# Barjor v. State of U.P

- **Citation:** (2021) 11 ILRA 840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-16
- **Case number:** Criminal Appeal No. 124 of 1985
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/barjor-v-state-of-u-p-46639
- **Pages:** 9

## Headnote

G.A.

Merely being a relative of the victim-cannot be
interested
witness-interested
only
when
he
derives some benefit from the result of a
litigation-prosecution successful in proving its
case-and the motive-prior enmity.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

840 INDIAN LAW REPORTS ALLAHABAD SERIES

45. In view of above facts and
circumstances of the case, the attending
circumstances and a careful scrutiny of the
evidence on record, both oral as well as
documentary, we are not satisified that the
prosecution has been able to prove its case
against the appellants, beyond all reasonable
doubts
and
hence
neither
the
recorded
conviction of the appellants nor the sentence
awarded to them, can be sustained in law and
are liable to be set aside.

46. In view of the aforesaid, the present
criminal appeal is allowed and consequently,
the judgment and order dated 27.11.2009
passed by the Additional Sessions Judge, FTCVth, court no. 14, Sultanpur in S.T. No. 332 of
2007 arising out of Case Crime No. 372 of
2007 under Sections 302/34, 498-A IPC and
3/4 of the Dowry Prohibition Act, 1961
registered at Police
Station-Musafirkhana,
District-Sultanpur, is set aside.

47. The appellants, who are in jail, shall
be released forthwith, if they are not wanted in
any other case.

48. Let the lower court record along with
a copy of this order be transmitted forthwith to
the learned trial court concerned for necessary
information and compliance.
----------
(2021)12ILR A840
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 124 of 1985

Barjor ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Brijesh Kumar Yadav

Counsel for the Respondent:
G.A.

Merely being a relative of the victim-cannot be
interested
witness-interested
only
when
he
derives some benefit from the result of a
litigation-prosecution successful in proving its
case-and the motive-prior enmity.

Appeal dismissed. (E-9)

List of Cases cited:

1. Sudhakar Vs State: (2018) 5 SCC 435

2. Gumansinh & ors. Vs The St. of Guj.: AIR 2021 SC 4174
(Delivered by Hon'ble Ramesh Sinha, J.)

(1) Four accused persons, namely, Barjor,
Satti, Nawab and Vidya were tried by V
Additional Sessions Judge, Unnao in Sessions
Trial No. 180 of 1994 : State Vs. Barjor and others
arising out of Case Crime No. 56 of 1983, under
Section 302 read with 34 of the Indian Penal Code,
Police Station Auras, District Unnao. Vide
judgment and order dated 28.01.1985, the V
Additional Sessions Judge, Unnao convicted the
accused/ appellants under Section 302 read with
Section 34 of the Indian Penal Code and sentenced
them to undergo life imprisonment.

(2) Feeling aggrieved by the aforesaid
judgment and order dated 28.01.1985, convict/
appellant, Barjor, has preferred the instant
criminal appeal under Section 374 (2) Code of
Criminal Procedure, 1973 (hereinafter referred to
as "Cr.P.C."), whereas other three convict/
appellants, Satti, Nawab and Vidya, preferred
Criminal Appeal No. 129 of 1985 under Section
374 (2) of the Code of Criminal Procedure.

(3) It transpires from the record that during
pendency of the aforesaid criminal appeals, co-
11 All. Barjor Vs. State of U.P.
841
convict/appellants, Satti, Nawab and Vidya,
died, hence Criminal Appeal No.129 of 1985
was dismissed as abated by Co-ordinate Bench
of this Court vide order dated 6.3.2020 passed in
Criminal Appeal No. 129 of 1985. In this
background, this Court proceed to decide the
instant appeal on behalf of present surviving
appellant-Barjor.

