# Kanta v. State

- **Citation:** (2022) 8 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Criminal Appeal No. 549 of 1983
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanta-v-state-48926
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is to be noted that the
absence of blood on the spot is of no
consequence
in
the
facts
and
circumstances of the case where there is
no doubt with regard to actual occurrence
having taken place and about the place
where it took place. It is emerging from
the record that the place was an open
public place accessible to the public at
large and plausible explanation has been
given by Prosecution Witness No. 1 with
regard to non-availability of blood stains
when the Investigating Officer visited the
place of occurrence and as such the
prosecution story cannot be discarded on
the aforesaid ground.

Merely because no blood stains were recovered
from the place of the occurrence, which was an
open public place, would not affect the case of
the prosecution.

Section 134- 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
620 INDIAN LAW REPORTS ALLAHABAD SERIES
person. 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-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 relation 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.

Settled law that merely because the witness is
related would not mean that he is interested
and
therefore
his
testimony
should
be
discarded. A related witness would be a natural
witness and will have no reason to falsely
implicate some other person and his evidence
can be relied upon if the same is credible and
trustworthy.( Para 9, 16, 17, 23 )

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

8 All. Kanta Vs. State
619
criminal history and also that he is aged
about 40 years and having regard to the fact
that the accused-appellant is in jail since
conviction and is serving out the sentence
awarded to him, the sentence awarded to
the accused-appellant under Section 304-B
I.P.C. is liable to be modified from ten
years' rigorous imprisonment to seven
years' rigorous imprisonment only.

28.

Accordingly,
the
sentence
awarded to the accused-appellant under
Section 304-B I.P.C. is modified from ten
years' rigorous imprisonment to seven
years' rigorous imprisonment only. The
conviction under Section 498A I.P.C. and
awarding of sentence for three years'
rigorous imprisonment with a fine of
Rs.8000/-, ten years' rigorous imprisonment
under Section 304B I.P.C. and two years'
rigorous imprisonment with a fine of
Rs.6000/-
under
Section
4
Dowry
Prohibition Act are also affirmed.

29. With the aforesaid modification,
the instant jail appeal deserves to be partly
allowed.

30. The instant jail appeal is partly
allowed as indicated above.

31. Let the appellant be released
forthwith, if he has already undergone the
sentences awarded to him as aforesaid
provided he is not wanted in any other
criminal case.

31. Let a copy of this judgment along
with lower Court record, if any, be sent to
learned trial Court for information and
necessary compliance.
----------
(2022) 8 ILRA 619
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Criminal Appeal No. 549 of 1983

Kanta ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri H.R. Misra, Amicus Curiae, Sri Pankaj
Kumar Asthana, Sri Vrindavan Mishra

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

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is to be noted that the
absence of blood on the spot is of no
consequence
in
the
facts
and
circumstances of the case where there is
no doubt with regard to actual occurrence
having taken place and about the place
where it took place. It is emerging from
the record that the place was an open
public place accessible to the public at
large and plausible explanation has been
given by Prosecution Witness No. 1 with
regard to non-availability of blood stains
when the Investigating Officer visited the
place of occurrence and as such the
prosecution story cannot be discarded on
the aforesaid ground.

Merely because no blood stains were recovered
from the place of the occurrence, which was an
open public place, would not affect the case of
the prosecution.

Section 134- 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
620 INDIAN LAW REPORTS ALLAHABAD SERIES
person. 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-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 relation 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.

Settled law that merely because the witness is
related would not mean that he is interested
and
therefore
his
testimony
should
be
discarded. A related witness would be a natural
witness and will have no reason to falsely
implicate some other person and his evidence
can be relied upon if the same is credible and
trustworthy.( Para 9, 16, 17, 23 )

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Narendra Nath Khaware Vs Parasnath
Khaware & ors, (2003) 5 SCC 488

