# Hari Shanker & Ors v. State of U.P

- **Citation:** (2024) 5 ILRA 936
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Criminal Appeal No. 194 of 1989
- **Bench:** Vivek Chaudhary, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shanker-ors-v-state-of-u-p-52103
- **Pages:** 15

## Headnote

Govt. Advocate, Ambrish Kumar Pandey, M.L.
Syal, Ram Kishore Gupta, Sarojini Bala Yadav,
Shashi Kiran Arya, Shiv Kumar, Vijay Kumar
Tewari
5 All. Hari Shanker & Ors. Vs. State of U.P.
937
A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2)-Indian Penal
Code,
1860-Section
302-challenge
toconviction-the three accused allegedly
shot the deceased at his home in retaliation
for his role in their prior arrest-the
conviction of the appellants was primarily
based on the eyewitness testimonies of the
deceased's sons who claimed to have
witnessed the shooting-the minor delay in
filing of FIR was considered justified due to
trauma of the witnesses and the distance
between crime scene and the police
station-on the basis of forensic evidence
and cross-examination, only one accused
fired fatal shots-no forensic evidence
supported the involvement of other two
accused in the actual shooting-Hence, the
court
partially
allowed
the
appeal
acquitting two accused for lack of evidence
while
affirming
the
conviction
and
sentence of one accused.(Para 1 to 33)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,957 of 52,922. This is a partial read: ask again with offset=39957 for what follows._

936 INDIAN LAW REPORTS ALLAHABAD SERIES
are silent about the investigation carried out
qua the other two persons.
Learned counsel for the appellant
has raised argument that since the case was
monitored by the Senior Police Officer and
there was a political pressure and even the
media had highlighted the same, therefore,
in order to hush up the investigation, the
appellant being a poor person who used to
ply Tanga was a soft target by the
Investigating Officer to involve him in the
case and conclude the investigation cannot
be ruled out.
As per the prosecution version, PW3, PW-4 & PW-5 have recorded their
statements under Section 161 Cr.P.C. with
the
Investigating
Officer
by
giving
information through their mobile phones.
Both the Investigating Officers ( PW-8 &
PW-9) did not record their statement by
using audio video mode and rather recorded
the same in the daily general diary in a
casual manner. Thus, no separate statement
under Section 161 Cr.P.C. was recorded by
making a face to face investigation from
PW-3 and PW-4 and PW-5 which could be
contradicted in their cross examination.
Therefore, both the Investigating Officers
did not follow the procedure under Section
161(3) Cr.P.C., Section 162 Cr.P.C., read
with Section 145 of Evidence Act, 1872.

Though, the learned AGA for State
has submitted that this is a standard
procedure in the entire State of Uttar
Pradesh that statement under Section 161
Cr.P.C. are recoded in general diary only,
however,
no
such
instructions
or
notifications of the State Government
contrary to the provision of Cr.P.C. is on
record.

97. In view of the above, we hold
that the finding recorded by the Trial
Court that victim 'K' was subjected to
penetrative sexual assault and was later
on murdered is upheld. However, we find
that three important links in the chain of
circumstantial evidence i.e. last seen,
extra judicial confession and DNA report
could not be proved by the prosecution, in
view of the detailed finding recorded
above, to prove that the appellant-
accused committed the offence and he is
entitled to get benefit of doubt.

98. Therefore, the present appeal is
allowed. The reference made by the Trial
Court
for
confirmation
of
capital
punishment is declined. The jail appeal filed
by the accused appellant, Prem Singh
Prajapati stands allowed. He is acquitted of
the charges. He be released forthwith if not
required in any other case on furnishing of
requisite surety bonds.

99. The record and proceedings be
sent back to the Trial Court forthwith.
----------
(2024) 5 ILRA 936
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.05.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Appeal No. 194 of 1989

Hari Shanker & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Shri Nagendra Mohan

Counsel for the Respondent:
Govt. Advocate, Ambrish Kumar Pandey, M.L.
Syal, Ram Kishore Gupta, Sarojini Bala Yadav,
Shashi Kiran Arya, Shiv Kumar, Vijay Kumar
Tewari
5 All. Hari Shanker & Ors. Vs. State of U.P.
937
A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2)-Indian Penal
Code,
1860-Section
302-challenge
toconviction-the three accused allegedly
shot the deceased at his home in retaliation
for his role in their prior arrest-the
conviction of the appellants was primarily
based on the eyewitness testimonies of the
deceased's sons who claimed to have
witnessed the shooting-the minor delay in
filing of FIR was considered justified due to
trauma of the witnesses and the distance
between crime scene and the police
station-on the basis of forensic evidence
and cross-examination, only one accused
fired fatal shots-no forensic evidence
supported the involvement of other two
accused in the actual shooting-Hence, the
court
partially
allowed
the
appeal
acquitting two accused for lack of evidence
while
affirming
the
conviction
and
sentence of one accused.(Para 1 to 33)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Marwadi Kishor Parmanand & anr. Vs St. of
Guj. (1994) 4 SCC 549

