# Harnam Singh & Ors. (In Jail) v. The State of U.P

- **Citation:** (2020) 7 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Criminal Appeal No.1748 of 1991
- **Bench:** Manoj Misra, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harnam-singh-ors-in-jail-v-the-state-of-u-p-45911
- **Pages:** 16

## Headnote

A. Indian Penal Code, 1860- Sections
302/149, 307/149 and 148-the testimony
of PW1 attributing specific role to all the
five appellants, it was duly established
that the accused constituted an unlawful
assembly whose object was to finish off
the victims and with that avowed object
they open indiscriminate fire at the
deceased,
PW1
and
PW2-hence,
prosecution
has
been
successful
in
establishing
the
charges
against
the
7 All. Harnam Singh & Ors. Vs. The State of U.P.
417
accused-appellants beyond the pale of
doubt.(Para 50 to 52)

B. Non-examination of any independent
witness does not dent the prosecution
case because the incident took place on
the outskirts of the village, near the
jungle. At such a place, absence of an
independent witness is quite natural.
moreover, since one of the survivors of
the incident is a person who received
gunshot injuries consistently supported
the prosecution case and his testimony is
corroborated by medical evidence and
there was no effort made by the defence
to discredit the prosecution case.(Para 49)

The appeal is dismissed. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,824 of 51,744. This is a partial read: ask again with offset=39824 for what follows._

416 INDIAN LAW REPORTS ALLAHABAD SERIES
PW 1 and PW 2 clearly specify the role of
the appellant. Presence of the appellant is
fully
established.
Medical
report
corroborated with the oral testimony of the
PW 1 and PW 2. Their evidence has a ring
of truth. Hence, learned trial court rightly
convicted the appellant under Section 324
IPC resultantly, conviction of the appellant
under Section 324 IPC is hereby affirmed.
Coming to the sentence to be imposed on
the appellant since incident occurred more
than 33 years ago and presently, the
appellant is aged about 60 years and during
intervening period, he had not indulged into
any criminal activity nor he had any
criminal
background
and
presently,
appellant is well rooted in society.
Submission of the learned counsel for the
appellant for showing leniency in this
matter regarding sentence, is liable to be
acceptable.

19. Considering the entire possible
conspectus of circumstances, in my
opinion sending appellant back to serve
out remaining part of his sentence will
not be in the interest of justice. It is also
pertinent to mention that during trial
appellant was in jail for more than 9
months so the end of justice would be
served, if the appellant is sentenced for
period undergone by him and fine
enhanced from Rs. 10,000/- to 20,000/-.
Out of which, the compensation of Rs.
15,000/- is awarded to the injured Mohd.
Haroon, in case of his death, to the legal
heirs of the injured Mohd. Haroon. The
appellant is permitted to deposit the fine
within period of one month from the date
of the judgement. Failing to deposit the
same, appellant shall surrender or he be
taken in custody to serve out one year
rigorous
imprisonment
as
default
sentence.

20. So the appeal is 'dismissed' on
the point of conviction and partly allowed
on the point of sentence as above.
Appellant is already on bail. He need not
to surrender but his personal and surety
bond shall be discharged only after he
had deposited the fine or has been
arrested to serve out the default sentence
imposed hereinabove.

21. Let a copy of this judgement and
order be sent to the learned trial court
alongwith the lower court record, for its
intimation and compliance.
----------
(2020)07ILR A416
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE PANKAJ BHATIA, J.

Criminal Appeal No.1748 of 1991

Harnam Singh & Ors. ...Appellants(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri K.D.Tripathi, Sri Rakesh Pati Tiwari

Counsel for the Opposite Party:
G.A.

A. Indian Penal Code, 1860- Sections
302/149, 307/149 and 148-the testimony
of PW1 attributing specific role to all the
five appellants, it was duly established
that the accused constituted an unlawful
assembly whose object was to finish off
the victims and with that avowed object
they open indiscriminate fire at the
deceased,
PW1
and
PW2-hence,
prosecution
has
been
successful
in
establishing
the
charges
against
the
7 All. Harnam Singh & Ors. Vs. The State of U.P.
417
accused-appellants beyond the pale of
doubt.(Para 50 to 52)

B. Non-examination of any independent
witness does not dent the prosecution
case because the incident took place on
the outskirts of the village, near the
jungle. At such a place, absence of an
independent witness is quite natural.
moreover, since one of the survivors of
the incident is a person who received
gunshot injuries consistently supported
the prosecution case and his testimony is
corroborated by medical evidence and
there was no effort made by the defence
to discredit the prosecution case.(Para 49)

The appeal is dismissed. (E-6)