2. Hari Har Singh & ors. Vs The St. of U.P.,
(1975) 4 SCC 148

3. Gaya Yadav & ors Vs St. of Bih. & ors, (2003)
9 SCC 122

4. St. of Raj. Vs Satyanarayan, (1998) 8 SCC
404
5. Ram Swaroop & ors Vs St. of U.P., (2000) 2
SCC 461

6. Kartik Malhar Vs St. of Bih., (1996) 1 SCC 614

7. St. of U.P Vs Samman Dass, (1972) 3 SCC
201

8. Khurshid Ahmed Vs St. of J & K (2018) 7 SCC
429

9. Mohd. Rojali Ali & ors Vs St. of Assam, (2019)
19 SCC 567

10. St. of Raj. Vs Kalki .(1981) 2 SCC 752 : 1981
SCC (Cri) 593

11. Amit Vs St, of U.P. [(2012) 4 SCC 107 :
(2012) 2 SCC (Cri) 590]

12. Gangabhavani Vs Rayapati Venkat Reddy
[(2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182]

13. Ganapathi Vs St. of T.N. [(2018) 5 SCC 549 :
(2018) 2 SCC (Cri) 793]

14. Kulwinder Singh & anr. Vs St. of Punj,
(2015) 6 SCC 674

15. Surinder Kumar Vs St. of Punj., AIR 2020
Supreme Court 303
(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. Heard Sri Pankaj Kumar Asthana,
learned Amicus Curiae for the appellant,
learned A.G.A. for the State and perused
the record.

2. The present appeal is filed
challenging the judgement dated 18th
February, 1983 passed by the Special and
Additional Sessions Judge, Ghazipur in
Sessions Trial No. 143 of 1982 (State Vs.
Kanta and others), whereby the Appellant -
Kanta has been convicted under Section
304 of the IPC and has been sentenced for
three years rigorous imprisonment under
Section 304 (II) of the IPC.
8 All. Kanta Vs. State
621

3. As per the prosecution case, on
27th October, 1981, at about 11:00 a.m.,
complainant - Chandrajeet lodged a First
Information Report at Police Station
Qasimabad, District Ghazipur being Case
Crime No. 161 under Section 304 of the
IPC against Kanta Yadav (Appellant),
Rama Shankar Yadav and Sudarshan. The
prosecution
case
as
per
the
First
Information Report is to the effect that the
complainant was resident of Village
Bhatpura under Police Station Qasimabad.
On 26th October, 1981, at about 12 noon,
there was heated argument between the
complainant and his nephew Sudarshan
with regard to selling of agricultural land
jointly belonging to the complainant and
his nephew Sudarshan. The nephew of the
complainant was selling the agricultural
land and the complainant was asking him
not to sell the land and there was heated
argument between them and even abusive
language was used. In the meantime, the
Appellant - Kanta Yadav and Rama
Shankar Yadav who are sympathisers of
Sudarshan came and started abusing the
complainant in favour of Sudarshan and
when the complainant asked them not to
use abusive language then the mother of
Laxmi Shankar came to defuse the
situation. Sudarshan caught the mother of
Laxmi Shankar and Rama Shankar caught
the complainant. Thereafter, Appellant -
Kanta Yadav took ''Faruhi' in his hand to
assault the complainant, however, Laxmi
Shankar came in between to save the
complainant and as such ''Faruhi' hit
Lakshmi Shankar on his head. Laxmi
Shankar on being hit on the head fell down
and was taken to Dr. Shreekant who gave
him first aid and thereafter Laxmi Shankar
was talking normally and as such the
complainant thought that he was out of
danger and did not take him to hospital. At
about 11:00 p.m. Laxmi Shankar died on
account of injury. As the death occurred in
the late night as such the police could not
be informed and the First Information
Report was lodged on 27th October, 1981.

4. The First Information Report was
scribed by Ram Chandra, son of Sri Kishun
and the same was lodged as Case Crime
No. 161 under section 304 IPC. The
Panchayatnama of the deceased (Laxmi
Shankar) was held on 27th October, 1981
and according to the Panchayatnama the
death of the deceased has occurred on
account of head injuries.