2. Jai Shree Yadav Vs St. of U.P. (2004) SAR (Cri)
SC

3. Kaki Remesh & ors. Vs St. of A.P. (1994) SCC
(Cri) 1214

4. Gajoo Vs St. of U.K. (2013) Cri. LJ 88 SC

5. Brahma Giri Vs St. of U.P. (2004) 2 JIC 723
All

6. Narendra & ors. Vs St. of U.P.(2006) 56 ACC
288

7. Hardev Singh etc. Vs Harbhej Singh & ors.
(1996) 4 Crimes 216 SC

8. Seeman alias Veeranam Vs St. by Insp. of
Police (2005) Cri.L.J. 2618 SC

9. Nachhattar Singh Vs St. of Punj. (1998) SCC
Cri 949

10. Sher Singh & Anr. Vs St. of Har. (1994) Cri.
L.J. (1980) SC

11. St. of U.P. Vs Sheo Sanehi (2005) 52 ACC 113

12. Amar Singh Vs Balwinder Singh & ors. (2013)
46 ACC 619 SC

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. Present Criminal Appeal under
Section 374 (2) Cr.P.C. has been filed by the
accused-appellants Hari Shanker, Lavkush
and Radhey Lal against judgment of
conviction dated 25.02.1989 and order of
sentence dated 27.02.1989, passed by
learned IInd Additional Sessions Judge,
Lucknow in S.T. No.356 of 1987, arising out
of Case Crime No.108 of 1987, under
Section 302 I.P.C., Police Station Banthara,
District
Lucknow.
By
the
impugned
judgment and order, appellants have been
convicted for the offence under Section 302
IPC and sentenced to undergo imprisonment
for life.

2. The factual matrix of the case is
that, on 20.06.1987 the informant Om
Prakash Yadav had given a written Tehrir at
Police Station - Banthara, District Lucknow
that today, i.e. on 20.06.1987, he was
washing his hands and legs at the platform
of the well, situated in front of his house. A
cot was also lying near the well upon which
his sister Shanti and younger brother Shri
Prakash were sitting. His father Raja Ram
Yadav was sitting at the Thakht (wooden
plank) under the thatched roof, which is
adjacent to the main gate of his house. At
about 7.15 P.M., accused persons Hari
Shanker, Lavkush and Radhey Lal reached
near the well. Hari Shanker was carrying a
gun, whereas Lavkush and Radhey Lal were
carrying country made pistols in their hands.
Hari
Shanker
exhorted,
abused
and
938 INDIAN LAW REPORTS ALLAHABAD SERIES
threatened them and all the persons reached
near his father and opened fire upon him by
their gun and country made pistols. Having
received the bullet injuries, his father cried
and fell down on the ground from the Takht
(wooden plank). He died on the spot. All the
three accused persons giving threat to life
ran away towards east. The occurrence was
witnessed by Siddh Nath and other persons
of the Village along with the informant, his
brother and sister. Due to the fear of firearm,
nobody could resist the accused persons.
The informant further mentioned that earlier
accused persons were named in the
occurrence of loot, which took place at the
house of Cheda Yadav and Ram Kishan
Yadav, and the accused were having doubt
that his father Raja Ram has named them in
the above occurrence. As a matter of fact,
before the present occurrence, the accused
Hari Shanker and Lavkush were arrested by
the police of Police Station Banthara for
carrying illegal arms. In that arrest also, the
accused were having doubt that they were
caught by the police at the pointing out of
his father. Due to the above enmity, they
have killed him in above manner.

3. On the basis of the above
complaint/Tehrir, an F.I.R. was lodged by
the police of Police Station Banthara at
23.10 hours on 20.06.1987, vide Case
Crime No.180/1987, under Section 302
IPC. The distance of the Police Station
from the place of occurrence has been
shown as 8.00 Kms.

4. After completion of the
investigation of the case, Charge sheet,
against all the three accused persons was
filed in the court of Chief Judicial
Magistrate, who committed the case to the
Sessions Court. The trial court framed the
charge under Section 302 IPC against all the
three accused persons. The accused persons
denied the charges and claimed for their
trial.

5. On behalf of the prosecution, PW
1 Om Prakash, PW 2 Shri Prakash, PW 3 S.I.
Krishna Pal, PW 4 Suresh Kumar, PW 5
Arjun Singh (second Investigating Officer),
PW 6 Dr. V.N. Singh gave their oral
evidence.

