# Bateshwari and others v. State of U.P

- **Citation:** (2008) 1 ILRA 86
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-06
- **Case number:** Criminal Appeal No. 2289 of 1982
- **Bench:** Sushil Harkauli, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bateshwari-and-others-v-state-of-u-p-40995
- **Pages:** 8

## Headnote

Code
of
Criminal
Procedure-Criminal
Appeal-offence under Section 302(34
1 All] Bateshwari and others V. State of U.P.
87
I.P.C.)
conviction-challenged
on
the
ground-the
witness
being
interested
witness-their
presence
itself
being
doubted as no effort made to save the
deceased-held-human
behaviour
depends upon man to man reaction in
particular manner-cannot be ground for
discarding
the
evidence-conviction
warrant
no
interference-appeal
dismissed.

Held: Para 15 & 21

In view of the aforesaid it cannot be said
that the eyewitnesses reacted in an
abnormal way or their statement cannot
be trustworthy only for the reason that
they did not react in the manner as
suggested or expected on behalf of the
accused or someone else.

As
pointed
out
above,
neither
the
deceased nor the witnesses had any
serious motive to falsely implicate the
accused, leaving out the real assailants.
On the other hand, the accused did have
a serious motive for carrying out the
assault. Further,as we have already
stated
above,
we
have
carefully
examined
the
testimony
of
the
eyewitnesses including their detailed
cross-examinations and we do not find
any thing substantial therein to cast any
serious doubt upon the testimony of
these eyewitnesses.
Case law discussed:
2003(46) ACC 584, 1983(3) SCC 327, 2002(8)
SCC 125, AIR 1953 SC 364, 1974(3) SCC 698,
AIR 1965 SC 202, 2005(Crl) SCC 1260.

## Text

86 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
money and is squandering government
funds, therefore, respondent no.5 has
sought information under the Right to
Information Act in order to bring to the
notice of the authority the fact that the
petitioner is not working in a democratic
manner, in accordance with the status and
is squandering government money. He
submits that the Management of any
institution can not be permitted to put a
word over the eyes of the public in the
garb of protection from the Right to
Information Act on the ground that it is a
private institution and is not amenable to
Right to Information Act which in fact is
otherwise as such protection would
frustrate the very object of the Act of
transparency and accountability of public
authority and private bodies in their
functioning from public eye.

18. In my opinion, whenever there is
even an ,iota of nexus regarding control
and finance of public authority over the
activity of a private body or institution or
an organization etc. the same would fall
under the provisions of Section 2(h) of the
Act. The provisions of the Act have to be
read in consonance and in harmony with
its objects and reasons given in the Act
which have to be given widest meaning in
order to ensure that unscrupulous persons
do not get benefits of concealment of their
illegal activities or illegal acts by being
exempted under the Act and are able to
hide nothing from the public. The
working of any such organization or
institution of any such private body
owned or under control of public
authority shall be amenable to the Right
to Information Act. The petitioner being
an institution recognized under the
provisions of U.P. High School and
Intermediate Education Act, 1929 and
receiving grant-in-aid from the State
Government is therefore, covered under
the aforesaid Act.

For the reasons stated above, the writ
petition is dismissed.

19. It is directed that the institution
will provide information to respondent
no.5 through the DIOS, Ghaziabad within
a period of 15 days as already much time
has been consumed by the institution for
not supplying the required information
within the time prescribed under the Act.

20. Let a certified copy of this order
be supplied to the learned Standing
counsel for information to the DIOS,
Ghaziabad on free of cost.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2007

BEFORE
THE HON'BLE SUSHIL HARKAULI, J
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Appeal No. 2289 of 1982

Bateshwari and others
...Appellants
Versus
State of U.P.

 ...Respondent

Counsel for the Appellants:
Sri. P.N. Mishra
Sri. Kamal Krishna
Sri. S.D.N. Singh
Sri. Krishna Kapoor
Sri. Dilip Kumar
Sri. Rajeev Gupta

Counsel for the Respondent:
A.G.A.

Code
of
Criminal
Procedure-Criminal
Appeal-offence under Section 302(34
1 All] Bateshwari and others V. State of U.P.
87
I.P.C.)
conviction-challenged
on
the
ground-the
witness
being
interested
witness-their
presence
itself
being
doubted as no effort made to save the
deceased-held-human
behaviour
depends upon man to man reaction in
particular manner-cannot be ground for
discarding
the
evidence-conviction
warrant
no
interference-appeal
dismissed.

