# Durab v. State Of U.P

- **Citation:** (2016) 8 ILRA 1243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-22
- **Bench:** Bharat Bhushan, Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durab-v-state-of-u-p-44175
- **Pages:** 19

## Headnote

Penal Code, 1860 - Ss. 302/34 - Murder - Conviction based on ocular evidence - Reliability of
related witnesses - Prosecution case based on eyewitness account of related witnesses supported by
medical and documentary evidence - Held, testimony of related/inimical witnesses cannot be discarded solely
on that ground if found credible and trustworthy - Presence of eyewitnesses at spot natural and proved -
Minor discrepancies or absence of independent witnesses not fatal - Conviction sustainable.

Evidence - Ocular vs medical evidence - Appreciation - Alleged inconsistencies between medical and
ocular evidence - Held, unless medical evidence completely rules out prosecution version, ocular evidence
has primacy - In present case, medical evidence corroborated prosecution story regarding firearm injury and
cause of death - No material contradiction affecting core prosecution case.

Criminal Trial - FIR - Evidentiary value - Delay in forwarding to Magistrate and absence of
signature - FIR lodged promptly - Mere absence of informant's signature on written report or delay in
forwarding FIR to Magistrate not fatal in absence of evidence of fabrication or ante-timing - FIR held genuine
and reliable.

Criminal Trial - Defective investigation - Effect - Lapses or irregularities in investigation do not vitiate
prosecution case where credible ocular evidence is available - Courts required to assess evidence
independently of such defects.

Criminal Trial - Motive - Proof - Existence of prior enmity established - Motive not essential where
direct evidence is available - Enmity may act as double-edged weapon but in present case supported
prosecution version.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

In Result: Appeal dismissed; conviction and sentence under S. 302/34 IPC affirmed; appellant directed to
surrender and serve remaining sentence.

Cases cited:
Ishvarbhai Fuljibhai Patni Vs. State of Gujarat[1995 Supreme Court Cases (Crl) 222]
Lal Mandi, Appellant v. State of West Bengal, Respondent[1995 Cri.L.J.2659 (Supreme Court), 2659]
Shyam Babu Vs. State of U.P.,AIR 2012 SC 3311
Shyamal Ghosh Vs. State of WB,AIR 2012 SC 3539
Dhari & others Vs. State of U.P.,AIR 2013 SC 308
Shanmugam and another Vs. State of TN(2013) 12 SCC 765
Nand Kumar Vs. State of Chhatishgarh2015 Cri. L.J. 381
Gajoo Vs. State of Utterakhand,2012 (9) SCC 532
Sadhu Saran Singh Vs. State of U.P. and others(2016) 4 SCC 357
Darbara Singh Vs. State of Punjab(2012) 10 SCC 476
Susanta Das Vs. State of Orissa(2016) 4 SCC 371
Gulzari Lal Vs. State of Haryana(2016) 4 SCC 583
State of Karnataka Vs. Suvarnamma,(2015) 1 SCC 323
Hema Vs. State,2013 (81) ACC 1 (SC) (Three Judge Bench)
C. Muniappan Vs. State of TN,2010 (6) SCJ 822
Amar Singh Vs. Balwinder Singh and others2003 Cri. L.J. 1282
Allarakha K. Mansuri Vs. State of Gujarat(2002) 3 SCC 57
Prithvi Vs. Mamraj and others(2004(13) SCC 279
State of U.P. Vs. Jagdeo and others(2003) 1 SCC 456
Dharmendrasinh alias Mansing Ratansinh Vs. State of Gujrat(2002) 4 SCC 679
Bishundeo Poddar and others Vs. State of Bihar,2003 Cri.L.J. 1558
V.K. Mishra and another Vs. State of Uttarakhand and another(2015) 9 SCC 588
Vikram Singh and others Vs. State of Punjab(2010) 3 SCC 561
Rana Pratap and others Vs. State of Haryana1983 (3) SCC 327
Thangaiya Vs. State of Tamil Nadu(2005) 9 SCC 650

## Text

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8 All. Durab Vs State Of U.P.
1243
(2016) 8 ILRA 1243
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 1492 Of 1983
&
Criminal Appeal No.- 1587 Of 1983

Durab ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
G.P.Mathur, G.P. Dixit, T.Rathore

Counsel for the Respondent:
A.G.A., Rajrshi Gupta

Penal Code, 1860 - Ss. 302/34 - Murder - Conviction based on ocular evidence - Reliability of
related witnesses - Prosecution case based on eyewitness account of related witnesses supported by
medical and documentary evidence - Held, testimony of related/inimical witnesses cannot be discarded solely
on that ground if found credible and trustworthy - Presence of eyewitnesses at spot natural and proved -
Minor discrepancies or absence of independent witnesses not fatal - Conviction sustainable.

