# Kailash v. State of U.P

- **Citation:** (2023) 10 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-22
- **Case number:** J. Criminal Appeal No. 91 of 2001
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-v-state-of-u-p-49482
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 307 & 324 - Criminal Procedure
Code, 1973 - Section 374(2) - Evidence
Act, 1872 - Section 134 - Attempt to
Murder - Firearm Injury - Delay in FIR -
Motive and Mens Rea - Testimony of
Related
Witnesses
-
Independent
Witnesses - Credibility of Evidence - The
appellant, Kailash, challenged the conviction and
seven-year rigorous imprisonment sentence
under Section 307 IPC (attempt to murder)
passed by the Additional Sessions Judge,
Unnao, on 27.01.2001, for shooting the
victim, Sushil Kumar, in the face on
08.09.1994.

Held: (1) The appeal was dismissed, and
the conviction and sentence under Section
307 IPC were affirmed. (2) The prosecution
proved the case beyond reasonable doubt
through consistent testimonies of PW-1
(informant, father of the victim), PW-2
(Ramesh Kumar, uncle), and PW-3 (Sushil
Kumar, injured), supported by medical
evidence from PW-4 (Dr. Rajeev Khare)
confirming a firearm injury on the victim's
right cheek with blackening and scorching,
indicating
close-range
firing.
(3)
The
alleged delay in lodging the FIR (filed on
09.09.1994 at 5:30 p.m. for an incident at
11:30 p.m. on 08.09.1994) was justified, as
the informant prioritized hospitalizing the
injured victim, who was examined at 1:55
a.m., negating claims of undue delay. (4)
The absence of independent witnesses was
not fatal, as the testimonies of related
witnesses
(PW-1,
PW-2,
PW-3)
were
credible and natural, given the incident's
occurrence near their residence during a
temple worship event, and public reluctance
to testify in criminal cases was noted, as
per Bhagwan Jagannath Markad Vs St. of
Mah. and Mukesh Vs St. (NCT of Delhi). (5)
The
motive
was
established
through
evidence of prior enmity over a land dispute
and the appellant's demand for money,
supported by the appellant's admission
under Section 313 Cr.P.C. of a dispute
regarding a door opening toward the
informant's
brother's
garden.
(6)
The
argument that the injury was simple and
warranted conviction under Section 324 IPC
(voluntarily causing hurt by dangerous
weapon) instead of Section 307 IPC was
rejected, as the firearm injury on a vital
part (face) with blackening, tattooing, and
scorching indicated intent to kill, satisfying
Section 307 IPC requirements, as per Bipin
Bihari Vs St. of M.P. and Jage Ram Vs St. of
Har.. (7) Discrepancies regarding the firing
distance (5-6 steps per PW-1 and PW-2 vs.
8 steps per site plan) were reconciled, as
the medical evidence confirmed close-range
firing (within 6 feet), and the use of a
country-made pistol reduced the effective
distance, aligning with Mohd. Mian Vs St. of
U.P.. (8) The appellant's claim of false
implication due to the victim's criminal
history was dismissed, as no evidence
supported
the
involvement
of
other
assailants, and the victim's past did not
justify the attack. (9) The testimony of the
injured witness (PW-3) was reliable, and
conviction could be based on a single credible
witness under Section 134 of the Evidence Act,
as per Sudip Kr. Sen Vs St. of W.B.. (10) The
trial court's sentence of seven years without a
fine was deemed appropriate, requiring no
interference.
10 All. Kailash Vs. State of U.P.
59
Case Law Cited:

## Text

_Characters 0–39,933 of 50,998. This is a partial read: ask again with offset=39933 for what follows._

58 INDIAN LAW REPORTS ALLAHABAD SERIES
copy
of
judgment
and
order
for
information.
----------
(2023) 10 ILRA 58
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Appeal No. 91 of 2001

Kailash . ..Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
J.P. Yadav, Arvind Kumar Shukla, Atul
Verma, R.L. Yadav

Counsel for the Respondent:
Govt. Advocate
Criminal Law - Indian Penal Code, 1860 -
Sections 307 & 324 - Criminal Procedure
Code, 1973 - Section 374(2) - Evidence
Act, 1872 - Section 134 - Attempt to
Murder - Firearm Injury - Delay in FIR -
Motive and Mens Rea - Testimony of
Related
Witnesses
-
Independent
Witnesses - Credibility of Evidence - The
appellant, Kailash, challenged the conviction and
seven-year rigorous imprisonment sentence
under Section 307 IPC (attempt to murder)
passed by the Additional Sessions Judge,
Unnao, on 27.01.2001, for shooting the
victim, Sushil Kumar, in the face on
08.09.1994.

