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

- **Citation:** (2022) 12 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-21
- **Case number:** Criminal Appeal No. 240 of 1986
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayodhya-singh-ors-v-state-of-u-p-47993
- **Pages:** 10

## Headnote

G.A.,
Janardan
Singh,
Suresh
Kumar
Upadhyay

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Section 147, 302, 325,
323,
307,
504,
506
-Challenge
toConviction- As per FIR and the statement
of witnesses that quarrel started over a
small unripe mango fruit dropped from the
mango tree between two children and this
quarrel between the children ultimately
resulted in death of a young boy- P.W.-1,
P.W.-2
,
P.W.-3,P.W-4
succeeded
in
proving the case beyond reasonable doubt
that about 2 p.m. and the incident took
place
in
the
khaliyan-the
accused
committed assault on the deceased at the
place denoted by letter ''X' in the site
plan-Prosecution also proved that the
genesis of quarrel occurred in drop unripe
mango between children-From the perusal
of the post-mortem report and injury
report time of occurrence is fixed between
1 to 2 p.m. -The ocular witnesses and the
child witness deposed that the incident
occurred at 2 p.m. The fact is also
confirmed by the defence version as they
stated to have sustained injuries by
khodni inflicted by the deceased - the
injuries were caused by some blunt object
and were about 6 to 7 days old, the time
opined by doctor also corroborate the time
12 All. Ayodhya Singh & Ors. Vs. State of U.P.
13
of occurrence -P.W.-5 (Child) is examined
by the prosecution who is the witness of
that incident which lead to marpit-He
deposed in court as child witness and
stated that he entangled with another
child on account of mango and thereafter
father of another child armed with lathies
attacked his father who succumbed to
death on account of injury sustained by
him-Learned trial court discussed all the
material evidence on record, place of
occurrence and with a very clear finding
arrived at the conclusion of guilt of the
accused/appellants.-The judgment passed
by the learned trial Court is convincing..
The judgment passed by the trial court is
liable to be upheld and is confirmed. (Para
28 to 42)

B. Evidence of child witness is not to be
thrown away at its threshold. The only
rider is that the child testimony weight
that it must got corroborated from other
evidences also. In the instant case Dabbu
@ Brijesh is the only witness who was
present at the spot and the dispute arose
between Rudra Pratap and Dabbu about
the unripe mango fruit. This fact is
admitted by the defence also. Therefore,
the evidence of Dabbu cannot be rejected
at the very outset. (Para 33)
The appeal is dismissed. (E-6)

List of Cases cited:

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES
but there was a contra indica present in the
agreement
which
provided
exclusive
jurisdiction to the Courts at Gurgaon/High
Court at Chandigarh and as such the Delhi
High Court has no territorial jurisdiction.

19. Applying the aforesaid law in
facts of the present case, there appears a
contra indication in the agreement to an
extent that the "venue" of the arbitration is
stipulated to be Lucknow, whereas the
Courts at Agra and Allahabad are given
exclusive jurisdiction in case of any dispute
arising out of compliance/non compliance
of the agreement. From the jurisdictional
perspective, Lucknow is only a venue or
location
for
conducting
the
Arbitral
Proceedings. The exclusive jurisdiction
clause
contained
in
the
agreement
constitutes "significant contrary indica" as
per Shashoua principle and only the Courts
at Agra/Allahabad will have jurisdiction to
decide the disputes between the parties
arising out of agreement in question.

20. In view of the discussions made
hereinabove, this Court is clearly of the
view that the Court at Lucknow has no
jurisdiction
to
entertain
the
present
application and as per the exclusive
jurisdiction
clause
contained
in
the
agreement, the Courts at Allahabad will
have jurisdiction to entertain it. The
application is, accordingly, dismissed.

