# Kripa Shanker Dubey v. State of U.P

- **Citation:** (2022) 10 ILRA 194
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Criminal Appeal No. 1419 of 2009
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kripa-shanker-dubey-v-state-of-u-p-47704
- **Pages:** 12

## Headnote

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 302/34 - Arms Act,1959 -
Section 25 -Challenge to-Conviction-death
of deceased was caused with fire arm-FIR
ante-time-no motive-PW-1 & PW-2 were
relatives,
interested
witnesses,
their
testimony
was
full
of
contradictionsPresence of PW-1 is not mentioned in the
FIR-PW-2 statement was not recorded by
the I.O. u/s 161 Cr.P.C. but she was
introduced by the prosecution for the first
time before the trial court so her testimony
cannot be relied upon-Witnesses those were
named in the FIR had not been examined by
the
prosecution-Hence,
the
whole
prosecution story becomes doubtful and the
benefit of doubt is to be extended to the
accused appellants-Thus, the prosecution
could not proved its case beyond reasonable
doubt-Appellants
are
entitled
for
acquittal.(Para 1 to 51)

B. As a general rule, the Court can and
may act on the testimony of a single eye
witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the testimony of a solitary
witness. That is the logic of Section 134 of
the Evidence Act, 1872. It is observed that
in first two category there may be no
difficulty in accepting or discarding the
testimony of single witness. The difficulty
arises in the third category of cases. The
Court has to be circumspect and has to
look
for
corroboration
in
material
particulars by reliable testimony, direct or
circumstantial, before acting upon the
testimony of a single witness. (Para 42 to
44)

The appeals are allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,851 of 40,613. This is a partial read: ask again with offset=39851 for what follows._

194 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 194
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 1419 of 2009
With
Criminal Appeal No. 1313 of 2009

Kripa Shanker Dubey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.K. Singh Yadav, Sri Jitendra Singh, Sri
Manvendra Singh, Sri S.P. Srivastava

Counsel for the Respondent:
Govt. Advocate, Sri S.K. Srivastava

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 302/34 - Arms Act,1959 -
Section 25 -Challenge to-Conviction-death
of deceased was caused with fire arm-FIR
ante-time-no motive-PW-1 & PW-2 were
relatives,
interested
witnesses,
their
testimony
was
full
of
contradictionsPresence of PW-1 is not mentioned in the
FIR-PW-2 statement was not recorded by
the I.O. u/s 161 Cr.P.C. but she was
introduced by the prosecution for the first
time before the trial court so her testimony
cannot be relied upon-Witnesses those were
named in the FIR had not been examined by
the
prosecution-Hence,
the
whole
prosecution story becomes doubtful and the
benefit of doubt is to be extended to the
accused appellants-Thus, the prosecution
could not proved its case beyond reasonable
doubt-Appellants
are
entitled
for
acquittal.(Para 1 to 51)

B. As a general rule, the Court can and
may act on the testimony of a single eye
witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the testimony of a solitary
witness. That is the logic of Section 134 of
the Evidence Act, 1872. It is observed that
in first two category there may be no
difficulty in accepting or discarding the
testimony of single witness. The difficulty
arises in the third category of cases. The
Court has to be circumspect and has to
look
for
corroboration
in
material
particulars by reliable testimony, direct or
circumstantial, before acting upon the
testimony of a single witness. (Para 42 to
44)

The appeals are allowed. (E-6)

List of Cases cited:

1. Ram Lakhan Singh & ors.. Vs St. of U.P
(1977) AIR SCC 1996

2. Piara Singh & ors.. Vs St. of Punj. (1977) AIR
SC 2274 (1977) 4 SCC 452
3. Darya Singh Vs St. of Punj.(1965) AIR SC
328

4. Rammi @ Rameshwar Vs St. of M.P. (1999) 8
SCC 649

5. Leela Ram (dead) thru Duli Chand Vs St. of
Har. & anr.. (1999) 9 SCC 525

6. Bihari Nath Goswami Vs Shiv Kumar Singh &
ors..(2004) 9 SCC 186

7. Vijay @ Chinee Vs St. of M.P. (2010) 8 SCC
191

8. Sampath Kumar Vs Inspr of Police, Krishnagiri
(2012) 4 SCC 124

9. Shyamal Ghosh Vs St. of W.B. (2012) 7 SCC
646

10. Mritunjoy Biswas Vs Pranab @ Kuti Biswas &
anr..(2013) 12 SCC 796

11. Vadivelu Dhevar Vs St. of Madras (1957)
AIR SC 614
10 All. Kripa Shanker Dubey Vs. State of U.P.
195
(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Heard Sri Jitendra Singh, learned
counsel for appellant Kripa Shankar Dubey,
Sri Manvendra Singh, learned Advocate for
the appellant Uma Shankar Dubey and Sri
Rupak Chubey, learned A.G.A. for State
and perused the record.

