# Bishnu Srivastava @ Pawan Srivastava & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-14
- **Case number:** Criminal Appeal No. 3574 of 2015
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bishnu-srivastava-pawan-srivastava-anr-in-jail-v-state-of-u-p-45280
- **Pages:** 16

## Headnote

760 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri J.K. Upadhaya, A.G.A.

Criminal Law - Indian Penal Code - Section
147 and 302/149 - Appeal against conviction.

It is well settled position that a natural witness
may not be labelled as interested witness.
Interested witnesses are those who want to
derive some benefit out of the litigation/case.
Relationship is not sufficient to discredit a
witness unless there is motive to give false
evidence to spare the real culprit and falsely
implicate an innocent person is alleged and
proved. (para 21)

The minor contradictions, inconsistencies or
insignificant embellishments do not affect the
core of the prosecution case and should not be
taken to be a ground to reject the prosecution
evidence. (para 25)

All these facts not only create doubt about
common object of alleged unlawful assembly
but also about the existence of any such
unlawful assembly. There is doubt whether all
the accused persons were present at the spot.
In view of all these facts, conviction of
accused-appellants of Section 149 of IPC is not
in accordance with law and thus they deserve
acquittal. (para 28)

Appeals of accused-appellants allowed except
Santosh Kumar Yadav. (para 31)

Hence, appeals partly allowed. (E-2)

List of cases cited: -

## Text

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1 All. Bishnu Srivastava @ Pawan Srivastava & Anr. Vs. Sate of U.P.
759
keep in mind the rustic background of the
witness so as to ignore the discrepancies
with respect to distance stated by him from
where they state to have seen the
occurrence, as they may have little idea
about 'furlong' and 'paces' etc.

64. With respect to accused Suresh, it
has come on record that he was resident of
village Pilakhtar and that informant's sister
Maya Devi was married to one Mulayam
Singh of the said village, who subsequently
stayed with Surendra Pradhan without getting
married ('baith gayi'). It was because of this
reason, that strained relations were stated to
be there between Surendra Pradhan and
accused Suresh and this led to nominating
Suresh also as one of the accused in the
present case but we find that no evidence has
come on record that the relations between
Surendra Pradhan and the Suresh were
strenuous. It was also suggested from the
accused side that the complainant's sister
Maya Devi had deserted her previous
husband along with ornaments and thereupon
Mulayam Singh, previous husband of teh
Maya Devi was assisted by accused Suresh in
return of those ornaments and since then,
thereafter, animosity developed between the
two sides, because of which Suresh was
falsely implicated in the present case.

65. We do not find this to be ground
serious enough for animosity so that a
false implication would be made of this
accused and in view of the strong evidence
having come on record that this accused
was
also
involved
in
causing
this
occurrence, as is evident from the eyewitnesses' account mentioned above, his
involvement is found to be there.

66. Thus we come to the conclusion
that the trial court does not appear to have
committed any error as far as holding
these three appellants guilty is concerned,
although we have already noted above that
other two co-accused, who have been
acquitted by the trial court, there being no
such State appeal having been preferred
against the acquittal, nothing could be
done at our end but the present appeals
deserve
to
be
dismissed
and
is,
accordingly, dismissed.

67. The accused are on bail, hence their
bail bonds and personal bonds are discharged.
Accused shall be taken into custody to serve
out the remaining sentence.

68. Let a copy of this judgment be
transmitted to the trial court expeditiously
along with lower court record with a
direction that the trial court shall ensure
that the accused-appellants served out the
remaining sentence.

69. Both the appeals stand dismissed.
----------
(2020)1ILR 759

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.11.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 3574 of 2015
With
Criminal Appeal Cases No. 4045 of 2015, 4046
of 2015 & 3657 of 2015

Bishnu Srivastava @ Pawan Srivastava &
Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.P. Srivastava, Sri Lav Srivastava

Counsel for the Opposite Party:
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri J.K. Upadhaya, A.G.A.

Criminal Law - Indian Penal Code - Section
147 and 302/149 - Appeal against conviction.

It is well settled position that a natural witness
may not be labelled as interested witness.
Interested witnesses are those who want to
derive some benefit out of the litigation/case.
Relationship is not sufficient to discredit a
witness unless there is motive to give false
evidence to spare the real culprit and falsely
implicate an innocent person is alleged and
proved. (para 21)

The minor contradictions, inconsistencies or
insignificant embellishments do not affect the
core of the prosecution case and should not be
taken to be a ground to reject the prosecution
evidence. (para 25)

All these facts not only create doubt about
common object of alleged unlawful assembly
but also about the existence of any such
unlawful assembly. There is doubt whether all
the accused persons were present at the spot.
In view of all these facts, conviction of
accused-appellants of Section 149 of IPC is not
in accordance with law and thus they deserve
acquittal. (para 28)

Appeals of accused-appellants allowed except
Santosh Kumar Yadav. (para 31)

Hence, appeals partly allowed. (E-2)