21. However, the applicant will be at
liberty to move a fresh application seeking
the relief as prayed in the present
application before this Court at Allahabad,
if the applicant is so advised.
----------
(2022) 12 ILRA 12
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2022
BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 240 of 1986

Ayodhya Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Kr. Shanti Prakash, Arun Sinha, Ashish
Mishra, Kr. M. Rakesh, Raghvendra Pratap
Singh, Riyaz Ahmad, Siddhartha Sinha,
Surendra Pratap Singh, Vinay Kumar Singh

Counsel for the Respondent:
G.A.,
Janardan
Singh,
Suresh
Kumar
Upadhyay

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Section 147, 302, 325,
323,
307,
504,
506
-Challenge
toConviction- As per FIR and the statement
of witnesses that quarrel started over a
small unripe mango fruit dropped from the
mango tree between two children and this
quarrel between the children ultimately
resulted in death of a young boy- P.W.-1,
P.W.-2
,
P.W.-3,P.W-4
succeeded
in
proving the case beyond reasonable doubt
that about 2 p.m. and the incident took
place
in
the
khaliyan-the
accused
committed assault on the deceased at the
place denoted by letter ''X' in the site
plan-Prosecution also proved that the
genesis of quarrel occurred in drop unripe
mango between children-From the perusal
of the post-mortem report and injury
report time of occurrence is fixed between
1 to 2 p.m. -The ocular witnesses and the
child witness deposed that the incident
occurred at 2 p.m. The fact is also
confirmed by the defence version as they
stated to have sustained injuries by
khodni inflicted by the deceased - the
injuries were caused by some blunt object
and were about 6 to 7 days old, the time
opined by doctor also corroborate the time
12 All. Ayodhya Singh & Ors. Vs. State of U.P.
13
of occurrence -P.W.-5 (Child) is examined
by the prosecution who is the witness of
that incident which lead to marpit-He
deposed in court as child witness and
stated that he entangled with another
child on account of mango and thereafter
father of another child armed with lathies
attacked his father who succumbed to
death on account of injury sustained by
him-Learned trial court discussed all the
material evidence on record, place of
occurrence and with a very clear finding
arrived at the conclusion of guilt of the
accused/appellants.-The judgment passed
by the learned trial Court is convincing..
The judgment passed by the trial court is
liable to be upheld and is confirmed. (Para
28 to 42)

B. Evidence of child witness is not to be
thrown away at its threshold. The only
rider is that the child testimony weight
that it must got corroborated from other
evidences also. In the instant case Dabbu
@ Brijesh is the only witness who was
present at the spot and the dispute arose
between Rudra Pratap and Dabbu about
the unripe mango fruit. This fact is
admitted by the defence also. Therefore,
the evidence of Dabbu cannot be rejected
at the very outset. (Para 33)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Suryanarayana Vs St. of Karn. (2001) 9 SCC
129

2. Panchhi Vs St. of U.P. (1998) 7 SCC 177

(Delivered by Hon'ble Renu Agarwal, J.)

1. This criminal appeal has been filed
by the appellants Ayodhya Singh, Lal Ji
Singh, Man Bahadur Singh, Bharat Singh,
Bhanu Pratap Singh against the judgment and
order dated 04.04.1986 passed by the IIIAdditional
Sessions
Judge,
Gonda
in
Sessions Trial No. 386 of 1985 State Vs.
Ayodhya Singh and others Police Station
Kotwali Dehat convicting the appellants and
sentencing each of them six months rigorous
imprisonment under Section 147 IPC, six
months rigorous imprisonment under Section
323/ 149 IPC and to the imprisonment to life
under Section 302/149 IPC.

2. During the pendency of appeal,
appellant No. 1 Ayodhya Singh and Appellant
No. 2 Lal Ji Singh, have died and the appeal
stood abated with regard to the appellants No.
1 and 2.

3. Wrapping the facts in brief, on
19.4.1984 at about 2 p.m. Jagannath Singh,
lodged a written report that his brother
Vishwanath Singh was thrashing wheat in the
field and his son Dabbu and one Rudra
Prasap son of Ayodhya Singh were playing.
Both the boys started quarreling. Rudra
Pratap went to his house weeping. After some
time Ayodhya Singh, Lalji Singh, Man
Bahadur Singh, Bharat Singh and Bhanu
Pratap Singh armed with lathies, arrived and
started scolding Dabbu Singh. Vishwanath
Singh also went there and asked as to what
was the matter. The aforesaid accused
thereupon started beating Vishwanath Singh
with lathi. Vishwanath Singh also plied
khodni in his self-defence. On the alarm
raised by Vishwanath Singh informant
Jagganath Singh and his brother Jagdish
Singh, rushed to the spot and tried to save the
deceased Vishwanath Singh. Jagdish Singh
also sustained injuries. Witnesses Hanuman
Singh, Ram Karan Singh alias Ghullur Singh,
Jai Prakash Singh, Sipahi Singh and Ram
Deo Singh intervened and the accused person
then left the spot. Vishwanath Singh was
being taken to the hospital by the informant
and others, when he succumbed to death due
to the injuries sustained by him.