Held: (1) The appeal was dismissed, and
the conviction and sentence under Section
307 IPC were affirmed. (2) The prosecution
proved the case beyond reasonable doubt
through consistent testimonies of PW-1
(informant, father of the victim), PW-2
(Ramesh Kumar, uncle), and PW-3 (Sushil
Kumar, injured), supported by medical
evidence from PW-4 (Dr. Rajeev Khare)
confirming a firearm injury on the victim's
right cheek with blackening and scorching,
indicating
close-range
firing.
(3)
The
alleged delay in lodging the FIR (filed on
09.09.1994 at 5:30 p.m. for an incident at
11:30 p.m. on 08.09.1994) was justified, as
the informant prioritized hospitalizing the
injured victim, who was examined at 1:55
a.m., negating claims of undue delay. (4)
The absence of independent witnesses was
not fatal, as the testimonies of related
witnesses
(PW-1,
PW-2,
PW-3)
were
credible and natural, given the incident's
occurrence near their residence during a
temple worship event, and public reluctance
to testify in criminal cases was noted, as
per Bhagwan Jagannath Markad Vs St. of
Mah. and Mukesh Vs St. (NCT of Delhi). (5)
The
motive
was
established
through
evidence of prior enmity over a land dispute
and the appellant's demand for money,
supported by the appellant's admission
under Section 313 Cr.P.C. of a dispute
regarding a door opening toward the
informant's
brother's
garden.
(6)
The
argument that the injury was simple and
warranted conviction under Section 324 IPC
(voluntarily causing hurt by dangerous
weapon) instead of Section 307 IPC was
rejected, as the firearm injury on a vital
part (face) with blackening, tattooing, and
scorching indicated intent to kill, satisfying
Section 307 IPC requirements, as per Bipin
Bihari Vs St. of M.P. and Jage Ram Vs St. of
Har.. (7) Discrepancies regarding the firing
distance (5-6 steps per PW-1 and PW-2 vs.
8 steps per site plan) were reconciled, as
the medical evidence confirmed close-range
firing (within 6 feet), and the use of a
country-made pistol reduced the effective
distance, aligning with Mohd. Mian Vs St. of
U.P.. (8) The appellant's claim of false
implication due to the victim's criminal
history was dismissed, as no evidence
supported
the
involvement
of
other
assailants, and the victim's past did not
justify the attack. (9) The testimony of the
injured witness (PW-3) was reliable, and
conviction could be based on a single credible
witness under Section 134 of the Evidence Act,
as per Sudip Kr. Sen Vs St. of W.B.. (10) The
trial court's sentence of seven years without a
fine was deemed appropriate, requiring no
interference.
10 All. Kailash Vs. State of U.P.
59
Case Law Cited:

1. Bipin Bihari Vs St. of M.P., (2006) 8 SCC 798;

2. Liyakat Mian Vs St. of Bihar, AIR 1973 SC
807;

3. R. Prakash Vs St. of Karn., 2004 CrLJ 1391
(SC);

4. Jage Ram Vs St. of Har., (2015) 11 SCC 366;

5. Mohd. Mian Vs St. of U.P., (2011) 2 SCC (Cri)
694;

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Atul Verma, learned
counsel for the appellant and Sri Rajesh
Kumar and Sri Devansh Pratap Singh, Brief
Holder for the State and perused the record.

2. This criminal appeal has been
preferred against the order of conviction
and sentencing passed by Additional
Sessions Judge, Court No. 6, Unnao on
27.01.2001 in S.T. No. 8779 of 1995, under
Section 307 I.P.C, Police Station Aasiwan,
District Unnao, by which the accusedappellant was convicted and sentenced for
seven years rigorous imprisonment.

3. The accused-appellant has taken
ground that the prosecution has been
completely
failed
in
proving
the
prosecution case against the accusedappellant beyond reasonable doubt and has
also erred by not giving benefit of doubt to
the appellant. The Additional Sessions
Judge has committed substantial illegality
and mistake in passing the impugned
judgment.

5. The learned trial court has
sentenced the appellant without perusing
the evidence of the prosecution, which is
unfair, and illegal, from the fundamental
and legal point of view. The above alleged
incident was shown at 11:30 p.m. on
08.09.1994, while the F.I.R of the alleged
incident was lodged on 09.09.1994 at 5:30
p.m. despite the informant having sufficient
time. It is also unfair and unjust from the
judicial point of view that the above
incident happened in the densely populated
area, but none of the neighbour around the
incident was the eye witness of the alleged
incident. Even then the trial court punished
the appellant relying on the statements of
the informant and the alleged eye witnesses
of his family.

6. Except the informant (the eye
witnesses) P.W. 1 Ram Jeewan, and his
nephew Ramesh (PW-2) and Mazroob
Sushil Kumar (PW-3) injured, there are no
other independent witness of the general
public in support of the prosecution
version.

7. According to the cross examination
of P.W 1 and P.W 2, the accused-appellant
had fired shot from a distance of 5 - 6
steps, while P.W. 4 Dr. Rajeev Khare, has
deposed that the said injury was possible
only if the injurd was shot from within 6
feet. As per site plan, the appellant fired at
the injured from place 'C', which is eight
steps away from where it is not possible to
cause the alleged injury to the victim by
fire.

