7 SCC 759, the Hon'ble Apex
Court held that there is no hard and fast
5 All. Attar Singh & Ors. Vs. State of U.P.
853
rule that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the Court.
It will always depend upon the facts and
circumstances of a given case, paragraphs
12 and 13 whereof is quoted as under:

 "12. There is no hard and fast
rule that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the Court.
It will always depend upon the facts and
circumstances of a given case. In the case
of Jayabalan v. U.T. of Pondicherry
[(2010)1 SCC 199], this Court had
occasion to consider whether the evidence
of interested witnesses can be relied upon.
The Court took the view that a pedantic
approach cannot be applied while dealing
with the evidence of an interested witness.
Such evidence cannot be ignored or thrown
out solely because it comes from a person
closely related to the victim. The Court
held as under:

 " 23. We are of the considered
view that in cases where the court is called
upon to deal with the evidence of the
interested witnesses, the approach of the
court, while appreciating the evidence of
such witnesses must not be pedantic.