4. A written report (Ex Ka-1) was
lodged about the incident on 19.04.1984 at
14 INDIAN LAW REPORTS ALLAHABAD SERIES
about 4:30 p.m. in the police station which is
at the distance of 11 km from the village
Lorhiya Ghata. On the basis of written report
chick report (Ex Ka-15) was prepared. A case
was registered and endorsed in G.D.
Investigation was entrusted to Sub-Inspector
Satish Chandra Ojha who conducted and
prepared the inquest report (Ex Ka-3). He
also prepared photo lash and challan lash,
sample seal, letter to C.M.O and send the
body
of
the
deceased
for
autopsy.
Investigating officer recorded the statement
of witnesses of inquest, Munizar SinghScribe of the report, Jagganath Singh and
other witnesses Jagdish Singh, Hanuman
Singh, Ram Karan Singh, Jai Prakash Singh,
Siphai Singh, Ram Deo Singh and Dabbu
Singh, inspected the spot and prepared site
plan, recovered the blood stained and plain
earth from the place of occurrence and
prepared recovery memo thereof.

5. The case property was sent for
chemical examination to forensic science
laboratory, Agra through constable Shri
Niwas Chaudhari. Thereafter investigation
was taken over by Inspector Ram Kripal
Tiwari who after satisfying from the
investigation conducted by Satish Chand
Ojha submitted charge-sheet against the
appellants in court.

6. After compliance of Section 207
Cr.P.C, the case was committed to the
Court of Sessions, charges were framed and
read over to the appellants under Sections
147, 302/149, 323/149 IPC, the appellants
abjured from the charges and claimed to be
tried.

7. In order to prove the prosecution
case the following witnesses were produced
by the prosecution:-

(a) P.W.-1 Jaggan Nath Singh.

(b) P.W.-2 Jagdish Singh.

(c).P.W.-3 Hanuman Singh.

(d) P.W.-4 Dr. S.K. Gupta.

(e) P.W.-5 Dabbu @ Brijesh.

(f) P.W.-6 S.I. Satish Chandra
Ojha.

(g) P.W.-7 Inspector Ram Kripal
Tripathi.

(h) P.W.-8 H.C. C.P. 57 Sultan
Ahmad.

(g) P.W.-9 C.P. 246 Lalit Kumar.

(h) P.W.-10 Dr. R.U.Pandey.

8. Beside the ocular evidence,
prosecution
adduced
following
documentary evidence:

(I) Written report (Ex Ka-1)

(II) Inquest Report (Ex Ka-3)

(III) Site Plan (Ex. Ka-9)

(IV) Recovery memo (Ex. Ka 11
to 13).

(v) First Information Report (Ex.
Ka 15)

(VI) injury report (Ex Ka-2)

(VII) Post mortem report (Ex Ka18)

(VIII)
Forensic
Science
Laboratory Report (Ex Ka-19).

9. After the conclusion of the
prosecution witnesses, statement of accused
under Section 313 Cr.P.C were recorded.
Accused denied all the allegations levelled
against them and stated that Dabbu and
Rudra Pratap were playing under the
mango tree and both had a quarrel over a
dropped mango from a tree. Dabbu
complained the incident to his father and
uncles who in-turn beat Rudra Pratap Singh
with lathies. Hearing the cries of his son, he
along with accused reached the place of
occurrence then the deceased and his
brother started beating them also then they
plied lathies in their self-defence and the
12 All. Ayodhya Singh & Ors. Vs. State of U.P.
15
person from both the sides got injuries. The
accused shown their ignorance about the
death of the deceased Vishwanath Singh.
The accused Bhanu Pratap, Bharat Singh
and Man Bahadur claimed him to be alive
in the statements under Section 313 Cr.P.C.
The appellants were given opportunity to
adduce defence which they refused.

