# Mahey Alam v. State of U.P

- **Citation:** Criminal Appeal No. 1562 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Criminal Appeal No. 1562 of 1996
- **Bench:** Pankaj Mithal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahey-alam-v-state-of-u-p-46434
- **Pages:** 17

## Headnote

Criminal law- Indian Penal Code -Section
302 - Appeal against conviction.

Held :- Interested Witnesses - Statement
can be relied upon in support of prosecution
story. (Para 31)
Motive - Irrelevance of insignificant in case of
availability of the direct witnesses. (Para 34)
Testimony of Child- Can be relied if the child
has intellectual capacity to understand questions
and give rational answers. (Para 37)
Minor Contradiction / Inconsistency In
Evidence- Can be ignored if does not affect the
core prosecution version. (Para 43)
Non-Examination of Independent Witness
-Not fatal - conviction can be based on
statement of sole witnesses even if a relative of
deceased. (Para 48)

Appeal rejected. (E-2)
List of Cases Cited:-

## Text

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3-5 All. Mahey Alam Vs. State of U.P.
517
occurrence is neither disputed nor can be
doubted from any of the circumstances
brought before the Court. It is proved by
the prosecution that all accused persons in a
pre-mediated manner formed an unlawful
assembly in prosecution of the common
object of such assembly and being armed
with deadly weapons caused death of four
persons by inflicting fatal injuries in a
manner that the deceased could not escape
the attack.

73. All the appellants/accused
persons are, thus, found guilty of the
offences under Section 302 read with
Sections 149 I.P.C. as also for the
offences under Section 147 and 148 IPC.
Their conviction under the aforesaid
provisions
is
found
justified.
The
sentences
awarded
to
the
accused/appellants for the offences for
which
they
are
found
guilty
are
minimum. No infirmity is, therefore,
found in the decision of the trial court.
The conviction and sentence awarded to
each of the accused/appellant is hereby
upheld.

74. The accused persons are on
bail. Their bail bonds are cancelled and
sureties are discharged. They shall
surrender forthwith before the concerned
court and be taken into custody and sent
to jail to serve their sentence.

75. Certify this judgement to the
court below immediately for compliance.

76. The compliance report be
submitted through the Registrar General,
High Court, Allahabad.

77.
Both
the
appeals
are,
accordingly, dismissed.
----------
(2020)03-05ILR A517
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1562 of 1996

Mahey Alam ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri I.M. Khan, Sri H.Khan, Sri Rajesh Kumar
Singh (A.C.)

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

Criminal law- Indian Penal Code -Section
302 - Appeal against conviction.

Held :- Interested Witnesses - Statement
can be relied upon in support of prosecution
story. (Para 31)
Motive - Irrelevance of insignificant in case of
availability of the direct witnesses. (Para 34)
Testimony of Child- Can be relied if the child
has intellectual capacity to understand questions
and give rational answers. (Para 37)
Minor Contradiction / Inconsistency In
Evidence- Can be ignored if does not affect the
core prosecution version. (Para 43)
Non-Examination of Independent Witness
-Not fatal - conviction can be based on
statement of sole witnesses even if a relative of
deceased. (Para 48)

Appeal rejected. (E-2)
List of Cases Cited:-

1. Dalip Singh Vs. St. of Punj. (1954) SCR 145,

2. Masalti Vs. St. of UP AIR 1965 SC 202,
518 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Darya Singh Vs.St. of Punj. AIR 1965 SC 328,