2. These appeals emanate from the
judgment and order dated 18.02.2009
passed by Additional Session Judge/Special
Judge E.C. Act, Fatehpur in S.T. No.169 of
2006 (State vs. Kripa Shanker Dubey and
another) arising out of Case Crime No.213
of 2005, under Section 302 read with
Section 34 I.P.C. sentencing the appellants
with life imprisonment and fine of
Rs.10,000/- and in default of payment of
fine to undergo additional one year rigorous
imprisonment by each and in S.T. No.170
of 2006 (State vs. Kripa Shanker Dubey)
arising out of Crime No.218 of 2005, under
Section 25 Arms Act, Police Station
Lalauli, District Fatehpur whereby the
appellant Kripa Shanker Dubey has been
sentenced
with
two
years
rigorous
imprisonment with fine of Rs.1000/- and in
default of payment of fine to undergo
additional
six
months
rigorous
imprisonment.

3. The prosecution case in brief is that
on 22.12.2005 at about 8:00 P.M. an F.I.R.
was lodged at the Police Station Lalauli,
District Fatehpur by the informant Suresh
Kumar
S/o
Ramasrey
resident
of
Kichaucha, Police Station Lalauli, District
Fatehpur by filing a written report stating
therein that on 22.12.2005 at about 6:00
P.M. his elder brother Umesh @ Pappu
aged about 27 years went to the hand pump
to fetch water and as he (deceased) reached
near the hand pump Kripa Shanker Dubey
S/o Ram Vishal and his brother Uma
Shanker Dubey residents of the same
village equipped with country-made pistol
came with the intention of committing
murder and shot fire at him (deceased)
causing injuries in his stomach, as a result
it he died and accused persons fled away
towards the field. The incident was
witnessed by his bua (aunt) Maun Shree
and Surajpal.

4. The investigation of the case was
handed over to S.H.O. Manoj Kumar
Pandey who after receiving the information
went to the place of occurrence alongwith
other officials and conducted the inquest of
the dead body of deceased Umesh @ Pappu
and prepared the inquest report and other
relevant papers required for the purposes of
post-mortem. The dead body was sealed
and handed over to constable Baburam and
Devmani who took it to the Mortuary
District Hospital, Fatehpur.

5. The post-mortem was conducted on
23.12.2005 at 3:30 P.M. by Dr. A.S. Khan
who found the dead body in sealed cloth
intact which tallied the sample seal. The
external condition of the dead body as
described therein is as under :-

Average built body. Rigor mortis
present.

Antemortem Injuries

1. Fire arm wound of entry 2 cm
x 2 cm x cavity deep in right side of the
abdomen 15 cm outer to umbilicus at 9
O'clock
position.
Blackening
present
around
the
wound.
Intestines
were
protruded out from wound.

2. Contusion of 6 cm x 3 cm in
right side of the abdomen 20 cm below the
right nipple.

3. A mattelic bullet recovered
from left side of pelvic muscles which was
196 INDIAN LAW REPORTS ALLAHABAD SERIES
sealed in an envelop and sent to S.P.,
Fatehpur through C.M.S.

Cause of death was mentioned as
shock and hemorrhage as a result of
antemortem fire arm injury

6. During investigation, the statement
of informant Suresh Kumar was recorded
and after making spot inspection at the
instance of the informant, site plan was
prepared by the I.O. On 25.12.2005,
accused persons Kripa Shanker Dubey and
Uma Shanker Dubey were arrested near the
bus stand. A country-made pistol of 315
bore and one cartridge, from the pocket of
the accused and another cartridge from the
chamber of the country-made pistol were
recovered from the possession of accused
Kripa Shanker Dubey. Recovery memo was
prepared and a separate case because of the
recovery of the country-made pistol and
cartridge was registered u/s 25 Arms Act as
Crime No.218 of 2005 at the police station,
investigation of which was handed over to
S.I. Ram Chandra Mishra. Further the
statement of other witnesses were recorded
by the I.O and on the basis of the material
collected during the investigation, a prima
facie case under Section 302/34 I.P.C. was
found to be made out against the accused
persons, as a result, the charge-sheet was
submitted to the court concerned. Later on
reports from the F.S.L. were received and
submitted
to
the
Court
through
supplementary case diary.

7. In crime no.218 of 2005 u/s 25
Arms
Act,
the
investigating
officer
recorded the statement of informant Manoj
Kumar Pandey and constable Sarfaraz
Haider and after spot inspection at the
instance of the informant prepared the site
plan. After recording the statements of
other
witnesses
and
obtaining
the
prosecution sanction from the District
Magistrate, he filed charge-sheet before the
court concerned.