Evidence - Ocular vs medical evidence - Appreciation - Alleged inconsistencies between medical and
ocular evidence - Held, unless medical evidence completely rules out prosecution version, ocular evidence
has primacy - In present case, medical evidence corroborated prosecution story regarding firearm injury and
cause of death - No material contradiction affecting core prosecution case.

Criminal Trial - FIR - Evidentiary value - Delay in forwarding to Magistrate and absence of
signature - FIR lodged promptly - Mere absence of informant's signature on written report or delay in
forwarding FIR to Magistrate not fatal in absence of evidence of fabrication or ante-timing - FIR held genuine
and reliable.

Criminal Trial - Defective investigation - Effect - Lapses or irregularities in investigation do not vitiate
prosecution case where credible ocular evidence is available - Courts required to assess evidence
independently of such defects.

Criminal Trial - Motive - Proof - Existence of prior enmity established - Motive not essential where
direct evidence is available - Enmity may act as double-edged weapon but in present case supported
prosecution version.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

In Result: Appeal dismissed; conviction and sentence under S. 302/34 IPC affirmed; appellant directed to
surrender and serve remaining sentence.

Cases cited:
Ishvarbhai Fuljibhai Patni Vs. State of Gujarat[1995 Supreme Court Cases (Crl) 222]
Lal Mandi, Appellant v. State of West Bengal, Respondent[1995 Cri.L.J.2659 (Supreme Court), 2659]
Shyam Babu Vs. State of U.P.,AIR 2012 SC 3311
Shyamal Ghosh Vs. State of WB,AIR 2012 SC 3539
Dhari & others Vs. State of U.P.,AIR 2013 SC 308
Shanmugam and another Vs. State of TN(2013) 12 SCC 765
Nand Kumar Vs. State of Chhatishgarh2015 Cri. L.J. 381
Gajoo Vs. State of Utterakhand,2012 (9) SCC 532
Sadhu Saran Singh Vs. State of U.P. and others(2016) 4 SCC 357
Darbara Singh Vs. State of Punjab(2012) 10 SCC 476
Susanta Das Vs. State of Orissa(2016) 4 SCC 371
Gulzari Lal Vs. State of Haryana(2016) 4 SCC 583
State of Karnataka Vs. Suvarnamma,(2015) 1 SCC 323
Hema Vs. State,2013 (81) ACC 1 (SC) (Three Judge Bench)
C. Muniappan Vs. State of TN,2010 (6) SCJ 822
Amar Singh Vs. Balwinder Singh and others2003 Cri. L.J. 1282
Allarakha K. Mansuri Vs. State of Gujarat(2002) 3 SCC 57
Prithvi Vs. Mamraj and others(2004(13) SCC 279
State of U.P. Vs. Jagdeo and others(2003) 1 SCC 456
Dharmendrasinh alias Mansing Ratansinh Vs. State of Gujrat(2002) 4 SCC 679
Bishundeo Poddar and others Vs. State of Bihar,2003 Cri.L.J. 1558
V.K. Mishra and another Vs. State of Uttarakhand and another(2015) 9 SCC 588
Vikram Singh and others Vs. State of Punjab(2010) 3 SCC 561
Rana Pratap and others Vs. State of Haryana1983 (3) SCC 327
Thangaiya Vs. State of Tamil Nadu(2005) 9 SCC 650

(Delivered by Hon'ble Alok Kumar Mukherjee, J.)

1. Since both these appeals have been preferred against a common judgment and order
dated 24.6.1983, passed by the VIII Additional Sessions Judge, Agra in S.T. No.414 of 1982 (State
Vs. Dalbir Singh and another) arising out of Crime No. 130 of 1982, P.S. Firozabad (North),
District Agra, convicting the appellants under section 302 read with section 34 IPC and sentencing
them to undergo imprisonment for life, both these appeals were connected and heard together.

2. It is relevant to mention that while hearing these appeals, it has been noticed by us that
the sole accused-appellant Durab has died during pendency of Criminal Appeal No. 1492 of 1983
(Durab Vs. State of U.P.), therefore, his appeal stands abated vide order dated 21.1.2016 of
Coordinate Bench of this Court, as such connected Criminal Appeal No. 1587 of 1983 (Dalbir
Singh Vs. State of U.P.) is being disposed of by this judgement.

3. The appellant/accused Dalbir Singh has filed this appeal against the aforementioned
judgement and order dated 24.6.1983 on the ground that the learned trial court below has erred in
8 All. Durab Vs State Of U.P.
1245
believing the prosecution case and the evidence examined in support thereof. The conviction of the
appellant is against the weight of evidence on record.