(4) The facts as unfolded by the
prosecution, in short conspectus, are as under :-

The informant/Darshan (P.W.1) son of
Lalu Yadav is the resident of Village Saidapur,
Police Station Auras, District Unnao. On
03.09.1983, informant/Darshan (P.W.1), his
uncles, namely, Daya Shanker (deceased) and
Ram Asrey (P.W.4) had gone to the market of
Village Ajgaon. In the market, Radhey Shyam,
who is the son of Daya Shanker (deceased), also
came
from
Hyderabad
after
schooling.
Subsequently, after purchasing certain items, all
of them were returning to their home. On the
way, Mahaveer (P.W.7) started talking with his
uncle Daya Shanker (deceased) about the field
which was given to him on batai and informantDarshan (P.W.1), his uncle Ram Asrey (P.W.4)
and Radhey Shyam were proceeding a little
ahead. When Daya Shanker (deceased) had
reached the southern passage of the field of
Babu Pasi, which is situated at village Ajigaon,
convict/appellant Barjor came from behind Daya
Shanker (deceased) and started beating him with
lathi, whereupon Daya Shanker (deceased) holds
the lathi of convict/appellant Barjor. Thereafter,
informant-Darshan (P.W.1), his uncle Ram
Asrey (P.W.4) and Radhey Shyam, after raising
alarm, ran. In the meantime, convict/appellant
Nawab armed with gun, convict/appellant Satti
armed with pistol and convict/appellant Vidya
armed with lathi were started running from
North-East and South corner, respectively, from
the field of maize. Thereafter, convict/appellants
Satti and Nawab fired on the deceased (Daya
Shanker), who, after sustaining injuries, fell
down there and on hearing the noise of fire,
informant Darshan, P.W.4-Ram Asrey and
Radhey Shyam stopped there due to afraid.
Then, all the convict/appellants started beating
the deceased with lathis. Thereafter, on seeing
the crowd, which had assembled there, the
convict/appellants ran away from the spot. The
deceased was a Village Pradhan in Village
Saidapur and convict/appellants were residents
of the same village. There was prior animosity
between them because the convict/appellants
had illegally taken possession of Gaon Samaj
land.

(5) The informant-Darshan got the FIR
scribed by Ram Vilash (P.W.5), who after
scribing it read it over to him. He, thereafter,
affixed his thumb impression on it and, then,
proceeded to Police Station Auras, which was
situated at a distance of three miles from the
place of occurrence and lodged it at 06:45 p.m.
at the police station Auras.

(6) The evidence of Constable Om Prakash
(P.W.6) shows that on 3.9.1983 (on the date of
incident), he was posted at Police Station Auras.
On the basis of written report (Ext. Ka. 1)
submitted by Darshan (P.W.1), a chik report
(Ext. Ka.2) was prepared by him and the case
was registered as Case Crime No. 75 of 1983,
under Section 302 I.P.C. at police station Auras,
District Unnao, which was entered in G.D.
Report No.24 (Ext. Ka. 3). In the crossexamination, he deposed that Darshan (P.W.1)
did not stay at Police Station in the night and he
had left Police Station even before departure of
the Investigating Officer.

