# Bhikha & Ors v. State of U.P

- **Citation:** (2022) 1 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-20
- **Case number:** Criminal Appeal No. 464 of 1982
- **Bench:** Attau Rahman Masoodi, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhikha-ors-v-state-of-u-p-48040
- **Pages:** 11

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 154- Indian
Evidence Act, 1872- Section 155(3)- FIR is
not an encyclopedia of entire incident and
need not contain an exhaustive account of
the incident though it is correct that such
1 All. Bhikha & Ors. Vs. State of U.P.
51
a
significant
thing
was
left
to
be
mentioned in the FIR and during the
statement recorded under Section 161
Cr.P.C. but at the same time, which cannot
be denied as per the medical evidence
that deceased had got one injury by knife.
By not mentioning or disclosing about the
assault by knife by Awantika either in the
FIR or in the statement recorded under
Section 161 Cr.P.C. and PWs for the first
time stated before the trial court, this
omission may amount to contradiction and
may raise a doubt about the veracity of
the statement of the witnesses. The FIR
is,
that
is
why,
not
considered
a
substantive evidence and its evidentiary
value is limited to corroboration and
contradiction of the evidences. In the
present case assault took place inside the
house, therefore, in case it was missed by
the witnesses about the knife blow cannot
be attached undue weight so as to
demolish the whole prosecution story,
which is corroborated by other facts and
circumstances on the record.

Although FIR is not an encyclopaedia and can
be used only for the purpose of corroboration
hence absence of a relevant fact in the FIR as
well as previous statements u/s 161 CrPc will
amount to a contradiction but the same will not
demolish the entire case of the prosecution
where the occurrence is corroborated by other
evidence.

Criminal Law - Indian Evidence Act,
1872- Section 3- Related Witnesses -
Falsus in Uno, Falsus in Omnibus- Maxim
not applicable in India- Principle of
false in one thing, false in everything is
not applicable in India and it is the duty
of the Court to separate the grain from
the chaff. Credibility of the witnesses,
who
are
near
relatives
or
family
members, his/her version should be
tested based on his/her version and they
cannot
be
termed
as
interested
witnesses. The prosecution witnesses
cannot be discredited merely on the
ground that they are relative, they may
still
not
be
termed
as
interested
witnesses
in
all
cases.
Their
statements has also to be scrutinized on
merits
and
if
found
reliable,
their
testimony can be believed and acted
upon. It is true that sometimes there are
contradictions,
omissions
and
subsequent
embellishments
in
the
statement of prosecution witnesses, but
it is not necessary that they must be
disbelieved in toto, irrespective of other
facts and circumstances of the case.
Such omissions and embellishments can
well be explained by other corroborative
evidence on the important parts of the
prosecution story.

As the maxim of falsus in uno, falsus in omnibus
is not applicable in India hence the entire
testimony of a prosecution witness cannot be
discarded merely because he is related and his
te

## Text

50 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The law on the point can be
summarised to the effect that the testimony of
the injured witness is accorded a special status
in law. This is as a consequence of the fact that
the injury to the witness is an inbuilt guarantee
of his presence at the scene of the crime and
because the witness will not want to let his
actual assailant go unpunished merely to falsely
implicate a third party for the commission of
the offence. Thus, the deposition of the injured
witness should be relied upon unless there are
strong grounds for rejection of his evidence on
the
basis
of
major
contradictions
and
discrepancies therein."

(41) Considering the entire deposition as
a whole, we are of the opinion that the
prosecution has been successful in proving the
presence of PW1 & PW2 at the time and place
of incident. They are found to be trustworthy
and reliable. The injury report as well as postmortem report has fully supported the
prosecution case.

(42) The prosecution has successfully
proved the motive. There was a prior longtime enmity between the deceased and the
accused. P.W.2-Ram Saroop Singh has stated
before the trial Court that the uncle of the
deceased Vijay Bahadur, namely, Netrapal
was murdered and in this case, he was
awarded life imprisonment. P.W.2 has
admitted the fact that the father of Vishwa
Nath, namely, Thakur, was awarded capital
punishment. He further deposed the Netrapal
had no son and he had three daughters, out of
which, his one daughter was married with
Vijay Vikram. The wife of Netrapal was Smt.
Bittan Devi, who was also murdered. Thus, it
is established that there is enmity between the
accused and prosecution for grabbing the
property of the Netrapal. The defence has
failed to prove any circumstances by which it
can be said that they are falsely implicated in
the case.

