# Kedar Nath v. State Of U.P

- **Citation:** (2016) 7 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-27
- **Bench:** Shashi Kant Gupta, Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kedar-nath-v-state-of-u-p-44071
- **Pages:** 13

## Text

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7 All. Kedar Nath Vs State Of U.P.
339
the appellants could not prove that the relations of Sri Chiranji Lal and the opposite party No.5 had
become strained. It remained mystery that who got typed the disputed Will and handed over it to
the testator. The Will was not deposited by the testator himself. It was deposited by Sri Jai Kishan
(A.W. 1) who used to live with the appellant and took active part in getting the Will prepared.
Considering all these evidences on record, I do not find any infirmity in the findings recorded by
the court below. The appellants have completely failed to remove the suspicious circumstances
which surrounded execution and attestation of the disputed Will.

21. In view of the aforesaid this Court is of the view that the court below has not
committed any error of law or facts to decide the issue no.1 against the appellants.

22. In view of the above discussion, I do not find any illegality in the impugned judgment.

23. In result, the appeal fails and is hereby dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE HARSH KUMAR, J.

Criminal Appeal No.- 264 Of 1983

Kedar Nath ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
V.S. Singh, Adhya Gupta, D. Singh, M. Islam

Counsel for Respondent:
A.G.A

Indian Penal Code, 1860 - Ss. 302 & 307 - Murder and Attempt to Murder - Ocular Evidence -
Corroboration by Medical Evidence - Injured First Informant as Natural Eye Witness - Two
independent eye witnesses accompanying him - Consistent and trustworthy testimonies -
Conviction upheld - The accused-appellant was convicted by the trial court under Sections 302 and 307
IPC for causing the death of Prem Chandra and causing grievous injuries to first informant Suresh Chandra
Singh by stabbing them with a knife. The first informant (P.W.1), being an injured witness, is a natural eye
witness of the occurrence. His statement was fully corroborated by the medical evidence on record as well as
by two other independent eye witnesses, Kamlesh (P.W.2) and Awadh Bihari (P.W.4), who were
accompanying him at the time of occurrence, and with whom the accused-appellant had no enmity. The
evidence of P.W.1, P.W.2 and P.W.4 was consistent with regard to the place and manner of occurrence. The
argument that no injuries were found on the palms of the injured or deceased - which would naturally occur
340 INDIAN LAW REPORTS ALLAHABAD SERIES

during defence against an attack - was repelled on the ground that the accused-appellant had attacked the
first informant suddenly from behind leaving no opportunity for resistance or defence. Held: The prosecution
established its case beyond reasonable doubt through consistent, trustworthy and cogent ocular and medical
evidence; conviction under Sections 302 and 307 IPC affirmed.

Indian Penal Code, 1860 - S. 302 - Medical Evidence - Same weapon causing injuries of
different size - Inference - Difference in size of punctured wounds on two persons does not
necessarily indicate use of different weapons - Force, angle and attempt of victim to escape
may account for variation - Both the first informant and the deceased Prem Chandra sustained punctured
wounds which, though varying in size, were stated by the Medical Officer (P.W.3) to have possibly been
caused by one and the same weapon. Held: Merely because there is some difference in the size of punctured
wounds on the two persons, it cannot be inferred that different weapons were used to cause the respective
injuries. It is quite natural and possible that at the time of causing injuries with the same weapon, the size of
wounds may differ on account of variation in the force applied, the angle of attack, and the attempt of the
injured person to escape.

Criminal Trial - Motive - Ocular Evidence - Motive loses importance when offence established
by direct evidence - Prosecution required only to give probable cause - Failure to prove motive
not fatal if charge otherwise proved - The accused-appellant contended that the alleged dispute over
playing of cards 4-5 days prior to the occurrence was insufficient to constitute a motive for committing the
alleged acts. Held: In a case based on direct ocular evidence, motive loses its importance. The prosecution is
required only to give a probable cause behind the motive and is not required to prove it conclusively. Even if
the prosecution fails to establish motive, the offence proved by cogent ocular evidence cannot be ignored and
no benefit can be given to the accused for want of motive. It is equally improbable that an event held to be
insufficient to form motive for the crime could be a ground for falsely implicating the accused - the argument
that a past dispute was sufficient for false implication but insufficient for motive is self-contradictory.

