# Har Swaroop v. State

- **Citation:** (2025) 9 ILRA 694
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-08
- **Case number:** Criminal Appeal No. 2477 of 1986
- **Bench:** Vivek Kumar Birla, Jitendra Kumar Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/har-swaroop-v-state-53964
- **Pages:** 19

## Headnote

A.G.A.

Issue for Consideration
Matter pertains to whether the conviction of the
appellant Suresh under Ss. 302/149 IPC and
148 IPC was sustainable in view of the ocular,
medical
and
circumstantial
evidence,
and
whether the prosecution had proved its case
beyond reasonable doubt.

Headnotes
Indian Penal Code, 1860 - SS. 147, 148,
149,
302,
307
-
Code
of
Criminal
Procedure, 1973 - S. 313 - Criminal Trial -
Appreciation
of
Evidence
-
Related/Interested
Witnesses
-
Eye
Witnesses (P.W. 3, P.W. 4, P.W. 6) -
Conduct of Near Relatives of Deceased -
Non-touching of Dead Body - Highly
Unnatural
-
Presence
at
place
of
occurrence - Doubtful - Medical Evidence -
Inconsistency with Ocular Evidence -
Direction of Fire Arm Injuries - Motive -
Alternate Suspect - Enmity Established -
Benefit of Doubt - Failure of Prosecution.
Held: Conduct of the eye witness P.W. 3, P.W.
4 and P.W. 6 is highly unnatural -Presence is
highly doubtful - Dimension and size of the
injuries does not correspond to the eye
witnesses account - Prosecution has failed to
prove its case beyond the shadow of reasonable
doubt - Appeal allowed - Conviction set aside
- Appellant Suresh acquitted - Bail bonds
cancelled. (Paras 33, 34, 35, 44, 45, 46, 47, 48,
49) (E-7)

Case Law Cited
Krishna Mochi v. State of Bihar, (2002) 6 SCC
81; Masalti v. State of U.P., AIR 1965 SC
202; Darya Singh v. State of Punjab, AIR 1965
SC 328; Appabhai v. State of Gujarat, AIR
1988 SC 696; State of A.P. v. S. Rayappa,
(2006) 4 SCC 512; Pulicherla Nagaraju v.
State of A.P., (2006) 11 SCC 444; Satbir
Singh v. State of U.P., (2009) 13 SCC 790;
Jayabalan v. U.T. of Pondicherry, (2010) 1
SCC 199; Dharnidhar v. State of U.P., (2010)
7 SCC 759; Ram Bharosey v. State of U.P.,
AIR 2010 SC 917; Baban Shankar Daphal v.
State of Maharashtra, 2025 SCC OnLine SC
137; Shahaja @ Shahajan Ismail Mohd. v. State
of
Maharashtra,
(2023)
12
SCC
558;
Pahalwan Singh v. State of U.P., 2020 (6) ALJ
166; Kaptan Singh v. State of U.P., 2020 (1)
ADJ 106 (DB); Jarnail Singh v. State of
Punjab, (2009) 9 SCC 719; State of Haryana
v. Bhagirath, (1999) 5 SCC 96; Neeraj Sharma
v. State of Chhattisgarh, (2024) 3 SCC 125;
Balu Sudam Khalde v. State of Maharashtra,
2023 SCC OnLine SC 355; Amar Singh v.
State (NCT of Delhi), Criminal Appeal Nos.
335-336 of 2015.

List of Acts
9 All. Har Swaroop Vs. State
695
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973.

List of Keywords
Benefit Of Doubt; Unnatural Conduct; Presence
Doubtful;
Inconsistent
Medical
Evidence;
Firearm Injuries; Direction of Injuries; Ballam
(Spear); Incised Wound; Blood-Stained Soil;
Enmity;
Related
Witnesses;
Eye-Witness
Credibility; No Recovery; Alternative Hypothesis.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 2477 of 1986,
arising out of Sessions Trial No. 15 of 1985,
District Mathura.

Appearances for Parties
Advs. for the Appellant:
Sri Akhilesh Ripu Soodan Yadav, S.P.S. Raghav,
Rohit Shukla.
Advs. for the Respondents:
Sri Rahul Asthana, A.G.A.

## Text

_Characters 0–39,983 of 64,391. This is a partial read: ask again with offset=39983 for what follows._

694 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded by the trial court is set aside. The
appellants Saind Pal Singh and Prem Babu
are acquitted of the charges for which they
have been tried. The appellants Saind Pal
Singh and Prem Babu are on bail, therefore,
their personal bonds and sureties are,
hereby, discharged. The appellants will
fulfil the requirement of Section 437-A,
Cr.P.C. to the satisfaction of the trial court
at the earliest.

26. The trial court record be returned
forthwith with a certified copy of this
judgment for compliance. The office is
further directed to enter the judgment in
compliance register maintained for the
purpose of the Court.
----------
(2025) 9 ILRA 694
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 2477 of 1986

Har Swaroop ...Appellant
Versus
State ...Respondent

Counsel for the Appellants:
S.P.S. Raghav, Rohit Shukla

Counsel for the Respondents:
A.G.A.