List of cases cited: -

1. St. of Punj. Vs Hardam Singh, 2005, S.C.C.
(Cr.) 834

2. Dilip Singh Vs St. of Punj., A.I.R. 1953, S.C. 364

3. Harbans Kaur Vs St. of Har., 2005, S.C.C.
(Crl.) 1213

4. St. of U.P. Vs. Kishan Chandra & ors, 2004
(7), S.C.C. 629

5. Dalbir Kaur Vs. St. of Punj., AIR 1977 SC 472
6. St. of Gujrat Vs. Naginbhai Dhulabhai Patel,
AIR 1983 SC 839
7. Piara Singh & ors. Vs. St. of Punj. [AIR 1977
SC 2274 = (1977) 4 SCC 452]

8. Hari Obula Reddy & ors. Vs. St. of A.P.,
(1981) 3 SCC 675

9. Anil Rai Vs. St. of Bihar, (2001) 7 SCC 318

10. St. of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456

11. Bhagalool Lodh & anr. Vs. St. of U.P.,
(2011) 13 SCC 206

12. Dahari & ors. Vs. St. of U. P., (2012) 10
SCC 256

13. Raju @ Balachandran & ors. Vs. St. of T.N.,
(2012) 12 SCC 701

14. Gangabhavani Vs. Rayapati Venkat Reddy
& ors., 12 (2013) 15 SCC 298

15. Jodhan Vs. St. of M.P., (2015) 11 SCC 52)

16. Ganeshlal Vs. St. of Mah. (1992) 3 SCC 106

17. Mohd. Khalid Vs. St. of W.B. (2002) 7 SCC
334

18. Prithvi (Minor) Vs. Mam Raj (2004) 13 SCC
279

19. Sidhartha Vashisht @ 14 Manu Sharma v.
St. (NCT of Delhi) (2010) 6 SCC 1]

20. Rammi @ Rameshwar Vs. St. of M.P.,
(1999) 8 SCC 649

21. Leela Ram (dead) through Duli Chand Vs.
St. of Har. & anr., (1999) 9 SCC 525

22. Bihari Nath Goswami Vs. Shiv Kumar Singh
& ors., (2004) 9 SCC 186

23. Vijay @ Chinee Vs. St. of M.P., (2010) 8
SCC 191

24. Sampath Kumar Vs. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

25. Shyamal Ghosh Vs. St. of W.B., (2012) 7
SCC 646
1 All. Bishnu Srivastava @ Pawan Srivastava & Anr. Vs. Sate of U.P.
761
26. Mritunjoy Biswas Vs. Pranab @ Kuti Biswas
& anr., (2013) 12 SCC 796)

27. Rajendra Shantaram Todankar Vs. St. of
Mah. & ors. [JT 2003 (2) SC 95]

28. State of Punj. Vs. Sanjiv Kumar @ Sanju &
ors. [JT 2007 (9) SC 274]

29. Allauddin Mian & ors., Sharif Mian & anr.
Vs. St. of Bihar [JT 1989 (2) SC 171]

30. Daya Kishan v. State of Haryana [JT 2010
(4) SC 325]

31. Kuldip Yadav & ors. Vs. St. of Bihar [JT
2011 (4) SC 436]

32. Lalji & ors. Vs. St. of U.P. [JT 1989 (1) SC
109]

33. Ranbir Yadav Vs. St. of Bihar [JT 1995 (3)
SC 228]

34. Rachamreddy Chenna Reddy & ors. Vs. St.
of A.P. [JT 1999 (1) SC 412])

35. Nallabothu Venkaiah Vs. St. of A.P (2002) 7
SCC 117

(Delivered by Hon'ble Raj Beer Singh, J.)

1. All these appeals arise out of a
common
judgment
and
order
dated
18.08.2015
passed
by
the
learned
Additional Sessions Judge/Fast Track,
Bhadoi-Gyanpur in Session Trial No.106
of 2008 (State Vs. Binnu Srivastava @
Pawan Srivastava and 7 others), under
Sections 147, 302, 149 of I.P.C., and S.T.
No. 07/09, under Section 25 Arms Act,
both P.S. Gyanpur, District Bhadohi,
whereby
accused-appellants
Binnu
Srivastava @ Pawan Srivastava, Pawan
Srivastava @ prakash, Raj Nath Yadav,
Atul Kumar Yadav @ Bhunwar, Santosh
Kumar Yadav @ Kariya, Sandeep Rawat
@ Rinku, Rahul Rawat and Prashant
Yadav have been convicted under Section
147 and 302/149 of I.P.C. and were
sentenced to imprisonment for life along
with fine of Rs. 25,000/- each under
Section 302/149 of I.P.C. and two years
rigorous imprisonment along with fine of
Rs. 2000/- under Section 147 of I.P.C.
Accused-appellant Santosh Kumar Yadav
@ Kariya was further convicted under
Section 25 of Arms Act and was sentenced
to 5 years rigorous imprisonment along
with fine of Rs. 5000/-. In default of
payment of fine, accused-appellants were
sentenced
to
different
period
of
imprisonment.

