# Dhruv Raj Rai & Ors. (In Jail) v. The State of U.P

- **Citation:** (2019) 2 ILRA 42
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-12
- **Case number:** Criminal Appeal No. 2833 of 2000
- **Bench:** Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhruv-raj-rai-ors-in-jail-v-the-state-of-u-p-44762
- **Pages:** 22

## Headnote

A. Indian Penal Code, 1860 - criminal
appeal - Sections 147 (punishment for
rioting), Section 148 (rioting armed with
deadly
weapons), Section 149
(every
member of unlawful assembly guilty of
offence
committed
in
prosecution
of
common object), Section304 (punishment
for culpable homicide not amounting to
murder),Section
326(voluntary
causing
grievous hurt by dangerous weapon or
means),Section323(voluntarily
causing
grievous hurt), Section504 IPC (Intentional
insult with intent to provoke breach of
peace) - accused persons were examined
under
Section
313
Cr.P.C,
1973-
Prosecution proved motive of the alleged
incident. - the involvement of all the
accused appellants in the alleged incident is
established - injured witness has made
clear and cogent statement - version is
consistent
with
medical
evidence-
conviction. (Para 9, 27 & 28)

B. Indian Evidence Act, 1872 - Natural
witness
may
not
be
labelled
as
interested witness -Interested witnesses
are those who want to derive some
benefit out of the litigation/case- A
witness is interested only if he derives
benefit from the result of the case or as
hostility to the accused. It is well settled
that if a case is based on direct
testimony of eye witnesses, proof of
motive is not required. (Para 23 & 24)

C. Indian Evidence Act, 1872 - Consistency
of oral evidence with medical evidence -
though the ocular testimony of a witness
has greater evidentiary value vis-a-vis
medical
evidence,
but
when
medical
evidence makes the ocular testimony
improbable, that becomes a relevant factor
in the process of the evaluation of evidence.
 (Para 25)

Held:- Whether the members of the unlawful
assembly really had the common object to
cause the murder of the deceased has to be
decided in the facts and circumstances of each
case, nature of weapons used by such
members, the manner and sequence of attack
made by those members on the deceased and
the circumstances under which the occurrence
took place. It is an inference to be deduced
from the facts and circumstances of each case
(Para 28)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,946 of 70,589. This is a partial read: ask again with offset=39946 for what follows._

42 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 42

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 2833 of 2000

Dhruv Raj Rai & Ors. ...Appellants
 (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajendra Rai, Sri Shashi Bhushan Rai.

Counsel for the Opposite Party:
A.G.A., Sri Sharad Kumar Srivastava, Sri
Rajesh Yadav, Sri S. N. Tripathi.

A. Indian Penal Code, 1860 - criminal
appeal - Sections 147 (punishment for
rioting), Section 148 (rioting armed with
deadly
weapons), Section 149
(every
member of unlawful assembly guilty of
offence
committed
in
prosecution
of
common object), Section304 (punishment
for culpable homicide not amounting to
murder),Section
326(voluntary
causing
grievous hurt by dangerous weapon or
means),Section323(voluntarily
causing
grievous hurt), Section504 IPC (Intentional
insult with intent to provoke breach of
peace) - accused persons were examined
under
Section
313
Cr.P.C,
1973-
Prosecution proved motive of the alleged
incident. - the involvement of all the
accused appellants in the alleged incident is
established - injured witness has made
clear and cogent statement - version is
consistent
with
medical
evidence-
conviction. (Para 9, 27 & 28)

B. Indian Evidence Act, 1872 - Natural
witness
may
not
be
labelled
as
interested witness -Interested witnesses
are those who want to derive some
benefit out of the litigation/case- A
witness is interested only if he derives
benefit from the result of the case or as
hostility to the accused. It is well settled
that if a case is based on direct
testimony of eye witnesses, proof of
motive is not required. (Para 23 & 24)

C. Indian Evidence Act, 1872 - Consistency
of oral evidence with medical evidence -
though the ocular testimony of a witness
has greater evidentiary value vis-a-vis
medical
evidence,
but
when
medical
evidence makes the ocular testimony
improbable, that becomes a relevant factor
in the process of the evaluation of evidence.
 (Para 25)

Held:- Whether the members of the unlawful
assembly really had the common object to
cause the murder of the deceased has to be
decided in the facts and circumstances of each
case, nature of weapons used by such
members, the manner and sequence of attack
made by those members on the deceased and
the circumstances under which the occurrence
took place. It is an inference to be deduced
from the facts and circumstances of each case
(Para 28)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

1. Ravinder Kumar & anr. Vs St. of Punj.
(2001) 7SCC 690

2. Amar Singh Vs Balwinder Singh & ors.
(2003) 2 SCC 518

3. Tara Singh Vs St. of Punj. AIR (1991) SC 63

4. Sahebrao & anr. Vs St. of Mah. (2006) 9
SCC 794

5. Palani Vs St. of T.N. Criminal Appeal No.
1100 of 2009

6. St. of Punj. Vs Hardam Singh 2005 SCC (Cr.)
834

7. Dilip Singh Vs St. of Punj. A.I.R. 1983 S.C.
364
2 All. Dhruv Raj Rai & Ors. Vs The State of U.P.
43
8. Harbans Kaur Vs St. of Har. 2005 S.C.C.
(Crl.) 1

