# Kishan Veer Singh v. State of U.P

- **Citation:** (2023) 4 ILRA 1055
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-03
- **Case number:** Criminal Appeal No. 3773 of 2019
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-veer-singh-v-state-of-u-p-49790
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 96, 97, 99, 101, 102, 302/34 &
323/34, - Punishment for murder - Arms
Act, 1959 - Section 25 - The Code of
Criminal Procedure, 1973 - Sections 161
& 313 -Evidence Act, 1872 - Sections 106,
113B, 134 - Appeal against conviction -
Place of occurrence was on door of house
of informant, no evidence contrary has
been adduced by defence side - As per
prosecution, when grass was cut from
sugar cane field of Natthu, the accused
persons reached informant's house, when
informant's son protested, offence was
committed - In cross-examination, P.W.1
admittted of no enemity between him and
accused persons - Accused persons seen
his son plucking the sugar cane, no
altercation took place at that time -
Affirmed by P.W.6 - No contradiction in
ocular evidence adduced by prosecution,
deceased
sustained
firearm
injury,
resulted into his death and corroborated
by medical evidence - Injuries caused to
P.W.2, guarantee of his presence at the
scene of crime - No contradictions in
testimony of P.W.2 - Ocular evidence of
two witnesses, corroborate with each
other, in light of credible evidence,
prosecution was not under obligation to
adduce
any
witness
as
independent
witness - Doctor opined date and time of
occurrence,
medical
evidence
corroborates injuries to accused persons -
Informant side used private defence,
when one fire was shot over deceased,
inflicted
simple
injuries
to
accused
persons - P.W.2 sustained simple injuries,
exercise of private defence was never
exceeded by informant side - Informant
side, entitled for protection u/s 96 IPC -
F.I.R., lodged with utmost promptness, no
delay in lodging, eliminates chance of
false implication - Directions accordingly
(Para 25, 26, 27, 34, 42, 44, 46, 51 - 57,
62, 63, 66)

Appeals are dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,935 of 66,006. This is a partial read: ask again with offset=39935 for what follows._

4 All. Kishan Veer Singh Vs. State of U.P.
1055
default, four months simple imprisonment
shall be undergone by the appellant.

31. The appellant will be set free after
completing ten years of sentence, if he is
not warranted in any other criminal case.

32. Office is directed to send a copy
of this judgment forthwith along with lower
court record to the trial Court concerned for
necessary compliance.
----------
(2023) 4 ILRA 1055
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.01.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3773 of 2019
With
Criminal Appeal No. 2914 of 2019

Kishan Veer Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Apul Misra

Counsel for the Respondents:
Sri H.M.B. Sinha, AGA

Criminal Law - Indian Penal Code, 1860 -
Sections 96, 97, 99, 101, 102, 302/34 &
323/34, - Punishment for murder - Arms
Act, 1959 - Section 25 - The Code of
Criminal Procedure, 1973 - Sections 161
& 313 -Evidence Act, 1872 - Sections 106,
113B, 134 - Appeal against conviction -
Place of occurrence was on door of house
of informant, no evidence contrary has
been adduced by defence side - As per
prosecution, when grass was cut from
sugar cane field of Natthu, the accused
persons reached informant's house, when
informant's son protested, offence was
committed - In cross-examination, P.W.1
admittted of no enemity between him and
accused persons - Accused persons seen
his son plucking the sugar cane, no
altercation took place at that time -
Affirmed by P.W.6 - No contradiction in
ocular evidence adduced by prosecution,
deceased
sustained
firearm
injury,
resulted into his death and corroborated
by medical evidence - Injuries caused to
P.W.2, guarantee of his presence at the
scene of crime - No contradictions in
testimony of P.W.2 - Ocular evidence of
two witnesses, corroborate with each
other, in light of credible evidence,
prosecution was not under obligation to
adduce
any
witness
as
independent
witness - Doctor opined date and time of
occurrence,
medical
evidence
corroborates injuries to accused persons -
Informant side used private defence,
when one fire was shot over deceased,
inflicted
simple
injuries
to
accused
persons - P.W.2 sustained simple injuries,
exercise of private defence was never
exceeded by informant side - Informant
side, entitled for protection u/s 96 IPC -
F.I.R., lodged with utmost promptness, no
delay in lodging, eliminates chance of
false implication - Directions accordingly
(Para 25, 26, 27, 34, 42, 44, 46, 51 - 57,
62, 63, 66)

Appeals are dismissed. (E-13)

List of Cases cited:

1. Bikau Pandey Vs St. of Bihar (2003) 12 SCC 616

2. Anil Rai Vs St. of Bihar (2001) 7 SCC 318

3. Deepak Verma Vs St. of H. P. (2011) 10 SCC
129

4. St. of U.P. Vs Chhotey Lal, A.I.R. 2011 SC 697

5. St. of U.P. Vs Krishna Master, 2010 (5) ALJ
423 (SC)

6. Gangadhar Behera & ors. v. St. of Orrisa,
(2002) 8 SCC 381
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
7. St. of Andhra Pradesh Vs S. Rayappa & ors.
(2006) 4 SCC 512