Held: Para 15 & 21

In view of the aforesaid it cannot be said
that the eyewitnesses reacted in an
abnormal way or their statement cannot
be trustworthy only for the reason that
they did not react in the manner as
suggested or expected on behalf of the
accused or someone else.

As
pointed
out
above,
neither
the
deceased nor the witnesses had any
serious motive to falsely implicate the
accused, leaving out the real assailants.
On the other hand, the accused did have
a serious motive for carrying out the
assault. Further,as we have already
stated
above,
we
have
carefully
examined
the
testimony
of
the
eyewitnesses including their detailed
cross-examinations and we do not find
any thing substantial therein to cast any
serious doubt upon the testimony of
these eyewitnesses.
Case law discussed:
2003(46) ACC 584, 1983(3) SCC 327, 2002(8)
SCC 125, AIR 1953 SC 364, 1974(3) SCC 698,
AIR 1965 SC 202, 2005(Crl) SCC 1260.

(Delivered by Hon'ble Sushil Harkauli, J.)

1. All the three appellants have been
convicted under Section 302/34 I.P.C. and
have been sentenced to undergo life
imprisonment by the impugned judgment
and order dated 8.9.1982, passed by the
VIII Additional Sessions Judge, Agra, in
Sessions Trials No. 327 of 1980, 452 of
1980 and 441 of 1981 by a common
judgment.

2. In brief, the prosecution story is
that on 18.1.1980 at about 6.00 P.M.
when the deceased, Mauji Ram, was
returning to his house from the local
market, he was stopped and caught hold
of by accused Ram Babu and Shyam Sabu
and assaulted with knives by both the
accused. Simulaneously, the father of the
aforesaid two accused, viz. Bateshwari,
and accused Gyan Singh son of Jinshi
came up from behind the deceased and
they also assaulted the deceased with
knives. The deceased died on the spot as a
result of the multiple injuries received on
his person, and the accused ran away
Shyam Babu, accused, has died. The
remaining three accused have been tried
and sentenced, as stated above.

3. The incident was witnessed by the
daughter of the deceased, Vidya,who was
accompanying the deceased and who at
that time was aged about 11-12 years. The
incident was also witnessed by Subedar,
nephew of the deceased, who was also
accompanying the deceased.

4. The F.I.R. of the incident was
lodged at 8.10 P.M. on the same day at
police station located at a distance of
about 2 miles to the west of the spot of
incident. The Investigating Officer went
to the spot at night but could not continue
investigation because there was no light.
The inquest report was prepared at about
7.30 A.M. the next morning, i.e. on
19.1.1980 and the body sent for postmortem. The post-mortem was conducted
the next day, i.e. on 20.1.1980. In the
post-mortem examination the follow mg
injuries were found on the body of the
deceased:
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

1. Incised wound 3/4" x 2/10" x
1/10" on the left side head 3-1/2" above
left ear.

2. Incised wound 1/4" x 2/10" x
muscle deep on the front of left forearm
3/4" below elbow.

3. Incised wound 2" x 9/10" x ulna
bone (cut) on the back and inner of left
forearm 4" below elbow.

4. Incised wound 1-1/2" x 4/10" x
muscle deep on the front of right thigh 11/2" above knee.

5. Incised wound 1-1/2" x 3/10" x
muscle deep on the inner side of left thigh
2-1/4" above knee.

6. Stab wound 1" x 4/10" x abdomen
cavity deep on the left side upper
abdomen, just below subcostal margin,
upper end is contused, lower end is acute
nearby vertical.

7. Stab wound 2" x 3/4" x abdomen
cavity deep on the front of left side
abdomen 3/4" inner to injury no. 6, upper
end contused, lower acute angle, loops of
intestines coming out.

8. Stab wound 1" x 4/10" x abdomen
cavity deep on left side abdomen 1-1/2"
outer to umbilicus, upper end is contused,
lower end is acute, loops of intestine
coming out.

9. Stab wound 1-1/2" x 3/4" x
abdomen cavity deep on the left side
abdomen 1/2" outer to umbilicus, upper
end is contused, lower end is acute, loops
of intestine coming out.

10. Stab wound 1" x 2/10" x
abdomen cavity deep on the upper
abdomen at its midline 2-1/2" above
umblicus, obliquely transverse, intestine
abdomen 6-1/2" long obliquely from right
side front of chest going the upper end of
stab wound.

11. Stab wound 2" x 4/10" x
abdomen cavity deep on the right side
abdomen 1-1/2" outer to injury No. 10
upper end is contused, lower end is acute,
intestine loops are coming out.