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

10. Dalbir Kaur Vs St. of Punj. AIR 1977 SC
472.

11. Gujrat Vs Naginbhai Dhulabhai Patel AIR
1983 SC 839.

12. Solanki Chimanbhai Ukabhai Vs St. of Guj.
AIR 1983 SC 484

13. Mani Ram & ors. Vs St. of U.P. 1994 Supp
(2) SCC 289

14. Khambam Raja Reddy & anr. Vs Public
Prosecutor H.C. of A.P. (2006) 11 SCC 239

15. St. of U.P. Vs Dinesh (2009) 11 SCC 566

16. St. of U.P. Vs Hari Chand (2009) 13 SCC
542

17. Jarnail Singh Vs. St. of Punj. (2009) 9SCC
719

18. Krishan Vs St. of Har. (2006) 12 SCC 459

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

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

21. St. of Punj. Vs Sanjiv Kumar alias Sanju &
ors. JT (2007) 9 SC 274

22. Allauddin Mian & ors. Sharif Mian & anr. Vs
St. of Bihar JT (1989) 2 SC 171

23. Daya Kishan Vs St. of Har. JT (2010) 4 SC
325

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

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

26. Ranbir Yadav Vs St. of Bihar JT (1995) 3
SC 228

27. Rachamreddy Chenna Reddy & ors. Vs St.
of A.P. JT (1999) 1 SC 412
(Delivered by Hon'ble Raj Beer Singh, J.)

1. This appeal arises out of impugned
judgment and order dated 02.11.2000
passed by learned Additional District &
Sessions Judge, Court No. 7, Azamgarh in
Session Trial No. 203 of 1988 (State vs.
Sankatha and Others), whereby accusedappellant Dhruv Raj Rai has been convicted
under Section 304 Indian Penal Code
(hereinafter referred to as 'IPC') and
sentenced
to
seven
years
rigorous
imprisonment along with fine of Rs. 1,000/-
and accused-appellants, namely Ramesh
Rai, Radhey Shyam, Ghan Shyam alias
Dhannu,
Man
Shyam
alias
Munnu,
Rajeshwar Rai, Singhasan, Jagdish and
Mahendra have been convicted under
Section 304/149 IPC and sentenced to seven
years rigorous imprisonment and fine of Rs.
1,000/- each. All the appellants-accused
were further convicted under Section
326/149 IPC and sentenced to five years
rigorous imprisonment with fine of Rs.
500/- each. Accused-appellants Ramesh Rai
and Radhey Shyam were further convicted
under Section 147 IPC and sentenced to one
year rigorous imprisonment. Accusedappellants, namely, Ghan Shyam alias
Dhannu,
Man
Shyam
alias
Mannu,
Rajeshwar
Rai,
Singhasan,
Jagdish,
Mahendra and Dhruv Raj Rai were further
convicted under Section 148 Cr.P.C. and
sentenced
to
two
years
rigorous
imprisonment. In default of payment of fine
under Sections 304 and 326 IPC, accusedappellants have to undergo six and three
months
additional
imprisonment.
The
substantial sentences awarded to each of
the accused persons were directed to run
concurrently.
44 INDIAN LAW REPORTS ALLAHABAD SERIES

2. At the very outset it may be
mentioned that co-accused Sankatha,
Ghan Shyam and Surya Bali have died
during trial, while accused-appellant no. 2
Rajeshwar Rai and accused-appellant no.
5 Ghan Shyam alias Dhannu have expired
during pendency of this appeal and thus,
appeal in respect of appellant no. 2
Rajeshwar Rai and accused-appellant no.
5 Ghan Shyam alias Dhannu stand abated.

3. The prosecution version is that
before the incident of the present case,
on 09.01.1987 Ghan Shyam Rai and
others
have
given
beatings
to
complainant Rajender Rai (PW 1) and
others and in that regard a case was
lodged. The incident of the present case
took place on 06.03.1989. It was alleged
that on 06.03.1987 at around 11:30 AM
when Bajrangi Rai was going to irrigate
his field, the accused-appellants came
there and hurling abuses, they asked him
to stop irrigation. Hearing noise, one
Phool Chand, Gorakh Rai, Harikesh Rai
and some other persons also reached
there but the accused-appellant no. 1
Dhruv Raj Rai gave a spear (ballam)
blow
at
Bajrangi
while
remaining
accused persons started beating with
lathis.
When
PW-2
Phool
Chand,
Rajendra Rai and Harikesh tried to
intervene, they were also beaten by the
accused persons.

4. The complainant reported matter
to police by submitting a written tehrir
Ex. Ka-1 and on that basis, case was
registered against all the accused persons
under Sections 147, 148, 149, 326, 323,
504 IPC on 06.03.1989 at about 12:45 PM
vide FIR Ex. Ka-10.