6. After completion of the
prosecution evidence, accused persons
recorded their statement under Section 313
Cr.P.C.,
in
which
they
denied
the
commission of the offence. Further, they
stated that they were falsely implicated in
the case by the informant due to enmity. No
oral evidence has been produced by the
accused persons.

7. In the oral statement, PW 1 Om
Prakash has reiterated the prosecution story,
as mentioned in the F.I.R. Further, he has
mentioned in his examination-in-chief that
Hari Shanker and Lavkush shot fire at his
father by gun as well as country made pistol.

8. The witness PW 2 Shri Prakash
has also reiterated the prosecution story as
mentioned in the F.I.R. and supported the
evidence of PW 1.So far as the occurrence
of firing is concerned, he has mentioned in
his examination-in-chief that first of all Hari
Shanker shot fire at his father by his gun.
Having received the injury of that bullet, his
father fell down on floor from wooden plank
(Takhat). He further stated that the accused
Lavkush also shot fire at his father by his
country made pistol. He has further stated in
his cross-examination that the accused
Lavkush and Hari Shanker shot total three
fires at his father. As a result of fire, some
pallets also struck onto the wall of his house
and some pallets were scattered on the floor.
Further, he has stated that Hari Shanker shot
5 All. Hari Shanker & Ors. Vs. State of U.P.
939
first fire at his father, who sustained the
bullet injury on his chest. Hari Shanker also
fired (third bullet) at his father. Further, he
has stated that Hari Shanker shot two fires at
his father. He also stated that the above fact
was told by him to Investigating Officer, if
he has not mentioned it in his statement
under Section 161 Cr.P.C., he cannot say its
reason.

9. PW 3, Krishna Pal has proved the
proceedings of Inquest, Spot Memos,
Recovery Memos of pallets and blood
stained soil and clothes of deceased. He also
proved the recovery memo of two empty
cartridges of 12 bore from the place of
occurrence.

10. PW 4, Suresh Kumar has
proved the Chik F.I.R. as well as G.D. Entry.

11. Witness PW 5 Arjun Singh has
proved the statement of witnesses under
Section 161 Cr.P.C. He has also proved the
interrogation of the accused persons.

12. Dr. V.N. Singh deposed as PW
6. He has conducted the autopsy of the
deceased on 22.06.1987. He has stated that
deceased had received two firearm wounds,
which were as under :-

(i) One firearm (wound of entrance)
4 C.M. X 3 C.M. X chest cavity deep, on left
side of the chest of deceased, just below the
nipple. At the place of wound, blackening,
tatooing and charring was also present. The
margins of wound were inverted and torn.
(ii) Firearm (wound of entry) 3 C.M.
X 2.5 C.M. X abdominal cavity deep,
towards right side of the back of the
abdomen, at 6 'O' Clock position. Charring
and tatooing were present at the place of
wound. Its margins were inverted and
raptured. He has also recovered 03 piece of
wads and 20 small piece of pallets from left
lunge and chest cavity of the deceased. He
has also recovered two piece of wads and 36
small pallets from abdominal cavity, liver
and intestine of deceased. Total 05 piece of
wads and 56 piece of pallets were recovered
from the body of the deceased Raja Ram
Yadav.
The cause of death was mentioned
as shock and hemorrhage, as a result of
antemortem injuries. He has further opined
that the above injuries may be caused by the
fire from gun.

13. Learned trial court, after
considering the facts and evidence as well as
arguments of both the sides, convicted and
sentenced all the named accused persons,
under Section 302 I.P.C., which has been
assailed by the accused/appellants in the
present appeal.

14. Learned counsel for the
appellants has submitted that the trial court
has wrongly assessed the evidence of
prosecution. None was the eye witness of
occurrence. The evidence of witness PW 1
and PW 2 is not reliable as they are related
witnesses. The dead body was sent by police
for post mortem with inordinate delay. There
are discrepancies and exaggerations in the
statement of prosecution witnesses. There
was no proof of third fire. The Investigating
Officer has not found any sign of bullet on
the wall of the house of deceased. Witness
PW 2 has specifically stated that deceased
was hit by two bullets. It has been stated by
the prosecution witnesses that Hari Shanker
fired on deceased twice. From the spot, 02
empty cartridges of 12 Bore were found,
which show that the deceased was hit by
bullet fired by the gun. Learned trial court
has mechanically assessed the evidence and
convicted all the accused persons. The
conviction as well as sentence of the accused
940 INDIAN LAW REPORTS ALLAHABAD SERIES
persons is bad in the eye of law, hence, the
order of conviction is liable to be set aside,
and the appeal deserves to be allowed.