(7) The evidence of P.W.9-S.I. Raghuraj
Singh shows that he was posted at Police Station
Auras on 03.09.1983. The case was registered in
his presence and thereafter, he investigated it.
He took the statement of Informant P.W.1Darshan at the police station itself. He reached at
the place of occurrence at 09:00 p.m. by
842 INDIAN LAW REPORTS ALLAHABAD SERIES
motorcycle but due to lack of light in the night,
he did not prepare panchayatnama, however, he
interrogated Radhey Shayam and Ram Bilas
(P.W.5) in the night. On 04.09.1983, at about
06:00 a.m., he prepared pachayatnama of the
deadbody of Daya Shanker in the presence of
Satyakumar, Hiralal, Bachanu, Ramadhar, Ram
Singh. This panchayatnama (Ext. Ka. 5) was
written by S.I. Jageshwar Singh. He also
prepared challan lash (Ext. Ka.6) and photo lash
(Ext. Ka.7). He, thereafter, sent the corpse of the
deceased Daya Shanker in a sealed cover for
post-mortem through Constable Ramesh Singh
and Churamani. He also recovered kurta and
towel of the deceased and sealed it under
recovery memo (Ext. Ka. 10). He also recovered
Potato and Guava placed near the deadbody of
the deceased and sealed it under recovery memo
(Ext. Ka.11). He also recovered bidi, matchbox,
one rupee and fifty paise from the kurta and
shoes of the deceased and sealed it under
recovery memo (Ext. Ka. 12). He recovered
umbrella placed near the dead body of the
deceased and sealed it under recovery memo
(Ext. Ka. 13). From the place of incident, he
seized plain and bloodstained earth in separate
containers under a recovery memo (Ext. Ka. 14).
He also recovered two empty cartridges and
sealed it under recovery memo (Ext. Ka.15). He
inspected the place of occurrence and prepared
site plan (Ext. Ka. 16). He, thereafter,
interrogated Mohanlal, Kunwarpal and Bhikhari
and their statements were marked as Ext. Ka 17
to Ext. Ka. 19. Thereafter, he searched the
accused persons but he did not find them.
Subsequently, after completion of investigation,
he submitted the charge-sheet (Ext. Ka. 20)
against the accused persons under Section 302
read with Section 34 of the Indian Penal Code
before the Court concerned.

In his cross-examination, P.W.9-S.I.
Raghuraj Singh has denied the suggestion that chik
report, panchayatnama and other documents were
prepared on the advice of the police. He deposed
that S.I. Jageshwar Singh was in his police station.
He searched the accused persons and prepared the
recovery memo. He recognized the written and
signature of S.I. Jageshwar Singh. In column no. 3
of the challan lash (Ext. Ka. 6), ''X' was appended.
The distance between the place of occurrence to
the place of police station in the pachayatnama
was 3 kms. and in the challan lash it was written as
6 metres. He went to the place of occurrence by
motorcycle and the distance of that road is 4-6
kilometers and the direct way is 3 kms. He denied
the suggestion that at the time of panchayatnama,
chick report was not with him.

(8) The post-mortem on the dead body of
deceased Daya Shanker was conducted on
04.09.1983, at 4.15 p.m., by Dr. S.P. Rastogi
(P.W.8), who found on his person ante-mortem
injuries which are enumerated hereinafter :-

"(i) Lacerated wound 2" x 1⁄2" transverse
in nature, bone deep present on the right side scalp
front part 1 1⁄2 right to the midline.

(ii) Lacerated wound 1 1⁄2 x 0.5" x bone
deep present on right side scalp front part 1⁄2" back
to the injure no. one, 1 1⁄2" right to the midline.

(iii) Lacerated wound oblique in nature 2
1⁄2 x 0.5" x brain cavity deep present 3" right to the
midline, 2" above the right ear, 3 1⁄2" area away
from right eyebrow, brain matter coming out.

(iv) Lacerated wound 1" x 1" x bone
deep present on left side chin 1" left to the midline,
underlying bone fractured.

(v) Lacerated wound 1⁄2" x 1⁄2" x bone
deep present 0.5" medial to the medial canthus of
right eye, at bridge of nose.

(vi) Lacerated wound 1" x 1⁄2" x lips
deep, present on the right side upper lip, 2" right
to midline, mucous membrane also lacerated of
inner aspect.

(vii) Multiple fire arm entrance wound
in an area 4" x 2 1⁄2" present on the upper part of
right upper arm at its fronto lateral aspect, 3 1⁄2"
above the right elbow joint each wound having
size 0.2" x 0.2" to 0.3" x 0.3" skin and muscle
11 All. Barjor Vs. State of U.P.
843
deep, inverted margin, no blackening and
tatooing present.

(viii) Multiple fire arm entrace wound
present in an area 5" x 3" present on the right
side chest upper part, 1⁄2" above the right nipple
and 1⁄2" below the lateral 2/3" of right clavicle,
each wound having size 0.2" x 0.2" to 0.3" x
0.3" chest deep, inverted margin, no blackening
and tatooing present.

