# Karan Singh (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 664
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Criminal Appeal No. 2959 of 1984
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karan-singh-in-jail-v-state-of-u-p-48836
- **Pages:** 25

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 8- Motive- The motive has set
forth in the written information and thus
first information report, is, thus, proved
and is a relevant fact under Section 8 of
the Indian Evidence Act, 1872.
Although in a case of direct evidence, it is not
mandatory for the prosecution to prove the
motive but where the prosecution succeeds in
proving the motive, the same only fortifies the
case further against the accused.

Indian Evidence Act, 1872- Section 5-
The doctrine of "falsus in uno falsus in
omnibus" is not applicable in Indian
Judicial System, the court has to separate
grain from chaff and apprise in each case
as to what extent the evidence is
acceptable. If separation cannot be done,
the evidence has to be rejected. The
witnesses may be speaking untruth in
some respect and it has to be apprised in
each case as to what extent the evidence
is worthy of acceptance. Merely because
in some respects the court considers the
same to
be insufficient
for
placing
reliance on the testimony of a witness, it
does not necessarily follow as a matter of
law that it must be disregarded in all
respects as well.

Settled
law
that
some
falsehoods
or
contradictions in the testimony of a witness will
not render his entire statement false and the
court may rely upon the relevant parts of the
testimony, but where the truthful and relevant
parts are inextricable, then the evidence has to
be rejected.

Indian Evidence Act, 1872 - Section 134-
Merely being relative of the deceased he
can not be said to be interested for any
otherwise reason to get the accused
persons falsely implicated-Reliance can
be based on the solitary statement of a
witness, if the court comes to the
conclusion that his statement is the true
and correct version of the case of the
prosecution-In
the
absence
of
any
contradiction in the statement of the sole
witness as to the mode and manner
adopted
by
the
accused
with
the
weapons used by them which stood
proved with further corroboration from
the post-mortem report and the evidence
of the medical witness P.W.12, Dr. Suresh
Sakalya it has to be accepted.
6 All. Karan Singh Vs. State of U.P.
665
It is the quality and not the quantity of evidence
which is important. Where the evidence of a
solitary witness is truthful and credible, the
same may be sufficient for securing the
conviction and cannot be discarded only
because the witness happens to be related to
the deceased as a related witness cannot be
said to be an interested witness. (Para 17, 39,
44, 47, 68, 70, 75)

Criminal Appeal rejected. (E-3)

Judgements/Case Law relied upon:-

## Text

_Characters 0–39,898 of 81,690. This is a partial read: ask again with offset=39898 for what follows._

664 INDIAN LAW REPORTS ALLAHABAD SERIES
sentence passed by the trial court. No
intereference is required. The appeal
deserves to be dismissed.

70. Consequently, the appeal against
the judgment of conviction and order of
sentence in Session Trial No.15 of 1980
(State Vs. Aman Singh) and Session Trial
No.23 of 1980 (State Vs. Kishora) under
Section 302/149, 147 and 148 I.P.C. is
hereby dismissed.

71. Appellants are in jail. Certify this
judgment to the court below for further
necessary action and compliance. The
lower court record be sent back to the
District Judgeship, Lalitpur immediately
for further action.
----------
(2022)06ILR A664
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No. 2959 of 1984

Karan Singh ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri N.K. Saxena, Sri A.N. Misra, Sri G.S. Hajela,
Sri Zafar Abbas, Sri Satyendra Kumar Mishra

Counsel for the Respondent:
A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 8- Motive- The motive has set
forth in the written information and thus
first information report, is, thus, proved
and is a relevant fact under Section 8 of
the Indian Evidence Act, 1872.
Although in a case of direct evidence, it is not
mandatory for the prosecution to prove the
motive but where the prosecution succeeds in
proving the motive, the same only fortifies the
case further against the accused.

Indian Evidence Act, 1872- Section 5-
The doctrine of "falsus in uno falsus in
omnibus" is not applicable in Indian
Judicial System, the court has to separate
grain from chaff and apprise in each case
as to what extent the evidence is
acceptable. If separation cannot be done,
the evidence has to be rejected. The
witnesses may be speaking untruth in
some respect and it has to be apprised in
each case as to what extent the evidence
is worthy of acceptance. Merely because
in some respects the court considers the
same to
be insufficient
for
placing
reliance on the testimony of a witness, it
does not necessarily follow as a matter of
law that it must be disregarded in all
respects as well.

Settled
law
that
some
falsehoods
or
contradictions in the testimony of a witness will
not render his entire statement false and the
court may rely upon the relevant parts of the
testimony, but where the truthful and relevant
parts are inextricable, then the evidence has to
be rejected.