2. Prosecution version is that on
20.06.2008
at
around
12.00
noon,
deceased Raj Kumar, who was brother of
complainant Manoj Kumar Yadav, has left
his home for going to Gyanpur by
motorcycle and when he reached near
veterinary
hospital,
accused-appellants
Binnu Srivastava @ Pawan Srivastava,
Pawan Srivastava @ Prakash, Raj Nath
Yadav, Atul Kumar Yadav @ Bhunwar,
Santosh Kumar Yadav @ Kariya and
Sandeep Rawat @ Rinku, riding on two
motorcycles, stopped deceased Raj Kumar.
Accused-appellants Rahul Rawat and
Prashant Yadav were already present
there. All these accused persons made
exhortation to kill Raj Kumar and
consequently accused-appellant Santosh
Kumar Yadav @ Kariya shot a bullet at
the head of deceased Raj Kumar from
country made pistol. Resultantly, Raj
Kumar died on spot. This incident was
witnessed by complainant (PW-1) Manoj
Kumar Yadav, (PW-2) Bhola and by
several other persons.

3. (PW-1) Manoj Kumar Yadav
reported the matter to police by submitting
a written complaint Ex.Ka-1 and on that
basis, case was registered against all the 8
762 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellants on 20.06.2008 at 12.30
P.M. under Sections 147, 149, 302 of I.PC.
vide Ex.Ka-4.

4. The inquest proceedings were
conducted by S.I. Biri Singh under the
supervision of Inspector Umesh Pratap
Singh. The dead body of deceased was
sent for postmortem, which was conducted
on 20.06.2008 by (PW-4) Dr. Rajeev
Kumar. Following injuries were found on
the body of the deceased:

(i) Wound of entry 1.5 cm. x 0.5
cm. in longitudinal place. 15 cm. above
vertically from lat. end and left eyebrow
and 7 cm. up and med form. Tragus over
lat. half and (L) frontal area. bleeding and
shout particle implemented over skin
around wound in 5 cm. X 6 cm. diameter
upper (L) eye and blackening C earbon
particle (L) eye brow. Lat. 2/3 hair show
seizing 3 cm. x 3 cm. area around wound
show scarching blood present. margins and
wound inverted.

(ii) Exit wound 2 cm. x 1 cm
over Rt. Temporal area just above the
superior attachment of Rt Pinna to scalp
and 6 cm Horizontally back from lat eye of
Rt. eye brow, margin ever feet, bleeding
occur.

Cause of death of deceased is
shock and hemorrhage, as a result of antemortem injury caused by firearm.

5. Investigation was taken up by
(PW-6) Inspector Umesh Pratap Singh.
Samples of blood stained and simple Gitti
and Kankar were collected from the spot
vide memo Ex.Ka-7. It was alleged that
after the incident, stampede has taken at
the spot and six pairs of sleeper were
seized from the spot. During investigation,
on 21.10.2008, while being on police
custody
remand,
accused-appellant
Santosh Kumar Yadav @ Kariya got
recovered country made pistol of 315
Bore, which was used in the incident, and
it was taken into possession vide recovery
memo Ex.Ka-15. After completion of the
investigation, charge sheet was filed
against all the accused-appellants.

6. Learned trial court framed charge
under Section 147, 302/149 of I.P.C.
against all the accused-appellants and
accused-appellant Santosh Kumar Yadav
@ Kariya was further charged under
Section 25 of the Arms Act. They pleaded
not guilty and claimed trial.

7. In order to bring home guilt of
accused-appellants,
prosecution
has
examined 10 witnesses. Accused persons
were examined under Section 313 of
Cr.P.C., wherein they have denied the
prosecution evidence and claimed false
implication. In defence, one Rakesh
Maurya was examined as (DW-1).

8. After hearing and analyzing the
evidence on record, all the accused
persons were convicted under Sections
147, 302/149 of I.P.C. and accusedappellant Santosh Kumar Yadav @ Kariya
was further convicted under Section 25 of
Arms Act vide impugned judgment and
order dated 18.08.2015 and they were
sentenced, as stated in paragraph no.1 of
this judgment.

9. Being aggrieved by the impugned
judgment and order of the trial court,
appellants Binnu Srivastava @ Pawan
Srivastava and Pawan Srivastava @
Prakash have preferred Criminal Appeal
No. 3574 of 2015, accused-appellant
Santosh Kumar Yadav @ Kariya has
preferred Criminal Appeal Nos. 4045 of
2015 and 4046 of 2015, and appellants Raj
1 All. Bishnu Srivastava @ Pawan Srivastava & Anr. Vs. Sate of U.P.
763
Nath Yadav, Atul Kumar Yadav, Prashant
Yadav, Rahul Rawat and Sandeep Rawat
@ Rinku have preferred Criminal Appeal
No. 3657 of 2015. As all these appeals
have been preferred against common
judgment and order thus, these appeals are
being decided by this common order.

10. Heard Sri V.P. Srivastava,
Learned senior Advocate, assisted by Sri
Lav Srivastava, Advocate, learned counsel
for the appellants and Sri J.K. Upadhaya,
learned A.G.A. for the State and perused
the record.