5. Injured Phool Chand was
medically examined by PW-4 Dr. Abdul
Moin vide MLC Ex. Ka-2 and following
injuries were found on his person:

(i) 3.5 cm x 1 cm x muscle deep
lacerated wound on the right side of
forehead 1 cm above the right eyebrow.
Clotted blood present.

(ii) 2.5 cm x 0.5 cm x muscle
deep vertical lacerated wound on the
forehead including inner part of right
eyebrow. Clotted blood present.

(iii) 10 cm x 1 cm x scalp deep
lacerated wound on the middle part of
head 15 cm above the left ear. Clotted
blood present.

(iv) 4.5 cm x 1.0 cm x through
and through incised wound on the letf ear.
Blood clotted present. Margins clear cut.

(v) 13.5 cm x 0.5 cm x muscle
deep oblique incised wound on the left
side of neck including the pinna of left
ear. Margins clear cut blood present.

(vi) 2 cm x 0.5 x muscle deep
incised wound on the left side of face 3 cm
below the outer contusion of left eye.
Blood present.

(vii) 4 cm linear abrasion on the inner
part of right thigh 25 cm above the knee joint.

(viii) 19 cm linear abrasion on the
back of left thigh 21 cm above the knee joint.

(ix) 22 cm x 14 cm contusion on
the left forearm including elbow joint
deformity just Adv. x-ray.

(x) 2 cm x 1.5 cm abrasion on
the back of left elbow just. Clotted blood
present.
2 All. Dhruv Raj Rai & Ors. Vs The State of U.P.
45

(xi) 3.5 cm x 0.5 cm x muscle
deep irain severe incised wound on the
outer and back of left upper arm 7 cm
above the left elbow joint.

(xii) 10 cm linear abrasion on
the left side of abdomen including lower
part of chest.

(xiii) 15 cm x 2.5 cm contusion
on the left side of outer part of chest 9 cm
outer and below the left nipple. Colour
reddish.

(xiv) 10 cm x 4 cm contusion on
the dorsum of left hand. Adv. x-ray. Kept
U.O.

On the same day, injured
Harikesh
Rai
was
also
medically
examined by PW-4 Dr. Abdul Moin vide
MLC Ex. Ka-3 and following injuries
were found on his person:

(i) 2 cm x 1.5 cm scalp deep
triangular lacerated wound on the front of
head 8 cm above the base of nose.

(ii) 8 cm x 1 cm abrasion on the
right side of head 11 cm above the right
ear. Blood present.

(iii) 17 cm x 2.5 cm oblique
contusion on the right upper back 8 cm
below the shoulder joint colour reddish.

(iv) 9 cm linear irain severe
abrasion with 2 cm x 0.5 cm muscle deep
incised wound on the midline of back 23
cm below the 7th cervical spin. Blood
present.

(v) 8 cm x 2 cm oblique
contusion on the right upper back 15 cm
below the right shoulder joint. Colour
reddish.

(vi) 23 cm x 2.5 cm oblique
contusion on the left side of chest and
abdomen adjacent to left nipple. Colour
reddish.

(vii) 2 cm x 0.5 cm x muscle
deep incised wound on the left side of
chest 7 cm inner and below the left nipple.
Blood present.

(viii) 2 cm x 0.5 cm x muscle
deep incised irain severe wound on the
abdomen 3 cm below the umbilicus. Blood
present.

(ix) 4 cm x 2.5 cm abrasion on
the outer and back of left upper arm 6 cm
above the elbow joint. Blood present.

(x) 15 cm x 2 cm contusion on
the outer and back of left forearm
including elbow joint colour reddish.

(xi) 13 cm x 11 cm contusion on
the dorsum of left hand including wrist
joint. Adv. X-ray.

(xii) 2 cm x 0.3 cm abrasion on
the dorsum of right hand 4 cm below the
wrist joint blood present.

Injured
Rajendra
Rai
was
medically examined by PW-4 Dr. Abdul
Moin vide MLC Ex.Ka-4 and following
injuries were found on his person:

(i) 3 cm x 0.5 cm x scalp deep
irain severe incised wound on the front of
head 7 cm above the base of nose. Blood
present. Margins clean cut.

(ii) 4 cm x 0.5 cm x scalp deep
vertical lacerated wound on the left side
of head 10cm above the left ear. Blood
present.
46 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) 5 cm x 0.5 cm x upto bone
deep lacerated wound on the middle part
of head 2 cm above the injury no. II.

(iv) 3 cm x 0.5 cm x scalp deep
lacerated wound on the right side of head
11 cm above the right ear.

(v) 2 cm x 2.5 cm x scalp deep
lacerated circular wound on the right side
of head 2 cm below the injury no. IV.

(vi) 8 cm x 2.5 cm x 2 cm deep
incised wound on the right shoulder
region. Clotted blood present. Adv. x-ray
kept U.O.