(ix) Multiple abraded contusion in an
area 6" x 6" present on right side face below the
right lower eyebrow, up to the lower jaw, under
lying bone fractured into pieces."

The cause of death spelt out in the
autopsy report of the deceased person was coma
as a result of head injury.

(9) It is significant to mention that in his
deposition in the trial Court, Dr. S.P. Rastogi
(P.W. 8) has reiterated the said cause of death
and also stated therein that on internal
examination of the dead body of the deceased,
he found that upper portion of the right chest
was punctured. He further stated that he found
twenty two small pellets in the muscle of right
arm and also twenty two more pellets were
recovered from the body and they were sealed.
He opined that the death of the deceased could
be done on 3.9.1983 at 5 p.m. He prepared the
post mortem report as Ext. Ka-5. This witness
has also proved the post-mortem examination.

(10) The case was committed to the Court
of Sessions by the Chief Judicial Magistrate on
09.09.1984 and the trial Court framed charge
against convict/appellants under Section 302
read with Section 34 of the Indian Penal Code.
They pleaded not guilty to the charges and
claimed to be tried. Their defence was of denial.

(11) During trial, in all, the prosecution
examined
09
witnesses,
namely,
P.W.1,
informant Darshan, P.W.2-Mohan Lal, P.W.3-
Kunwar Pal, P.W.4-Ram Asrey, P.W.5-Ram
Vilas, P.W.6-Om Prakash, P.W.7-Mahaveer,
P.W.8-Dr. S.P. Rastogi, P.W.9, Raghuraj Singh
Sachan.

(12) We would first like to deal with the
evidence of P.W. 1-Darshan. P.W.1, Darshan,
who is informant and nephew of the deceased,
while deposing before the Court, has stated that
accused Barjor and Satti are the sons of Sheo Pal
while accused Vidya is the son of Mahaveer
(P.W.7) and Mahaveer and Sheo Pal were real
brothers as well as their wives were real sisters.
Therefore, the above three accused persons were
related to each other and accused Nawab was
their friend. He further stated that there was
previous enmity between his uncle (deceasedDaya Shanker) and accused persons with regard
to Gram Samaj land which was illegally
occupied by accused persons and deceased
wanted to get a panchayat-ghar constructed
thereupon. He further stated that he was an eyewitness to the murder of his uncle by accused
persons. He specifically deposed that while he
was returning from the market along with
Radhey
Shyam,
P.W.4-Ram
Ashrey
and
deceased (Daya Shanker) they met with P.W.7Mahaveer.
While
P.W.7-
Mahaveer
and
deceased (Daya Shanker) continuously talking,
he along with others went few paces ahead. On
shouting of deceased (Daya Shanker), he saw
the tussle between accused/appellant Barjor and
Daya Shanker (deceased) and also there was
snatching of lathi between them. He further
deposed that when he along with Radhey Shyam
and P.W.4- Ram Ashrey moved towards
deceased (Daya Shanker) then from the north
direction, other accused Nawab armed with
country made pistol and from the south direction
accused Vidya armed with lathi and accused
Satti armed with pistol came running. Accused
Satti and Nawab fired on deceased (Daya
Shanker), thereafter, accused Barjor and Vidya
hit the deceased with lathis. On hearing the gun
shot, he was scared and stayed 100 paces away
from the place of incident. Because of fire shot,
deceased (Daya Shanker) fell on the ground and
844 INDIAN LAW REPORTS ALLAHABAD SERIES
then all four accused escaped in the north
direction. Thereafter, on reaching near deceased
(Daya Shanker), they found him to be dead. He
next deposed that there were many persons
walking near the place of incident and P.W.2Mohan and P.W.3-Kunwar Pal also witnessed
the incident. Then he went to the Police Station
Auras, District Unnao, on the very same day at
about 6.45 p.m. and got a written report typed.
He gave that written report at Police Station
which was shown to him and proved as exhibit
ka-1. Chik report was prepared on the basis of
the aforesaid written report. In his crossexamination, he denied the suggestion that he
was not an eye-witness to the incident and he
had lodged a false case making his relatives as
eyewitnesses to the incident.