(43) In view of the above and for the
reasons stated hereinabove, no interference
of this Court is called for in the instant
appeal as the learned trial Court has rightly
convicted the appellants by the impugned
judgment.

(44) The instant appeal fails and
deserves
to
be
dismissed
and
is,
accordingly, dismissed. The appellants,
who are in jail, shall serve the sentence as
awarded by the trial Court.

(45) Let a certified copy of this order
as well as lower Court record be
transmitted to the Court concerned for
necessary information and compliance
forthwith.
----------
(2022)01ILR A50
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.01.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR, J.

Criminal Appeal No. 464 of 1982

Bhikha & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Shankar Sharma, K.N. Singh, Nagendra
Mohan, S.K. Dixit

Counsel for the Respondent:
Govt. Advocate

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 154- Indian
Evidence Act, 1872- Section 155(3)- FIR is
not an encyclopedia of entire incident and
need not contain an exhaustive account of
the incident though it is correct that such
1 All. Bhikha & Ors. Vs. State of U.P.
51
a
significant
thing
was
left
to
be
mentioned in the FIR and during the
statement recorded under Section 161
Cr.P.C. but at the same time, which cannot
be denied as per the medical evidence
that deceased had got one injury by knife.
By not mentioning or disclosing about the
assault by knife by Awantika either in the
FIR or in the statement recorded under
Section 161 Cr.P.C. and PWs for the first
time stated before the trial court, this
omission may amount to contradiction and
may raise a doubt about the veracity of
the statement of the witnesses. The FIR
is,
that
is
why,
not
considered
a
substantive evidence and its evidentiary
value is limited to corroboration and
contradiction of the evidences. In the
present case assault took place inside the
house, therefore, in case it was missed by
the witnesses about the knife blow cannot
be attached undue weight so as to
demolish the whole prosecution story,
which is corroborated by other facts and
circumstances on the record.

Although FIR is not an encyclopaedia and can
be used only for the purpose of corroboration
hence absence of a relevant fact in the FIR as
well as previous statements u/s 161 CrPc will
amount to a contradiction but the same will not
demolish the entire case of the prosecution
where the occurrence is corroborated by other
evidence.

Criminal Law - Indian Evidence Act,
1872- Section 3- Related Witnesses -
Falsus in Uno, Falsus in Omnibus- Maxim
not applicable in India- Principle of
false in one thing, false in everything is
not applicable in India and it is the duty
of the Court to separate the grain from
the chaff. Credibility of the witnesses,
who
are
near
relatives
or
family
members, his/her version should be
tested based on his/her version and they
cannot
be
termed
as
interested
witnesses. The prosecution witnesses
cannot be discredited merely on the
ground that they are relative, they may
still
not
be
termed
as
interested
witnesses
in
all
cases.
Their
statements has also to be scrutinized on
merits
and
if
found
reliable,
their
testimony can be believed and acted
upon. It is true that sometimes there are
contradictions,
omissions
and
subsequent
embellishments
in
the
statement of prosecution witnesses, but
it is not necessary that they must be
disbelieved in toto, irrespective of other
facts and circumstances of the case.
Such omissions and embellishments can
well be explained by other corroborative
evidence on the important parts of the
prosecution story.

As the maxim of falsus in uno, falsus in omnibus
is not applicable in India hence the entire
testimony of a prosecution witness cannot be
discarded merely because he is related and his
testimony is partly false. It is the duty of the
court in such a situation to scrutinise the said
testimony and separate the grain from the chaff
by seeking corroboration from other evidence
and
material
while
ignoring
minor
embellishments and omissions which do not go
to the core of the case of the prosecution.

Criminal Law - Indian Evidence Act, 1872
- Section 106- Burden of Proof- Where an
offence like murder is committed in
secrecy inside a house then there will be a
corresponding burden on the inmates of
the house to give cogent explanation.

Settled law that the evidential burden of proving
a fact especially within the knowledge of the
accused, lies upon the accused and failure to
offer a satisfactory explanation about the said
fact will raise an adverse inference against him.
(Para 19, 21, 22, 29, 30, 31, 36)

Criminal Appeal rejected. (E-3)

Judgements/ Case law cited/Relied upon:-

1. Harbans Kaur & anr Vs St. of Har, 2005 SCC
(Cri) 1213( cited)

2. Maloth Somaraju Vs St. of A.P, (2011) 3 SCC
(Cri) 531(cited)
52 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Prabhu Dayal Vs St. of Raj. 2018 2 JIC 642
(SC) (cited)

4. Gangadhar Behera Vs St. of Orissa, 2002 8
SCC 381( relied)

5. St. of Raj. Vs Chandgi Ram, 2014 CRLJ
4571(relied)

6. Trimukh Maroti Kirkan Vs St. of Maha., 2006
10 SCC 681(relied)

(Delivered by Hon'ble Manish Kumar, J.)

