# Hanna & Ors v. State of U.P

- **Citation:** (2022) 9 ILRA 1417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Criminal Appeal No. 57 of 2008
- **Bench:** Manoj Misra, Syed Afatb Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hanna-ors-v-state-of-u-p-49013
- **Pages:** 15

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- Testimony of Injured Witness-
While appreciating the oral statement of
this witness it should be kept in mind that
her son was beaten to death in front of
her, so, it is not expected from her to
disclose
exactly
what
injuries
were
inflicted upon her. Further, the statement
has been recorded after a gap of more
than two years from the date of incident,
hence some contradictions are natural and
on this ground her oral testimony cannot
be disbelieved. The witness, being injured,
her presence at the spot cannot be
doubted-Medical
evidence
further
corroborates that the witness has suffered
injuries at the time of incident which
establishes her presence on the spot at
the time of incident-The testimony of an
injured witness should be relied upon
unless there are strong grounds for
rejection of his evidence on the basis of
major contradictions and discrepancies.
The reason for attaching such sanctity to
the evidence of an injured witness is that
his presence at the scene of crime stands
established.

Settled law that testimony of an injured witness
is placed on a special pedestal in as much as the
injuries
of
the
witness,
which
stand
corroborated
by
the
medical
evidence,
guarantees the presence of the injured witness
on the spot thus minor contradictions cannot be
a ground to discard testimony of an injured
witness.

Criminal Law- Indian Evidence Act, 1872-
Section 3-When case of the prosecution is
based on the evidence of eye-witnesses,
some embellishments in the prosecution
case caused by the testimony of any
prosecution witness, not declared hostile,
cannot by itself be a ground to discard
entire prosecution case. The testimony of
the witness also cannot be disbelieved
merely on the ground that he has not
suffered any injury in the incident and he
did not react in a manner, he ought to
have reacted in the circumstance or he did
not come to the rescue of the deceased.
Behaviour or manner of response to a
particular situation varies from person to
person. Some persons may be very strong
hearted while some may be sensitive and
emotional. Some may get terrorised by
looking at the deadly attack on a person
and may find themselves shocked, unable
to react or respond to the situation.
Therefore, such behaviour or conduct of
witnesses should not be taken as a ground
to
discard
their
otherwise
credible
testimonies.

Behaviour and conduct of a witness is neither
predictable and nor can it be placed in a straight
jacket formula therefore, behaviour of a witness
whose testimony is otherwise credible and
trustworthy; cannot be rejected on the ground
of his behaviour or conduct at the time of the
occurrence. (Para 15,16)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,824 of 51,212. This is a partial read: ask again with offset=39824 for what follows._

9 All. Hanna & Ors. Vs. State of U.P.
1417

24. From the evidence on record, it is
established that the appellants-accused
assaulted Shesh Mani and Ram Raj with
lathi-danda, fists & kicks. Two blows on
the head caused internal head injury and
clotting of blood which proved fatal. From
the evidence on record, it is not established
which accused caused the head injury. The
evidence establishes that the incident was
not pre-planned, it occurred all of a sudden
and there was no common intention to
cause death of Ram Raj. There was a
common intention of causing him injuries
and the nature of injuries suffered by Ram
Raj the deceased is covered by Section 320
(8) of IPC. So applying the principles of
law laid down by the Apex Court in the
case of Ninaji Raoji Boudha vs. State of
Maharashtra (Supra) and Ram Lal vs. Delhi
Administration (Supra), the appellants
accused cannot be convicted for the offence
under Section 302/34 IPC. They can be
convicted only for the offence under
section 325/34 IPC and Section 323/34
IPC.

Conclusion

25. From the above discussion, it is
clear that the learned trial court has
overlooked the facts and evidence that the
incident was not a pre-planned one. There
was no common intention to commit the
murder of Ram Raj. The incident occurred
suddenly
and
the
accused-appellants
assaulted Shesh Mani and Ram Raj only
with intention of causing injuries to them.
It is also not established from the evidence
that which of the accused has caused head
injury to Ram Raj which proved fatal. So
the appellants accused could not have been
convicted for offence under section 302/34
IPC. The finding of trial court in this
respect is erroneous. The trial court has
committed error in convicting the accused
for the offence under section 302/34 IPC
and sentencing them to imprisonment for
life. This part of the finding of trial court is
liable to be modified with the finding that
accused-appellants are guilty for the
offence under section 325/34 IPC.

They are liable to be sentenced
with imprisonment of 5 years and fine of
Rs.25,000/- each for the offence under
section 325/34 IPC. In default of payment
of fine, each of the appellants-accused will
have to serve simple imprisonment of six
months. Half of the amount of fine if
deposited shall be paid to the complainant-
Shesh Mani.

26. The appeal is partly allowed to the
above extent. The accused-appellants are
on bail. Their bail bonds and sureties bonds
are canceled and sureties are discharged,
they shall surrender before the court below
within two weeks failing which the court
concerned will take necessary action for
ensuring the compliance.