8. The presence of the informant and
the eye witnesses of the scene of the
alleged incident is doubtful. In this regard
the trial court has committed an error by
not giving the benefit of doubt to the
appellant. There is no reference of existing
enmity between the injured and the
appellant. It is not said that the appellant
had made second fire. Therefore, there was
60 INDIAN LAW REPORTS ALLAHABAD SERIES
no justification for implication of the
appellant for an offence to commit murder
of the injured. When the injured was
medically examined at about 1:45 p.m. in
the emergency room by the emergency
medical doctor, Unnao. On 09.09.1994, the
medical officer had not described the nature
of the injuries. The injuries were simple in
nature, therefore prima-facie, it was a case
of Section 324 I.P.C, but by converting the
offence under Section 307 I.P.C, the
learned trial court has committed error. The
injured Sushil Kumar is a criminal, against
whom cases regarding maar-peet and rape
had been lodged, due to which some
unknown persons had fired upon him.
Since the assailants were not recognized,
hence the appellant has been falsely
implicated in the present case. Hence the
appeal be allowed and the impugned order
of conviction and sentencing be set aside.

9. In brief, facts of the case are that
the informant P.W-1 (father of the injured),
Ram Jeewan lodged an F.I.R on 09.09.1994
at 5:30 o'clock stating that on 08.09.1994
at about 11:30 p.m, when a worship was
going on at Shiv Temple and his son Sushil
Kumar injured (P.W-3) was also present
there, Kailash S/o Ram Ashrey of his
village demanded money from his son. His
son refused to give the same and due to a
heated argument, Kailash with an intention
to kill his son Sushil Kumar, fired upon
him, which hit on the upper part of his right
chick. Ramesh, Raj Kishore and other covillagers ran towards the place of
occurrence and the injured was saved by
them. The injured was admitted in the
hospital, he has come from Hospital,
hence the F.I.R be lodged and necessary
action be taken.

10.

On
the
basis
of
above
information
an
F.I.R
was
lodged,
investigation was initiated and after
conclusion, a charge-sheet was submitted
under Section 307 I.P.C. After hearing the
accused a charge under Section 307 I.P.C
was framed against the accused. The
accused denied the charge and sought
trial.

11. The following witnesses were
examined by the prosecution case.

a) P.W 1. - Ram Jeewan
informant

b) P.W 2. - Ramesh Kumar

c) P.W 3. - Sushil Kumar
(injured)

d) P.W 4. - Dr. Rajeev Khare

e) P.W 5. - Sipoy/constable
Naimish Kumar Singh

f) P.W 6. - Rajendra Prasad
Awasthi.

12.

Following
documentary
evidences
were
produced
by
the
prosecution.

a) Ex. K-1. Written complaint.

b) Ex. K-2. Injury report.

c) Ex. K-3. Chik F.I.R.

d) Ex. K-4. Carbon copy Kaimi
Case G.D.

e) Ex. K-5. Map / Site Plan.

f) Ex. K-6. Blood Stained and
plain soil - Memo

g) Ex. K-7. Charge-sheet.

13. For the purposes of this appeal
in brief oral evidences of the witnesses
are reproduced here-in-below :-

1. P.W. 1 Ram Jeewan, the first
informant has deposed that Sushil Kumar,
injured is his son. Accused Kailash fired on
the injured which hit his right chick.
Accused Kailash is the resident of his
village. Prior to this case, accused Kailash
10 All. Kailash Vs. State of U.P.
61
had also been convicted for the offence
under Section 307 I.P.C for an offence
committed by him in village Bhakahan
Sarai, P.S. Safipur, District Unnao. He is a
quarrelsome person and used to recover
money forcefully from the people. He had
reached at the temple at 11:00 p.m. At that
time altercation was going on between
Sushil and Kailash. After 10 - 15 minutes,
Kailash fired upon Sushil, who fell on the
ground. He had given statement to the I.O.

Kailash had fired at a distance of
5 - 6 steps, which hit Sushil, he fell down
and became unconscious. Shrawan Kumar
Gupta had written the complaint on his
dictation. The witness denied that on
account of enmity of opening the door by
the accused in the garden of his brother
Ayoddhya Prasad, this false case had been
lodged.

2. P.W. 2 - Ramesh Kumar, an
independent witness has deposed that on
the date of
 occurrence at about 11:30 p.m. at the Shiv
Ji Temple, Kajri Teej worship was going
on. There was electric light and there was
sufficient light in and around the temple,
bulb of the houses were also on. Hearing
the hue and cry of Sushil Kumar and others
on the spot, Ram Kishore, Ram Jeewan and
other persons had also reached there. He
saw that accused Kailash with an intention
to kill Sushil, fired upon him from his
country made pistol, which hit the right
chick of Sushil, thereafter accused Kailash
ran away. Sushil was brought to Hospital at
Unnao
for
his
treatment.
In
crossexamination, this witness has deposed that
hearing the hue and cry and abusing, he
again went to the temple where altercation
was going on. His house was 2 - 3 houses
away from the temple. When he reached,
Ram Jeewan, Raj Kishore were also there
and they were intervening. Kailash had
fired underneath of porch (Chabutra) from
the distance of 5 - 6 steps. He was standing
6 - 7 steps away from Sushil. None had
tried to catch the accused. At that time
Sushil was conscious and he had informed
to him that Kailash had shot at him. The
I.O. had recorded his statement.