8. Shivalingappa Kallayanappa & ors. Vs St. of
Karn., 1994 Supp. (3) SCC 235

9. St. of U.P. Vs Kishan Chandra & ors., (2004) 7
SCC 629

10. Chacko Vs St. of Kerala, (2004) 12 SCC 269

11. Jayabalan Vs U.T. of Pondicherry, (2010) 1
SCC 199

12. Ram Bharosey Vs St. of U.P., A.I.R. 2010 SC
917

13. Mehraj Singh Vs St. of U.P., (1994) 5 SCC
188

14. Thulia Kali Vs St. of T. N. reported in (1972)
3 SCC 393

15. Kishan Singh through LRs Vs Gurpal Singh &
ors. reported in (2010) 8 SCC 775

16. Sewa Ram & anr. Vs St. of U.P., A.I.R. 2008
SC 682

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Sri Apul Misra, learned
counsel for the appellants and Sri H.M.B.
Sinha, learned A.G.A. for the State.

2. These Criminal Appeals have been
preferred by appellants - Kishan Veer
Singh, Natthu Singh and Bachchan Singh
against the judgment and order dated
28.3.2019 passed by Additional Sessions
Judge / Special Judge (E.C. Act), Budaun
in Sessions Trial No.103 of 2003 (State Vs.
Kishan Veer Singh and Others) arising out
of Case Crime No.190 of 2002 and
Sessions Trial No.809 of 2003 (State Vs.
Kishan Veer) arising out of Case Crime
No.200 of 2002, Police Station Faizganj
Behta, District Budaun, whereby the
appellant Kishan Veer was convicted and
sentenced to undergo imprisonment for life
under Section 302 IPC with a fine of
Rs.10,000/-, in default thereof, to further
undergo six months additional simple
imprisonment and appellants Bachchan
Singh and Natthu Singh to undergo
imprisonment for life under Section 302/34
IPC with a fine of Rs.10,000/- each, in
default thereof, to further undergo six
months additional simple imprisonment.
Further, appellants Kishan Veer Singh,
Bachchan Singh and Natthu Singh were
convicted and sentenced to undergo four
months
rigorous
imprisonment
under
Section 323/34 IPC with a fine of
Rs.1000/- each, in default thereof, to
further undergo one month additional
simple imprisonment.

3. The prosecution case, as culled out
from the FIR, is that on 25.7.2002, Dinesh
s/o informant Bhoop Singh s/o Kallu Singh
Yadav had cut some grass from the sugar
cane field of Bhoop Singh s/o Gumani,
which was taken for agricultural work by
Natthu Singh s/o Brijpal Singh, which
caused annoyance to the accused persons
and at about 6:00 P.M. on that very day,
accused persons Kishan Veer, Bachchan
and Natthu Singh came over the house of
the informant using abusive language.
When Girish, son of the informant asked
them not to abuse, they assaulted him with
lathi and danda. When Bhurey s/o Punni
came for rescue, he was also beaten by the
accused persons. At about 7:15 P.M.,
accused Kishan Veer opened fire by his
desi Pistol, which inflicted upon the back
of Girish resulting into his instantaneous
death. The occurrence was witnessed by
Mahindra and Harpal. On the written tehrir
of informant Bhoop Singh, F.I.R. was
lodged on 25.7.2002 at 22:25 P.M. and
registration G.D. was prepared. The inquest
4 All. Kishan Veer Singh Vs. State of U.P.
1057
of
the deceased
was
performed
on
26.7.2002 at 12:30 in the night at the house
of the informant and the autopsy was
conducted by Dr. V.P. Bhardwaj on
26.7.2002 at 4:00 P.M. and postmortem
was prepared.

4. In the autopsy of the deceased,
following injuries were found:

1. One firearm wound of entry 4
cm. x 4 cm. on right shoulder. Blackening
was present. On dissection, shoulder blade
and 2nd , 3rd, 4th ribs were found
fractured.

Nerves, vessel, muscles, chest
wall were found lacerated, right lung from
back side was found badly lacerated. One
litre blood in anterior aspect of right side
chest cavity and 288 pellets recovered from
the wound.

It was opined by the Doctor that
the death was caused due to shock and
hemorrhage as a result of ante-mortem
firearm injury, which was sufficient to
cause his death. It was also opined that the
death of the deceased might have been
occurred on 25.7.2002 at 7:15 P.M.

5. Injured Bhurey was medically
examined on 25.7.2002 at 10:53 P.M. by
Doctor Shivaram Singh and following
injury was found over his body:

1. A lacerated wound of 2 cm. X
0.5 cm. x muscle deep 8 cm. above the
wrist joint and the injury was found in the
1/3rd part of the upper part of left hand.

The injury was simple and fresh.
It might have been caused by some hard
and blunt object. The medical examination
was conducted on 25.7.2002 at 19:53 PM.