Criminal Trial - False Implication - Improbability - No reason for first informant or parents of
deceased to leave real culprit and implicate innocent person - Argument of false implication
based on surmises and conjectures rejected - The defence contended that the occurrence had taken
place during a gambling session and that after compromise, the accused-appellant was falsely implicated by
the villagers in connivance with the police. Held: There can be no reason for the first informant or the parents
of a young deceased to leave the real culprit and falsely implicate an innocent person, particularly in a case of
murder of a 20-year-old boy. There may be cases of false implication of a person along with the real culprit,
but a case of falsely implicating a person in place of the real culprit altogether, is highly improbable.
Furthermore, in matters of false implication, other independent witnesses of the occurrence would never
come forward to corroborate and support such a false prosecution version. The argument being based on
highly improbable circumstances and surmises on conjectures, cannot be a ground to give benefit of doubt to
the accused-appellant. Relied upon: Gangadhar Behra v. State of Orissa, (2002) 8 SCC 381.
Criminal Trial - Defence Witnesses - Photographer and Advocate - Private visit to spot without
court's direction or authority - Maps and photographs not put to prosecution witnesses in crossexamination - No evidenciary value - Rightly discarded - The accused-appellant produced D.W.1, a
photographer, and D.W.2, an advocate, who allegedly visited the place of occurrence on the instructions of
the defence counsel and prepared photographs and a map to contradict the site plan prepared by the
Investigating Officer. Neither any application was moved by the accused before the trial court for such an
inspection, nor any direction or order was obtained from the trial court authorising such a visit. The visit was
made after the prosecution evidence was already closed and the documents so prepared were never put to
any prosecution witness in cross-examination, depriving them of any opportunity to deny or explain the
alleged discrepancies. Neither D.W.1 nor D.W.2 was an expert or held any qualification in survey or
7 All. Kedar Nath Vs State Of U.P.
341
photography for forensic purposes. Held: The reports, maps, photographs and statements of D.W.1 and
D.W.2 have no evidenciary value, are not admissible in evidence, and were rightly discarded by the trial court.

Criminal Trial - Investigation - Lapses by Investigating Officer - Not fatal to prosecution -
Benefit of investigative lapses cannot accrue to accused - Settled principle - The accusedappellant raised several contentions regarding discrepancies in the investigation, including alleged errors in
the site plan, non-examination of Ram Charan (from whose shop PRASAD was to be purchased), and alleged
ante-timing/ante-dating of the F.I.R. Held: Lapses or carelessness on the part of the Investigating Officer in
preparing the inquest report or site plan, or non-examination of a witness not present at the scene of
occurrence, do not adversely affect the prosecution case if the same is otherwise proved by consistent and
trustworthy evidence. Any omission on the part of the I.O. cannot go against the prosecution; to hold
otherwise would amount to placing a premium upon such omissions. Relied upon: Mangu v. State of U.P.,
2003 (4) ACC 335; V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588.

Criminal Trial - Benefit of Doubt - Reasonable Doubt - Not every suspicion or minor
discrepancy - Must be fair doubt based on reason and common sense - Exaggerated devotion
to benefit of doubt must not destroy social defence - In order to acquit an accused by giving benefit
of doubt, there must be some reasonable doubt based on reason and common sense; not every suspicion,
minor discrepancy or imaginary doubt can be made a basis for acquittal. Exaggerated devotion to the rule of
benefit of doubt must not nurture fanciful doubts or lingering suspicion so as to destroy social defence. Proof
beyond reasonable doubt is a guideline, not a fetish. The prosecution is not required to meet every hypothesis
put forward by the accused. Trivial discrepancies which do not materially affect the prosecution case cannot
affect the credibility of witnesses who are otherwise trustworthy. Relied upon: Gangadhar Behra v. State of
Orissa, (2002) 8 SCC 381; G. Parshwanath v. State of Karnataka, 2010 (4) Crimes 41 (SC); Krishna Mochi v.
State of Bihar, (2002) 6 SCC 81; Leela Ram v. State of Haryana, (1999) 9 SCC 525; Indra Pal Singh v. State of
U.P., 2009 (1) ALJ 666 (SC).
.
(Delivered by Hon'ble Harsh Kumar, J.)