Issue for Consideration
Matter pertains to whether the conviction of the
appellant Suresh under Ss. 302/149 IPC and
148 IPC was sustainable in view of the ocular,
medical
and
circumstantial
evidence,
and
whether the prosecution had proved its case
beyond reasonable doubt.

Headnotes
Indian Penal Code, 1860 - SS. 147, 148,
149,
302,
307
-
Code
of
Criminal
Procedure, 1973 - S. 313 - Criminal Trial -
Appreciation
of
Evidence
-
Related/Interested
Witnesses
-
Eye
Witnesses (P.W. 3, P.W. 4, P.W. 6) -
Conduct of Near Relatives of Deceased -
Non-touching of Dead Body - Highly
Unnatural
-
Presence
at
place
of
occurrence - Doubtful - Medical Evidence -
Inconsistency with Ocular Evidence -
Direction of Fire Arm Injuries - Motive -
Alternate Suspect - Enmity Established -
Benefit of Doubt - Failure of Prosecution.
Held: Conduct of the eye witness P.W. 3, P.W.
4 and P.W. 6 is highly unnatural -Presence is
highly doubtful - Dimension and size of the
injuries does not correspond to the eye
witnesses account - Prosecution has failed to
prove its case beyond the shadow of reasonable
doubt - Appeal allowed - Conviction set aside
- Appellant Suresh acquitted - Bail bonds
cancelled. (Paras 33, 34, 35, 44, 45, 46, 47, 48,
49) (E-7)

Case Law Cited
Krishna Mochi v. State of Bihar, (2002) 6 SCC
81; Masalti v. State of U.P., AIR 1965 SC
202; Darya Singh v. State of Punjab, AIR 1965
SC 328; Appabhai v. State of Gujarat, AIR
1988 SC 696; State of A.P. v. S. Rayappa,
(2006) 4 SCC 512; Pulicherla Nagaraju v.
State of A.P., (2006) 11 SCC 444; Satbir
Singh v. State of U.P., (2009) 13 SCC 790;
Jayabalan v. U.T. of Pondicherry, (2010) 1
SCC 199; Dharnidhar v. State of U.P., (2010)
7 SCC 759; Ram Bharosey v. State of U.P.,
AIR 2010 SC 917; Baban Shankar Daphal v.
State of Maharashtra, 2025 SCC OnLine SC
137; Shahaja @ Shahajan Ismail Mohd. v. State
of
Maharashtra,
(2023)
12
SCC
558;
Pahalwan Singh v. State of U.P., 2020 (6) ALJ
166; Kaptan Singh v. State of U.P., 2020 (1)
ADJ 106 (DB); Jarnail Singh v. State of
Punjab, (2009) 9 SCC 719; State of Haryana
v. Bhagirath, (1999) 5 SCC 96; Neeraj Sharma
v. State of Chhattisgarh, (2024) 3 SCC 125;
Balu Sudam Khalde v. State of Maharashtra,
2023 SCC OnLine SC 355; Amar Singh v.
State (NCT of Delhi), Criminal Appeal Nos.
335-336 of 2015.

List of Acts
9 All. Har Swaroop Vs. State
695
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973.

List of Keywords
Benefit Of Doubt; Unnatural Conduct; Presence
Doubtful;
Inconsistent
Medical
Evidence;
Firearm Injuries; Direction of Injuries; Ballam
(Spear); Incised Wound; Blood-Stained Soil;
Enmity;
Related
Witnesses;
Eye-Witness
Credibility; No Recovery; Alternative Hypothesis.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 2477 of 1986,
arising out of Sessions Trial No. 15 of 1985,
District Mathura.

Appearances for Parties
Advs. for the Appellant:
Sri Akhilesh Ripu Soodan Yadav, S.P.S. Raghav,
Rohit Shukla.
Advs. for the Respondents:
Sri Rahul Asthana, A.G.A.

(Delivered by Hon'ble Jitendra Kumar
Sinha, J.)

1. Heard Sri Akhilesh along with Ripu
Soodan Yadav, learned counsel for the
appellant no. 2 and Sri Rahul Asthana,
learned AGA for the State.

2. The appellants by way of this
appeal have challenged their conviction
under section 302 r/w 149 IPC and under
section
148
IPC
and
sentence
of
imprisonment
for
life
under
section
302/149 IPC and sentence of two years
rigorous imprisonment under section 148
IPC. All the sentences have been ordered to
run concurrently.

3. Vide order dated 11.3.2019, the
appeal stood abated in respect of appellant
no.1-Harswarup, appellant no. 3-Jawahar
and appellant no. 4-Tulsi and vide order
dated 27.2.2024, the appeal stood abated in
respect of appellant no. 5-Bhagat Singh.
Now the appeal is surviving only in respect
of appellant no. 2-Suresh.