5. The post-mortem examination of
the deceased was held on 28th October,
1981 at 1:45 p.m. The post-mortem
examination was conducted by Dr. K.K.
Srivastava. As per the post-mortem report,
the deceased died due to head injury caused
by anti-mortem injury no 1. The deceased
sustained the following external injuries as
per the post-mortem report :-

"1. Horizontal incised wound
5cm x 1cm x brain deep on the left side of
skull, 8 cm above the root of left ear. Blood
clot and a little brain substance present.
The wounds painted yellow and is
unstitiched."

6.

After
investigation,
the
Investigating Officer has submitted a
chargesheet against the accused person
under Section 304 IPC. The trial court on
3rd December, 1982 framed charge against
the appellant under Section 304 IPC. It is to
be noted that the charge against co-accused
Ramashankar and Sudarshan was also
framed under Section 304 read with section
34 IPC. However in the impugned
judgment, the aforesaid two accused person
namely Ramashankar and Sudarshan have
been acquitted of the charge under Section
622 INDIAN LAW REPORTS ALLAHABAD SERIES
304 read with Section 34 IPC. The
Appellant denied the charges and claimed
to be tried.

7. The prosecution produced five
witnesses in support of the prosecution case
:-

a)
Chandrajeet
(P.W.-1)
:
Chandrajeet is the informant and the
eyewitness of the alleged incident. He has
stated before the trial court that he is a
resident of Village Bharpura. The door of
his house is towards east. Adjacent to his
house is Neem tree and Mariaya. In the
north of his house, the house of
Shambhoo and Sudama exists. He has
stated that they are brothers and their
names
are
Kishun,
Doodhnath,
Chandrajeet and Shiv. The son of Shri
Kishun is Ram Chander (Scribe of FIR).
Laxmi Shankar - deceased is son of his
brother Shiv. Rama Shankar is nephew of
accused-appellant Kanta. He has also
stated that Kanta and Rama Shankar are
friend of Sudarshan. He has further
deposed that in the village consolidation
operation has been concluded. Joint Chak
was
carved
out
in
the
name
of
complainant and his brothers. Sudarshan
wanted to sell the agricultural land and
the complainant did not want Sudarshan
to sell the joint ownership land. About 14
to 15 months prior to the deposition there
was
heated
arguments
and
abusive
language used between the complainant
and Sudarshan with regard to the selling
of the agricultural field, in front of the
house of the complainant and in the
meantime the co-accused Rama Shankar
and Kanta came to the aforesaid place
and started using abusive language and
the witness asked them not to use abusive
language and thereafter Laxmi Shankar
and his mother came to the place and
Kanta hit Laxmi Shankar with ''Faruhi' on
his head. It is further stated that the
''Faruhi' was used by Kanta to attack the
complainant, however, the same hit
Laxmi Shankar as he tried to save the
complainant. The ''Faruhi' hit the head of
Laxmi Shankar. On receiving injuries on
the head, Laxmi Shankar fell down and
deceased was provided medical aid by
Dr. Shreekant and Laxmi Shankar was
speaking but later on his condition
became serious and he died at 11:00 p.m.
in the night. He further stated that the
First Information Report was scribed by
his nephew Ramchandra on the dictation
of the complainant. The written report is
Exhibit Ka-1.

b) Dr. K.K. Srivastava (P.W.-2) :
The said witness has stated that on 28th
October, 1981 he was posted at Sadar
Hospital Ghazipur. At about 1:45 p.m. the
body of the deceased Laxmi Shankar was
brought by Sepoy Hardev Singh. He has
conducted the post-mortem of the deceased
on the said day and the following injuries
were found on the body of the deceased :-

"1. Horizontal incised wound
5cm x 1cm x brain deep on the left side of
skull, 8 cm above the root of left ear. Blood
clot and a little brain substance present.
The wounds painted yellow and is
unstitiched."