Indian Evidence Act, 1872 - Section 134-
Merely being relative of the deceased he
can not be said to be interested for any
otherwise reason to get the accused
persons falsely implicated-Reliance can
be based on the solitary statement of a
witness, if the court comes to the
conclusion that his statement is the true
and correct version of the case of the
prosecution-In
the
absence
of
any
contradiction in the statement of the sole
witness as to the mode and manner
adopted
by
the
accused
with
the
weapons used by them which stood
proved with further corroboration from
the post-mortem report and the evidence
of the medical witness P.W.12, Dr. Suresh
Sakalya it has to be accepted.
6 All. Karan Singh Vs. State of U.P.
665
It is the quality and not the quantity of evidence
which is important. Where the evidence of a
solitary witness is truthful and credible, the
same may be sufficient for securing the
conviction and cannot be discarded only
because the witness happens to be related to
the deceased as a related witness cannot be
said to be an interested witness. (Para 17, 39,
44, 47, 68, 70, 75)

Criminal Appeal rejected. (E-3)

Judgements/Case Law relied upon:-

1. Prabhash Kumar Vs St. of Har. (2013) 82 ACC
( SC) 401

2. Iyappa & ors. Vs St. of T.N ( 2011) 72 ACC (
SC) 988

3. Zahira Habibullah Sheikh & anr. Vs St. of Guj.
( 2006) 3 SCC 374

4. Sheo Shankar Singh Vs St. of Jhar. & anr.
(2011) 3 SCC 654

5. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj.
(1983)3 SCC 217

6. Shivaji Sahab Rao Bobade Vs St. of Maha. (
1973) 2 SCC 793 (801)

7. Mrinal Das Vs St. of Tripura (2011) 9 SCC 479

8. Siddharth Vashisth @ Manu Sharma Vs St. of
N.C.T., Del. ( 2010) 9 SCC 479

9. Babu @ Balasubramaniam & anr. Vs St. of
T.N ( 2013) 8 SCC 60

10. Ashok Kumar Chaudhary Vs St. of Bih. (
2008) 12 SCC 173

11. Sucha Singh Vs St. of Punj. ( 2003) 7 SCC
643

12. Vijendra Singh Vs St. of U.P with Mahendra
Singh Vs St. of U.P ( 2017) 11 SCC 129

13. Shyam Babu Vs St. of U.P. ( 2012) 8 SCC
651

14. Lallu Manjhi Vs St. of Jhar. AIR 2003 SC 254
15. Veer Singh Vs St. of U.P. ( 2014) 2 SCC 455

16. Brahm Swaroop & anr. Vs St. of U.P ( 2011)
6 SCC 288

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The instant criminal appeal is
directed against the judgment of conviction
and order of sentence dated 27.09.1984
passed by the Additional District and
Sessions Judge, Lalitpur in Session Trial
No.47 of 1983 (State Vs. Karan Singh),
convicting and sentencing the appellant
under Section 302, 148, 149 of the Indian
Penal
Code,
1860
to
undergo
life
imprisonment and rigorous imprisonment
for
one
year
respectively
(Life
imprisonment under Section 302/149 I.P.C.
and rigorous imprisonment under Section
148 I.P.C.). From the same Case Crime
No.53 of 1979, under Section 396 I.P.C.,
Police Station Saujana, District Lalitpur,
three sessions trial were instituted i.e.
Sessions Trial No.15 of 1980 (State Vs.
Aman Singh & Others), Sessions Trial
No.23 of 1980 (State Vs. Kishora) and
Sessions Trial No.47 of 1983 (State Vs.
Karan Singh)

Factual Matrix

2. The prosecution case as emerged
from the written information given by the
first informant, Kashiram on 22.11.1979 in
the
Police
Station-
Saujana,
District
Lalitpur, the evidence on record both the
documentary and oral, are stated briefly as
follows:-

The first informant Kashiram
alongwith his real brother Ramphal both
S/o Motilal R/o Village Agodi, Police
Station Saujana, District Lalitpur went to
their agricultural field of 'jowar' to take
666 INDIAN LAW REPORTS ALLAHABAD SERIES
care and protection of the crops. The first
informant (Kashiram) handed over his
licensed gun no.1516 of 12 bore with 25
cartridges to his brother ''Ramphal' and
went himself into the field to cut grass.
After cutting the grass at about 5:00 p.m. in
the evening, when the day light was still
existing, the first informant lift the bundle
of grass and moved on the way to his house
with his brother ''Ramphal' ahead of him.
About ten paces away from their field on
the way to their home, when they reached
near the agricultural field of Baldu Lodhi,
the accused persons Karan Singh S/o
Majboot Singh Thakur armed with axe
(kulhari), Aman Singh S/o Majboot Singh
Thakur armed with sickle (hasiya), Kishora
S/o Kamatua Nai armed with axe (Kulhari),
Hallu S/o Kamatua Nai armed with axe, all
residents of Agodi Police Station Saujana,
District Lalitpur with brother-in-law of
Kishora namely ''Bhaiyan Nai' R/o Village
Rangaon,
Police
Station
Mandwara,
District Lalitpur, came out from the crops
of 'jowar' in aforesaid field of Baldu Lodhi.
They caught hold the informant's brother
Ramphal and tossed him on the earth. They
inflicted blows of axe (Kulhari) and sickle
(Hasiya) on him. Informant's brother
Ramphal
began
to
scream
and
the
informant was also raising alarm for help,
upon which Pooran, Pragi, Jagan, Sunnu,
all residents of Village Agodi rushed to the
spot, but after killing Ramphal, all the five
assailants fled from the spot snatching the
licensed gun, cartridges and the wrist watch
from the hands of the deceased. When the
witnesses began to gather near the spot of
the incident, Kishora Nai made a fire from
the licensed gun of the informant. It was
stated that the dead body of Ramphal
(deceased) i.e. the informant's brother was
lying in the agricultural field of Baldu
Lodhi and some of the villagers stayed near
the dead body.