(13) P.W.2, Mohan Lal deposed that the
Daya Shanker (deceased) was not murdered in
front of him. He testified that he was present at
market on the day of incident and saw the tussle
between
Daya
Shanker
(deceased)
and
accused/appellant Barjor. He further stated that
other accused Nawab armed with gun, accused
Satti armed with Tamancha and accused Vidya
armed with lathi had come and accused Nawab
and Satti fired at Daya Shanker (deceased) and
accused Barjor and Vidya were beating with
lathi. He further stated that informant Darshan
(P.W.1), Ram Ashrey (P.W.4) and Radhey
Shyam were present at the place of occurrence.

(14) P.W.3, Kunwar Pal stated that he was
not present at the place of occurrence. The
Inspector came to the Village but did not
question him. He further stated that when he
came to market with Mohan Lal (P.W.2),
accused Barjor gave his bundle. He further
denied saying that accused Barjor and Vidya
armed with lathi and accused Nawab and Satti
armed with gun and katta had killed Daya
shanker (deceased). The witness stated that he
had no information as to who Sub-Inspector
wrote any such thing.

(15) P.W.4, Ram Ashrey, who is real
brother of deceased (Daya Shanker), deposed
that incident dates back to one year, one month
ago at about 5 p.m. when he alongwith Darshan
(P.W.1) and Daya Shanker (deceased) returned
from the market. Daya Shankar (deceased)
started talking to Mahaveer (P.W.7) near the
field then the rest of us were walking slowly.
When he reached near Hiralal's field, accused
Nawab, Barjor, Vidya and Satti started beating
Daya Shanker (deceased). Accused Nawab was
armed with country made pistol and Satti armed
with katta and rest were armed with lathi. First
the accused, who were armed with gun fired at
Daya Shanker (deceased) then all of them started
beating Daya Shanker (deceased) with lathis. He
further deposed that seeing the fight, he was
afraid and could not go near his brother. At the
spot, Ram Singh, Buchai Pasi and Chhutai had
come and none of them could say anything
because of fear. Mohan Lal (P.W.2) and Kuwar
Pal (P.W.3) had come later. When he went to the
spot the accused persons had fled and Daya
Shanker was dead. The Investigating Officer
came to the spot around 8 o'clock in the night.

(16) P.W.5, Ram Vilas, deposed that he
wrote a report on the dictation of Darshan
(P.W.1). Thereafter, it was narrated to Darshan
(P.W.1). The report was written and also signed
by him. He further stated that when he was
writing the report, the Sub-Inspector was not
present there. He denied the suggestion that
report was written on the dictation of any police
personnel.

(17) P.W.7, Mahaveer, deposed that he
knew Daya Shanker (deceased). He had taken
field of deceased (Daya Shanker) on batai. He
didn't see the murder of Daya Shankar
(deceased). He stated that he and Daya Shanker
(deceased) had a crop of maize. Daya Shankar
came to his farm on his way back from the
market. Daya Shanker (deceased) had told him
that the maize is ready but to wait for 15 more
11 All. Barjor Vs. State of U.P.
845
days. Saying this, he went round the maide of
his farm. He denied hearing any sound of gun
shot.

(18) Heard Mr. Brijesh Kumar Yadav,
learned counsel for the appellant, Sri Arunendra,
learned Additional Government Advocate for
the State and perused the record.

(19) Learned counsel for appellant has
submitted that the appellant has been falsely
implicated in this case because of previous
animosity between the parties. The prosecution
has not been able to prove its case beyond
reasonable doubt. He has further submitted that
evidence of the prosecution witnesses is
contradictory. The two eye-witnesses P.W.1Darshan, who is informant of the present case
and nephew of the deceased and P.W.4-Ram
Ashrey, who is real brother of the deceased, are
highly interested and partitioned witnesses and
relative of deceased, hence their evidence is
unworthy and cannot be believed. He further
submits that the trial court committed an error
while convicting and sentencing the appellant on
the basis of such a contradictory evidence. He
further argued that other independent eyewitnesses P.W.2- Mohan Lal, P.W.3- Kunwar
Pal and P.W.7-Mahaveer had turned hostile. He
next submitted that the appellant as on date is an
old man aged about 70 years and he has no
criminal antecedents.