4. Brief facts of the prosecution case are that on 23.04.1982 at about 1.00 P.M. Gafoor
Khan gave a written report at police station Firozabad (North), District Agra, stating therein that he
belonged to village Virthua falling within the police circle Barnahal in district Mainpuri and was
employed in the State Electricity Board, Firozabad as a security guard. The deceased Anwar Khan,
too, was working as a labourer in that town in the Public Works Department. They had some
enmity with one Shishu Pal and his brother Sonpal Singh, with whom a litigation regarding some
landed property was going on. One Niranjan, who is alleged to be another assailant in this case, was
related to Sonpal, being the son of his wife's brother. Informant and the deceased were witnesses in
two cases under sections 399 and 402 of Indian Penal Code against Niranjan and one Brahma.
Accused Durab also bore some enmity against the deceased. Accused Dalbir Singh is the son of
Sonpal, mentioned above, against whom the informant and the deceased were litigating.

5. On 23rd April, 1982 at about 8 or 9 in the morning one Munshi Khan (P.W.-2), another
cousin of Gafoor Khan (P.W.-1) came to invite him to a marriage. He stayed with the informant for
some time and then he alongwith Gafoor Khan proceeded towards P.W.D. Godown in mohalla
Prem Nagar, P.S. Firozabad North, District Agra, for extending invitation to Anwar. When they
reached near the said P.W.D. Godown at about 11.15 A.M., suddenly they saw that accusedappellant Durab and Niranjan were holding Anwar by his arm and the accussed-appellant Dalbir
Singh was standing in front of Anwar Khan with a countrymade Pistol and before they could raise
an alarm, Dalbir Singh fired at Anwar, who fell down dead on the stairs leading to the Chabutra in
front of the said P.W.D. Godown. Thereafter, the assailants ran away towards the west. In the
meantime, a number of persons gathered at the spot. Leaving Munshi Khan with the dead body of
Anwar, Gafoor Khan went to the concerned police station where he handed over a written report
(Ext.Ka-1), scribed by one Bashir Ahmad (P.W.-3) on his dictation.

6. Subsequently an FIR was registered as case Crime No.130 of 1982 under section 302
IPC, which was entered in the General Diary. Investigation was entrusted to the then Circle Officer.
After concluding the investigation charge-sheet was submitted by him against the accused persons
including the present appellant. Accused Niranjan absconded hence could not be arrested. After
procuring the attendance of the present appellant, the case was committed to the Court of Session,
where he was charged under Section 302 IPC. The accused-appellant denied the charge and pleaded
not guilty. He further stated that he had been falsely implicated in this case due to enmity and
claimed to be tried.

7. In order to prove the charge, besides other papers, prosecution has filed written report
(Ext. Ka-1), inquest report (Ext.Ka-2), recovery memo of currency recovered from the body of the
deceased (Ext. Ka-3), sketch of the dead body (Ext.Ka-4), challan of the dead body (Ext.Ka-5),
recovery memo of blood stained and plain earth (Ext. Ka-6), site plan (Ext.Ka-7), reports of State
Forensic Science Laboratory (Ext.Ka-8 and Ext.Ka-9), Charge-sheet (Ext.Ka-10), Post Mortem
1246 INDIAN LAW REPORTS ALLAHABAD SERIES

report of the deceased (Ext. Ka-11), paper sent by the doctor (Ext.Ka-12), chik FIR (Ext. Ka-13)
and General Diary (G.D.) No.28 dated 23.04.1982 (Ext.Ka-14) on record.

8. Prosecution also examined P.W.-1 complainant Gafoor Khan, P.W.-2 Munshi Khan,
P.W.-3 Bashir Ahmad, P.W.-4 S. I. Narendra Kumar, I.O. P.W.-5 Dr. Vinay Kumar Yadav and
P.W.-6 Constable Ram Dutt during oral evidence.

9. Statements of accused-appellant under section 313 Cr.P.C. were recorded after closing of
the prosecution evidence. No oral evidence was given in defence, only two certified copies of
judgments and two copies of statements of the witnesses were filed. After hearing the arguments of
the parties the learned trial Judge by the impugned judgement and orders convicted the present
appellant along with another appellant since deceased and sentenced them as above. Being
aggrieved by the aforesaid judgment and order of the trial court, this appeal has been preferred by
the appellant Dalbir Singh.

10. We have heard Sri Rajarshi Gupta, learned counsel for the appellant and Sri Rajeev
Kumar Mishra, learned A.G.A, and carefully perused the evidence on record.

11. It has been argued on behalf of the appellant that the prosecution has utterly failed to
prove the alleged motive, the prosecution story as well as the charge framed against the appellantaccused beyond reasonable doubt. The prosecution has also failed to examine independent
witnesses, whose presence was natural at the scene of the crime rather, examined interested as well
as inimical witnesses, whose presence at the site of the crime was wholly doubtful, unnatural and
improbable as such they are not worthy of reliance. It is also contended by the learned counsel for
the appellant that sudden arrival of the scribe of the written report (Ext.Ka-1) (on which admittedly
there is no signature of the informant) at the place of occurrence is also doubtful.