27. The lower court record along with
copy of the judgment shall be transmitted
immediately to the court below.
----------
(2022) 9 ILRA 1417
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE MANOJ MISRA , J.
THE HON'BLE SYED AFATB HUSAIN RIZVI, J.

Criminal Appeal No. 57 of 2008

Hanna & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri A.N. Mishra, Sri Neeraj Mishra, Sri R.D.
Dauholia, Sri Rajendra Prasad Yadav, Sri
Vinod Kumar Tripathi, Ms. Ruchita Jain, Sri
I.K. Chaturvedi (Sr. Adv.)

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3- Testimony of Injured Witness-
While appreciating the oral statement of
this witness it should be kept in mind that
her son was beaten to death in front of
her, so, it is not expected from her to
disclose
exactly
what
injuries
were
inflicted upon her. Further, the statement
has been recorded after a gap of more
than two years from the date of incident,
hence some contradictions are natural and
on this ground her oral testimony cannot
be disbelieved. The witness, being injured,
her presence at the spot cannot be
doubted-Medical
evidence
further
corroborates that the witness has suffered
injuries at the time of incident which
establishes her presence on the spot at
the time of incident-The testimony of an
injured witness should be relied upon
unless there are strong grounds for
rejection of his evidence on the basis of
major contradictions and discrepancies.
The reason for attaching such sanctity to
the evidence of an injured witness is that
his presence at the scene of crime stands
established.

Settled law that testimony of an injured witness
is placed on a special pedestal in as much as the
injuries
of
the
witness,
which
stand
corroborated
by
the
medical
evidence,
guarantees the presence of the injured witness
on the spot thus minor contradictions cannot be
a ground to discard testimony of an injured
witness.

Criminal Law- Indian Evidence Act, 1872-
Section 3-When case of the prosecution is
based on the evidence of eye-witnesses,
some embellishments in the prosecution
case caused by the testimony of any
prosecution witness, not declared hostile,
cannot by itself be a ground to discard
entire prosecution case. The testimony of
the witness also cannot be disbelieved
merely on the ground that he has not
suffered any injury in the incident and he
did not react in a manner, he ought to
have reacted in the circumstance or he did
not come to the rescue of the deceased.
Behaviour or manner of response to a
particular situation varies from person to
person. Some persons may be very strong
hearted while some may be sensitive and
emotional. Some may get terrorised by
looking at the deadly attack on a person
and may find themselves shocked, unable
to react or respond to the situation.
Therefore, such behaviour or conduct of
witnesses should not be taken as a ground
to
discard
their
otherwise
credible
testimonies.

Behaviour and conduct of a witness is neither
predictable and nor can it be placed in a straight
jacket formula therefore, behaviour of a witness
whose testimony is otherwise credible and
trustworthy; cannot be rejected on the ground
of his behaviour or conduct at the time of the
occurrence. (Para 15,16)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

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

2. Bhagwan Jagannath Markad Vs St. of Maha.
(2016)10 SCC 537

3. St. of Har. Vs Krishnan, AIR 2017 SC 3125

4. Bhagwan Singh Vs St. of M.P., AIR 2009 SC
768

5. Sucha Singh Vs St. of Punj., (2003) 7 SCC
643

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. We have heard Sri I.K. Chaturvedi,
learned Senior Counsel, assisted by Sri
9 All. Hanna & Ors. Vs. State of U.P.
1419
Vinod Kumar Tripathi and Ms Ruchita
Jain, learned counsels for the appellants
and Sri J.K. Upadhyaya, learned A.G.A. for
the State.

2. This criminal appeal is directed
against the judgement and order dated
06.12.2007 passed by Additional Sessions
Judge/Special Judge (D.A.A. Act), Lalitpur
in Sessions Trial No.13 of 1996 (State
Versus Hanna and others) arising out of
Case Crime No.862 of 1995 under Sections
302/149, 323/149, 147 and 148 I.P.C.,
Police Station Kotwali, District Lalitpur.
By the impugned judgement and order,
learned trial court has held appellants guilty
for the offences punishable under Sections
302/149, 323/149, 148 and 147 I.P.C. and
sentenced each of them to undergo
imprisonment
for
life
and
fine
of
Rs.10,000/- and in default of payment of
fine,
two
years'
additional
rigorous
imprisonment,
under
Section
302/149
I.P.C.; fine of Rs.500/- each, in default of
payment of fine one month's rigorous
imprisonment,
under
Section
323/149
I.P.C.; fine of Rs.2,000/- each on appellant
nos. 3 to 6 and in default of payment of
fine, three months' rigorous imprisonment,
under Section 147 I.P.C., fine of Rs.4,000/-
each under Section 148 I.P.C. on appellant
nos. 1 and 2 coupled with a default
sentence
of
six
months'
rigorous
imprisonment.