This written information dated
22.11.1979 was given by the informant in
the police station Saujana at about 8:00
a.m. The first information report was
lodged accordingly, on the basis of written
information under Section 396 I.P.C. The
distance of the spot of the incident from the
Police Station Saujana is shown as about 13
k.m. in the F.I.R. towards South-West from
the police station.

After registering the F.I.R., police
reached at the spot of the incident and
started the proceeding of inquest, prepared
site map on the orientation of witnesses,
collected the blood stained soil and plain
earth soil from the spot of the incident,
prepared memo thereof and sent the body
for post-mortem. After getting the post
mortem report, charge sheet was submitted
before the court.

3. All the five accused were charged
with the offence under Section 147 I.P.C.
for having formed an unlawful assembly
alongwith another associates on 21.11.1979
at about 5:00 p.m. near the agricultural
field of one Baldu Lodhi having crops of
'jowar', situated in village Agodi, Police
Station- Saujana, District Lalitpur, with a
common object whereof to commit the
murder of Ramphal (brother of the first
informant Kashiram) and in furtherance of
their common object of that unlawful
assembly, the accused persons allegedly
had committed the offence of rioting. They
were
further
charged
under
Section
302/149 I.P.C. as they committed the
murder of Ramphal intentionally causing
his death on the relevant date and time of
the incident on the spot of the incident in
furtherance of the common object of their
unlawful assembly. The accused persons
were also charged under Section 307/149
I.P.C. for having attempted to commit the
6 All. Karan Singh Vs. State of U.P.
667
murder of Kashiram by firing at him in
pursuance of their common object on the
relevant date and time on the spot of
incident. They were also charged under
Section 396 I.P.C. for having committed
dacoity as they allegedly snatched the
licensed gun alongwith 25 cartridges and
automatic wrist watch and in the course of
commission of the dacoity, murder of
''Ramphal' was committed by one or some
of them. Further, three accused Aman
Singh, Hallu and Kishora were charged
under Section 148 I.P.C. also for being
armed with deadly weapons namley axes
and sickle at the time of committing the
offence of rioting.

4. Kishora, the accused in Sessions
Trial No.23 of 1980 was charged under
Section 379 I.P.C. for having committed
theft of the gun bearing no. 1516 alongwith
25 cartridges and automatic wrist watch by
taking out from the hadns of the deceased
Ramphal on the relevant date and time at
the spot of incident.

5. The prosecution proposed the
following witnesses for oral examination
and documents to prove the case before the
trial court and documents given herein
below in a table for the purpose of easy
reference:-

P.W.-1, Chutti
P.W.-2,
Pooran
Ex. Ka-12- Statement of
Pooran
P.W.-3, Sunu
Ex. Ka-11- Statement of
Sunu
P.W.-4,
Bichitra
Kumar Gupta
Proved Ex. Ka-23- Extract
Statement
of
Jagan
Proved Ex. Ka-24- Extract
Statement
of
Puran
Proved Ex. Ka-25- Extract
Statement
of
Pragi
Proved Ex. Ka-26- Extract
Statement of Sunnu
P.W.-5,
Kashiram
Proved the written report
Ex.
Ka.-1
Ex. Ka.-30, Statement of
Kashiram
P.W.-6, Surjan
Singh
Proved
Ex.
Ka-14/8-
Panchayatnama
Proved Ex. Ka-20- Site
plan
P.W.-7,
Lal
Singh

P.W.-8, Devi
Charan Shukla

P.W.-9,
Jai
Narain Dubey

P.W.-10,
Jagram Singh

P.W.-11, P.L.
Vishwakarma

P.W.-12,
Suresh
Sakalya
Proved the post mortem
report,
Ex.
Ka-25/3

Ex. Ka-8- Recovery memo
of blood stained and plain
earth.
Ex. Ka-9- Recovery memo
of
plastic
shoes.
Ex.
Ka-10-
Recovery
memo of ''Kanthi-Mala' &
Pen
Ex. Ka-13- Statement of
Pragi
Ex. Ka-21- Search memo
of
house
Ex. Ka-22- Search memo
of
house
Ex.
Ka-28/20-
Charge
668 INDIAN LAW REPORTS ALLAHABAD SERIES
Sheet
''Mool'
Ex.
Ka-29/19-
Charge
Sheet
''Mool'
Ex. Ka-31- Statement of
Jagan
Ex. Ka-32/26-Report of
Chemical
Examiner
Ex. Ka-33/27 - Report of
Chemical Examiner and
Serologist

6. As per the report of the Chief
Judicial
Magistrate,
Lalitpur
dated
28.03.2022, the sole appellant Karan Singh
is absconding.