(vii) 7 cm x 2.5 cm abraded
contusion on the outer part of right upper
arm 14 cm below the injury no. VI. Blood
present colour reddish.

(viii) 7 cm x 0.5 cm abrasion on
the outer and lower part of right upper
arm 4 cm above the elbow joint. Blood
present.

(ix) 8 cm x 2 cm abraded
contusion on the outer and back of right
forearm 11 cm below the elbow joint.
Blood present scalp not formed colour
reddish.

(x) 8 cm x 5 cm contusion with
0.5 cm x 0.2 cm x muscle deep lacerated
wound on the dorsum of right hand 6 cm
distal to wrist joint colour reddish. Blood
present.

(xi) 5 cm x 1 cm x muscle deep
incised wound on the ventral aspect of
right palm including wrist joint margin
clear cut blood present.

(xii) 3 cm x 0.5 cm x muscle
deep incised wound on the right palm
including base of ring finger margins
clear cut. Blood present.

(xiii) 2.5 cm x 0.5 cm x muscle
deep incised wound on the ventral aspect
of right middle finger 1 cm x proximal to
its tip.

(xiv) 4 cm x 0.5 cm x muscle
deep incised wound on the ventral aspect
of right ring finger 1.5 cm proximal to its
tip.

(xv) 2 cm x 0.5 cm x muscle
deep incised wound on the ventral aspect
of right little finger 1 cm proximal to its
tip.

(xvi) 0.5 cm x 0.3 cm x muscle
deep lacerated wound on the outer part of
right leg 18 cm below the knee joint.
Blood present

(xvii) 5 cm x 0.5 cm x muscle
deep incised wound on the front of right
leg. 1.5 cm below the injury no. XVI.

(xviii) 2 multiple abrasion in the
areas of 29 cm x 13 cm on the front and
outer part of right leg 10 cm below the
knee joint.

(xix) 12 cm x 2.5 cm contusion
on the inner and front of left upper arm
26 cm below the left shoulder joint.

(xx) 7 cm x 1 cm x muscle deep
incised wound irain severe on the ventral
aspect of left palm adjacent to writ joint.

(xxi) 12 cm x 2 cm x upto bone
deep incised wound on the outer part of
2 All. Dhruv Raj Rai & Ors. Vs The State of U.P.
47
left palm adjacent to injury no. XX. Adv.
x-ray kept U.O.

(xxii) 6 cm x 1 cm x muscle deep
incised wound on the ventral aspect of left
thump upto its base.

(xxiii) 11 cm x 1 cm x skin deep
incised wound on the left upper back 14 cm
below the left shoulder joint blood present.

(xxiv) 14 cm x 2.5 cm oblique
contusion on the left middle back 13 cm
below the injury no. XXIII. Colour
reddish.

6.

During
treatment,
injured
Bajrangi Rai succumbed to injuries and
thus, sec 304 IPC was added. Inquest
proceedings on the dead body of Bajrangi
Rai were conducted by S.I. Ambika
Pandey and thereafter his dead body was
sent for postmortem.

7. PW-5 Dr. N.K. Jaiswal conducted
post-mortem on the dead body of
deceased vide post-mortem report Ex. Ka8 and following injuries were found on
his person:

(i) penetrating wound 2.25 cm x 1
cm x abdominal cavity deep left side
abdomen oblique in direction 6 cm below
and out from umbilicus 4 o'clock position.

(ii) 16 cm stitched wound (surgical)
paramedian vescial rt side abdomen lower
part 1 cm away from umbilicus one
drainage tube present left side abdomen
lower part.

According to autopsy surgeon, the
cause of death of the deceased is due to
shock and haemorrhage as a result of
ante-mortem injury.

8. After completion of investigation,
all the accused-appellants were charge
sheeted. Learned trial court framed charge
against accused Dhruv Raj Rai under
Section 304 IPC, 148, 304/149, 326/149
IPC, while accused-appellants Ramesh Rai
and Radhey Shyam were charged under
section 147, 326/149 and 304/149 IPC and
accused-appellants Ghan Shyam alias
Dhannu,
Man
Shyam
alias
Mannu,
Rajeshwar Rai, Singhasan, Jagdish and
Mahendra were charged under Section
148, 326/149 and 304/149 IPC. The
accused persons pleaded not guilty and
claimed trial.

9. So as to hold the accused persons
guilty, prosecution has examined seven
witnesses. After prosecution evidence,
accused persons were examined under
Section 313 Cr.P.C, wherein they have
denied the evidence and claimed false
implication. However, no oral evidence
was adduced in defence. In documentary
evidence, accused persons have filed
copies of certain documents viz Ex. Kha1 to kha-5 in their defence.

10. After hearing and analyzing the
evidence on record, learned Trial court
convicted the accused-appellants under
the aforesaid sections vide impugned
judgment and order dated 02.11.2000 and
sentenced
them
as
mentioned
in
paragraph no. 1 of this judgment.

11.
Being
aggrieved
by
the
impugned judgment and order of trial
court,
the
accused-appellants
have
preferred present criminal appeal.