List of Cases Cited:-

1. Hari Obula Reddy & ors. Vs St. of A.P.,(1981)
3 SCC 675

2. Jalpat Rai & ors. Vs St. of Hary.,(2011) 14
SCC 208

3. Raju @ Balachandran & ors. Vs St. of
T.N.,(2012) 12 SCC 701

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The present appeal has been filed
by as many as five appellants against the
judgement and order dated 10.9.1991
passed by the Sessions Judge, Pilibhit in
Sessions Trial No. 210 of 1983, whereby
the appellants were convicted under:
Sections 302/149 ; 307/149; and 148 I.P.C.
and punished as under: life imprisonment
under Sections 302/149 I.P.C.; 5 years R.I.
under Sections 307/149 I.P.C.; and 3 years
R.I. under Section 148 I.P.C. with direction
that all the sentences shall run concurrently.

2. During the pendency of the appeal,
Appellant No.1 (Harnam Singh); Appellant
No.2 (Babu Singh); Appellant No.3 (Nathu
Singh); and Appellant No.4 (Surajpal
Singh) died. Hence, their appeal was abated
vide order dated 29.01.2019. The appeal of
Appellant No.5 (Jogendra Singh) survives.

3. The prosecution case in the first
information report (F.I.R.) was that around
four years ago, Puttu Singh and Rakshpal
Singh (also known as Mula Thakur),
relatives of the appellants, were murdered,
in which nine persons were made accused.
The informant (Ram Bhajan - PW2) and his
brother Nand Lal (PW1) were also accused
in that case. However, the informant and
three other persons were acquitted whereas
Nand Lal (PW1) and five others were
convicted in that case. Since then there had
been strong enmity between the family of
the accused-appellants and the informant.
After narrating the above background, it is
stated that on 28.5.1983, the informant
(PW2); his uncle Kallu (the deceased); and
Nand Lal (PW-1) had gone to jungle to
collect thatch material for the ''Chhappar'.
While they were on their way back, at
about sun-set, near Barhepura canal, the
accused Harnam Singh (Appellant No.1)
armed with rifle; and Surajpal Singh
(Appellant No.4), both sons of Puttu Singh,
armed with S.B.B.L. gun emerged from the
bushes on the north side of the canal, near
the culvert of the Barhepura canal,
whereas, from the southern side bushes,
Nathu Singh and Babu Singh, both sons of
Umrai Singh, armed with S.B.B.L. Guns,
and surviving appellant - Jogender Singh,
son of Puttu Singh, armed with Tamancha,
came out and challenged the informant
(PW2), Kallu (deceased) and Nand Lal
(PW1) saying that today they would take
revenge for the death of Puttu and Mula. It
was alleged that all the five persons with an
intent to kill fired, in which, Kallu (the
deceased) sustained 3 to 4 gun-shots and
Nand Lal (PW1) sustained two gun-shot
injuries. It was alleged that Kallu fell down
418 INDIAN LAW REPORTS ALLAHABAD SERIES
and slipped into the canal whereas Nand
Lal (PW1) and the informant (PW2)
managed to jump into the canal and they
ran in opposite directions to save their
lives. It was stated that Nand Lal (PW-1)
waded across the canal and ran away
towards the sugar-cane field and was
chased by the accused and a shot also hit
him on the back but by running into the
sugar-cane field he could save his life. On
the other hand, the informant (PW-2) saved
his life by running towards the village
Orajhar where he came to the house of
Nathu Lal Gangwar and requested him to
accompany him to the police station to
lodge the F.I.R., however, as it had turn
dark, on account of fear, they could not
muster courage to immediately lodge the
report. It is stated in the FIR that in the
morning when it was revealed by the
villagers of Orajhar that the brother of the
informant, namely, Nand Lal (PW1) is
alive and hiding in the sugar-cane fields in
an injured condition, Nand Lal was brought
from the sugar-cane field to the village and
there they were told that the body of Kallu
was lying tagged on a ''Khunta' towards
south of the culvert. Where after, the body
was taken out and kept on the western Patri
of the canal. The FIR (Ex. Ka-1) was
lodged on 29.5.1983 at about 9:15 A.M. at
P.S. Bilsanda, District Pilibhit.

4. On the basis of the report (Ex. Ka1), Chik F.I.R. (Ex. Ka-4) was taken down
at the police station and a case was
registered vide G.D. entry (Ex. Ka-5). The
Investigating Officer V.P.S. Rawat (PW-4),
who was allegedly busy in the election duty
of the Block Pramukhs, deputed SubInspector Mathan Singh to proceed to the
spot for preparing the inquest report.