8. The learned court took cognizance
of the offence and provided copies of the
prosecution papers in compliance of
Section 207 Cr.P.C. to the appellants and
committed the case for trial.

9. The learned trial court after taking
into consideration the material on record
framed the charges against both the
appellants u/s 302 read with Section 34
I.P.C. and u/s 25 Arms Act against the
appellant Kripa Shanker Dubey. The
charges were read over and explained to the
appellants. They pleaded not guilty but
denied the charges and claimed for trial.
Consequently, the cases were fixed for
prosecution evidence. Since both the cases
were connected to each other, therefore,
consolidated and tried together.

10. In support of its case, the
prosecution examined PW-1 Suresh Kumar,
the first informant and brother of the
deceased; Pw-2 Sheetla Devi as eyewitness of the incident and mother of the
deceased; PW-3 Dr. A. S. Khan who
conducted post-mortem of dead body of the
deceased; PW-4 Constable Kunwar Singh
who prepared chick F.I.R. and entered the
detail in G.D.; PW-5 S.I. Manoj Kumar
Pandey the investigating officer of crime
no.213 of 2005 u/s 302 I.P.C. and PW-6 S.I.
Ram Chandra Mishra who investigated the
case registered u/s 25 Arms Act relating to
crime no.218 of 2005.

11. On conclusion of prosecution
evidence statement of accused persons
were recorded u/s 313 Cr.P.C. wherein
appellants Kripa Shanker Dubey and Uma
Shanker Dubey asserted the incident and
statements of witnesses relating thereto,
10 All. Kripa Shanker Dubey Vs. State of U.P.
197
false. In relation to recovery of arm and
cartridge appellant Kripa Shanker Dubey
termed it to be false and stated that he was
arrested by the police from his house and
false recovery of country-made pistol was
shown against him. In defence, no evidence
was adduced on the part of the appellants.

12. After hearing the arguments on
behalf of the appellants as well as for the
State, the trial court passed the judgment
and order dated 18.02.2009 convicting the
appellants as aforesaid against which these
appeals are preferred.

13. Learned counsel for the appellants
submits that the impugned judgment and
order of conviction is bad in law being
against the evidence on record. The trial
court has erred in convicting the appellants
without making proper appreciation of the
evidence. The appellants had no motive to
commit the murder of the deceased. The
F.I.R. is ante-time. PW-1 & PW-2 are
relatives of the deceased, therefore, they
are interested witnesses, their testimony is
full of contradictions. The statement of
PW-2 u/s 161 Cr.P.C. was not recorded by
the
investigating
officer
during
investigation but she was introduced by the
prosecution for the first time before the trial
court so her testimony cannot be relied
upon. The presence of PW-1 is not
mentioned in the F.I.R. so he cannot be said
to be an eye-witness. In this way, the
testimony of PW-1 being not present on the
spot at the time of alleged incident and PW2 being not examined by the investigating
officer and not named in the F.I.R. as eyewitness cannot be made the basis of
conviction. The witnesses those were
named in the F.I.R. have not been examined
by the prosecution. As a result, the whole
prosecution story becomes doubtful and the
benefit of doubt is to be extended to the
accused appellants. Thus, the prosecution
could not prove its case beyond reasonable
doubt and the appellants are entitled for
acquittal.

14. Learned A.G.A. opposed the
contentions raised by the learned counsel
for the appellants and urged that in this case
the informant as well as PW-2 both were
present on the spot and they had narrated
the whole prosecution story as well. They
are eye-witnesses, therefore, motive looses
its importance. The testimony of PW-2
cannot be discarded only on the basis that
her statement u/s 161 Cr.P.C. was not
recorded by the investigating officer. No
prejudice
is
caused
to
the
accused
appellants. The presence of PW-1 on the
spot is not disputed. From the reading of
the F.I.R., it is clear that PW-1 was present
on the spot at the time of the incident. The
prosecution witnesses, though relatives but
their testimony cannot be discarded on this
account only if they are reliable and
trustworthy otherwise. The contradictions
in the testimony of the witnesses are minor
in nature and are not likely to affect the
veracity
of
the
statements,
hence
immaterial. The death of deceased Umesh
Kumar Singh is said to be caused with fire
arm which gets support from the postmortem. In this way, the prosecution had
proved its case beyond reasonable doubt
against the appellants. The trial court has
passed the judgment and order on the basis
of evidence on record after appreciating the
evidence according to the settled principles
of law. There is no error in the judgment
under challenge. These appeals being
devoid of merit are liable to be dismissed.