12. Incised wound 4/10" x 1/10" x
muscle deep on the right side abdomen
3/4" middle lower to injury no. 11.

13. Stab wound 1" x 4/10" abdomen
cavity deep on right side front lower
abdomen just above, right side anterior
superior ulna spine.

14. Incised wound 1" x 3/4" x muscle
deep on the outer part of left shoulder, 1"
below its top.

15. Incised wound 3/10" x 1/10" x
skin deep on the back of left lip upper
third.

5.

The
Investigating
Officer
prepared a site plan and after completing
investigation
a
charge-sheet
was
submitted. Apart from blood stained earth
and plain earth being collected from the
spot, a bicycle and a blanket left behind
by the accused while running away were
also recovered by the Investigating
Officer and a recovery memo was
prepared.

6. The informant, Niranjan, was
examined as P.W. 1, the eyewitness
daughter of the deceased, Vidya, was
1 All] Bateshwari and others V. State of U.P.
89
examined as P.W. 2 and the other
eyewitness Subedar was examined as
P.W. 3. Dr. S.P. Misra, who conducted
the post-mortem, was examined as P.W.
4. The affidavit of the Constable Raja
Ram, who took the dead body to mortuary
for post-mortem, was filed as P.W. 5 and
the Investigating Officer was examined as
P.W. 6. All the evidence was recorded in
leading S.T. No. 327 of 1980. In S.T. No.
441 of 1981 Constable Raja Ram was
examined as P.W. 5 and NarsinghYadav
was examined as P.W. 6 to prove the
F.I.R. and the General Diary entry about
registration of the case. In S.T. No. 441 of
1981 the Investigating Officer was not
examined.

The accused did not give any
evidence in defence.

7. The first three witnesses, viz.
P.W.l to P.W.3, have supported the
prosecution story and so far as we have
been able to see nothing worthwhile has
been elicited from any of these witnesses
during cross-examination so as to create
any serious doubt on their testimony with
respect to the essential and main facts of
the incident.

8. During arguments in this appeal,
learned
counsel
for
the
appellants
submitted that the F.I.R. appears to be
ante-timed pursuant to an attempt by the
prosecution to shift back the time of
incident to the alleged 6.00 P.M. During
arguments, the suggestion of learned
counsel for the appellants was that the
deceased was assaulted later in that
evening sometime during the darkness
and that is why the inquest report was
prepared the next morning and the postmortem was delayed. In the month of
January darkness must have fallen at
around 7.00 P.M. leaving visibility poor.
In fact the informant PW I was given
repeated suggestions in an attempt to
make out such a case, but the PW I has
remained firm throughout the cross
examination in his denials. We think, that
in the light of the denials by PW I and the
explanation by the Investigating Officer
PW 6 for not being able to carry out the
inquest proceedings at night, it is not
possible to believe the defence theory
about ante-timing of the incident.

9. Learned counsel also submitted
that the motive for the crime is also not
serious, viz. some altercation during a
marriage ceremony where the deceased
had been invited by the accused.

10. The last argument regarding
motive, referred above, is misconceived
and also factually incorrect. Apparently,
the real motive for the offence, as
mentioned in the F.I.R. itself, was a
suspicion on the part of the accused that
the deceased had been instrumental in
trying to get the sons of accused
Bateshwari, viz. accused Ram Babu and
Shyam Babu, arrested by the Delhi police.
Thus, the motive was to take revenge
against a suspected informer.

11. The nature and number of
injuries, which were found on the body of
the deceased indicate that the assault
could not have been by a single
individual. There also does not appear to
be any good reason why the real
assailants should be let off by the
daughter and nephew of the deceased and
instead they would falsely implicate the
appellants. The appellants had reason to
bear a serious grudge against the deceased
but apparently the informant or other
witnesses did not have any serious reason
90 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
to bear this kind of grudge against the
accused.
Learned
counsel
for
the
appellants also submitted that lack of any
injury on the body of eyewitnesses
indicates that they did not make any
attempt to save the deceased during the
assault, and therefore there presence at the
scene of crime should be doubted. For this
purpose reliance was placed from the side
of the appellants upon the decision of the
Supreme Court in State of Punjab v.
Such a Singh and others (2003 (46)
A.C.C. 584) and this Court's judgment in
Jagdeo Singh and others v. State (1979
A.Cr.R. 377).