6. The proceedings of investigation
were conducted by the Investigating
Officer S.O. Man Singh Yadav and S.O.
Rajbir
Sharma.
During
investigation,
statement of the witnesses were recorded
and site plan was prepared. Murder weapon
desi Pistol was also retrieved on the
pointing out of accused Kishan Veer and
recovery memo and site plan of the place of
recovery were also prepared.

7.

After
completion
of
the
investigation, charge-sheet was filed in the
Court against accused Kishan Veer Singh,
Bachchan and Natthu Singh under Sections
302, 323, 504 IPC.

8. The investigation of the case under
Section 25 Arms Act was handed over to
S.I. Gangaram Som of Police Station
Faizganj,
who
after
performing
the
investigation of the case, prepared the site
plan and submitted the charge-sheet against
accused Kishan Veer Singh under Section
25 Arms Act.

9. The matter, being exclusively
triable
by
the
Sessions
Court,
was
committed to the Court of Sessions for
trial.

10. Charges under Sections 302,
323/34 of IPC were framed against accused
Kishan Veer Singh and under Sections
302/34, 323/34 of IPC against accused
Bachchan and Natthu Singh. Charge under
Section 25 Arms Act was also framed
against accused Kishan Veer Singh. The
accused persons pleaded not guilty and
claimed to be tried.

11. To bring home the charges against
the accused, the prosecution produced in all
ten witnesses in oral evidence and they are
(P.W.1)
Bhoop
Singh,
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
informant/eyewitness,
(P.W.2)
Bhurey,
eyewitness/injured,
(P.W.3)
Dr.
V.B.
Bhardwaj, (P.W.4) scribe of FIR constable
clerk Ram Pal Singh, (P.W.5) S.O. Rajbir
Sharma,
second
Investigating
Officer,
(P.W.6) S.O. Man Singh Yadav, first
Investigating
Officer,
(P.W.7)
S.I.
Gangaram, Investigating Officer of the case
under Arms Act, (P.W.8) Dr. Shivram
Singh, (P.W.9) Chandrasen Gangawar,
witness of recovery of murder weapon and
(P.W.10) Sumer Singh, witness of recovery
of murder weapon.

12. In documentary evidence, Written
Report
Ex.Ka.-1,
Postmortem
Report
Ex.Ka.-2, Chik F.I.R. of crime no.190 of
2002 Ex.Ka.-3, Registration G.D. Ex.Ka.-4,
Chik F.I.R. of crime no.200 of 2002
Ex.Ka.-5, Seizure
Memo
of
weapon
Ex.Ka.-6, Site Plan of crime no.200 of
2002 Ex.Ka.-7, Charge-sheet of crime
no.190 of 2002 Ex.Ka.-8, Chik F.I.R. of
crime
no.200
of
2002
Ex.Ka.-9,
Registration
G.D.
Ex.Ka.-10,
Inquest
Ex.Ka.-11, Photo Nash Ex.Ka.-12, Challan
Nash Ex.Ka.-13, Report to R.I. Ex.Ka.-14,
Report to C.M.O. Ex.Ka.-15, Sample Seal
Ex.Ka.-16, Site Plan of crime no.190 of
2002 Ex.Ka.-17, Fard of blood stained soil
and plain soil Ex.Ka.-18, Site Plan of crime
no.200 of 2002 Ex.Ka.-19, Charge-sheet
relating to crime no.200 of 2002 Ex.Ka.-20,
Medical Report of injured Bhurey Ex.Ka.-
21, Medical Report of accused Bachchan
Ex.Ka.-22 and Medical Report of accused
Natthu Ex.Ka.-23 have been produced.

13. Material Ex.-1 Tamancha and
Material Ex.-2 Cartridge have also been
produced.

14. The incriminating evidence and
circumstances were put to the accused
persons and their statements under Section
313 CR.P.C. were recorded. A plea of false
implication due to enmity was claimed and
it was also specifically stated that at the
time of the occurrence, deceased Girish and
Dinesh were cutting sugarcane of the
accused persons and when protested by the
accused persons, Dinesh angrily opened
fire, which was inflicted over the body of
the deceased Girish. No other person was
present at the time of the occurrence.

15. D.W.1 Avnish Singh, Deputy
Jailor and D.W.2 Pharmacist Krishna
Murari
were
examined
as
defence
witnesses.

16. While going through the oral
evidence available on record, we find, in
brief, the following narrations in the
testimonies of the witnesses :

P.W.1
Bhoop
Singh
is
the
informant and eyewitness to the case and
he is also the father of the deceased.
Supporting the prosecution version, in his
examination in chief, he has stated that the
occurrence happened about 13 months back
when his son Dinesh had cut some grass
from the field of Bhoop Singh, which was
taken on rent by accused Natthu. Accused
Kishan Veer, Natthu and Bachchan were
annoyed at this and at 7:00 P.M., on that
very day, they came to his house and
started abusing his son Girish and on his
protest, they began to beat him by lathi and
danda. Accused Kishan Veer opened fire
by his desi Pistol, which inflicted his son
and he fell down in the Verandah (Aangan)
inside the house. The occurrence was
witnessed by Bhurey, Mahindra, Harpal,
Dinesh, etc. and when Bhurey tried to
intervene, he was also assaulted by lathi
and danda by accused Bachchan. The
informant side also used force by lathi in
defence, which inflicted injuries to the
4 All. Kishan Veer Singh Vs. State of U.P.
1059
accused persons Natthu and Bachchan
Singh and then they fled away. The report
was written by Harish Chandra Gupta on
the dictation of the informant, which was
given to the police station. PW1 has proved
the written report as Ext.Ka.-1.