He has further deposed that the
deceased would have died on 26th October,
1981 at 11:00 p.m. and has proved the postmortem report being Exhibit Ka-2. He has
further stated that the injuries could have
been sustained by ''Faruhi'.

c) Banarsi (P.W.-3) : the said
witness was declared hostile by the trial
court
as
initially
the
said
witness
8 All. Kanta Vs. State
623
corroborated the prosecution case however
later on he has stated that he reached after
the occurrence.

d) H.C. Shri Niwas Mishra
(P.W.-4) : The said witness has stated that
he was posted at the concerned police
station as Head Constable. He has further
submitted that he had received the First
Information Report being Exhibit Ka-1. On
the basis of the aforesaid First Information
Report, he had prepared Chik FIR and
same was marked as Exhibit Ka-3. The said
witness has proved the First Information
Report.

e) Suryabali Singh (P.W.-5) : The
said witness has stated that in October 1981
he was posted as Station House Officer,
Police Station - Qasimabad. On 26th
October, 1981 at 11.00 a.m. he was present
at the police station when the FIR was
lodged. The statement of the informant was
recorded on the same day. He reached the
place of occurrence at 1:20 p.m. The
Panchayatnama of the deceased was done
on the same day. The said witness has
proved the contents of the Panchayatnama
as Exhibit Ka-
5. The body of the
deceased was sent for post-mortem. The
site plan of the incident was prepared on
27th October, 1981. The chargesheet was
filed against the said accused.

8. It is submitted on behalf of the
learned Amicus Curiae that the Prosecution
Witness No. 1 has stated that the deceased
sustained injury by ''Faruhi' which was
made of wood but he could not know about
''Faruhi' after the incident and as such the
presence of Prosecution Witness No. 1 on
the spot is doubtful. It is to be noted that
the place of occurrence was a public place
and as per the statement of the Prosecution
Witness No. 1 the ''Faruhi' was lying at the
place of occurrence and the aforesaid was
not brought by the accused person. After
the alleged incident, the deceased was
taken for medical aid by the Prosecution
Witness No. 1 and as such the fact that the
aforesaid witness has no knowledge with
regard to whereabouts of the ''Faruhi' after
the occurrence will not demolish the
prosecution case where the testimony of the
Prosecution Witness No. 1 is trustworthy
and reliable. It is further submitted by
learned
Amicus
Curiae
that
during
investigation ''Faruhi' (weapon used for
assault) was not recovered from the place
of occurrence by the Investigating Officer.
It is to be noted that ''Faruhi' was taken by
the accused person from the place of
occurrence and was not brought by the
accused person with premeditated mind.
The alleged occurrence took place on 26th
October, 1981 at 12:00 noon and the death
of the deceased occurred on the same day
at 11:00 p.m. and the First Information
Report was lodged on 27th October, 1981
and thereafter the Investigating Officer
visited the site on 27th October, 1981 at
12:00 noon and prepared the site plan. The
place of occurrence was a public place and
as such the scene of occurrence would have
changed and on the aforesaid grounds, the
prosecution case cannot be rejected. It is
also to be noted that where the prosecution
evidence is otherwise reliable mere nonrecovery of the weapon of assault would be
of no consequence.