10. After perusal of the record,
statement of the witnesses, documentary
and ocular evidence, trial court convicted
and sentenced the accused Ayodhya Singh,
Lalji Singh, Man Bahadur Singh, Bharat
Singh and Bhanu Pratap Singh for
offences under Sections 147, 323/149 and
302/149
IPC.
Aggrieved
with
the
conviction and sentence the present appeal
has been filed.

11. Heard Shri Vinay Kumar Singh,
learned counsel for the appellants and Shri
Prabhat Adhauliya, learned A.G.A for the
State.

12. It is contended by learned counsel
for the appellants that the appellants also
sustained injuries in the incident which has
not been explained by prosecution and the
appellants are falsely roped in this case.
The number of assailants have been
deliberately increased, it is a clear case of
self-defence
because
the
prosecution
should not be allowed to have the benefit of
weakness and laches in the defence,
injuries also indicate that there was no
intent to kill. It is not known which was the
fatal injury to deceased. The case is
covered under Section 325 IPC or at the
maximum by Section 304 part II IPC if the
prosecution case is taken at its face value.
The khodni which allegedly used in selfdefence by the deceased Vishwanath Singh
was not brought before the Court not even
before the police.

13. Learned A.G.A on the other hand
has argued that there was a dispute between
the son of the deceased Vishwanath and son
of accused-appellant No. 1 over having
mango dropped from the tree both the
children went to have dropped mango and
when the son of deceased denied to hand
over the mango to Rudra Pratap, he started
weeping and complaint to his father and
uncle and then the assailants armed with
lathies arrived at the place of occurrence
and started scolding the son of deceased
Vishwanath
and
when
the
deceased
Vishwanath enquired about the incident all
the
appellants
started
assaulting
the
deceased by lathis. The deceased used
khodni in his self-defence but when he
sustained injuries on his head he could not
used khodni. Thereafter when the witnesses
Jagdish and complainant himself tried to
save Vishwanath Singh, the appellant
assaulted and injured them also. He could
not use khodni and his brother Jagdish
sustain injuries while saving their brother
Vishwanath Singh. It is also submitted by
learned A.G.A that all the witness prove
guilt of the appellants beyond reasonable
doubt, their presence is admitted at the
place of occurrence, therefore, the appeal
filed by the appellants is liable to be
dismissed.

14. Before analyzing the ocular
evidence, it is appropriate to recapitulate
the statement of witnesses in court.

15. P.W.-1 Jagannath deposed in
Court that at about 2 p.m. on the date of
incident, he along with his brother Jagdish
and Vishwanath, were thrashing the wheat
in their khaliyan. In south of the khaliyan
there is a mango tree. Dubbu @ Brijesh and
Rudra Pratap were playing under the
mango tree. A mango dropped and was
picked by Dabbu. Rudra Pratap shouted at
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Dabbu and both of them started quarreling.
Rudra Pratap went to the village and Dabbu
returned to the khaliyan. After some time
the appellants armed with lathies arrived in
the khaliyan and started scolding Dabbu.
Vishwanath enquired about the matter, the
accused started beating Vishwanath Singh.
Vishwanath Singh, tried to ply with Khodni
and raised alarm. He and his brother
reached at the place of occurrence and the
accused assaulted them also. When the
witnesses of the incident arrived all the
accused went away towards the village.
Injured Vishwanath was taken by him by
tonga when he expired on the way.

16. P.W.-2 Jagdish the injured witness
of the incident deposed that when he was
present in his kaliyan along with his brother
Jaggannath and Vishwanath and was
thrashing
wheat,
son
of
Vishwanath
entangled with Rudra Pratap on account of
dropped mango from tree. After some time,
the accused appellant armed with lathies
arrived in khaliyan and started scolding
Dabbu when Vishwanath enquired about
the incident, all the appellant started
beating him with lathies. He also sustained
injuries
inflicted
by
the
appellants.
Vishwanath died when he was being taken
to the hospital

17. P.W.-3 Hanuman Singh who is
stated to be eye-witness of the incident
stated on oath that while he was thrashing
wheat in his khaliyan, he saw that all the
appellants were beating Vishwanath Singh
with lathies. Vishwanath Singh plight with
khodni in his self-defence twice or thrice
but when he sustained injuries on his head
he could not save himself and died when he
was being taken to the hospital.