1. This appeal under section 374(2) Cr.P.C. has been filed by sole accused/convict against
the impugned judgment and order dated 20.12.1982 passed by IIIrd Additional Sessions Judge,
Banda in S.T. No.347 of 1981, whereby the appellant was convicted for the offences under sections
307 and 302 IPC and was sentenced with life imprisonment under section 302 IPC and 7 years
rigorous imprisonment under section 307 IPC.

2. The brief facts relating to the appeal are that on 31.7.1981, on written report submitted
by Suresh Chandra Singh, the F.I.R. was lodged at case crime no.171 of 1981 in P.S. Karvi, District
Banda at 7:15 p.m. on 31.7.1981, under section 307 IPC against one named accused Keddi. The
averments made in F.I.R. in brief are as under:-

"I Suresh Chandra Singh, Kamlesh, Ram Singh, Awadh Bihari and Prem on return
from Chitrakoot, were on way to their villages at about 6:45 p.m., were purchasing PRASAD from
the shop of Ram Charan near Pechghar Temple; that in the meantime accused Keddi resident of
Shankar Bazaar, Karvi came from behind and stabbed me in back and on left side of abdomen, and
when Prem proceeded for his rescue, the accused also gave 2-3 knife blows to him; that the
applicant fell unconscious and was brought by rickshaw puller Bhaiyya Lal to police station; that
342 INDIAN LAW REPORTS ALLAHABAD SERIES

there were some hot talks between the applicant and accused Keddi about 3-4 days ago at the time
of playing cards, on account of which he made an attempt on the life of applicant."

3. Upon lodging of F.I.R., investigation was started, the first informant Suresh Chandra
Singh was medically examined, his dying declaration was recorded and considering his serious
condition, he was referred to Allahabad for further treatment. The blood stained and simple mud
was collected from the spot and upon receiving the information of death of Prem due to incised
wounds caused by accused, section 302 IPC was added. The postmortem of body of Prem was
conducted, statements of witnesses were recorded and upon collecting evidence with the
completion of investigation, charge sheet was submitted against sole accused under sections 302
and 307 IPC.

4. The case was committed to sessions, where charges under section 307 IPC for causing
injuries to first informant Suresh Chandra and under section 302 IPC for causing death of Prem,
were framed. In order to prove its case, prosecution produced first informant Suresh Chandra Singh
as P.W.1, eye witness Kamlesh Kumar as P.W.2, Medical Officer Dr. S.D.S. Chauhan, who
conducted the post mortem of Prem and prepared injury report of first informant upon his medical
examination, as P.W.3, another eye witness Awadh Bihari as P.W.4, Naib Tehsildar V.N.
Chaudhary, who recorded dying declaration of first informant as P.W.5, Investigating Officer D.S.
Verma as P.W.6, constable Chandrika Prasad, who took the dead body of Prem for post mortem as
P.W.7 and constable Jai Prakash, who prepared chik F.I.R. and made entry in general diary as
P.W.8.

5. After the prosecution evidence, the statement of sole accused Kedar Nath @ Keddi was
recorded under section 313 Cr.P.C. and produced two witnesses in defence evidence, (1) Madho
Ram Chandra Marathe, the photographer, as D.W.1 and (2) Sri Akhtar Siddiqui Advocate as
D.W.2.

6. After completion of defence evidences, learned Additional Sessions Judge heard the
penal lawyer for the State and learned counsel for the accused and upon analysing the evidence on
record and evidence, the argument advanced before him came to the conclusion that the
prosecution has fully established the charges under sections 302 and 307 IPC against the accused
and holding him guilty of the two offences, convicted him under sections 302 and 307 IPC and
sentenced with life imprisonment under section 302 IPC and 7 years rigorous imprisonment under
section 307 IPC. No fine was imposed on the accused/appellant by the trial court. Feeling
aggrieved with the impugned judgment and order of conviction and sentence, the sole
accused/convict has preferred this appeal.

7. Heard Sri R.K. Vaishya, learned counsel for the appellant and Sri. Rajeev Gupta and Sri
S.N. Tripathi, learned A.G.A. for the State.