3. NARRATION OF FACTS:

Complainant, Nanhi Bahu (PW1) gave an application dated 05.10.1995 at
Police Station Kotwali Lalitpur, District
Lalitpur alleging therein that today, on
05.10.1995 at 6 a.m., her son Pappu alias
Har Narayan was going to the west of the
village to attend nature's call, Hanna,
holding Ballam (spear), Kappu holding an
axe and Daya, Duli, Prakash and Babu
holding lathis in their hands were present at
the shop of Pragi. There was a family
dispute of her son with them. With a
common intention, they started to assault
her son with the weapons in their hands and
killed him. When she tried to save him,
then Babu assaulted her with lathi, causing
injuries on her left hand. The incident was
witnessed by Raj Kumar (PW-2), Lakhan
(PW-6), Santosh (PW-5), Sanjai (PW-7),
Devi (PW-8) and her son Santosh (PW-3).
They tried to rescue, but the accused,
hurling abuses, escaped towards the river
side. The dead body of her son was lying
on the road, north of the village.

A Chik Report No. 408 of 1995
under Sections 147, 148, 149, 302 and 323
I.P.C. was registered against six named
accused on 05.10.1995 at 7.15 a.m. Station
House Officer, Police Station Kotwali
Lalitpur, B.B. Singh (PW-11) took up the
investigation. He recorded the statement of
the complainant and sent her for medical
examination. Thereafter, he arrived at the
spot
and
instructed
Sub-Inspector,
Shyamendra Singh to conduct inquest
proceedings. The dead body was sent for
the post mortem examination. He also
collected blood-stained and plain concrete
and prepared its memo. Thereafter, he
recorded statements of other witnesses and
on the indication of Santosh inspected the
place of occurrence and prepared the siteplan. On 08.10.1995, he arrested the
accused persons, recorded their statements
in which they confessed their guilt and also
disclosed that they have concealed weapons
used in the crime in a field near Village
Gaida.
Thereafter,
the
Investigating
Officer, accompanying police personnel
and accused-persons, on the indication of
accused reached near a field in Village
Gaida in which no crop was sown and
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered one axe and five lathis, buried
under the ground. He also prepared its
memo.

On account of transfer of S.H.O.,
B.B. Singh, further investigation was
conducted by S.H.O., G.N. Pandey (PW12). He recorded the statements of the
remaining witnesses and after completion
of the investigation submitted charge-sheet
against accused on 19.11.1995. The axe
was sent for forensic examination on
18.12.1995.

After committal proceedings, trial
court framed charges under Sections
302/149, 323/149 I.P.C. against all the
accused. It also framed charges under
Section 148 I.P.C. against accused, Hanna
and Kappu and under Section 147 I.P.C
against accused, Daya, Duli, Prakash and
Babu. The accused pleaded not guilty and
claimed for trial.

The prosecution, in all, examined
13 witnesses in oral evidence while in
documentary evidence 18 papers, Ext. Ka-1
to Ka-18, were produced. The statements of
the accused under Section 313 Cr.P.C. were
recorded and incriminating circumstances
were put to them. It is stated by the accused
that the statements of the witnesses are
false and they have been implicated in
aforesaid case due to enmity. No evidence
either oral or documentary was produced in
defence. Learned trial court, after hearing
arguments of the parties, by the impugned
judgement and order, held all the accused
guilty for the offences under Sections
302/149, 323/149 I.P.C., accused Duli,
Daya, Prakash and Babu for the offence
under Section 147 I.P.C. and accused
Hanna and Kappu for the offence under
Section 148 I.P.C. and sentenced them as
above.

4. Autopsy Report:

Post mortem examination of
deceased, Pappu alias Har Narayan, was
conducted on 05.10.1995 at 4 p.m.

External Examination :

According to the autopsy report,
the age of the deceased was 26 years. Body
of the deceased was average built, rigor
mortis present all over the body. No sign of
decomposition of body, both eyes normal.

Following Ante Mortem injuries
were found on the body:

1. A stab wound 1.5 cm x 0.5 cm
x 3.0 cm over left side face, 2.5cm below
outer
end
of
left
eye,
obliquely
situated,shape like an eclipse, edges clean
cut, angles sharp.

2. A stab wound 2 cm x 0.5 cm x
3.0 cm over left side, 2.5 cm in front of
middle part of left ear, eclipse shape, edges
clean cut. Both angles sharp, oblique.