18. P.W.-4 Dr. S.K.Gupta who had
medically examined the injured Jagdish
Singh on 19.4.1984 and found following
injuries:

1. Lacerated wound, 3 cms x.5cm
x scalp deep on the left posterior side of
head, 10 cms. Above left ear, fresh blood
was present.

2. Traumatic swelling- 3 cms x
0.5 cms on the left forearm, 12 cms above
left wrist joint.

3. Complaints of pain on the left
him and right side back but no external
mark of injury was seen.

19. P.W.-5 Dabbu @ Brijesh aged
about 10 years is the star witness who
stated on oath that he and Rudra Pratap
were playing under the tree when small
Tikora (mango) dropped he and Roopal
(Rudra Pratap) rushed towards that mango.
Dabbu got that mango. Roopal tried to
snatch the mango but on being failed
abused him and went to his house. He
started playing again then all the accused
armed with lathies arrived and started
scolding and abusing him. His father came
and enquired about the matter then all of
them started beating his father. His father
also tried to ply with khodni in his selfdefence but he could not defend for long.
Then his uncles Jagdish and Jaggannath
tried to save his father but they also
sustained injuries in the incident.

20. P.W.-6 Sub-Inspector Satish
Chandra Ojha, appeared and deposed in
Court that he started investigation of the
case, prepared and proved the inquest
report (Ex Ka-3), prepared photo lash and
challan lash, specimen seal, letter to CMO
and sent the relevant papered (Ex Ka 4 to
Ka-8) and send the dead body for autopsy
along with the copy of FIR and G.D
recorded the statement of witnesses, scriber
of FIR and statement of Jagannath Singh on
12 All. Ayodhya Singh & Ors. Vs. State of U.P.
17
the same date. P.W.-6 recorded statement of
Jagannath and Jagdish on 20.04.1984
investigated and prepared site plan with
index (Ex Ka-9) prepared recovery memo
of blood strain (Ex Ka-10) and plain earth
(Ex-Ka-11). Investigating Officer sent the
case property for chemical examination to
Agra on 03.06.84 by Constable Shri Niwas
Chaudhari. Recorded the statement of
Rudra Pratap Singh.

21. P.W.-7 Inspector Ram Kripal
Tripathi submitted charge sheet on the basis
of the investigation conducted by P.W-6.

22. P.W-8 Head Constable C.P. 57
Sultan Ahmad proved chick report (Ex Ka15) and G.D (Ex. Ka-16) and G.D No. 27
endorsed on 19.04.84 is proved as Ex. Ka17.

23. P.W.-9 Lalit Kumar C.P. 246
deposed in court that he carried the dead
body of deceased in sealed condition at
6:30 p.m. on 20.04.84 and handed it over to
doctor. During this period the dead body
remained in sealed condition.

24.

P.W-10
Dr.
R.U.
Pandey
conducted autopsy of deceased of deceased
Vishwanath aged about 28 years and found
the following antemortem injuries:

1. Lacerated wound-1.5 cm x
1cm x bone deep on right side top of head,
10 cms above right ear.

2. Lacerated wound- 3.5 cms.x 1
cm.x bone deep on left side head 7 cms
above left ear.

3. Abrasion 2 cmsx .5 cm on the
top of left shouldeer.

4. Abrasion 1.5 cms x .5 cm on
the top medical aspect of left forearm, 13
cms below left elbow.

5. Abrasion 1 cm. X 1 cm on the
front part of right leg 3 cms below right
knee.

25. On internal examination, the
doctor found hematoma in an area of 22
cms x 10 cms with 16 cms long line
fracture of occipital bone under injuries
nos. 1 and 2. The membranes were deeply
congested and blood clottings were present.
Brain was also congested. Abdomen was
full of undigested rice food material. Small
intestines contained pasty material and
large intestines contained faecal matter. In
the opinion of the doctor, death was caused
due to come as a result of ante mortem
head injuries nos 1 and 2.