9. It is further submitted by learned
Amicus Curiae on behalf of the appellant
that no blood was found on the spot where
the incident is alleged to have occurred and
as such the manner in which occurrence has
taken place is highly doubtful. He submits
that as per the prosecution case the ''Faruhi'
was wielded on the deceased and as a result
of the same, the deceased suffered injuries
624 INDIAN LAW REPORTS ALLAHABAD SERIES
including injuries in the head. He submits
that from perusal of the injuries sustained
by the deceased would indicate that the
blood would have oozed out from the
injury sustained by the deceased. However,
the Investigating Officer has neither
declared the spot where the blood stains
were found in the site plan nor any blood
stain soil was recovered from the place of
occurrence and the same is indicative of the
fact that the manner in which the
occurrence
has
been
stated
by
the
prosecution to have taken place is highly
doubtful. It is to be noted that the place of
occurrence is a public place and the
incident is alleged to have taken place on
26th October, 1981 at 12:00 noon and the
First Information Report was lodged on
27th October, 1981 and thereafter the
Investigating Officer has visited the place
of occurrence on 27th October, 1981 i.e.
after 24 hours of the alleged occurrence.
The aforesaid time gap is of material
significance as the place of occurrence was
a public place and the scene of occurrence
would have changed with the lapse of time.
It is further to be noted that the Proseuction
Witness No. 1 in his testimony has stated
that the blood stains were there on the soil
of place of occurrence. However, he has
stated that the blood was licked by the local
dogs and as such the same was not found
when the Investigating Officer visited the
place of occurrence. It is to be noted that
the absence of blood on the spot is of no
consequence in the facts and circumstances
of the case where there is no doubt with
regard to actual occurrence having taken
place and about the place where it took
place. It is emerging from the record that
the place was an open public place
accessible to the public at large and
plausible explanation has been given by
Prosecution Witness No. 1 with regard to
non-availability of blood stains when the
Investigating Officer visited the place of
occurrence and as such the prosecution
story cannot be discarded on the aforesaid
ground. In Narendra Nath Khaware Vs.
Parasnath Khaware and others, (2003) 5
SCC 488, the Apex Court has taken note
that where the place of occurrence was a
courtyard open to sky and it was a rainy
day, the blood stains could have washed
away and as such non-recovery of blood
stains from the place of occurrence will be
of no consequence. In Hari Har Singh and
others Vs. The State of U.P., (1975) 4 SCC
148, the Apex Court has observed that
where the place of incident was a public
place, by trampling of the feet of the
passers-by, stains of blood must have
vanished and as such the Apex Court has
held that the non-recovery of the blood
stains from the place of occurrence is of no
consequence. The Apex Court in Gaya
Yadav and others Vs. State of Bihar and
others, (2003) 9 SCC 122 has taken note
that the incident had taken place in a public
place and as such the trail of blood would
get disintegrated when the incident had
occurred at about 7:45 p.m. and the
Investigating Officer arrived at the place of
incident only at 11:30 p.m. and as such, the
Supreme Court has held that there would be
no trail of blood left on the arrival of the
Investigating Officer.

10. In State of Rajasthan Vs.
Satyanarayan, (1998) 8 SCC 404 has held
as under :-

"7. Merely because no blood was
found near the house of the respondent, it
cannot be said that no incident took place
there. The fact that Kesar Lal had received
a knife blow near his house was admitted
by the accused though according to him the
knife was with PW 2- Satyanarayan and not
with him. As the trial court has pointed out,
8 All. Kanta Vs. State
625
the place was a public road and there was a
lot of traffic on that road. That could have
been the reason why no blood was found
when the spot panchnama was made after a
few
hours.
Moreover,
the
evidence
discloses that intestines of Kesar Lal had
come out and that could have blocked the
flow of much blood. Some blood was
absorbed by the clothes. Therefore, the
circumstances that not sufficient blood was
noticed when the spot panchnama was
made should not have been utilised by the
High Court for holding that the prosecution
version was not correct and that the defence
version was more probable."

11. In Ram Swaroop and others Vs.
State of U.P., (2000) 2 SCC 461 has held
as under :-

"12. According to the learned
counsel for the appellants, as no blood had
collected or found on the platform, it is a
serious infirmity in the case for the
prosecution. This point was also urged
before the High Court and the High Court
rightly rejected this point on the ground
that the victims were immediately taken to
the police station and people were also
moving here and there at the place of the
occurrence.
Therefore,
by
the
time
investigating officer went to the place, even
if blood had fallen on the ground, the
officer could not have collected the blood."