8. Learned counsel for the appellant argued that the appellant has been falsely implicated;
that the impugned judgment and order of conviction are bad on fact and law; that the learned
7 All. Kedar Nath Vs State Of U.P.
343
Additional Sessions Judge acted wrongly and illegally in relying on the untrustworthy testimonies
of prosecution witnesses; that the learned Additional Sessions Judge acted wrongly and illegally in
discarding the reliable and trustworthy evidence produced by defence witnesses; that there are
several contradictions in the prosecution evidence; that the medical evidence on record suggests
that injuries of first informant Suresh Chandra Singh and those of deceased Prem, could have been
sustained by different knives; that the prosecution has failed to prove that appellant had any motive
to make attempt on the life of first informant or cause death of Prem; that no independent witnesses
of the spot has been produced by the prosecution while there were several houses and shops around
the alleged place of occurrence; that for non-production of natural and independent witnesses,
adverse inference is to be drawn against the prosecution; that there are several discrepancies in the
investigation, which shows that F.I.R. has been lodged at a subsequent time and has been ante
dated and ante timed; that the site plan of the place of occurrence is not correct; that the dying
declaration of first informant has no evidenciary value, as the first informant is alive; that there are
material contradictions in the statements of witnesses, which make their testimonies untrustworthy;
that the prosecution story that first informant and his associates were going to purchase 'PRASAD'
from the shop of Ram Charan, is absolutely wrong and highly improbable; that the first informant
and his associates, who allegedly visited Chitrakoot and completed Parikrama of "Kamadgiri"
(taken a round of Kamadgiri) did not purchase PRASAD from there and were going to purchase
PRASAD from the shop of Ram Charan after returning from Chitrakoot and before leaving to their
villages; that prosecution story to above effect has been, concocted, in order to falsely implicate the
appellant; that it appears that the first informant and his associates were gambling with playing
cards and during gambling, over some dispute in heat of passion/sudden provocation, the injuries
were caused to deceased and first informant by each other and after deciding the dispute amicably,
just to explain their injuries and death of Prem to the police, since a third person was required, so
the appellant with whom the first informant had inimical terms since school times and on account
of party bandi, has been falsely implicated; that it appears that villagers of village Kashai got the
matter compromised between the persons sustained injuries and falsely roped the appellant in
collusion with police; that the learned trial court failed to bring out the real culprits by not deeply
appreciating the evidence on record the suggestions put by defence as well as the circumstances of
the case; that the lodging of F.I.R. within half an hour of the occurrence, is highly improbable and
creates dbout, while the distance between the place of occurrence and police station is around 3
kms; that Ram Charan from whose shop the PRASAD was allegedly being purchased, has not been
examined by the I.O., which shows that the investigation is tainted; that the admitted fact of hot
talks between the appellant and the first informant about 4-5 days ago, upon objection of appellant
over gambling by first informant and his associates near the temple, may be a root cause for false
implication, but may not be sufficient cause or motive for committing alleged incident; that the
prosecution has failed to prove the charges against the appellant beyond reasonable doubt by any
reliable and cogent evidence; that the learned trial court acted wrongly in not relying on the defence
witnesses from whose evidence it was proved that the occurrence in question did not take place at
the above place or in the manner mentioned in F.I.R.; that the sentence imposed is too severe; that
by setting aside the judgment and order of conviction and sentence, the appeal is liable to be
allowed and the appellant is liable to be acquitted of the charges framed against him.
344 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Per contra, learned AGA contends that the prosecution has proved its case to the hilt
beyond any reasonable doubt; that in this appeal, the correctness of prosecution case has been
questioned by the accused-appellant on various baseless and flimsy grounds; that the F.I.R. of the
incident has been lodged promptly naming the sole accused therein and it is absolutely wrong to
say that the F.I.R. is ante timed or ante dated; that it is settled principle of law that due to latches if
any on the part of Investigating Officer, the prosecution case, may not be adversely affected; that
the alleged discrepancies as pointed out by the accused-appellant do not exist at all and minor
discrepancies, if any, do neither give benefit to the accused-appellant nor adversely affect the
prosecution case; that the prosecution has proved the motive of appellant behind the crime; that
since it is a case of direct evidence in which the first informant as well as two other eye witnesses
have been produced and there are no contradiction in their statements, so the prosecution evidence
cannot be be seen with an eye of suspicion; that it is wrong to say that different weapons or knives
were used for causing injuries to first informant and the deceased Prem and no such inference can
be drawn from the statement of P.W.3 Medical Officer, who has only stated that the injuries of first
informant Suresh Chandra and deceased Prem Chandra, may be sustained by two different
weapons, particularly while he has specifically stated that injuries of deceased Prem Chandra and
injured Suresh Chandra Singh (first informant), may have been sustained from one and the same
weapon; that the appeal has been filed with absolutely wrong and baseless allegations; that the
judgment and order of conviction and sentence has been passed on detailed discussion and analysis
of evidence on record as well as legal position; that the defence evidence produced by accusedappellant is meaningless and is neither reliable nor admissible in evidence, and has been rightly
discarded; that there is no illegality or incorrectness in the impugned judgment and order; that
adequate sentence has been imposed by trial court keeping pity on accused-appellant and punishing
him with life imprisonment instead of capital punishment; that the appeal is liable to be dismissed
and the impugned judgment and order, are liable to be affirmed.