3. Incised wound 2.5 cm x 1.0 cm
x full thickness over middle part of left
pinna, edges clean cut, both angles sharp.

4. Stab wound 2.5 cm x 1.0 cm x
bone deep, left mastoid bone fractured over
left mastoid area, edges clean cut.

5. Lacerated wound 2.5 cm x 1.0
cm x bone deep over middle part of left
lower jaw, left mandible fractured.

6. Abrasion 2.0 cm x 0.5 cm over
dorsal aspect of left wrist.

7. Abrasion 2.2 cm x 0.5 cm over
posterior aspect of right shoulder.
9 All. Hanna & Ors. Vs. State of U.P.
1421

8. Five stab wounds 2.5 cm x 1.5
cm x 9.0 cm, 2.0 cm x 1.0 cm x 8.0 cm, 2.5
cm x 1.5 cm x 9 cm, 2.0 cm x 2.0 cm x 7.5
cm and 2.5 cm x 2.0 cm x 8.0 cm over
anterio-medial aspect of middle part of
right thigh, shape eclipse, edges clean cut,
angles sharp, all obliquely situated.

9. Lacerated wound 2.0 cm x 1.0
cm, bone deep on anterio-medial aspect of
middle part of right leg, shaft of right wrist
fractured at wound site.

10. Abrasion 3.0 cm x 1.0 cm
front aspect of right face.

11. Deformity upper 1/3 left leg
with fracture shaft of left wrist and fistula.

12.
Multiple
contusions
overlapping each other, 21.0 cm x 12.5 cm
over outer post.lateral aspect on left side
chest.

Internal Examination :

Depressed fracture of left mastoid
bone with blood clot present outside
membranes at fracture site, fracture of 3rd,
4th, 5th, 6th and 7th ribs on the left side of
the chest, left pleura ruptured at two places,
left thoracic cavity filled with one litre
blood, left lung ruptured at two places,
adjoining fracture of 5th and 6th ribs, both
chambers of the heart were empty, left
mandible was fractured, stomach was
empty, small intestine contained gases and
in large intestine faecal matter and gases
were present. Liver, spleen and kidneys
were pale.

The cause of death was shock and
haemorrhage as a result of ante-mortem
injuries.

Dr. R.P. Gupta, PW 9, has proved
the autopsy report, Ext.Ka-5. The witness
has stated that the death of the deceased
was possible on 05.10.1995 at 6 a.m. and
that injury nos. 1, 2, 4 and 8 may be caused
from sharp edged weapon like Ballam,
injury no.3 from axe, injury nos.5, 9, 11
and 12 from lathis and remaining injuries
may come from friction.

Injury
of
Nanhi
Bahu,
the
complainant, was medically examined on
05.10.1995 at 10 a.m. at District Hospital,
Lalitpur by Dr R.P. Gupta, PW 9.
According to injury report, Ext.Ka-4,
following injuries were present on her
body:

1. Contused swelling 9.0 cm x 6.0
cm over right wrist and lower part of right
forearm, deformity present. Tenderness
present. Red in colour., kept under
observation.

2. A lacerated wound 2.0 cm x 0.5
cm x fasia deep over finger web in between
right thumb and right index finger, fresh
blood clot present.

3. A contusion 14.0 cm x 2.0 cm
over mid line of back at T7, T8 level
obliquely situated, red in colour.

4. A contusion 17.0 cm x 2.0 cm
over lower part of posterior aspect of right
side wrist, obliquely situated, red in colour.

The injury report has been proved
by Dr. R.P. Gupta, PW 9. The witness
stated that injury no.1 was kept under
observation while injury nos. 2, 3 and 4
were simple in nature. All the injuries were
fresh and were caused by some hard and
blunt object like lathi. The witness has also
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that all the injuries may come on
05.10.1995 at 6 a.m.

5. Nanhi Bahu, PW 1, is the
complainant
and
injured.
In
her
examination-in-chief, the witness has stated
that the name of her son was Har Narayan
alias Pappu. He had irrigated the field of
accused Kappu by his pump and Rs.6,000/
was due on him. One day before the
incident, Vedi Hawan was to be performed
at the house of Shanker who is Saaru (the
husband of sister-in-law) of Kappu. Kappu
had come to invite Har Narayan alias
Pappu but her son abused Kappu and
neither she, nor her son, Har Narayan went
to the house of Kappu in Vedi Havan. In
respect of the incident, she stated that her
son was going to attend nature's call. Her
son was lying on the road not near kiosk of
any one. Several persons were standing
there. She did not notice whether he was
injured or not. In her presence accused,
Hanna with Ballam, Kappu with axe, Duli,
Daya, Prakash and Babu with lathis did not
assault her son near the shop of Pragi.
Neither she nor her son Santosh tried to
save him. He was already dead. Babu has
not assaulted her with lathi.

So this witness did not support
the allegations of the F.I.R. in her
examination-in-chief and was declared
hostile.

Later, this witness was recalled
on her application and her statement was
again recorded on 11.03.1999. In this
statement, the witness stated that what she
has stated earlier was because the accused
had threatened her. After that statement, the
police personnel threatened her as to why
has she given a false statement. The
witness then stated that Hanna holding
Ballam, Kappu holding axe, Daya, Duli,
Prakash and Babu holding lathis caught
Pappu and they all assaulted him with the
weapons in their hands. The incident has
occurred in the middle of the road. The
accused escaped towards the river side. Her
son was killed while going to attend
nature's call. She had come to fetch water.

