# Kailash v. State of U.P

- **Citation:** (2023) 1 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-06
- **Case number:** Jail Appeal No. 7728 of 2010
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-v-state-of-u-p-49659
- **Pages:** 28

## Headnote

A. Criminal Law - Indian Penal Code,1860
- Section 302/45, 394 & 422 - Arms Act,
1959 - Section 25 - Murder - Life
imprisonment - Appeal against conviction
and Sentence - Sustainability - Death was
caused
due
to
firearms
injury
-
Contradiction in the St.ment, how far
relevance - Held, unless a contradiction is
proved by putting it to the person who
records
the
original
St.ment,
such
contradiction is of no consequence -
While appreciating the evidence, the Court
must examine the evidence in its entirety,
upon reading the St.ment of a witness as a
whole, and if the Court finds the St.ment
to be truthful and worthy of credence,
then
every
variation
or
discrepancy
particularly which is immaterial and does
not affect the root of prosecution case,
would be of no consequences. (Para 31
and 32)
B. Criminal Law - Indian Evidence Act,
1972 - Section 9 - Relevant fact -
Identity
-
Collateral
evidence,
when
receivable - Held, a fact which establishes
the identity of anything or person whose
identity is relevant are relevant fact. The
principle in the section is a exception to
the general rule that the evidence of
collateral facts is not usually receivable -
It is often important to establish the
identity of a person who witness testifies
that he saw on the particular occasion.
Sometimes, a witness may not recognise
the person but he may still testify that on
subsequent event he was able to identify
the person he had initially seen on the
particular occasion. (Para 35 and 36)
C. Criminal Law - Indian Evidence Act,
1972 - Section 9 - Test Identification
Parade - Object and necessity - Held,
necessity for holding an identification
parade can arise only when the accused
persons are not previously known to the
witnesses. The whole idea of a test
identification parade is that witnesses
who claim to have seen the culprits at the
time of occurrence are to identify them
from the midst of other persons without
any aid or any other source. The test is
done to check upon their veracity - Test
identification parade is not substantive
evidence and it can only be used as
corroborative of the St.ment in court.
(Para 52 and 54)
D. Criminal Law - Indian Penal Code -
Section 34 - Scope - Common intention -
Vicarious responsibility and constructive
liability - Explained - Section 34 IPC
carves out an exception from general Law
that a person is responsible for his own
act, as it provides that a person can also
be held vicariously responsible for the act
of others if he has the "common intention"
to commit offence. This section has been
enacted on the principle of joint liability in
the doing of a criminal act. The section is
only a rule of evidence and does not
create
a
substantive
offence
-
It
recognises the principle of constructive
liability and essence of that liability is the
existence of a common intention. (Para 66
and 67)
E. Criminal Law - Indian Penal Code -
Sections 300 - Murder and culpable
homicide
-
Distinction
-
Culpable
homicide is murder under section 300 of
the Indian Penal Code where the act is
done intentionally or with the knowledge
or means of knowing that is the natural
consequences of the act - No prior
enemity
has
been
shown
between
prosecution witness and the Appellants -
The firearm wound of deceased as per the
post-mortem report shows blackening and
tattooing which is indicative of the fact
that firing was made by Appellant at a
close range - Death was due to shock and
hemorrhage - High Court held the trial
court
justified
in
convicting
the
appellants. (Para 58, 78, 82 and 85)
Appeal dismissed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,945 of 95,139. This is a partial read: ask again with offset=39945 for what follows._

528 INDIAN LAW REPORTS ALLAHABAD SERIES
the
appellant
was
entitled
to
all
consequential benefits. The fault lies with
the respondents in not having utilized the
services of the appellant for the period
from 1.1.2003 to 31.12.2005. Had the
appellant been allowed to continue in
service, he would have readily discharged
his duties. Having restrained him from
rendering his services with effect from
1.1.2003 to 31.12.2005, the respondent
cannot be allowed to press the self serving
plea of denying him wages for the period in
question, on the plea of the principle of "no
work no pay". (emphasis by Court)

13. This decision has been followed by
this Court in Prayag Narain Dubey Vs
U.P.S.R.T.C. and others, Writ-A No.40927
of 2004, decided on 29.03.2018. The
decision in Prayag Narain Dubey (supra)
has been upheld by the Division Bench in
U.P. State Road Transport Corporation
and another vs. Prayag Narain Dubey in
Special Appeal Defective No. 405 of 2018,
decided on 23.08.2018. The principle in all
these decisions is crystal clear and that is that
where the employee remains out of service
on account of the unilateral act of the
employer which is subsequently found not
valid and lawful, the employer cannot deny
his salary on the principle of "no work no
pay".

14. There is a further grievance that
the petitioner has raised and that is about
non-grant
of
the
Assured
Career
Progression, taking into account the period
that he remained out of service. I am of
opinion that, that is a decision which the
respondents have to take and not this Court;
at least, in the first instance.

15. In view of the aforesaid position
of the law and facts obtaining here, this
petition succeeds and is allowed. The
impugned order dated 29.10.2018 passed
by
Executive
Engineer,
Nalkoop
Anurakshan Khand, Bhadohi (Sant Ravidas
Nagar) is hereby quashed.

16. Let a mandamus issue ordering
each of the respondents to sanction and
disburse arrears of the petitioner's salary for
the period 14.09.2011 to 1.05.2017 within a
month of receipt of a copy of this order.

17. The respondents are further
directed to consider the petitioner's case for
grant of Assured Career Progression taking
into account the period of service between
14.09.2011 to 01.05.2017, treating the
petitioner to be in service continuously.
The decision in this regard shall be taken
within six weeks of the date of receipt of a
copy of this order by respondent no.2.

18. There shall be no order as to costs.

19. Let this order be communicted to
the
Executive
Engineer,
Nalkoop
Anurakshan Khand, Bhadohi (Sant Ravidas
Nagar) by the Registrar (Compliance)
----------
(2023) 1 ILRA 528
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Jail Appeal No. 7728 of 2010
With
Criminal Appeal No. 7484 of 2010

Kailash ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
1 All. Kailash Vs. State of U.P.
529
From Jail, Sri Gagan Pratap Singh (A.C.)

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code,1860
- Section 302/45, 394 & 422 - Arms Act,
1959 - Section 25 - Murder - Life
imprisonment - Appeal against conviction
and Sentence - Sustainability - Death was
caused
due
to
firearms
injury
-
Contradiction in the St.ment, how far
relevance - Held, unless a contradiction is
proved by putting it to the person who
records
the
original
St.ment,
such
contradiction is of no consequence -
While appreciating the evidence, the Court
must examine the evidence in its entirety,
upon reading the St.ment of a witness as a
whole, and if the Court finds the St.ment
to be truthful and worthy of credence,
then
every
variation
or
discrepancy
particularly which is immaterial and does
not affect the root of prosecution case,
would be of no consequences. (Para 31
and 32)
B. Criminal Law - Indian Evidence Act,
1972 - Section 9 - Relevant fact -
Identity
-
Collateral
evidence,
when
receivable - Held, a fact which establishes
the identity of anything or person whose
identity is relevant are relevant fact. The
principle in the section is a exception to
the general rule that the evidence of
collateral facts is not usually receivable -
It is often important to establish the
identity of a person who witness testifies
that he saw on the particular occasion.
Sometimes, a witness may not recognise
the person but he may still testify that on
subsequent event he was able to identify
the person he had initially seen on the
particular occasion. (Para 35 and 36)
C. Criminal Law - Indian Evidence Act,
1972 - Section 9 - Test Identification
Parade - Object and necessity - Held,
necessity for holding an identification
parade can arise only when the accused
persons are not previously known to the
witnesses. The whole idea of a test
identification parade is that witnesses
who claim to have seen the culprits at the
time of occurrence are to identify them
from the midst of other persons without
any aid or any other source. The test is
done to check upon their veracity - Test
identification parade is not substantive
evidence and it can only be used as
corroborative of the St.ment in court.
(Para 52 and 54)
D. Criminal Law - Indian Penal Code -
Section 34 - Scope - Common intention -
Vicarious responsibility and constructive
liability - Explained - Section 34 IPC
carves out an exception from general Law
that a person is responsible for his own
act, as it provides that a person can also
be held vicariously responsible for the act
of others if he has the "common intention"
to commit offence. This section has been
enacted on the principle of joint liability in
the doing of a criminal act. The section is
only a rule of evidence and does not
create
a
substantive
offence
-
It
recognises the principle of constructive
liability and essence of that liability is the
existence of a common intention. (Para 66
and 67)
E. Criminal Law - Indian Penal Code -
Sections 300 - Murder and culpable
homicide
-
Distinction
-
Culpable
homicide is murder under section 300 of
the Indian Penal Code where the act is
done intentionally or with the knowledge
or means of knowing that is the natural
consequences of the act - No prior
enemity
has
been
shown
between
prosecution witness and the Appellants -
The firearm wound of deceased as per the
post-mortem report shows blackening and
tattooing which is indicative of the fact
that firing was made by Appellant at a
close range - Death was due to shock and
hemorrhage - High Court held the trial
court
justified
in
convicting
the
appellants. (Para 58, 78, 82 and 85)
Appeal dismissed. (E-1)
List of Cases cited:-
1. Kartik Malhar Vs St. of Bihar, (1996) 1 SCC
614
530 INDIAN LAW REPORTS ALLAHABAD SERIES
2. St. of Uttar Pradesh Vs Samman Dass; (1972)
3 SCC 201
3. Khurshid Ahmed Vs St. of J. & K.; (2018) 7
SCC 429
4. Mohd. Rojali Ali Vs St. of Assam; (2019) 19
SCC 567
5. Kulwinder Singh Vs St. of Punj. ; (2015) 6
SCC 674
6. Harbans Kaur Vs St. of Hary.; (2005) 9 SCC
195
7. Surinder Kumar Vs St. of Punj.; AIR 2020 SC
303
8. M. Nageswara Reddy Vs St. of Andhra
Pradesh; (SC) 2022 CrLJ 2254
9. Paramhans Yadav & Sadanand Tripathi Vs St.
of Bihar & ors.; AIR 1987 SC 955
10. Hari Nath Vs St. of U.P.; AIR 1988 SC 345
11. Malkhansingh Vs St. of M.P.; (2003) 5 SCC
746
12. Lal Singh Vs St. of U.P.; (2003) 12 SCC 554
13. Pramod Mandal Vs St. of Bihar; (2004) 13
SCC 150
14. Criminal Appeal No. 740 of 2018; Raja v. St.
By The Inspector of Police
decided
on
10.12.2019
15.
Criminal
Appeal
No.288
of
2022;
Krishnamurthy @ Gunodu Vs St. of Karn. (SC)
decided on 16.2.2022
16. Sudip Kr. Sen @ Biltu & ors. Vs St. of W.B.
& ors.; (2016) 3 SCC 26
17. Balu @ Bala Subramanium & anr. Vs St. (UT
of Pondicherry); (2016) 15 SCC 471
18. St. of A.P. Vs M. Sohan Babu; (2010) 15
SCC 69 : (2013) 2 SCC (Cri) 123 : 2010 SCC
19. Satish Narayan Sawant Vs St. of Goa;
(2009) 17 SCC 724 : (2011) 2 SCC (Cri) 110 :
2009 SCC OnLine SC 1638
20. Abdul Waheed Khan Vs St. of A.P.; (2002) 7
SCC 175 : 2005 SCC (Cri) 1301
21. St. of A.P. Vs Rayavarapu Punnayya; (1976)
4 SCC 382 : 1976 SCC (Cri) 659
(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard Sri Gagan Pratap Singh,
learned Amicus Curiae for the Appellant in
Jail Appeal No.7728 of 2010 and Sri Anadi
Krishna Narayana, learned counsel for the
Appellant in Criminal Appeal No.7484 of
2010 and learned A.G.A. for the State and
perused the record.

2. The present appeal is filed by
Appellants challenging judgment and order
dated 20th October, 2010 passed by the
Special Judge (DAA), Agra. By means of
impugned judgment, Appellants-Kailash
and Baba Thakur @ Prawesh Kumar Singh
has been convicted under Section 394
I.P.C. and sentenced to undergo 10 years
rigorous imprisonment and Rs.5000/- fine.
Further, Appellants have been convicted
under Section 302/34 I.P.C. and sentenced
to
undergo
life
imprisonment
and
Rs.10,000/- fine; Appellant-Kailash has
also been convicted under Section 411
I.P.C. and sentenced to undergo 2 years
rigorous imprisonment; Appellant-Kailash
has further been convicted under Section
25 of Arms Act and sentenced to undergo 3
years
rigorous
imprisonment
and
Rs.10,000/- fine.

3. The prosecution case as per first
information report is that on 23rd June,
2005 at about 6.30 pm, informant (PW1)
Babua along with his son Aslam (PW2)
were going to tempo stand Mantola road to
meet informant's second son Arif. When
they reached near Subhash Road then one
cloth agent Amar Nath (PW4) made
distress call that his belongings have been
taken away forcefully and on aforesaid
distress call, informant and his son saw that
two persons were running towards the
powerhouse in which one was having
1 All. Kailash Vs. State of U.P.
531
countrymade pistol and a bag and the other
accused was having countrymade pistol.
On hearing distress call of Amar Nath, the
son of informant deceased-Arif and Aslam
(PW2), Shahid Anwar, Mohd. Shahid,
Fateh Singh (Tempo Driver), Ilbas, Rakesh
Sharma, Muhiuddin and Amar Nath started
running to catch aforesaid accused persons
and caught hold of one of the accusedperson, who on being caught, fired which
hit son of informant, namely, Arif, who
suffered firearm injury and as a result of
the same, accused person was led free and
on the same occasion one tempo driver hit
his tempo with the accused person, as a
result of same, he sustained injury and fell
down. Thereafter, Amar Nath got back his
bag, which was forcefully taken by accused
person and when informant and his son
Aslam reached the spot, accused was
having countrymade pistol in his hand and
there were four live cartridges in his
pocket, which was taken in custody.
Accused person informed that his name is
Kailash s/o Asharfi Lal. Injured-Arif was
brought to the hospital by Aslam and other
persons and in intervening period police
personnel came. The weapon cartridges and
bag of Amar Nath was deposited in the
police station and first information report
was
lodged
after
being
scribed
by
Nasruddin and on the basis of the same,
Case Crime No.98 of 2005, under Section
394, 411, 302 I.P.C. and Case Crime No.99
of 2005 under Section 25 Arms Act was
registered at 19.20 hours on the same day.

4. The investigation in present case
was carried on and panchayatnama of
deceased was prepared on 23rd June, 2005.
The panchayatnama was held at the S.N.
Hospital, Agra on 23rd June, 2005 at 20.20
pm and same was completed at 22.05 pm.
The panch witnesses of panchayatnama
were Haji Mohd. Gulfam, Abdul Haneef,
Mohd. Muim, Shamimoddin, Allauddin
and as per opinion of panch witnesses
deceased Arif died on account of firearm
injury. Thereafter, body was sent for post
mortem examination and post mortem held
on 24th June, 2005 at 10.00 am. The post
mortem was conducted by Dr. A.P. Singh
(PW-6). The following injuries were found
in the post mortem report:-

"Firearm wound of entry 0.4 cm
X 0.4 cm situated on the anterior wall of
stomach in the upper part 0.5 cm left to the
midline at a level 2 cm below xephisterum.
Cavity deep on probing probe reaches on
the peritoneal cavity. Blackening and
tatooing present.

Fracture of 3rd lumber vertebra.
Metallic bullet 3 cm X 0.8 cm recovered
from this bone."

5. As per post mortem report
deceased Arif died due to shock and
haemorrhage as a result of ante-mortem
injury. Investigating Officer prepared the
site plan of place of incident on 23th June,
2005.
On
8th
September,
2005
identification proceeding in respect of
accused Baba Thakur @ Prawesh Kumar
Singh was held by Investigation Officer.

6. After investigation, chargesheet
was submitted against the Appellants by
the Investigation Officer.

7. The trial court framed charge on
23rd January, 2006 against AppellantKailash under Section 25 Arms Act and
Section 411 I.P.C. The trial court further
framed charges against Appellants Kailash
and Baba Thakur @ Prawesh Kumar Singh
under Sections 394 and 302 read with
Section 34 I.P.C. Appellants denied the
charges and claimed to be tried.
532 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The prosecution in support of its
case produced following witness:-

(a)
Babua
(P.W.1),
who
is
informant of case, has stated that on 23rd
June, 2005 at about 5.30 pm informant and
his son Aslam went to meet his second son
Arif, who was working at Tempo Stand
Mantola and when they reached Shubhas
Nagar then they heard distress call of agent
Amar Nath shouting that he has been looted
and then informant and his son saw two
accused persons running towards the
powerhouse in which one was having
countrymade pistol and a bag in his hand
and other person was having countrymade
pistol. On hearing distress call, his son Arif
and Aslam and other persons Shahid and
Anwar and Mohd. Shahid Qureshi, Fateh
Singh (Tempo Driver), Mohd. Ilyas and
others ran towards aforesaid accused
persons; person whose bag was forcefully
taken away also ran behind accused
persons. While running towards accused
persons his son Arif caught hold of one of
the accused person. However, he fired on
his son Arif and as a result of the same,
Arif sustained firearm injury; aforesaid
accused person was let of from the custody
of the Arif. Later on one tempo driver has
hit aforesaid accused person with his tempo
as a result of same, he was injured and fell
down. In the intervening period, Amar
Nath took the bag from injured accused
person. Informant took away countrymade
pistol and four live cartridges from the
pocket of injured accused person. Injured
accused person informed his name as
Kailash, s/o Asharfi Kashyap and further
informed that other accused person is Baba
Sindhi resident of Gurudwara Etah.

Infomant (PW1) thereafter, send
his injured son Arif to hospital for medical
treatment with the help of his second son
Aslam and other persons. Police personnel
came on place of occurrence and on his
instructions first information report was
scribed by Nuruddin and countrymade
pistol, live cartridges and bag of Amar
Nath recovered from accused Kailash was
taken to police station Rakabganj and first
information report was lodged. The witness
has identified the first information report
dated 23rd June, 2005 and same was
marked as Ex.Ka.1 before trial court;
recovered countrymade pistol and live
cartridges were also handed over to police
and a recovery memo was prepared and
recovered articles were sealed in presence
of the informant (P.W.1.) Informant has
also stated that Mustaqeem and Sajid had
signed and informant had given his thumb
impression; witness has identified recovery
memo dated 23rd June, 2005 and the same
was marked as Ex.Ka.2 before the trial
court. Witness has further testified that
accused person who ran away from the
place of occurrence was Baba Sindhi and
he is also known as Baba Thakur. After
incident he along with his son Aslam,
Shahid, Anwar and Rakesh Sharma went to
jail for identifying Baba Sindhi @ Baba
Thakur; All the four persons had identified
the accused and the identification memo is
marked as Ex.Ka.3. Countrymade pistol
and four live cartridges was exhibited as
Ex.Ka.6 and the bag of Amar Nath was
exhibited as Ex.Ka.8. Witness has further
stated that both the accused persons are
present in the court and as such he has
identified the accused person before the
trial court.

(b)Aslam (P.W.2), s/o Haji Babua
has stated that on 23rd June, 2005,
occurrence took place. He along with his
father Haji Babua went to tempo stand, to
meet his brother at about 6.30 pm and when
they reached Subhash Bazar, they heard
1 All. Kailash Vs. State of U.P.
533
distress call of Amar Nath who shouted that
he has been looted and witness saw that
two
accused
persons
ran
towards
powerhouse in which one was having
countrymade pistol and a bag and the other
accused was having a countrymade pistol.
On hearing distress call, Arif, Shahid,
Anwar and Shahid Qureshi and other
persons went behind aforesaid accused
persons and when they caught hold of one
of the accused persons, said accused person
with the intention to kill fired and as a
result of the same his brother Arif sustained
firearm injury. Accused person was let out
of custody and was trying to run away, in
the meantime, one tempo driver dashed
with accused person, as a result of the
same, accused person sustained injury and
fell down. Amar Nath (PW4) thereafter,
took his bag; witness further stated that his
father took the countrymade pistol and four
live cartridges from injured accused.
Injured accused informed that his name is
Kailash and accused person who has ran
away from the spot his name is Baba
Sindhi. In the meantime, police came and
witness took his brother with the help of
other persons to the S.N. Hospital where
the doctors have declared his brother dead.
Witness has identified Appellants in court.

(c)
Mahavir
Singh
Chauhan
(P.W.3), S.O. Nai Ki Mandi, Agra has
stated that on 23rd June, 2005 he was
posted as Chowki In-charge Fort under
Police Station Rakabganj. He has stated
that on the said date he had conducted
panchayatnama of the deceased Arif at S.N.
Medical
College
in
front
of
panch
witnesses.
Witness
has
identified
panchayatnama and same was marked as
Ex.Ka.4 before the trial court. Witness has
further submitted that letter to the C.M.O.,
photo lash, challan nash was filled by the
aforesaid witness and was duly signed and
the same was marked as Ex.Ka.5, Ex.Ka.6
and Ex.Ka.7 respectively.

(d) Amar Nath (P.W.4), s/o Late
Sri Sewaram has stated that on 23rd June,
2005 he went to Etah and after recovering
money from cloth retailers he kept money
in his bag and was going to Subhash Bazar;
When he reached near tempo stand at about
6.30 pm two persons who were carrying
countrymade pistols and one of the accused
person hit with butt of the countrymade
pistol and thereafter, forcefully took away
the bag and ran towards the powerhouse.
Witness made distress call and on hearing
the same, some persons came and ran
towards the accused person to catch them
and as a result of the same, one of accused
person fired; present witness and Arif
sustained injuries and accused person was
let off. Later on, one tempo hit one of the
accused person and bag of witness was
recovered. Family members of the person
who sustained firearm injury in the
meantime came and from the custody of
one of accused person countrymade pistol
and four live cartridges were recovered;
accused person who was caught on the spot
disclosed his name as Kailash and he also
disclose the name of other accused as Baba
Thakur. Injured was taken to the hospital
and father of the deceased went to the
police station. He has also stated that police
has also prepared papers in respect of
recovery of countrymade pistol, live
cartridges and bag. Witness has not been
able to identify the accused person as the
occurrence is old.

(e)
Manoj
Kumar
Shukla
(P.W.5), S.P., Police Station Maniyaon,
Lucknow has stated that on 23rd June,
2005 he was posted at Police Station
Rakabganj as H.M. and chik FIR in the
present case on the basis of the first
534 INDIAN LAW REPORTS ALLAHABAD SERIES
information report was lodged by Babua.
He has identified the chik FIR and the same
was exhibited as Ex.Ka.9 before the trial
court.

(f) Dr. A.P. Singh (P.W.6),
District
Women
Hospital,
Hathras
Mahamaya Nagar has stated that on 24th
June, 2005 he was posted at District
Women Hospital, Agra and on the
aforesaid date he had conducted post
mortem of deceased Arif at 10.00 am;
deceased died on account of ante-mortem
firearm injures; injuries could have been
sustained on 23rd June, 2005 at 6.30 pm
and were firearm injuries.

(g) Baleshwar Prasad Tripathi
(P.W.7), S.I., Police Station Kotwali has
stated that on 23rd June, 2005 he was
posted at Police Station Rakabganj as S.I.
and was the Investigating Officer; On the
same day he had prepared the nakal chik,
nakal rapat and recorded the statement of
Head Moharrir Manoj Kumar, informant
Haji Babua and also prepared site plan after
visiting the place of occurrence. Statement
of accused Kailash was also recorded on
26th
June,
2005:
Statement
of
panchayatnama witness was recorded and
statement of S.I. Mahavir Singh was also
recorded in the case diary: On 1st July,
2005 recorded statement of Aslam and
Mustaqeem, Mohd. Sajid and Rakesh
Sharma.

(h) Sri Ambesh Chand Tyagi
(P.W.8), Dy. S.P., Gautam Budh Nagar has
stated that on 9th July, 2005 he was posted
as In-charge Inspector, Police Station
Rakabganj. On 11th July, 2005 statement
of S.I. Mahavir Singh was recorded. On
16th July, 2005 accused Baba Thakur was
arrested and his statement was recorded
and he was kept hidden. On 10th August,
2005 statement of Mustaqeem and on 15th
August, 2005 statement of Mohd. Sajid was
recorded.
On
12th
September,
2005
recovered articles were sent for forensic
examination.
On
15th
August,
2005
chargesheet was filed against accused
Kailash.
On
8th
September,
2007
identification of Baba Thakur was held and
thereafter, chargesheet was submitted,
which is Ex.Ka.15.

9. The accused persons did not
examine any witness in support of their
defence and their statement under Section
313 Cr.P.C. was recorded by the trial court
on 26th July, 2010.

10. Appellant-Kailash in his statement
under section 313 of the criminal procedure
code has denied charges/allegations against
him and has stated that he had come to
meet his relative and one tempo has hit him
and as a result he sustained injury and all
the tempo drivers assembled. He has not
fired on deceased nor he has any revolver.

11. The Appellant-Baba Thakur in his
statement under section 313 of the criminal
procedure code has denied the charges and
stated that he was not present at the place
of occurrence and has no knowledge with
regard to the occurrence. It is further stated
that the witness has not identified the
Appellant.

12. As per prosecution case on 23rd
June, 2005 at about 6:30 PM when P.W.4 -
Amarnath was travelling near powerhouse
area, police station - Rakabganj, District -
Agra along with bag containing tiffin in
which cash was kept then Appellant -
Kailash and Baba Thakur alias Prawesh
Kumar snatched away bag of Amarnath. At
the same time informant (PW1) Babua
along with his son namely Aslam (PW2)
were going to tempo stand Mantola road to
1 All. Kailash Vs. State of U.P.
535
meet informant's second son Arif. On
hearing distress call of Amarnath that
accused persons has forcibly taken away
bag containing cash; informant and his son
saw accused persons running towards
Powerhouse, one was having country-made
pistol & a bag and other accused person
was having country made pistol.

13. On hearing distress call, son of
informant
deceased-Arif
and
Aslam
(PW2), Shahid Anwar, Mohd. Shahid,
Fateh
Singh
(Tempo
Driver),
Ilbas,
Rakesh Sharma, Muhiuddin and Amar
Nath started running to catch the aforesaid
accused persons and caught hold of one
accused-person, who on being caught,
fired which hit son of informant, namely,
Arif, who sustained firearm injury and as a
result of same, aforesaid accused person
was let free and at the same time one
tempo driver hit his tempo with accused
person, as a result of the same, he
sustained injury and fell down. Thereafter,
Amar Nath got back his bag, which was
forcefully taken by accused person and
when informant and his son Aslam
reached the said place, accused was
having countrymade pistol in his hand and
there were four live cartridges into his
pocket, which was taken in custody.

14. The aforesaid accused person
informed that his name is Kailash, s/o
Asharfi Lal. Accused Kailash disclosed
the name of other accused person as Baba
Sindhi, Near Gurudwara Colony, Etah
who ran away from place of occurrence.
Injured Arif was brought to hospital by
Aslam
and
other
persons
and
in
intervening period police personnel came.
Countrymade pistol, cartridges and bag of
Amar Nath was deposited in police station
and first information report was lodged
after being scribed by Nasruddin.

15.

Prosecution
witnesses
has
supported the prosecution story. P.W.4 -
Amarnath supporting prosecution case has
stated that on 23rd June, 2005 he went to
Etah and after recovering cash from cloth
merchants which was kept in a bag; came
back by bus from Etah to Agra. After he
de-boarded the bus and was travelling
through Subhash baazar at about 6:30 PM,
two persons with country made pistol
came. One person hit him with the butt and
second person snatched away the bag and
ran towards powerhouse. When Amarnath
made distress call then common people ran
towards accused person and caught hold of
one person who fired on being caught and
as a result of the same, Arif got injured and
person who was caught was let off but fell
down after being dashed with tempo. The
bag of Amarnath was recovered and
country made pistol and live cartridges
were also recovered from the aforesaid
person, who was caught; aforesaid person
disclosed
his
name
as
Kailash
and
disclosed the name of accused who ran
away as Baba Sindhi. The aforesaid
statement of P.W.4 is supported by P.W.1
who is father of the deceased and P.W.2
who is brother of the deceased. P.W.1 &
P.W.2 identified the Appellants before the
trial court. Accused Baba Thakur was
identified by prosecution witness in jail
also.

16. The post-mortem of deceased was
held on 24th June, 2005 by P.W.6 - Dr
A.P.Singh; aforesaid witness has proved
post-mortem report and same was marked
as Ex Ka - 11 before trial court. As per
post-mortem report deceased - Arif died
due to shock and haemorrhage as a result of
anti-mortem firearm injury. The deceased
suffered
firearm
injury
in
stomach.
Blackening and tattooing was present.
Lumber Vertebra was fractured and a bullet
536 INDIAN LAW REPORTS ALLAHABAD SERIES
was recovered from body of deceased.
P.W.6 has further testified that death was
possible from firearm injury. The opinion
of said witness was that death could have
occurred at 6 PM.

17. It is submitted by learned counsel
for Appellants that in present case P.W.1 -
father of the deceased and P.W.2 - Aslam
(Brother
of
deceased)
are
not
the
independent witness and testimony of
P.W.4 does not prove prosecution case. The
trial court has recorded finding that no
enmity has been shown between Appellants
and P.W.1 & P.W.2. Trial court has further
recorded finding that presence of the
aforesaid witnesses have been shown on
the basis that they had gone for talks of
marriage of sister of deceased which is
natural event.

18. A witness is normally to be
considered independent unless he or she
springs from sources which are likely to
be tainted and that usually means unless
the witness has cause, such as enmity
against the accused, to wish to implicate
him falsely. Ordinarily a close relative
would be the last to screen the real culprit
and falsely implicate an innocent person.
It is often the case that offence is
witnessed by a close relative of the victim,
whose presence on the scene of offence
would be natural. The evidence of such a
witness cannot automatically be discarded
by labelling witness as interested. It is
worthy to note that there is a distinction
between a witness who is related and an
interested witness. A relative is a natural
witness. The Apex Court in Kartik Malhar
Vs. State of Bihar, (1996) 1 SCC 614 has
opined that a close relative who is a
natural witness cannot be regarded as an
interested
witness,
for
the
term
"interested" postulates that the witness
must have some interest in having the
accused, somehow or the other, convicted
for some animus or for some other reason.

19. Merely because the witnesses are
family members their evidence cannot per
se be discarded. When there is allegation of
interestedness,
the
same
has
to
be
established. Mere statement that being
relatives of the deceased they are likely to
falsely implicate the accused cannot be a
ground to discard the evidence which is
otherwise cogent and credible. Relationship
is not a factor to affect credibility of a
witness. It is more often than not that a
relative would not conceal actual culprit
and make allegations against an innocent
person. Foundation has to be laid if plea of
false implication is made. There is no bar in
law on examining family members as
witness. Evidence of a related witness can
be relied upon provided it is trustworthy.

20. The Supreme Court in State of
Uttar Pradesh Vs. Samman Dass, (1972)
3 SCC 201 observed as under:-

"23...It is well known that the
close relatives of a murdered person are
most reluctant to spare the real assailant
and falsely involve another person in place
of the assailant..."

21. In Khurshid Ahmed Vs. State of
Jammu and Kashmir (2018) 7 SCC 429,
Supreme Court on the issue of evidence of
a related witness observed as under :-

"31. There is no proposition in
law that relatives are to be treated as
untruthful witnesses. On the contrary,
reason has to be shown when a plea of
partiality is raised to show that the
witnesses had reason to shield actual culprit
and falsely implicate the accused."
1 All. Kailash Vs. State of U.P.
537

22. The Apex Court in Mohd. Rojali
Ali v. State of Assam, (2019) 19 SCC 567
in respect of related witness has observed
as under :-

"13. As regards the contention
that all the eyewitnesses are close relatives
of the deceased, it is by now well-settled
that a related witness cannot be said to be
an "interested" witness merely by virtue of
being a relative of the victim. This Court
has elucidated the difference between
"interested" and "related" witnesses in a
plethora of cases, stating that a witness may
be called interested only when he or she
derives some benefit from the result of a
litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing the
accused punished due to prior enmity or
other reasons, and thus has a motive to
falsely implicate the accused (for instance,
see State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752 :
1981 SCC (Cri) 593] ; Amit v. State of
U.P. [Amit v. State of U.P., (2012) 4 SCC
107 : (2012) 2 SCC (Cri) 590] ; and
Gangabhavani v. Rayapati Venkat Reddy
[Gangabhavani v. Rayapati Venkat Reddy,
(2013) 15 SCC 298 : (2014) 6 SCC (Cri)
182] ). Recently, this difference was
reiterated in Ganapathi v. State of T.N.
[Ganapathi v. State of T.N., (2018) 5 SCC
549 : (2018) 2 SCC (Cri) 793] , in the
following terms, by referring to the threeJudge Bench decision in State of Rajasthan
v. Kalki [State of Rajasthan v. Kalki,
(1981) 2 SCC 752 : 1981 SCC (Cri) 593] :
(Ganapathi case [Ganapathi v. State of
T.N., (2018) 5 SCC 549 : (2018) 2 SCC
(Cri) 793] , SCC p. 555, para 14)

"14. "Related" is not equivalent to
"interested". A witness may be called
"interested" only when he or she derives
some benefit from the result of a litigation;
in the decree in a civil case, or in seeing an
accused person punished. A witness who is
a natural one and is the only possible
eyewitness in the circumstances of a case
cannot be said to be "interested"."

14. In criminal cases, it is often
the case that the offence is witnessed by a
close relative of the victim, whose presence
on the scene of the offence would be
natural. The evidence of such a witness
cannot automatically be discarded by
labelling the witness as interested. Indeed,
one of the earliest statements with respect
to interested witnesses in criminal cases
was made by this Court in Dalip Singh v.
State of Punjab [Dalip Singh v. State of
Punjab, 1954 SCR 145 : AIR 1953 SC 364
: 1953 Cri LJ 1465] , wherein this Court
observed: (AIR p. 366, para 26)

"26. A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person."

15. In case of a related witness,
the Court may not treat his or her testimony
as inherently tainted, and needs to ensure
only that the evidence is inherently reliable,
probable, cogent and consistent. We may
refer to the observations of this Court in
Jayabalan v. State (UT of Pondicherry)
[Jayabalan v. State (UT of Pondicherry),
(2010) 1 SCC 199 : (2010) 2 SCC (Cri)
966] : (SCC p. 213, para 23)

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

23. The Apex Court in Kulwinder
Singh v. State of Punjab, (2015) 6 SCC
674 held that the case of the prosecution
cannot be rejected solely on the ground that
independent witnesses have not been
examined when, on the perusal of the
evidence on record the Court finds that the
case put forth by the prosecution is
trustworthy. When the evidence of the
official witnesses is trustworthy and
credible, there is no reason not to rest the
conviction on the basis of their evidence.

24. In Harbans Kaur v. State of
Haryana, (2005) 9 SCC 195, the Hon'ble
Supreme Court observed that:

"6. There is no proposition in law
that relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be
shown when a plea of partiality is raised to
show that the witnesses had reason to
shield actual culprit and falsely implicate
the accused."

25. It is held in recent judgement
rendered in Surinder Kumar v. State of
Punjab AIR 2020 Supreme Court 303 that
merely
because
prosecution
has
not
examined any independent witness, same
would
not
necessarily
lead
to
the
conclusion that the appellant has been
falsely implicated.

26. In M. Nageswara Reddy v. State
of Andhra Pradesh (SC) - 2022 CrLJ
2254 the Apex Court has observed that
merely because the witnesses were the
relatives of the deceased, their evidence
cannot be discarded solely on the aforesaid
ground.

27. It is further to be seen that in the
present case no material has been shown to
demonstrate that there was any prior
enmity between P.W.1 and P.W.2 and
accused person. No reasons have been
assigned as to why aforesaid witness would
falsely implicate the Appellant's. There is
one more aspect of the matter that in the
present case P.W.4 - Amarnath is an
independent witness who was travelling
with the money bag and incident had
occurred in presence of aforesaid witness.
The said witness is the eyewitness of the
aforesaid incident and as such it cannot be
said that there is no independent witness to
support the prosecution case.

28. It is further submitted by learned
counsel for the Appellant that in present
case, scribe of first information report -
Nooruddin and tempo driver who had hit
accused Kailash has not been examined and
an important evidence has been detained by
the prosecution and as such the Appellant
could not have been convicted for the
alleged offence. In the present case, first
information report was scribed on the
dictation of the first informant and
informant has testified on oath before the
trial court and has proved the first
information report, under the aforesaid
circumstances non-production of the scribe
of
first
information
report
will
not
1 All. Kailash Vs. State of U.P.
539
adversely affect prosecution case. Further,
tempo driver who had hit the Appellant -
Kailash with the Tempo was seen by PW-1,
PW-2 and PW-4 and Appellant-Kailash
were caught at the place of occurrence with
countrymade pistol and bag and same has
been proved by prosecution by testimony
of prosecution witnesses and as such the
non-examination of the Tempo Driver will
not affect the prosecution case.

29. It is further submitted by counsel
for
the
Appellant
that
there
is
a
contradiction in the statement of witnesses.
It is submitted that one witness has stated
that he was hundred metre away and caught
hold the accused person by running
whereas the other witness has stated that
witness was near the place of occurrence. It
is also submitted that informant has stated
that the alleged occurrence is of 5:30 PM
whereas other witness has stated that
alleged incident is of 6:30 PM and as such
there is contradiction. It is to be noted that
the statement of the prosecution witness no
1 and 2 was recorded before the trial court
in the year 2008 and incident has taken
place on 23rd June, 2005 and as such the
statement itself are recorded after three
years of the date of occurrence. It is further
to be noted that in first information report
being Exhibit Ka.-1, time of alleged
incident has been stated to be 6:30 PM. The
memory of the witness fades with the
passage of time and as such unless the
contradiction is material the same by itself
cannot demolish the prosecution case
specifically when the first information
report has been duly proved by the
prosecution witness no 1. It is also to be
noted that contradiction in the statement of
witness has not been confronted with
aforesaid witness in cross examination.

30. Minor variations in the accounts
of witnesses are often the hallmark of the
truth
of
their
testimony.
When
the
discrepancies were comparatively of a
minor character and did not go to the root
of prosecution story, they need not be given
undue importance. Mere congruity or
consistency is not the sole test of truth in
the depositions. In the depositions of
witnesses
there
are
always
normal
discrepancy, however honest and truthful
they may be. Such discrepancies are due to
normal errors of observation, normal errors
of memory due to lapse of time, due to
mental disposition such as shock and horror
at the time of occurrence, and the like.
Material discrepancies are those which are
not normal, and not expected of a normal
person. Corroboration of evidence with
mathematical niceties cannot be expected
in criminal cases. Minor embellishment,
there may be, but variations by reason
therefor should not render the evidence of
eye witnesses unbelievable.

31. Unless a contradiction is proved
by putting it to the person who records the
original statement, such contradiction is of
no consequence.

32.