15. From the submissions and perusal
of the record, the questions which emerge
for consideration of this Court are :- as to
whether the F.I.R is ante-time; motive is
198 INDIAN LAW REPORTS ALLAHABAD SERIES
absent; the witnesses being relatives; no
independent
witnesses
having
been
examined would have adverse affect on the
prosecution case; as to whether the alleged
contradictions in the testimony of witnesses
make it unreliable and non-recording the
statement of PW-2 u/s 161 Cr.P.C. by the
investigating officer would cause prejudice
to the appellants.

16. Before we deal with the
contentions raised by the learned counsel
for the appellants, it would be convenient
to take note of the evidence adduced by the
prosuection.

17. PW-1 Suresh Kumar is the first
informant and brother of the deceased who
deposed that there was enmity on account of
village pradhani elections between both the
families of the accused and the deceased. On
22.12.2005 at about 6:00 P.M., his elder
brother Umesh Kumar went to fetch water at
the hand pump in front of his house. As his
brother reached near the hand pump,
appellant Kripa Shanker Dubey opened fire
which hit in the stomach of his brother on the
right side near the umbilicus and after 10-15
minutes, he died. P.W.1 took the injured
inside the house and made him lie down on
the cot where he died. This incident was
witnessed by he himself, his bua (aunt)
Maun-Shree, another aunt Rajrani and
Surajpal. The accused persons fled away after
shooting the deceased. At the time of the
incident, he (the informant) was at his gate
and his bua (aunt) and another aunt were at
the hand pump and Surajpal was talking to
his brother (deceased). He himself wrote the
written report and gave it at the police station
Lalauli, which he proved in his hand writing
as Ex Ka-1.

18. PW-2 Sheetla Devi mother of the
deceased deposed that she knew the
accused Kripa Shanker Dubey and Uma
Shanker Dubey who were residents of her
village. The murder of her son Umesh
Kumar was committed at about 6:00 P.M.
near the hand pump in front of her house
where his son went there to fetch water.
Kripa Shanker came there and made fire on
the stomach of his son Umesh @ Pappu.
No other person was with Kripa Shanker
Dubey. PW-2 stated that she was at her gate
at that time from there she was watching
everything. The incident was witnessed by
Surajpal, his wife and Maushree. Suresh
also saw the incident. She further stated
that Uma Shanker Dubey was on the back
side and he did nothing. She stated that she
narrated all these facts to the police.

Both the witnesses were crossexamined on behalf of the appellants at
length.

19. PW-3 Dr. A. S. Khan has proved
the post-mortem report as Ex Ka- 2 in his
hand writing and signature. He told that the
injury was caused with fire arm like
country-made pistol at about 6:00 P.M. as a
result, the deceased died. He also opined
that the cause of death was shock and
hemorrhage due to antemortem fire arm
injury. During post-mortem, a bullet was
recovered from the abdomen of the
deceased which was sealed and sent to S.P.,
Fatehpur through C.M.S.

20. PW-4 constable Kunwar Singh
has proved the check F.I.R. which was
prepared by him on the basis of written
report in his hand writing and signature as
Ex Ka-3 and G.D. as Ex Ka-4.

21. PW-5 S.I. Manoj Kumar Pandey
who investigated the case has proved the
investigation and the papers prepared by
him relating to the inquest as Ex Ka-5 to
10 All. Kripa Shanker Dubey Vs. State of U.P.
199
10, recovery memo as Ex Ka-11, countrymade pistol and cartridge as material Ex.- 1
to 3, charge-sheet as Ex Ka-12 and F.S.L.
report as Ex Ka- 13 & 14.

22. PW-6 S.I. Ram Chandra Mishra
has proved the investigation relating to the
Crime No.218 of 2005 registered u/s 25
Arms Act, site plan as Ex Ka-15, chargesheet as Ex Ka-16, prosecution sanction as
Ex Ka-17 and check F.I.R. in the hand
writing of constable Ramkripal Pandey as
Ex Ka-18 and G.D. as Ex Ka-20.

23. Relating to the F.I.R, it is argued
that it is antetime. In this regard, it is to
note that the incident took place on
22.12.2005 at 6 p.m. and F.I.R. was lodged
at 8.p.m on the same day at the police
station concerned, 12 km away from the
place of occurrence. P.W.4 constable
Kunwar Singh deposed that he lodged the
F.I.R. on 22.12.2005 at 8 O'clock on the
basis of the written report given by
informant Suresh Kumar and entered its
detail in the G.D. report no. 26 in the
presence of the Station House Officer of
the police station and, thereafter, sent him
to the place of occurrence. P.W. 5. Manoj
Kumar Pandey, the station house officer
deposed that he had gone to attend the OR
of ASP at the Fatehpur Police Office, while
returning he was informed on the RT set
that Umesh Kumar had been murdered in
the village Kichhauchha. He reached at the
village directly and conducted the inquest
and prepared relevant papers. It shows that
PW-5 was not present at the Police Station
at 8 p.m. as stated by P.W.4 but arrived at
the police station after conducting the
inquest and sending the dead body for postmortem from the place of the incident.