11. Learned Senior counsel for the
appellants submits:

(i) that presence of (PW-1)
Manoj Kumar Yadav, (PW-2) Bhola and
(PW-3) Amit Kumar Rawat at the alleged
spot is doubtful. In the FIR there is no
such version that how (PW-1) Manoj
Kumar Yadav and (PW-2) Bhola have
reached at the spot and it was not clarified
that where were they going. Further the
name of (PW-3) Amit Kumar Rawat does
not find place in the FIR.

(ii) that all the alleged eye
witnesses (PW-1) Manoj Kumar Yadav,
(PW-2) Bhola and (PW-3) Amit Kumar
Rawat
are
interested
and
inimical
witnesses. (PW-1) Manoj Kumar Yadav is
brother of deceased Raj Kumar while
(PW-2) Bhola is uncle of deceased and
that all these three witnesses were accused
in an earlier incident of murder of the
father of accused-appellant Santosh Kumar
Yadav. It is also stated that statement of
(PW-2) Bhola and (PW-3) Amit Kumar
Rawat under Section 161 CrPC, were
recorded with undue delay, which has not
been explained.

(iii) that spot of the alleged
incident could not be established. As per
FIR,
the
incident
took
place
near
veterinary Hospital, while in site plan, the
alleged hospital has not been shown and
the spot of the incident has been shown in
front of the shop of Anoop Electrical. It
was stated that (PW-1) Manoj Kumar
Yadav has categorically stated that alleged
incident
took
place
near
veterinary
hospital, while as per the Investigating
Officer, the veterinary Hospital is situated
at quite long distance from the spot of the
incident as shown in the site plan. It is
further pointed out that in his cross
examination (PW-2) Bhola had stated that
deceased was stopped and fired near Home
Guard Commandant Office.

(v) that there are contradictions
and inconsistencies in the statements of
witnesses. As per prosecution version,
deceased was going on motorcycle, but his
motorcycle was not found on the spot. As
per prosecution version, deceased has died
on the spot but when the police reached at
the spot, his body was lying in Hospital.

(vi) that there is no evidence that
all the accused-appellants were having
common intention to commit murder of
deceased.

It was submitted that there is
absolutely
nothing
to
indicate
that
accused-appellants
were
aware
that
deceased would pass from the way, where
allegedly incident took place. Further,
even as per prosecution version, accusedappellants Rahul Rawat and Prashant
Yadav were already present at the spot, but
there is nothing even to remotely indicate
that these accused persons were aware that
deceased would pass from there. It is
submitted that there is absolutely no
evidence that all the accused persons have
any pre-arranged plan to commit murder
of
the
deceased.
Version
of
the
prosecution that all the accused persons
have made exhortation is quite vague.
764 INDIAN LAW REPORTS ALLAHABAD SERIES
Even, it has not been clarified that what
specific exhortation was made by each of
the accused persons. It was submitted that
in view of all these facts, it is clear that it
is not a case, where all the accusedappellants have common intention to
commit murder of deceased.

12. Per contra, it has been submitted
by the learned A.G.A. that all the eye
witnesses have made clear and cogent
statements regarding the incident. The
testimony of these witnesses can not be
doubted on the ground that they are related
to deceased or that they were earlier
accused in the murder of the father of
accused-appellant Santosh Kumar Yadav
@ Kariya. Enmity is double edged weapon
and thus, alleged enmity may be motive to
commit murder of deceased. (PW-1)
Manoj Kumar Yadav has lodged prompt
first information report naming all the
accused-appellants and his version finds
ample corroboration from (PW-2) Bhola
and (PW-3) Amit Kumar Rawat. It was
submitted that substantially there is no
change in the spot of incident. If a person
refers that incident took near some well
known place, it does not mean that he
intended to say that incident has taken
place just at that point but his reference
would cover entire vicinity of that place.
Regarding common object, it was argued
that there is evidence that all accusedappellants have made exhortation to kill
deceased and as a consequence of the
same, accused-appellant Santosh Kumar
Yadav @ Kariya has fired a bullet at
deceased and thus murder of deceased was
committed in furtherance of common
intention of all accused-appellants.

13. We have considered the rival
contentions of of both the parties and
perused record.

14. In evidence, (PW-1) Manoj
Kumar Yadav stated that the incident took
place on 20.06.2008 at 12.00 noon. There
was property dispute between his family
and of accused-appellant Santosh Yadav.
Earlier in 2005 the family members of
Santosh Yadav have given beatings to his
family in which his brother Raj Kumar
was injured and in that regard a case was
pending in court. On 20.06.2008 his
brother Raj Kumar (deceased) was going
to Gyanpur by motorcycle while (PW-1)
Manoj Kumar Yadav and his brother
Rakesh were going to Gyanpur on foot.
Accused-appellants
Binnu
Srivastava,
Pawan Srivastava and Raj Nath Yadav on
one motorcycle and accused-appellant
Atul Kumar Yadav, Santosh Kumar Yadav
and Sandeep Rawat @ Rinku on another
motorcycle, were also going towards
Gyanpur.
Near
veterinary
hospital,
accused-appellants encircled motorcycle
of deceased Raj Kumar and made
exhortation to kill Raj Kumar and
consequently accused-appellant Santosh
Kumar Yadav fired a bullet from country
made pistol, which hit at the head of
deceased Raj Kumar. Thereafter
an
atmosphere of stampede has prevailed.
The incident was witnessed by him (PW1), his brother Rakesh, one Bholanath
Yadav and by many others. Raj Kumar has
died at spot. (PW-1) Manoj Kumar Yadav
further
stated
that
accused-appellants
Rahul Rawat and Prashant Yadav were
already present at spot and they have
stopped the deceased and also exhorted to
kill the deceased.