5. Mathan Singh prepared inquest
report (Ex. Ka-6) and the connected papers
(Ex. Ka-7 to Ka-11) which were proved by
PW4. The Investigating Officer (PW4)
thereafter prepared the site plan denoting
the place of occurrence (Ex. Ka-12) and the
site plan from where body was recovered
(Ex. Ka-15) including memos of recovery
of blood stained earth etc: from the place of
occurrence (Ex. Ka-13) and from where the
body was recovered (Ex. Ka-16) as also
with regard to recovery of ''Tiklies' (Wad)
of the cartridges found at the place of
occurrence.
After
completing
the
investigation, the Investigating Officer
(PW4) submitted a charge-sheet (Ex. Ka17).

6. The injured Nand Lal was
medically examined by Dr. G.M. Mohanti
(PW-6) on 29.5.1983 at about 3:00 P.M.
The injury report is on record as Ext. Ka19. The post-mortem on the dead body of
Kallu was conducted by Dr. H.K. Agarwal
(PW-3) on 30th May, 1983.

7. On the charges framed the accused
pleaded not guilty and prayed for trial. To
prove the case, the prosecution examined as
many as six witnesses. PW-1 Nand Lal and
PW-2 Ram Bhajan were examined to
establish the factum of the occurrence
whereas Dr. H.K. Agarwal (PW-3) deposed
with regard to the post-mortem conducted
by him and Dr. G.M. Mohanti (PW-6)
deposed in respect of injury sustained by
Nand Lal. The I.O. (PW-4) and the
Constable Rakesh Singh (PW-5) were also
examined. PW-5 deposed to the effect that
he had taken the dead body for postmortem.

8. No evidence was led in defence.

9. Dr. H.K. Agarwal (PW3) who
conducted the post mortem on the body of
Kallu on 30th May, 1983 at about 2:45
7 All. Harnam Singh & Ors. Vs. The State of U.P.
419
P.M., found following ante-mortem injuries
on the body of the deceased:-

"1. Fire arm wound of entry
(seven) each size of 0.5 cm x 0.5 cm. over
front and outer side of right upper arm in
an area of 12 cm. X 5 cm. Blackening,
tattooing
and
scorching
absent.
On
exploration underneath tissue lacerated,
fracture of lower 3rd of right humorous
and communicating with wounds of exit.

2. Fire arm wounds of exit
(seven) each size of 1 cm. X 1 cm. on inner
aspect and back of right upper arm
communicating with wound of entry.
Margins everted.

3. Fire arm wound of entry (eight
in number) each size of .5 cm x 5 cm. on
front side and right side chest lower part
and upper part of abdomen. No blackening,
tattooing seen in an area of 18 cm. X 9 cm.
On exploration underneath tissue badly
lacerated (R)lung pleura, heart, left lung,
pleura, pericardium lacerated. 3 medium
size pellets removed- from right lung and
one from heart.

4. Two fire arm wound of exit 1
cm. X 1 cm. on inner side of left side chest
on anterior axillary fold line 7 cm. below
fold line 7 cm. below fold. Two in number 1
cm. apart.

5. Fire arm wound of entry 1 cm.
x 1 cm. on inner side of left side chest 5 cm.
from nipple at 9 O' clock position.

6. Fire arm wound of entry 0.6
cm. x 0.5 cm. left upper arm upper 3rd.
inner side. No blackening. No tattooing.
Communicating with wound of exit 1 cm. x
1 cm. on outer upper 3rd. of left upper arm
with fracture shaft humorous left.

7. Fire arm wound of exit 1 cm. x
1 cm. on left line and outer above iliac
crest left.

8. Contusion 5 cm. x 2 cm. over
upper 3rd. outer side left upper arm.

9. Fire arm wound of entry (five)
over right scapular region each size of 0.5
cm. x 0.5 cm. No blackening. No tattooing.
No scorching. Underneath tissue lacerated.
On exploration communicating with wound
of exit fracture scapula.

10. Five fire arm wound of exit
each size of 1 cm. x 1 cm. on right supra
clavical region and inferior clavical region
in an area of 10 cm. x 6 cm.

Both lungs and heart were
lacerated. 1 /2 litre of blood in chest cavity
was present. Stomach was empty. Faecal
matter was present in intestines.

On
internal
examination,
membranes were found lacerated. The
cause of death was due to shock and
haemorrhage as a result of ante-mortem
injuries noted in the post mortem report."

10. The injuries on Nand Lal (PW1)
found in a medical examination conducted
by
Dr.
G.M.
Mohanti
(PW6)
on
29.05.1983, at 3 p.m., were as under:-

"1. Gun shot like wound of entry
size . 3 cm. x .2 cm. x deep, probing not
done on right scapular region, oval in
shape. Shot is palpable, blackening present
on the wound, tattooing around the wound
present.

2. Gun shot like wound of entry
size .3 cm. x .2 cm. x deep, probing not
done on left side of back about 1 cm. from
420 INDIAN LAW REPORTS ALLAHABAD SERIES
the mid-line. Shot is not palpable. Wound is
oval in shape. There is blackening and
tattooing present.