4. The prosecution case in brief is that
the informant Kunwar Pal gave a written
report to the SHO of police station
Kosikala District Mathura stating therein
that Harswarup, Charan Singh and Kishan
Dutt are real brothers. The informant,
Charan Singh and Kishan Dutt used to live
together
and
Harswarup
was
living
separately
from
them.
It
is
further
submitted that a dispute was existing
regarding the partition of the dwelling
house of the informant side as stated above.
On the date of giving written report i.e. on
17.9.1984, the brother of the informant
Charan Singh was ploughing the field of
Mahendra son of Jagram by Mahindra
Eicher Tractor and his elder brother Kishan
Dutt and his son Sundar Sher Singh were
ploughing their field which was in his
common share by the tractor. He and
Mahendra Singh had gone to deliver
afternoon meal to Charan Singh, Kishan
Dutt and his son Sundar Sher Singh and
they had taken the meal together. After
taking the meal, Charan Singh started
ploughing the field and he, Mahendra
Singh and his brother Kishan Dutt and his
son Sunder sat under the Choker tree and
were talking to each other. At about 1:30
P.M. Harswarup, Suresh, Jawahar, Bhagat
Singh and Tulsi and one other person
whose name he did not know but he could
identify by face reached there. Harswarup,
Tulsi and Bhagat Singh were armed with
country-made pistol whereas Suresh and
Jawahar were armed with gun and one
person whose name he did not know but he
could identify by face reached there, was
armed with ballam (spear), stopped Charan
Singh and aforesaid persons assaulted them
by opening fire with their country-made
pistol, gun and by ballam (spear) and his
696 INDIAN LAW REPORTS ALLAHABAD SERIES
brother received fire arm injuries and when
the informant rushed to save his brother, he
was also fired upon by them but he
somehow escaped unhurt and they fled
towards Nagla Atra. When the assailants
left the place, they came there and saw
Charan Singh was lying dead on driving
seat of the tractor. The informant has
further stated that due to fear of the
assailants, he reached the police station
leaving behind the dead body of Charan
Singh and the tractor at the place of
occurrence.

5. On the basis of above written report,
case Crime No. 157 of 1984 was registered
under sections 147, 148, 149, 307 and 302
IPC against Harswarup, Suresh, Jawahar,
Bhagat Singh and Tulsi and one person
who could be identified by face. The
investigating
officer
conducted
the
investigation and submitted charge sheet
against Harswarup, Suresh, Jawahar, Tulsi
and Bhagat Singh under sections 147, 148,
149, 307, 302 IPC

6. Learned Magistrate took cognizance
of the offence and committed the case to
the court of Session. The learned Sessions
Judge Mathura framed charge against the
accused Harswarup, Suresh, Jawahar and
Tulsi and Bhagat Singh under sections 148,
302 r/w 149 and 307 IPC.

7. The prosecution, in order to bring
home the charge, has produced Head
Constable Deen Dayal Upadhaya as P.W.
1, Constable Ram Naresh as P.W. 2 ,
Kunwar pal as P.W. 3, Mahendra as P.W.
4, Dr. P.P. Pathak as P.W. 5, Kishan Dutt
as P.W. 6, Rajendra Singh Tomar as P.W. 7

8. The prosecution has also proved
documentary evidence, as F.I.R.-Ex.Ka1,
Written report-Ex.Ka.4, Recovery memo of
blood stained clothes- Ex.Ka13, Recovery
memo of blood stained and plain soil-
Ex.Ka. 14, Recovery memo of 'tractor' and
supurdaginama'-Ex.Ka.15, P.M. ReportEx.Ka.5, Panchayatnama-Ex.Ka.7, Report
of chemical examiner-Ex.Ka.19, Charge
Sheet 'mool'- Ex.ka. 17, Site plan with
index-Ex.Ka.16.

9. After closure of the prosecution
evidence, the statement of the accused were
recorded under section 313 Cr.P.C. in
which they have denied their involvement
in the commission of the offence but they
have stated that they have been implicated
in this case due to enmity. The surviving
appellant Suresh has stated that he is son of
Harswarup. Kishan Dutt and Kunwar Pal
had borrowed Rs. 30,000/- from Charan
Singh and had purchased a tractor and there
was a dispute regarding payment of
instalments of the said loan.

10. The defence has examined Krishan
Chandra as D.W. 1, K.K. Matre as D.W. 2,
Hari Singh as D.W. 3 and Jauhari Prasad as
D.W. 4.

11. Learned trial court after hearing
the argument of the prosecution and the
defence passed the judgement of conviction
and order of sentence impugned.