P.W.2 Bhurey is the injured
witness who, supporting the prosecution
case, has deposed that in the said incident,
Girish sustained firearm injury shot by
accused Kishan Veer. He himself has
sustained
injuries
of
lathi
while
intervening. He has made a categorical
statement that accused Kishan Veer was
having
desi
Pistol,
whereas
accused
persons Bachchan and Natthu had taken
lathi and danda. He has also made a
specific
statement
that
to
defend
themselves, they had also used lathi and
danda over the accused persons.

P.W.3 Dr. V.P. Bhardwaj has
performed the postmortem of the deceased
and he has proved the autopsy report as
Ext.Ka.-2.

P.W.4
Constable
Clerk
R.P.
Singh is the scribe of the FIR, who has
proved chik FIR and registration G.D. as
Ex.Ka.-3 and Ex.Ka.-4 respectively and has
also affirmed this fact that the FIR was
lodged on the basis of the written report
given by informant Bhoop Singh at the
police station. He has also proved the letter
for medical examination of the injured
Bhurey as Ex.Ka.-5.

P.W.5 Rajvir Sharma is the
second Investigating Officer of the case,
who was handed over the investigation on
31.7.2002. In his deposition, he has
proved
the
proceedings
of
the
investigation and the material fact of
recovery of murder weapon on the
pointing out of the accused Kishan Veer.
He has also proved recovery memo, site
plan and charge-sheet as Ex.Ka.6, Ka.-7
and Ka.-8 respectively.

P.W.6 S.O. Man Singh Yadav is
the first Investigating Officer of the case,
who also performed the inquest of the
deceased and prepared and proved the
inquest report and relevant papers for
postmortem as Ext.Ka.-11 to Ext.Ka.-15
and sent the dead body for postmortem
under the specimen seal Ext.Ka.-16.
Topography of the place of occurrence
was mentioned in the site plan Ext.Ka.-17
and memo of taking of blood stained and
plain soil was also proved as Ext.Ka.-18.

P.W.7 S.I. Ganga Ram is the
Investigating Officer of the case relating
to Arms Act. He has performed the
proceedings of the investigation, prepared
the map of the place of recovery of
murder weapon desi Pistol as Ext.Ka.-19
and also stated that matter ended into
charge sheet and proved the charge sheet
as Ext.Ka.-20.

P.W.8 Dr. Shiv Ram Singh has
medically examined accused Bachchan
Singh and Natthu on 26.7.2002, who
were taken to him by the police and
proved the injury reports as Ext.Ka.-22
and Ext.Ka.-23.

P.W.9
Constable
Chandrasen
Gangwar is the witness of the recovery of
murder
weapon.
Corroborating
the
prosecution version, he has deposed that
one desi Pistol 12 bore was retrieved on the
pointing out of the accused Kishan Veer
from the sugar cane field of Bhoop Singh,
which was concealed in the root of the
Neem Tree existing there along with one
khokha of 12 bore. He has affirmed the
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
memo of recovery Ext.Ka.-6 and has also
proved the desi Pistol and cartridge as
Material Ex.-1 & 2.

P.W.10 Sumer Singh is the public
witness of the recovery of murder weapon
Desi pistol, who has also supported the
factum of recovery of murder weapon on
the pointing out of accused Kishanvir and
has identified his signature over the memo
of recovery as Ext.Ka.-6.

C.W.1
Steno
Ravi
Prakash
Sharma has affirmed this fact before the
Court that on the dictation of the Presiding
Officer concerned, he had noted down the
charge under Section 323/34 IPC and also
typed the same against all the accused
persons.

D.W.1 Deputy Jailor Avnish
Singh has been produced by the defence,
who has deposed on the basis of under trial
register relating to District Jail, Budaun and
stated that on 26.7.2002, accused persons
Natthu son of Brij Pal and Bachchan son of
Natthu were admitted in the District Jail
after their being medically examined at
C.H.C. , Bisauli.

D.W.2 Krishan Murari Singh,
Pharmacist, posted in District Jail, Budaun
appeared before the court alongwith the
injury register relating to under trial and
convicted accused persons and on the basis
thereof, he has stated that injured accused
persons Bachchan and Natthu had been
examined on 27.7.2002 by the then
Medical Officer and they have been
medically examined in C.H.C., Bisauli.
Attested photo stat copy of this register has
been filed by this witness before the court.