3. Multiple gun shot like wounds
of entry of size ranging .3 cm. x .2 cm. x
deep. Probing not done to .5 cm. x .3 cm.
x deep, probing not done in an area size
42 cm. x 22 cm. on front and back of left
thigh extending to leg. Two shots are
palpable. Shots oval in shape, blackening
and tattooing is present around the
wound.

4. Multiple gun shot like wounds
of entry in area size 23 cm. x 22 cm. on the
front and outer part of right thigh ranging
in size from .3 cm. x .4 cm. x deep, probing
not done to .5 cm. x .4 cm. x deep probing
not done, shots are not palpable. Wounds
oval in shape, blackening and tattooing
found.

5. Gun shot like wound of entry
size .4 cm. x .3 cm. x deep, probing not
done on the right iliac crest region. Wound
is oval shape. Shot is not palpable,
blackening, tattooing present.

11. X-ray of the injuries of Nand Lal
(PW1) was done but X-ray plates were not
brought on record and secondary evidence
was led in respect of X-ray report (Ex. Ka18), which is as under:

"X-Ray left side Scapula & left
side back of Chest

One
rounded
radio
opaque
foreign body shadows of metallic density
on lower part left side chest near 10th
thoracic vertebrae. No bony lesion seen.
Lungs fields clear.

X- Ray Right Thigh

Multiple rounded radio opaque
foreign body of metallic density on right
thigh. No bony lesion seen.

X- Ray left Thigh

Multiple rounded radio opaque
foreign body sahadows of metallic density
on left thigh & around knee. No bony lesion
seen.

X- Ray Rt Illiac crest.

Three rounded radio opaque
foreign body shadows of metallic density
on right pelvic bone. No bony lesion seen."

12. The testimony of the prosecution
witnesses is being noticed and discussed in
brief as under:-

13. PW-1 Nand Lal in his deposition
on 12.7.1989 stated that Kallu (the
deceased) was his uncle; on the day of the
incident, on their way back from the jungle,
going towards the south, they reached the
Barhepura culvert of the canal, PW-1 was
in the front, his uncle Kallu (the deceased)
was following behind him and trailing
Kallu was Ram Bhajan; that it was around
sun-set; that on both sides of the culvert
there were bushes; that from the north bush
Surajpal Singh carrying a single barrel gun
and Harnam Singh carrying a rifle
emerged, whereas from the southern bushes
Nathu Singh and Babu Singh, carrying
single barrel guns, and Joginder Singh,
carrying a Tamancha, came out and
exhorted each other to take revenge for the
murder of Mula and Puttu Singh and started
firing. (In his testimony, he identified the
accused-appellants present in the Court).
He deposed that his uncle Kallu on being
hit by gun shots immediately fell on the
side and slipped into the canal. Whereas
7 All. Harnam Singh & Ors. Vs. The State of U.P.
421
PW-1 on being hit by gun shot jumped into
the canal to save himself. On the other
hand, Ram Bhajan (PW-2) ran towards the
other side. It was deposed by him that he
waded the canal and taking shelter behind
the trees escaped towards the south and
while he was escaping the accused chased
him and fired at him which hit him but he
entered the sugar-cane fields and hid
himself and stayed there over night. In the
morning, through one Chhadammi, resident
of Urjahar, who had come to water his
fields, a message was sent, consequently,
help arrived and he was taken to the
village. He specifically stated that he was
hit by two shots. One hit him on the front
and other on the back. He deposed that on
account of the murder of Mula @ Rakshpal
Singh and Puttu Singh, there was enmity.
In that murder PW-1 was sentenced for life,
whereas his brother, Ram Bhajan, was
acquitted.

14. In the cross-examination, he stood
by the statement given by him in the
examination-in-chief.
As
regards
the
distance from which shots were fired he
disclosed that as soon as the accused
exhorted each other to take revenge, shots
were fired and at that time the accused
must have been at a distance of 16-17 feet.
He also stated that when he jumped into the
canal no shot was fired at him though
accused also jumped into the canal. He also
stated that when he climbed on to the
eastern patri of the canal no gun shot was
fired. He stated that he received one gun
shot at his back near the mango tree but he
could not say as to from where the gun shot
was fired. He denied the suggestion that the
accused had challenged him from behind
the bushes. He denied the suggestion that at
the time of the incident, it was dark and
that he could not see the assailants and has
named them on ground of enmity.