(20) Shri Arunendra, learned A.G.A.
appearing on behalf of the State, however,
supported the judgment of the trial Court and
submits that there was no occasion for this Court
to interfere it. He argued that the appellant and
accused Vidya had assaulted the deceased with
lathis, whereas two co-accused fired shot on the
deceased and also assaulted the deceased with
lathis. The ocular testimony of P.W.1 and P.W.4
is fully supported the postmortem report of the
deceased (Daya Shanker), who have received
injuries by both lathis and fire arm weapon. He
further submits that the argument of learned
counsel for appellant that P.W.1- Darshan and
P.W.4- Ram Ashrey are highly interested and
partitioned witnesses and they are relatives of the
deceased, cannot be a ground to disbelieve the
evidence as there was no occasion for them to
falsely implicate the appellant in the present case.
It is further submitted that so far as the old age of
the appellant and his clean antecedents are
concerned, it is also not a relevant consideration
for acquitting him from all the charges as the
appellant's participation in the crime is evident
from the evidence of P.W.1- Darshan and P.W.4-
Ram Ashrey, hence the present appeal on behalf
of appellant is liable to be dismissed.

(21) The next submission of the learned
A.G.A. is that both P.W.1-Darshan and P.W.4Ram Ashrey, have explained their presence along
with the deceased on the spot. P.W.7-Mahaveer
has also supported the prosecution story. The trial
Court, after examining the evidences of P.W.1Darshan
and
P.W.7-Mahaveer
and
also
considering the fact that the Investigating Officer
had found a bag in which there were some
potatoes and guavas and its memo was prepared
by them, has recorded specific finding of fact that
the deceased and P.W.1-Darshan and Ram
Ashrey (P.W.4) were returning from the market
of Ajgaon. He further submits that the testimonies
of P.W.1-Darshan and Ram Ashrey (P.W.4) are
trustworthy and credential because both of them
have stated in their statement that the appellant
had assaulted the deceased by lathi. He submits
that the trial Court has rightly convicted the
appellant under Section 302 read with Section 34
of the Indian Penal Code and sentenced him to
undergo life imprisonment.

(22) We have examined the submissions
advanced by the learned Counsel for the parties
and gone through record.

(23) The appellant has asserted that P.W.1Darshan and P.W.4-Ram Ashrey are having
846 INDIAN LAW REPORTS ALLAHABAD SERIES
relations with the deceased and no independent
witness has been examined, therefore, the
adverse inference can be drawn against the
prosecution and the evidence of P.W.1 Darshan
and P.W.4 Ram Ashrey is not trustworthy as
they are not present at the place of occurrence.

(24) The criminal law jurisprudence makes
a clear distinction between a related and
interested witness. A witness cannot be said to
be an "interested" witness merely by virtue of
being a relative of the victim. The witness may
be called "interested" only when he or she
derives some benefit from the result of a
litigation in the decree in a civil case, or in
seeing an accused person punished as held by
the Apex Court in Sudhakar Vs. State : (2018)
5 SCC 435.

(25) At this juncture, we deem it apt to
make reference to the recent judgment of
Supreme Court, dealing with the question of
interested witnesses.

(26) In the case of Gumansinh and Ors.
vs. The State of Gujarat: AIR 2021 SC 4174,
the Apex Court in paragraph 22, 23 and 26
observed as under :-

 "22. However, when the Court has to
appreciate the evidence of any interested witness
it has to be very cautious in weighing their
evidence or in other words, the evidence of an
interested witness requires a scrutiny with
utmost care and caution. The Court is required
to address itself whether there are any
infirmities in the evidence of such a witness;
whether the evidence is reliable, trust-worthy
and inspires the confidence of the Court.
Another important aspect to be considered while
analyzing the evidence of interested witness is
whether the genesis of the crime unfolded by
such evidence is probable or not. If the evidence
of any interested witness/relative on a careful
scrutiny by the Court is found to be consistent
and trust-worthy, free from infirmities or any
embellishment that inspires the confidence of the
Court, there is no reason not to place reliance
on the same.