After aforesaid statement, the
witness was examined by the prosecution
and her
statement
was
recorded
in
question-answer form. In this statement,
she has stated that three years have passed
since the incident. It was about 6 a.m. Her
son Pappu alias Har Narayan was going to
attend the nature's call. He reached on the
road, Hanna was holding Ballam, Daya,
Duli, Prakash and Babu were holding lathis
while Kappu was holding an axe, they all
assaulted Pappu alias Har Narayan with
weapons they were holding in their hands.
Har Narayan died. She tried to save her
son, then Daya caught hold her and Babu
assaulted her with lathi. Her daughter-inlaw was watching the incident from a
distance. She got scribed the report from
Prakash Tiwari at Kotwali. Prakash Tiwari
has written whatever she had dictated and
thereafter read over the same to her. The
witness has also stated that earlier she has
given statement under threat of Shanker,
Rama and Kappu. They have threatened
that your one son has been killed and if she
deposes against them, her other son will
also be killed. Shanker is cousin of Kappu.
She stated that her previous statement was
false and was given under threat whereas
today, she is giving true statement without
any pressure.

6. Santosh, PW 3, is the real brother
of the deceased. In his examination-inchief, the witness has stated that Pappu
alias Har Narayan was his real brother. He
was murdered about three years ago. It was
9 All. Hanna & Ors. Vs. State of U.P.
1423
6 a.m. His brother was going to attend the
nature's call. On the way, at the shop of
Pragi, accused, Hanna, Kappu, Daya,
Prakash, Duli and Babu met him. Hanna
was holding Ballam, Kappu an axe and the
remaining accused had lathis. In front of
the shop of Pragi, they encircled Pappu and
started to assault him. He and his mother,
on cries of his brother, arrived at the spot
from his shop. They tried to rescue Pappu,
but Babu assaulted his mother with lathi.
When they tried to rescue him, accused
threatened them. Raj Kumar, Lakhan,
Santosh, Sanjai and Devi also arrived at the
spot and they forbade the accused not to
assault his brother. His brother died. In
respect of location of his shop, PW-3 stated
that his shop was at 4-5 paces from the
place of occurrence. The witness has
further stated that Kappu and Hanna are
cousins. Prakash is real brother of Kappu.
Daya and Duli are real brothers and cousin
of Kappu while Babu is the Saaru of
Kappu. Rs.6,000/- was due on Kappu
which he did not return despite several
demands.
Earlier
also,
Kappu
has
committed marpeet with PW-3 and his
brother (the deceased) on demand of
money regarding which a case is pending in
the court of Chief Judicial Magistrate. Due
to aforesaid enmity, the accused committed
murder of his brother.

7. Raj Kumar, PW 2, Santosh, PW 5,
Lakhan Lal, PW 6, Sanjai, PW 7 and Devi,
PW
8,
the
eye-witnesses
have
not
supported the prosecution version and were
declared hostile. In their examination-inchief they have stated that they have not
seen the incident. With the permission of
court, the prosecution has conducted crossexamination of the aforesaid witnesses. In
their cross-examination, the witnesses have
reiterated the statement given in the
examination-in-chief that they have not
seen the occurrence. They have also
disowned their statements under Section
161 Cr.P.C.

8. Head Constable, Sarjoo Prasad, PW
4, is the chik and General Diary writer. The
witness has stated that on 05.10.1995, on
the written information of Nanhi Babu, he
registered Case Crime No.862 of 1995
under Sections 147, 148, 149, 302 and 323
I.P.C. of Chik No.408 of 1995 and made
General Diary entry of it. The witness has
proved Chik F.I.R. and copy of general
diary, Exts.Ka-2 and Ka-3.

9. Constable, Luvkush Kumar, PW
10, has proved inquest report and related
paper which is in the writing of Sub
Inspector, Shyamendra Singh by secondary
evidence. These papers are Exts. Ka-6 to
Ka-11. The witness has also stated that
after inquest proceedings, body of the
deceased was handed over to him for post
mortem examination which he handed over
to the doctor in a sealed condition.