1. The present criminal appeal has
been preferred against the judgment and
order dated 5.6.1982 passed by the III
Additional Sessions Judge, Lucknow in
Sessions Trial number 298 of 1979 (State
versus Bhikha and three others) under
section 302/34 of the Indian Penal Code
(hereinafter referred to as, the IPC), Police
Station Mohanlal Ganj, District Lucknow,
whereby the appellant no. 1- Bhikha was
convicted
under
section
302
IPC
simplicitor and the other co-accused
persons namely Ram Khelawan, Avantika
and Ramphal were convicted under section
302 read with section 34 of IPC. All the
aforesaid appellants were sentenced to
undergo rigorous imprisonment for life.

2. We have heard Sri Nagendra
Mohan, learned counsel for the appellants
and Sri Umesh Verma, learned Additional
Government Advocate appearing for the
State respondents and perused the record
meticulously.

3. According to the prosecution case,
on 01.9.1979, an FIR was lodged under
section 302 IPC by the complainant,
namely Ram Adhar, PW- 1 mentioning
therein that on the ocassion of marriage of
one Raj Rani, Bhikha i.e. appellant no. 1,
had fired shot with his country made pistol,
which had hit to one of the Barati causing
him injury. Report of that incident was
lodged by one Sia Ram (not examined),
cousin brother of Ram Adhar PW-1 against
the accused appellant no. 1 Bhikha, thus, a
case was registered under section 307
Cr.P.C., due to which, Bhikha was keeping
enmity with the complainant Ram Adhar
and his other relatives. The deceased Phool
Chand was originally a resident of village
Sarwan
Nagar,
Police
Station
Banthra,District Lucknow. Smt. Sarjoo
Dei, a widow having no issue (not
examined) was the cousin sister (maternal
uncle's daughter) of Ram Adhar PW1. She
had brought up Phool Chand (deceased)
since his childhood and given her property
to him. Due to the said reasons, appellant
no. 1 namely Bhikha was keeping enmity
with the deceased.

4. It is further stated in the F.I.R. that
on the fateful day i.e. 01.09.1979, at about
11 A.M., the deceased Phool Chand
accompanying
the
complainant
were
returning back from their fields. The Phool
Chand deceased was a bit ahead of the
complainant. They had to pass through the
house of Bhikha appellant no. 1. When the
deceased was near to the house of the
Bhikha, all the accused appellants i.e.
Bhikha armed with gun, Ram Khelawan
and Ram Phal carrying Lathi the Avantika
having Danda came out of the house of
Bhikha and pounced upon the deceased
dragging him in the house of Bhikha by
exhorting kill him today.

5. On hearing cries of Phool Chand
(deceased)
and
Ram
Adhar
PW-1,
witnesses Ram Karan and Bhajan Lal (both
not examined) reached on the spot and by
that time Smt. Jamuna PW-2 and Smt. Raj
Rani (not examined) niece of Ram Adhaar
had also reached to the spot. They saw the
1 All. Bhikha & Ors. Vs. State of U.P.
53
alleged incident through window and door
of the house of Bhikha. While Phool
Chand-deceased was resisting, the accused
persons were beating him and thereafter,
Ram Khelawan, Avantika and Ramphal
caught hold of Phool Chand (deceased) and
Bhikha fired on him. In the meantime, Ram
Khelawan came out and hit on the lower
limb of Smt. Jamuna and thereafter the
accused persons ran away.

6. After investigation, a charge sheet
was filed on 04.10.1979 against the present
appellants. Thereafter the charge against
the appellant no. 1 Bhikha was framed
under section 302 IPC and charge against
the rest of the appellants was framed under
Sections 302 read with Section 34 IPC in
furtherance of common intention with
Bhikha to commit the murder of Phool
Chand.