15. (PW-2) Bhola stated that on
account of land dispute between family of
deceased and of accused-appellant Santosh
Yadav, in 2005 an scuffle has taken place
and in that regard a case was pending in
court. On 20.06.2008 at 12.00 noon when
1 All. Bishnu Srivastava @ Pawan Srivastava & Anr. Vs. Sate of U.P.
765
he (PW-2) was going to market, near home
guard office, he saw that deceased
Rajkumar was going towards market on
motorcycle. Deceased was stopped by
Rahul and Prasant and at the same time
accused Binnu, Raj Nath Yadav and
Pawan came on one motorcycle, while
accused Rinku, Atul and Santosh came on
another motorcycle and they all made
exhortation to kill Raj Kumar and
consequently accused Santosh Kumar
Yadav @ Kariya fired from country made
pistol by touching it at the head of
deceased Raj Kumar. Raj Kumar fell down
and an stampede took place. Manoj,
Rakesh and others ran to save the deceased
but accused threatened to kill them. After
that all accused persons ran away.

16. (PW-3) Amit Kumar Rawat has
stated that his alias name is Anil Kumar
and he runs an auto parts shop at Gyanpur
- Gopiganj road and it is situated at a
distance of 300-400 yards from veterinary
hospital. On 20.06.2008 at around 12.00
noon while he was sitting outside his shop,
he saw Raj Kumar (deceased) was going
towards Gyanpur by motorcycle. On two
motorcycles, six accused persons came
from behind. Accused-appellants Pawan,
Binnu and Rajnath Yadav were on one
motorcycle
and
accused-appellants
Sandeep, Atul and Santosh Kumar were on
another motorcycle and they all followed
Rajkumar. As Raj Kumar started moving
towards Gyanpur, accused Prashant and
Rahul, who were already standing there,
stopped Raj Kumar from front side while
remaining six accused-appellants came
from behind and they exhorted to kill Raj
Kumar. Accused-appellant Santosh Kumar
Yadav @ Kariya took out a country made
pistol and fired a bullet at head of Raj
Kumar. Some persons ran to save
deceased
but
accused-appellants
threatened to kill them too. Raj Kuar has
died of fire arm injury.

17. (PW-4) Dr Rajiv Kumar has
conducted postmortem on dead body of
deceased and has
duly proved the
postmortem report Ex.ka-3.

18. (PW-5) Constable Radhey
Shyam
Bharti
has
recorded
first
information report.

19. (PW-6) Inspector Umesh Pratap
Singh has conducted initial investigation
while further investigation was conducted
by (PW-7) SHO Ram Manorath Thapa.

20. (PW-8) H.M. Kedar Nath Tiwari
has recorded FIR of Arms Act and
deposed regarding recovery of country
made
pistol
from
accused-appellant
Santosh Kumar. (PW-9) S.I. Ramchandra
Tiwari has conducted investigation of case
under Arms Act against accused-appellant
Santosh
Kumar.
(PW-10)
S.I.
Ram
Krishna Rastogi has conducted part
investigation of case under Arms Act.

21. So far as the contention, that
(PW-1) Manoj Kumar Yadav and (PW-2)
Bhola are interested witnesses or that these
witnesses have not explained that how
they reached at spot, is concerned, it is
well settled position that a natural witness
may not be labelled as interested witness.
Interested witnesses are those who want to
derive
some
benefit
out
of
the
litigation/case. In case, the circumstances
reveal that a witness was present on the
scene of occurrence and had witnessed the
crime, his deposition cannot be discarded
merely on the ground of being closely
related to the victim. Generally close
relations of the victim are unlikely to
falsely implicate anyone. Relationship is
766 INDIAN LAW REPORTS ALLAHABAD SERIES
not sufficient to discredit a witness unless
there is motive to give false evidence to
spare the real culprit and falsely implicate
an innocent person is alleged and proved.
A witness is interested only if he derives
benefit from the result of the case or as
hostility to the accused. In case of State of
Punjab Vs Hardam Singh, 2005, S.C.C.
(Cr.) 834, it has been held by the Apex
Court that ordinarily the mere relations of
the deceased would not depose falsely
against innocent persons so as to allow the
real culprit to escape unpunished, rather
the witness would always try to secure
conviction of real culprit. In the case of
Dilip Singh Vs State of Punjab, A.I.R.
1953, S.C. 364, it was held by the Supreme
Court
that
normally
a
witness
is
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless
witness has cause, such as enmity against
accused to which to implicate falsely.
Similar view has been taken by the
Supreme Court in Harbans Kaur V State
of Haryana, 2005, S.C.C. (Crl.) 1213; and
in State of U.P. vs. Kishan Chandra and
others,
2004
(7),
S.C.C.
629. The
contention about branding the witnesses as
'interested witness' and credibility of close
relationship
of
witnesses
has
been
examined by Apex Court in number of
cases. A close relative, who is a very
natural witness in the circumstances of a
case, cannot be regarded as an 'interested
witness', as held by the Supreme Court in
Dalbir Kaur v. State of Punjab, AIR 1977
SC 472. The mere fact that the witnesses
were relations or interested would not by
itself be sufficient to discard their evidence
straight way unless it is proved that their
evidence suffers from serious infirmities
which raises considerable doubt in the
mind of the court. Similar view was taken
in case of State of Gujrat v. Naginbhai
Dhulabhai Patel, AIR 1983 SC 839.
Similarly in Ramashish Rai Vs. Jagdish
Singh, (2005) 10 SCC 498, the following
observations were made by the Apex
Court:

"The requirement of law is that
the testimony of inimical witnesses has to
be considered with caution. If otherwise
the witnesses are true and reliable their
testimony cannot be thrown out on the
threshold by branding them as inimical
witnesses. By now, it is well-settled
principle of law that enmity is a double-
edged sword. It can be a ground for false
implication. It also can be a ground for
assault. Therefore, a duty is cast upon the
court to examine the testimony of inimical
witnesses with due caution and diligence."

Similarly, in Piara Singh and
Ors. Vs. State of Punjab [AIR 1977 SC
2274 = (1977) 4 SCC 452], the Court held:

"It is well settled that the
evidence
of
interested
or
inimical
witnesses is to be scrutinised with care but
cannot be rejected merely on the ground of
being a partisan evidence. If on a perusal
of the evidence the Court is satisfied that
the evidence is creditworthy there is no
bar in the Court relying on the said
evidence."

In Hari Obula Reddy and Ors.
Vs. The State of Andhra Pradesh,
(1981) 3 SCC 675, a three-judge Bench of
Apex Court observed:

"..
it
is
well
settled
that
interested evidence is not necessarily
unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting
or rejecting sworn testimony. Nor can it be
laid down as an invariable rule that
interested evidence can never form the
basis of conviction unless corroborated to
a material extent in material particulars
by independent evidence. All that is
1 All. Bishnu Srivastava @ Pawan Srivastava & Anr. Vs. Sate of U.P.
767
necessary is that the evidence of interested
witnesses should be subjected to careful
scrutiny and accepted with caution. If on
such scrutiny, the interested testimony is
found to be intrinsically reliable or
inherently probable, it may, by itself, be
sufficient, in the circumstances of the
particular case, to base a conviction
thereon."

A
survey
of
the
judicial
pronouncements of Apex Court on this
point leads to the inescapable conclusion
that the evidence of a closely related
witnesses is required to be carefully
scrutinised and appreciated before any
conclusion is made to rest upon it,
regarding the convict/accused in a given
case. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to the
deceased. In case the evidence has a ring
of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon. (See Anil Rai Vs. State of
Bihar, (2001) 7 SCC 318; State of U.P.
Vs. Jagdeo Singh, (2003) 1 SCC 456;
Bhagalool Lodh & Anr. Vs. State of U.P.,
(2011) 13 SCC 206; Dahari & Ors. Vs.
State of U. P., (2012) 10 SCC 256; Raju @
Balachandran & Ors. Vs. State of Tamil
Nadu, (2012) 12 SCC 701; Gangabhavani
Vs. Rayapati Venkat Reddy & Ors.,
(2013) 15 SCC 298; Jodhan Vs. State of
M.P., (2015) 11 SCC 52)."

In
view
of
the
aforesaid
exposition of law, this Court would only
be required to carefully scrutinize and
appreciate the evidence of closely related
witnesses
before
arriving
at
any
conclusion.
However,
their
evidence
cannot be disbelieved only on the ground
that these witnesses are related to each
other or to the deceased and when the
evidence has a ring of truth as being
cogent, credible and trustworthy, as has
already been discussed herein above.

In the present case, it is correct
that (PW-1) Manoj Kumar Yadav is
brother of deceased and (PW-2) Bhola is
uncle of deceased, but these witnesses
have consistently deposed about their
presence at spot. As per (PW-1) Manoj
Kumar Yadav, at the time of incident, he
was going to Gyanpur on foot. As per
(PW-2) Bhola, he was going to market and
in the way he witnessed the incident. It
was day time. They have been subjected to
cross-examination, and so far as their
presence at spot is concerned, no such
adverse effect could emerge, so as to make
the presence of these witnesses at the
scene of offence, doubtful. Version of
(PW-1) Manoj Kumar Yadav has been
amply corroborated by (PW-2) Bhola. One
of the important aspect is that (PW-1)
Manoj Kumar Yadav has lodged first
information report without any undue
delay. In view of all these facts, it can not
be said that (PW-1) Manoj Kumar Yadav
and (PW-2) Bhola have not explained as to
how they reached at spot. Thus, the
contention of learned counsel for the
accused-appellants has no force.