10. B.B. Singh, PW 11, is the first
Investigating Officer. The witness has stated
that on 05.10.1995, he was posted as Station
House Officer, Kotwali Lalitpur and the
F.I.R. of this case was registered in his
presence. He took up the investigation.
Recorded statement of the complainant and
sent her for medical examination. Thereafter,
he with Sub Inspector, Shyamendra Singh
and other police force arrived at the spot.
Inquest proceeding was conducted by Sub
Inspector,
Shyamendra
Singh,
on
his
instructions. The dead body was sent for post
mortem examination. The witness has further
stated that he collected blood-stained and
plain concrete from the place of occurrence
and prepared its memo Ext. Ka-13. He
recorded statement of other witnesses and on
the pointing out of Santosh, brother of the
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, inspected the place of occurrence
and prepared its site-plan, Ext. Ka-14. The
witness has further stated that on 08.10.1995,
he arrested accused, Hanna, Kappu, Daya,
Duli and Prakash and recorded their
statements. The accused confessed and
disclosed that they have concealed the
weapons used in the commission of the crime
in a field near Village Gaida. He along with
the police force and the accused came at
Village Gaida and on the pointing out of the
accused, from a field, which had no crop,
recovered blood-stained axe and lathis buried
under the ground. He prepared its memo, Ext.
Ka-15. On the same day, he arrested accused,
Babu. He also prepared site-plan of the place
of recovery, Ext. Ka-16. The witness has also
produced, the axe, lathis, blood-stained and
plain concrete and clothes of the deceased
which he was wearing at the time of the
incident as Material Exts. Ka-1 to Ka-12. The
witness has further stated that after that he
was transferred.

11. G.N. Pandey, PW 12, is the
second Investigating Officer. The witness
has stated that after transfer of B.B.Singh,
the then S.H.O, he took the investigation of
this case on 19.10.1995. He recorded
statements of inquest witnesses and after
completion of investigation, submitted
charge-sheet, Ext.Ka-17. The witness has
also proved Forensic Lab report, Ext. Ka18.

12. Constable, Ram Charan, PW 1, is
also a formal witness. He has taken the case
property to Forensic Science Laboratory,
Agra for examination.

SUBMISSIONS ON BEHALF OF
THE APPELLANTS

13. Learned counsel for the appellants
has contended that Smt. Nanhi Bahu, PW 1,
complainant and Santosh, PW 3, claim
themselves to be the eye-witnesses of the
incident. In her first statement, Nanhi Bahu
has not corroborated the allegations of F.I.R.
and turned hostile. She has specifically stated
that the accused persons did not assault her
son Pappu with Ballam, axe and lathis in
front of her. She has stated that neither she
nor her son Santosh tried to rescue him
because he was already dead. Later on, after
examination of all the witnesses, she moved
an application on which she was recalled and
in that statement she completely resiled from
her earlier statement and implicated the
accused persons. She stated that now she is
deposing as police has threatened her. So, her
subsequent statement is under threat of
police. Learned counsel also contended that
there are also serious infirmities and
contradictions in her statement. At one place
she has stated that at the time of the incident
she and her son Santosh were taking water
from hand-pump while at another place she
has stated that she and her daughter-in-law
were out to take water. No hand-pump is
shown in the site-plan. She has stated that
only one lathi blow on her left hand was
inflicted. In the medical examination report,
Ext.Ka-4, no injury on her left hand is
mentioned. So, the testimony of this witness
is wholly unreliable. It is further contended
that presence of Santosh, PW 3, on the spot is
highly doubtful. He had stated that at the time
of incident he was at his shop (kiosk) which
was 4 paces from the place of occurrence but
in the site-plan no shop of witness, Santosh,
has been shown. The witness has also stated
that he has not indicated his shop at the time
of inspection by the Investigating Officer. He
has also stated that there was previous enmity
with the accused persons and before the
incident the accused persons had assaulted
him and his deceased brother Pappu in
respect of which a case is pending in the
court of Chief Judicial Magistrate. If the
9 All. Hanna & Ors. Vs. State of U.P.
1425
witness was present on the spot, he would not
have been spared. It is also highly improbable
and unnatural that he would not make any
effort to rescue his brother who was being
beaten to death in front of him. He has not
suffered any injury even a scratch in the
incident, which also makes his presence on
the spot highly doubtful. There are other
infirmities
and
contradictions
in
his
statements also. He has stated that near his
shop, there is Imali tree but in the site-plan
neither shop nor any Imali tree has been
shown. At one place he has stated that at the
time of incident, he was at his shop, his
mother and sister-in-law (Bhabhi), Malti and
other witnesses were also there whereas at
another place he has stated that his mother
and sister-in-law were at the hand-pump to
fetch water. Changing his statement, he has
further stated that when the accused persons
came he was sitting at his shop while earlier
he has stated that when the accused persons
came he was opening his shop. He is not a
witness of inquest. He has also not
accompanied his mother to the police station.
All the facts and circumstances make his
presence at the spot highly doubtful. Learned
counsel further contended that all other eyewitnesses, examined by the prosecution, have
not supported the prosecution case and have
turned hostile. It is further contended that
alleged recovery of one axe and five lathis
made by the Investigating Officer on
08.10.1995 on the pointing out of five
accused
persons
is
totally
false
and
fabricated. No disclosure statement has been
recorded. There is no public witness of the
recovery. The memo of the recovery is
neither signed by the accused nor copy of it
has been provided to them. The recovery of
one axe and five lathis are shown in the
recovery memo while according to the
prosecution case only four accused were
armed with lathis. Forensic report does not
confirm the use of aforesaid weapons in the
commission of the offence. The origin of
blood could not be ascertained in the Forensic
test. Hence, this evidence adduced by the
prosecution has no evidenciary value and it
does not support the prosecution case in any
way. Learned counsel for the appellants
further contended that the incident is alleged
to be of 6 a.m. The post mortem of the
deceased was conducted on the same day, at
4 p.m. It is mentioned in the post mortem
report that rigor mortis was present all over
the body and estimated time of death is 12
hours. Learned counsel submitted that rigor
mortis spreads over the entire body after 12
hours of death. It suggests that the incident
had occurred in the night or at wee hours of
the morning, by some unknown miscreants
and due to previous enmity the appellants
have been falsely implicated. It is also
contended that the F.I.R. has been scribed by
Ram Prakash Tiwari at police station in the
presence of S.O., so there are chances of false
implication of the applicants. Learned
counsel, lastly, contended that the learned
trial court has erred in relying on oral
testimony of Nanhi Bahu, PW 1 and Santosh,
PW 3. The finding recorded by the lower
court is erroneous and unjustified. There is no
cogent evidence on record to prove the
prosecution case and trial court has failed to
properly appreciate the evidence on record
and committed material illegality while
believing the prosecution evidence. Hence,
the finding of conviction and sentence
recorded by the trial court cannot be
sustained and is liable to be set aside. The
appellants are liable to be acquitted.