15. Learned A.G.A., replying the
arguments advanced by learned counsel for
the appellants, has submitted that eye
witnesses of fact PW 1 and PW 2 have
proved the prosecution case. They were
present at their house at the time of
occurrence and are eye witnesses of the
occurrence. Their presence at their house is
natural. The motive of the offence is proved
as there was previous enmity between the
assailants and the deceased. The evidence of
prosecution
has
no
contradiction
on
substantial points. The prosecution story is
supported with the medical as well as the
documentary
evidence
filed
by
the
prosecution. There is no ground to implicate
the accused persons falsely. The order of the
trial court is just and proper. The appeal has
no force and is liable to be dismissed.

16. We have heard the arguments of
both the sides and perused the record.

17. At the very outset, learned
counsel for the appellants has submitted that
there was delay in lodging the F.I.R. On the
above point, the record shows that the date
and time of occurrence has been shown in
the
First
Information
Report
as
approximately 7.15 P.M. on 26.06.1987 and
the F.I.R. of the occurrence was lodged at
police station on the same day at 11.10 P.M.
The distance from the place of occurrence to
the Police Station has been shown as 08
Kms. In his oral evidence Witness PW 1 has
stated that after 4- 4 1⁄2 hours of the
occurrence, he had gone to Police Station to
lodge the F.I.R. The above statement
corroborates the timing as mentioned in the
F.I.R. Further, he has stated that he had gone
police station by foot and it took 1 1⁄2 - 2
hours' time in reaching the police station.
Witness PW 1 is the eldest son of the
deceased Raja Ram Yadav. In the year 1987
he was about 20 years old. The occurrence
of firing took place in his presence, naturally
at that teen age the power of thinking of the
informant must have been ceased to take
appropriate decision quickly. He might be
under fear that if he would go to police
station by covering the distance of 8 Kms. in
darkness of night he might be attacked by
the accused persons on the way. Therefore,
some time must have been passed in taking
decision for going to police station for
lodging the F.I.R. The entry of G.D.
indicates that along with informant Prem
Kumar Yadav, S/o Shri Gajram Yadav, Mihi
Lal, S/o Bhoop Yadav also accompanied
him to Police Station. Definitely along with
other two persons he couraged to go to the
Police Station. In the cross examination the
informant has not stated anything contrary.
The statement of witness PW 1 is supported
by the statement of witness PW 2, who is the
brother of the informant as well as eye
witness of occurrence, he has stated that his
brother Om Prakash had gone to the Police
Station at about 8.00 P.M. There might be
some difference in estimating time, which is
natural. Witness PW 4 HCP Suresh Kumar
has proved Chik F.I.R. and G.D. entry as
well as timing of lodging F.I.R., which
corroborates the statement of PW 1. The
accused/appellants could not point out any
contradiction in the cross examination of
witness PW 4 on the above point. Hence, in
absence of any proof otherwise or any
discrepancy in the statement of witness, it
cannot be said that F.I.R. has been lodged by
informant with any inordinate delay.

18. Learned counsel for the
appellants has further submitted that no one
was the eye witness of the occurrence and
the occurrence took place in the darkness of
5 All. Hari Shanker & Ors. Vs. State of U.P.
941
night and there is no statement regarding the
presence of light at the place of occurrence.

19. According to the F.I.R. the
occurrence took place on 20.06.1987 at
about 7.15 P.M. It was the month of June
when in general till 7.30 P.M. the sky
remains lighter. The accused persons were
already known to the informant. No question
has been asked from the accused side in the
cross examination of the witnesses of fact
regarding
the
absence
of
light
or
identification of the accused persons. Hence,
the above objection of learned counsel for
the appellants has no substance.

20. In the F.I.R. the witness PW 1
and PW 2 have shown their presence at the
time of occurrence. The witness PW 1 has
stated that on the date of occurrence, he had
not gone to his work place. The reason for
his absence from workplace has not been
asked by the lawyer of defence in his cross
examination. The witness PW 1 has also
supported the statement of PW 2 by saying
that at the time of occurrence Shri Prakash
was also present there. He has rightly not
shown presence of his other brothers Ram
Prakash and Umesh as they were not present
at the time of occurrence. The reason has
been shown that his mother was suffering
from Cholera and she had gone to the doctor
with Sunder Lal, Raj Karan, Prem and
Umesh. The going of four persons with
informant's mother for treatment indicates
that she might have been in critical condition
due to Cholera. His father had not gone with
his mother due to the reason that he had
given fire to the dead body of informant's
grand mother. As per the rituals and customs
prevail in Hindu community, the person who
gives fire to the dead body does not move
anywhere from his house and passes his time
for 10 days separately. Hence, it is apparent
that PW 1 never tried to enhance the number
of eye witnesses falsely. The above
statement of PW 1 and PW 2 strengthens the
credibility of their statements/evidence and
makes their presence at the time of
occurrence probable.