15. The other eye witness examined
by the prosecution was Ram Bhajan (PW2) who deposed more or less what was
deposed by Nand Lal (PW1) his brother
with regard to past enmity, the place and
time of the occurrence, the assailants and
the weapons they carried. He also identified
the assailant, that is the accused present in
court. He deposed that four shots hit his
uncle Kallu and one hit his brother Nand
Lal, who jumped into the canal and after
wading it came out of the canal on the
eastern side whereas PW-2 ran towards
north side and jumped into the canal. He
further deposed that his brother Nand Lal
suffered one more gun shot injury on his
back near the tree after he had emerged
from the canal. PW2 stated that after
escaping from the spot he reached house of
Nathu Lal Gangwar and requested him to
accompany him for lodging the report, who
refused by saying that it had become dark
and the ''Thakurs' of the village had
surrounded it from all sides and therefore
he would go in the morning. PW2 deposed
that in the morning when Chhadami went
to water his field, his brother Nand Lal
(PW1) was spotted who told him to inform
at his house. Immediately, on receiving the
news, PW2 reached the place and brought
PW1 to the village. There they came to
know that his uncle Kallu's body was lying
tagged to a Khunta in the canal. On
reaching the place, it was found that a lot of
villagers were already there. Whereafter,
the dead body was taken out of the canal
and kept on its western Patri and,
thereafter, the deponent went for lodging
the report. He proved the FIR.

16. In his cross-examination, PW-2
categorically denied the suggestion that at
the time of the incident it was dark. He
stood by his statement that on account of
darkness and fear nobody was ready to
422 INDIAN LAW REPORTS ALLAHABAD SERIES
accompany him for lodging the F.I.R
immediately therefore it was lodged in the
morning. He however admitted that when
he reached the village he did not collect
villagers by informing them about the
incident because he had gone to Nathu Lal.
Though he stated that 10-20 people had
come but nobody could muster courage to
lodge the report. He also stated that at the
time of the firing, the accused were
standing at a distance of 12 to 13 feet. He
also deposed that he had shown the
Investigation Officer the place from where
the brother of PW-2 had come out of the
canal and the place from where the firing
took place.

17. PW-3 Dr. H.K. Agarwal who
had conducted the post-mortem of Kallu
proved the post mortem report and the ante
mortem injuries found on the body of
Kallu. He deposed that death was due to
loss of blood and shock as a result of the
ante mortem firearm injuries. And that the
death could have occurred immediately on
spot on 28.5.1983, on or about sun-set time
though there could be a variance of about
six hours in the estimated time of death.

18. PW-4, S.I. V.P.S. Rawat, who
had conducted the investigation, proved the
various steps, such as the G.D. entry of the
FIR, inquest report, recovery memos, site
plans, charge sheet, etc. He stated that on
account of election of Block Pramukh, he
was busy in maintaining law and order in
the morning thus he could not visit the spot
immediately and sent Sub Inspector (S.I.)
Mathan Singh and fellow constables to do
the needful. He proved the inquest report,
etc by recognising their signatures. He
stated that after discharging election duty,
he reached the spot at around 4.30 pm and
recorded the statement of informant-Ram
Bhajan and inspected the place where the
firing took place and prepared site plans,
which were proved by him. He also proved
the recovery memos of the blood stained
earth as well as the Tiklis (wads) of the
cartridges.
He
also
deposed
about
preparation of site plan from where Kallu's
body was found and the memo with regard
to the recovery of the blood stained earth.
He stated that the injured Nand Lal (PW1)
was sent for medical examination by S.I.
Mathan Singh with constable Kishan Pal.
He stated that S.I. Mathan Singh has retired
from service. He also stated that after
recording of statement of Ram Bhajan, he
enquired about the accused and they were
found absconding. He stated that he
recorded the statement of injured Nand Lal
on 23.06.1983 in the Hospital and on
25.06.1983 the investigation was complete.

19. In the cross-examination, he stood
by his deposition and denied the suggestion
that case diary was filled at one go. He
stated that by the time he had reached the
spot, the body had been removed and sent.
He stated that up to that time investigation
was done by S.I. Mathan Singh. He stated
that in the evening he had recorded the
statement of Mathan Singh. A suggestion
was given that there had been overwriting
in the inquest report to add sections 147/
148 IPC.

20. He denied the suggestion that he
did not meet Nand Lal in the hospital. He
stated that prior to 23.06.1983 he had
knowledge about Nand Lal being admitted
in the hospital but he has no knowledge as
to when he was discharged. He, however,
added that on 06.06.1983 he made an
attempt to record the statement of Nand Lal
but then he came to know that he is in
Pilibhit Hospital. He stated that on
10.06.1983 he tried to record the statement
of Nand Lal in the hospital but came to
7 All. Harnam Singh & Ors. Vs. The State of U.P.
423
know that he had left. He stated that he did
not record the statement of the doctor who
had discharged him.