SUBMISSIONS ON BEHALF OF
THE STATE

14. Learned A.G.A. contended that
the prosecution has produced ocular
version of the incident. Nanhi Bahu, PW 1,
is the eye-witness. She is also injured. Her
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
medical examination report has been
proved, so her presence at the spot cannot
be doubted. Merely because in her first
statement she turned hostile and did not
support the prosecution case, her oral
testimony cannot be discarded. From her
oral testimony it is established that threat
was extended to her from the appellants'
side and under that threat she turned hostile
and did not support the prosecution case. It
has come in her statement that she was
threatened that if she deposes against the
accused-appellants, then her other son will
also be killed. Her subsequent statement is
not under pressure or threat of the police.
She has stated that police asked her as to
why has she given a false statement. This
clearly
establishes
that
her
previous
statement was not true. In her subsequent
statement she has clearly stated that her son
was assaulted by the accused who were
armed with Ballam, axe and lathis and
when she tried to rescue her son she was
also assaulted with lathi. Learned A.G.A.
also contended that Santosh, PW 3, is the
eye-witness
and
he
has
also
fully
corroborated
the
prosecution
case.
Omission by the Investigating Officer in
not showing hand-pump and Kiosk of
witness is laches on his part, on account of
which, the ocular testimony of the witness
cannot be disbelieved. The witness has also
explained that when he tried to save his
brother, then accused-persons wielding
their weapons pushed him away that is why
he has not suffered any injury in this
incident which also cannot be a ground to
disbelieve him. There may be some
discrepancy and contradiction in the oral
testimony of the witnesses which are
natural as the witnesses are illiterate and
rustic villagers. Oral testimony of the eyewitnesses stands corroborated from the
medical evidence on record. Learned
A.G.A. also contended that in the post
mortem report the estimated time of death
is 12 hours. This time may have variance of
four hours on either side, so on this ground,
the time of the incident cannot be doubted.
Learned trial court has rightly relied on
ocular testimony of PW 1, Nanhi Babu and
PW 3 Santosh. There is no sufficient
ground to discard their testimony. Learned
A.G.A. submitted that even if the evidence
of recovery of weapons is discarded, there
is sufficient evidence in the form of ocular
testimony to prove the prosecution case.
The F.I.R. has been lodged promptly at
7.15 a.m. So, there is no chance of false
implication of the accused by way of
consultation. All the accused are named in
it with specific averment about weapons
used by them which stands corroborated
from the oral as well as medical evidence
There is no illegality or infirmity in the
findings of the learned trial court.

ANALYSIS :

15. The prosecution has relied on
ocular version. Seven eye-witnesses have
been examined by the prosecution. Except
complainant, Nanhi Bahu, PW 1 and
Santosh, PW 3, the brother of the deceased,
all other eye-witnesses turned hostile.