21. Further, witness PW 2 has also
corroborated the statement of PW 1 and he
has shown the presence of PW 1 along with
him at the time of occurrence. Witness PW
2 has also stated that on the date of
occurrence witness PW 1 had not gone to his
service as he had complain of pain in his
stomach. In his cross examination PW 1 also
took the constant stand that he had not gone
to place of his work on the date of
occurrence. Therefore, in absence of
specific reply in their cross examination
otherwise
as
well
as
taking
into
consideration the positive assertion of
witness PW 1 and 2, more particularly, in
absence of any doubtful circumstance or
evidence, it cannot be said that witness PW
1 and PW 2 were not present at his residence
or were not eye witnesses of the occurrence.

22. Learned counsel for the
appellants further argued that post mortem
of deceased Raja Ram Yadav took place on
22.06.1987 at 1.00 P.M. It should have been
done on 21.06.1987. The reason of delay has
not been shown, such delay makes the
prosecution story doubtful. On the above
point
the
record
indicates
that
the
occurrence of murder took place at 7.15
P.M., F.I.R. was lodged at 11.10 P.M.
Thereafter, the Investigating Officer has
reached on the spot in the darkness of night.
That is why the proceedings of inquest could
not be started in night. The memo of inquest
(Ext - Ka-2) indicates that on 21.06.1987 at
about 6.00 A.M. the inquest proceeding was
started which was completed by 7.45 A.M.
on 21.06.1987. Thereafter, the collection of
evidence on the spot, taking the statement of
942 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses, wrapping of dead body in cloth
and fixing seal on the dead body would have
been consuming considerable time, then
after that the S.I. arranged to bring the dead
body to police station. The distance of
mortuary has been shown as 24 Kms.,
accordingly it can be presumed that the day
hours as well as the timing for conducting
post mortem would have been over for that
day. The Form-13 of police paper only
shows that the dead body was sent to
mortuary on 21.06.1987. The time of its
arrival at mortuary has not been mentioned.
Usually after sun set or in darkness of night
the autopsy of the body is not done in
mortuaries, except by specific order of
district administration. In such a scenario, if
the post mortem of the deceased took place
on 22.06.1987, it cannot be said that the
delay was manipulated for any doubtful
reason. Witness PW 2 has stated in his
evidence that he reached in about 3 - 31⁄2
hours at Medical College along with dead
body. Certainly after reaching at Medical
College some time would have been elapsed
in paper work for handing over and taking
over the dead body for autopsy and in
completing the above formalities the time
for conducting the post mortem of the
deceased would have passed. The witness
PW 6 has also opined that the fatal injury
would have been caused to the deceased at
about 7.15 P.M. on 20.06.1987. Nothing has
been cross examined by the counsel for the
appellants
with
the
above
witness.
Therefore, it cannot be said that the
prosecution story has been falsely drafted
with
any
manipulation
or
doubtful
circumstance. If the autopsy of the deceased
was started at 1.00 P.M. on 22.06.1987 it
cannot itself prove that prosecution story is
false.

23. Learned counsel for the
appellants has submitted that the witnesses
of fact PW 1 and PW 2, both are sons of
deceased. They are related witnesses. No
independent witness has been examined by
the prosecution. The person Sidhnath, S/o
Shivdeen who has been alleged as the eye
witness of the occurrence in the F.I.R. and is
the neighbour of the informant, has not been
produced in evidence, therefore, in the
absence of any independent witness, the
evidence of PW 1 and PW 2 as well as
prosecution story cannot be relied upon.
Apart from that, in the charge-sheet also, so
many independent persons, namely, Ram
Lal, Babu Lal, Radhey Lal, Parmeshwar,
Shripal have been mentioned as the
prosecution witnesses but none of them have
been produced by the prosecution in support
of the prosecution story.

24. In reply, learned A.G.A. has
submitted
that
it
is
very
common,
particularly, in the rural areas, where most of
the people are backward and illiterate. If any
independent person had seen any criminal
offence/occurrence, they would not prefer to
give their evidence as witness. Generally
they did not want to be enimical with the
accused persons, who are known to them
also. Our police enquiries are also not much
friendly with such witnesses. In the present
case, witnesses PW 1 and PW 2 have stated
in their evidence that they were present at
the time of occurrence. Both the persons are
sons of the deceased and their presence at
the place of occurrence is natural. Deceased
was having other sons, namely, Ram
Prakash and Umesh. The witness PW 1
fairly stated in his statement that at the time
of occurrence they were not present at the
place of occurrence. Both the witnesses, PW
1 and PW 2, have described the occurrence
properly. There is no substantial discrepancy
in their evidence. If the witnesses are
narrating
the
occurrence
truly,
some
discrepancies are bound to occur and
5 All. Hari Shanker & Ors. Vs. State of U.P.
943
exaggerations in their statements are also
natural.