12. It is further submitted by the learned counsel for the appellant that actually after the
information of murder of the deceased Anwar, entire prosecution story was cooked up by the
witnesses with the help of the local police. However, the learned counsel for the appellant has not
disputed factum of murder of the deceased as well as the date, time and place of the incident in
question but has contended that it appears from the evidence on record that the deceased Anwar
was murdered by some unkown person/persons and the original written report which was filed
against unknown person/persons, on which there was signature of the informant, was changed with
a view to rope in the accused persons due to previous long standing enmity between the parties, and
in place thereof the fabricated written report (Ext. Ka-1) was substituted with the help of the local
police, which lacks the signature of the informant Gafoor Khan (PW-1).

13. It has also been contended that there is material inconsistency between the ocular and
the medical evidence; the entire investigation in the case is faulty as well as against the rules and
procedure prescribed by law. Prosecution has failed to prove as to what prompted the accused
persons to commit this murder. Counsel for appellant has wondered that under what circumstances
only all the related eyewitnesses (P.W.-1 and P.W.-2) were present at the same date, time and place
8 All. Durab Vs State Of U.P.
1247
to see this incident of murder. He has submitted that the entire prosecution story is concocted and
presence of the eyewitnesses, as mentioned above, is highly doubtful, improbable and unnatural,
therefore, the appellant accused is entitled to get benefit of doubt.

14. Refuting all the arguments advanced by the side of the appellant, Sri Rajeev Kumar
Mishra, learned A.G.A. has submitted that mere absence of signature on the written report (Ext. Ka1) is not sufficient to repel all the trustworthy oral and documentary evidence of the prosecution,
which have corroborated the written report (Ext. Ka-1). He further argued that this is a day light
incident of murder. The unshaken testimonies of the trustworthy eyewitnesses (P.W.-1 Gafoor
Khan and P.W.-2 Munshi Khan) coupled with medical and other reliable prosecution evidence, can
not be brushed aside. Presence of the said eyewitnesses at the time and place of the incident has
been proved by them and the reason for their presence is quite natural and probable. Also there is
no material on record which creates doubt about their presence.

15. The learned AGA further contended that the previous enmity/motive has been stated in
the FIR and proved by the witnesses, which the defence has also admitted, FIR was lodged
promptly by the brother of the deceased. It is also submitted by the learned A.G.A. that the
prosecution by placing cogent oral and documentary evidence has proved the incident in question
and the charge framed against the appellant/accused, beyond reasonable doubt. All the witnesses
are trust-worthy; their testimonies are natural and no material contradictions, embellishments or
exaggerations are present in their testimonies, as such there is no substance in the arguments of the
learned counsel for the appellant. The contrdictions, as alleged by the learned counsel for the
appellant, in the ocular and medical evidence are misconceived. The learned Sessions Judge has
convicted the appellant/accused alongwith other co-accused (since deceased) by a reasoned
judgement and order hence, there is no scope for interference by this Appellate Court in the
impugned judgement and order.

16. Before entering into the merits of the appeal, we would like to recall the observation
made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995
Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4
of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate
jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and
discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the
evidence, we do not find that the High Court even cared to notice the evidence led in the case. None
of the arguments of the learned counsel for the appellant have been noticed, much less considered
and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with
the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of
justice, the High Court while dealing with a first appeal against conviction and sentence is
expected to, howsoever briefly depending upon the facts of the case, consider and discuss the
evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the
1248 INDIAN LAW REPORTS ALLAHABAD SERIES

discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities
pointed out by us, the judgment under appeal cannot be sustained."

17. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995
CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the
caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It
would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an
appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the
record and if two views are possible on the appraisal of the evidence, the benefit of reasonable
doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot
legally interfere with" the order of conviction where the trial court has found the evidence as
reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a
different conclusion on reassessment of the evidence. The observation made in Tota Singh's case,
which was an appeal against acquittal, have been misunderstood and mechanically applied.
Though, the powers of an appellate court, while dealing with an appeal against acquittal and an
appeal against conviction are equally wide but the considerations which weigh with it while
dealing with an appeal against an order of acquittal and in an appeal against conviction are
distinct and separate. The presumption of innocence of accused which gets strengthened on his
acquittal is not available on his conviction. An appellate court may give every reasonable weight to
the conclusions arrived at by the trial court but it must be remembered that an appellate court is
duty bound, in the same way as the trial court, to test the evidence extrinsically as well as
intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the
record so as to arrive at an independent finding regarding guilt or innocence of the convict. An
Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the
evidence on the record and arrive at an independent finding based on the appraisal of such
evidence."