10. Upon hearing learned counsel for the parties and perusal of record, we find that the
learned trial court in the impugned judgment and order of conviction and sentence has discussed
and analyzed the prosecution evidences in detail and has dealt with each and every minor and
major point raised in the arguments by the learned counsel for the accused. It is noteworthy that the
first informant as well as the deceased both sustained two punctured wounds, which are alleged to
have been caused by the accused-appellant with the knife in his hand. As per prosecution case, at
the time of occurrence, when first informant Suresh Chandra Singh, along with Kamlesh, Ram
Singh, Awadh Bihari and Prem, was going to purchase PRASAD from the shop of Ram Charan,
near Pechghar Temple, all of a sudden, the accused-appellant came from behind, gave two knife
blows to him in his back and left side of abdomen, and when Prem proceeded for rescue of first
informant, he also gave 2-3 knife blows to him.

11. As per medical evidence on record, as has been proved by P.W.3 Dr. S.D.S. Chauhan,
after medical examination of the first informant, prepared injury report, and also conducted post
mortem of Prem Chandra and prepared post mortem report. Following injuries were found on the
person of injured/first informant Suresh Chandra Singh and deceased, respectively:-
7 All. Kedar Nath Vs State Of U.P.
345

Injuries as per injury report of Suresh Chandra Singh

1. Punctured wound with sharp margin 1-1/2 cm x 1⁄2 cm x depth uncertain on about
mid line of back vertically about middle. Observation. Pointed sharp edged.

2. Punctured wound with sharp margin 1 cm x 1/3 cm x depth uncertain on Lt.
internal side of abdomen obliquely 26 cms below Lt. axilla. Observation, pointed sharp edged
wounds bleeded on touch. Duration fresh (within 1⁄4 day).

Injuries of deceased as per Post mortem report of Prem Chandra

1. Punctured wound with sharp margins 2 1⁄2 cm x 3⁄4 cm x chest cavity horizontally
7-1/2 cm below supra-eternal notch. Depth of wound directed back and downward.

2. Punctured wound with sharp margin. 3 cm x 1cm x chest cavity horizontally on Lt.
Shouldering blade lower part 5 cms Lt. to mid line of back.

12. According to the post mortem report conducted on 1.8.1981 at 12:30 p.m., the death of
20 years old Prem Chandra took place about 3/4th of a day before the time of post mortem, due to
shock and hemorrhage as a result of ante mortem injuries. According to the injury report of first
informant, which was prepared upon medical examination at 7:30 p.m. on 31.7.1981 upon
examination on reference from the police station, his injuries were found fresh, which could have
been sustained at about 6:45 p.m. on 31.7.1981.

13. From above description of injuries in the injury report of first informant and post
mortem report of Prem Chandra deceased, merely due to some difference in size of punctured
wounds, it may not be inferred that different weapons would have been used in causing injuries to
the two persons. It is quite natural and possible that at the time of causing of injuries with the same
weapon, due to difference of force and angle as well as the attempt of injured to escape, the size of
injuries with the same weapon may differ. Since, the Medical Officer has specifically stated that the
injuries of both, could have been sustained by one and the same weapon, in view of the
unambiguous evidence on record that injuries with the knife in his hand were firstly caused to the
first informant thereafter to Prem Chandra, when he came for his rescue and there is no reason at all
to unnecessarily doubt the prosecution case, in order to search a ground to give benefit of doubt to
the accused-applicant.