It is correct that there was
enmity between the parties on account of
murder of father of accused Santosh
Kumar Yadav, however, it is well repeated
remark in criminal matters that enmity is a
double edged weapon and it cuts both
ways. On the one hand, it may be a reason
for false implication while on the other
hand, it may also provide a motive for
commission
of
offence.
Thus,
the
requirement in such matters is that
evidence must be scrutinized carefully in
order to ascertain whether there is any
possibility of false implication on account
of enmity. It would be pertinent to mention
here that in ordinary course a close relative
768 INDIAN LAW REPORTS ALLAHABAD SERIES
of deceased would not implicate an
innocent
person,
sparing
the
actual
assailants.

22. In the instant case, scrutiny of
evidence shows that so far as accusedappellant
Santosh
Kumar
Yadav
is
concerned, specific role of firing at
deceased has been assigned to him. (PW1) Manoj Kumar Yadav and (PW-2) Bhola
have consistently deposed that it was the
accused-appellant Santosh Kumar Yadav,
who has fired at the deceased. Regarding
his role, no major contradiction or
inconsistency could be pointed out in
statement of (PW-1) Manoj Kumar Yadav.
His statement is consistent with the
medical evidence and corroborated by
(PW-2) Bhola. First information report
was lodged by (PW-1) Manoj Kumar
Yadav without any delay, wherein specific
role of firing was assigned to accusedappellant Santosh Kumar Yadav. No doubt
there was delay in recording statement of
(PW-2) Bhola and (PW-3) Amit Kumar
Rawat under Section 161 CrPC, but so far
as (PW-2) Bhola is concerned, his name
figures in first information report as
witness, which was lodged without any
delay. Further the investigating officer was
not asked about reasons of delay in
recording his statement. Once in the first
information report, (PW-2) Bhola was
shown as witness, it was duty of
investigating
officer
to
record
his
statement promptly. There is no such
material on record that after the incident
this witness was not available for his
statement.
In
view
of
these
facts,
testimony of (PW-2) Bhola can not be
doubted on ground of delay in recording
his statement. Mere delay in recording
statement of witness does not necessarily
discredit testimony. The Court may rely on
such testimony if they are cogent and
credible and the delay is explained to the
satisfaction of the Court. [See Ganeshlal v.
State of Maharashtra (1992) 3 SCC 106;
Mohd. Khalid v. State of W.B. (2002) 7
SCC 334; Prithvi (Minor) v. Mam Raj
(2004) 13 SCC 279 and Sidhartha
Vashisht @ Manu Sharma v. State (NCT
of Delhi) (2010) 6 SCC 1]. However, so
far (PW-3) Amit Kumar Rawat is
concerned, his statement was recorded
with much delay on 13.07.2008 and he
was not shown as witness in the first
information report and thus, it does not
appear safe to rely his testimony. Except
the fact that it would not be safe to rely
testimony of (PW-3) Amit Kumar Rawat,
we do not find any force in contentions
raised by learned senior counsel.

23. It was next argued that spot of
the
alleged
incident
could
not
be
established. As per FIR, the incident took
place near veterinary Hospital, while in
site plan, the alleged hospital has not been
shown and the spot of the incident has
been shown in front of the shop of Anoop
Electrical. It was stated that (PW-3) Amit
Kumar Rawat has categorically stated that
alleged incident took place near veterinary
hospital,
while
as
per
Investigating
Officer, the veterinary Hospital is situated
at quite long distance from spot of the
incident as shown in the site plan. It was
further pointed out that in his cross
examination (PW-2), Bhola has stated that
deceased was stopped and fired near Home
Guard Commandant Office.

24. Regarding these contentions it
may be seen that as per version in first
information report, the incident took place
near veterinary hospital. It does not mean
that incident took place just in front of that
hospital. Purport of using word 'near' may
vary person to person in terms of distance.
1 All. Bishnu Srivastava @ Pawan Srivastava & Anr. Vs. Sate of U.P.
769
As per site plan, spot of incident has been
shown opposite to shop of Anoop Electrical
but investigating officer (PW-6) Umesh Pratap
Singh has stated that veterinary hospital is
situated in north side from point 'Á' shown in
site plan Exhibit Ka-19. It is correct that
veterinary hospital was not shown in site plan
but there is evidence to show that it is situated
nearby. It is correct that (PW-6) Umesh Pratap
Singh has stated that incident took place
opposite to Home guard office but this
statement does not match with the site plan
prepared by him, as in the site plan, place of
incident has been shown opposite to shop of
Anoop Electrical and home guard office is
situated at some steps from there, however
these are minor contradictions. It is correct that
(PW-2) Bhola stated that deceased was
stopped near home guard office and this fact is
also supported by investigating officer while as
per (PW-3) Amit Kumar Rawat, incident took
place near veterinary hospital but it is also a
minor inconsistency. Fact remains that all
alleged points like veterinary hospital, home
guard office and Annop Electrical are situated
in same vicinity. In normal parlance, a witness
may state that incident to be happened near
veterinary hospital while another witness may
say that it took place near Anoop Electrical or
near any other shop/office situated nearby.
Such inconsistencies are quite common.
Situation may have been different, had some
witnesses would have spoken altogether some
distant place as spot of incident, but it is not so
in this case. Considering all facts and evidence,
it can not be said that alleged inconsistencies
are of such nature so as to create any doubt
about position of spot or about presence of
(PW-1) Manoj Kumar Yadav and (PW-2)
Bhola or to affect their testimony adversely.
We find no substance in the argument of
learned senior counsel.