18. Therefore, it is the settled proposition of law that the High Court, while exercising
appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available
on record and to draw the inference on the basis of material available on record and has not to be
guided by the finding of acquittal or conviction recorded by the learned court below, bearing in
mind the basic principle of criminal law regarding innocence of the accused.

19. Firstly, we would like to have a glance at the medical evidence, which is in the form of
statement of Dr. Vinay Kumar Yadav P.W.5 and postmortem report Ext. Ka-11. Though on behalf
of the defence death/murder of Anwar has not been disputed, we are duty bound to examine
whether any offence was committed and if so, by whom.

20. Dr. Vinay Kumar Yadav P.W.5, in his statement has stated that he was posted as
Medical Officer, S.N.M. Hospital, Firozabad on 24.4.1982. On that date at about 12.45 P.M. he
conducted the post-mortem examination on the corpse of Anwar, whose age was about 48 years.
8 All. Durab Vs State Of U.P.
1249
There was single fire wound- 1 cm. X 1 Cm. X cavity deep on the upper and medial side of left
nipple with blackening all around it on the dead body. This was an anti-mortem injury. Underneath
this injury, the left lung, the pleura, the membrane of the heart were punctured and the left 4th rib
was broken. One metallic shot was found in the chest cavity which was full of blood. The abdomen
had semi-digested food and the large intestine had faecal matters. According to the doctor this one
fire wound was sufficient for causing the death of the deceased and the death had occured due to
the shock and excessive bleeding caused by this injury. Further, according to this witness the death
of Anwar had occurred about 24 hours before the post-mortem examination. He proved the
postmortem report Ext. Ka-11.

21. We have gone through the deposition of Dr. Vinay Kumar Yadav, it appears that he was
cross-examined only on two points, first, the direction and the seat of injury and as to whether the
pistol was fired directly from the front of the deceased and the time of the death of the deceased.
This witness replied to these questions saying that the direction of the seat of injury was from the
bottom to above and the fire shot was inflicted from the left side and not from the front. He also
admitted in cross examination that tatooing and blackening was present in the wound, it means the
fire arm shot was inflicted from a very close range, i.e., within 4 to 6 feet. He opined that the death
of the deceased Anwar could have occured one day before the post mortem examination and only
single fire arm wound found on the body of the deceased Anwar, was enough to cause death. He
also opined that three hours variation is possible on either side regarding time of death of the
deceased recorded by him and not more than that, which corroborates the incident in question and
the entire ocular and documentary evidence adduced by the prosecution.

22. Therefore, except for suggestion that the gun shot was inflicted from left side and not
from the front, other facts stated by Dr. Vinay Kumar Yadav were not disputed on behalf of the
appellant. The testimony of this witness remained unshaken and duly corroborated by the
postmortem report Ext. Ka-11 and relying thereon in totality we hold that the above-mentioned ante
mortem injury was inflicted upon Anwar on the date and time by a country made pistol, which
resulted in his death.

23. Now, we deal with the ocular version of the occurrence. In this regard, we would like to
refer to the statements of two eyewitnesses P.W.-1 Gafoor Khan and P.W.-2 Munshi Khan.

24. Corroborating his written report Ext.Ka-1 P.W.-1 Gafoor Khan has stated that old
enmity was prevailing at the time of the incident between the appellants and the informant's family.
He also corroborated the date, time and place of occurrence in his statement. In his statement, he
further narrated the prosecution story that in the morning, at about 8 a.m. or 9 a.m., on the date of
the incident in question, one Munshi Khan (P.W.-2), another cousin of Gafoor Khan (P.W.-1) came
to invite him in connection with marriage of his grandson. He also wanted to invite the brother of
the witness (P.W.-1)/deceased Anwar Khan, so after staying for a while he (P.W.-1) alongwith
Munshi Khan (P.W.-2) proceeded to invite Anwar (deceased), who at that time was working at a
cement godown of P.W.D.. When they were nearing the godown they saw that the deceased was
standing on a 'Chabutra' of the godown and two accused persons Niranjan and Durab were holding
1250 INDIAN LAW REPORTS ALLAHABAD SERIES

Anwar by his arms and accused appellant Dalbir Singh was standing in front of Anwar Khan with a
country made pistol and before they could raise an alarm, Dalbir Singh fired upon Anwar which
caused gun shot wound on the left side of his chest and he fell down dead on the stairs leading to
the said chabutra. On raising alarm, accused persons fled away towards the west. Thereafter,
several persons of the locality gathered on the spot.

25. P.W.-1 Gafoor Khan has also proved the written report Ext.Ka.-1. He stated that the
scribe Bashir Ahmad arrived at the scene of occurrence and he had written the report Ext.Ka-1 on
his dictation. Thereafter, he approached the police station and lodged the FIR. The witness was
cross-examined by the defence at length but in his entire cross-examination there appears to be no
material contradiction, regarding the incident in question and the reason for his presence at the spot
at the time of incident, which affect the root of the prosecution story.