4. St. of UP Vs. Kishanpal (2008) 16 SCC 73,

5. Appa Vs. St. of Guj., AIR 1988 SC 698,

6. St. of AP Vs. S. Rayappa (2006) 4 SCC 512,

7. Pulicherla Nagaraju @ Nagaraja Reddy v St.
of AP (2007) 1 SCC (Cri) 500,

8. Satbir Singh Vs. St. of UP, (2009) 13 SCC
790,

9. M.C. Ali Vs. St. of Kerala AIR 2010 SC 1639,

10. Himanshu Vs. St. (NCT of Delhis, (2011) 2
SCC 36,

11. Bhajan Singh and others Vs. St. of
Haryana; (2011) 7 SCC 421,

12. Jayabalan Vs. U.T. of Pondicherry, 2010(68)
ACC 308 (SC),

13. Dharnidhar Vs. St. of UP, (2010) 7 SCC 759,

14. Ram Bharosey Vs. St. of UP AIR 2010 SC
917,

15. Balraje @ Trimbak Vs. St. of Maharashtra,
(2010) 6 SCC 673,

16. Jalpat Rai Vs. St. of Haryana AIR 2011 SC 2719,

17. Waman Vs. St. of Maharashtra AIR 2011 SC
3327,

18. Shyam Babu Vs. St. of UP, AIR 2012 SC 3311,

19. Dhari & Others Vs. St. of UP, AIR 2013 SC 308,

20. Ganapathi Vs. St. of Tamilnadu, AIR 2018 SC
1635,

21. Rupinder Singh Sandhu Vs.St. of Punjab, (2018)
16 SCC 475,

22. Shio Shanker Dubey Vs. St. of Bihar AIR
2019 SC 2275,

23. Abu Thakir Vs. St. AIR 2010 SC 2119,

24. St. of UP Vs. Nawab Singh AIR 2010 SC 3638,

25. Bipin Kumar Mondal Vs.St. of WB 2005 SCC (Crl)
33,

26. Shivraj Bapuray Jadhav Vs. St. of Karnataka
(2003) 6 SCC 392,

27. Thaman Kumar Vs. St. of U.T. of Chandigarh
(2003) 6 SCC 380,

28. St. of HP Vs. Jeet Singh; (1999) 4 SCC 370,

29. Gopi Ram Vs.St. Of UP, 2006 (55) ACC 673 SC,

30. R.R. Reddy Vs.St. of AP, AIR 2006 SC 1656,

31. Sucha Singh Vs.St. of Punj.; AIR 2003 SC 1471,

32. St. of Raj. Vs. Arjun Singh AIR 2011 SC 3380,

33. Varun Chaudhry Vs. St. of Raj. AIR 2011 SC 72.

34. Saddik Vs. St. of Guj., (2016) 10 SCC 663

35. Digamber Vaishnav Vs.St. of Chhattisgarh, (2019)
4 SCC 522

36. Acharaparambath Pradeepan Vs. St. of
Kerala, 2007(57) ACC 293 (SC),

37. St. of Karn. Vs. Shantappa Madivalappa, AIR
2009 SC 2144,

38. St. of U.P Vs. Krishna Master, AIR 2010 SC
3071,

39. K. Venkateshwarlu Vs. St. of AP, AIR 2012 SC
2955,

40. Algupandi @ Alagupandian v St. of TN,
(2012)10 SCC 451,

42. St. of UP Vs.Naresh, 2011 (75) ACC 215 (SC),

43. Gosu Jayarami Reddy & anr. Vs. St. of A.P.,
(2011) 3 SCC(Cri) 630,

44. Parsu Ram Pandey vs St. of Bihar AIR 2004 SC
5068,

45. Shivappa Vs.St.of Karn.; AIR 2682,
3-5 All. Mahey Alam Vs. State of U.P.
519
46. Ramchandaran Vs. St. of Kerala AIR 2011
SC 3581,

47. Mukesh Vs. St. for NCT of Delhi, AIR 2017
SC 2161,

48. Bhagwan Jagannath Markad Vs. St. of
Maharashtra, (2016) 10 SCC 53,

49. Jarnail Singh Vs. St. of Punj., 2009 (6)
Supreme 526,

50. Bhagwan Jagannath Markad Vs. St. of Mah.,
(2016) 10 SCC 537,

51. Ramji Singh Vs. St. of UP, 2019 (4) Crimes
585 (SC),

52. Nand Kumar Vs. St. of Chhatisgarh, (2015)
1 SCC 776,

53. Bhagwan Jagannath Markad Vs. St. of
Maharashtra, (2016) 10 SCC 537,

54. Sandeep Vs. St. of UP (2012) 6 SCC 107,

55. Kripal Singh Vs. St. of Har., AIR 2013 SC
286,

56. Bhagwan Jagannath Markad Vs.St. of Mah.,
(2016) 10 SCC 537,

57. Sadhu Saran Singh Vs.St. of UP, (2016) 4
SCC 357,

58. Mukesh Vs. St.for NCT of Delhi , AIR 2017
SC 2161,

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

1. Heard Sri Rajesh Kumar Singh,
learned Amicus Curiae appearing on behalf
of appellant, Sri Ajit Ray, learned AGA for
the State of UP and perused the record.

2. This Criminal Appeal has been
filed against the judgment and order dated
26.08.1996, passed by Ist Additional
Sessions Judge, Kanpur Nagar, in Sessions
Trial No. 356 of 1994, arising out of Case
Crime No. 50 of 1994, under Section 302
IPC, Police Station Bajaria, District Kanpur
Nagar, whereby the accused-appellant
Mahey Alam has been convicted and
sentenced for life imprisonment.