25. (i) In the case of Marwadi
Kishor Parmanand and another Vs. State
of Gujarat, (1994) 4 SCC 549, it has been
held in paragraph 31 as under :-

"31.The evidence of a witness
deposing about a fact has to be appreciated
in a realistic manner having due regard to
all the surrounding facts and circumstances
prevailing at or about the time of occurrence
of an incident. Some contradictions and
omissions even in the evidence of a witness
who was actually present and had seen the
occurrence are bound to occur even in the
natural course. It is a sound rule to be
observed that where the facts stated by an
eyewitness substantially conform to and are
consistent on material points from the facts
stated earlier to the police either in FIR or
case diary statements and are also
consistent in all material details as well as
on vital points there would be no
justification or any valid reason for the
court to view his evidence with suspicion or
cast any doubt on such evidence. In the
present case as discussed above we find that
the solitary witness Ranchhodbhai, PW 1 is
a wholly reliable witness and his evidence in
itself, without any further corroboration is
enough to sustain the conviction of the two
appellants for the crime they are charged
with, but we find that the evidence of the sole
eyewitness
Ranchhodbhai
finds
corroboration on material aspects from the
evidence of Jayantilal PW 6, Makkar PW 8,
Dr Nathani PW 10, Dr Avasia PW 11, Dr
Joshi PW 12 and the Head Constable
Moolchand PW 18. Thus the corroboration
is also not lacking in the present case and
there was hardly any ground or any
possibility of taking the view which is
unfortunately taken by the learned trial
Judge. In our considered opinion the trial
court clearly fell in serious error in rejecting
the truthful version made by the sole
eyewitness PW 1 whose evidence does not
suffer from any infirmities, much less the
unwarranted criticism made by the trial
court. The High Court was therefore, in
exercise of its powers under Section 378 and
386, Criminal Procedure Code, fully
justified to reverse the erroneous findings
recorded by the trial court. We find
ourselves wholly in agreement with the view
taken by the High Court and the conclusions
recorded by it. Consequently the appeal
deserves to be dismissed."
(ii) In the case of Jai Shree Yadav
Vs. State of U.P., 2004 SAR (Criminal)
Supreme Court, the Apex Court has held in
paragraph 21 as under :-
"21.It is also true that PW1 was not
available to the Police for nearly 10 days
after the incident but the explanation given
by this witness is quite plausible that his
family was afraid for his safety hence he
went to his in-laws' place and remained
there and it is only when things settled down
he decided to come out and give a statement
to the Police. The possibility of his fear of
retaliation is supported by the evidence of
PW-8 I.O. who stated that there was tension
in the village and at the time of funeral of the
deceased he had to make Police bandobust
which indicates the possibility of PW-1's
apprehension and his consequent nonavailability to the investigating agency.
There is one other aspect of this case which
will have to be borne in mind while
considering the evidence of PW-1. His name
has been mentioned in the FIR as a person
who was present at the time the incident took
place. It is also stated in the FIR that in the
said incident PW-1 was injured. We have
already noticed that the prosecution has
established that this complaint was filed in
the Salempur Police Station at 5.30 p.m. If
944 INDIAN LAW REPORTS ALLAHABAD SERIES
really this witness was not present at the
time of incident in question we do not think
PW-3 would have included his name without
even knowing the whereabouts of this
witness on that day and by attributing an
imaginary injury to him. In his examination
in chief this witness has clearly narrated the
incident involving the named accused
persons as also the overt acts attributed to
them. Of course in the cross examination the
defence has brought out that this person is
closely connected with deceased Abid Ali
therefore a suggestion was made that he was
deposing falsely. This suggestion has been
denied by the appellant. In the cross
examination defence has brought about
certain
omissions,
contradictions
and
improvements in the evidence of this
witness. These shortcomings in the evidence
of this witness will have to be considered in
the background of the fact that this witness
was subjected to nearly 217 questions over
a period of 14 months i.e. his cross
examination starting on 14.8.1994 and
ending on 28.11.1995. Both the courts below
have taken judicial notice of this fact, not
only in regard to this witness but in regard
to other witnesses also and have come to the
concurrent conclusion that when a witness
is subjected to such lengthy arduous cross
examination over a lengthy period of time
there is always a possibility of the witnesses
committing mistakes which can be termed as
omissions,
improvements
and
contradictions therefore those infirmities
will have to be appreciated in the back
ground of ground realities which makes the
witness confused because of the filibustering
tactics of the cross examining Counsel."