12. Learned counsel for the applicant
has filed written arguments and has
submitted
that
according
to
first
information report the alleged occurrence
has taken place in field of one Mahendra
son of Jagram on 17.9.1984 at 1:30 PM and
its first information report was lodged on
17.9.1984 at 5:30 PM but according to the
testimony of P.W. 5 Dr. PP Pathak who has
conducted the post mortem of the deceased
person on 18.9.1984 at 5:00 PM has opined
that duration of injuries could vary by 6
9 All. Har Swaroop Vs. State
697
hours on either side since the time of
conducting the post mortem of the
deceased and the injuries received by the
deceased might have been caused at 5:30
AM to 6:00 AM at 18.9.1984 which shows
that the date and time of alleged incident is
different and not according to prosecution
version as it has been stated. It is further
argued that as per prosecution version the
deceased had taken the food at 12:00 to
12:15 PM on 17.9.1984 and the alleged
incident has taken place at 1:30 PM on
17.9.1984 and the deceased died on spot
due to injuries sustained by him but
according to post mortem report, the semi
digested food was found in the stomach of
the deceased but in the opinion of doctor
the possibilities that deceased might have
taken food 3 or 4 hours prior to his death is
not ruled out in the present case. The
deceased is said to have died after an hour
of taking food. It is further submitted that
in view of the above the prosecution story
becomes highly doubtful.

13. It is further argued that the
prosecution story is inconsistent with the
post mortem report of the deceased. He
further submitted that as per prosecution
version general role of firing has been
attributed against all the five appellants and
one unknown person who was carrying
ballam (spear) and caused the injuries upon
the person of the deceased with their
respective weapons but the deceased has
sustained total nine ante-mortem injuries in
which injury nos. 1,2,3,4 are fire arm entry
wound and the injury no. 5 is the fire arm
wound of exit of corresponding injury no. 2
and injury nos. 6 and 7 are the punctured
wound which might have been caused by
pointed weapon ballam (spear) and injury
nos. 8 and 9 are the incised wound which
might have been caused by any sharp edged
weapon. Ballam (spear) is the pointed
weapon, therefore, injury nos. 8 and 9
cannot be caused by ballam (spear)
meaning thereby injury nos. 8 and 9 are
unexplained injuries by the prosecution.

14. It is also argued by learned counsel
for the appellants that the dimension of the
fire arm injuries received by the deceased
person are also found to be different. The
dimension of injury no. 1 which is fire arm
entry wound having dimension of 4cm x
3cm into cavity on right side with multiple
fire arm wound injury in area of 10cm x
6cm on the right side of the forehead size
bearing 0.2cm x 0.2cm into muscle deep
blackening and tattooing present and
dimension of injury nos. 2, 3 and 4 are
similar 2cm x 2cm into cavity deep on front
side
of
left
chest
and
right
chest
respectively which shows that the injuries
nos. 2, 3 and 4 might have been caused by
a single fire arm weapon from front side
and nature of weapon may be rifle and 315
bore country-made pistol, which have not
been shown in the hands of any accused
persons.

15. Learned counsel for the appellant
vehemently argued that as the directions of
the fire arm injuries received by the
deceased is concerned, all the fire arm
injuries are straight injuries and so far the
injury no. 2 is concerned which is through
and through injuries which cannot be
caused by the accused person upon the
person of the deceased while he was sitting
on the driver seat with the height of 6 to 7
foot from the earth. Therefore, if the
prosecution version is supposed truthful, in
that event, the direction of the fire arm
injuries received by the deceased should
have been upward.

16. Learned counsel further submitted
that in present case not a single injury
698 INDIAN LAW REPORTS ALLAHABAD SERIES
sustained by deceased is found to be
upward which also creates doubt and
suspicion on the part of the prosecution
story.

17. Learned counsel also argued that
as per prosecution version the deceased
was ploughing the field by tractor where he
was assaulted by all the accused persons
with respective weapons but he received all
the injuries from the front side which are
on chest and abdomen but these injuries
cannot be possible to be sustained by the
deceased while he was sitting on the driver
seat of the tractor. It also raises doubt on
the prosecution version that all the accused
persons were armed with fire arm weapon
then what was need of another person,
whose name is not disclosed, to assault
with ballam (spear).

18. It is further argued that injuries
caused by ballam (spear), which has been
received on the left and right side of the
chest of the deceased, cannot be caused if
the deceased was sitting on the driving seat.
Therefore, these all aspects clearly go to
show that the actual story of prosecution is
different, which is not as alleged by the
prosecution and the alleged eye witnesses
P.W. 3, P.W.4 and P.W.6 are not disclosing
truthful version of the prosecution story
and the presence of the alleged eye
witnesses are absolutely doubtful and their
testimonies are highly tainted.

19. It is further submitted that
according to the testimony of P.W. 7
Rajendra
Singh
Tomar,
investigating
officer, who has taken the blood-stained
earth from the place of occurrence, the field
of Mahendra son of Jagram, on 17.9.1984
at 10:30 PM and site plan was prepared on
18.9.1984 at 7 AM but in the site plan the
investigating officer has not shown the
blood-stained earth from where it was
taken. But in the report of chemical
examiner the human blood was found on
item nos. 2 to 5 and item no. 1 concerned
which was blood-stained earth in which the
blood was found disintegrated.