26. Similarly, P.W.-2 Munshi Khan has supported the entire prosecution case in his
statement by showing the reason for his presence at the spot alongwith Gafoor Khan (P.W.-1).
According to this witness he had visited the informant's place to invite him to the marriage of his
grandson on the date of the occurrence. When he alongwith the informant Gafoor Khan went to
invite the deceased and were about to reach the place of incident, they saw from a distance of about
10-15 steps that deceased Anwar was standing on the aforementioned 'Chabutra' and two accused
persons Durab and Niranjan were holding Anwar by his arms. The accused appellant Dalbir Singh
with a country made pistol fired a shot towards Anwar and on alarm raised by them, accused
persons ran away towards the west, and the deceased Anwar fell down and died on the spot.
Thereafter, persons of the locality came at the spot. Leaving him to watch the dead body the
informant alongwith Bashir Ahmad (P.W.-3) went to lodge First Information Report. This witness
has also been cross-examined at length but his statement is also unshaken on the material points of
the incident, tallied with the testimony of Gafoor Khan (P.W.-1) as well as medical and other
documents of the prosecution available on record.

27. P.W.-1 Gafoor Khan and P.W.-2 Munshi Khan are both ocular witnesses of the
incident. They supported the entire prosecution case. They also deposed about the litigation which
was going on between them and the appellant's family. They also stated that Durab had illicit
relations with the wife of Shubrati, one of the sons of the deceased Anwar. P.W.-1 Gafoor Khan
also stated that he had given an application to S.P., Mainpuri that he was being threatened by
Shishu Pal Singh and Sonpal Singh, (uncle and father, respectively of appellant Dalbir Singh) and
Niranjan accused because they wanted him not to appear as a witness against accused Niranjan and
his associate Brahma in a criminal case. During cross-examination P.W.-1 Gafoor Khan was fair
enough to admit that he had not signed the written report Ext.Ka-1, however, he admitted having
got it written by Bashir Ahmad. Both the witnesses P.W.-1 Gafoor Khan and P.W.-2 Munshi Khan
have proved the motive, date, time, place of occurrence, manner of assault, weapon used in the
crime, reason for their presence at the spot, seat of injury, individual role of each accused person,
long standing animus between the families of the informant and the accused persons and the
manner of preparation of written report Ext.Ka.-1. There is no material contradiction in their
statements which goes to the root of the prosecution case. They have proved that the place of
8 All. Durab Vs State Of U.P.
1251
occurrence is on the stairs leading to the chabutra of the Godown of PWD, situated in front of the
house of Hub Lal in Mohalla Prem Nagar, P.S. Firozabad North, District Agra. P.W.-1 Gafoor
Khan also admitted that Shishupal Singh, an uncle of Dalbir Singh had prosecuted the deceased,
deceased's son Shubrati and Shubrati's wife in a theft case prior to the incident in question. On the
suggestion of the defence that they were not present at the spot, both the witnesses have denied the
same, therefore, on analyzing their evidence with due care and caution, as per the principle of law
laid down for appreciation of evidence of related and inimical witnesses, we found that the
unshaken testimonies of the ocular witnesses appear to be natural and their presence at the place of
occurrence is established. They are trustworthy witnesses.

28. We have also carefully examined all materials on record and believe that there was no
occasion for P.W.-1 Gafoor Khan to falsely implicate the accused persons for the murder of his
brother and let go the real cuprits. The ocular testimonies of P.W.-1 Gafoor Khan and P.W.-2
Munshi Khan are in consonance with the testimony of P.W.-5 Dr. Vinay Kumar Yadav and the
postmortem report of the deceased (Ext.Ka-11) as well as inquest report (Ext.Ka-2) proved by the
investigating officer Narendra Kumar (PW-4), which reinforces the prosecution story as well as
corroborates the written report (Ext.Ka-1)/chic FIR (Ext.Ka-13). Minor discrepancies in the
statements of eye- witnesses and the medical evidence are not enough to reject the testimony of
direct ocular evidence. The presence of both the eyewitnesses near the place of occurrence is
absolutely natural and established. Despite minor contradictions, their evidence is trustworthy,
natural and conformity with normal human conduct. We have tested and scrutinized their
testimonies on the touchstone of credibility and the priciples laid down by the Hon'ble Apex Court
for appreciation of evidence and we are of the view that both the eyewitnesses cannot be
disbelieved merely because they are related to the deceased or that no other independent eye
witness was examined by the prosecution. Moreover, as stated by the investigating officer Narendra
Kumar (PW-4), except for these two eyewitnesses no independent eye witness of the occurrence
was found during his investigation/spot inspection.