14. It is pertinent to mention that P.W.1 is the first informant and being injured witness, is a
natural eye witness of the occurrence and his statement is totally corroborated by the medical
evidence on record as well as by the statements of two other eye witnesses Kamlesh and Awadh
Bihari, who were accompanying him at the time of occurrence. The argument that neither the first
informant nor the deceased nor anybody else sustained injuries on their palms so the prosecution
case may not be accepted because naturally at the time of attack, the injured uses his hands in
defence for avoiding injuries and gets his palms injured. This argument has no force, because as per
346 INDIAN LAW REPORTS ALLAHABAD SERIES

prosecution case when the first informant and his associates were going towards shop of Ram
Charan for purchasing PRASAD, the accused-appellant suddenly came from behind, stabbed him
in back and immediately thereafter on left side of abdomen and when Prem Chandra came for his
rescue, he was also stabbed repeatedly on his chest, resulting in his death and so in these
circumstances, it could not have been possible either for the injured or for the deceased, to first get
their hands/palms injured, before sustaining the injuries on their back, side or on the chest.
Otherwise also, there is no rule that first injury will be caused on palm and, thereafter, on other
parts of the body. It is also pertinent to mention that in this case, first informant had no opportunity
to make any resistance or defence. Otherwise also in the set of circumstances, every person reacts
differently in his own manner and even if the person attacked tries his best to avoid injuries by
putting his hands, the culprit escaping the hand causes injuries on the intended part of body. The
evidence of P.W.1, P.W.2 and P.W.4 all eye witnesses is consistent with regard to place and
manner of occurrence and is fully corroborated with medical and other evidence on record, which
establishes the prosecution case to the hilt beyond reasonable doubt.

15. As far as the motive is concerned, since it is a case based on ocular evidence, the
motive looses its importance. Moreover, the motive lies in the mind and heart of the
offender/accused and the prosecution may only give a probable cause behind the motive and even
in case the prosecution fails to establish motive, if the offence is proved by the prosecution
evidence, the same cannot be ignored and no benefit can be given to accused for want of motive.
The contention of accused-appellant that the alleged dispute which took place 4-5 days before the
occurrence over playing of cards, was not so serious so as to form sufficient motive to cause
incident however he has been falsely implicated due to above reason, is self contradictory. In the
incident, in which hot-talks allegedly taken place between the first informant and accusedappellant, 4-5 days before the occurrence, possibility of accused-appellant having been hurt deep in
heart by the abusive words allegedly uttered by first informant, may not be ruled out. Sometimes
words uttered by mouth hurt the heart more piercingly than the physical injury and in such cases
person having been hurt deep in heart with those words, may go to any extent. In any case, if the
incident occurred 4-5 days before in occurrence, was not sufficient to form motive for committing
the crime the question, the same may also not be sufficient for falsely implicating the accusedappellant. There is no evidence on record about the alleged old enmity of school times, between
first informant and the accused-appellant and if it may be reason behind alleged false implication,
the same may also be the reason behind the motive of accused-appellant to commit the incident in
question. In any case since the case is based on ocular evidence the motive has lost its importance.

16. The contention of accused-appellant that the F.I.R. is anti-timed and anti-dated has no
legs and there is no evidence on record to doubt the correctness of F.I.R. lodged promptly with
naming the sole accused-appellant. There are no discrepancies with regard to preparation of inquest
report or site plan and even if there is any omission by the I.O., the same does not adversely affect
the prosecution case.

17. It is settled principle of law as has been laid down by this Court in the case of Mangu
Vs. State of U.P. 2003 (4) ACC 335, held that
7 All. Kedar Nath Vs State Of U.P.
347

"lapse or carelessness on the part of I.O. in preparing inquest report could not be a
ground to hold that F.I.R. was not in existence till the inquest report was prepared".

18. Similarly the Apex Court in the case of V.K. Mishra Vs. State of Uttarakhand (2015)
9 SCC 588 held that

"Any omission on the part of I.O. cannot go against the prosecution. Interest of
justice demands that such acts or omission of I.O. should not be taken in favour of the accused or
otherwise it would amount to placing a premium upon such omission."