20. Learned counsel further refers to
the testimony of P.W. 7 investigating
officer wherein he has stated that no trail of
blood was found on the dead body of the
deceased in the field where incident had
taken place, therefore, there is no occasion
of presence of blood near the dead body of
the deceased which shows that the place of
occurrence becomes doubtful.

21. Learned counsel further submitted
that conduct of P.W. 3 and P.W. 6 are
highly unnatural as they have stated that
they did not get down the dead body of the
deceased from the tractor, even they did not
touch the body of the deceased. Learned
counsel further submitted that P.W. 3 and
P.W. 6 are real brothers of the deceased
and their conduct of not touching the dead
body of the deceased is highly unnatural
which proves that they were not present at
the place of occurrence.

22. It is further submitted that P.W. 4
Mahendra son of Chhida is also claiming to
be eye witness and he is also nephew of the
P.W. 3 and the deceased and he is also
related
witness
and
he
is
not
an
independent
witness,
therefore,
the
evidence of P.W. 4 cannot be considered as
truthful.

23. It is further submitted that
presence of P.W. 3, P.W. 4 and P.W. 6 who
were said to be eye witnesses, is doubtful
as they did not try to save the life of the
deceased and they have not received any
fire
arm
injuries
in
the
alleged
9 All. Har Swaroop Vs. State
699
indiscriminate
firing
by
the
accused
persons.

24. Learned counsel also argued that
there is no recovery of any incriminating
material from the possession of the
appellants and there is no motive and
intention of the appellants to commit the
alleged offence and they have been falsely
implicated in the present case. Learned
counsel further submitted that as per
testimony of P.W. 3 partition between all
the brothers had already taken place and
accused namely Harswarup had started to
reside at Faridabad (Haryana) and after
partition in the family and the deceased,
namely, Charan Singh, Kunwar Pal and
Kishan Dutt were residing in the village
and they also purchased the tractor jointly
on loan in which the deceased as well as
witnesses namely Kunwar Pal, P.W. 3 and
Kishan Dutt, P.W. 6 had failed to make the
payment of instalments of loan of the
tractor and they became defaulter in this
regard the evidence of DW-2 namely Sri
K.K. Matre who was Agricultural Finance
Officer at Central Bank of India, has also
proved this fact that last payment of
instalment of loan was made on 25.6.1984
thereafter no instalment of loan was being
paid by the deceased as well as Kishan Dutt
and Kunwar Pal.

25. It is further argued that deceased
was having multi corner enmity in the
village because of the murder case of his
father, the deceased, namely, Charan Singh
was the witness and Harswarup who is the
real brother of the deceased had lodged the
first information report regarding the
murder case of his father in which one
Mohan Lal was found guilty in that case
and he was awarded sentence of life
imprisonment, who was released after
serving out the sentence. Therefore, the
needle of suspicion to commit the murder
of deceased goes to Mohan Lal or his
family members who was having enmity
with respect to the murder case of the
father of the deceased.

26. Learned counsel further submitted
that
surviving
appellant
Suresh
has
specifically stated in his statement recorded
under section 313 Cr.P.C. that the deceased
was having enmity in the murder case of
his father in which one Mohan Lal was
found guilty and he was also awarded life
sentence in the murder case of his father
and the appellant, namely, Suresh has been
falsely implicated in the present case.

27. Learned counsel lastly submitted
that prosecution has not established its case
beyond reasonable doubt and surviving
appellant Suresh is entitled to be acquitted
of the charges framed against him. In
support of his argument, learned counsel
for the appellant has placed reliance on the
judgement of Hon'ble Supreme Court
passed in Criminal Appeal Nos. 335 and
336 of 2015, Amar Singh and others vs.
The State (NCT of Delhi).

28. On the other hand, learned AGA
for the State argued that the testimonies of
P.W. 3, P.W. 4 and P.W. 6 who are the eye
witnesses of the occurrence are reliable. He
further submitted that there might be some
minor contradictions but they are not of
material nature and they cannot impact on
the reliability of their testimonies.

29. Learned AGA further submitted
that the testimony of witness P.W.3, P.W.4
and P.W.6 is fully corroborated by the
medical evidence of P.W. 5. Learned
counsel further submitted that admittedly
there was enmity between the accused and
the informant side and it is well established
700 INDIAN LAW REPORTS ALLAHABAD SERIES
that the enmity is double edged weapon
which cuts both ways and it can be cause of
false implication as well as it can be cause
of commission of offence. Learned counsel
further submitted that the first information
report is prompt and non recovery of any
weapon of offence cannot be a ground to
discard the otherwise trustworthy eye
witnesses. He further submitted that other
witness are formal in nature and the
prosecution has been abled to prove its case
against the surviving appellant Suresh
beyond the shadow of reasonable doubt and
appeal lacks merit and deserves to be
dismissed.