12. It is further argued by the learned
Amicus Curiae on the behalf of the appellant
that the injury could have been sustained
from ''Gandasa' and the prosecution case that
the injury was sustained from ''Faruhi' is
highly doubtful. It is undisputed that Laxmi
Shankar died due to head injury and the
Prosecution
Witness
No.
2-Dr.
K.K.
Srivastava has deposed that Laxmi Shankar
died due to head injury sustained and his
death was possible on 26th October, 1981, at
about 11:00 p.m. The post-mortem report
(Exhibit Ka-2) shows that Laxmi Shankar
had a horizontal incised wound which was 5
cm x 1 cm x brain deep and the Prosecution
Witness No. 2 has further deposed that he has
not seen the ''Faruhi' but if it is a sharp
instrument, the injury can be caused by it.
The Prosecution Witness No. 1 and informant
has stated that ''Faruhi' was wielded by the
appellant and the deceased Laxmi Shankar
had sustained the injuries by ''Faruhi'. It is to
be noted that in ''Faruhi' the blade is attached
horizontally to the main handle which is
generally a small ''lathi' and in ''Gandasa' the
blade is vertical and parallel to the ''lathi' in
which it is attached. The incised wound could
not have been caused by ''Gandasa' when the
assault is made from the front. It is further to
be noted that the Prosecution Witness No. 2
has deposed that the bone was not found cut
but it was fractured and the aforesaid facts
and circumstances exclude the possibility of
use of ''Gandasa' as has been argued by the
learned Amicus Curiae for the appellant. The
fact that the Prosecution Witness No. 2 has
stated that the injury in question was more
probable by ''Gandasa' does not appears to be
correct as the skull of the deceased was found
fractured and the Prosecution Witness No. 2
has himself stated that he has not seen the
''Faruhi'. The trial court has recorded the
finding that the injury in question was caused
by ''Faruhi' and the same is supported by
deposition of Prosecution Witness No. 1Chandrajeet and PW-2 - Dr K.K. Srivastava
and as such there is no perversity in the
finding of the trial court. The aforesaid
submission of learned Amicus Curiae for the
Appellant is not tenable in law.

13. It is submitted on behalf of the
learned Amicus Curiae for the appellant
that there is delay in lodging the First
Information Report and the prosecution
626 INDIAN LAW REPORTS ALLAHABAD SERIES
case should be rejected on this ground
alone. It is to be seen that the occurrence
took place on 26th October, 1981 at about
12:00 noon and the First Information report
was lodged on 27th October, 1981 at 11.00
a.m. As per the First Information Report
the distance of the police station and the
place of occurrence is about eight miles. It
is further to be noted that as per the
prosecution case after the alleged incident
the deceased was taken for medical aid to a
local doctor and the informant thought that
since the deceased was talking normally, he
was out of danger. However, the deceased
died in the night of 26th October, 1981 at
11:00 p.m.
and
thereafter
the
First
Information Report has been lodged on
next day morning at 11.00 am. It is further
to be noted that the complainant had to
implicate his nephew and person with
whom he had no direct enmity and the
manner in which the occurrence have taken
place and even subsequent thereof that the
injured was taken for medical aid and was
normal for sometime after providing
medical aid and thereafter has died at 11.00
p.m. in the night. There is no inordinate
delay and the delay has been duly
explained by the prosecution and as such
the argument of the learned Amicus Curiae
for the appellant is not tenable under law.

14. It is further submitted by learned
counsel for the Appellant that the First
Information
Report
was
prepared
in
consultation with the police and as such the
same should be ignored. The Prosecution
Witness No. 1-Chandrajeet has testified
that he had dictated the First Information
Report at his house after arrival of the
police but not at the dictation of the police.
The Prosecution Witness No. 4-H.C. Sri
Niwash Misra had deposed that the First
Information Report was made over at the
police station and it was not prepared at the
dictation of the police. The scribe of the
First Information Report was Ramchander.
Even if the First Information Report was
scribed after arrival of the police that by
itself would not make the First Information
Report as has been prepared at the dictate
of the police and the trial court has
recorded a specific finding that the First
Information Report was not lodged at the
dictation or instigation of the police and no
fault is found with the aforesaid finding of
the trial court.

15. It is further submitted that there is
no independent witness of the alleged
occurrence. It is submitted that Prosecution
Witness No. 1-Chandrajeet was relative of
the deceased and as such there being no
independent
witness
of
the
alleged
occurrence, the prosecution story is not
reliable and the evidence related witness is
not trustworthy and is liable to be rejected.

16. 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 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. 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,
8 All. Kanta Vs. State
627
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.