3. The prosecution story in brief is
that the first information report was lodged
by the informant Smt. Husnu Begum, the
daughter of the deceased on 19.04.1994 at
about 10:15 AM in respect of the criminal
incident of same day taking place at about
09:00 AM. The father of the informant
namely Rafiq @ Laddoo prevented some
persons including accused from playing
cards/gambling at his door, whereupon the
accused-appellant Mahey Alam abused
Rafiq @ Laddoo and when the deceased
again objected on gambling there, the
accused Mahey Alam opened fire by his
pistol upon the deceased Rafiq @ Laddoo
which hit him on his neck. He sustained
firearm injury and fell down. The informant
took the injured (deceased) Rafiq @
Laddoo to UHM Hospital with the help of
some local people but on the way, he died.
The witnesses who saw the incident were
the informant, her brother Shabab, sister
Nazneen, brother-in-law Moin and one
Subhan. The informant Smt. Husnu Begum
lodged an oral report at Police Station
Bajaria on the same day. Offence was
registered against accused and chik FIR
was prepared. Inquest report of the dead
body was prepared, the dead body was
sealed and sent for postmortem. The
postmortem was conducted on 20.04.1994.
The matter was investigated by the police,
blood stained and plain earth was collected
from the spot, the clothes of the deceased
stained with blood were also taken into
possession by the police and the same were
sent
for
chemical
examination.
The
statement of the witnesses were recorded
520 INDIAN LAW REPORTS ALLAHABAD SERIES
and charge sheet was filed under Section
302 IPC against the accused-appellant. The
learned trial court has framed the charge
under Section 302 IPC. The accused denied
the charge and claimed trial.

4. The prosecution examined as many
as six witnesses in support. PW-1 is
informant and eye witness Smt. Husnu
Begum, PW-2 is Shabab, who is also an
eye witness, PW-3 is SI Ram Niwas
Sharma, who is Investigating Officer, PW-4
is SI Satyaveer Singh. who prepared the
inquest report, sealed the dead body and
sent the same for postmortem along with
other papers, PW-5 is Constable Ram
Autar, who has prepared the chik and GD
and PW-6 is Dr. Devi Prasad, who has
conducted the postmortem of the deceased.
The witnesses have proved the incident and
the oral report as Ext. Ka-1, site map as
Ext. Ka-2, memo of blood stained and plain
earth as Ext. Ka-3, charge sheet Ext. Ka-4
and blood stained and plain earth as
material Exts. 1 and 2, inquest report Ext.
Ka-5, letter to CMO, Challan and Photo
dead body and sample seal as Exts Ka- 6 to
8 and postmortem report Ext. Ka-11.

5.

After
hearing
both
the
prosecution and the defence, the trial
court
has
passed
the
impugned
judgment convicting and sentencing the
accused-appellant.

6. Feeling aggrieved by the
impugned
judgment,
the
present
criminal appeal has been filed by the
accused-appellant
and
he
has
challenged the impugned judgment on
the ground that the same is against the
law and facts and against the weight of
evidence
on
record. The
sentence
awarded is too severe and, therefore,
the impugned judgment is liable to be
set aside and the accused-appellant is
entitled for acquittal.

7.

Learned
counsel
for
the
appellant has argued that the first
information
report
is
delayed
and
reasonable explanation has not been
tendered to explain the delay. The fact
witnesses are highly interested and
related witnesses and no independent
witness has been examined. There is
improvement and contradiction and
embellishment in the testimony of the
fact witnesses. Some unknown person
killed the deceased and out of enmity,
the accused was falsely implicated.
Learned counsel for the appellant has
further argued that PW-2 has been
examined as a child witness and he
should not have been relied upon.

8. On the contrary, learned AGA
has submitted that two fact witnesses
who were the eye witnesses of the
incident were examined and they have
supported the prosecution version and
the
same
find
support
from
the
postmortem report. The learned trial
court, finding the prosecution case
proved beyond shadow of any doubt,
has rightly convicted the accusedappellant. There is no force in the
appeal and the same is liable to be
dismissed.

9. In the light of rival arguments, we
proceed to analyze evidence on record. Two
fact witnesses have been examined by the
prosecution. PW-1 Smt. Husnu Begum
(informant and eye witness) has stated that
8 months before at about 09:00 AM in the
morning, the boys of her locality and the
accused Mahey Alam of Kafi Mohalla were
gambling by playing cards on her door.
They were prevented by her father Rafiq @
3-5 All. Mahey Alam Vs. State of U.P.
521
Laddoo, whereupon the accused-appellant
started abusing him. When her father tried
to stop him, the accused fired on him by his
pistol which hit on his neck. He fell down
and the accused fled away from there. She
and her brother-in-law took Rafiq @
Laddoo to Ursala Hospital where he was
found dead. She went to the police station
and lodged the FIR by giving oral
information about the incident. The chik
was prepared and she was read over on
which she put her thumb impression. She
has also stated that the incident was also
seen by Shabab and Moin etc. The place
where her father fell after receiving gun
shot injury, blood also fell down on the
earth.