7. Learned counsel Sri Satyendra
Kumar Mishra holding brief of Sri A.N.
Misra Advocate appeared on behalf of the
appellant. Sri Patanjali Mishra learned
A.G.A. for the State respondents argued the
prosecution case.

Arguments of the learned counsels.

8. Learned counsel for the appellant
contended that the incident as stated by
the prosecution witnesses is not as such
and the deceased was killed somewhere
else by some anonymous enemies earlier
to the alleged date of incident i.e.
21.11.1979. He further submitted that
even the presence of P.W.-5 (first
informant, Kashiram) is doubtful because
the first information report had been
lodged with extraordinary delay without
any plausible explanation. He contended
that as alleged in the First Information
Report, the incident of killing the
deceased ''Ramphal' occurred at 5:00 p.m.
on 21.11.1979, the spot of incident was
13 k.m. far away from the Police Station
but the First Information Report was
lodged at 8:00 a.m. on the next day i.e.
22.11.1979.

9. The next argument of the learned
counsel for the appellant is with regard to
impossibility
of
hiding
of
accusedappellant allegedly in the field of '''jowar'',
the crops whereof were more or less two
feet in height. He further drew the attention
towards the statement of P.W.-5 who stated
that the accused appeared out from the field
when the deceased reached near the ''med'
(boundary) of that field of '''jowar'', and
submits that the informant could see them
pouncing on the deceased. According to the
learned counsel for the appellant, hiding of
the
accused
between
the
crops
of
approximately 2 feet in height was quite
impossible.

10. Learned counsel for the appellant
further contended that evidence on record
reveals that the deceased ''Ramphal' was
member of a gang of dacoits and he might
have been killed in a bit to commit dacoity
at some other place or by some other rival
gangs or by the villagers. For the reason of
enmity, the first informant has taken undue
advantage to make false implication against
the accused-appellant. It is further argued
that when the deceased was having gun
with 25 cartridges, no one could muster
courage to attack him in the manner as
alleged in the F.I.R.

11. The motive is stated by the
informant
himself
in
the
written
information and the First Information
Report establishes the enmity between the
parties to the incident. Learned counsel for
the
appellant
emphasises
that
the
conviction is only based on suspicion,
raised by the informant against the
accused-appellant that the accused were
suspecting the hands of the deceased in the
killing of their family members in an earlier
incident. It is argued that the suspicion,
however, strong it may be can not take
6 All. Karan Singh Vs. State of U.P.
669
place of the facts established on the
evidences.

12. Learned counsel for the appellant
lastly argued that the prosecution evidence
itself raised doubt as to the killing of
deceased on some earlier date from the
alleged
date
of
incident
21.11.1979,
somewhere else and, thereafter, the dead
body was planted on the alleged spot of the
incident. The medical evidence (postmortem report) also corroborates the
oldness of the dead body of the deceased
alleged to have been killed on 21.11.1979
at about 5:00 p.m. Learned counsel
submitted
that
since
the
prosecution
remained unsuccessful in proving its case
beyond all reasonable doubts, therefore, the
conviction recorded by the trial judge and
the sentence awarded can not be sustained
in the eye of law.

13. Learned counsel for the appellant
added that the eye witnesses were planted
in the case falsely and for this reason which
they had turned hostile and did not support
the case of the prosecution. As such, the
evidence on record was not sufficient and
material for recording the conviction of the
the present accused-appellant.

14. In rebuttal, it is argued by the
learned A.G.A. that the contention of
learned counsel for the appellant as to the
doubt about the presence of P.W.-5 (first
informant) is not correct because his
presence
is
admitted
by
all
other
prosecution witnesses consistently and
without any contradiction. The prosecution
case which finds support from the oral
evidences of P.W.-5 which is un-haken.
Further, he argued that the arguments of the
learned counsel with regard to the false
implication and concocting a case by the
prosecution, is baseless. P.W.-5 in his
statement has explained satisfactorily about
the delay in lodging the F.I.R. He further
argued that the entire prosecution case is
well supported with the direct evidences of
eye witnesses and also the motive set forth
in the written information and the prompt
F.I.R. is well established.