Complainant,Nanhi Bahu, PW 1,
is also the mother of the deceased. In her
examination-in-chief, the witness has only
corroborated the motive. She has stated that
her son Pappu alias Har Narayan had
irrigated the field of accused, Kappu, of
which Rs.6,000/- was due on him. Due to
this, the relations of her son with accused
were sour. She also stated that a day before
the incident accused, Kappu has come to
invite her son for Vedi Hawan, on which
her son abused Kappu. In her first
statement, the witness has not supported the
prosecution case that in front of her,
9 All. Hanna & Ors. Vs. State of U.P.
1427
accused, Hanna with ballam, Kappu with
axe and Daya, Duli, Prakash and Babu with
lathis assaulted Pappu alias Har Narayan
and that she and her son Santosh tried to
save him; she also stated that neither Babu
assaulted her nor did she try to rescue
Pappu alias Har Narayan. In the crossexamination conducted by the prosecution,
the witness has admitted that her medical
examination was conducted at District
Hospital. She has also stated that her son
has left the house in front of her. At that
time, she and her son, Santosh were
drawing water from the handpump. She has
also stated that her son was lying four
paces from the handpump. The witness has
disowned her statement recorded under
Section 161 Cr.P.C. She has also denied the
suggestion of prosecution with regard to
the incident. Thereafter, on 05.02.1999 the
witness moved an application before the
trial court alleging therein that she has
witnessed the incident and she was also
assaulted by the accused and suffered
injuries in the incident. She had lodged the
report and had also given statement to the
Investigating Officer, which is true. She
also stated that earlier she has given
statement in the court under the threat of
accused-persons and now she wishes to
depose correct facts before the court. On
the aforesaid application, the witness was
recalled by the trial court. Her statement
was again recorded on 11.03.1999. In this
statement, she has stated that she was
threatened and due to this reason she has
given earlier statement. Thereafter the
police threatened her as to why has she
given a false statement. Now, she has come
to depose again. The witness was asked to
depose, whatever, she wanted. Then the
witness has stated that Hanna, holding
Ballam, Kappu holding an axe and Daya,
Duli, Prakash and Babu, holding lathis,
assaulted her son when he had gone to
attend the call of nature. She with her
daughter-in-law had come to fetch water.
The
witness
was
examined
by
the
prosecution again in question-answer form.
In this statement she has clearly stated that
her son was assaulted by the accused and
when she tried to rescue, she was also
assaulted with lathi. She has also stated that
on the previous occasion she has given
statement under threat of Shankar, Rama
and Kappu. She was threatened that her one
son has died and if she deposes against the
accused, her second son will also be killed.
She has also stated that Rama is the son of
the uncle (Kaka) of accused Kappu.
Shankar is cousin of Kappu. She has also
stated that today, she is deposing true facts
before the court and no one has threatened
her for deposing. In cross-examination,
conducted by the defence counsel, the
witness had stated that she came by tractor
to lodge the report at the police station.
Tiwariji was with her. Tiwariji scribed the
report at the police station, where Sub
Inspector was sitting and had written
whatever, she stated. The report was
handed over to the Sub Inspector and she
went to the hospital with a policeman. The
witness has denied the suggestion of
defence that she has not witnessed the
incident and report was not scribed on her
dictation by Ram Prakash Tiwari. The
witness has not been cross-examined by the
defence on the material facts regarding the
incident. So, her aforesaid statement is
intact.

Nanhi Bahu, PW 1, is also
injured. Her medico-legal examination
report, Ext. Ka-4, has been proved by Dr
R.P. Gupta, PW 9.Three contusions and
one lacerated wound have been found on
different parts of her body. Medico-legal
examination was conducted on the day of
the incident at 10 a.m. and duration of
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries was fresh. The witness has stated
that when she tried to rescue her son, she
was assaulted with lathi. The doctor has
accepted the suggestion put by the
prosecution that injuries may come on
05.10.1995 at 6 a.m. So, medical evidence
further corroborates that the witness has
suffered injuries at the time of incident
which establishes her presence on the spot
at the time of incident. There is no specific
statement that only one lathi blow was
inflicted on her. The witness has stated that
when she tried to rescue her son, she was
assaulted with lathi. It is correct that the
witness has stated that lathi blow was
inflicted on her left hand while injury nos.1
and 2 are on right hand and there is no
injury on the left hand. While appreciating
the oral statement of this witness it should
be kept in mind that her son was beaten to
death in front of her, so, it is not expected
from her to disclose exactly what injuries
were inflicted upon her. Further, the
statement has been recorded after a gap of
more than two years from the date of
incident, hence some contradictions are
natural and on this ground her oral
testimony cannot be disbelieved. The
witness, being injured, her presence at the
spot cannot be doubted. The Apex Court in
Abdul Sayeed Versus State of Madhya
Pradesh (2010) 10 SCC 259 has held that,

"Where
a
witness
to
the
occurrence has himself been injured in the
incident, the testimony of such a witness is
generally considered to be very reliable, as
he is a witness that comes with a built-in
guarantee of his presence at the scene of
the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone".

In Bhagwan Jagannath Markad
Versus State of Maharashtra (2016)10 SCC
537 and State of Haryana Versus Krishnan,
AIR 2017 SC 3125, it has been laid down
that the testimony of an injured witness
should be relied upon unless there are
strong grounds for rejection of his evidence
on the basis of major contradictions and
discrepancies. The reason for attaching
such sanctity to the evidence of an injured
witness is that his presence at the scene of
crime stands established.

Complainant, Nanhi Bahu, PW 1,
has explained the circumstances under
which her previous statement was recorded.
She has also explained circumstances under
which she has come to depose before the
court again.