30. In a recent judgment of Dheer
Singh and Others vs State of U.P. , 2025
(4) ADJ 791, a co-ordinate Bench of this
Court, of which one of us (Vivek Kumar
Birla, J.) was a member has considered the
law as to why a realistic approach has to be
adopted
by
Criminal
Courts,
which
appreciating evidence in Criminal trial. The
law in respect of injured, related and
interested witness was also considered
extensively,
paragraph
nos.22
to
35
whereof reads as under:-

"22. In Krishna Mochi and others
vs. State of Bihar, (2002) 6 SCC 81, the
Hon'ble Apex Court laid emphasis on
realistic approach to be adopted by the
criminal
courts
while
appreciating
evidence in criminal trial, paragraph 32
whereof is quoted as under:

"32. The court while appreciating
the evidence should not lose sight of these
realities of life and cannot afford to take an
unrealistic approach by sitting in an ivory
tower. I find that in recent times the
tendency to acquit an accused easily is
galloping fast. It is very easy to pass an
order of acquittal on the basis of minor
points raised in the case by a short
judgment so as to achieve the yardstick of
disposal. Some discrepancy is bound to be
there in each and every case which should
not weigh with the court so long it does not
materially affect the prosecution case. In
case discrepancies pointed out are in the
realm of pebbles, the court should tread
upon it, but if the same are boulders, the
court should not make an attempt to jump
over the same. These days when crime is
looming large and humanity is suffering
and the society is so much affected thereby,
duties and responsibilities of the courts
have become much more. Now the maxim
"let hundred guilty persons be acquitted,
but not a single innocent be convicted" is,
in practice, changing the world over and
courts have been compelled to accept that
"society suffers by wrong convictions and it
equally suffers by wrong acquittals". I find
that this Court in recent times has
conscientiously taken notice of these facts
from time to time........."

(Emphasis supplied)

23. In Masalti vs. State of U.P.,
AIR 1965 SC 202, Hon'ble Apex Court in
paragraph 14 observed as under:

"14. But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. ... The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice."

(Emphasis supplied)

24. In Darya Singh vs. State of
Punjab, AIR 1965 SC 328, the Hon'ble
Apex Court has also taken the view that
related witness does not necessarily mean
or is equivalent to an interested witness. A
9 All. Har Swaroop Vs. State
701
witness may be called interested only when
he or she derives some benefit from the
result of litigation; a decree in a civil case,
or in seeing a person punished in a
criminal trial, paragraph 6 whereof is
quoted as under:

"6. On principle, however, it is
difficult to accept the plea that if a witness
is shown to be a relative of the deceased
and it is also shown that he shared the
hostility of the victim towards the assailant,
his evidence can never be accepted unless
it is corroborated on material particulars."

25. In Appabhai and another vs.
State of Gujarat, AIR 1988 SC 696, the
Hon'ble Apex Court in paragraph 11
observed as under:

"11.........Experience reminds us
that
civilized
people
are
generally
insensitive when a crime is committed even
in their presence. They withdraw both from
the victim and the vigilante. They keep
themselves away from the Court unless it is
inevitable. They think that crime like civil
dispute is between two individuals or
parties and they should not involve
themselves. This kind of apathy of the
general public is indeed unfortunate, but it
is there everywhere whether in village life,
towns or cities. One cannot ignore this
handicap with which the investigating
agency has to discharge its duties. The
court, therefore, instead of doubting the
prosecution case for want of independent
witness must consider the broad spectrum
of the prosecution version and then search
for the nugget of truth with due regard to
probability if any, suggested by the
accused. The Court, however, must bear in
mind that witnesses to a serious crime may
not react in a normal manner. Nor do they
react uniformly. The horror stricken
witnesses at a dastardly crime or an act of
egregious nature may react differently.
Their, course of conduct may not be of
ordinary type in the normal circumstances.
The Court, therefore, cannot reject their
evidence merely because they have behaved
or reacted in an unusual manner....."

(Emphasis supplied)

26. Similar view has been taken
in State of A.P. vs. S. Rayappa and others,
(2006) 4 SCC 512 wherein it has been
observed that it is now almost a fashion
that public is reluctant to appear and
depose before the court especially in
criminal cases and the cases for that
reason itself are dragged for years and
years, paragraph 6 whereof is quoted as
under:

"6......by now, it is a wellestablished principle of law that testimony
of a witness otherwise inspiring confidence
cannot be discarded on the ground that he
being a relation of the deceased is an
interested witness. A close relative who is a
very natural witness cannot be termed as
interested witness. The term interested
postulates that the person concerned must
have some direct interest in seeing the
accused person being convicted somehow
or the other either because of animosity or
some other reasons."