15. Learned A.G.A. lastly drew the
attention towards the statement of the
prosecution witnesses who turned hostile
and contended that they were not under any
coercion,
fear
or
terror
while
their
statement under Section 164 Cr.P.C. was
recorded, as such, the statement of such
witnesses in the course of their examination
in the Court shall not be read as wholly
unworthy. The statement of such witnesses
to the extent of lagging support to the
prosecution shall be read being reliable as
corroboratory evidence. He further submits
that the principle of "falsus in uno falsus in
omnibus" does not apply in India. He
referred on the case laws Prabhash Kumar
Vs. State of Haryana1, Iyappa & Ors. Vs.
State of Tamil Nadu2 and Zahira
Habibullah Sheikh & Anr. Vs. state of
Gujarat3.

On the basis of above arguments,
learned A.GA. submitted that the impugned
judgment of conviction and order of
sentence is good in law and deserves to be
confirmed, no interference is required in
the impugned judgment under appeal, as
such, the appeal is liable to be dismissed.

Discussion

Motive

16. In Sheo Shankar Singh Vs. State
of Jharkhand and Anr.4, the principles for
the proof and relevance of motive in
establishing the guilt of the accused and its
670 INDIAN LAW REPORTS ALLAHABAD SERIES
varying importance in cases based on
circumstantial evidence and in those which
are based on the testimony of eye witnesses
has been discussed. Para ''15' of the said
judgment is being quoted hereunder:-

"15. The legal position regarding
proof of motive as an essential requirement
for bringing home the guilt of the accused
is fairly well settled by a long line of
decisions of this Court. These decisions
have made a clear distinction between
cases where prosecution relies upon
circumstantial evidence on the one hand
and those where it relies upon the
testimony of eye witnesses on the other. In
the former category of cases proof of
motive is given the importance it deserves,
for proof of a motive itself constitutes a link
in the chain of circumstances upon which
the prosecution may rely. Proof of motive,
however, recedes into the background in
cases where the prosecution relies upon an
eye-witness account of the occurrence.
That is because if the court upon a proper
appraisal of the deposition of the eyewitnesses comes to the conclusion that the
version given by them is credible, absence
of evidence to prove the motive is rendered
inconsequential.
Conversely
even
if
prosecution succeeds in establishing a
strong motive for the commission of the
offence, but the evidence of the eyewitnesses is found unreliable or unworthy
of credit, existence of a motive does not by
itself provide a safe basis for convicting the
accused. That does not, however, mean that
proof of motive even in a case which rests
on an eye-witness account does not lend
strength to the prosecution case or fortify
the court in its ultimate conclusion. Proof
of motive in such a situation certainly helps
the prosecution and supports the eye-
witnesses."

17. The suspicion of the accused
persons over Ramphal (deceased) of having
killed their family members is, however,
proved by the witness P.W.-5. In his crossexamination by the defence, he stated that
the criminal case with regard to the incident
of killing of the family members of the
accused appellant instituted against the
brother of the informant (Ramphal), the
deceased and his father. Police was
searching his brother (Ramphal) but he
could not be traced by them. Ramphal
ultimately surrendered alongwith other
''baghis' (dacoits) in District Chatarpur. He
also stated that he does not know about the
gang of dacoits to which the deceased
Ramphal belonged, however, in the murder
case, he was acquitted by the court
concerned.

Witness Jagan has also stated in
the cross examination that the parents of
the accused appellant Karan Singh were
murdered and father of the accused Hallu
and Kishora was also murdered. He further
stated
that
deceased
Ramphal
was
prosecuted for the above three murders
wherein he was acquitted. He further stated
that the said criminal case was running in
District Sagar.

Witness Pooran has also stated in
the cross-examination about the murder of
parents of accused Karan Singh, Aman
Singh and father of Kishora and Hallu in
village. He admitted that the accused
persons had a strong suspicion over the
deceased ''Ramphal' of having committed
their murder. This witness then stated that
he heard that the Ramphal (deceased) had
joined the gang of dacoit of ''Moni Ram
Sahai' and the people from the village were
witnesses in the murder case against
deceased Ramphal.
6 All. Karan Singh Vs. State of U.P.
671

Pragi stated that when the murder
of the parents of the accused appellants had
occurred, they were very young. He
himself also young age. As such, all
witnesses
Kashiram
(P.W.5)
Sunnu
(P.W.3), Jagan, Pooran (P.W.2) and Pragi,
even those who did not support the case of
the prosecution in toto and had supported
the fact constituting the motive behind the
killing of Ramphal. The motive has set
forth in the written information and thus
first information report, is, thus, proved and
is a relevant fact under Section 8 of the
Indian Evidence Act, 1872.

Relevant date and time of the
incident.