12. Heard Sri Rajendra Rai, learned
counsel for the accused-appellants, Sri
Sharad Kumar Srivastava, learned counsel
for the complainant and Sri Nagendra
48 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Srivastava, learned A.G.A. for the
State-respondent.

13. Learned counsel for the accusedappellants has argued:

(i) that there is undue delay in
lodging the FIR. As per prosecution
version, the alleged incident took place on
06.03.1987 at 11:30 AM but the FIR was
lodged on 06.03.1987 at 12:45 hours,
which shows that FIR was lodged after
making consultation and the same makes
prosecution case doubtful.

(ii) that PW-1 Rajender Rai, PW-2
Phoolchand, PW-3 Surendra Kumar Rai are
interested witnesses and thus, their testimony
cannot be believed. Further, in his crossexamination, PW 1 has not supported
prosecution version regarding involvement
of
accused-appellants,
which
makes
prosecution version doubtful.

(iii) that the appellants have
been falsely implicated in this case on
account of enmity. In that regard certain
documents of previous litigation were
also referred. It was argued that accusedappellants have been falsely implicated on
account of land dispute.

(iv) that medical evidence is not
consistent with the ocular testimony of the
witnesses and thus, the evidence of PW-1,
PW-2 and PW-3 cannot be relied upon.

(v)
that
for
the
sake
of
argument, even if the prosecution version
is taken as such, no offence under Section
304/149, 326/149 IPC is made out. It was
pointed out that the alleged incident has
taken place in the year 1987 and thus, the
period of about 32 years has already
elapsed.

(vi) that there are serious
contradictions and inconsistencies in the
statements
of
the
witnesses,
which
rendered their evidence unreliable.

14. On the other hand, supporting
the impugned judgement, it has been
argued
by
State
counsel
that
the
conviction of
the
appellants
is
in
accordance with law and there is no
infirmity in the same. In the alleged
incident several persons have sustained
serious injuries and thus, the delay in
lodging the FIR is quite natural as the first
priority of injured persons would be to get
medical treatment and not to rush to the
police station for lodging FIR. In the
alleged incident PW-2 Phoolchand and
two more persons have sustained severe
injuries and thus, their presence at the
spot can not be doubted at the spot. The
injured witness has made clear and cogent
statement against the accused-appellants
and
no
major
contradiction
or
inconsistency could be pointed out. It was
further submitted that testimony of a
witness can not be disbelieved on the
ground that he is related to deceased or is
an interested witness. An injured witness
would be the last person to spare the
actual assailants and to falsely implicate
any innocent person. It was further
submitted that evidence of PW-1, PW-2
and PW-3 has been amply corroborated
by medical evidence and the nature of
injuries sustained by injured persons as
well as by deceased and the manner of
assault and the weapon used, clearly
brings out a case against the accusedappellants under Section 304 and 326 of
IPC besides Section 147/148 of IPC,
under which they have been held guilty
by the learned trial court. It was argued
that conviction of all the accusedappellants is based on evidence and there
2 All. Dhruv Raj Rai & Ors. Vs The State of U.P.
49
is no error or illegality in the impugned
judgment and order.

15. I have considered the rival
contentions of learned counsel for both
the parties and perused record.

16. In evidence, PW-1 Rajender Rai
stated that before the incident, on
09.01.1987 Dhruv Raj Rai, Mahender,
Ramesh, Ghanshyam alias Dhannu and
Singhasan
have
assaulted
him
and
regarding that incident a case was
registered at police station Phoolpur,
district Azamgarh. The incident of present
case took place on 06.03.1987 at 11:30
AM. When Bajrangi Rai was going to
irrigate his land by pumping set, accused
Dhannu,
Munnu,
Rajeshwar
having
gandasa,
accused
Radhey
Shyam,
Sankatha, Ramesh having lathi, accused
Singhashan, Ghan Shyam having sword,
accused Dhruv Raj and Mahender having
ballam and accused Jagdish having
country made pistol, came there and
making exhortation, accused Dhruv Raj
assaulted
Bajrangi
by
ballam
and
thereafter
all
the
accused
persons
assaulted the injured as well as the
deceased.