24. P.W.1 informant has stated that he
wrote the written report and gave it in the
police station Lalauli, which he proved as
Ex. Ka-1. During cross examination, P.W.1
stated that he called the police by phone
call from the police station. The Station
Officer was somewhere else from where he
came on the spot. Then P.W.1 told him
(P.W.5) about the incident who got him
write down the report. P.W.1 showed the
place of occurrence to the Investigating
Officer. P.W.1 did not take the dead body to
the police station. The inquest was
conducted at home, then he went with the
Investigating Officer to lodge the FIR. The
Investigating Officer dictated, he wrote and
gave that written report to him. This
statement of P.W.1 clearly shows that the
station house officer was not present at the
police station. The informant called the
police by phone and did not go to the police
station for lodging the FIR on his own but
after the Station Officer visited the place of
the occurrence and conducted inquest,
P.W.1 went with him to the police station
and lodged the FIR by giving the report,
written by him on the dictation of the
Station Officer. The inquest shows that the
proceedings were started at 20.23 p.m. and
completed on 23.35 pm. It infers that the
station house officer reached at the police
station after 23.35 p.m. with the informant
and then FIR was lodged on the basis of the
written report given by the informant,
mentioning therein the time of receiving
information at 8 pm, which proves that the
FIR was lodged ante-time.

25. It is also argued that PW2 Sheetla
Devi mother of the deceased and PW 1, had
not witnessed the incident. P.W.2 was not
present at the time of the incident. Her
statement was neither recorded by the
Investigating Officer nor her name was
mentioned in the list of witnesses in the
charge sheet, therefore, she cannot be relied
on. In this regard, it is true that the
200 INDIAN LAW REPORTS ALLAHABAD SERIES
informant did not mention her name in the
F.I.R. with other witnesses who had
witnessed the incident. Her statement was
not recorded by the Investigating Officer
under Section 161 Cr.P.C. and also her
name was not included in the list of
prosecution witnesses in the charge sheet
but she was produced before the trial court
as P.W.2 projecting her as eye witness of
the incident. On 4.4.2007, after one and
half year, for the first time, she (P.W.2)
deposed that the incident was seen by her.

26. P.W. 2 stated that she was present
at the gate of her house at the time of the
incident. She further stated that she came
from the tubewell and reached at her house
and in the meantime, occurrence took
place. She went back on the gate of the
house and stood there. Suresh (P.W.1) was
also there at the gate.

27. P.W.1 Suresh had not disclosed
the presence of this witness i.e., P.W.2 at
the place of occurrence in the F.I.R. and
Section 161 Cr.P.C. statement, though
during his examination in the court, P.W.1
stated about the presence of his bua
Maunshree, bhabhi Rajrani and Surajpal,
who were not examined during the trial. In
his cross-examination, P.W. 1 also stated
that his mother was in the house. At the
time of occurrence, he was out of the gate
and
Surajpal
Rakesh,
Rajshree
and
Maunshree were collecting water. He heard
the sound of firing. All people present there
disbursed and accused persons fled away.
He remained there alone and brought his
brother, the deceased inside the house.
When he brought the deceased to some
distance, his mother came, then both of
them took the deceased and lay his body on
the cot. In this way, the version of P.W. 2
that she was present at the gate with P.W. 1
Suresh and witnessed the incident, does not
get support from the statement of Suresh
but it seems that she (PW-2) was in the
house and came outside after the incident
had occurred and while P.W. 1 Suresh was
carrying the deceased from the place of
occurrence to his house. Thus, the presence
of P.W. 2, on the spot, at the time of the
incident, is not established. Her testimony
that she witnessed the accused persons
making fire at the deceased does not inspire
confidence of the court.

28. The names of other witnesses
namely, Maunshree and Surajpal were
mentioned in the F.I.R. who witnessed the
incident and were present there at the time
of the occurrence. But both these witnesses
have not been examined by the prosecution,
for the reasons best known to them. The
testimony of P.W.2 about his presence is
unreliable
and
is
nothing
but
an
improvement on the material aspect of the
case.