17. 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
relation 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.

18. 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..."

19. In Khurshid Ahmed Vs. State of
Jammu and Kashmir (2018) 7 SCC 429,
the 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."

20. The Apex Court in Mohd. Rojali
Ali and others Vs. 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 [(1981) 2
SCC 752 : 1981 SCC (Cri) 593] ; Amit v.
State of U.P. [(2012) 4 SCC 107 : (2012) 2
SCC (Cri) 590] ; and 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. [(2018) 5 SCC 549 : (2018)
2 SCC (Cri) 793], in the following terms,
by referring to the three-Judge Bench
decision in State of Rajasthan v. Kalki
[(1981) 2 SCC 752 : 1981 SCC (Cri) 593] :
(Ganapathi case [(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;
628 INDIAN LAW REPORTS ALLAHABAD SERIES
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 [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)
[(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
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." "

21. The Apex Court in Kulwinder
Singh and another Vs. 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.

22. It is held in recent judgement
rendered in Surinder Kumar Vs. 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.

23. In view of the law laid down by
the Apex court, the plea of the Appellant
that there is no independent witness to
support the prosecution case is not tenable
in law and is liable to be rejected.

24. This court does not find any
illegality, infirmity and perversity in the
impugned judgement passed by the trial
court
convicting
and
sentencing
the
Appellant for the offence. The conviction
8 All. Ajeet Kumar Vs. State of U.P.
629
and sentence awarded by the trial court is
in accordance with law and needs no
interference.

25 . As a result, the present appeal
lacks merit and is dismissed.

26. Registrar General of this Court is
directed to pay an honorarium of Rs.
20,000/- to Sri Pankaj Kumar Asthana,
learned Amicus Curiae for rendering
effective assistance in the appeal.

27. The bail bond of the Appellant
stands cancelled and the Appellant is
directed to surrender before the court below
for serving the sentence as per trial court
judgment.

28. Let the lower court record be
transmitted back to court below along with
a copy of this order.
----------
(2022) 8 ILRA 629
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 608 of 2014
WITH
Criminal Appeal No. 34 of 2019
(U/S 372 Cr.P. C.)

Ajeet Kumar ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Satyaveer
Singh,
Sri
Ram
Singh
Kushwaha, Sri Ratan Singh

Counsel for the Opposite Party:
Govt. Advocate, Sri Satya Dheer Singh
Jadaun

Criminal Law - Indian Penal Code,1860 -
Section
302
&
498-A
-

Dowry
Prohibition Act; 1961 - Section 3/4 -
Indian Evidence Act, 1872 - Section 113B- No direct evidence except chargesheet -
not
proved
beyond
reasonable
doubtspresumption u/s 113-B of Indian Evidence Act
does not arise. Criminal Appeal No.608 of
2014- allowed and Criminal Appeal No.34 of
2019.

Appeal dismissed. (E-9)

List of Cases cited:

1.Sharad Birdichand Sarda Vs St. of Mah., AIR
1984 SC 1622,

2.Sakatar Singh & ors. Vs St. of Har. : AIR 2004
SC 2570

3.Kalyan Kumar Gogoi Vs Ashutosh Agnihotri &
anr. : AIR 2011 SC 760

4.Mukul Rani Varshhei Vs D.D.A. : (1995) 6 SCC
120

5.Standard Chartered Bank Vs Andhra Bank
Finance Services Ltd. : (2006) 6 SCC 94 (Full
Bench)

6.Madhu Vs St. of Kar., 2014 (84) ACC 329
(SC);

7.Prithipal Singh Vs St. of Pun., 2012 (76) ACC
680 (SC);

8.Mani Kumar Thapa Vs St. of Sikkim, AIR 2002
SC 2920

9.Lal Bahadur & ors. Vs St. of (NCT of Delhi) :
(2013) 4 SCC 557;

10.Ram Gulam Chaudhary Vs St. of Bih. : 2001
(2) JIC 986 (SC)

11.Satvir Singh Vs St. of Pun. : 2001 Cr.L.J.
4625,