17. PW-2 Phool Chand Rai stated
that on the day of incident at about 11:1511:30 AM, he was present at his
agricultural land. Near his land, deceased
Bajrangi was irrigating his wheat crop.
Accused Sankatha Rai, Dhruv Raj Rai,
Ramesh Rai, Ghan Shyam Rai son of
Surya Bali Rai, Jagdish Rai, Mahendra
Rai, Rajendra Rai, Ghan Shyam alias
Dhannu son of Rajeshwar Rai, Manshyam
alias Munnu, Singhasan Rai, Radhey
Shyam
Rai
came
there.
Accused
Sankatha, Ramesh and Radhey Shyam
were having lathi, accused Ghan Shyam,
Man Shyam and Rajeshwar were having
spear (ballam), accused Dhruv Raj and
Mahendra
were
also
having
spear,
accused Ghan Shyam, Man Shyam and
Rajeshwar were having gadasi, accused
Ghan Shyam son of Suryabali and
Singhashan were having sword and
Jagdish was having country made pistol.
They asked Bajrangi to stop water of
irrigation and when Bajrangi refused to do
so, they hurled abuses and starting beating
Bajrangi. Hearing noise, PW-2 Rajendra,
Harikesh and one Rajendra reached there
but they were also assaulted by the
accused persons. Dhruv Raj has given a
spear blow at Bajrangi. PW-2 Phool
Chand further stated that in this incident,
he as well as one Rajendra and Harikesh
also sustained injuries. Bajrangi died of
injuries sustained in the alleged incident
as he has suffered a spear blow at his
stomach. Bajrangi was taken to police
station and thereafter to hospital. PW-2
and other injured were also taken to
hospital and were medically examined.
Rajendra Rai has lodged report at police
station and has taken deceased Bajrangi to
hospital. PW 2 further stated that about 11 1⁄2 months prior to this incident, Ghan
Shyam, Rajeshwar and Raju etc. have
assaulted Rajendra and regarding that
incident, Mahendra, Dhruv Raj, Ramesh,
Singhasan and Ghan Shyam alias Dhannu
have faced the trial and they were
convicted in that case. In the alleged first
incident,
Bajrangi
and
his
brother
Surendra have helped Rajender and due to
this
reason,
accused
persons
have
developed an animosity towards Rajrangi
and Surender.

18. PW-3 Surendra Kumar Rai
stated that on 08.01.1987 Ghan Shyam
alias Dhannu, Singhasan, Mahendra,
Dhruv Raj and Ramesh have assaulted
50 INDIAN LAW REPORTS ALLAHABAD SERIES
Rajender. He (PW-3) has taken Rajendra to
Varanasi and provided treatment to him and in
that incident, PW-3 was an witness. In that
case, above stated accused persons were
convicted. Due to this, accused persons have
developed animosity towards him. The
incident of this case took place on 06.03.1979
at 11:30 AM. He (PW-3) and his brother
Bajrangi were irrigating their land by
pumping set and while his brother was at his
land, hearing noise, PW-3 also reached there
and saw that Sankatha Rai, Radhey Shyam
and Ramesh were having lathi, Dhruv Raj Rai
and Mahendra were having spear, Singhasan
Rai and Ghan Shyam son of Suryabali were
having sword, Jagdish was having country
made pistol, Rajeshwar Rai, Ghan Shyam
alias Dhannu, Ghan Shyam alias Munnu were
having gadasi and they all were making
exhortation to kill Bajrangi. Jagdish has fired a
shot with country made pistol. Hearing noise,
Harikesh Rai, Phool Chand Rai, Rajendra Rai
also reached there. On the exhortation of
Jagdish Rai, Dhruv Raj Rai gave a spear blow
at Bajrangi, which hit at his stomach while
rest of the accused persons assaulted Harikesh
Rai, Phool Chand Rai and Rajendra. PW-3
further stated that he was irrigating his land
but accused persons wanted to irrigate their
land and have asked them to stop water of
irrigation. In this incident, Bajrangi, Harikesh
Rai, Phool Chand and Rajendra have
sustained injuries. Bajrangi has sustained
serious injuries. Rajender Rai has lodged the
FIR and Bajrangi was taken to the hospital.
Harikesh, Phool Chand and Rajendra were
also medically examined and were provided
treatment. On 06.03.1987, Bajrangi Rai
succumbed to injuries in district hospital.

19. PW-4 Dr. Abdul Moin has
medically examined injured Phool Chand
Rai, Harikesh Rai, Rajendra Rai and has
proved their MLC as Ex.Ka-2, Ex. Ka-3
and Ex. Ka-4.

20. PW-5 Dr. N.K. Jaiswal has
conducted postmortem on the dead body
of the deceased Bajrangi while PW-6 Dr.
P.K. Sinha has medically examined
deceased Bajrangi on 06.03.1987, while
he was in injured condition.

21. PW-7 S.I. Shakuntala Pandey
has proved FIR Ex. Ka-10 and GD entry
Ex.Ka-11 by way of secondary evidence.
She has also proved other relevant
documents of inquest Ex.Ka-13 to Ex.Ka16 including panchayatnama by way of
secondary evidence. She has also proved
site plan of the spot prepared by S.I. Vijay
Singh as Ex.Ka-18 and chargesheet as
Ex.Ka-19 by way of secondary evidence.