29. It is to be noted that a witness,
whose name was not mentioned in the
F.I.R. as an eye witness, and whose
statement
was
not
recorded
by
the
Investigating Officer under Section 161
Cr.P.C. and is not shown in the list of
witnesses in the charge sheet but examined
before the trial court to the first time years
after the occurrence, his testimony cannot
be considered safe to rely on, for it may
cause prejudice to the accused.

30. It has been held by The Hon'ble
Supreme Court in the case of Ram Lakhan
Singh And Ors. vs. The State Of U.P.
AIR1977 SCC 1996 that "It is true that no
enmity or grudge is suggested against this
witness, but we find that this witness was
not even examined by the police nor was he
cited in the chargesheet. In a grave charge
like the present, it will not be proper to
10 All. Kripa Shanker Dubey Vs. State of U.P.
201
place reliance on a witness who never
figured during the investigation and was
not. named in the chargesheet. The accused
who are entitled to know his earlier version
to the police are naturally deprived of an
opportunity of effective cross-examination
and it will be difficult to give any credence
to a statement which was given for the first
time in court after about a year of the
occurrence. We cannot, therefore, agree
that the High Court was right in accenting
the evidence of this witness as lending
assurance to the testimony of other
witnesses on the basis of which alone
perhaps, the High Court felt unsafe to
convict the accused."

31. Now there remains the testimony
of P.W.1 Suresh, who is the brother of the
deceased and the informant.

32. It is argued by the learned counsel
for the appellants that the testimony of this
witness cannot be relied upon he being an
interested witness. In this regard, it is true
that P.W. 1 Suresh is the real brother of the
deceased and comes in the category of
related witness. It has also been stated by
P.W. 1 that the appellants committed
murder of his brother owing to the enmity
relating to the village pradhan election but
only on account of enmity and being
related witness his evidence cannot be
disbelieved, rather his testimony is to be
scrutinized with case and circumspection
because of the alleged enmity.

33. In Piara Singh and Ors. Vs. State
of Punjab, AIR 1977 SC 2274 (1977) 4
SCC 452, Hon'ble The Supreme Court
held: "It is well settled that the evidence of
interested or inimical witnesses is to be
scrutinised with care but cannot be rejected
merely on the ground of being a partisan
evidence. If on a perusal of the evidence the
Court is satisfied that the evidence is
creditworthy there is no bar in the Court
relying on the said evidence." In such
cases, their evidence is to be scrutinized
with great circumspection.

34. Further it is contended by the
learned counsel for the appellants that no
independent witness has been examined by
the prosecution, therefore, the testimony of
P.W. 1 cannot be relied upon in absence of
corroboration
with
some
independent
source. It is to note that in the F.I.R., P.W. 1
named his bua (aunt) Maunshree and
Surajpal as eye witnesses of the incident
but both of them had not been examined
before the trial court and there was no other
witness said to be present at the time of
occurrence.
On
the
basis
of
nonexamination of these two eye witnesses, the
testimony of P.W. 1 cannot be discarded at
all because ordinarily in village, no person
wants to become a witness by putting his
life in risk of inviting enmity with other
villagers named as accused, therefore, non
examination of independent eye witness
cannot affect the reliability of related
witness.

35. In the case of Darya Singh Vs.
State of Punjab AIR 1965 SC 328, Hon'ble
The Supreme Court observed that "It is
well-known that in villages where murders
are committed as a result of factions
existing in the village or in consequence of
family feuds, independent villagers arc
generally
reluctant
to
give
evidence
because they are afraid that giving
evidence might invite the wrath of the
assailants and might expose them to very
serious risks. It is quite true that it is the
duty of a citizen to assist the prosecution by
giving
evidence
and
helping
the
administration of criminal law to bring the
offender to book, but it would be wholly
202 INDIAN LAW REPORTS ALLAHABAD SERIES
unrealistic to suggest that if the prosecution
is not able to bring independent witnesses
to the Court because they are afraid to give
evidence, that itself should be treated as an
infirmity in the prosecution case so as to
justify the defence contention that the
evidence actually adduced should be
disbelieved on that ground alone without
examining its merits."

36. It is also argued that there are
omissions, discrepancies and contradictions
in the testimony of P.W. 1 which do not
inspire confidence. It is well settled law
that minor discrepancies are not to be given
undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
not be taken to be a ground to reject the
prosecution evidence. The omission should
create
a
serious
doubt
about
the
truthfulness or creditworthiness of a
witness. It is only serious contradictions
and omissions which materially affect the
case of the prosecution but not every
contradiction or omission. (See Rammi @
Rameshwar Vs. State of M.P., (1999) 8
SCC 649; Leela Ram (dead) through Duli
Chand Vs. State of Haryana and Another,
(1999) 9 SCC 525; Bihari Nath Goswami
Vs. Shiv Kumar Singh & Ors., (2004) 9
SCC 186; Vijay @ Chinee Vs. State of
Madhya Pradesh, (2010) 8 SCC 191;
Sampath Kumar Vs. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124; Shyamal
Ghosh Vs. State of West Bengal, (2012) 7
SCC 646 and Mritunjoy Biswas Vs.
Pranab @ Kuti Biswas and Anr., (2013) 12
SCC 796).