(iii) In the case of Kaki Ramesh
and others Vs. State of Andhra Pradesh,
1994 SCC (Cri) 1214, the Apex Court has
held that it is well established rule that
exaggerations,
embellishments
and
inconsistencies on the fringe do not make
witnesses unreliable.

26. As per law, the family members
as well as interested witnesses are also
competent witnesses for giving evidence.

(i) It has been held by Apex Court in
the case of Gajoo v. State of Uttarakhand,
2013 CRI.L.J. 88 (SC), in paragraph 15 as
under :-
"15. Once, the presence of PW2 and
PW3 is shown to be natural, then to doubt
their statement would not be a correct
approach in law. It has unequivocally come
on record through various witnesses,
including
PW4,
that
there
was
a
'Satyanarayan Katha' at the house of Chetu
Ram which was attended by various
villagers. It was on their way back at
midnight when PW2 and PW3 had seen the
occurrence in dark with the help of the
torches that they were carrying. The mere
fact that PW2 happens to be related to PW1
and to the deceased, would not result in
doubting the statement of these witnesses
which otherwise have credence, are reliable
and are duly corroborated by other
evidence. In such cases, it is only the
members of the family who come forward to
depose. Once it is established that their
depositions do not suffer from material
contradictions, are trustworthy and in
consonance
with
the
above-stated
principles, the Courts would not be justified
in overlooking such valuable piece of
evidence."
(ii) In the case of Brahma Giri Vs.
State of U.P., [2004 (2) JIC 723 (All)] it has
been held that evidentiary value of testimony
of the interested witness/statement of family
member of the deceased is not to be rejected
on the ground of his relation with victim.
However, Court is required to scrutinized his
statement with care.
5 All. Hari Shanker & Ors. Vs. State of U.P.
945
(iii) In the case of Narendra and
others Vs. State of U.P., [2006 (56) ACC
288], a Co-ordinate Bench of this Court has
held in paragraph 18 as under :-
"18.We
have
considered
the
submission and in our opinion there is no
substance in this submission. It is a settled
position that there is no proposition in law
that relatives are to be treated as untruthful
witness, just because the witnesses are
related to the deceased would be no ground
to discard their testimony, if otherwise their
testimony
inspires
confidence.
Being
relatives, it would be their endeavour to see
that the real culprits are punished and
normally they would not implicate wrong
person in the crime, so as to allow the real
culprits
to
escape
unpunished.
The
submission of the non-examination of other
witnesses is concerned, mere failure to
examine all the witnesses who may have
witnessed the occurrence will not result in
outright rejection of the prosecution case if
the witnesses examined by the prosecution
are found to be truthful and reliable.
Moreover, we cannot ignore the reality that
many eye-witnesses shy away from giving
evidence for obvious reasons. In the case of
Ravi v. State, 1988 (25) ACC 168 (SC), it
has been observed that "It is settled by a
catena of cases by this Court that the
evidence of eye-witnesses cannot be rejected
merely because they are related. In such a
situation, the evidence of PW 2 in the present
case, there is no strong motive or ill will on
the part of PW 2 to exonerate the real person
who caused the injuries to her son and to
implicate the accused."
(iv) In the case of Hardev Singh,
etc. Vs. Harbhej Singh and others, 1996 (4)
Crimes 216 (SC), the Apex Court has in
paragraph 16 has held as under :-
"16.Coming to the finding as
regards the non-examination of independent
eye witnesses who saw the incident in
question we must hasten to add that it is
completely erroneous and unmerited. The
prosecution has examined Hardev Singh
(P.W. 2) and an injured witness Suba Singh
(P.W. 3), although some other villagers did
come at the place of incident but in our
opinion merely because other independent
witnesses were not examined could not be a
ground to discredit the evidence of these two
eye witnesses. This Court time and again
has emphasised that the evidence of close
relations who testified the facts relating to
the occurrence be not rejected merely on the
ground that they happened to be the
relatives. All that this Court has ruled is that
the evidence of such witnesses be scrutinised
very carefully. We have very carefully gone
through the evidence of Hardev Singh (P.W.
2) and Suba Singh (P.W. 3) who were
consistent in their evidence as regards the
details of assault caused by the respondents
(accused). Both the witnesses have given
minute details in regard to the weapons used
by each of the accused and the manner in
which they have assaulted Harbhajan Singh
in front of the house of Chanan Singh. They
also stated that A-1 fired from his gun at
Harbhajan Singh causing him bleeding
injuries. They further stated that the second
shot fired by A-1 missed the target. It is true
that the medical evidence does indicate two
gun shot injuries. In the facts and
circumstances of the case non explanation of
the gun shot injury No.6 by these two eye
witnesses
would
neither
dilute
their