18. Though it is argued by the learned
counsel for the appellant that the evidence
on record shows that the deceased might
have been killed somewhere else prior to
the
alleged
date
of
incident
dated
21.11.1979 and the dead body was planted
maliciously by the first informant by reason
of enmity with the accused appellant. We
have gone through the evidences of P.W.-5
and as discussed above, it may be recorded
that there was no enmity between the first
informant Kashiram (P.W.-5) and the
accused appellant. Kashiram (P.W.-5), the
first informant himself stated that being the
villager of the same village, the accused
appellant and he were on normal terms of
visiting each other houses and talking to
each other. None of the witnesses of the
prosecution stated about the ''enmity', if
any, of Kashiram with the accused
appellant nor any suggestion of enmity had
been given to the first informant. So far as
enmity of the accused appellant with
deceased Ramphal is concerned, it is
established by evidence of prosecution
witnesses that the same was because of the
deceased being the accused in the murder
case of parents of the accused, who had
been acquitted. The arguments of the
learned counsel for the appellant of
planting of the dead body on the spot of the
incident by the first informant (P.W.-5) is
not acceptable. Particularly, when the spot
of the incident is proved satisfactorily by
all the witnesses of fact as well as the
formal witnesses also.

19. The doctor P.W.-12, Dr. Suresh
Sakalya had also not been confronted to
impeach him about his assessment that the
deceased might have died on 21.11.1979 at
about 5:00 p.m. in the evening. No
questions were put to him by the defence
about the condition of the dead body on the
date of the post-mortem examination so as
to relate the same to the oldness of the dead
body and to reach at the proximate time of
death prior to the established date and time
of the incident, i.e. on 21.11.1979 at about
5:00 P.M. It is, therefore, needless to
discuss on this point.

20. The accused persons, as the
written information itself reveals, are
related toh each other. The accused Karan
Singh and Aman Singh are real brothers,
sons of ''Majboot Singh Thakur', accused
Kishora and Hallu are real brothers, sons of
''Kamatua Nai', all residents of Village
Agodi where the incident had occurred and
first informant P.W.-5 resides. The accused
Bhaiyan Nai is related to Kishora and Hallu
being their brother-in-law (sister's husband)
who is resident of Village Rangaon, Police
Station Mandwara, District Lalitpur. P.W.-
5 in his examination-in-chief stated that the
father of accused Kishora and Hallu was
murdered and parents of Karan Singh and
Aman Singh were also murdered. They all
were suspecting ''Ramphal' to be the
perpetrator of the crime and, therefore,
hatched
enmity
with
the
deceased
672 INDIAN LAW REPORTS ALLAHABAD SERIES
''Ramphal'. Due to the suspicion, out of
vengeance, the accused had killed the
deceased Ramphal. In cross examination,
this witness stated at the very inception that
he is residing in village Agodi and during
his lifetime the parents of the accused
persons were killed. He further stated that
being local resident of same village, he had
conversation eventually with the accused
persons also. Accused persons also used to
visit the first informant P.W.-5, if need be
in connection with some work. As such,
P.W.-5 established that the accusedappellant had no enmity with him (P.W.-5).

About witnesses

21. Kashiram, P.W.5 is brother of the
deceased, Pooran (P.W.-2) and Sunnu
(P.W.3) are the eye witnesses. The first
informant ''Kashiram' who reported the
incident dated 21.11.1979 to the Police on
22.11.1979 at about 08:00 A.M. had been
examined by the prosecution as witness of
fact and eye witness of the incident. Pooran
(P.W.-2) and Sunnu (P.W.-3) were also
examined
as
eye
witnesses
by
the
prosecution. These three witnesses were
examined in Sessions Trial No.15 of 1980
(State Vs. Aman Singh & Others) and
Sessions Trial No.23 of 1980 (State Vs.
Kishora). A new witness namely Chutti
was also examined as prosecution witness
P.W.-1 in the case. P.W.-5 is real brother of
the deceased ''Ramphal' and, as such,
related witness. P.W.-2 and P.W.-3 are the
native villagers, owners of the agriculture
fields situated near and abutting the field of
Baldu, which is the place of the incident
dated 21.11.1979 occurred at about 05:00
P.M.
in
the
evening.
They
were
agriculturist having their field in the near
vicinity of the spot of the incident (the field
of Baldu).

22. We have gone through the
statement of P.W.-5 ''Kashiram' and do not
find any prior enmity of Kashiram himself
with any of the accused persons. Even
Kashiram stated that the accused persons
were on the normal terms of visiting and
conversing with him, if needed, in
connection with any work, as they were
residing since a long time in the same
village.

23. Learned counsel for the defence
has could not carve out any fact of
complaint of enmity of Kashiram with any
of the accused persons prior to the date of
the incident or any civil or criminal
litigation pending between them. No
question was put to the witness ''Kashiram'
so as to elicit his interestedness in falsely
implicating the accused persons for putting
them behind the bars.

24. Witness P.W.-1, P.W.-2, P.W.-3 and
P.W.-5 undoubtedly, as evidence came out
from the record, are rustic villager and
living in a milieu of a remote village
namely Agodi in District Lalitpur. They are
not highly educated, simply literate or even
illiterate.