26. D.W.-1 Dr. D.A. Khan stated on
oath that he had examined and prepared the
injury report of appellant Lalji and found
following injuries:

1. Lacerated wound 3.5 cm x 1⁄2
cmx bone deep (infected) on the top of left
side head, 12 cms above left ear.

2. Abrated contusion 6 cmsx 2
cms on the right side back, scapular region
upper part.

3. Contusion 4 cmsx 1.5 cms on
right side back, scapular region lower part.

4. Contused swelling on lower
half of right calf muscle.

5. Abrasion 1 cm x 1 cm on front
of right knee at lower and of patalla bone.

27. All the injuries were simple in
nature and were caused by hard object and
were about five days old. The following
injuries were found on the person of
Ayodhya Singh:-

1. Lacerated wound on right side
head, 3 cms x .5 cmx muscle deep with
18 INDIAN LAW REPORTS ALLAHABAD SERIES
scabs formation, 6 cms above right eye
brow.

2. Contused swelling 8 cms x
4cms on outer side left thigh, 8 cms above
knee joint.

3. Contused swelling 10 cms x 8
cms on dorsum of right foot.

4. Diffused swelling 6 cmsx 4
cms on outer and backside of left forearm,
5 cms above wrist joint.

5. Diffused swelling 8 cms x 8
cms on back left side scapular region,
middle part.

The injuries were caused by some
blunt object and were about 6-7 days old.
Their nature was simple.

28. It transpires from FIR and the
statement of witnesses that quarrel started
over a small unripe mango fruit dropped
from the mango tree between two children
Rudra Pratap and Dabbu @ Brijesh. This
quarrel between the children ultimately
resulted in death of a young boy aged about
28 years. The date of the incident and
proximate time thereof is not in dispute as
the accused have admitted that they
sustained injuries by khodni inflicted by the
deceased. Prosecution produced witnesses
of fact as well as produced the injury report
of the injured and post mortem report of the
deceased respectively. From the perusal of
the postmortem report and injury report
time of occurrence is fixed between 1 to 2
p.m. on 19.04.1984. Dr. Satish Kumar
Gupta who examined the injured Jagdish
Singh, Dr. U.N. Pandey who conducted the
post mortem had fixed the time of incident
at about 2 p.m. on 19.04.84. The ocular
witnesses Jaggannath, Jagdish, Hanuman
Singh and the child witness Dabbu @
Brijesh deposed that the incident occurred
at 2 p.m. on 19.04.1984. The fact is also
confirmed by the defence version as they
stated to have sustained injuries by khodni
inflicted by the deceased and they are
examined on 24.04.84 at 9:00a.m. by Dr.
D.A. Khan in jail. Dr. Khan opined that all
the injuries were caused by some blunt
object and were about 6 to 7 days old. That
also proved that the incident occurred on
19.04.1984. Therefore, the time opined by
doctor also corroborate the time of
occurrence and proximate thereof.

29. P.W.-5 Dabbu @Brijesh is
examined by the prosecution who is the
witness of that incident which lead to
marpit. He deposed in court as child
witness and stated that he entangled with
Rudra Pratap on account of mango and
thereafter father of Rudra Pratap armed
with lathies attacked his father who
succumbed to death on account of injury
sustained by him.

30. Learned counsel for the appellant
argued that the testimony of child should
not be placed much reliance because a child
may cramp up fact and may deposed on
being tutored.

31. Supreme Court in the Case of
Suryanarayana Vs. State of Karnataka
reported at (2001) 9 SCC 129:

"..... The evidence of child witness
cannot be rejected per se, but the court, as
a rule of prudence, is required to consider
such evidene with close scrutiny and only
on being convinced about the quality of the
statements
and
its
reliability,
base
conviction by accepting the statement of
child witness. .....corroboration of the
testimony of a child witness is not a rule
but a measure of caution and prudence."

32. In the case of Panchhi Vs.State
of U.P. reported at (1998) 7 SCC 177,
Supreme Court has held thus:
12 All. Ayodhya Singh & Ors. Vs. State of U.P.
19

"that the evidence of the child
witness must be evaluated more carefully
and with greater circumspection because a
child is susceptible to be swayed by what
other tell him and thus an easy prey to
tutoring. The evidence of the child witness
must find adequate corroboration before it
is relied upon, as the rule of corroboration
is of practical wisdom than of law."