7. The prosecution, in order to bring
home the accusation against the appellants
had produced two prosecuting witnesses of
fact
namely
Ram
Adhar,
eye
witness/complainant as PW-1 and Smt.
Jamuna claiming herself an injured eye
witness as PW-2. The prosecution has also
produced as many as five formal witnesses
namely Dr. R.S. Chaudhary (PW-3), who
medically examined the injured witness
PW-2, Dr. Ved Prakash Gupta, who
conducted the post mortem of deceased
Phool Chand as PW-4, Arshad Ali, the
Head Constable, who proved the chik FIR
as PW-5, Bheem Singh Tomar as PW-6
and Raj Kumar, Constable, who brought
the dead body to mortuary for post mortem
as PW-7.

8. As documentary evidences, the
prosecution has proved the copy of FIR as
Ext. Ka-1, Post Mortem Report as Ext.
Ka-3, General Diary as Ext.Ka-5, Chitthi
Majroobi as Ext. Ka-6, Special Report sent
to the C.O. to be forwarded to the
Magistrate on 01.09.1979 as Ext. Ka-7,
Inquest Report as Ext. Ka-8, dead body
diagram as Ext. Ka-9, dead body challan as
Ext. Ka-10, sample seal as Ext. Ka-11, the
Baniyan and blood stained bed sheets as
Ext. Ka-14, Earth as Ext. Ka-15, site plan
as Ext.Ka-16, Charge sheet as Ext. Ka-17.

9. The trial Court has mainly relied on
Ext. Ka-1 (FIR), Exhibit Ka-8 (Inquest
Report) and Ext. Ka-16 (Site Plan) in its
judgment.

10. After closure of the evidence of
the prosecution, the statement under section
313 of Cr.P.C of all the four accused
persons were recorded wherein they denied
their involvement in the alleged incident
and claimed that they have been falsely
implicated.

11. All the accused persons were
committed to the Court of Sessions by the
Chief Judicial Magistrate, Lucknow vide its
order dated 13.11.1979.

12. The trial court, on appreciation of
evidence placed before it, had found that
the incident was of the broad daylight and
the eye witnesses had seen the occurrence
and under such circumstances, presence of
motive is not material. It has further been
held that no lacuna or infirmity was there in
the statement of Smt. Jamuna and held that
she has, in a most natural way, described in
minutest details about the manner in which
the incident took place and all these facts
have mostly been corroborated by Ram
Adhar PW-1.
54 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The trial court did not accept the
submissions raised by the learned counsel
for the accused appellants that the story of
assaulting the deceased Phool Chand using
knife by Avantika has not been mentioned
either in the FIR or in the statements
recorded under section 161 Cr.P.C and it
was stated for the first time in their
examination in chief. The trial court
observed that defence had specifically put
questions to Ram Adhar, who satisfactorily
replied the same in his cross-examination
and this clinches the evidence against the
accused persons and shows that the accused
appellants were also conscious of this fact,
otherwise, they would not have been asked
this question from the witnesses.

14. It is further held by the learned
trial court that non disclosure of the
aforesaid fact in detail in written report also
does not lead us to infer about the falsity of
it. An F.I.R is a document, which sets the
prosecution machinery in motion. The
evidence of the case was proved against the
accused appellants, thus, the trial court
convicted and sentenced them as aforesaid.

15. The first submission advanced on
behalf of the appellants is that in the FIR,
the role of the lathi was assigned to other
accused persons except the appellant no.1,
Bikha, who had been assigned the role of
shot from his firearm, due to which, the
deceased Phool Chand died. For the first
time, the story was set up by the
prosecution assigning the role of assault by
using
knife
by
co-accused/appellant
Avantika during the examination in chief
and in the cross-examination. If Avantika
assaulted the deceased by knife, the same
ought to have been mentioned either in the
FIR or at the time of statement given under
section 161 of Cr.P.C and the same
amounts to improvisation of case at the
stage of examination in chief and during
the cross examination to falsely implicate
the present appellants. Therefore, the
prosecution at the stage of evidence has
overturned the very premise of the case that
goes to vitiate the trial and the conviction
and sentence for life imprisonment ruled by
the trial court.

16. Learned AGA, on the other hand
has submitted that section 3 of the
Evidence Act, 1872 (hereinafter referred to
as, the Act of 1872) defines evidence,
which includes all statements, which the
court permits or requires to be made before
it by witnesses in relation to matters of fact
under enquiry, such statements are called
oral statements. The oral statements given
by the prosecution witnesses before the
court are bound to read as a whole for
deriving a conclusion.