22. So far as the question of delay in
lodging FIR is concerned, it is well settled
that if delay in lodging FIR has been
explained from evidence on record, no
adverse inference can be drawn against
prosecution merely on the ground that the
FIR was lodged with delay. There is no
hard and fast rule that any length of delay
in lodging FIR would automatically
render the prosecution case doubtful. In
"Ravinder Kumar & Anr. Vs. State of
Punjab", (2001) 7SCC 690, Hon'ble
Apex Court held that:

"The attack on prosecution
cases on the ground of delay in lodging
FIR has almost bogged down as a
stereotyped redundancy in criminal cases.
It is a recurring feature in most of the
criminal cases that there would be some
delay in furnishing the first information to
the police. It has to be remembered that
law has not fixed any time for lodging the
FIR. Hence a delayed FIR is not illegal.
Of course a prompt and immediate
lodging of the FIR is the ideal as that
would give the prosecution a twin
2 All. Dhruv Raj Rai & Ors. Vs The State of U.P.
51
advantage. First is that it affords
commencement of the investigation without
any time lapse. Second is that it expels the
opportunity for any possible concoction of a
false version. Barring these two plus points
for a promptly lodged FIR the demerits of
the delayed FIR cannot operate as fatal to
any prosecution case. It cannot be
overlooked that even a promptly FIR is not
an
unreserved
guarantee
for
the
genuineness of the version incorporated
therein. When there is criticism on the
ground that FIR in a case was delayed the
court has to look at the reason why there
was such a delay. There can be a variety of
genuine causes for FIR lodgment to get
delayed. Rural people might be ignorant of
the need for informing the police of a crime
without any lapse of time. This kind of
unconversantness is not too uncommon
among urban people also. They might not
immediately think of going to the police
station. Another possibility is due to lack of
adequate
transport
facilities
for
the
informers to reach the police station. The
third, which is a quite common bearing, is
that the kith and kin of the deceased might
take some appreciable time to regain a
certain level of tranquility of mind or
sedativeness of temper for moving to the
police station for the purpose of furnishing
the requisite information. Yet another cause
is the persons who are supposed to give
such information themselves could be so
physically impaired that the police had to
reach them on getting some nebulous
information about the incident."

In Amar Singh Vs. Balwinder
Singh & Ors. (2003) 2 SCC 518, the
Hon'ble Apex Court held that :

"In our opinion, the period
which elapsed in lodging the FIR of the
incident has been fully explained from the
evidence on record and no adverse
inference can be drawn against the
prosecution merely on the ground that the
FIR was lodged at 9.20 p.m. on the next
day. There is no hard and fast rule that
any delay in lodging the FIR would
automatically render the prosecution case
doubtful. It necessarily depends upon
facts and circumstances of each case
whether there has been any such delay in
lodging the FIR which may cast doubt
about the veracity of the prosecution case
and for this a host of circumstances like
the condition of the first informant, the
nature of injuries sustained, the number
of victims, the efforts made to provide
medical aid to them, the distance of the
hospital and the police station etc. have to
be taken into consideration. There is no
mathematical formula by which an
inference may be drawn either way
merely on account of delay in lodging of
the FIR."

In this connection it will also be
useful to take note of the following
observation made in Tara Singh V. State
of Punjab AIR (1991) SC 63.

"The delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution case. Knowing the Indian
conditions as they are, one cannot expect
these villagers to rush to the police
station immediately after the occurrence.
Human nature as it is, the kith and kin
who have witnessed the occurrence
cannot be expected to act mechanically
with all the promptitude in giving the
report to the police. At times being grief
stricken because of the calamity it may
not immediately occur to them that they
should give a report. After all it is but
natural in these circumstances for them to
take some time to go to the police station
52 INDIAN LAW REPORTS ALLAHABAD SERIES
for giving the report. Of course, in cases
arising out of acute factions there is a
tendency to implicate persons belonging
to the opposite faction falsely. In order to
avert the danger of convicting such
innocent persons the courts should be
cautious to scrutinize the evidence of such
interested witnesses with greater care and
caution and separate grain from the chaff
after subjecting the evidence to a closer
scrutiny and in doing so the contents of
the FIR also will have to be scrutinised
carefully. However, unless there are
indications of fabrication, the court
cannot reject the prosecution version as
given in the FIR and later substantiated
by the evidence merely on the ground of
delay.
These
are
all
matters
for
appreciation and much depends on the
facts and circumstance of each case."

In Sahebrao & Anr. Vs. State
of Maharashtra (2006) 9 SCC 794,
Court has held:

"The settled principle of law of
this Court is that delay in filing FIR by
itself cannot be a ground to doubt the
prosecution case and discard it. The delay
in lodging the FIR would put the Court on
its guard to search if any plausible
explanation has been offered and if
offered whether it is satisfactory."..

From
the
above
discussed
exposition of law, it is manifest that
prosecution version can not be rejected
solely on the ground of delay in lodging
FIR. Court has to examine the explanation
furnished by prosecution for explaining
delay.
There
may
be
various
circumstances particularly number of
victims, atmosphere prevailing at the
scene of incidence, the complainant may
be scared and fearing the action against
him in pursuance of the incident that has
taken place. If prosecution explains the
delay, Court should not reject prosecution
story solely on this ground. Therefore, the
entire incident as narrated by witnesses
has to be construed and examined to
decide whether there was an unreasonable
and unexplained delay which goes to the
root of the case of the prosecution and
even if there is some unexplained delay,
court has to take into consideration
whether it can be termed as abnormal.
Recently
in
Palani
V
State
of
Tamilnadu, Criminal Appeal No. 1100
of 2009, decided on 27.11.2018, it was
observed by the Hon'ble Supreme Court
that in some cases delay in registration of
FIR is inevitable. Even a long delay can
be condoned if witness has no motive for
falsely implicating the accused. In the
instant case, the alleged incident took
place on on 06.03.1987 at 11.30 AM and
the FIR was registered on the same day at
12.45 hours. In this case evidence shows
that one person namely Bajrangi has
sustained serious injuries and after the
incident he was taken to hospital by the
complainant. Three other injured have
also sustained multiple injuries. The
distance of police station from the spot
was shown four miles. The FIR was
registered within one hour 15 minutes of
the incident. In view of all these facts, it
can not be said that there is undue delay
in lodging the FIR and thus, the
contention of learned counsel for the
appellant has no force.