33. Evidence of child witness is not to
be thrown away at its threshold. The only
rider is that the child testimony weight that
it must got corroborated from other
evidences also. In the instant case Dabbu @
Brijesh is the only witness who was present
at the spot and the dispute arose between
Rudra Pratap and Dabbu about the unripe
mango fruit. This fact is admitted by the
defence also. Therefore, the evidence of
Dabbu cannot be rejected at the very outset.

34. P.W.-1 Jagganath Singh is an
injured witness who also sustained injuries
in this incident and whose presence is
admitted by the appellants. He corroborated
the prosecution case. Evidence of Dabbu is
the genesis of marpit. Hanuman Singh and
informant are eye-witness of the incident as
well. It is also pertinent to mention here
that as per the prosecution version deceased
Vishwanat Singh plied with khodni caused
injuries to Ayodhya Singh, Lal ji Singh.
The injury report is proved in court but no
FIR was lodged by the appellants. Learned
counsel for the appellants argued that the
injuries of the appellants are not explained.
If we go through the FIR itself which was
lodged by Jagganath Singh who also
sustained injuries during this incident had
deposed that the deceased also used khodni
in self-defence thus, we are not in
agreement with the contention of learned
counsel for the appellants that the injuries
of the appellants are not explained by the
prosecution. No FIR was lodged by
appellant however, they sent an application
Ex. Kha-1 to the Superintendent of Police.
That application is typed one and there
over-writing on the date. Previously it was
typed as ''25' and later on retyped as ''20' by
over writing. It is stated in the application
that "Lal Ji and Ayodhya Singh were
injured and Ayodhya Singh went to lodge a
report but he did not come back. The
appellant remained under search and today
he came to know that Ayodhya Singh
surrendered and went to jail." The above
mentioned accused surrendered in Court on
24.04.1984 as per records, therefore, it can
be concluded that the applicant got the
information of the surrender of Ayodhya
Singh and Lalji Singh on 24.04.1984.
Therefore, the date of application i.e.
20.04.1984
is
certainly
ruled
out.
Therefore, this application is moved after
pre-planning, delebration, concoction in
order to save the appellants.

35. Investigating Officer Satish
Chandra Ojha stated in his statement that
he enquired about the Ex Kha-1 also and
found the defence version untrustworthy.
Thus, conduct of the appellant shows that
the defence version was not trustworthy
and the application was moved only as a
counter blast.

36. Learned counsel for the appellant
also disputed the place of occurrence and
argued that it was the complainant who
arrived in their khaliyan and injured them
in their khaliyan but the defence version
with regard to the place of occurrence is
not reliable as the Investigating Officer
collected the blood strain and plain earth
from the khaliyan from the place shown in
the index by word ''X'. The Investigating
Officer stated that he did not found blood
from any other place, however, he
20 INDIAN LAW REPORTS ALLAHABAD SERIES
inspected the spot and the mango tree as
well. Therefore, the place of occurrence
cannot be any other place than the place
shown by letter ''X' in the site plan.

37. In the post-mortem report two
lacerated wound and 3 abrasions were
found on the body of the deceased which
goes to corroborate the prosecution version
that the appellants assaulted Vishwanath
Singh by lathis. On internal examination
hematoma in an area of 22 cms x 10 cms
with 16 cms long line fracture of occipital
bone under injuries nos. 1 and 2 was found.
Abrasion was congested and cause of death
opined by the doctor was result of ante
mortem head injury No. 1 and 2, therefore,
the prosecution version is corroborated by
injury report also.

38. It may be noted here that witness
Jagannath Singh (P.W.-2) also sustained
two injuries which is sufficient proof that
witness was present at the place of
occurrence and he saw the incident and the
accused could not continue with the assault
any further due to his intervention.

39. It is also admitted by the learned
counsel for the appellant that there was no
intention to kill anybody at most the
accused can be convicted under Sections
323, 304 II IPC. This Court has also
discussed that the trial court with precision
had held that the appellant came to the
place of occurrence armed with lathi and
started scolding Dubbu @ Brijesh on
account of his quarrel with Rudra Pratap
over a mango. There was no need to arrive
at the place of occurrence armed with lathis
and unlawful assembly was formed by all
the four appellants with common object
and gave sufficient blows. The death of the
deceased is the result of action of
appellants. The appellants started plying
lathies on deceased without even answering
the query of deceased on the petty cause of
quarrel and they voluntarily caused injuries
to Vishwanath who died due to the injuries
and Jagdish Singh and Jagganath Singh
sustained injury while saving Vishwanath.