10. PW-2 Shabab is aged about 11
years and he has been examined as child
witness after duly testing the intellectual
capacity by the court. In his statement,
Shabab has stated that about one year ago,
at about 09:00 AM, he was playing with his
father and on his door some persons of the
locality and the accused Mahey Alam of
Kafi Mohalla were gambling by playing
cards.
His
father
prevented
them,
whereupon the accused started abusing him
and on being prevented from abusing, he
fired on him by his pistol. The fire hit his
father who fell down. The accused ran
away from there. His sister Smt. Husnu
Begum and brother-in-law Moin took his
father to Ursala Hospital. The incident was
seen by him, sister Smt. Husnu Begum and
other people of the locality. The witness has
identified the accused in the court who was
present at the time of statement.

11. PW-3 SI Ram Niwas Sharma
(Investigating Officer) has stated that on
19.04.1994, he was posted in PS Bajaria
and the case was registered in his presence.
He took the statement of Smt. Husnu
Begum and Moin. He went to the place of
occurrence.
The
inquest
report
was
prepared and the dead body was sealed by
SI Balbir singh Malik and the dead body
was sent for postmortem. He inspected the
place of occurrence and prepared the site
map on the pointing of informant. He found
blood stained and plain earth on the place
of occurrence and the same was taken into
containers and sealed. Memo thereof was
prepared by him. He has further stated that
he examined witnesses Subhan, Nazneen,
Shabab after inspecting the place of
occurrence.
After
completing
the
investigation, he submitted charge-sheet.

12. PW-4 SI Satyaveer Singh Malik
proved the inquest report and other relevant
papers necessary for sending the sealed
dead body for postmortem.

13. PW-5 Constable Ram Autar has
stated that he prepared chik FIR on the oral
information given by the informant. What
she said, the same was written and after
hearing the same, the informant put her
thumb impression. Entry was made in GD
no. 22 on the same day at 10:15 AM.
Special report was also sent through
Constable Radhey Shyam and the same
was entered in GD No. 24 of 10:40 AM on
the same day.

14. PW-6 Dr. Devi Prasad has stated
that on 20.04.1994, he was posted as
Medical Officer and on 10:15 AM, he
conducted the postmortem of the dead body
of Rafiq @ Laddoo, aged about 50 years,
brought in sealed condition along with
necessary papers and was identified by
Constable Chandra Shekhar Yadav and
Constable Vinod Kumar of PS Bajariya. He
has further stated that the deceased was of
average height. Rigor Mortis was present in
the lower limb and it has passed from the
522 INDIAN LAW REPORTS ALLAHABAD SERIES
upper limbs. Postmortem staining was
present on back and thigh. He found one
firearm entry wound, 1 cm. x 4 cm. on the
right side of neck on the lower part, 1 cm.
right from mid line and 6 cm. below from
the right medial angle. Blackening was
present and the injury was internally bend,
whereas on the exit side the wound was
externally bend.

15. The doctor has stated that in the
internal examination, it was found that the
right charotic artery was torn. The doctor
also found semi digested food in the
abdomen, breath tube was torn, both the
lungs were pale and both the compartments
of heart was found empty. According to the
doctor, the cause of death was shock and
hemorrhage due to fire arm injury. He has
further stated that the injury was sufficient
to cause death and it was possible that the
injury
must
have
been
caused
on
19.04.1994 at about 09:00 AM.

16. It has been argued by the learned
counsel for the appellant that there is delay
in lodging FIR. It appears from record that
the incident took place at about 09:00 AM
on 19.04.1994 and the first information
report was lodged orally on the same day at
10:15 AM. This fact has been proved by the
informant PW-1 who has stated that after
her father was declared dead in the
hospital, she went to the police station and
lodged the FIR by orally stating the whole
incident to the police at about 10:15 AM.
Her statement further finds support and
corroboration from the statement of PW-5
Constable Ram Autar who prepared the
chik FIR and made entry in the GD. The
police station is three furlong away from
the house of the informant and FIR has
been lodged within one hour and fifteen
minutes from the time of incident. The FIR
shows that the deceased was first taken to
the hospital and when he was declared dead
by the doctor, the informant went to lodge
FIR in the police station. As such, we find
that there is no delay in lodging FIR. In
fact, the first information report in this case
has been lodged very promptly and the
learned
trial
court
has
very
rightly
concluded that the promptness of the FIR
shows that it was lodged soon after the
incident without any consultation or
deliberation.