P.W.
3
-
Sushil
Kumar
(Injured), has deposed that on 08.09.1994
at about 11:30 p.m. Kajree, Teej and Pujan
was going on at the Shiv Ji temple. His
house is to the north of the temple, he went
to the south side of the temple for urination.
Kailash met to him on the road in front of
the house of Suresh and asked about the
money. Prior to that also he had demanded
money. When he refused, an altercation
started with the accused. Hearing the
altercation
and
scuffle
Ramesh,
Raj
Kishore, his father and several other
persons reached there. There was sufficient
light and in the mean time with an intention
to kill him, Kailash fired upon him which
hit his right chick. The accused was asking
money forcefully. He was taken to Unnao
for his treatment by his father. Kailash ran
away to his house.

15. During the course of examination,
this witness accepted that a case regarding
maar-peet etc. and rape had been lodged
against him, but the rape case was false. At
the time of this incident only ladies were
there, there were no gents. He does not
know from which bore it was fired.

16. The accused had come there from
his house. He had fired from his right side.
This witness denied that he had received
injures on the door of the house of Suresh.
He denied that after being hit he had fallen
down and had become unconscious there.
He further deposed that before receiving
the injuries, his brother and father had
reached on the spot. After admitting him in
hospital, his father had gone to lodge the
62 INDIAN LAW REPORTS ALLAHABAD SERIES
F.I.R. The witness denied that accused
Kailash had met to him at his door and
started demanding money.

P.W - 4 Dr. Rajeev Khare has
examined, the injured P.W 3 Sushil Kumar.
He found following injuries on the person
of the injured:-

1. Firearm entry wound 8 c.m x 7
c.m. on the right face with blackening in
the area of 18 c.m x 17 c.m, there was
scorching on and above the injuries. It was
kept in observation and was referred for xray. The injury was fresh and was caused
by firearm at about 11:30 P.M on
08.09.1994.

17. In cross examination, this witness
deposed that such injuries may occur from
firing within six feet. Such injury would
not occur from a very close rang shot.

P.W 5 - Naimish Kumar Singh,
Head Constable/Court Muharrir has
deposed that on 09.09.1994, he was posted
in P.S. Asiwan, District Unnao as Constable
/ Muharrir. On that day at about 5:30
o'clock, a written complaint (Ex.Ka-1) was
produced before him, on which basis he
had prepared chik F.I.R (Ex.Ka-3) and it
was endorsed in G.D. by H.M. Raj Pal
Singh, he been posted with him and he is
well acquainted with his hand writing and
signature. This witness has proved Kaimi
case G.D (Ex.Ka-4) as secondary evidence.

In the cross examination this
witness admitted that no date has been
mentioned below the signature of the C.O
Police, he had not prepared any injury
letter
as
the
injured
was
already
hospitalized. This witness denied that he
had lodged an anti timed F.I.R.

6. P.W - 6 - Rajendra Prasad
Awasthi, S.O. has deposed that after
lodging the F.I.R on 09.09.1994, he
started investigation, copied chik F.I.R,
Doctors' report, inspected the place of
occurrence and prepared site plan (Ex.Ka5). He had taken the Blood Stained and
plain soil before the witnesses and a
recovery memo (Ex. Ka-6) had been
prepared by him, he recorded the
statements of the witnesses and also
statements of Ramesh Kumar and Raj
Kishore. On 10.09.1994 at about 4:30
a.m. he arrested accused - Kailash with a
country made pistol of 12 bore alongwith
two live cartridges of the same bore. The
accused had confessed the commission of
crime before him. After finding sufficient
evidence he had submitted charge-sheet
(Ex.Ka-7).

18. During the course of crossexamination this witness has deposed that
on the day of occurrence he had not met
to Sushil. On the pointing of informant,
he had prepared the site plan. He could
not remember about the presence of
electric pole there and the same has not
been shown in the site plan. This witness
did not find empty cartridge on the spot.
He further deposed that on the basis of
recovery of an illegal firearm, a case
under Section 25 of the Arms Act was
lodged by him against the accused. This
witness deposed that witnesses Ramesh
and Ram Jeewan had not stated to him
that Kailash had fired upon Sushil before
them on the temple.

19. After closure of the statement of
the evidence, statement of the accused
was recorded under Section 313 Cr.P.C,
in which he denied the allegations, charge
and evidences and has said that since he
had not closed the door of his house
which is opened towards the garden of
10 All. Kailash Vs. State of U.P.
63
the informant's brother, therefore he has
been falsely implicated in this false case.

Heard and perused the record.

20. This appeal has been decided as
under:

a). Learned counsel for the appellant
argued that there is undue delay in lodging
the F.I.R. According to the first informant the
occurrence had occurred at 11:30 p.m. on
08.09.1994 and the F.I.R has been lodged at
5:30 on 09.09.1994. The distance between the
place of occurrence and the police station is
12 k.m. First of all, the informant, father of
the injured admitted the injured son in
District Hospital, Unnao and thereafter he
went to Police Station to lodge the F.I.R. The
injured Sushil Kumar had been examined by
the emergency Medical Officer in the night at
1:55 a.m. on 09.09.1994, thus, it cannot be
said that there is any delay in lodging the
F.I.R. In case of emergency when there is
danger to the life generally a prudent person
would go to the hospital first and thereafter
shall lodge the F.I.R, thus, the argument that
there is undue delay in lodging the F.I.R. is,
accordingly, rejected.

b). Motive, enmity and mens rea.