23. So far as the contention, that
PW-1, PW-2 and PW-3 are interested
witnesses, 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
2 All. Dhruv Raj Rai & Ors. Vs The State of U.P.
53
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 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.
1983, S.C. 364, it was held by the
Supreme Court that the grounds that the
witnesses being the close relatives and
consequently being the partition witness
would not be relied upon has no
substance. 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.

In the present case, it is correct
that PW 3 Surender Kumar Rai is brother
of deceased Bajrangi but it can not be a
sole ground to doubt his testimony. PW 3
has been subjected to cross-examination,
but no such adverse effect could emerge,
so as to make his presence at the scene of
offence
doubtful.
Regarding
PW-2
Phoolchand it was submitted that there
was litigation between him and some of
the accused persons and thus, he is an
enmical witness. In support of this
contention some documents were also
filed in defence. It may be seen that PW 2
has made a clear and cogent statement
regarding
the
alleged
incident.
His
presence at the spot is established by the
fact that he himself has sustained injuries
in the incident. Medical examination
report of PW 2 Phoolchand shows that he
has sustained as many as 14 injuries, thus,
his presence at the spot is established. He
has been subjected to lengthy crossexamination, but no such adverse effect
could emerge, so as to affect his
credibility. Version of PW-1 has been
amply corroborated by PW-2 and PW-3.
Thus, the contention of learned counsel
for the accused-appellants has no force.

24. So far as this contention is
concerned that there was enmity between
the parties on account of the land dispute
and that the appellants have been falsely
implicated on account of that enmity, it is
well repeated legal saying that enmity is a
double edged weapon and it cuts both
54 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In the instant
case, one person (Bajrangi) has died and
three persons sustained injuries in the
alleged incident. PW-2 Phool Chand has
sustained 14 injuries, Harikesh Rai has
sustained 12 injuries and Rajendra Rai has
sustained 24 injuries. In view of the
injuries, it is apparent that deceased and
injured persons were assaulted in a
serious manner by using various types of
weapons. The accused-appellants have
not come up with any such case that if
they were not involved in the incident,
how deceased Bajrangi and injured
persons have sustained alleged injuries.
FIR of the alleged incident was lodged
without any undue delay naming all the
accused persons. In view of all attending
facts and circumstances of the case and
particularly keeping in view the nature of
injuries sustained by deceased and injured
persons, it cannot be imagined that the
injured persons would falsely implicate
the accused persons leaving their actual
assailants. It is well settled that if a case is
based
on
direct
testimony
of
eye
witnesses, proof of motive is not required.
However, in the instant case it may also
be seen that as per prosecution version
before the incident in question, on
08.01.1987 accused Ghan Shyam alias
Dhannu, Singhasan, Mahendra, Dhruv
Raj Rai and Ramesh have assaulted
complainant of the present case namely
Rajendra Rai and regarding that incident a
case was registered against them, in
which the above stated accused persons
were convicted. PW-3 Surendra Kumar
Rai was a prosecution witness in that
case. Though the present case is based on
direct testimony of eye witnesses but in
view of the above-stated evidence,
prosecution has been able to prove motive
to commit the alleged incident. In view of
the aforesaid, contention of learned
counsel for the accused-appellants has no
force.

25. It was next argued that oral
evidence is not consistent with medical
evidence. It is trite law that oral evidence
has to get primacy as medical evidence is
basically opinionative. It is only when the
medical evidence especially rules out the
injury as claimed to have been inflicted as
per the oral testimony, then only in a
given case, the Court has to draw the
adverse inference. It is well settled by a
series of decisions of the Apex Court that
while
appreciating
variance
between
medical evidence and ocular evidence,
oral evidence of eyewitnesses has to get
primacy as medical evidence is basically
opinionative. But when the court finds
inconsistency in the evidence given by the
eyewitnesses which is totally inconsistent
to that given by the medical experts, then
evidence is appreciated in a different
perspective by the courts. In Solanki
Chimanbhai
Ukabhai
v.
State
of
Gujarat, AIR 1983 SC 484, the Hon'ble
Supreme Court observed as under:

"Ordinarily,
the
value
of
medical evidence is only corroborative. It
proves that the injuries could have been
caused in the manner alleged and nothing
more.