25. So far as the delay of more than
12 hours in lodging the F.I.R. is concerned,
it is reasonably explained by the P.W.-5,
Kashiram that he did not go in the night to
lodge the report because of the fear of the
accused persons. The evidence of his fear
can be gathered from the evidence on
record.

26. The milieu of the village Agodi
and the life of the villagers there, may be
gathered from the evidences coming out
from the record. We can carved out the
same as below.
6 All. Karan Singh Vs. State of U.P.
673

(i) the spot of the incident in the
village Agodi was within the territorial
limit of District Lalitpur which was
declared and notified as a dacoit affected
area by the Government,

(ii) carrying a licensed gun even
during the agricultural work in the evening
in itself is an indication of fear of life to the
brother namely Kashiram and Ramphal
(deceased),

(iii) in cross examination of the
witnesses, it has come that the deceased
''Ramphal' was arraigned with the charge of
murders of parents of accused persons. A
criminal case was also lodged.

(iv)
the
deceased
''Ramphal'
alongwith some other ''baghis' (dacoits)
surrendered in District Chhatarpur. He was
known to be an active member of the gang
of the dacoits, identified as ''Moniram
Sahai Gang',

(v) One of the accused ''Karan
Singh' was himself suspected to be an
active member of dacoits gang identified as
''Gabbar Singh's Gang',

(vi) The way to the police station
from the spot of the incident is shown to be
about 13 k.m. which was in the outskirts of
area not urbanized and populated, it was
not easy to travel in the night,

(vii) the mode and manner
adopted by the accused persons was not
only violent but also brutal and gruesome,

(viii) The assailants after killing
the deceased ''Ramphal', fled away from
the spot of the incident and were roaming
free.

27. Before going through the
statements of aforesaid witnesses of fact we
would like to refer para ''5' of the judgment
of Apex Court in the case of Bharwada
Bhoginbhai
Hirjibhai
Vs.
State
of
Gujarat5 where Apex Court observed that:-

(1) By and large a witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.

(2) ordinarily it so happens that a
witness is overtaken by events. The witness
could not have anticipated the occurrence
which so often has an element of surprise.
The mental faculties therefore cannot be
expected to be attuned to absorb the
details.

(3) The powers of observation
differ from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go
unnoticed on the part of another.

(4) By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.

(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of the
moment 1.1 at the time of interrogation.
And one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the time-
674 INDIAN LAW REPORTS ALLAHABAD SERIES
sense of individuals which varies from
person to person.

(6) Ordinarily a witness cannot
be expected to recall accurately the
sequence of events which take place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.

(7) A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing cross
examination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him-Perhaps it is
a
sort
of
a
psychological
defence
mechanism activated on the spur of the
moment.

28. In view of the aforesaid
circumstances and the witnesses, status,
milieu and their normal prudence, we think
it proper to observe on the basis of
evidences that the prosecution witnesses of
fact are rustic villagers, not highly
educated, even illiterate or simply literate.

29. In the context of the aforesaid
observation, we further refer to the
judgment of the Apex Court in Shivaji
Sahab
Rao
Bobade
Vs.
State
of
Maharashtra6
which
deals
with
an
incident of murder in a rural area where the
witnesses to the case were rustic and so it
was observed that their behavioural pattern
perceptive and un-perceptive habits have to
be judged as such. The relevant para from
the aforesaid judgment is reproduced
hereunder:-

"8. Now to the facts. The scene of
murder is rural, the witnesses to the case
are rustics and so their behavioural pattern
and perceptive habits have to be judged as
such. The too sophisticated approaches
familiar in courts based on unreal
assumptions about human conduct cannot
obviously be applied to those given to the
lethargic ways of our villages. When
scanning the evidence of the various
witnesses we have to inform ourselves that
variances on the fringes, discrepancies in
details, contradictions in narrations and
embellishments in inessential parts cannot
militate against the veracity of the core of
the testimony provided there is the impress
of truth and conformity to probability in the
substantial fabric of testimony delivered.
The learned Sessions Judge has at some
length dissected the evidence, spun out
contradictions and unnatural conduct, and
tested with precision the time and sequence
of the events connected with the crime, all
on the touchstone of the medical evidence
and the post-mortem certificate. Certainly,
the court which has seen the witnesses
depose, has a great advantage over the
appellate Judge who reads the recorded
evidence in cold print, and regard must be
had to this advantage enjoyed by the trial
Judge of observing the demeanour and
delivery,
of
reading
the
straightforwardness and doubtful candour,
rustic naivete and clever equivocation,
manipulated conformity and ingenious
unveracity of persons who swear to the
facts before him. Nevertheless, where a
Judge draws his conclusions not so much
on the directness or dubiety of the witness
while
on
oath
but
upon
general
probabilities and on expert evidence, the
court of appeal is in as good a position to
6 All. Karan Singh Vs. State of U.P.
675
assess or arrive at legitimate conclusions
as the Court of first instance. Nor can we
make a fetish of the trial Judge's psychic
insight."