21. In his cross examination he stated
that there was no mango tree seen from
where
cartridge
wads
(tiklis)
were
recovered. He also stated that sugar cane
field was at some distance. He stated that
he did not visit the spot where the injured
Nand Lal hid himself in the night. He
admitted that in the site plan he disclosed
only that spot where the injured Nand Lal
received the gun shot injury. He also added
that Nand Lal had not informed him that he
had jumped into the canal and that he had
informed Chhadami

22. Lastly, he denied the suggestion
that he did not properly investigate the
matter and filled up the case diary at one
go.

23. PW-5, Constable Rakesh Singh
stated that he was the Constable and had
gone with Sub Inspector Mathan Singh
along with other Constables to the spot for
inquest and sealing of the dead body. He
proved the inquest proceedings and also
deposed about carrying of the body on the
tractor,
keeping
the
same
at
the
Headquarter in a sealed condition and
thereafter taking it for post mortem
examination.

24. PW-6 Dr. G.M. Mohanti
deposed in respect of the injury sustained
by Nand Lal. In his opinion, they were fire
arm injuries caused from a distance of
around 4 to 5 feet and from different
directions i.e. from the front as well as the
back. The shots might be 2 to 3 in number.
He ruled out the possibility of shots being
from a distance of 15 feet or above. He also
stated that on coming in contact with water
there may be less or no blackening around
the wound.

25. The incriminating circumstances
borne out from the prosecution evidence
were put to the accused persons before
recording their statement under section 313
CrPC. Except for admitting the relationship
between the deceased (Kallu) and the
informant (PW2) as well as the injured
(PW1) as also the enmity between the two
sides, that is with regard to the previous
murder of Rakshpal Singh and Puttu Singh,
relatives of the present accused appellants,
in which the victims of the present case
were amongst the persons accused, and that
some of them were convicted, the rest of
the
incriminating
circumstances
were
denied by the persons accused including
the
surviving-appellant.
However,
existence of injuries sustained by the
deceased and Nand Lal (PW1) were not
stated to be false or to have sustained in
some other manner. Although it was stated
by the accused that they have no
knowledge about it.

26. No evidence was led in defence.

27. On the basis of evidence
adduced
by
the
prosecution,
after
discussing the evidence at length, the
court below held the accused guilty under
Sections 302/149 (i.e. for murder of
Kallu); 307/149 (i.e. for attempt on the
life of Nand Lal (PW1) and Ram Bhajan
(PW1); and 148 (for rioting with deadly
weapon) and punished them accordingly
as already noticed above.

28. We have heard Sri Rakesh Pati
Tiwari, learned counsel for the surviving
appellant no.5 (Jogendra Singh); Sri
Deepak Mishra, learned A.G.A. for the
State; and have perused the record.
424 INDIAN LAW REPORTS ALLAHABAD SERIES

29. The learned counsel for the
appellants has assailed the judgement and
order of the court below by claiming that
the prosecution had failed to discharge its
burden to prove the guilt beyond the pale of
doubt. In support of the contention
following points were raised and pressed:

(a) The FIR is highly delayed.
The incident occurred in the darkness of
night. No person could be identified. By
guess work, on the basis of past enmity,
accused were named.

(b)
The
conduct
of
PW2
(informant) not going to find out his
brother (PW1) in the morning, and waiting
till he is found by some other person, who
has not been examined, to lodge the report,
clearly reflects that he was not an eye
witness. The prosecution story is a figment
of his imagination after learning that some
incident had occurred involving his brother
and uncle. Hence, he is a completely
unreliable witness. Moreover, he has not
sustained any injury even though as per
prosecution story the accused, multiple in
number, fully armed, had surrounded the
victims and had fired indiscriminately to
finish them off. Absence of any injury on
his body rules out his presence on the spot.

(c) The investigation could not
collect any evidence to show that PW1 hid
himself in the sugar cane field in the night.
No site plan was prepared to show as to
where the injured (PW1) hid himself in the
night to save himself from the assailants.

(d) The injured witness (PW1) is
not a reliable witness for the following
reasons: (i) his statement under section 161
CrPC was recorded very late, that is after
more than 20 days; (ii) that the story set up
by him that he had jumped into the canal,
after being shot, to save himself and,
thereafter, he was chased by the accused
and shot at from some distance and was hit
near a tree is not substantiated by site plan
as also by medical evidence because there
appears blackening and tattooing around
the wounds which would not be there if
shots were fired from some distance, as is
the case taken in his testimony, and
blackening could not be there if the wounds
were in contact with water; (iii) his
presence with the deceased at the time of
the incident is highly doubtful and is belied
by the fact that the injuries sustained by
him are from a distance of 4-5 feet whereas
those sustained by the deceased were from
a far greater distance as the wounds found
on the body of the deceased had no
blackening or tattooing around them, which
throws possibility of the two injured
persons receiving injuries at different
places and may be in separate incidents.