21. It has been argued by learned
counsel for the appellant that in this case no
motive or enmity between the accused and
the injured has been proved and in absence of
any proof of motive or enmity, the accusedappellant cannot be convicted:

There are following elements of crime:

(i) there should be an overt act
(actus) or omission;

(ii) it should have been done with
criminal intent (mens rea);

(iii) the act or omission, as the case
may be, should be a prohibited conduct under
the existing law of crimes; and

(iv) it should carry some kind of
sanction by way of punishment.

So far the overt act or omission is
concerned, mere intention or mens rea shall
not by itself constitute a crime unless it is
accompanied by external overt act. The
criminal law not only holds the person who
has committed a crime liable to be
punished, an attempt to commit a crime is
also an offence punishable under Sections
511 and 307 IPC.

So far the second ingredients is
concerned, mens rea or guilty mind is an
essential ingredient of a crime which may
be direct, indirect or implied. The implied
mens rea is also turned as constructive
mens rea which imposes absolute liability
on the offender. Irrespective of the fact
whether he knew that what was doing was
a crime or not. For instance, a person
selling adulterated food or edible item shall
be held guilty and cannot be escaped saying
that the actual adulterator was his master.

In the context of mens rea, a
distinction has to be drawn between
intention and motive. Mens rea means
guilty mind. What is relevant in deciding
the guilt of the offender is intention of
doing with particular act i.e. crime and not
the motive behind doing that act. An act to
be treated as crime, should be prohibited or
forbidden under the existing penal law.

As a general rule, the burden of
proof in a criminal case lies on the
prosecution because of the principle that an
accused is presumed to be innocent until he
is proved guilty. In case of any doubt
regarding participation or involvement of
the accused in the crime, he is entitled to
the benefit of doubt and may be discharged
or acquitted. Where two similar possibility
64 INDIAN LAW REPORTS ALLAHABAD SERIES
of guilty of offence do not arise, the benefit
shall go to the accused and he shall be
 acquitted.

The normal rule is that a person
should be held liable for an act and no one
can be penalized for the act of the other but
there are exceptions that on the basis of
collective responsibility another person
participating slightly in the offence may be
punished.

It is a case of direct evidence, in
which there is no need to prove the motive
or previous enmity existing between the
parties. However, all the eye-witnesses of
fact i.e. P.W 1, P.W 2 & P.W 3 have proved
the motive behind the offence that the
accused is so big scoundrel that he used to
demand the money forcefully from the
other persons at gun point.

P.W - 3. Sushil Kumar (injured)
has proved that prior to this incident also
the accused had demanded money from
him. Even in the statement recorded under
Section 313 Cr.P.C, the accused himself has
admitted that there was dispute between
both the parties regarding opening of door
of the house of the accused towards the
garden of injured's uncle P.W - 2 Ramesh
Kumar. Thus the appellant is not in a
position to argue that there was no
intention, motive or enmity prior to the
commission of the alleged crime/offence
and also that accused had no mens rea to
commit the alleged offence.

22.

Third
point
that
no
independent
witness
has
been
examined by the prosecution to prove
the prosecution case.

It has been argued by the
learned counsel for the appellant that no
witness of vicinity or any independent
witness has been examined by the
prosecution. Certainly, P.W. 1- first
informant Ram Jeewan is the father of the
injured
Sushil
Kumar
and
as
per
suggestions given by the accused side
P.W. 2 - Ramesh Kumar is the uncle of
the injured and P.W. 3 is the injured
himself. As per the prosecution version
the incident was also witnessed by
Ramesh Kumar, Kishore and other covillagers and none of them have been
examined. According to this Court, nowa-days, the people avoid to be witness
particularly in criminal cases and also in
civil cases as it is taken adversely and an
enmity arises on account of being witness
in a case and sometimes it takes a danger
turn. In this context following judicial
precedents are cited, in which the Apex
Court has held that even the evidence of
relatives or family members of the victim
of the offence cannot be discarded, if it is
credible and the witnesses pass the test to
be
'sterling
witness'.
Similarly, only on account of enmity, the
evidence of an inimical witness cannot be
discarded. Sometimes, the independent
witnesses are won over and they are
terrorized by the accused, therefore, they
do not come forward to testify themselves
in favour of the prosecution. The relevant
judicial precedents alongwith summery is
given herein below:-

(V) Witnesses.

Relation
witnesses
&
interested witnesses: The testimony of a
witness in a criminal trial cannot be
discarded merely because the witness is a
relative or family member of the victim
of the offence. In such a case, court has to
adopt a careful approach in analysing the
evidence of such witness and if the
testimony of the related witness is
otherwise found credible, accused can be
convicted on the basis of testimony of such
related witness. (see Bhagwan Jagannath
Markad Vs. State of Maharashtra,
10 All. Kailash Vs. State of U.P.
65
(2016) 10 SCC 537; Dhari and others Vs.
State of UP, AIR 2013 SC 308).

Inimical witnesses: Enmity of
the witnesses with the accused is not a
ground to reject their testimony and if on
proper scrutiny, the testimony of such
witnesses is found reliable, the accused can
be convicted. However, the possibility of
falsely involving some persons in the crime
or exaggerating the role of some of the
accused by such witnesses should be kept
in mind and ascertained on the facts of each
case. (see Dilawar Singh Vs. State of
Haryana, (2015) 1 SCC 737; Ramesh
Harijan Vs. State of UP, (2012) 5 SCC
777).

Independent witnesses & effect
of their non-examination: If a witness
examined in the court is otherwise found
reliable and trustworthy, the fact sought to
be proved by that witness need not be
further proved though there may be other
witnesses available who could have been
examined but were not examined. Nonexamination of material witness is not a
mathematical formula for discarding the
weight of the testimony available on record
however
natural,
trustworthy
and
convincing it may be. It is settled law that
non-examination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution case
with a stroke of pen. Court can convict an
accused on statement of a sole witness even
if he is relative of the deceased and nonexamination of independent witness would
not be fatal to the case of prosecution. (see:
Mukesh and another Vs. State (NCT of
Delhi) and others, AIR 2017 SC 2161
(Three-Judge Bench); Sadhu Saran Singh
Vs. State of UP and others, (2016) 4 SCC
357 and Avtar Singh Vs. State of Haryana,
(2012) 9 SCC 432.

When independent witness won
over by the accused: Non- examination of
independent
eye
witnesses
is
inconsequential if the witness was won
over or terrorised by the accused. (see
Dharnidhar Vs. State of UP and others,
(2010) 7 SCC 759; Dalbir Kaur and others
Vs. State of Punjab, (1976) 4 SCC 158).

Public prosecutor not bound to
examine all witnesses: Explaining the
provisions of Sections 231, 311 CrPC and
Sections 114, 134 of the Evidence Act, the
Supreme Court had ruled that prosecution
need not examine its all witnesses.
Discretion
lies
with
the
prosecution
whether to tender or not witness to prove
its
case.
Adverse
inference
against
prosecution
can
be
drawn
only
if
withholding of witness was with oblique
motive. (see Bhagwan Jagannath Markad
(supra); Nand Kumar Vs. State of
Chhatisgarh, (2015) 1 SCC 776; Rohtas
Kumar Vs. State of Haryana, 2013 CrLJ
3183 SC). Thus, non-examination of other
witnesses is not fatal for the prosecution.

Witnesses when partly reliable
& partly unreliable: Maxim "falsus in
uno, falsus in omnibus" is not applicable in
India. Principle of "false in one, false in all"
cannot be applied in relation to the
depositions of a witness who has been
found lying on a particular fact and whose
remaining part of testimony is otherwise
truthful. Even if major portion of evidence
of a witness is found deficient but residue
is sufficient to prove the guilt of the
accused, notwithstanding the acquittal of
number of co-accused-conviction can be
recorded. (see Mani Vs. State, 2009 (67)
ACC 526 (SC); Kalegura Padma Rao and
another Vs. State of AP, AIR 2007 SC
1299; Kulvinder Singh Vs. State of
Punjab, AIR 2007 SC 2868).

Mode of Assessing reliability of a
witness: In Lallu Manjhi and another Vs.
State of Jharkhand, AIR 2003 SC 854, the
Supreme Court has laid down certain
66 INDIAN LAW REPORTS ALLAHABAD SERIES
factors to be kept in mind while assessing
the testimony of a witness: "The Law of
Evidence does not require any particular
number of witnesses to be examined in
proof of a given fact. However, faced with
the testimony of a single witness, the Court
may classify the oral testimony into three
categories, namely (i) wholly reliable, (ii)
wholly unreliable and (iii) neither wholly
reliable, nor wholly unreliable. In the first
two categories there may be no difficulty in
accepting or discarding the testimony of the
single witness. The difficulty arises in the
third category of cases. The Court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial,
before acting upon testimony of a single
witness".

Eye witnesses and how to judge
their credibility: If the testimony of an eye
witness is otherwise found trustworthy and
reliable, the same cannot be disbelieved
and
rejected
merely
because
certain
insignificant,
normal
or
natural
co(Supra)(supra)(Supra)(supra)ntradiction
s have appeared into his testimony. If the
inconsistencies,
contradictions,
exaggerations,
embellishments
and
discrepancies in the testimony are only
normal and not material in nature, then the
testimony of an eye-witness has to be
accepted and acted upon. Distinctions
between normal discrepancies and material
discrepancies
are
that
while
normal
discrepancies do not corrode the credibility
of a party's case, material discrepancies do
so. (see Ashok Kumar Chaudhary Vs.
State of Bihar, 2008 (61) ACC 972 (SC);
Dimple Gupta (minor) Vs. Rajiv Gupta,
AIR 2008 SC 239).

It is a night occurrence which had
been occurred near the house of the
informant, therefore, PWs-1, 2 and 3 are
the real, truthful and natural witnesses and
their testimony cannot be discarded.

23. Identification of accused by
witnesses in poor light, no light or
darkness: In criminal trials, argument by
defence is often advanced that because of
poor light, no light or darkness or night, the
PWs could not have identified the accused.
But in the cases noted below, the Supreme
Court has clarified that a witness, who is
accustomed to live in darkness, poor light
or no light, can identify the accused even in
such conditions.

24. It has been argued by the learned
counsel for the appellant that there was no
light on the spot, therefore, there was no
occasion to recognise the accused. From
the evidence of P.W 1, P.W 2 and P.W 3, it
has been proved that at the time of incident,
Kazri, Teej and worship was going on at the
Shiv Jee Temple and for this proper
arrangement of light has been made.
Though the I.O. has not shown the electric
pole in the site plan, but it is not denied that
there was no electricity in the village and
on the Shiv Jee Temple. No plea has been
taken that the concerned feeder was not
supplying the electric to the concerned
village. Therefore, according to this Court,
this argument is not tenable and is rejected.
However, in several cases the Apex Court
has observed that a villager can identify a
person even in a poor light and also in
darkness and where no electric light is
available, because they are accustomed to
live in poor light or in country made lamp
light.

In Shivraj Bapuray Jadhav and
others Vs. State of Karnataka, 2003 6
S.C.C 392); Ram Gulam Chowdhary Vs.
State of Bihar, 2001 (2) J.I.C. 986, (SC);
B. Subba Rao Vs. Public Prosecutor, High
10 All. Kailash Vs. State of U.P.
67
Court of Andhra Pradesh 1998 (1) J.I.C
63 SC); Kalika Tewari Vs. State of Bihar
J.T. 1997 (4), Supreme Court 405); State
of U.P. Vs. Sheo Lal, A.I.R 2009 SC
1912): S. Sudershan Reddy Vs. State of
Andhra Pradesh, A.I.R 2006, SC) 2716
and in Durbal Vs. State of U.P. 2011
Cr.L.J 1106 S.C), it has been held by the
Apex Court that a villager, who used to live
in the midst of nature and accustomed to
live without light and who lives in poor
light and used to work in lanterns is
capable to recognise an accused, if he
belongs to his village. In Durbal (Supra),
the Apex Court has held that a villager is
capable to recognise the accused even in
moonless light.

25. It has been argued by the learned
counsel for the appellant that the presence
of the informant P.W-1 and the eye-witness
P.W-2 and the injured witness P.W-3 is
doubtful. In this regard, it is noteworthy
that though this ground has been taken by
the appellant, but no iota, basis or evidence
has been produced in this regard.

P.W. 1, P.W 2 and P.W 3 have not
been examined on this point and they have
not made any unwarranted admission in
favour of the accused that they were not
present on the spot at the time of
occurrence.

P.W. 1 - First Informant has
proved that he reached at the Temple of
Shiv Jee at about 11:00 p.m. and at that
time altercation was going on between
Sushil and Kailash and after 10 - 15
minutes of the altercation, Kailash fired
upon Sushil, Kumar, who fell down.

P.W. 2 - Ramesh Kumar has also
deposed that the occurrence has taken place
at about 11:30 p.m. at the Shiv Jee Temple
when the Teej Kajri worship was going on
and there was sufficient electric light and
bulbs of the houses were lighted there. This
witness has also deposed that hearing the
hue and cry of Sushil Kumar and others,
he, Ram Kishore, Ram Jeewan and other
persons had also reached there and he had
seen the accused - Kailash, shooting the
injured.

P.W. 3 - is an injured witness, the
evidence of an injured witness is generally
relied upon unless there are strong ground
for rejection. Generally the presence of
injured witnesses at the time and place of
occurrence are not denied and admitted as
he had received injuries during the course
of incident. Even a conviction can be based
on the testimony of a sole witness.

26. In Sudip Kr. Sen Vs. State Of
W.B. & (2016) 3 S.C.C 26, State of U.P.
Vs. Satveer, (2015) 9 SCC 44 in Prithipal
Singh Vs. State Of Punjab 2012 (76)
S.C.C 680 S.C, Jarnail Singh Vs. State Of
Punjab, 2009 (1) Supreme 224, it has been
held that in a criminal trial quality of
evidence matters and not the quantity
matters. As per Section 134 of the Indian
Evidence Act, no particular number of
witnesses is required to prove any fact.
Plurality of witness in a criminal trial is not
the legislative intent. If the testimony of
sole witness is found reliable on the
touchstone of credibility, the accused can
be convicted on the basis of such sole
testimony.

According to this Court even if
for the sake of argument, evidence of P.W 1
and P.W. 2 are reduced even then the sole
testimony of the injured P.W. 3 Sushil
Kumar is sufficient to prove the guilt of the
accused.

Both the injured are the residents
of same village and are neighbours. It has
been proved that there was also light at the
time of commission of crime and the
68 INDIAN LAW REPORTS ALLAHABAD SERIES
accused was correctly recognized by the
injured and the other witnesses. From the
evidence of all the witnesses it has been
proved that the incident had occurred after
a hot talk and scuffle of about 10 - 15
minutes. It has not been proved that P.W. 1
and P.W 2 were in service or in business
and were living somewhere else on the date
and time of occurrence, hence their
presence on the spot has been proved
undoubtedly.

27. It has been argued by learned
counsel for the appellant that since no
second fire had been made on the injured
and no supplementary medical report has
been prepared and the same has not been
submitted, therefore, this case does not fall
under Section 307 I.P.C, maximum it can
be said that it is a case under Section 324
I.P.C.

In this regard, the learned counsel
for the appellant has relied on Anuj Singh
@ Ramanuj Singh @ Seth Singh Vs. The
State of Bihar, in which accused - Manoj
Singh had fired a bullet shot on Kumar
Nandan Singh, which hit his left foot, while
the second shot fired by the accused Anuj
Singh had hit the hand of the injured.

Considering the place of injuries,
the Apex Court held that only charge under
Section 324 I.P.C stands established in
place of Section 307 of the I.P.C.

According to this Court this
judicial precedent can not be applied in this
case. In this case it has been proved that the
accused had fired from firearm on the vital
part of the injured, P.W. 3, which hit his
right side of face with multiple firearm
wound of entry in an area of 8 c.m x 7 c.m.
with blackening and tattooing in an area of
18 x 17 c.m. alongwith scorching on and
above the aforesaid injuries. The shot has
also covered the right eyelid, whole of face
and the right side in front of the neck.

According
to
this
Court,
considering
the
weapons
used
in
commission of crime and that the of shot
was made from a close range distance from
which blackening, tattooing and scorching
had also occurred on the aforesaid vital part
of the body of the injured, it can clearly be
concluded that an attempt to commit
murder was made by the accused. It has
also been proved from the evidence of P.W.
1, P.W. 2 and P.W 3 that convict appellant
is a muscleman, who generally used to
extort the money on the force of firearm.

According to this Court, the sole
fire on such vital part was so conclusive,
other persons were also present on the spot
and there was also a apprehension of
counter attack or arrest of the accused by
the civilians, therefore the appellant could
not load the country made pistol again,
therefore this plea that no second fire was
made by the accused and no supplementary
medical report could be prepared or could
be proved is immaterial for the purposes of
this case.

According
to
this
Court,
illustration (a) and (c) of Section 307 I.P.C
wholly covers this case.

28. Following citations are relevant
for the just decision of this case, hence they
are referred herein below.

Intention to cause death - For
invoking the provisions of Section 307 the
Court has to see whether the act,
irrespective of its result, was done with
intention or knowledge to cause death. The
section does not insist that an injury must
have been caused to a person on whom
attempt to murder was made, though the
nature of injury actually caused may be of
considerable help to know the intention of
10 All. Kailash Vs. State of U.P.
69
the accused. The Supreme Court in Bipin
Bihari v. State of Madhya Pradesh, (2006)
8 SCC 798 ruled that the Court can
ascertain intention from the facts and
circumstances of the case even without
reference to actual injuries caused.

In Liyakat Mian v. State of
Bihar, AIR 1973 SC 807 the accused shot a
person from a very close range causing
injuries on his abdomen and left arm. The
Supreme Court held that under these
circumstances,
the
accused
had
the
knowledge that his act would result in
injuries which are likely to cause death and
therefore, he was convicted under Section
307 of the Indian Penal Code.

In R. Prakash v. State of
Karnataka, 2004 CrLJ 1391 (SC) the
accused assaulted the victim hitting on his
vital parts and non-vital parts of the body.
As many as five persons tried to intervene
and rescue the victim but despite that, the
accused continued to assault and injure the
helpless victim. The Court held that this act
of the accused was enough to show that he
wanted to kill the victim and therefore, he
was rightly convicted under Section 307 of
I.P.C. The Court in this case made it clear that
the conviction of the accused under Section 307
should not be set aside merely on the ground
that the injuries caused by him were simple.

The Supreme Court in Jage Ram v.
State of Haryana, (2015) 11 SCC 366 held that
for the conviction of accused under Section
307, the prosecution has to prove :-

(1) the intention to commit murder;
and

(2) that the act was done by the
accused.

In order to justify conviction under
this section, it is not essential that fatal injury
capable of causing death should have been
caused. The intention of the accused is to be
gathered from the circumstances like the nature
of the weapon used, words used by the accused
at the time of the incident, motive of the
accused, parts of body where the injury was
caused and the nature and severity of the blows
given etc.

29. It has also been argued that there are
variations in the oral and the medical evidence
about the distance where-from the fire was
made.

In this regard the learned counsel for
the appellant argued that according to cross
examination of P.W. 1 and P.W 2 the accused
appellant had shot from the distance of five -
six steps while according to P.W-4 Dr. Rajeev
Khare, the said injuries was possible only from
six feet, while as per the site plan (Ex.Ka-5), the
appellant fired at the injured from the place 'C'
which is eight steps away from where it is not
possible to cause the alleged injury to the victim
by firearm.

In this regard it would be proper to
look into the evidence available on record.

P.W. 1 - The First Informant has
deposed that the appellant - Kailalsh had fired
upon the injured at a distance of 5 - 6 steps.
According to P.W.