30. We think it pertinent to mention
here that the witness P.W.-1 ''Chutti' did
not support the case of prosecution and
declared hostile. The witness P.W.-5
remained intact on his stand and supported
the case of prosecution. The prosecution
has produced on record, two certified
copies of the extracts of the statement of
witnesses Jagan, Pooran, Pragi and Sunnu
recorded by the Investigating Officer under
Section 161 Cr.P.C. and that recorded by
the Judicial Magistrate under Section 164
Cr.P.C. also. All these witnesses were
examined by the trial judge in the Sessions
Trial No.15 of 1980 (State Vs. Aman Singh
& Others) and Sessions Trial No.23 of
1980 (State Vs. Kishora). The aforesaid
two Sessions Trials as well as the present
Sessions Trial No.47 of 1983 (State Vs.
Karan Singh) have their origin from the
same Case Crime No.53 of 1979, under
Section 396 I.P.C.

31. In the trial of Sessions Trial No.15
of 1980 (State Vs. Aman Singh & Others)
and Sessions Trial No.23 of 1980 (State Vs.
Kishora), the witness did not support as to
the mode and manner adopted, complicity
and identification of the accused persons in
commission
of
the
incident
dated
21.11.1979 but so far as the incident of
killing
of
deceased
''Ramphal'
on
21.11.1979 at about 05:00 P.M. at the spot
of the incident in the field of Baldu and
their presence near the spot of the incident,
was admitted by them.

32. They had retracted from their
statement made under Section 161 Cr.P.C.
before the Investigating Officer with regard
to the mode and manner adopted by them
and complicity and identity of the accused
persons in commission of the offence dated
21.11.1979 before the Court. However, the
same statement was given before the
Magistrate under Section 164 Cr.P.C.
which they admitted and proved before the
Court. They also proved before the Court,
identifying and verifying their signature on
the statement under Section 164 Cr.P.C.
The Magistrate, Sri Bichitra Kumar Gupta
was also examined before the Court in
those sessions trials and he proved the
statement recorded by him under Section
164 Cr.P.C. of the accused, as such, the
statement of the accused to the same effect
under Section 164 Cr.P.C. is proved before
the Court and is a proved document. The
Magistrate, Sri Bichitra Kumar Gupta is
also witnessed in the present sessions trial
as P.W.-4. The extracts of the witness
under Section 161 Cr.P.C and 164 Cr.P.C.
cumulatively will be taken as the narration
of the incident by the witness coupled with
their statement in the present trial.

Evidence as to the status, character
and
profession
of
the
deceased,
Ramphal.

33. In the case before us there are five
witnesses of fact. They are first informant
Kashiram (P.W.5), Sunnu (P.W.3), Jagan,
Pooran (P.W.2), Pragi. Along with P.W.5
(brother of the deceased), the rest of the
witnesses namely Sunnu, Jagan, Pooran
and Pragi were all examined as eye
witnesses of the incident whose names
have been given in the written information
also. It is stated in the written report by the
first informant that at the time of the
incident, hearing the screams of the
deceased and alarm raised by the first
informant P.W.5, the other witnesses came
running on the spot as they were working
676 INDIAN LAW REPORTS ALLAHABAD SERIES
in the nearby agricultural fields. On ebing
challenged by them, the accused Kishora
made a fire towards them and they
succeeded in fleeing away from the spot.
P.W.-5 being the brother of the deceased is
a related witness. Learned counsel for the
appellant has raised objection as to his
credibility and reliability for the reason of
his interestedness. Except P.W.5, rest of the
witnesses turned hostile as they denied
having
seen
the
accused
appellant
committing the offence. The question, thus,
would be as to the evidentiary value of the
statement of the hostile witnesses, with
regard to the facts deposed by them and the
effect of the portion of their statement not
supporting the prosecution case.

34. It is well settled that in a criminal
trial, evidence of a hostile witnesses can
form the basis of conviction. In the matter
of appreciation of evidence of witnesses, it
is not the number of witnesses but the
quality of their evidence matters.

Reliance on the statement of hostile
witnesses

35. In the case before us we have
already noticed that prosecution witnesses
Sunnu (P.W.3) and Pooran (P.W.2) were
examined as the prosecution witnesses to
prove the fact in issue as to whether the
accused persons committed the killing of the
deceased ''Ramphal' on the relevant date and
time on the spot of the incident alleged in the
written information by inflicting blows of
lethal weapons like axe, sickle, etc.

36. The Apex Court in the case of
Mrinal Das Vs. State of Tripura7 in para
''67' has held as under:-

67.
It
is
settled
law
that
corroborated part of evidence of hostile
witness regarding commission of offence is
admissible.