(e) The prosecution has failed to
examine material witnesses such as Nand
Lal Gangwar, who was requested by the
informant to accompany him to the police
station to lodge the report in the evening/
night of the incident; and Chhadami, who
found PW1 alive and hiding in the fields
next day of the incident in the morning. It
has been urged that by non-examination of
these two witnesses, the delay in lodging
the FIR has not been satisfactorily
explained. Hence, an adverse inference
ought to have been drawn against the
prosecution.

(f) There is no recovery of any of
the weapons of assault.

(g) That the incident allegedly
took place in the jungle near the village,
after sun-set, where there was no source of
light, therefore there was no occasion to
7 All. Harnam Singh & Ors. Vs. The State of U.P.
425
recognise the assailants and even if few of
them could be recognized, possibility of
over implication on account of past enmity
cannot be ruled out.

(h) The two eye witnesses of the
incident are interested witnesses therefore,
in absence of corroboration of their
testimony by an independent witness, no
reliance ought to be placed on their
testimony.

30. Per Contra, the learned A.G.A.
submitted that the motive for the crime was
admittedly there. The delay in the FIR has
been sufficiently explained inasmuch as it
is a case where five persons, armed with
firearms, indiscriminately pumped multiple
shots at the deceased, uncle of the
informant, and informant's brother, in front
of the eye of the informant, and had given a
chase to the escaping victims therefore,
considering that the incident was around
sun set time, followed by darkness, it is
quite natural that the informant, to save his
life, waited till dawn to muster courage to
lodge the FIR. Under the circumstances,
there was no fatal delay in lodging the FIR.

31. The learned AGA contended that
as there is an injured witness to support the
prosecution case, whose injuries have not
been challenged either as being superficial
or self inflicted and there is no suggestion
that he suffered injuries in some other
incident or at some other place, his
testimony alone is sufficient to record
conviction, particularly when nothing has
come out from his cross examination to
cast a doubt on his testimony and his
testimony is duly corroborated by medical
evidence as well as by recovery of blood
stained earth, wads of cartridges etc from
the spot. He further contended that even if
there are lapses in investigation, the oral
testimony of an injured eye witness even
though he might be interested cannot be
discarded. He also contended that the
question of over implication does not arise
as there are sufficient number of injuries
found and were caused from different
directions
suggesting
participation
by
multiple
accused
persons.
He
thus
contended that conviction recorded by trial
court be upheld.

32. We have given thoughtful
consideration to the rival submissions and
have perused the record carefully.

33. The first issue that arises for our
consideration is whether the delay in
lodging the FIR is fatal to the prosecution
case.

34. Ordinarily, the delay in lodging an
FIR by a person who is an eye witness of
the incident throws possibility of him being
not present at the scene of occurrence and
of doing guess work to name those with
whom he has enmity. But there is no hard
and fast rule that in all cases the delay in
lodging the FIR would become fatal and
throw doubt on the prosecution case,
particularly where there is explanation for
the delay. Such explanation at times may
be found embedded in the facts of the case.
In a case of gruesome murder by use of
firearms, with multiple assailants who are
all geared up to finish off the victims, the
survivor of the attack may look towards his
own safety and await safer times to lodge
the report than to immediately rush and
report the incident.

35. In the instant case, the incident
occurred at about sunset. There were five
assailants, armed with firearm. They had
surrounded the deceased, the injured (PW1)
and the informant (PW2) and fired at them
426 INDIAN LAW REPORTS ALLAHABAD SERIES
indiscriminately thereby causing multiple
gun shot injuries to the deceased and gun
shot injuries to PW1 in front of the eyes of
PW2. The assailants also gave chase to the
escaping victims. As a gruesome incident
took place at about sunset time, in the
fading light, with the assailants being on
the look out for the surviving victims, it is
quite natural that the informant (PW2)
would have been terrified and therefore
could not muster courage to report the
incident in the night. In the circumstances,
if PW2 (the informant) waited for the next
day morning to lodge report, the delay
would not be fatal to the case. More so,
because the prosecution case is not just
supported by the informant but also by a
person who is injured in the incident.

36. The issue that now arises for
consideration is whether on ground of
lapses in the investigation, such as: (a)
delay in recording the statement of the
injured; (b) not preparing site plan of the
place where the injured hid himself in the
night following the incident; (c) not
effecting any recovery from the spot from
where the injured hid himself; and (d) not
effecting recovery of the weapons of
assault, the prosecution case has been
rendered unreliable and unworthy of
acceptance. In this regard it be observed
that investigation plays a vital role,
particularly, when the prosecution case is
dependent on circumstantial evidence. In a
case which is based on ocular evidence of
an
injured
witness,
lapses
in
the
investigation
are
not
fatal
to
the
prosecution evidence if the ocular evidence
is cogent and reliable. As, in the instant
case, the prosecution case places reliance
on the ocular evidence and one of the eye
witnesses to the incident is a person
injured, lapses on the part of investigation
in pursuing the investigation diligently, in
our view, would not be fatal to the
prosecution.