37. It is also contended that there was
no motive to commit the murder of the
deceased by the appellants, even though the
trial court has convicted the appellants. As
per the F.I.R., there was enmity between both
the parties relating to the election of the
village Pradhan and that was the reason of the
appellants to commit murder of the deceased,
as stated by P.W. 1 during his examination
before the court. Further it is settled legal
proposition that even if there is absence of
motive, as argued, that itself is of no
consequence and it pales into insignificance
when direct evidence establishes the crime. In
case there is direct, trustworthy evidence of
the witnesses as to commission of an offence,
motive looses its significance and if genesis
of the incident or motive of the occurrence is
not proved, the ocular testimony of the
witnesses as to the occurrence can not be
discarded only on the ground of absence of
motive if otherwise the evidence is worthy of
reliance.

38. Last argument on the part of the
learned counsel for the appellants is that the
presence of P.W.1 at the place of
occurrence is also disputed because he did
not fix his presence in the F.I.R. and his
statement before the trial court is nothing
but an improvement of the other witnesses
who as per the statement in the F.I.R. had
seen the occurrence were not examined.

39. In this regard, it is noteworthy that
in the written report given by P.W.1
10 All. Kripa Shanker Dubey Vs. State of U.P.
203
himself, he did not mention of having
witnessed accused persons firing at the
deceased but wrote clearly that the incident
was witnessed by his bua (aunt) Maunshree
and Surajpal ßbl ?kVuk dks esjh cqvk ekSuJh o
lwjtiky us ns[kk gS AÞ which infers that this
witness
himself
had
not
seen
the
occurrence.

40. During his examination before the
trial court, PW-1 projected himself as a
witness of the incident. In the crossexamination, he stated that his brother was
taking water when the accused persons
came from the North side of the way. There
was sound of fire which he heard. About
the presence of PW-2, he stated that his
mother Sheetla Devi (PW-2) was inside the
house alongwith other family members
such as his sister-in-law and wife with
children. He then stated that when the
appellants shot the deceased, all persons
present there were disbursed and he alone
was left there. He carried the deceased to
his house who was alive at that time. When
he carried his brother to some distance, his
mother came and then both of them put the
deceased on a cot. Thereafter, he went to
Jindpur to the doctor who did not meet and
then PW-2 stated that he went for arranging
the vehicle to bring the doctor and when
could not get the vehicle he came back
from Jindpur which was around 1 KM from
his village. When he came back, his brother
had already died. He then stated that he put
his brother in a tractor to take to the doctor
and then saw he did not have pulse, so
came back. His three uncles and brother
were with him. Then police was called
through telephone from the police station.
The Station House Officer came on his own
from somewhere. The incident was narrated
to him and he noted it down. He went to
lodge the first information report alongwith
the Investigating Officer after the inquest
was concluded and the body was sent for
the postmortem. PW-1 stated that whatever
was dictated by the Investigating Officer,
he wrote the same. In this testimony, PW-1,
stated that he was outside the gate of his
house at the time of the incident and other
witnesses were near the handpump. The
mother of the deceased Sheetla Devi (PW2) stated that at the time of the incident she
came back from the tube well and reached
inside the house. The incident had occurred
at that point of time and she immediately
returned back. In the same breath, PW-2
stated that she was standing at the gate and
was waiting for the deceased to come back
so that she could talk to him. PW-1 was
also with her at the gate and then stated that
at that time itself, the deceased was hit and
she was standing facing towards the west.

41. The postmortem report indicates
only one firearm injuries on the person of
the deceased which means that only one
fire was shot. In light of this medical
evidence, when the testimony of PW-2 is
examined, her version is that she having
returned from the tube well, reached inside
the house and then the incident had
occurred and she immediately came back.
According to PW-1, the accused persons
immediately ran away having shot his
brother. When PW-2, mother of the
deceased was inside the house she could
have come out hearing the sound of fire
which was one only. In all probabilities,
testing the version of PW-2, she did not
witness the appellants accused opening fire
at the deceased. Beyond that nothing has
been stated by PW-2 on confrontation, in
cross, about the presence of the accused
appellants.
Her
statement
in
the
examination-in-chief that the appellant
Kripa Shanker Dubey came and fired at her
son while she was standing at her gate
could not be substantiated from her version
204 INDIAN LAW REPORTS ALLAHABAD SERIES
in the cross-examination. Her statement in
cross-examination
is
found
to
be
inconsistent with the version of PW-2 in
her examination-in-chief. It, thus, appears
that PW-2 had reached at the place of the
incident soon after the incident had
occurred but she did not witness the
incident i.e. the accused opening fire at the
deceased or them being the assailants.