29. In his statement P.W.-3 Bashir Ahmad, who is the scribe of the written report (Ext.Ka1) has admitted that he prepared the same on the dictation of the informant Gafoor Khan (P.W.-1).
He admitted the relationship with Gafoor Khan and said that he reached the place of occurrence
accidentally on hearing that a murder had taken place and after scribing the report (Ext.Ka-1) he left
for Andhra Pradesh, as he is a truck driver. He also verified the report (Ext.Ka-1) and told that after
writing the report he read out the same to Gafoor Khan. He admitted that he has written his name as
writer on Ext.Ka-1.

30. P.W.-4 Narendra Kumar, Investigating Officer has also been examined by the
prosecution. According to him, he reached the spot at about 1 p.m. or 1.30 p.m. and recorded the
statements of the eyewitnesses of this incident. Then he inspected the corpse and prepared the
inquest report (Ext.Ka-2) and the related police papers from (Ext.Ka-3 to Ext.Ka-5). Thereafter, he
sent the dead body for postmortem examination in a sealed cover. He also proved that he took in his
possession the blood stained earth and plain earth from the place of occurrence (Ext.Ka-6) and
prepared a site plan (Ext.Ka-7) as well as sent the clothes found on the corpse for chemical
1252 INDIAN LAW REPORTS ALLAHABAD SERIES

examination. He further stated that after receiving the postmortem report, the chemical examiner's
report (Ext.Ka-8) and the serologist report (Ext.Ka-9), he filed the charge-sheet (Ext.Ka-10) against
both the appellants (surviving and deceased) because accused Niranjan was absconding. He proved
the charge-sheet (Ext.Ka-10). He had also been cross-examined but in his cross-examination he
proved the entire investigation proceedings. He also stated that no independent eye witness was
available on the place of occurrence. No material contradiction has been shown in his statement
which discredit the main prosecution case as a whole or lead to the inference of tainted
investigation.

31. Lastly, the prosecution has examined P.W.-6 Ram Dutt, who proved chik report
(Ext.Ka-13), prepared on the basis of the written report (Ext.Ka-1) and corresponding entry in the
G.D. (Ext.Ka-14), as a secondary evidence stating that these documents were in the handwriting of
Constable Prakash Chandra, who was working with him and with whose signatures he was familiar.

32. In this case, FIR was lodged promptly on the same day at 1.00 p.m. It contains the
names of the accused persons, the motive (animus) for the crime, the weapon used in the incident,
date, time and place of the occurrence, names of the witnesses who were present at the time of the
incident, seat of injury and also the description of the incident. The statements of the ocular
witnesses, P.W.-1 Gafoor Khan and P.W.-2 Munshi Khan, support the entire version written in the
FIR. No material contradiction is found in the statements of the said witnesses and the description
contained in the FIR, therefore, the FIR also corroborates the version of the prosecution story.

33. The statement of P.W.-5 Dr. Vinay Kumar Yadav and the postmortem report (Ext.Ka11) also establish the fact that the deceased died of only one fire shot injury, which hit the left side
of his chest and his death was neither natural nor accidental. Even one metal shot was recovered in
the chest cavity of the deceased. According to the doctor the said fire arm wound was sufficient for
causing the death of the deceased. Similarly, all the police papers (Ext.Ka-3 to 5,6,8,9,10 and 12),
site plan (Ext.Ka-7), inquest report (Ext.Ka-2) the ocular evidence of the eyewitnesses and the
evidence of the Investigating Officer coupled with first information report (Ext.Ka-13) and the
corresponding G.D. (Ext.Ka-14), leave no room for doubt that the death of the deceased was caused
on the same place of occurrence, i.e., staircase leading to the Chabutra situated in front of the
P.W.D. Godown, as per the prosecution story, wherefrom the corpse of the deceased Anwar was
recovered by the police.

34. The ocular testimony of two witnesses, i.e., P.W.-1 Gafoor Khan and P.W.-2 Munshi
Khan is natural, unshaken and trustworthy. It is true that they have admitted their inter-se
relationship as also relationship with the deceased and also the enemity which exists between the
deceased and the eyewitnesses (P.W.-1, P.W.-2) on one hand and the accused persons on the other
hand prior to this incident, but their veracity cannot be doubted on this score alone. Only
requirement is to adopt a careful approach before accepting their testimonies. The medical evidence
corroborates ocular evidence and there is no material contradiction between the medical evidence
and the ocular witnesses' account. The incident occurred in broad daylight, therefore, possibility of
any mistake in identification of the accused is out of question. In the light of the present facts and
8 All. Durab Vs State Of U.P.
1253
circumstances of the case, it is also not possible that the brother of the deceased/informant would
spare the real assailants and implicate the accused persons to settle/for the sake of old enmity.