17. It is further submitted that as per
the charge framed against the other coaccused persons except Bhikha i.e. under
section 302 read with section 34 IPC i.e.
common intention of the accused persons
to kill Phool Chand and relied on the FIR
which makes out the case against the
appellants under section 302 read with
section 34 IPC and any addition at the stage
of evidence may have a fall out on the
memory of the witness due to upsetting
circumstances but it does not vitiate the
trial
altogether.
In
support
of
his
submissions, learned AGA relied upon the
judgement rendered by Hon'ble Supreme
Court in the case of Harbans Kaur and
another Vs. State of Haryana reported in
2005 SCC (Cri) 1213.

18. Learned AGA has further
submitted that it is not improvisation by the
prosecution rather it is an evidence
recorded before the court and as per
1 All. Bhikha & Ors. Vs. State of U.P.
55
Section 3 of the Act of 1972, it is
admissible and does not falsify the
prosecution story. In support thereof, he
placed reliance upon the judgement of the
Hon'ble Supreme Court rendered in the
case of Maloth Somaraju Vs. State of
Andhra Pradesh reported in (2011) 3 SCC
(Cri) 531. Reliance has also been placed on
the case of Prabhu Dayal versus State of
Rajasthan reported in 2018 2 JIC 642
(SC).

19. After hearing the learned counsel
for the respective parties, the position which
emerges out is that the FIR is not an
encyclopedia of entire incident and need not
contain an exhaustive account of the incident
though it is correct that such a significant
thing was left to be mentioned in the FIR and
during the statement recorded under Section
161 Cr.P.C. but at the same time, which
cannot be denied as per the medical evidence
that deceased had got one injury by knife. But
it is to be seen how this fact alone can
demolish the prosecution case in the
background of other facts and circumstances
on the record of the case.

20. By not mentioning or disclosing
about the assault by knife by Awantika
either in the FIR or in the statement
recorded under Section 161 Cr.P.C. and
PWs for the first time stated before the trial
court, this omission may amount to
contradiction and may raise a doubt about
the veracity of the statement of the
witnesses. It has further been revealed from
the
records
that
there
are
some
contradictions here and there in the
testimony of PW-1 and 2.

21. It is the established principle of
law that the primary object of the FIR is to
set
the
criminal
investigation
into
motion. It may not set out the case in every
minute detail with unmistakable precision.
It is not the encyclopedia of all the facts
and circumstances of the case on which
prosecution relies. The FIR is, that is why,
not considered a substantive evidence and
its
evidentiary
value
is
limited
to
corroboration and contradiction of the
evidences. In the present case assault took
place inside the house, therefore, in case it
was missed by the witnesses about the
knife blow cannot be attached undue
weight so as to demolish the whole
prosecution story, which is corroborated by
other facts and circumstances on the record.

22. It has been held by Hon'ble Apex
Court in the case of Gangadhar Behera Vs.
State of Orissa reported in 2002 8 SCC 381
that principle of false in one thing, false in
everything is not applicable in India and it
is the duty of the Court to separate the grain
from the chaff. The relevant portion of the
said judgment is being quoted hereunder
for ready