19. As far as the evidence of D.W.1 and D.W.2, having not been relied by the trial court, it
is pertinent to mention that D.W.1 is a photographer, who is alleged to have taken several
photographs of the place of occurrence from different angles in order to belie the site plan of the
place of occurrence prepared by I.O. as well as the prosecution version. The D.W.2 is an advocate,
who allegedly visited the place of occurrence and prepared a map in order to establish as above.
The above two witnesses are alleged to have visited the spot at the instructions of learned counsel
for the accused-appellant. Undisputedly neither any application for above purpose was moved by
accused-appellant nor any direction was ever obtained from or given by the Trial Court (Additional
Sessions Judge) concerned in this regard, and so the above evidence has no worth and is not
admissible in evidence. It is pertinent to mention that neither D.W.1 and D.W.2 are qualified for the
purposes, and none of them is expert or holds any degree or diploma in this field, except that
D.W.2 is stated to have worked as General Commissioner and (upon being appointed by the court
concerned in civil suits), has prepared maps and submitted reports in few civil cases. Admittedly he
is neither a Survey Commissioner nor has been appointed survey commissioner in any civil suit nor
has prepared any survey map or survey report in other cases nor in respect of the place of
occurrence in question. The alleged private visit made by the two witnesses at the instance of
accused-appellant upon instructions of his counsel, is also not alleged to have been made after
informing the prosecution or in presence of first informant or the Government counsel/penal
lawyer, as representative of prosecution. If the above reports of photographer or advocate were
filed by defence in order to dispute the place or occurrence or to belie the prosecution case, the
accused could have moved an application to the Trial Court (Additional Sessions Judge) concerned
for appointment of some Senior Survey, Advocate Commissioner for visiting the spot in presence
of both parties and submitting report after preparing a survey map of the place of occurrence. In
appropriate cases, even Presiding Officer of the trial court concerned, may himself visit the place of
occurrence, in order to ascertain the correctness of facts, if so required. The accused-appellant is
neither alleged to have moved any such application before the Trial Court (Additional Sessions
Judge) nor any such application is alleged to have been rejected by the Trial Court.

20. It is pertinent to mention that the prosecution evidence commenced on 1.5.1982 with
the statement of P.W.1 and concluded on 21.7.1982 with examination of P.W.8. However, no cross
was made by any of the eye witnesses P.W.1, P.W.2 or P.W.4 or with I.O. P.W.6 regarding the
alleged distances as well as alleged discrepancies with regard to spot position as were found by
D.W.1 & D.W.2. It is also noteworthy that D.W.1 and D.W.2 allegedly visited the spot on
348 INDIAN LAW REPORTS ALLAHABAD SERIES

1.8.1982, 8.8.1982 and 25.8.1982 after a long wait until only after completion of prosecution
evidence is closed. The maps and report as well as negatives and positive photographs filed by
D.W.1 & D.W.2 have no evidenciary value as these documents were neither put to prosecution
witnesses in cross-examination nor they had any opportunity to deny or explain the alleged
discrepancies. Since, no cross-examination was made from the prosecution witnesses with regard to
alleged differences of distances from one spot to the other, as shown in above reports of D.W.1 and
D.W.2, without any direction, authority or order of the Trial Court (Additional Sessions Judge), the
above reports are neither relevant nor admissible in evidence nor may be considered for discarding
the consistent and trustworthy evidence of prosecution. In the circumstances mentioned above, no
reliance can be placed on above reports and statements of defence witnesses D.W.1 & D.W.2.

21. The P.W.2 & P.W.4 are independent witnesses, are neither alleged to be interested
witnesses of first informant, nor alleged to be on inimical terms with accused-appellant. The
accused-appellant has not stated any enmity with the prosecution witnesses no.2 and 4 Kamlesh
and Awadh Bihari, who were accompanying the injured/first informant and are most natural eye
witnesses of the occurrence. They have fully corroborated the first informant P.W.1 Suresh
Chandra Singh, and there is no contradiction or discrepancies in their statements so as to disbelieve
their testimonies, in absence of any enmity with the accused-appellant, particularly when they are
not alleged to be interested witness.