17. It is settled law that in a criminal
trial, the burden of proof always lies upon
the prosecution and the prosecution is
under obligation to prove its case beyond
all reasonable doubts unless under some
circumstances, the onus shifts upon the
defence e.g. with the aid of Section 113 B
of the Evidence Act, which consists of the
provision regarding presumption as to
dowry death or Section 106 of the Indian
Evidence Act where the burden of proof of
the fact, which is specially within the
knowledge of any person, lies upon him or
in any like circumstances. So far as the
present case is concerned, the factual
scenario avows that the burden of proof is
upon the prosecution.

18. The impugned judgment and order
has been assailed by the learned counsel for
the appellants on various grounds :

At the very outset, it has been
argued that the place of occurrence in this
case is uncertain and in the factual matrix
of the case, no occurrence happened at the
house of the informant, rather it happened
in the sugar cane field of accused Natthu. It
has been vehemently argued that the
accused persons had no motive to do away
with the deceased and as a matter of fact,
the deceased died due to firearm injury
inflicted by Dinesh son of the informant
himself. The said Dinesh opened fire upon
accused Kishan Veer with intention to kill
him, but he anyhow managed to save
himself and the firearm injury inflicted
upon Girish, which was proved fatal for
him and resulted into his instantaneous
death in the sugar cane field. It was also
impressed upon that the incident occurred
in the dark night at about 9:00 P.M. and not
at 7:00 P.M. in the evening. The
prosecution has miserably failed to explain
the injuries occurred upon accused Natthu
Singh and Bachchan Singh, who were
assaulted by the informant side. The
manner of assault is improbable. The total
4 All. Kishan Veer Singh Vs. State of U.P.
1061
prosecution story is concocted and false
and the factum of retrieving the alleged
murder weapon at the pointing out of
accused Kishan Veer is a false story. There
is no FSL report on record to connect the
alleged weapon, desi Pistol with the
offence charged. No independent witness to
the occurrence was produced, whereas the
prosecution claims that the occurrence was
witnessed by some villagers also. The
ocular evidence is not reliable and
trustworthy. There are several loop holes in
the prosecution story and the prosecution is
never entitled to take benefit of the
weaknesses of defence version. The learned
trial court has discarded the value of the
defence evidence adduced by the accused
persons. On some other grounds, the
impugned judgment has been assailed by
the learned counsel for the appellants apart
from the above specific grounds.

19. Per contra, learned A.G.A. has
argued that the impugned judgment and
order is a genuine one, passed on the basis
of reasonable and proper scrutiny of the
evidence on record. The points raised by
the appellants are baseless. The offence
committed by the appellants is very
grievous in nature, which has been proved
by reasonable and cogent ocular evidence
corroborated by the medical evidence as
well. The appeal has no force and is liable
to be dismissed.

20. The place of occurrence is always
a significant factor in preparing the
foundation of the prosecution case and it
can be held without any hesitation that if
the
place
of
occurrence
is
found
fluctuating, it always adversely affects the
truthfulness of the prosecution story. In the
case in hand, the prosecution has come
with a specific case that the occurrence
happened at the door of the informant's
house, whereas contrary to it, the accused
persons, in their written statement under
Section 313 (5) Cr.P.C. have mentioned
that the occurrence happened in the sugar
cane field of accused Nathu.

21. P.W.1 Bhoop Singh, informant
and eyewitness to the incident, has made a
categorical statement that at the time of the
occurrence, Kishan Veer, Natthu and
Bachchan Singh came over his house
where his son Girish was standing and the
occurrence happened at the same place.
Accused Kishan Veer opened fire upon
Girish, which inflicted upon his body and
he fell down in the verandah (aangan) of
the house from the entry door of his house.
In
the
cross-examination,
he
has
specifically stated that when sugar cane
was plucked by his son, no marpeet took
place and even his son Dinesh did not tell
him about any quarrel at the time of
plucking the sugar cane. Further, he has
stated that he did not see any blood at the
place of occurrence neither on the front of
the door nor inside the house. His son was
shot, over the door of his house. He has
further stated that the accused persons also
sustained injuries and bleeding took place,
but no blood dropped over the ground. The
right hand of injured Bhurey was also full
of blood, but it was soaked in his clothes
and hand.

22. P.W.2 Bhurey, the injured has
also stated that all the three accused came
to the door of Girish and the occurrence
took place at the same place. When firearm
injury was inflicted upon the body of
Girish, he fell inside his bakhri. In his cross
examination, he states that both the parties
were bleeding on account of injuries
inflicted by lathis. Girish, Dinesh, Harpal,
Bhoop Singh and he himself received lathi
injuries and the blood oozed out and all this
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
happened at the door of the house of Bhoop
Singh.

23.

P.W.6,
who
is
the
first
investigating officer of the case and has
prepared the site plan Ex.Ka.-17 on the
pointing out of the informant, has taken the
blood stained and plain soil from the place
of occurrence. On being suggested by the
defence, he has categorically affirmed that
the place of occurrence was at the house of
the informant, as shown in the site plan,
and not in the sugarcane field.