(Emphasis supplied)

27. In Pulicherla Nagaraju @
Nagaraja Reddy v. State of AP, (2006) 11
SCC 444, the Hon'ble Apex Court in
paragraph 16 has held as under:

"16. In this case, we find that the
trial court had rejected the evidence of
PW1 and PW2 merely because they were
interested witnesses being the brother and
father of the deceased. But it is well settled
that evidence of a witness cannot be
discarded merely on the ground that he is
either partisan or interested or closely
702 INDIAN LAW REPORTS ALLAHABAD SERIES
related to the deceased, if it is otherwise,
found to be trustworthy and credible. It
only requires scrutiny with more care and
caution, so that neither the guilty escape
nor the innocent wrongly convicted. If on
such careful scrutiny, the evidence is found
to be reliable and probable, it can be acted
upon. If it is found to be improbable or
suspicious, it ought to be rejected. Where
the witness has a motive to falsely implicate
the accused, his testimony should have
corroboration
in
regard
to
material
particulars before it is accepted."

(Emphasis supplied)

28. In Satbir Singh and others vs.
State of U.P., (2009) 13 SCC 790, the
Hon'ble Apex Court in paragraph 26 held
as under:

"26. It is now a well-settled
principle of law that only because the
witnesses are not independent ones may not
by itself be a ground to discard the
prosecution case. If the prosecution case
has been supported by the witnesses and no
cogent reason has been shown to discredit
their statements, a judgment of conviction
can certainly be based thereupon ...... "

(Emphasis supplied)

29. In Jayabalan vs. U.T. of
Pondicherry, 2010 (68) ACC 308 (SC), the
Hon'ble Apex Court in paragraph 21 held
as under:

"21. We are of the considered
view that in cases where the court is called
upon to deal with the evidence of the
interested witnesses, the approach of the
court, while appreciating the evidence of
such witnesses must not be pedantic. The
court must be cautious in appreciating and
accepting the evidence given by the
interested witnesses but the court must not
be suspicious of such evidence. The
primary endeavour of the court must be to
look for consistency. The evidence of a
witness cannot be ignored or thrown out
solely because it comes from the mouth of a
person who is closely related to the victim."

(Emphasis supplied)

30. In Dharnidhar vs. State of
U.P., (2010) 7 SCC 759, the Hon'ble Apex
Court held that there is no hard and fast
rule that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the Court.
It will always depend upon the facts and
circumstances of a given case, paragraphs
12 and 13 whereof is quoted as under:

"12. There is no hard and fast
rule that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the Court.
It will always depend upon the facts and
circumstances of a given case. In the case
of Jayabalan v. U.T. of Pondicherry
[(2010)1 SCC 199], this Court had
occasion to consider whether the evidence
of interested witnesses can be relied upon.
The Court took the view that a pedantic
approach cannot be applied while dealing
with the evidence of an interested witness.
Such evidence cannot be ignored or thrown
out solely because it comes from a person
closely related to the victim. The Court
held as under:

" 23. We are of the considered
view that in cases where the court is called
upon to deal with the evidence of the
interested witnesses, the approach of the
court, while appreciating the evidence of
such witnesses must not be pedantic. The
court must be cautious in appreciating and
accepting the evidence given by the
interested witnesses but the court must not
be suspicious of such evidence. The
9 All. Har Swaroop Vs. State
703
primary endeavour of the court must be to
look for consistency. The evidence of a
witness cannot be ignored or thrown out
solely because it comes from the mouth of a
person who is closely related to the victim.

13. Similar view was taken by this
Court in Ram Bharosey v. State of U.P.
[AIR 2010 SC 917], where the Court stated
the dictum of law that a close relative of the
deceased does not, per se, become an
interested witness. An interested witness is
one who is interested in securing the
conviction of a person out of vengeance or
enmity or due to disputes and deposes
before the Court only with that intention
and not to further the cause of justice. The
law relating to appreciation of evidence of
an interested witness is well settled,
according to which, the version of an
interested witness cannot be thrown over-
board, but has to be examined carefully
before accepting the same.

14. In the light of the above
judgments, it is clear that the statements of
the alleged interested witnesses can be
safely relied upon by the Court in support
of the prosecution's story. But this needs to
be done with care and to ensure that the
administration of criminal justice is not
undermined by the persons, who are closely
related to the deceased. When their
statements find corroboration by other
witnesses,
expert
evidence
and
the
circumstances of the case clearly depict
completion of the chain of evidence
pointing out to the guilt of the accused,
then we see no reason why the statement of
so called `interested witnesses' cannot be
relied upon by the Court."

(Emphasis supplied)

31. In a very recent judgement
rendered by Hon'ble Apex Court in Baban
Shankar Daphal and others vs. The State of
Maharashtra, 2025 SCC Online SC 137 in
respect of testimony of witness which
should not be discarded merely because of
relation with victim, the Hon'ble Apex
Court has, in paragraphs 27 and 28, held
as under:

"27. One of the contentions of the
learned counsel for the appellants is that
the eyewitnesses to the incident were all
closely related to the deceased and for
prudence the prosecution ought to have
examined
some
other
independent
eyewitness as well who were present at the
time of the unfortunate incident. This was
also the view taken by the Trial Court, but
the High Court has correctly rejected such
an approach and held that merely because
there
were
some
more
independent
witnesses also, who had reached the place
of incident, the evidence of the relatives
cannot be disbelieved. The law nowhere
states that the evidence of the interested
witness should be discarded altogether.
The law only warrants that their evidence
should be scrutinized with care and
caution. It has been held by this Court in
the catena of judgments that merely if a
witness is a relative, their testimony cannot
be discarded on that ground alone.