" 15. To the same effect is the
decision in State of Punjab v. Jagir Singh
[(1974) 3 SCC 277 : 1973 SCC (Cri) 886 :
AIR 1973 SC 2407] and Lehna v. State of
Haryana[(2002) 3 SCC 76 : 2002 SCC
(Cri) 526] . Stress was laid by the accusedappellants on the non-acceptance of
evidence tendered by some witnesses to
contend about desirability to throw out the
entire prosecution case. In essence prayer
is to apply the principle of "falsus in uno,
falsus in omnibus" (false in one thing, false
in everything). This plea is clearly
untenable. Even if a major portion of the
evidence is found to be deficient, in case
residue is sufficient to prove guilt of an
56 INDIAN LAW REPORTS ALLAHABAD SERIES
accused, notwithstanding acquittal of a
number of other co-accused persons, his
conviction can be maintained. It is the duty
of the court to separate the grain from the
chaff. Where chaff can be separated from
the grain, it would be open to the court to
convict an accused notwithstanding the fact
that evidence has been found to be deficient
to prove guilt of other accused persons.
Falsity of a particular material witness or
material particular would not ruin it from
the beginning to end. The maxim "falsus in
uno, falsus in omnibus" has no application
in India and the witnesses cannot be
branded as liars. ......... It is merely a rule
of caution. All that it amounts to, is that in
such cases testimony may be disregarded,
and not that it must be disregarded. The
doctrine merely involves the question of
weight of evidence which a court may apply
in a given set of circumstances, but it is not
what may be called "a mandatory rule of
evidence" ....... The doctrine is a dangerous
one specially in India for if a whole body of
the testimony were to be rejected, because
a witness was evidently speaking an
untruth in some aspect, it is to be feared
that administration of criminal justice
would come to a dead stop. Witnesses just
cannot help in giving embroidery to a
story, however, true in the main. Therefore,
it has to be appraised in each case as to
what extent the evidence is worthy of
acceptance, and merely because in some
respects the court considers the same to be
insufficient for placing reliance on the
testimony of a witness, it does not
necessarily follow as a matter of law that it
must be disregarded in all respects as well.
The evidence has to be sifted with care. The
aforesaid dictum is not a sound rule for the
reason that one hardly comes across a
witness whose evidence does not contain a
grain
of
untruth
or
at
any
rate
exaggeration,
embroideries
or
embellishment. (See Sohrab v. State of M.P.
[(1972) 3 SCC 751 : 1972 SCC (Cri) 819]
and Ugar Ahir v. State of Bihar [AIR 1965
SC 277 : (1965) 1 Cri LJ 256] .) An attempt
has to be made to, as noted above, in terms
of felicitous metaphor, separate the grain
from the chaff, truth from falsehood. Where
it is not feasible to separate the truth from
falsehood, because grain and chaff are
inextricably mixed up, and in the process of
separation an absolutely new case has to
be reconstructed by divorcing essential
details presented by the prosecution
completely from the context and the
background against which they are made,
the only available course to be made is to
discard the evidence in toto. (See Zwinglee
Ariel v. State of M.P. [AIR 1954 SC 15 :
1954 Cri LJ 230] and Balaka Singh v. State
of Punjab [(1975) 4 SCC 511 : 1975 SCC
(Cri) 601 : AIR 1975 SC 1962] .) As
observed by this Court in State of
Rajasthan v. Kalki [(1981) 2 SCC 752 :
1981 SCC (Cri) 593 : AIR 1981 SC 1390]
normal discrepancies in evidence are those
which are due to normal errors of
observation, normal errors of memory due
to lapse of time, due to mental disposition
such as shock and horror at the time of
occurrence and those are always there
however honest and truthful a witness may
be. Material discrepancies are those which
are not normal, and not expected of a
normal person."

23. Here in the present case, version
in the FIR or at the time of framing of the
charges and up till cross-examination, the
name of the accused persons, the time, the
place of occurrence of incident and the role
to the appellants/convicts were consistent
throughout, except role of assault by knife
added along with lathi has been assigned to
Awantika-accused appellant later at the
time of exam-in-chief. Otherwise, the
1 All. Bhikha & Ors. Vs. State of U.P.
57
evidence of witnesses including an injured
eye-witness had also been corroborated
with the documentary evidence.

24. The second submission raised by
the learned counsel for the appellants is
that PW-2 was introduced in order to
support the case of prosecution and shown
her as an injured witness, whereas, she
was neither present nor received any
injury.

25. It is further submitted that if she
was assaulted by lathi by one of the
accused appellants then why the medical
examination was conducted with delay,
especially under the circumstance, when
the primary health center is hardly 1 km
from the police station. Both the witnesses
are relative of the deceased, hence, they
are interested witnesses. They could not be
relied blindly and more caution was
required, which has not been taken by the
learned trial court.

26. On the other hand, learned AGA
has submitted that there is no delay in the
medical
examination
of
the
injured
witness and injury was found which
corroborates with the prosecution story
and confirms that PW-2 was present at the
time of occurrence of the incident, as an
eyewitness.

27. It is further submitted that merely
the fact that the prosecution witness is the
relative and their evidence or testimony
cannot be relied is a misconceived
submission. In support of his submission,
he relied upon the judgment passed by the
Hon'ble Supreme Court in the case of
State of Rajasthan Vs. Chandgi Ram
reported in 2014 CRLJ 4571.

28. After hearing the learned
counsel for the parties, it has come out
from the records that the delay in
conducting the medical examination has
duly/properly been explained. The incident
was of about at 11 A.M. and the FIR was
lodged at about 1.30 P.M. and the medical
examination was conducted at 5 P.M. and
the delay of few hours was for the reason
that doctor who had to conduct the medical
examination was not available and the said
reason does not make the prosecution story
doubtful. The medical examination was
held without there being any delay and
whatever delay, as alleged, has been
explained properly.