evidence nor their presence could be
doubted. It is the positive case of both the
witnesses that Harbhajan Singh had come to
the house of Chanan Singh to help him in the
construction work. There is nothing in their
evidence which can persuade us to
disbelieve the story narrated as regards the
assault on Harbhajan Singh. Coming to the
assault on Baldev Singh caused by the
respondents (accused), Hardev Singh (P.W.
946 INDIAN LAW REPORTS ALLAHABAD SERIES
2) and Suba Singh (P.W. 3) had stated that
Baldev
Singh,
on noticing
that
the
respondents (accused) were coming towards
him, left the driver's seat and went to the
trolley to escape himself from the probably
attack by the accused. Harbhej Singh (A-1)
gave a lalkara and thereupon Amrik Singh
(A-3) climbed up the trolley and chopped off
the leg of Baldev Singh with gandasa.
Gurmej Singh (A-4) also climbed up the
trolley and gave 2-3 blows on his left arm
from the sharp side of gandasa. Mohan
Singh (A-5) also gave a gandasa blow from
the sharp side on his chest. After inflicting
injuries to Baldev Singh the accused fled
away. Both these witnesses were searchingly
cross-examined by the defence but there is
hardly any material brought on record to
discredit their evidence. The evidence of
both these witnesses in our considered view
unmistakably proves that the respondents
(accused) who were the members of the
unlawful assembly having a common object
to cause the murders of Harbhajan Singh
and Baldev Singh did cause such bodily
injuries to them as a result thereof they met
with homicidal deaths."
(v) In the case of Seeman alias
Veeranam Vs. State by Inspector of Police,
2005 CRI.L.J. 2618 (SC), the Apex Court in
paragraph 4 has held as under :-
"4. It is now well settled that the
evidence of witness cannot be discarded
merely on the ground that he is a related
witness or the sole witness, or both, if
otherwise the same is found credible. The
witness could be a relative but that does not
mean to reject his statement in totality. In
such a case, it is the paramount duty of the
court to be more careful in the matter of
scrutiny of evidence of the interested
witness, and if, on such scrutiny it is found
that the evidence on record of such
interested sole witness is worth credence,
the same would not be discarded merely on
the ground that the witness is an interested
witness. Caution is to be applied by the court
while scrutinizing the evidence of the
interested sole witness. The prosecution's
non-production of one independent witness
who has been named in the FIR by itself
cannot be taken to be a circumstance to
discredit the evidence of the interested
witness and disbelieve the prosecution case.
It is well settled that it is the quality of the
evidence and not the quantity of the evidence
which is required to be judged by the court
to place credence on the statement."
(vi) In the case of Nachhattar Singh
Vs. State of Punjab, 1998 SCC (Cri) 949,
the Apex Court in paragraphs 3 and 4 has
held as under :-
"3. The High Court has held that
both Daya Singh and Kulwant Singh were
present in the house at the time of the
incident. Their presence in their own house
at that time was quite natural. If they were
present in their house then obviously they
could have seen the assault on their mother
by the appellant. Both the courts below have
thought it proper to accept their evidence
and we see no reason to differ from the
finding recorded in that behalf.
4. The contention raised on behalf of
the appellant was that the witnesses could
not have been in their house at the time
when the incident took place. It was late
evening time and therefore their returning
to the house from their shop at that time
cannot be regarded as unnatural or
improbable. As we are of the view that the
High Court was right in confirming the
conviction of the appellant on the basis of
the evidence of the two eye witnesses, this
appeal has to be dismissed."

(vii) In the case of Sher Singh and
another Vs. State of Haryana, 1994
CRI.L.J. 1980 (SC), the Apex Court has
held in paragraph 5 as under :-
5 All. Hari Shanker & Ors. Vs. State of U.P.
947
"5. Merely because PWs 2 and 3 are
related to the deceased, that by itself is not a
ground to reject their evidence. As a matter
of fact PW 2 would be the last person to
implicate somebody falsely. It is to be noted
that he went to the village, informed his
parents and rushed to the police station
which is 19 kilometres away and gave the
report without any delay."
(viii) In the case of State of U.P. Vs.
Sheo Sanehi, [2005 (52) ACC 113], the
Apex Court in paragraph 16 has held as
under :-

"16. So far as PWs 3 and 4 are
concerned, PW 3 is nephew of deceased
Devi Din whereas PW 4 is widow of the said
deceased, as such they are natural witnesses
and their presence at the alleged place of
occurrence cannot be doubted. The names of
these two witnesses were disclosed in the
First Information Report itself and they
supported the prosecution case in all
material particulars in their statements
made before the police as well as in Court and
no infirmity could be pointed out in their
evidence, excepting that they were related to
the deceased persons and inimical to the
accused.