24. The topography of the place of
occurrence finds place in the Site Plan
Ex.Ka.-17, wherein it has been explicitly
shown that the occurrence happened at the
door of the house of the informant Bhoop
Singh and after receiving firearm injury,
the deceased fell down in his house at place
''A'. The place, wherefrom the witnesses
saw the occurrence and tried to rescue as
well as the place of entry and exit of the
accused persons has also been shown in
Ex.Ka.-17. P.W.1, who has been crossexamined on the point of topography of the
place of occurrence, makes the statement
similar to that shown in the Site Plan
Ex.Ka.-17 and there is no contradiction
between the two. If we examine the
defence version that the occurrence took
place in the sugar cane field of accused
Natthu, we find that no evidence in support
of the aforesaid contention has been
adduced by the defence, which falsifies the
defence contention. It is quite possible that
under the impact of the fatal incident, the
informant (P.W.1) was unable to see any
blood over the place of occurrence, but the
investigating officer (P.W.6) has made a
categorical statement that blood stained soil
was taken by him from the place of
occurrence and he also proves the memo
thereof
as
Ex.Ka.-18.
None
of
the
prosecution
witnesses
says
that
the
occurrence took place in the sugar cane
field and the fact, which emerges out from
the analysis of the evidence on record, is
that prior to the present occurrence, the
sugar cane was plucked from the field of
accused Natthu, but no such occurrence
took place there.

25. On the basis of the aforesaid
discussion, we find that evidence on record
elucidates that the place of occurrence was
on the door of the house of the informant
Bhoop Singh and no evidence contrary to
that has been adduced by the defence side.

26. Motive, as we gather from
umpteen of cases, takes a back seat in a
case of direct ocular evidence and the
reason behind it is that it is always in the
mind of the accused as to why he is
committing
any
offence
and
the
prosecution in so many cases is unable to
explain the mental state behind the offence
committed. Thus, motive is never a sine
qua non for the commission of a crime.
However, in the factual scenario of this
case, the motive has been assigned in the
F.I.R.
itself.
The
prosecution
comes
forward with the specific story that when
grass was cut from the sugar cane field of
Natthu, the accused persons came over the
house of the informant using abusive
language and when his son Girish protested
to that, the offence was committed. P.W.1,
who is the father of the deceased, has made
similar statement in his deposition. In his
cross-examination, P.W.1 admits that there
is no enemity between him and the accused
persons. Kishan Veer, Bachchan and
Natthu had seen his son plucking the sugar
cane, but no altercation took place at that
time.

27. P.W.6, the investigating officer, in
his examination, has affirmed this fact that
4 All. Kishan Veer Singh Vs. State of U.P.
1063
the dispute arose between the parties over
the issue of cutting the grass by Dinesh, the
brother of the deceased, which supports the
prosecution version. In this way the
prosecution has also proved the motive of
the case, as mentioned in the FIR. This fact
also gets support from the defence version
also when the accused persons in their
statement under Section 313 Cr.P.C have
clearly stated that the dispute arose when
Girish and Dinesh were cutting sugar cane
from the field of the accused persons.

28. The trial Court has discussed the
various aspects of motive and enmity
existing between the parties in the present
case. Reliance has been placed upon Bikau
Pandey Vs. State of Bihar (2003) 12 SCC
616 by the learned State counsel, wherein it
has been held that when the direct evidence
establishes the crime, motive is of no
significance and pales into insignificance.

29. In Anil Rai Vs. State of Bihar
(2001) 7 SCC 318 it has been held that
enmity is a double edged weapon, which
can be a motive for the crime as also the
ground for false implication of the accused
persons.

30. There are catena of decisions on
the point that in a case based upon the eye
witness account, the motive loses its
significance. In Deepak Verma Vs. State
of Himachal Pradesh (2011) 10 SCC 129,
it has been held as under.

"........Proof of motive is not a
sine qua non before a person can be held
guilty of commission of crime. Motive
being a matter of mind, is more often than
not difficult to establish through evidence."

31. It is desirable for the prosecution
to ascertain whether the medical evidence
is in corroboration with the ocular evidence
or not. P.W.1 and P.W.2 both state in clear
terms that the accused Kishan Veer opened
fire upon the deceased, which inflicted
upon his back and was proved fatal to him
and he died when after receiving the
gunshot injury, he ran into the house and
fell in the verandah (aangan) there.

32. P.W.1 and P.W.2 make the similar
statement in respect of the fire made by
accused Kishan Veer and its injury inflicted
upon the deceased. P.W.2 also states that
he too received injuries from lathi, which
accused Bachchan and Natthu were having.
P.W.1, at the same time, states that when
the accused persons came there, they
started beating his son Girish by lathi and
danda and then accused Kishan Veer
opened fire upon him. Further, he states
that when his son was attacked by lathi, he
tried to save himself in the shade of the
wall and the lathi blows were inflicted upon
the wall. However, P.W.7, the investigating
officer, has denied that witness Bhoop
Singh had made any such statement to him.
P.W.1 also states that the fire was made at a
distance
of
one
step.
P.W.6,
the
investigating officer, has stated that in the
photo nash of the deceased, it has been
shown that the firearm injury was inflicted
over the back of right shoulder of the
deceased. However, he states that he has
not mentioned the distance where from the
deceased was fired.