40. In view of the above discussions
P.W.-1 Jagganath Singh, P.W.-2 Jagdish
Singh, P.W.-3 Hanuman Singh and P.W-4
Dabbu @ Brijesh succeeded in proving the
case beyond reasonable doubt that about 2
p.m. on 19.04.1984 the incident took place
in the khaliyan of Ram Karan and the
accused committed assault on the deceased
Vishwanath Singh at the place denoted by
letter ''X' in the site plan leading to the
death of Vishwanath Singh.

41. Prosecution also proved that the
genesis of quarrel occurred in drop unripe
mango between Dabbu and Rudra Pratap.
Dabbu took that mango and Rudra Pratap
complaint about the same to his parent who
arrived at the place of occurrence armed
with lathi and started scolding Dabbu.
When the deceased Vishwanath Singh
asked about the matter then they started
assaulting Vishwanath Singh.

42. Learned trial court discussed all
the material evidence on record, place of
occurrence and with a very clear finding
arrived at the conclusion of guilt of the
accused/appellants. The judgment passed
by the learned trial Court is convincing. We
do not find any good ground to interfere
with the findings of conviction recorded by
the trial court. The judgment passed by the
trial court is liable to be upheld and is
confirmed and the appeal is accordingly
dismissed.

43. The appellant No.3 Man Bahadur
Singh, appellant No.4 Bharat Singh and
12 All. Yunus Vs. State of U.P.
21
appellant No.5 Bhanu Pratap Singh are in
jail since 16.10.2018 and shall serve out the
sentence as awarded by the trial court and
confirmed by this Court.

44. Office is directed to send a copy
of this judgment along with lower court
record to the trial court concerned for
necessary information and follow up
action.
----------
(2022) 12 ILRA 21
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.12.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 445 of 2005

Yunus ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Amitabh Srivastava, Sanjay Kumar, Shivam
Sharma

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302 & 307 -
Arms Act, 1878 - Section 25 - Challenge
to-Conviction-
the
convict/appellant
murdered the three persons i.e. husband,
minor son and daughter of the informant
(P.W.1) and also caused injuries to P.W.1-
and
P.W.2-The
evidence
of
P.W.1-
informant as well as injured eyewitness of
the incident shows the true picture of the
incident -the evidence of P.W.2- narrated
the same prosecution case, who is also an
injured eyewitness of the incident and the
same found fully corroborated with the
post-mortem report of the deceased as
well as from the injury report of the two
injured persons- a bloodstained banka
was recovered along with bloodstained
pant and shirt which the appellant was
wearing from his house and as per report
of the Forensic Science Laboratory, human
blood was found on the gandasa, pant and
shirt of the appellant, the assailants were
no strangers to the inmates of the tragedy
bound house, the eyewitnesses being well
acquainted with the physiognomy of each
one of the killers-The prosecution has
proved its case beyond reasonable doubt
against the convict/appellant-it is well
settled law that the evidence of relatives
of the deceased cannot be thrown on that
count alone but their evidence has to be
examined by this Court minutely with
caution to rule out any possibility of false
implication of the accused.(Para 29 to 40)

B. As regards the contention that all the
eye-witnesses are close relatives of the
deceased, it is by now well settled that a
related witness cannot be said to be an
''interested' witness merely by virtue of
being a relative of the victim. This Court
has elucidated the difference between
''interested' and ''related' witnesses in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result
of a litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punished due to prior enmity
or other reasons, and thus has a motive to
falsely implicate the accused. (Para 37)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Mano Dutt & anr. Vs St. of U.P. (2012) 4 SCC
79

2. Abdul Sayeed Vs St. of M.P. (2010) 10 SCC
259

3. St. of U.P. Vs Krishna Master (2010) 12 SCC

4. Nathuni Yadav Vs St. of Bih. (1998) 9 SCC
238