35. On in depth analysis of the entire evidence of the prosecution with due care and
caution, the possibility of false implication of the accused persons is entirely ruled out.

36. Now, we deal with the arguments advanced by the learned counsel for the appellant. It
is contended by the learned counsel for the appellant that the prosecution has failed to examine
independent eyewitnesses and has examined the related, inimical witnesses, whose presence was
doubtful at the scene of the crime. The position has now been settled that the witnesses of the
family cannot be discarded merely because the witness is a relative or family member of the victim.
In such a case, the court has to adopt a careful approach in analyzing the evidence of such witnesses
and if the testimony of the related witness is otherwise found credible, the accused can be convicted
on the basis of the testimony of such related witness. The above ratio of law has been laid down by
the Hon'ble Apex Court in the cases of Shyam Babu Vs. State of U.P., AIR 2012 SC 3311,
Shyamal Ghosh Vs. State of WB, AIR 2012 SC 3539, Dhari & others Vs. State of U.P., AIR
2013 SC 308, Shanmugam and another Vs. State of TN (2013) 12 SCC 765 and Nand Kumar
Vs. State of Chhatishgarh 2015 Cri. L.J. 381.

37. There is no doubt that the prosecution has not been able to produce any independent
witness but the prosecution case cannot be doubted on this ground also. People are generally
insensitive to come forward to give any statement in respect of any criminal offence. Unless it is
inevitable, people normally keep away from the Court as they feel it to be distressing and stressful.
Though this kind of human behaviour is indeed unfortunate, it is a normal phenomenon. We cannot
ignore this handicap of the investigating agency (as per the admission of the investigating officer
(PW-4) in his crossexamination) in discharging their duty. Therefore, we cannot derail the entire
case on the mere ground of absence of independent witnesses as long as the evidence of the ocular
witnesses, though related or inimical is trustworthy.

38. Next argument that has been advanced by the side of the appellant is that there is
material contradiction in the medical and the ocular evidence. In this respect, learned counsel for
the appellant has drawn the attention of the court to the one line statement of the P.W.-4 Dr. Vinay
Kumar Yadav in the cross-examination, in which he has opined that there is more possibility that
the assailants had assaulted the deceased from the left side and not from the front. Said statement of
Dr. Yadav cannot be read in isolation. It must be read in totality with his entire statement as well as
the postmortem report Ext.Ka-11, which the doctor has proved in toto and from the perusal of the
record shows that ocular witnesses also proved that the appellant had fired the shot from the front
of the deceased at an arm's length, i.e., very close range, standing on a low lying road when the
deceased was apprehended by other two accused persons on the Chabutra, situated above the
staircase, which hit the left side of the chest of the deceased, which, in fact, is in conformity with
the medical evidence.
1254 INDIAN LAW REPORTS ALLAHABAD SERIES

39. Witnesses cannot be expected to state facts with mathematical precision. It also depends
upon the place and the distance from where they have observed the incident and have individually
perceived it. If in this case, the place from where they had seen the occurrence is taken into
consideration, their observation that the main assailant/appellant was standing in front of the
deceased and fired his shot from there is absolutely correct. The seat of injury, its direction,
presence of tatooing and blackening in the wound, time of death and recovery of only one metallic
shot from the chest cavity, which reflects the nature of fire arm used by the appellant, all
corroborates the statement of the eyewitnesses, which in turn proves that there is no inconsistency
in the ocular and medical evidence. Therefore, this argument has no force.

40. For the sake of discussion, if it is presumed that there is any variation even then as
principle laid down by the Apex Court in Gajoo Vs. State of Utterakhand, 2012 (9) SCC 532,
that while appreciating the variation between the medical evidence and ocular evidence, primacy is
given to the oral evidence of the witnesses. The Apex Court in the case of Sadhu Saran Singh Vs.
State of U.P. and others (2016) 4 SCC 357 has reiterated the principle of law laid down by the
Supreme Court in the decision of Darbara Singh Vs. State of Punjab (2012) 10 SCC 476,
wherein the Court has held:-

"......So far as the question of inconsistency between the medical evidence and the
ocular evidence is concerned, the law is well settled that, unless the oral evidence available is
totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event
of contradictions between medical and ocular evidence, the ocular testimony of a witness will have
greater evidentiary value vis -a -vis medical evidence and when medical evidence makes the oral
testimony improbable, the same becomes a relevant factor in the process of evaluation of such
evidence. It is only when the contradiction between the two is so extreme that the medical evidence
completely rules out all possibilities of the ocular evidence being true at all, that the ocular
evidence is liable to be disbelieved."

41. However, in this case, there is no variation between the medical evidence and the ocular
evidence, and once they are conjointly read, it does not falsify either the statement of the witnesses
or the postmortem report.