29. As far as submissions relating to
that the prosecution witnesses were the
near relatives of the deceased, thus, the
credibility of them for weighing the
truthfulness is very less and shall not be
relied, is also not tenable. It is a settled law
that credibility of the witnesses, who are
near relatives or family members, his/her
version should be tested based on his/her
version and they cannot be termed as
interested witnesses. The para no. 17 of the
case of Chandgi Ram (supra) is relevant,
which reads as under:-

"It was contended that all the
witnesses were family members of the
deceased and being interested witnesses,
their version cannot be relied upon in toto.
When we consider the same, we fail to
understand as to why the evidence of the
witnesses should be discarded solely on the
ground that the said witnesses are related
to the deceased. It is well settled that the
credibility of a witness and his/her version
should be tested based on his/her testimony
vis-a-vis the occurrence with reference to
58 INDIAN LAW REPORTS ALLAHABAD SERIES
which the testimonies are deposed before
the Court. As the evidence is tendered
invariably before the Court, the Court will
be in the position to assess the truthfulness
or otherwise of the witness while deposing
about the evidence and the persons on
whom any such evidence is tendered. As
every witness is bound to face the crossexamination by the defence side, the falsity,
if any, deposed by the witness can be easily
exposed in that process. The trial Court
will be able to assess the quality of
witnesses irrespective of the fact whether
the witness is related or not. Pithily
stated,if the version of the witness is
credible, reliable, trustworthy, admissible
and the veracity of the statement does not
give scope to any doubt, there is no reason
to reject the testimony of the said witness,
simply because the witness is related to the
deceased or any of the parties. In this
context, reference can be made to the
decision of this court reported in Mano
Dutt and another vs. State of Uttar Pradesh
- (2012) 4 SCC 79. Paragraph 24 is
relevant which reads as under:-

"24. Another contention raised on
behalf of the appellant-accused is that only
family members of the deceased were
examined as witnesses and they being
interested witnesses cannot be relied upon.
Furthermore, the prosecution did not
examine any independent witnesses and,
therefore, the prosecution has failed to
establish its case beyond reasonable doubt.
This argument is again without much
substance. Firstly, there is no bar in law in
examining family members, or any other
person, as witnesses. More often than not,
in such cases involving family members of
both sides, it is a member of the family or a
friend who comes to rescue the injured.
Those alone are the people who take the
risk of sustaining injuries by jumping into
such a quarrel and trying to defuse the
crisis. Besides, when the statement of
witnesses, who are relatives, or are parties
known to the affected party, is credible,
reliable,
trustworthy,
admissible
in
accordance with the law and corroborated
by
other
witnesses
or
documentary
evidence of the prosecution, there would
hardly be any reason for the Court to reject
such evidence merely on the ground that
the witness was a family member or an
interested witness or a person known to the
affected party." (emphasis added).

30. The prosecution witnesses cannot
be discredited merely on the ground that
they are relative, they may still not be
termed as interested witnesses in all cases.
Their statements has also to be scrutinized
on merits and if found reliable, their
testimony can be believed and acted upon.
It is true that sometimes there are
contradictions, omissions and subsequent
embellishments
in
the
statement
of
prosecution witnesses, but it is not
necessary that they must be disbelieved in
toto, irrespective of other facts and
circumstances of the case. Such omissions
and embellishments can well be explained
by other corroborative evidence on the
important parts of the prosecution story.

31. In the present case the evidence of
PWs definitely stating that the deceased
was dragged inside the house and was
assaulted therein is heavily corroborated by
the fact that the dead body was recovered
from inside the house of the appellant
namely, Bhikha, which fact is not denied
by the accused persons rather stands
admitted, it out-ways some contradictions
and omissions here and there or any
embellishments subsequently made by the
witnesses. Their testimonies are well
corroborated on other vital facts. If a
witness is found to have made some
1 All. Bhikha & Ors. Vs. State of U.P.
59
embellishments and contradictions, it does
not follow that his statement is to be
disbelieved as a whole, as argued by the
learned counsel for the appellants in view
of the principle of "falsus in uno, falsus in
omnibus" (false in one thing, false in
everything). The said principle is not
applicable in the present case, as it has
already been discussed earlier.

32. In the case in hand, the body was
found from inside the house of Bhikhaappellant no. 1 and in defense, the appellants
come with a case that they were not present at
home at the time of occurrence of the
incident and stated that the deceased-Phool
Chand would have been assaulted by some
person and on seeing the house of the
Bhikha-appellant no. 1open, the deceasedPhool Chand entered into the house.

33. In so far the submission of learned
counsel for the appellants that the deceased
may have entered in the house finding it
open, is not tenable. As per the defence case
that no one was present at the home then why
the doors were opened.