37. The next argument made on
behalf of the appellant that by non
examination
of
independent
witness,
namely, Chhadami and Nand Lal Gangwar,
an adverse inference ought to be drawn
against the truthfulness of the prosecution
case is liable to be rejected for the
following reasons. Firstly, it is a case where
prior to the incident in question there
existed strong enmity between the families
of the assailants and the victims on account
of a previous murder in connection with
which the victims of the present case were
prosecuted. In such circumstances, it is
quite possible that independent fellow
villagers may not have that degree of moral
conviction to take sides and appear as
witness for a person who had been
previously a wrongdoer. Secondly, in a
case of gruesome murder, by use of
firearms, ordinarily, a neutral person does
not wish to appear as a witness fearing
wrath of the other side. Thirdly, it is not
obligatory for the prosecution to multiply
its witnesses. Thus, in a case, when the
prosecution has an injured witness to
support its case, it may choose not to
multiply the witnesses.

38. In the case of Hari Obula Reddy
and others v. The State of Andhra
Pradesh : (1981) 3 SCC 675, a threejudges bench of the apex court, in
paragraph 13 of its judgement, as reported,
has held as follows:-

"................ it is well settled that
interested evidence is not necessarily
unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting
or rejecting sworn testimony. Nor can it be
laid down as an invariable rule that
7 All. Harnam Singh & Ors. Vs. The State of U.P.
427
interested evidence can never form the
basis of conviction unless corroborated to
a material extent in material particulars by
independent evidence. All that is necessary
is that the evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution. If on such scrutiny,
the interested testimony is found to be
intrinsically
reliable
or
inherently
probable, it may, by itself, be sufficient, in
the circumstances of the particular case, to
base a conviction thereon. Although in the
matter of appreciation of evidence, no hard
and fast rule can be laid down, yet, in most
cases, in evaluating the evidence of an
interested or even a partisan witness, it is
useful as a first step to focus attention on
the question, whether the presence of the
witness at the scene of the crime at the
material time was probable. If so, whether
the substratum of the story narrated by the
witness, being consistent with the other
evidence on record, the natural course of
human
events,
the
surrounding
circumstances and inherent probabilities of
the case, is such which will carry
conviction with a prudent person. If the
answer to these questions be in the
affirmative, and the evidence of the witness
appears to the court to be almost flawless,
and free from suspicion, it may accept it,
without seeking corroboration from any
other source."

39. Similarly, in Jalpat Rai and
others v. State of Haryana : 2011 (14)
SCC 208, the apex court in paragraph 42 of
its judgement, as reported, had observed as
follows:-

"42. There cannot be a rule of
universal application that if the eye-
witnesses to the incident are interested in
prosecution case and /or are disposed
inimically towards the accused persons,
there should be corroboration to their
evidence. The evidence of eye-witnesses,
irrespective of their interestedness, kinship,
standing or enmity with the accused, if
found credible and of such a caliber as to
be regarded as wholly reliable could
be sufficient and enough to bring home the
guilt of the accused. But it is reality of life,
albeit unfortunate and sad, that human
failing tends to exaggerate, over-implicate
and distort the true version against the
person(s) with whom there is rivalry,
hostility and enmity. Cases are not
unknown where entire family is roped in
due to enmity and simmering feelings
although one or only few members of that
family may be involved in the crime."

40. In Raju alias Balachandran and
Others v. State of Tamil Nadu, (2012) 12
SCC 701, the Apex Court in paragraph 29
has summed up as under:-

"29. The sum and substance is
that the evidence of a related or interested
witness
should
be
meticulously
and
carefully examined. In a case where the
related and interested witness may have
some enmity with the assailant, the bar
would need to be raised and the evidence of
the witness would have to be examined by
applying a standard of discerning scrutiny.
However, this is only a rule of prudence
and not one of law, as held in Dalip Singh
[AIR 1953 SC 364 : 1953 Cri LJ 1465 :
1954 SCR 145] and pithily reiterated in
Sarwan Singh [(1976) 4 SCC 369 : 1976
SCC (Cri) 646] in the following words:
(Sarwan Singh case [(1976) 4 SCC 369 :
1976 SCC (Cri) 646] , SCC p. 376, para
10)

"10. ... The evidence of an
interested witness does not suffer from any
infirmity as such, but the courts require as
428 INDIAN LAW REPORTS ALLAHABAD SERIES
a rule of prudence, not as a rule of law,
that the evidence of such witnesses should
be scrutinised with a little care.