17. The Investigating Officer has
prepared site map of the place of
occurrence, which has been proved as Ext.
Ka-2 in which the place A has been shown
where accused Mahey Alam was standing
and from where, he shot fire on the
deceased. X in circle is the place where the
deceased was standing and at B, he
sustained firearm injury. The presence of
witnesses has been shown by single arrow,
the direction has been shown by double
arrow to which the accused ran away after
commission of the offence. It has also been
mentioned in the site map that the circle X
is six steps away from the witnesses and
one step away from the place where the
deceased was standing. From circle X,
blood stained and plain earth was taken by
the
Investigating
Officer.
The
first
information report also discloses the place
of incident to be on the door of the
informant and in their statements also, PW1 and PW-2 have stated the same fact.
Hence, we find that the place of occurrence
has
been
fully
established
by
the
prosecution.

18. The learned counsel to the
accused-appellant
has
challenged
the
credibility of fact witnesses on the basis of
their
being
related
witness,
certain
contradiction and improvement and lack of
any motive for the commission of offence.
3-5 All. Mahey Alam Vs. State of U.P.
523
He has submitted that no independent
witness has been examined and both the
fact witnesses are relatives and highly
interested witnesses and on their evidence
no reliance could be placed by the learned
trial court. It has been further submitted
that PW-2 is a child witness and his
testimony cannot be relied upon.

19. We will first examine the issue of
related witness. It is admitted fact that both
the fact witnesses are brother and sister and
the deceased has been their father. The law
in respect of the testimony of related
witnesses has been time and again
reiterated by the Supreme Court that the
testimony of related witnesses cannot be
discarded
merely
on
the
basis
of
relationship. The only requirement is that
the testimony of such witness should be
scrutinized cautiously and carefully. In
Dalip Singh v State of Punjab (1954)
SCR 145, while rejecting the argument that
witnesses who are close-relatives of the
victim should not be relied upon, the Court
held as under:

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against the
accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run
high and there is personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a grudge
along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often
a sure guarantee of truth. However, we are not
attempting any sweeping generalisation. Each
case must be judged on its own facts. Our
observations are only made to combat what is
so often put forward in cases before us as a
general rule of prudence. There is no such
general rule. Each case must be limited to and
be governed by its own facts."

20. In Masalti v State of UP AIR 1965
SC 202, the Supreme Court observed:

"But it would, we think, be
unreasonable to contend that evidence given by
witnesses should be discarded only on the
ground that it is evidence of partisan or
interested witnesses. ... The mechanical
rejection of such evidence on the sole ground
that it is partisan would invariably lead to
failure of justice."

21. The Supreme Court has also taken the
view that related witness does not necessarily
mean or is equivalent to an interested witness. A
witness may be called interested only when he
or she derives some benefit from the result of
litigation; a decree in a civil case, or in seeing a
person punished in a criminal trial. In Darya
Singh v State of Punjab, AIR 1965 SC 328,
followed by State of UP v Kishanpal (2008)
16 SCC 73, the Court held as under:

"On principle, however, it is
difficult to accept the plea that if a witness
is shown to be a relative of the deceased
and it is also shown that he shared the
hostility of the victim towards the assailant,
his evidence can never be accepted unless
it is corroborated on material particulars."

22. Again, in Appa v State of
Gujarat, AIR 1988 SC 698, the Court has
observed:

"Experience
reminds
us
that
civilized people are generally insensitive
when crime is committed even in their
524 INDIAN LAW REPORTS ALLAHABAD SERIES
presence. They withdraw from both, victim
and vigilant. They keep themselves away
from the Court. They take crime as a civil
dispute. This kind of apathy of general
public is indeed unfortunate but it is
everywhere whether in village life or town
and city. One cannot ignore this handicap.
Evidence of witnesses has to be appreciated
keeping in view such ground realities.
Therefore, the Court instead of doubting
the prosecution case where no independent
witness has been examined must consider
the broad spectrum of the prosecution
version and then search for the nugget of
truth with due regard to probability, if any
suggested by the accused."

23. Similar view has been taken in
State of AP v S. Rayappa (2006) 4 SCC
512, where the court observed that it is now
almost a fashion that public is reluctant to
appear and depose before the court
especially in criminal cases and the cases
for that reason itself are dragged for years
and years. The Court stated the principle as
follows:

" ....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
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."

24. Further, in Pulicherla Nagaraju
@ Nagaraja Reddy v State of AP (2007) 1
SCC (Cri) 500, the Supreme Court has
held as under:

"In this case, we find that the trial
court had rejected the evidence of PW1 and
PW2 merely because they were interested
witnesses being the brother and father of
the deceased. But it is well settled that
evidence of a witness cannot be discarded
merely on the ground that he is either
partisan or interested or closely related to
the deceased, if it is otherwise, found to be
trustworthy and credible. It only requires
scrutiny with more care and caution, so
that neither the guilty escape nor the
innocent wrongly convicted. If on such
careful scrutiny, the evidence is found to be
reliable and probable, it can be acted upon.
If it is found to be improbable or
suspicious, it ought to be rejected. Where
the witness has a motive to falsely implicate
the accused, his testimony should have
corroboration
in
regard
to
material
particulars before it is accepted."