34. So far as the submissions raised by
the learned counsel for the appellants that
someone else would have assaulted the
deceased and he ran into the house and died,
is also not tenable. As per the ante-mortem
injuries found on the body of the deceased, it
is clear that the deceased would have been
bleeding profusely but there was no trail of
blood found and according to the testimony
of PW-6/Investigating Officer, only blood
was found near the body of the deceased
recovered from inside the house of Bhikhaappellant no. 1. The ante-mortem injuries
found on the body of the deceased are as
follows:-

1. Gunshot wound 21⁄2 cm X 11⁄2
cm X bone fractured underneath 1⁄2 below
the medial canthus of right eye. Direction
obliquely downward and

posteriorly. Blackening & pg.
torn
and
burning
present.
Wadding
removed from the wound. Only entry
wound present.

2. Gunshot wound 1.5 cm X1 cm
X chest cavity deep on the right side of
front of chest 6 cm below the right nipple at
4'0 clock position.

3. Incised wound 5 cm X3 cm X
abdominal cavity with small intestine
coming out. Tailing towards left side, on
the front of abdomen in mid line 5 cm
above the umbilicus.

4. Abraded contusion multiple in
numbers in an area of 8 cm X5 cm on tip of
left shoulder joint.

5. Abraded contusion 4 cm X2 cm
on the front of left elbow joint.

6. Abraded contusion multiple in
number in an area of 10 cm X 5 cm on th
front of left knee and lower 1/3 of left thigh
28 cm below the anterior

superior illiac spine.

7. Abraded contusion 2 cm X 1
cm on the back of middle 1/3 of right leg 15
cm below the back of right knee joint.

35. The Hon'ble Supreme Court in the
case of Trimukh Maroti Kirkan Vs. State of
Maharashtra reported in 2006 10 SCC 681
has held that where an offence like murder is
committed in secrecy inside a house then
there will be a corresponding burden on the
inmates of the house to give cogent
explanation. The relevant extract of the said
judgment is being quoted hereunder:-

"15. Where an offence like murder
is committed in secrecy inside a house, the
60 INDIAN LAW REPORTS ALLAHABAD SERIES
initial burden to establish the case would
undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it
to establish the charge cannot be of the same
degree as is required in other cases of
circumstantial evidence. The burden would
be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there
will be a corresponding burden on the
inmates of the house to give a cogent
explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and offering
no explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation."

36. Thus, recovery of body from inside
the house of the Bhikha i.e. appellant no. 1 is
a clinching circumstance for which no
plausible and reasonable explanation was
given by the appellants, as discussed
hereinabove.

37. So the recovery of body from inside
the house of Bhikha-appellant no. 1
overweigh all other omission or subsequent
embellishments, as discussed earlier.

38. In a nut shell, the defence put forth
by the appellants does not lead us to take a
different view from as taken by the trial court.

39. The criminal appeal is accordingly
dismissed.

40. The record reveals that during
pendency of the present appeal, the appellant
nos. 1 and 4 namely, Bhikha and Ram Phal
had died and as a consequence thereof, the
appeal was abated on their behalf vide order
dated 14.12.2018. The proceedings survive
on behalf of the appellant nos. 2 and 3
namely Avantika and Ram Khelawan, who
are presently on bail.

41. As a consequence of the dismissal
of the present appeal as above, the bail
bonds submitted by the appellants nos. 2
and 3 namely Avantika and Ram Khelawan
are hereby cancelled and the sureties are
discharged.

42. The appellant nos. 2 and 3 namely
Avantika
and
Ram
Khelawan
may
surrender
before
the
Chief
Judicial
Magistrate, Lucknow within a period of
two weeks from today failing which the
Chief Judicial Magistrate, Lucknow shall
proceed to take them into custody forthwith
without any delay to serve the remaining
sentence in terms of the judgment and order
dated 05.06.1982 passed by the learned
trial court.
----------
(2022)01ILR A60
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 875 of 2010
and
Criminal Appeal No. 876 of 2010

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

Counsel for the Appellant:
Sri Dharmendra Mishra, Sri Araf Khan, Sri
Chandrakesh Misra, Sri D.S. Misra, Sri
Dwijendra Prasad, Sri Lihazur Rahman
Khan, Sri Omvir Babu, Sri Rajesh Kumar
Dubey, Sri S.S. Shukla, Sri Vikrant Neeraj,
Sri Yadvesh Yadav