33. This statement cannot be taken as
adverse to the prosecution case as P.W.1
has made a categorical statement that the
fire was made from a distance of one step.
It is noteworthy that the deceased has not
received any lathi injury, but only one
firearm injury, which was caused by
accused Kishan Veer. Although the other
two co-accused persons were having lathis
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
and the same position we find in respect of
statement of P.W.1 where he has been
contradicted with his statement under
section 161 Cr.P.C. and we also note that
the aforesaid contradiction also does not
falsify the prosecution case.

34. In the aforesaid context, the
medical evidence, if examined, says that
the deceased sustained only one injury and
that was the firearm entry wound over his
right shoulder wherein blackening was
present and the ribs were fractured and a
total of 288 pellets were recovered from the
wound. While proving the autopsy report as
Ex.Ka.-2, the Doctor (P.W.3) states that the
death is caused due to shock and
haemorrhage as a result of antemortem
firearm injury. It is pertinent to mention
here that finding of blackening over the
wound is a proof of the fact that the fire
was shot from a close range. P.W.3 says
that the blackening might have caused if
the fire was made from a distance of one or
two feet. This opinion is corroborated by
the testimony of P.W.1, who says that fire
was made from a distance of one step. It is
true that P.W.3 states that no injury of lathi
or danda was found over the body of the
deceased and the learned counsel for the
appellants highlighting this point has
argued that according to the prosecution
evidence, the deceased had also sustained
injuries of lathi and danda, but the medical
evidence speaks contrary to it, but we find
no material contradiction in this respect.
P.W.1 has stated that the deceased was
attacked with lathi also and anyhow he
managed to save him from the lathi blows
by hiding himself in a shade of a wall,
which was higher than his height. It is true
that P.W.2 states that the deceased Girish
also sustained injuries by lathi, but specific
statement is found in his deposition that the
deceased was fired by accused Kishan Veer
and died. The statement of P.W.2 regarding
lathi blows over the deceased may simply
be taken as an exaggerated statement,
which is negligible because the rustic
witnesses have a normal tendency to
exaggerate the situation, but that does not
make their whole testimony as unreliable.
There is no contradiction in the ocular
evidence adduced by the prosecution that
the deceased sustained firearm injury,
which resulted into his death and the
medical evidence corroborates the same.

35. The theory promulgated in respect
of appreciation of evidence of rustic
eyewitness and illiterate villager witness in
State of U.P. Vs. Chhotey Lal, A.I.R.
2011 Supreme Court 697 and State of
U.P. Vs. Krishna Master, 2010 (5) ALJ
423 (Supreme Court) very well applies in
the facts of this case, which means to say
that in case of rustic eyewitness, the Court
should always keep in mind his rural
background and the scenario in which the
incident had happened and should not
appreciate the evidence from rational angle
and discredit his otherwise, truthful version
on technical grounds. It should also be
taken into account that where the rustic
eyewitness of murder was subjected to the
grueling cross-examination for many days,
inconsistencies are bound to occur in his
evidence and they should not be blown out
of proportion. The Court should also
consider this aspect that such rustic
eyewitness cannot be expected to such
precision the exact distance / direction from
which he had witnessed the incident and
the description of incident happened in a
few minutes and his evidence cannot be
rejected.

36. P.W.2, in this case, has not been
cross-examined in one day and has been
called on subsequent dates also as appears
4 All. Kishan Veer Singh Vs. State of U.P.
1065
from the record of the case. It deems proper
to
us
that
the
ocular
version
of
eyewitnesses in this case should be taken in
light of the aforesaid legal theory.

37. Apart from this, we can safely
rely upon the Apex Court judgment in
Gangadhar Behera and Others v. State
of Orrisa, (2002) 8 SCC 381 wherein it
has been held as under.

"Falsity of particular material
witness or material particular would not
ruin it from the beginning to end. The
maxim "falsus in uno, falsus in omnibus"
has no application in India and the
witnesses cannot be branded as liars. The
maxim "falsus in uno, falsus in omnibus"
has not received general acceptance nor has
this maxim come to occupy the status of
rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases
testimony may be disregarded, and not that
it must be disregarded. The doctrine merely
involves the question of weight of evidence
which a Court may apply in a given set of
circumstances, but it is not what may be
called "a mandatory rule of evidence". (See
Nisar Ali v. State of U.P. [AIR 1957 SC
366 : 1957 Cri LJ 550].