25. Similarly, in Satbir Singh v State
of UP, (2009) 13 SCC 790, the Court has
held as under:-

"It is now a well-settled principle
of law that only because the witnesses are
not independent ones may not by itself be a
ground to discard the prosecution case. If
the prosecution case has been supported by
the witnesses and no cogent reason has
been shown to discredit their statements, a
judgment of conviction can certainly be
based thereupon........."

26. In M.C. Ali v State of Kerala
AIR 2010 SC 1639; and Himanshu v
State (NCT of Delhis, (2011) 2 SCC 36,
Bhajan Singh and others v State of
Haryana; (2011) 7 SCC 421, it was laid
down that evidence of a related witness can
be relied upon provided it is trustworthy.
Again,
in
Jayabalan
v
U.T.
of
Pondicherry, 2010(68) ACC 308 (SC), the
3-5 All. Mahey Alam Vs. State of U.P.
525
Supreme
Court
has
made
following
observation:

"We are of the considered view
that in cases where the court is called upon
to deal with the evidence of the interested
witnesses, the approach of the court, while
appreciating the evidence of such witnesses
must not be pedantic. The court must be
cautious in appreciating and accepting the
evidence given by the interested witnesses
but the court must not be suspicious of such
evidence. The primary endeavour of the
court must be to look for consistency. The
evidence of a witness cannot be ignored or
thrown out solely because it comes from the
mouth of a person who is closely related to
the victim."

27. Dharnidhar v State of UP,
(2010) 7 SCC 759 referred the above
observation of Jaya Balan (supra) and
held that there is no hard and fast rule that
family
members
can
never
be
true
witnesses to the occurrence and that they
will always depose falsely before the Court.
It will always depend upon the facts and
circumstances of a given case. Similar view
has been taken in Ram Bharosey v State
of UP AIR 2010 SC 917, where the Court
stated that a close relative of the deceased
does not become an interested witness. An
interested witness is one who is interested
in securing the conviction of a person out
of vengeance or enmity or due to disputes
and deposes before the Court only with that
intention and not to further the cause of
justice.

28. Again, in Balraje @ Trimbak v
State of Maharashtra, (2010) 6 SCC 673,
it has been held that when the eyewitnesses are stated to be interested and
inimically deposed against the accused, it
would not be proper to conclude that they
would shield the real culprit and rope in
innocent person. The truth or otherwise of
the
evidence
has
to
be
weighed
pragmatically. The Court would be required
to analyze the evidence of related witnesses
and those witnesses who are inimical
towards the accused. But if after careful
analysis and scrutiny of their evidence, the
version given by the witnesses appears to
be clear, cogent and credible, there is no
reason to discard the same.

29. Subsequently, in Jalpat Rai v
State of Haryana AIR 2011 SC 2719 and
Waman v State of Maharashtra AIR
2011 SC 3327, it was observed that the
over-insistence on witnesses having no
relation with the victims often results in
criminal justice going away. The testimony
of a witness in a criminal trial cannot be
discarded merely because the witness is a
relative or family member of the victim of
the offence. This view has been reiterated
in Shyam Babu v State of UP, AIR 2012
SC 3311, Dhari & Others v State of UP,
AIR
2013
SC
308
and
Bhagwan
Jagannath Markad (supra). Recently, in
Ganapathi v State of Tamilnadu, AIR
2018 SC 1635, the Court found no force in
the argument that the conviction based on
the evidence of family members in a
murder trial is not sustainable. In Rupinder
Singh Sandhu v State of Punjab, (2018)
16 SCC 475, it has been reiterated by the
Supreme Court that relationship by itself
will not render the witness untrustworthy.
The Supreme Court laid down as below:

"Relationship is not a factor to
affect credibility of a witness. It is more
often than not that a relation would not
conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
526 INDIAN LAW REPORTS ALLAHABAD SERIES
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent and credible. ...... A witness is
normally to be considered independent
unless he or she springs from sources
which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish
to implicate him falsely. Ordinarily, a close
relative would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high
and there is personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a
grudge
along
with
the
guilty,
but
foundation must be laid for such a criticism
and the mere fact of relationship far from
being a foundation is often a sure
guarantee of truth."