22. In the case of Leela Ram vs. State of Haryana (1999) 9 SCC 525, the Apex Court
held that

"the evidenciary value of testimony of son and brother-in-law of deceased in
absence of any other factor to discredit the said witnesses, can not be rejected merely on the
ground that they were interested witnesses and at the same time, the testimony of local Sarpanch
witnessing the occurrence was also liable to be treated reliable, as of an independent witness and
the fact that brother of accused was his rival candidate at the election, held to be too feeble a
ground to doubt or discard his evidence"

23. dismissing the appeal of convict, and upholding the judgment of High Court, wherein
High Court setting aside acquittal had passed conviction order,the Apex Court further held that

"the ocular account given by relative witness does not by itself loose its evidenciary
value unless some other factor is brought on record to discredit the creditworthiness of the
witness" and that "Trivial discrepancies cannot affect the credibility of the evidence of the witness
if it is otherwise acceptable".

24. In the case of Gangadhar Behra vs. State of Orissa (2002) 8 SCC 381, it was held by
the Apex Court that

"relationship is not a factor to affect the credibility of a witness. It is more often than
not that a relation would not conceal actual culprit and make allegations against innocent person.
7 All. Kedar Nath Vs State Of U.P.
349
Foundation has to be laid if plea of false implication is made. However, Court has to adopt careful
approach and analyze the evidence to find out whether it is cogent and credible".

25. It is settled principle of law that testimony of partisan or interested witness cannot be
discarded outright, rather it should be examined with more care and caution.

26. In the case of Indra Pal Singh Vs. State of Uttar Pradesh 2009 (1)Allahabad Law
Journal 666 SC the Apex Court upholding the order of High Court converting into conviction, the
order of acquittal passed by Additional Sessions Judge, held that

"minor inconsistencies appearing in statements of two eye witnesses which are of
very trivial nature must not be given undue importance and acquittal of the accused on such
insignificant contradictions, is not proper"

27. In Krishna Mochi vs. State of Bihar reported in (2002) 6 SCC 81 the 3 Judges
Bench of Apex Court has held

"that in Criminal Trial a prosecutor is faced so many odds. Court shall not loose
sight of the realities of life and can not afford to take an unrealistic approach of values in public
life.

Some discrepancy is inevitable - but a discrepancy existing in a prosecution case
should not weigh with the Court so long it does not materially effect the case.

Duty of Courts is not only to see that no innocent man is punished but also to
ensure that no person committing an offence should go scot free."

28. The argument of learned counsel for the appellant that the incident appears to have
taken place during gambling between the deceased, first informant and others of village Kashai
during which they stabbed each other and upon compromise by the villagers in order to explain the
injuries of first informant and deceased, a third person i.e. accused-appellant was falsely
implicated, also has no force. Firstly, because there can be no reason with first informant or parents
of deceased Prem Chandra for leaving the real culprit and falsely implicate the other innocent
person. It is also pertinent to mention that there was no relationship between the first informant,
injured and the deceased Prem Chandra, who was just 20 years old young boy. Even in case of
simple injuries nobody is expected to leave the real culprit and falsely implicate the other and in a
case of murder of young boy, there can be no possibility of leaving the real culprit and falsely
implicating another innocent person, by the parents and family members of the deceased upon
getting information about sudden death of their young son due to stab injuries, no parents or their
family members may ever enter into a compromise, so as to leave the real culprit and falsely
implicate the other person particularly when the alleged culprit is not alleged to be their family
member. There may be cases of false implication of a person alongwith real culprit but there cannot
be a case of falsely implicating a person leaving the real culprit altogether.
350 INDIAN LAW REPORTS ALLAHABAD SERIES

29. In any case, in matters of false implication of a person, in place of real culprit, the other
witnesses of occurrence would never come forward to corroborate and support, such false prosecution
version. The argument so raised by learned counsel for the accused-appellant at appellate stage has no
force being based on highly improbable circumstances and surmises on conjectures which may not be
made a ground to give benefit of doubt to the accused-appellant.

30. It has been held by Apex court in the case of Gangadhar Behra Vs. State of Orissa (2002) 8
SCC 381 that

"It is more often than not that a relation would not conceal actual culprit and make
allegations against innocent person."

31.