12. Having examined the decisions
we are of the opinion that no such blanket
proposition of law has been laid down
therein. Whether an attempt to save the
deceased from the assault is likely to be
made by the eyewitnesses or not depends
upon several factors, viz. the closeness of
relationship, the nature of relationship, the
capacity of the witnesses to come out of
the shock after witnessing the incident,
the basic courage and selflessness of the
witnesses, etc. In the present case one of
the witnesses is the 11 year old daughter,
who, in the normal course of things,
would have been dumb-struck by the
nature and rapidity of the assault upon her
father, by four persons armed with knives.
The other eyewitness is the nephew of the
deceased, whose relationship. is not as
close as the relationship of father or
mother to their offspring. The third
eyewitness again is the brother of the
deceased, who has his own family to
protect instead of sacrificing his own life
also. Moreover, it was obvious that the
brother, by himself, could hardly be in a
position to put up a fight against the four
persons armed with knives.

13. Learned counsel for the
appellants submitted that it is unlikely that
the witnesses, particularly the informant,
would have walked to the police station
instead of going there on a bicycle. Hence
the FIR should be held to be delayed. This
argument does not appeal to us. Upon
witnessing an incident of this nature the
whole body and mind naturally falls in the
grip of shock and in such a condition a
person does not think very logically and
in such a state of shock the informant may
not have trusted himself to ride a bicycle.

14. We may further observe that the
aforesaid argument on behalf of the
appellants are more in the nature of
conjectures, ignoring the fact that human
behaviour may vary from person to
person. There is no set rule of reaction.
Everyone reacts in his own special way
and in what way a witness would have
reacted cannot be predicted. In Rana
Pratap v. State of Haryana, (1983) 3
SCC 327, the apex Court in para 6 of the
judgment held as under :

"6. Yet another reason given by the
learned Sessions Judge to doubt the
presence of the witnesses was that their
conduct in not going to the rescue of the
deceased when he was in the clutches of
the assailants was unnatural. We must say
that the comment is most unreal. Every
person who witnesses a murder reacts in
his own way. Some are stunned, become
speechless and stand rooted to the spot.
Some become hysteric and start wailing.
Some start shouting for help. Others run
away to keep themselves as far removed
from the spot as possible. Yet others rush
to the rescue of the victim, even going to
the
extent
of
counter-attacking
the
assailants. Every one reacts in his own
special way. There is no set rule of
1 All] Bateshwari and others V. State of U.P.
91
natural reaction. To discard the evidence
of a witness on the ground that he did not
react in any particular manner is to
appreciate
evidence
in
a
wholly
unrealistic and unimaginative way. "

In Bachittar Singh v. State of Punjab,
(2002) 8 SCC 125, observing on human
behaviour, the apex Court held:

"12. Human behaviour vary from
man to man. Different people behave and
react differently in different situations.
Human behaviour depends upon the facts
and circumstances of each case. How a
man would behave in a particular
situation, can never be predicted. In the
given circumstances, the behaviour of
Joginder Singh, PW 4 sleeping on the roof
of the house of Sukhwant Singh, after
seeing the accused armed with weapons
and hearing the firing, jumping from the
roof and running towards his Village
Mastewala to inform his father and family
members instead of loitering around in
the Village Dholewala and informing
somebody risking his life, is quite natural.
One should not forget that the incident
had happened at 1.00 a.m. and that at
that odd time, nobody would be readily
available to be informed without loss of
time. In the process, the life of the witness
would be at great risk. "

15. In view of the aforesaid it cannot
be said that the eyewitnesses reacted in an
abnormal way or their statement cannot
be trustworthy only for the reason that
they did not react in the manner as
suggested or expected on behalf of the
accused or someone else.

16. The Investigating Officer has
given a plausible reason for not being able
to proceed with the investigation, i.e. the
inquest, at night due to lack of light. He
has repelled the suggestion that light
could have been obtained from the nearby
places. Therefore, the inquest conducted
at 7.30, next day, in the morning during
the winter of January cannot be said to
suffer from any undue delay.

17. The repeat learned counsel for
the appellants also argued that there is no
independent witness and all the three
eyewitnesses are related to the deceased.
Mere relationship of a witness to the
deceased or complainant would not
suffice to discredit his evidence. The law
is well settled in this regard. The apex
Court in Dalip Singh v. State of Punjab,
AIR 1953 SC 364, in para 26 of the
judgment has 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 caused, such an 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
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.
92 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Each case must be limited to and be
governed by its own facts. "

18. The above decision has been
followed in Guli Chand v. State of
Rajasthan, (1974) 3 SCC 698.
In Masalti v. State of V.P., AIR 1965 SC
202, the apex Court held:

"But
it
would,
we
think,
be
reasonable to contend that evidence given
by witness 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. "

19. In Israr v. State of U.P., (2005)
SCC (Crl.) 1260, rejecting the concept of
discarding a witness on the ground of
relationship the Supreme Court in para 12
of the judgment held as under:

".........Relationship is not a factor to
affect credibility of a witness. It is more
often than not that a relation would not
conceal the 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."