30. Recently, in Shio Shanker Dubey
v State of Bihar AIR 2019 SC 2275, the
Supreme Court has reiterated the law as
under:

"...... a close relative cannot be
characterized as an "interested" witness.
He is a "natural" witness. His evidence,
however, must be scrutinized carefully. If on
such scrutiny, his evidence is found to be
intrinsically reliable, inherently probable
and wholly trustworthy, conviction can be
based on the "sole" testimony of such
witness. Close relationship of witness with
deceased or victim is no ground to reject
his evidence. On the contrary, close relative
of the deceased would normally be most
reluctant to spare the real culprit and
falsely implicate an innocent one."

31. Thus, in view of aforementioned
decisions of the Supreme Court, it is settled
position of law that the statements of the
interested witnesses can be safely relied
upon by the court in support of the
prosecution story. But this needs to be done
with
care
and
to
ensure
that
the
administration of criminal justice is not
undermined by the persons who are closely
related to the deceased and inimical with
the accused. When their statements find
corroboration by other evidence, expert
evidence and the circumstances of the case
clearly depict completion of the chain of
evidence pointing out to the guilt of the
accused, then there is no reason as to why
the statement of so-called 'interested
witnesses' cannot be relied upon by the
Court. It would be hard to believe that the
close relatives shall leave the real culprit
and shall implicate innocent persons falsely
simply because they have enmity with the
accused persons. There is no rule to the
effect that the evidence of related or
partisan
witness
is
not
acceptable.
Association or relation does not render the
evidence false and partisanship is no
ground to reject the testimony given on
oath.

32. In this instant case, we find after
close scrutiny of the evidence of the two
eye-witnesses that they have narrated the
whole sequence of commission of the
offence. The offence was committed on the
door of their house. It was morning time
and their being present on spot at the time
of incident appears to be most natural. The
defence theory that the witnesses did not
see the criminal incident as they were not
present there, is not convincing. It is a case
of broad day murder and the two eyewitnesses were none other but the daughter
and son of deceased and the incident took
place on the door of deceased and their
presence on place of occurrence is natural.
There is consistency in the evidence of both
the eye-witnesses without any contradiction
on material point. The learned trial court
3-5 All. Mahey Alam Vs. State of U.P.
527
has found them trustworthy and reliable
and it hardly has any impact that they are
related witnesses.

33. The next submission is about
motive and it has been argued that the
accused did not have motive or adequate
motive sufficient to cause death of
deceased. The prosecution case is based on
direct evidence and the settled law is that
motive goes to back seat in such cases. In a
number of decisions, like Abu Thakir v
State AIR 2010 SC 2119, State of UP v
Nawab Singh AIR 2010 SC 3638, Bipin
Kumar Mondal v State of West Bengal
2005
SCC
(Criminal)
33,
Shivraj
Bapuray Jadhav v State of Karnataka
(2003) 6 SCC 392, Thaman Kumar v
State of Union Territory of Chandigarh
(2003) 6 SCC 380, State of HP v Jeet
Singh; (1999) 4 SCC 370, it has been
repeatedly held by the Supreme Court that
motive is not a sine qua non for the
commission of a crime. Moreover, it takes a
back seat in a case of direct ocular account
of the commission of the offence by a
particular person. In a case of direct
evidence the element of motive does not
play such an important role so as to cast
any doubt on the credibility of the
prosecution witnesses even if there be any
doubt raised in this regard. If the eyewitnesses are trustworthy, the motive
attributed for the commission of crime may
not be of much relevance. Failure to prove
motive or absence of evidence on the point
of motive would not be fatal to the
prosecution case when the other reliable
evidence available on record unerringly
establishes the guilt of the accused.

34. We find that the Supreme Court
has reiterated the aforesaid view in various
decisions, such as Gopi Ram v State Of
UP, 2006 (55) ACC 673 SC, R.R. Reddy v
State of AP, AIR 2006 SC 1656, Sucha
Singh v State of Punjab; AIR 2003 SC
1471, State of Rajasthan v Arjun Singh
AIR 2011 SC 3380, Varun Chaudhry v
State of Rajasthan AIR 2011 SC 72. In
the recent judgment of Saddik Vs. State of
Gujarat, (2016) 10 SCC 663, it has been
held that the prosecution case could not be
disbelieved on the ground of alleged
absence or insufficiency of motive. Motive
is insignificant in cases of direct evidence
of eyewitnesses. Failure to prove motive or
absence of evidence on the point of motive
would not be fatal to the prosecution case
when the other reliable, truthful and
acceptable evidence is available on record
sufficient to establish the guilty of accused
persons.