23. A three-Judge Bench of this Court
in the case of Maranadu and Anr. v. State by
Inspector of Police, Tamil Nadu (2008) 16 SCC
529, while considering this issue, has observed
as under:

Merely because the eyewitnesses are
family members their evidence cannot per se be
discarded.
When
there
is allegation
of
interestedness, the same has to be established.
Mere statement that being relatives of the
deceased they are likely to falsely implicate the
Accused cannot be a ground to discard the
evidence which is otherwise cogent and
credible. We shall also deal with the contention
regarding interestedness of the witnesses for
furthering prosecution version.

....Relationship is not a factor to affect
credibility of a witness. It is more often than not
that a relation would not conceal actual culprit
and make allegations against an innocent
person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has
to adopt a careful approach and analyse
evidence to find out whether it is cogent and
credible.

11. In Dalip Singh and Ors. v. The
State of Punjab : (AIR 1953 SC 364) it has been
laid down as under:

26. A witness is normally to be
considered independent unless he or she springs
from sources which are likely to be tainted and
that usually means unless the witness has cause,
such as enmity against the Accused, to wish to
implicate him falsely. Ordinarily a close relation
would be the last to screen the real culprit and
falsely implicate an innocent person. It is true,
when feelings run high and there is personal
cause for enmity, that there is a tendency to drag
in an innocent person against whom a witness
has a grudge along with the guilty, but
11 All. Barjor Vs. State of U.P.
847
foundation must be laid for such a criticism and
the mere fact of relationship far from being a
foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalization. Each case must be judged on its
own facts. Our observations are only made to
combat what is so often put forward in cases
before us as a general Rule of prudence. There
is no such general rule. Each case must be
limited to and be governed by its own facts.

The above decision has since been
followed in Guli Chand and Ors. v. State of
Rajasthan 1974 (3) SCC 698) in which
Vadivelu Thevar v. State of Madras ( AIR
1957 SC 614) was also relied upon.

13. We may also observe that the
ground that the witness being a close
relative and consequently being a partisan
witness, should not be relied upon, has no
substance. This theory was repelled by this
Court as early as in Dalip Singh's case
(supra) in which surprise was expressed
over the impression which prevailed in the
minds of the Members of the Bar that
relatives were not independent witnesses.
Speaking through Vivian Bose, J. it was
observed:

25. We are unable to agree with the
learned Judges of the High Court that the
testimony of the two eyewitnesses requires
corroboration. If the foundation for such an
observation is based on the fact that the
witnesses are women and that the fate of
seven men hangs on their testimony, we
know of no such rule. If it is grounded on
the reason that they are closely related to
the deceased we are unable to concur. This
is a fallacy common to many criminal cases
and one which another Bench of this Court
endeavoured to dispel in -`Rameshwar v.
State of Rajasthan' : (AIR 1952 SC 54 at p.
59). We find, however, that it unfortunately
still persists, if not in the judgments of the
Courts, at any rate in the arguments of
counsel.

14. Again in Masalti and Ors. v.
State of U.P. : (AIR 1965 SC 202) this Court
observed: (p. 209-210 para 14):

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. No hard and fast Rule can be
laid down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but the
plea that such evidence should be rejected
because it is partisan cannot be accepted as
correct.

15. To the same effect is the decisions
in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3)
SCC 76) and Gangadhar Behera and Ors. v.
State of Orissa ( 2002 (8) SCC 381).