28.
In
criminal
cases,
the
credibility of witnesses, particularly those
who are close relatives of the victim, is
often scrutinized. However, being a relative
does not automatically render a witness
"interested"
or
biased.
The
term
"interested" refers to witnesses who have a
personal stake in the outcome, such as a
desire for revenge or to falsely implicate
the accused due to enmity or personal gain.
A "related" witness, on the other hand, is
someone who may be naturally present at
the scene of the crime, and their testimony
should not be dismissed simply because of
their relationship to the victim. Courts must
assess the reliability, consistency, and
704 INDIAN LAW REPORTS ALLAHABAD SERIES
coherence of their statements rather than
labelling them as untrustworthy.

(Emphasis supplied)

32.
In
a
recent
judgement
rendered by Hon'ble Apex Court in Shahaja
@ Shahajan Ismail Mohd. vs. State of
Maharashtra, (2023) 12 SCC 558 has
observed that the appreciation of ocular
evidence is a hard task and has summed up
the
judicially
evolved
principles
for
appreciation of ocular evidence in a
criminal case, paragraphs 29 and 30
whereof is quoted as under:

29. The appreciation of ocular
evidence is a hard task. There is no fixed or
straight-jacket formula for appreciation of
the ocular evidence. The judicially evolved
principles for appreciation of ocular
evidence in a criminal case can be
enumerated as under:

29.1
While
appreciating
the
evidence of a witness, the approach must
be whether the evidence of the witness read
as a whole appears to have a ring of truth.
Once that impression is formed, it is
undoubtedly necessary for the Court to
scrutinize the evidence more particularly
keeping in view the deficiencies, drawbacks
and infirmities pointed out in the evidence
as a whole and evaluate them to find out
whether it is against the general tenor of
the evidence given by the witness and
whether the earlier evaluation of the
evidence is shaken as to render it unworthy
of belief.

29.2. If the Court before whom
the witness gives evidence had the
opportunity to form the opinion about the
general tenor of evidence given by the
witness, the appellate court which had not
this benefit will have to attach due weight
to the appreciation of evidence by the trial
court and unless there are reasons weighty
and formidable it would not be proper to
reject the evidence on the ground of minor
variations or infirmities in the matter of
trivial details.

29.3
When
eye-witness
is
examined at length it is quite possible for
him to make some discrepancies. But courts
should bear in mind that it is only when
discrepancies in the evidence of a witness
are so incompatible with the credibility of
his version that the court is justified in
jettisoning his evidence.

29.4. Minor discrepancies on
trivial matters not touching the core of the
case, hyper technical approach by taking
sentences torn out of context here or there
from the evidence, attaching importance to
some technical error committed by the
investigating officer not going to the root of
the matter would not ordinarily permit
rejection of the evidence as a whole.

29.5. Too serious a view to be
adopted on mere variations falling in the
narration of an incident (either as between
the evidence of two witnesses or as between
two statements of the same witness) is an
unrealistic approach for judicial scrutiny.

29.6. By and large a witness
cannot
be
expected
to
possess
a
photographic memory and to recall the
details of an incident. It is not as if a video
tape is replayed on the mental screen.

29.7. Ordinarily it so happens
that a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb
the details.

29.8. The powers of observation
differ from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go
unnoticed on the part of another.
9 All. Har Swaroop Vs. State
705

29.9. By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.

29.10. In regard to exact time of
an incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of the
moment at the time of interrogation. And
one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the timesense of individuals which varies from
person to person.

29.11.
Ordinarily
a
witness
cannot be expected to recall accurately the
sequence of events which take place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.

29.12. A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing cross
examination by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub- conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him.

29.13. A former statement though
seemingly inconsistent with the evidence
need not necessarily be sufficient to amount
to
contradiction.
Unless
the
former
statement has the potency to discredit the
later statement, even if the later statement
is at variance with the former to some
extent it would not be helpful to contradict
that witness.[See Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, 1983 Cri LJ
1096 : AIR 1983 SC 753, Leela Ram v.
State of Haryana, AIR 1999 SC 3717, and
Tahsildar Singh v. State of UP, AIR 1959
SC 1012]

30. To put it simply, in assessing
the value of the evidence of the eye-
witnesses, two principal considerations are
whether, in the circumstances of the case, it
is possible to believe their presence at the
scene of occurrence or in such situations as
would make it possible for them to witness
the facts deposed to by them and secondly,
whether there is anything inherently
improbable or unreliable in their evidence.
In respect of both these considerations, the
circumstances either elicited from those
witnesses themselves or established by
other evidence tending to improbabilise
their presence or to discredit the veracity of
their statements, will have a bearing upon
the value which a Court would attach to
their evidence.