25. Learned Senior counsel has
pointed out certain contradictions and
inconsistencies
in
the
statements
of
witnesses. It was stated that as per
prosecution version, deceased was going
on motorcycle, but his motorcycle was not
found on the spot and that as per
prosecution version, deceased has died on
the spot but when the police reached at the
spot, his body was lying in Hospital. In
this regard, it may be observed that such
contradictions and inconsistencies do not
affect pith and substance of testimony of
(PW-1) Manoj Kumar and (PW-2) Bhola.
It is correct that there is nothing to indicate
that after incident, who has taken away
motorcycle of deceased but it is not such a
factor so as to affect prosecution version.
So far as dead body of deceased is
concerned, there is evidence of (PW-1)
Manoj Kumar Yadav and (PW-2) Bhola
that after incident, deceased was taken to
hospital. Though deceased has died at
spot, but it is not uncommon to take him to
hospital in hope that he may be surviving.
It is well settled in law that the minor
discrepancies are not to be given undue
emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of
the Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy
goes to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
not be taken to be a ground to reject the
prosecution
evidence.
The
omission
should create a serious doubt about the
770 INDIAN LAW REPORTS ALLAHABAD SERIES
truthfulness or creditworthiness of a
witness. It is only the serious contradictions
and omissions which materially affect the
case of the prosecution but not every
contradiction or omission. (See Rammi @
Rameshwar Vs. State of M.P., (1999) 8 SCC
649; Leela Ram (dead) through Duli Chand
Vs. State of Haryana and Another, (1999) 9
SCC 525; Bihari Nath Goswami Vs. Shiv
Kumar Singh & Ors., (2004) 9 SCC 186;
Vijay @ Chinee Vs. State of Madhya
Pradesh, (2010) 8 SCC 191; Sampath Kumar
Vs. Inspector of Police, Krishnagiri, (2012) 4
SCC 124; Shyamal Ghosh Vs. State of West
Bengal, (2012) 7 SCC 646 and Mritunjoy
Biswas Vs. Pranab @ Kuti Biswas and Anr.,
(2013) 12 SCC 796).

26. Having considered entire evidence
carefully, so far the involvement of accusedappellant Santosh Kumar Yadav is concerned,
there is clear and cogent evidence against him.
In this regard, no major contradiction or
infirmity could be pointed out in testimony of
(PW-1) Manoj Kumar Yadav. Version of
(PW-1) Manoj Kumar Yadav is quite
consistent that it was the accused-appellant
Santosh Kumar Yadav, who fired shot at the
deceased. His version is consistent with first
information report and is supported by medical
evidence. Statement of (PW-1) Manoj Kumar
is corroborated by (PW-2) Bhola in material
particulars.
Both
these
witnesses
have
subjected to cross-examination, but they
remained stick to their version and no such fact
could be elicited, which may cause any dent
against
their
credibility.
Regarding
involvement of accused-appellant Santosh
Kumar Yadav we find testimony of (PW-1)
Manoj Kumar Yadav and (PW-2) Bhola
coupled with other evidence on record quite
impeccable and reliable.

27. However, examining the entire
evidence carefully, it appears that evidence
regarding common object of unlawful
assembly comprising all the accusedappellants to commit murder of deceased,
is quite vague. In fact, there is no
categorical and cogent evidence that all the
accused-appellants were present at the spot
and thus, the very existence of unlawful
assembly appears doubtful. Provisions of
Section 149 of IPC provide that if an
offence is committed by any member of an
unlawful assembly in prosecution of the
common object of that assembly, or such
as the members of that assembly knew to
be likely to be committed in prosecution of
that object, every person who at the time
of the committing of that offence, is a
member of the same assembly is guilty of
that offence. The first part of Section 149
IPC states about the commission of an
offence in prosecution of the common
object of the assembly whereas the second
part takes within its fold knowledge of
likelihood of the commission of that
offence in prosecution of the common
object. Scope of two parts of Section 149
IPC has been explained in Rajendra
Shantaram
Todankar
v.
State
of
Maharashtra and Ors. [JT 2003 (2) SC
95], the Apex Court has explained Section
149 and held as under:

"14. Section 149 of the Indian
Penal Code provides that if an offence is
committed by any member of an unlawful
assembly in prosecution of the common
object of that assembly, or such as the
members of that assembly knew to be
likely to be committed in prosecution of
that object, every person who at the time
of the committing of that offence, is a
member of the same assembly is guilty of
that offence. The two clauses of Section
149 vary in degree of certainty. The first
clause contemplates the commission of an
offence by any member of an unlawful
1 All.