38. P.W.2 Bhurey, is the injured
witness. He has also been medically
examined by P.W.8 on 26.7.2002. He, in
his deposition, states that when he was
trying to defend himself, he also sustained
lathi injuries and bleeded and accused
Bachchan and Natthu were having lathi and
danda. P.W.1 corroborates this fact that in
the incident, Bhurey received lathi injuries
and his right hand was bleeding. P.W.8
proves the injury report of injured Bhurey
as Ex.Ka.-21. He has found a lacerated
wound of 2 cm. x 5 cm. x muscle deep 8
cm. above the wrist joint and the injury was
found in the 1/3rd part of the upper part of
left hand. The injury was simple and fresh.
It might have been caused by some hard
and blunt object. The medical examination
was conducted on 25.7.2002 at 19:53 PM.

It is pertinent to mention here that
the injured Bhurey has been medically
examined at C.H.C., Bisauli on the basis of
letter of injury (chitthi majroobi) dated
25.7.2002, Ex.Ka.-5 prepared by P.W.4 at
the time of lodging of the F.I.R.

39. A scrutiny of the aforesaid
evidence takes us to the logical conclusion
that the prosecution case is fully supported
by the medical evidence.

40. The prosecution often has to face
a challenge as to the non production of
independent
witnesses
regarding
any
criminal
activity.
Answering
to
the
appellants' plea in this regard, the learned
A.G.A. has vehemently stated that though
several persons of the village were present
at the time of occurrence, the prosecution
was not under obligation to produce all of
them. In the F.I.R. itself, it has been
mentioned that at the time of the
occurrence, the villagers Bhurey, Mahindra
and Harpal reached there and exhorted the
accused persons. It was stated by P.W.1
and P.W.2 that during the course of
occurrence, P.W.2 also got injury by use of
lathi. P.W.1, in his cross-examination,
admits that all the witnesses belong to his
family and caste. Witness Harpal is the real
brother of Mahindra and Bhurey happens to
be the member of his family. To put a
glance over the charge Ex.Ka.-20, we find
that many witnesses have been named as
ocular witnesses of the incident e.g.
Surnam, Dinesh, Mahesh, Harpal, Bhurey,
Smt. Sridevi, Brahmdevi, Sukhdei etc. Out
of the aforesaid witnesses, one injured
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhurey has been examined as P.W.2 apart
from the informant P.W.1 Bhoop Singh.

41. The contention arose by the
learned counsel for the appellants find its
answer in State of Andhra Pradesh Vs. S.
Rayappa and Ors. (2006) 4 SCC 512,
wherein
the
Hon'ble
Supreme
Court
examined several aspects of a criminal trial
and this fact was also taken into account as
to why independent witnesses ignore to
depose in favour of the prosecution and in
what circumstances the probability of false
implication may be ruled out. It was also
clarified as to why the prosecution in so
many cases is bound to rely upon the
witnesses, who happen to be the relative to
the deceased (victim). It was held in para 6
and 7 as under.

"6.........By now it is a wellestablished principle of law that testimony
of a witness otherwise inspiring confidence
cannot be discarded on the ground that he
being a relation of the deceased is an
interested witness. A close relative who is a
very natural witness cannot be termed as an
interested witness. The term interested
postulates that the person concerned must
have some direct interest in seeing the
accused person being convicted somehow
or the other either because of animosity or
some other reasons.

7. On the contrary it has now
almost become a fashion that the public is
reluctant to appear and depose before the
court especially in criminal case because of
varied reasons. Criminal cases are kept
dragging for years to come and the
witnesses are harassed a lot. They are being
threatened, intimidated and at the top of all
they are subjected to lengthy crossexamination. In such a situation, the only
natural witness available to the prosecution
would be the relative witness. The relative
witness is not necessarily an interested
witness. On the other hand, being a close
relation to the deceased they will try to
prosecute the real culprit by stating the
truth. There is no reason as to why a close
relative will implicate and depose falsely
against somebody and screen the real
culprit to escape unpunished. The only
requirement is that the testimony of the
relative witnesses should be examined
cautiously. The High Court has brushed
aside the testimony of PW 1 and PW 2 on
the sole ground that they are interested
witnesses being relatives of the deceased."

42. As discussed above, P.W. 2
Bhurey
is
the
injured
witness.
Undoubtedly, the testimony of an injured
witness is always accorded a special
evidentiary status.

43. In Shivalingappa Kallayanappa
and Others Vs. State of Karnataka, 1994
Supp. (3) SCC 235, it was held that the
deposition of the injured witness should be
relied upon unless there are strong grounds
for rejection of his evidence on the basis of
major contradictions and discrepancies for
the reason that his presence at scene stands
established in case it is proved that he
suffered the injury during the said incident.

Similar dictum of law was
reiterated in State of U.P. Vs. Kishan
Chandra and others, (2004) 7 SCC 629
by observing that the testimony of a
stamped witness has its own relevance and
efficacy. The fact that the witness sustained
injuries at the time and place of occurrence,
lends support to his testimony that he was
present during the occurrence. In case the
injured witness is subjected to lengthy
cross-examination and nothing can be
elicited to discard his testimony, it should
4 All. Kishan Veer Singh Vs. State of U.P.
1067
be relied upon [vide Krishan v. State of
Haryana (2006) 12 SCC 459 ].

44.