42. As a general rule, the Court can
and may act on the testimony of a single
eye witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the testimony of a solitary
witness. That is the logic of Section 134 of
the Evidence Act, 1872. As regards the PW1, from his version that he wrote the written
report at the dictation of the Investigating
Officer and then went to the police station,
non-mentioning of his name as a witness of
the incident in the F.I.R. becomes relevant.
PW-1, the informant, thus, remains a
solitary witness of the incident.

43. The law of evidence does not
require any particular principle of witness
to be examined in proof of a given fact.
However, faced with the testimony of a
single witness, the Court may classify the
oral testimony into three categories namely
:- (i) wholly reliable; (ii) wholly unreliable;
(iii) neither wholly reliable nor wholly
unreliable.

44. In Vadivelu Dhevar vs. State of
Madras AIR 1957 SC 614, while laying the
principle of appreciation of testimony of
solitary witness, as noted above, it was
observed that in first two category there
may be no difficulty in accepting or
discarding the testimony of a single
witness. The difficulty arises in the third
category of cases. The Court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial,
before acting upon the testimony of a single
witness.

45. In light of the above principle,
when we examine the statement of PW-1
there are material improvement on the
aspect of him being eye witness, coupled
with the fact that first information report
was found to be ante time and the presence
of PW-1 on the spot was sought to be fixed
by him for the first time during his
deposition in the Court, when the report
itself was scribed by him, the testimony of
this witness would fall in the third category
as this witness is neither wholly reliable nor
wholly unreliable. We can neither place
reliance nor totally discard the testimony of
this witness. We find his testimony to have
been substantially improved at the trial than
what it was to began with when the first
information report of the incident was
lodged.

46. In the said scenario, we cannot,
therefore, agree with the Sessions Court in
accepting the evidence of P.W.2 as lending
assurance to the testimony of P.W. 1 on the
basis of which alone perhaps, the trial
Court itself felt unsafe to convict the
accused.

47. So far as the recovery of the
country-made pistol is concerned, it was
made by the Investigating Officer during
the investigation at the time of arrest of
accused persons from the Bus Stand near
the tea stall on the basis of an information
given by informer at about 21.25 o'clock. It
has been proved by the P.W. 5, S.I. Manoj
Kumar Pandey who made arrest and
recovery, the place where-from appellants
were arrested was a public place, a tea stall
near the bus stand. Ext. Ka-6 site plan of
10 All. Shri Prakash Gupta Vs. State of U.P.
205
the recovery shows that there were so many
shops of tea, eggs and P.C.O. near the place
of the arrest, where presence of people
cannot be disputed at early hours in the
night but no public witness was found by
the arresting officer. It makes the recovery
doubtful. Further it is noteworthy that the
arrest of the accused person was made on
25.12.2005 after three days of the alleged
incident of murder while they were
allegedly carrying the same country-made
pistol with used cartridge in its chamber
and another cartridge in his pocket. It
seems improbable that the culprit who is a
named accused in the F.I.R. would carry the
country-made pistol with used cartridge in
its chamber after three days of committing
murder with the same weapon. Even the
police personnel accompanying him at the
time of the arrest had not been examined.
During
the
cross-examination,
PW-5
expressed his inability to explain the
orientation of the place of arrest and
recovery. The recovery of country-made
pistol and cartridge, as such, cannot be
believed being beyond the shadow of
reasonable doubt.

48. After having examined the entire
evidence and considering the circumstances
of the case at hand in totality, we are afraid to
affirm the conviction on the oral testimony of
the prosecution witnesses (PW-1 & PW-2)
and to hold that the prosecution has
established the charges against the accused
persons beyond reasonable doubt. The benefit
of reasonable doubt, therefore, has to go to
the accused persons and they are liable to be
acquitted of all the charges. The judgment
and order of the Sessions Court convicting
and sentencing the appellants is hereby set
aside.

49. The appellant Kripa Shanker
Dubey is in jail who shall be released from
the detention forthwith, if not wanted in
any other case.

50. Appellant Uma Shanker Dubey is
on bail. He need not to surrender, his bail
bonds are cancelled and sureties are
discharged.

51. These appeals are, accordingly,
allowed.

52. Copy of this judgment alongwith
the original record be transmitted to the
Court concerned for necessary compliance.
A compliance report be sent to this Court
within one month.