35. We are of the view that when
there is sufficient direct evidence regarding
the commission of offence, the question of
motive should go away from the mind of
the Court. Motive is a double edged
weapon
and
the
key
question
for
consideration in cases based on direct
evidence remains whether the prosecution
has
convincingly
and
satisfactorily
established the guilt of the accused beyond
reasonable doubt by adducing reliable and
cogent evidence. As such, in case of direct
evidence, the proof of the existence of a
motive is not necessary for a conviction for
any offence. If the eye-witnesses are
trustworthy, the motive attributed for the
commission of crime may not be of much
relevance. Failure to prove motive or
absence of evidence on the point of motive
would not be fatal to the prosecution case
when the other reliable evidence available
on record establishes the guilt of the
accused.

36. The learned counsel to the
accused-appellant has submitted that PW-2
528 INDIAN LAW REPORTS ALLAHABAD SERIES
is a child witness and on the basis of his
statement, conviction is not legal. He has
referred to the judgment of the Supreme
Court in Digamber Vaishnav v State of
Chhattisgarh, (2019) 4 SCC 522, where
the accused was convicted on the basis of
uncorroborated testimony of a child witness
who was just 9 years in age and the Court
found on the basis of evidence on record
that she was not an eye-witness and
therefore, the judgment of conviction was
set aside. Supreme Court made following
observation:

"This Court has consistently held
that evidence of a child witness must be
evaluated carefully as the child may be
swayed by what others tell him and he is an
easy prey to tutoring. Therefore, the
evidence of a child witness must find
adequate corroboration before it can be
relied upon. It is more a rule of practical
wisdom than law."

37. The law referred above is not new
and that view has been already expressed in
various judgments of the Supreme Court.
Thus we find that in Acharaparambath
Pradeepan v State of Kerala, 2007(57)
ACC 293 (SC), State of Karnataka v
Shantappa Madivalappa, AIR 2009 SC
2144, State of U.P v Krishna Master, AIR
2010 SC 3071 and K. Venkateshwarlu Vs.
State of AP, AIR 2012 SC 2955, it has
been laid down that a child witness is
competent to testify u/s 118, Evidence Act.
Tutoring cannot be a ground to reject his
evidence. A child of tender age can be
allowed to testify if it has intellectual
capacity to understand questions and give
rational answers thereto. Trial Judge may
resort to any examination of a child witness
to test his capacity and intelligence as well
as his understanding of the obligation of an
oath. If on a careful scrutiny, the testimony
of a child witness is found truthful, there
can be no obstacle in the way of accepting
the same and recording conviction of the
accused on the basis of his testimony.

38.

In
Algupandi
alias
Alagupandian v State of Tamilnadu,
(2012)10 SCC 451, the Supreme Court has
laid down as follows:

"It is a settled principle of law
that a child witness can be a competent
witness provided statement of such witness
is reliable, truthful and is corroborated by
other prosecution evidence. The court in
such circumstances can safely rely upon the
statement of a child witness and it can form
the basis for conviction as well. Further,
the evidence of a child witness and
credibility thereof would depend upon the
circumstances of each case. The only
precaution which the court should bear in
mind while assessing the evidence of a
child witness is that the witness must be a
reliable one and his/her demeanour must
be like any other competent witness and
that there exists no liklihood of being
tutored. There is no rule or practice that in
every case the evidence of such a witness
be corroborated by other evidence before a
conviction can be allowed to stand but as a
rule of prudence the court always finds it
desirable to seek corroboration to such
evidence from other reliable evidence
placed on record. Further, it is not the law
that if a witness is a child, his evidence
shall be rejected, even if it is found
reliable."

39. Again, in Gul Singh v State of
MP, 2015 (88) ACC 358 (SC), the
Supreme Court clearly held that the
testimony of a child witness cannot be
rejected unless found unreliable and
tutored. Conviction on the basis of sole
3-5 All. Mahey Alam Vs. State of U.P.
529
testimony of a child witness is permissible
if evidence of such child witness is
credible,
truthful
and
corroborated.
Corroboration is not must. It is under rule
of prudence. In the case in hand, PW-2
Shabab is 11 years old and the learned trial
court has tested his intellectual capacity
and was satisfied that the witness was able
to understand the questions put to him and
was able to give rational answers thereto.
PW-2 has stated that he saw the accused
firing on his father who sustained injuries.
During cross-examination, he has denied
that he was tutored by his sister and he has
stated whatever he had seen. We find that,
irrespective of his tender age, PW-2 has
narrated the incident without any material
contradiction
or
discrepancy.
It
was
morning time and he was playing there
with his father (deceased) and as such, his
presence there appears to be natural and
probable. Moreover, this case is not based
on sole testimony of the child witness and
PW-1 is another eye-witness who has
proved the prosecution version.

40.

Certain
contradiction
and
discrepancy in the statements of two fact
witnesses have been pointed out.