20. Witnesses are the eyes and ears
of justice. Eyewitnesses' account would
require a careful independent assessment
and evaluation for their credibility and
must be tested for its inherent consistency
and the inherent probability of the story;
consistency with the account of other
witnesses
held
to
be
creditworthy;
consistency with the undisputed facts; the
'credit' of the witnesses; their performance
in the witness box; their power of
observation. Merely because a witness is
an interested witness is not by itself
sufficient to disbelieve him. What is to be
examined is whether the eyewitness who
has been produced is trustworthy and his
statement
is
consistent
with
the
undisputed facts.

21. As pointed out above, neither the
deceased nor the witnesses had any
serious motive to falsely implicate the
accused, leaving out the real assailants.
On the other hand, the accused did have a
serious motive for carrying out the
assault. Further, as we have already stated
above, we have carefully examined the
testimony of the eyewitnesses including
their detailed cross-examinations and we
do not find any thing substantial therein to
cast any serious doubt upon the testimony
of these eyewitnesses.

22. In these circumstances, we are of
the opinion that the appellants have been
rightly
convicted
and
sentenced.
Accordingly, the appeal is dismissed. The
conviction and sentence awarded by the
court below is maintained. The accusedappellants are on bail. Their bail is
cancelled. They will be taken into custody
forthwith to serve out the remaining part
of their sentence. Appeal Dismissed.
---------
1 All] The Chairman, District Board and another V. Labour Court and another
93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 34966 of 2001

The
Chairman,
District
Board,
Bulandshahr and another ...Petitioners
Versus
Labour Court-II, U.P., Ghaziabad and
another

...Respondents

Counsel for the Petitioners:
Sri. Suresh Chandra Dwivedi
Sri. W.H. Khan
Sri. Gulrez Khan, Sri J.H. Khan.

Counsel for the Respondents:
Sri. Siddarth, S.C.

U.P. Industrial Dispute Act-1947-Section
23-Rule 12-onus of proof-working of 240
days-wrongly shifted upon employerneither
workman
nor
the
presiding
officer summoned the documents nor
examined the witness-held-award given
by the labour court suffers apparent
error on the face of record.

Held: Para 13

In my opinion, the award of the labour
court suffers from an error apparent on
the face of record and illegality in
shifting the burden on the employer to
prove that the workman had not worked
for 240 days. It was the workman who
has
come
in
the
adjudication
proceedings
therefore
in
accordance
with settled principles of law, it was the
workman to prove his case.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1.
Heard
Sri
Gulrez
Khan,
Advocate, holding brief of Sri W.H.
Khan, counsel for the petitioners and Sri
Siddharth, counsel for the respondents.

2. This writ petition has been filed
arising out of the award dated 4.9.2000
(published on 21.5.2001), passed by the
labour Court -II, U.P. Ghaziabad in
adjudication case No. 243 of 1994.

3. The undisputed facts of the case
are that the workman respondent was
engaged
as
a
daily-wager
in
the
petitioners' establishment during the span
of period 16-.12.1990 to 30.9.1991. The
workman was disengaged w. e. f.
30.9.1991.

4. Aggrieved by his disengagement,
the workman raised an industrial dispute
which was registered as C.P. Case No.
76/92.
The
conciliation
proceedings
between the employer and the employees
having failed, the following matter of the
U. P Industrial Disputes Act, 1947 in
exercise of power under Section 4-K by
the State Government was referred to the
labour Court-II U.P. Ghaziabad where it
was registered as adjudication case No.
243/94.

5. The case of the workman before
the Labour Court was that during the
aforesaid span of his working during
16.12.1990 to 30.9.1991, he had worked
for
260
days
continuously
in
the
establishment of the employers and that
he
had
been
disengaged
without
compliance of Section 6-N of the U.P.
Industrial Disputes Act, whereas the case
of the employer before the labour Court
was that workmen though admittedly had
worked for the aforesaid period as
claimed
by
him
but
he
had
not
continuously worked for 240 days or
more, as such, Provisions of Section 6-N