(27) In the instant case, it transpires from the
record that both the eye-witnesses, namely, P.W.1Darshan and P.W.4-Ram Ashrey, have categorically
stated in their depositions that they had gone to the
market of Ajgaon along with the deceased and while
they were returning from the market to their house
along with the deceased Daya Shanker, in the way,
deceased Daya Shanker started talking with Mahavir
in respect of the issue of batai of the crops standing
on the field of the deceased which was irrigated by
Mahavir, however, they (P.W.1, P.W.4) proceeded
onward. In the meantime, the deceased was grappling
with appellant-Barjor for taking away lathi, which
was with the accused/appellant Barjor. Thereafter,
the deceased had cried for his help but in the
meantime, other accused persons, namely, Satti
armed with gun, Nawab armed with pistol and Vidya
armed with Lathi also arrived. Thereafter, accused
Satti and Nabab fired on the deceased Daya Shanker,
as a consequence thereof, deceased Daya Shanker
had
fallen
on
the
ground.
Subsequently,
accused/appellant Barjor and accused Vidya had
848 INDIAN LAW REPORTS ALLAHABAD SERIES
assaulted the deceased Daya Shanker with lathi.
Though P.W.1-Darshan had tried to approach the
deceased but when he heard the gun-shots, he and
Ram Ashrey (P.W.4) were frightened and they
stopped at a distance of about 100 paces. Thereafter,
on seeing P.W.1-Darshan, P.W.4-Ram Ashrey and
other persons came nearer to them, the accused
persons ran away from the spot. Thereafter, when
P.W.1-Darshan, P.W.4-Ram Ashrey and others, who
were at a little distance, came, then, they found that
deceased Daya Shanker was dead. The statement of
P.W.4-Ram Ashrey is also in the aforesaid terms.
P.W.9-S.I. Raghuraj Singh, who is the Investigating
Officer of the case, has stated in his examination-inchief that he has recovered potato and guava from the
place where the deadbody of the deceased was lying
under recovery memo (Ext. Ka. 11). It is not the case
of the appellant that the recovered potato and guava
from the place of deadbody of the deceased, was
planted.

(28) Going by the corroborative statements of
P.W.1-Darshan and P.W.4-Ram Asrey, it is
discernible that though they are related to each other
and to the deceased as well, their evidence cannot
discarded by simply labelling them as ''interested' or
witnesses. After thoroughly scrutinizing their
evidence, we do not find any direct or indirect interest
of these witnesses to get the accused/appellant by
falsely implicating him so as to meet out any vested
interest. We are, therefore, of the considered view
that the evidences of P.W.1- Darshan and P.W.4-
Ram Ashrey are quite reliable and we see no reason
to disbelieve them.

(29) In respect of forensic evidence, P.W.8-Dr.
S.P. Rastogi, who conducted the post-mortem of the
deadbody of the deceased, found six lacerated
wounds, two multiple fire arm entry wounds and one
multiple abraded contusion on the body of the
deceased and opined that the deceased died due to
coma as a result of head injury. The post-mortem
report confirms the injuries occurred on the head of
the deceased was by the blunt object like lathi. The
ownership of the lathi has not been disputed by the
appellant in his statement under Section 313 of the
Cr.P.C.

(30) In the present case, the prosecution has
been successful in proving the motive. There was a
prior long-time enmity between the deceased and the
accused/appellant. The accused/appellant has failed
to prove any circumstances by which it can be said
that he is falsely implicated in the case.

(31) In view of the aforesaid discussions, this
Court is in agreement with the findings of the learned
trial Court and sees no reason to interfere with the
impugned judgment and order dated 28.1.1985
passed by the trial Court convicting and sentencing
the accused/appellant for the offence under Section
302 read with Section 34 I.P.C.

(32) The instant criminal appeal is, accordingly,
dismissed. The appellant is in jail and and he shall
serve out the remaining sentence as ordered by the
trial Court.

(33) Let the lower court record along with
certified copy of the present order be transmitted to
the trial court concerned for necessary information
and compliance forthwith.
----------
(2021)12ILR A848
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 622 of 1982
Connected with
Criminal Appeal No. 623 of 1982

Abbul Hasan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant: