# Kalp Narain v. State Of U.P

- **Citation:** (2016) 5 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-02
- **Bench:** Surendra Vikarm Singh Rathore, Anil Kumar Srivastava-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalp-narain-v-state-of-u-p-43930
- **Pages:** 17

## Text

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76 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.05.2016

BEFORE

THE HON'BLE SURENDRA VIKARM SINGH RATHORE, J.
THE HON'BLE ANIL KUMAR SRIVASTAVA-II, J.

Criminal Appeal No.- 97 Of 2011
&
Connected With Other Cases

Kalp Narain ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
R.N. Shukla, Maneesh Kumar Singh, Rishid Murtaza,Udai Pratap Singh

Counsel for Respondent:
Govt. Advocate

This criminal appeals are arising from the judgement and order dated 24.12.2010 passed by learned
Additional Session Judge, Court No.4, Barabanki in Session Trial No.456 of 2005 arising out of Case Crime
No.104 of 2005 and Session Trial No.458 of 2005 arising out of Case Crime No.119 of 2005, whereby the
appellants Shivkaran Shukla and Kalp Narain Sharma have been convicted for the offence under Section 302
IPC and were sentenced with imprisonment for life and also with fine of Rs.20,000/- each, with default
stipulation of one year's additional rigorous imprisonment.

Learned counsel raised certain points during the arguments The origin of the FIR was doubtful. No blood was
found on the shirt or on the motorcycle. time of death also appears to be doubtful keeping in view the
stomach contents as reported by the doctor. It has also been argued that the evidence of Nanhkau a witness
of inquest by itself shows that the entire prosecution story was false but all these factors were not properly
appreciated by the learned trial court which has rendered its judgment unsustainable under law. No
independent witness of the vicinity could be examined by the prosecution in support of its case. It has also
been argued that the salesman of the liquor shop from whose shop the appellants have taken the liquor and
have not paid its price was the best witness but he has been withheld by the prosecution.

While appreciating the evidence the court cannot ignore the ground realities. In the present day world, people
avoid to become a witness to a crime as they consider it as a civil dispute between the two parties. This
apathy of the public is a great hurdle in the administration of criminal justice. The reasons for such apathy of
the public are well known. No one wants to invite the enmity of the accused persons because still no effective
mechanism exists to ensure safety of the witnesses of a crime.

Court observed that Hon'ble Apex Court in several judgements stated that apathy of the public has
repeatedly held that non-examination of independent witness would by itself be not a ground to discard the
evidence of the witnesses on which the prosecution has placed reliance provided their testimony is found
reliable. Thus the evidence of the witnesses of fact cannot be discarded on the ground that salesman has not
been examined. The salesman of a liquor shop, was a petty employee. So his conduct not to come forward to
5 All. Kalp Narain Vs State Of U.P.

77
support the case of the prosecution in the facts of the instant case would not give rise to any adverse
inference against the prosecution.

Court held that after careful scrutiny of the evidence, we are of the considered view that the argument of
learned counsel for the appellants to disbelieve the evidence of all the three eyewitnesses has no substance.
There is a voluminous evidence against the appellants that they have committed this offence. Their evidence
stands corroborated by the medical evidence. The learned trial court has properly appreciated the evidence on
record and has rightly convicted the appellants.

These appeals have no force deserve to be dismissed and are hereby dismissed.

List of Cases Cited:

1. Jarnail Singh V. State of Punjab reported in 2011 Cr.L.J. 1738
2. Appa v. State of Gujarat reported in AIR 1988 SC 698
3. Anil Phukan v. State of Assam reported in (1993) 3 SCC 282
4. Kuria and another v. State of Rajasthan reported in (2012) 10 SCC pg 433
5. Gurjit Singh v State of Haryana reported in (2015) 4 SCC 380
6. Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal No. 629 of 2010.
7. Satbir Singh & Ors. Vs. State of Uttar Pradesh reported in (2009) 13 SCC 790
8. Balraje @ Trimbak v. State of Maharashtra (2010) 6 SCC 673
9. Mano Dutt and Another Vs. State of Uttar Pradesh reported in (2012) 4 SCC 79
10. Shiv Ram and Anr. vs State of U.P. reported in 1998 1 SCC Pg 149
11. Suresh and another Vs. State of Haryana reported in (2015) 2 SCC 227
12. State of Rajasthan Vs. Kashi Ram reported in (2006) 12 SCC 254
13. Jitendra Kumar V. State of Haryana reported in (2012) 6 SCC 204
14. Bhim Singh V. State of Haryana reported in (2002) 10 SCC 461
15. Umesh Singh Vs. State of Bihar reported in (2013) 4 SCC 360
16. Abdul Sayeed Vs. State of Madhya Pradesh reported in (2010) 10 SCC 259
17. State of U.P. Vs. Naresh and others reported in (2011) 4 SCC 324

(Delivered by Hon'ble Anil Kumar Srivastava-II, J.)

1. Sri Maneesh Kumar Singh and Farooq Ayoob, learned counsel for the appellants and
Mrs. Madhulika Yadav, learned Additional Government Advocate for the State were heard at
length.

2. All the three criminal appeals i.e. [Criminal Appeal No.97 of 2011- Kalp Narain V. State
of U.P.], [Criminal Appeal No.292 of 2011-Shivkaran Shukla V. State of U.P.] and [Criminal
Appeal No.144 of 2011-Kalp Narain v. State of U.P.] arise out of the same judgment, therefore, the
same are being disposed of together.

3. Criminal Appeal No.292 of 2011 has been preferred by appellant Shivkaran Shukla,
Criminal Appeal No.97 of 2011 has been preferred by appellant Kalp Narain Sharma challenging
their conviction under Section 302 IPC while Criminal Appeal No.144 of 2011 has been preferred
by the appellant Kalp Narain Sharma challenging his conviction under Arms Act.
78 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Under challenge in these criminal appeals is the judgment and order dated 24.12.2010
passed by learned Additional Session Judge, Court No.4, Barabanki in Session Trial No.456 of
2005 arising out of Case Crime No.104 of 2005 and Session Trial No.458 of 2005 arising out of
Case Crime No.119 of 2005, Police Station Ram Sanehi Ghat, District Barabanki whereby the
appellants Shivkaran Shukla and Kalp Narain Sharma have been convicted for the offence under
Section 302 IPC and were sentenced with imprisonment for life and also with fine of Rs.20,000/-
each, with default stipulation of one year's additional rigorous imprisonment.

5. Appellant Kalp Narain Sharma was further convicted for the offence under Section 25 of
Arms Act and was sentenced to undergo rigorous imprisonment for a period of three years' and also
with fine of Rs.5000/-, with default stipulation of three months' rigorous imprisonment.

6. All the sentences were directed to run concurrently.

7. In brief, the case of the prosecution was that the complainant Ram Abhilakh who
happens to be the father of the deceased Raj Kumar lodged an FIR at Police Station Ram Sanehi
Ghat, District Barabanki on 05.03.2005 at 20:45 hours alleging therein that on that day at about
7.30 p.m. he, his son Ram Kumar, Raj Kumar and Krishna Kumar alongwith one Mansha Ram,
Sunil Kumar and Raj Kumar son of Nanhkau were sitting at their shop at Bhanupur crossing and
were talking together. At that time, in the nearby liquor shop, Pawan Kumar Dubey, Shivkaran,
resident of village Jarauli, Police Station Asandra, District Barabanki and Kalp Narain Sharma
resident of Dhanauli, Police Station Asandra alongwith one unknown person came and purchased
liquor from salesman Shiv Kumar Yadav. When salesman demanded the price of the said liquor
then these persons started abusing him and threatened him with dire consequences. Son of the
complainant Raj Kumar and other persons seeing such behaviour of the accused persons went there
and intervened as to why they are behaving in such a manner. Feeling annoyed by this intervention,
Pawan Kumar Dubey and Shivkaran with their countrymade pistols fired on Raj Kumar, Kalp
Narain Sharma and the second unknown person forcibly took his son injured Raj Kumar on his
motorcycle Suzuki Max 100 bearing Registration No.U.P. 41-C-6001 and Pawan Kumar Dubey
and Shivkaran ran away from there on their motorcycle Hero Honda C.D. Dawn bearing
Registration No.U.P. 41-E-4696 firing in the air and extending threats of dire consequences. This
highhanded behaviour of these culprits continued for about 20 minutes and because of the firing the
shopkeepers closed the shutters of their shops and the persons present in the market anyhow
managed to run away towards their houses and an atmosphere of terror was created in the market
and law and order situation disturbed badly. Thereafter the complainant side, after gathering
courage, started search of Raj Kumar. When these persons reached the canal culvert then the body
of his son Raj Kumar was found in the canal. Leaving the dead body there the complainant got the
FIR of this case scribed by Raj Kumar son of Nanhkau and lodged the same at the police station.

8. After registration of the case, investigation proceeded and inquest proceedings were
conducted on the body of the deceased which started at 6.30 a.m. on 06.03.2005 and concluded at
8.30 a.m. The place of occurrence where the incident had taken place and where the body was
recovered, were inspected and separate site plans were prepared. On 06.03.2005 the police also
5 All. Kalp Narain Vs State Of U.P.

79
recovered the two motorcycles which were used in the crime by the accused persons. Two empty
cartridges were also recovered from the place where the dead body was found. Blood stained and
plain earth were also taken into custody by the police and its memo was prepared. Blood stained
shirt of accused Pawan Kumar Dubey was recovered from his house in the presence of his father
Ram Kripal Dubey and a separate memo was prepared. During course of investigation, the accused
persons Pawan Kumar Dubey (absconding) and Kalp Narain Sharma were taken on police remand
and on their pointing out on 17.03.2005 during 1.00 p.m. to 1.15 p.m. the weapons of offence were
recovered and separate memo was prepared. On the basis of which Case Crime No.118 and 119 of
2005 under Arms Act were registered against these two accused persons. The place of occurrence
of recovery of motorcycle and recovery of weapon of offence was inspected and its site plans were
prepared.

9. After the inquest proceedings the dead body was sent for postmortem which was
conducted on 06.03.2005 at 3:00 p.m. and duration of death was reported to be about one day old.
Following ante-mortem fire arm injuries were reported by the doctor:-

(1) Fire arm injuries 3 cm x 3 cm x abdominal cavity deep, lacerated wound with
inverted margins and blackening around the wound on right side of abdomen 18 cm below right
nipple.

(2) Multiple abrasions wounds on left side of chest in an area of 8 cm x 7 cm x skin
deep below 3 cm from left nipple.

(3) Lacerated wound 7 cm x 3 cm x bone deep on occipital region of skull.

(4) Lacerated wound 3 cm x 3 cm x brain deep on top of head 5 cm interior and
above injury no.3.

(5) On opening the echomoises was present and 101 metallic pellets and one
wadding piece was also recovered which were sealed and sent to police. 1.5 liter of blood with fluid
was found in the abdominal cavity.

In the opinion of the doctor, the death was caused due to shock and haemorrhage as
a result of of ante-mortem fire arm injuries.

10. As per the postmortem report, the small intestine was having digested food and gases
and in the large intestine fecal matter and gases were present. In the stomach pasty food was found.

11. During investigation the unknown appellant was identified as Dablu @ Siddh Narain
Mishra and after completing the investigation police filed charge-sheet against four accused
persons including the appellants.
80 INDIAN LAW REPORTS ALLAHABAD SERIES
12. One accused Pawan Kumar Dubey absconded during trial and did not appear before the
court even after attachment, so his case was separated by the learned trial court vide order dated
19.08.2010 after exhausting the process to procure his presence in accordance with law.

13. The defence of the accused persons that emerges from the suggestion given to the
witnesses and also from their statements under Section 313 Cr.P.C. was of total denial. Kalp Narain
Sharma has stated that the witnesses of fact are giving false evidence and remaining witnesses have
given evidence as they belong to the police department. It was stated by the appellant Shivkaran
Shukla that he was having enmity with Chaitu Yadav of his village and they were not on talking
terms. However, he could not say as to why he has been named in this offence. Accused Dablu @
Siddh Narain Mishra who was acquitted by the learned trial court had taken a defence that Ramesh
Yadav of his village was the father-in-law of the brother of the deceased and he heard in his village
that in the market during loot the brother of his son-in-law has been murdered. Thus it was
suggested that murder was committed in the market by unknown culprits.

14. In order to prove its case, the prosecution has examined PW-1, the complainant Ram
Abhilakh, PW-2 Ram Kumar Yadav son of complainant, PW-3 Krishna Kumar, another son of
complainant, as witnesses of fact, PW-4 Panchu Prasad has been examined to prove the recovery
memos of the motorcycles and the other articles taken into custody by the police, PW-5 Constable
Sankata Prasad, who has prepared the chik report of offence under Section 25 of Arms Act, PW-6
S.I. Surendra Nath Tiwari was a witness of recovery under Section 27 of the Indian Evidence Act,
PW-7 Tehzeeb Askari, Judicial Assistant he has proved the sanction given by District Magistrate
for prosecution of appellant Kalp Narain Sharma under Arms Act, PW-8 Nanhkau is a witness of
inquest proceedings, PW-9 Head Constable, Ram Chandra Arya who has prepared the chik report
of this offence and in his presence G.D. of this case was prepared by Sankata Prasad which has also
been proved by this witness, PW-10 Constable Bhupendra Singh, who has prepared the inquest
report under the supervision of the Investigating Officer, PW-11 Dr. M.P. Tripathi, who has
conducted the postmortem on the body of the deceased, PW-12 S.O. Surendra Nath Rai has
investigated this case, PW-13 Constable Santosh Verma, the carrier of recovered property to
Forensic Science Lab, PW-14 Shanker Saran Pathak the Investigating Officer of the case under
Arms Act and PW-15 Dinesh Kumar Yadav an independent witness on the point of recovery under
Section 25 Arms Act.

15. As CW-1 Komal Singh has been examined who has proved the attachment of property
of accused Pawan Kumar Dubey so his evidence is not the least material for the purpose of this
appeal.

16. In defence as DW-1 Shivkaran has been examined who has stated that he had heard that
younger brother of Ram Kumar had gone to market for purchase where the culprits had committed
loot and he was shot there. He heard this fact from other person. When he inquired about this fact
from the father-in-law of Ram Kumar then he told him that such information is correct. He has also
stated that about 5 months prior to this incident some quarrel had taken place between Ramesh
Yadav and Siddh Narain Mishra because buffaloes of Ramesh Yadav had damaged the paddy crop
5 All. Kalp Narain Vs State Of U.P.

81
of Siddh Narain due to which quarrel had taken place. When Siddh Narain was taking the buffaloes
to the Kaanji house (a place where vagabond animals are kept) the quarrel started. The matter was
informed to the police. Subsequently he says that such incident had taken place about 5-6 years
prior to the incident. So his evidence is only hearsay and other part of the evidence of this witness
shows that it relates to acquitted Siddh Narain Mishra, so it is not material for this appeal.

17. After appreciating the evidence on record, the trial court convicted the appellants as
above, hence the instant appeal.

18. Submission of the learned counsel for the appellants was that the learned trial court has
not properly appreciated the evidence on record. The origin of the FIR was doubtful. No blood was
found on the shirt or on the motorcycle on which injured was taken by Kalp Narain. The deceased
was forcibly taken away on motorcycle but none of the motorcycle rider sustained blood stains in
their clothes while the clothes of Pawan Kumar Dubey were found to be blood stained who was
sitting on another motorcycle and the blood was also found on the bank of canal. It is submitted
that time of death also appears to be doubtful keeping in view the stomach contents as reported by
the doctor. It has also been argued that the evidence of Nanhkau a witness of inquest by itself
shows that the entire prosecution story was false but all these factors were not properly appreciated
by the learned trial court which has rendered its judgment unsustainable under law. He has also
argued that on the basis of the same evidence co-accused Dablu @ Siddh Narain has been acquitted
and his acquittal has not been challenged. He has also argued that in this case all the three witnesses
of fact are closely related to the deceased and they are chance witnesses. No independent witness of
the vicinity could be examined by the prosecution in support of its case. On these grounds, it is
argued that the prosecution has failed to prove its case beyond reasonable doubt and these factors
were not properly considered by the learned trial court which has rendered its judgment
unsustainable under law.

19. Learned Additional Government Advocate has submitted that the learned trial court, by
a well reasoned judgment, has rightly convicted the appellants and he has considered all these
points which have been pressed into service in the instant appeal. It has also been argued that in the
present day world, people avoid to become a witness of a crime so the evidence of the witnesses of
fact whose presence was natural on the place of occurrence cannot be discarded only on the ground
that the independent witnesses have not been examined. He has further submitted that Nanhkau was
only witness of inquest so his evidence can only adversely affect the preparation of the inquest
proceedings and on the basis of his statement the otherwise reliable testimony of the three
eyewitnesses, which stand fully corroborated by the medical evidence and also by the other
recoveries made by the police, cannot be discarded. Hence the appeal has no force.

20. Perusal of the prosecution evidence shows that PW-1 the complainant, PW-2 Ram
Kumar and PW-3 Krishna Kumar were present at the place of occurrence. It is an established fact
that the deceased was running a petty grocery shop in the village market. The said shop also find
mention in the site plan prepared by the Investigating Officer. The evidence of the three
eyewitnesses has been criticized on the ground that they are natives village Mohilaura and the
82 INDIAN LAW REPORTS ALLAHABAD SERIES
incident has taken place in the market at Bhanupur Chauraha. So their presence was not natural and
they are chance witnesses.

21. Submission of the learned counsel for the appellants is that PW-1 Ram Abhilakh is the
father of the deceased and the remaining two witnesses are the real brothers of the deceased and no
independent person of the vicinity has comeforward to support the case of the prosecution. It is an
admitted fact situation that three witnesses of fact are family members of the deceased and no
independent person has been examined by the prosecution. It has also been argued that the
salesman of the liquor shop from whose shop the appellants have taken the liquor and have not paid
its price was the best witness but he has been withheld by the prosecution.

22. While appreciating the evidence the court cannot ignore the ground realities. In the
present day world, people avoid to become a witness to a crime as they consider it as a civil dispute
between the two parties. This apathy of the public is a great hurdle in the administration of criminal
justice. The reasons for such apathy of the public are well known. No one wants to invite the
enmity of the accused persons because still no effective mechanism exists to ensure safety of the
witnesses of a crime.

23. On this point reference may be made to the pronouncement of Hon'ble Apex Court in
the case of Jarnail Singh V. State of Punjab reported in 2011 Cr.L.J. 1738, Hon'ble Apex Court
has observed that the reluctance on the part of the villagers is neither strange nor unbelievable.
Generally people belonging to the small village would not unncessarily want to create bad relations
or enmity.

24. In another case Appa v. State of Gujarat reported in AIR 1988 SC 698 Hon'ble Apex
Court observed that "Experience reminds us that civilized people are generally insensitive when
crime is committed even in their presence. They withdraw from both, victim and vigilant. They
keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of
general public is indeed unfortunate but it is everywhere whether in village life or town and city.
One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such
ground realities. Therefore, the Court instead of doubting the prosecution case where no
independent witness has been examined must consider the broad spectrum of the prosecution
version and then search for the nugget of truth with due regard to probability, if any suggested by
the accused".

25. Therefore, the evidence of the witnesses in the facts of the instant case cannot be
discarded simply because of the reason that the independent witnesses have not come forward to
support the case of the prosecution. At this stage, we would like to discuss legal position regarding
evidentiary value of a related witness--

26. Reliance has also been placed on the pronouncement of Hon'ble the Apex Court in the
case of Anil Phukan v. State of Assam reported in. In the said case, the legal point considered by
5 All. Kalp Narain Vs State Of U.P.

83
Hon'ble the Apex Court was the evident(1993) 3 SCC 282iary value of single eyewitness and has
observed as under:-

".....Indeed, conviction can be based on the testimony of a single eye-witness and
there is no rule of law or evidence which says to the contrary provided the sole witness passes the
test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no
difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not
found to be a wholly reliable witness, in the sense that there are some circumstances which may
show that he could have an interest in the prosecution, then the courts generally insist upon some
independent corroboration of his testimony, in material particulars, before recording conviction. It
is only when the courts find that the single eyewitness is a wholly unreliable witness that his
testimony is discarded in to and no amount of corroboration can cure that defect...."

In the aforesaid case, in the following paragraph Hon'ble the Apex Court has also
observed as under:-

"........In the normal course of events, a close relation would be the last person to
spare the real assailant of his uncle and implicate a false person. However, the possibility that he
may also implicate some innocent person along with the real assailant cannot be ruled out and
therefore, as a matter of prudence, we shall look for some independent corroboration of his
testimony, to decide about the involvement of the appellant in the crime."

 (Underlined by us)

27. Law is settled on the point that the evidence of a related witness cannot be discarded
solely on this score. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v.
State of Rajasthan reported in (2012) 10 SCC pg 433 had held in paragraph no.34 as under:-

"The testimony of an eyewitness, if found truthful, cannot be discarded merely
because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the
court may discard the statement of such witness, but where the witness is wholly reliable or neither
wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other
ocular and documentary evidence), the court may base its judgment on the statement of such
witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if
the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar
V. State of Punjab, (2003) 11 SCC 367, Brathi v State of Punjab (1991) 1 SCC 519 and
Alagupandi v State of T.N. (2012) 10 SCC 451."

17. In a recent judgment in the case of Gurjit Singh v State of Haryana reported in
(2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be
discarded on the ground that he is a relative.
84 INDIAN LAW REPORTS ALLAHABAD SERIES
28. Law is settled on the point that mere relation of the witness with the deceased is by
itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble
the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal
No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point
in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under:-

"16. ................. At this stage, we may refer to the judgment of this Court in the case
of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various
previous judgments of this Court, held as under:-

We are not impressed with this argument. The appreciation of evidence of such
related witnesses has been discussed by this Court in its various judgments. In the case of Dalip
Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are
close-relatives of the victim should not be relied upon, the Court held as under:-

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 true, when feelings
run high and there is personal cause for enmity, that there is a tendency to drag in an innocent
person against whom a witness has a grudge along with the guilty, but foundation must be laid for
such a criticism and the mere fact of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must
be judged on its own facts. Our observations are only made to combat what is so often put forward
in cases before us as a general rule of prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts." Similar view was taken by this Court in the case of
State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now
almost a fashion that public is reluctant to appear and depose before the court especially in
criminal cases and the cases for that reason itself are dragged for years and years. The Court also
stated the principle that, "by now, it is a well-established principle of law that testimony of a
witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation
of the deceased is an interested witness. A close relative who is a very natural witness cannot be
termed as interested witness. The term interested postulates that the person concerned must have
some direct interest in seeing the accused person being convicted somehow or the other either
because of animosity or some other reasons." This Court has also taken the view that related
witness does not necessarily mean or is equivalent to an interested witness.

A witness may be called interested only when he or she derives some benefit from the
result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref.
State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73]} In the case of Darya Singh &
Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under:-
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85

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

It will be useful to make a reference of another judgment of Hon'ble the Apex Court,
in the case of Satbir Singh & Ors. Vs. State of Uttar Pradesh reported in [(2009) 13 SCC 790],
wherein Hon'ble the Apex Court has held as under:-

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

Again in a recent judgment in the case of Balraje @ Trimbak v. State of
Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses
are stated to be interested and inimically disposed towards the accused, it has to be noted that it
would not be proper to conclude that they would shield the real culprit and rope in innocent person.
The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be
required to analyse the evidence of related witnesses and those witnesses who are inimically
disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the
version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard
the same."

Hon'ble Apex Court in the case of Mano Dutt and Another Vs. State of Uttar
Pradesh reported in (2012) 4 SCC 79 had again occasion to consider this aspect and has observed
in para 32 as under:

"Another argument with regard to the appreciation of evidence is that the material
witness having not been examined and the entire prosecution story being based upon the statements
of PW-1 and PW-2, who are the interested witnesses, the entire prosecution evidence suffers from a
patent infirmity in law. Again, we are not impressed by this contention, primarily for the reasons
afore-recorded. Furthermore, it may also be noticed that non-examination of any independent
witness, in the facts of the present case, is not fatal to the case of the prosecution. Therefore, in
view of the discussion made above, we are of the considered view that the prosecution has been
successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he
was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the
public and the appellant was beaten."

29. Hon'ble Apex Court because of such apathy of the public has repeatedly held that nonexamination of independent witness would by itself be not a ground to discard the evidence of the
witnesses on which the prosecution has placed reliance provided their testimony is found reliable.
86 INDIAN LAW REPORTS ALLAHABAD SERIES
30. Reference may be made on this point and the pronouncement of Hon'ble Apex Court in
the case of case of Shiv Ram and Anr. vs State of U.P. reported in 1998 1 SCC Pg 149 has
considered this aspect and was of the view that nowadays it is a common tendency that no outsider
would like to get involve in a criminal case much less in the crime of present magnitude. Therefore
it is quite natural that no independent witness will come forward to assist the prosecution. It is well
settled that the evidence of witnesses cannot be discredited only on the ground that they are close
relatives of the deceased persons but what is required in such situation is that the Court must
scrutinize the evidence of such witnesses with utmost care and caution.

31. Thus the evidence of the witnesses of fact cannot be discarded on the ground that
salesman has not been examined. The salesman of a liquor shop, was a petty employee. So his
conduct not to come forward to support the case of the prosecution in the facts of the instant case
would not give rise to any adverse inference against the prosecution.

32. The evidence of PW-1, PW-2 and PW-3 clearly shows that all of them have fully
supported the case of the prosecution and they have stated that the dispute arose at the liquor shop
and hearing the cries, first of all the deceased rushed towards the liquor shop and he was followed
by the other witnesses and on the intervention of the deceased, accused Pawan Kumar Dubey and
Shivkaran fired on the deceased and thereafter the accused persons forcibly took the deceased on
one motorcycle and on another motorcycle others ran away from the place of occurrence. The
registration numbers of the two motorcycles were also mentioned in the FIR and the same were
recovered by the police from an Arhar field in the same night. PW-1 has stated that out of two fires,
one fire hit the deceased at the place where the incident started and immediately thereafter he was
taken on the motorcycle. The evidence has been criticized on the ground that the deceased has
received several fire arm wounds while according to the evidence of witness only one fire arm
wound has hit the deceased while two fires were shot at that place. It is true that prosecution has
come with a definite case that two fires were shot at the place of incident but the complainant has
stated that one fire has hit the deceased and thereafter the deceased in injured condition was taken
away from the place of occurrence. The possibility that one fire might not have hit the deceased at
that time, cannot be ruled out.

33. The evidence of these eyewitnesses is also criticized on the ground that PW-8 Nanhkau
has stated that after getting the information of this incident he had gone to the place where the dead
body was recovered. Admittedly this witness was only the witness of inquest proceedings and as
per the documentary evidence the inquest proceedings were conducted on the place where the dead
body was found but eyewitnesses have stated that from the place of occurrence the dead body was
brought to the market where incident had taken place and from there it was taken to police station
where the documents were prepared. Learned counsel for the appellants has laid great stress on the
statements of this witness wherein he has stated that the complainant and the witnesses of this case
had also reached the place where the dead body was lying, they started crying and on the strength
of this sole sentence it has been urged that the evidence of all the three eyewitnesses must be
discarded and learned trial court has committed illegality in relying upon the evidence of the three
eyewitnesses. It is a settled principle of appreciation of evidence that the evidence of witnesses has
5 All. Kalp Narain Vs State Of U.P.

87
to be appreciated keeping in view their own evidence. Simply because other persons were
examined on other point and they say that eyewitnesses were not present at the scene of occurrence
is no ground to disbelieve their evidence. Even otherwise these witnesses are not witness of any
incident that took place at canal culvert where from dead body was recovered. The evidence of a
witness of fact can be discarded only when he is found to be not reliable or when his presence on
the scene of occurrence becomes doubtful on the basis of his own evidence or on the basis of other
circumstances. In the instant case it is established that the deceased had a shop at the place of
occurrence and PW-1 the complainant, Ram Abhilakh is the father of the deceased and the other
two witnesses are his real brothers. It is alleged that they were sitting at their shop. The evidence
has to be appreciated keeping in view the village life of our country. In rural areas as there is no
other source of entertainment and it is a common practice that several persons assemble at one
place and pass their time in conversation with each other. So if in the instant case the brothers and
father of the deceased were sitting at their own shop in the market then their presence cannot be
doubted. It is not an unnatural conduct. They had sufficient reason to be present there in the market
as they were having their own shop. So in view of the evidence of PW-8 Nanhkau the evidence of
all the three eyewitnesses cannot be discarded.

34. It has also been argued that according to the evidence of the complainant only one fire
hit the deceased and no blood was found on the place of occurrence. It is true that no blood was
recovered by the police from the place of occurrence where incident started and the witnesses have
stated that they have not seen any blood on the place of occurrence. Postmortem shows that fire
arm injury has caused internal damage. Such internal damage must have caused internal bleeding.
This fact finds supports from the postmortem wherein 1.5 liters blood mixed fluid was found in the
abdominal cavity. The prosecution has come with a definite case that the accused persons took Raj
Kumar on motorcycle and because of the fear the complainant chased after some gap and during
search of the deceased his dead body was found under the culvert. So what happened after
disappearance of the appellants after initial incident, cannot be stated by any witness. The evidence
of three eyewitnesses is to the effect that all three accused persons took the deceased with him and
soon thereafter his dead body was recovered. So there is evidence of last seen and absolutely no
explanation has come forward from the side of the appellants as to where they parted with the
company of the deceased. It was burden on the accused persons in view of Section 106 of the
Indian Evidence Act to explain as to where they parted with the deceased. On this point reference
may be made on the pronouncement of the Hon'ble Apex Court in the case of Suresh and another
Vs. State of Haryana reported in (2015) 2 SCC 227, Hon'ble Apex Court has observed in para 9 as
under:-

9. Apart from the above, this is a case where Section 106 of the Evidence Act is
clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No
doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that
duty but the said provision is attracted when it is impossible or it is proportionately difficult for the
prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of
dead bodies from covered gutters and personal belongings of the deceased from other places
disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone
88 INDIAN LAW REPORTS ALLAHABAD SERIES
had the information leading to recoveries which was admissible under Section 27 of the Evidence
Act.