# Mumtazim & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 1068
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-05
- **Case number:** Criminal Appeal No. 736 of 1984
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mumtazim-ors-v-state-of-u-p-47991
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 134-Other eye-witnesses were not
produced by prosecution- It is not the
number of witnesses which is to be
countered but it is the reliability and
veracity of witnesses which has to be
considered.

Settled law that it is not the quantity but the
quality of evidence, which is important.

Indian Evidence Act, 1872- Section 3-
P.Ws. 1 and 2 are interested witnesses as
P.W.-1 is the son of deceased and P.W.-2
is the brother of the deceased- No
material contradiction could be extracted.
Therefore they cannot be disbelieved
merely
because
they
are
interested
witnesses.

Where the testimony of the related witnesses is
credible and trustworthy then the same cannot
be disbelieved merely on the ground that the
witnesses happen to be related to the witnesses
as they are natural witnesses.

Criminal Appeal rejected. (E-3) (Para 37,
41)

Case Law/ Judgements relied upon:-

## Text

1068 INDIAN LAW REPORTS ALLAHABAD SERIES
public servant from discharging his duty,
intentional insult with intent to provoke breach
of peace and criminal intimidation which had
caused a law and order problem and had thrown
the peace of the citizens out of gear. Section 8
of the Act, 1951 stipulates the disqualification
on conviction for certain offences. The offences
under the Indian Penal Code covered by the act
are which have the potentiality to destroy the
core values of a healthy democracy, safety of
the State, economic stability, national security,
and prevalence and sustenance of peace and
harmony amongst citizens and may others. The
criminal activities resulting in disqualification
are related to various spheres pertaining to the
interest of the nation, common citizenry
interest, communal harmony, and prevalence of
goods governance. Merely by pleading that
appellant by the conviction will stand
disqualified as per the Act, 1951 is no ground to
suspend the conviction.

21. The application is, accordingly
rejected.
----------
(2022) 12 ILRA 1068
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.12.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 736 of 1984

Mumtazim & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Hasibullah Khan, Amrendra Nath Tripathi,
Suresh Kumar Yadav

Counsel for the Respondent:
G.A.
Criminal Law- Indian Evidence Act, 1872-
Section 134-Other eye-witnesses were not
produced by prosecution- It is not the
number of witnesses which is to be
countered but it is the reliability and
veracity of witnesses which has to be
considered.

Settled law that it is not the quantity but the
quality of evidence, which is important.

Indian Evidence Act, 1872- Section 3-
P.Ws. 1 and 2 are interested witnesses as
P.W.-1 is the son of deceased and P.W.-2
is the brother of the deceased- No
material contradiction could be extracted.
Therefore they cannot be disbelieved
merely
because
they
are
interested
witnesses.

Where the testimony of the related witnesses is
credible and trustworthy then the same cannot
be disbelieved merely on the ground that the
witnesses happen to be related to the witnesses
as they are natural witnesses.

Criminal Appeal rejected. (E-3) (Para 37,
41)

Case Law/ Judgements relied upon:-

1. Sunil Kumar Vs St. Govt. of NCT of Del.
(2003) 11 SCC 367

2. Gulam Sabar Vs St. of Bih. (2014) 3 SCC 401:

3. Kartik Malhar Vs St. of Bih. (1996) 1 SCC 614

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. This appeal under Section 374 (2)
Cr.P.C has been preferred by the convicted
appellants
Muntazim,
Mustaqim,
Rhimuddin and Idris against the judgment
and order dated 19.09.1984 passed by Shri
H.L. Kurel III-Additional Sessions Judge,
Barabanki in Sessions Trial No. 241 of
1982
convicting
and
sentencing
the
appellants under Section 147 IPC to
undergo one year rigorous imprisonment,
12 All. Mumtazim & Ors. Vs. State of U.P.
1069
and to further undergo 11⁄2 years rigorous
imprisonment under Section 148 IPC and
to undergo life imprisonment under Section
302 IPC read with section 149 IPC.

2. Wrapping the facts in brief the
deceased Haji Majid Ashraf Khan owned a
house in Village Sipahiya, Police Station
Mawai District Barabanki. He had raised
his house on his own land adjoining to his
house. The accused Idris claimed that
adjoining land. There was unfriendly
atmosphere between the two families A
case was registered against the accused but
he was acquitted of that offence. On
account of this enmity, accused Idris had
beaten Haji Ashraf Khan at Madhwa Nala.

3. Parnala of complainant's house
falls in Kolia between the house of the
complainant and the accused Muntazim.
The accused person had taken out parnala,
raised a wall in the said kolia and prevented
thereby flow of water of parnala. When the
father of the complainant abstained the
accused appellants from doing so, the
accused started abusing and threatening his
father. Complainant went to register a
report in this regard to the police station
concerned but the accused restrained their
way and kept a watch standing in the
ambush on their way. Therefore they could
not lodged the FIR immediately.

4. The complainant along with other
relatives Ejaz and Ashraf moved to the
police station at about 4 p.m. As soon as
they reached ''Phool ka talab' near Naya
Purwa all the accused person appeared
from their hiding place in the Behaya and
chased them. The complainant any how
managed to escaped by raising alarm but
Haji Ashraf was an old man, therefore, he
was overpowered by the accused Idris
holding Ballam, accused Muntazir holding
axe and the rest of accused person with
lathi and continued to beat the deceased till
his death near the house of Jagjeevan. The
incident was witnessed by Sifat Ahmad,
Abrar Ahmad, Nizamuddin, Ejaz Ahmad,
Shahnawaz and Shabbir.

5. The matter was reported to police
station Mawai and a case was registered as
Crime No. 84 under Section 147, 148, 149 ,
302 IPC Police Station Mawai and
endorsed on G.D No. 22 on the same date.
Investigation
was
conducted
by
Investigating Officer Gulab Singh Bhatia
who recorded the statement of witnesses,
inspected and prepared the site plan (Ex.
Ka-6) and conducted inquest of deceased,
prepared photo lash, challan lash, letter to
C.M.O and other relevant papers and send
the body of the deceased for inquest
through constables recorded the statements
of witnesses. He collected plain and blood
stained earth, sealed and prepared the
recovery memo on the spot (Exhibit Ka 7
and 8), and prepared recovery memo of
blood stained cloth (Ghamcha) of deceased
(Exhibit Ka-9). After collecting all the
relevant evidences and noting down the
result of post-mortem the Investigating
Officer submitted charge sheet No. 22 of
1979 in court under Section 147, 148, 149,
302 IPC.

7. Convict appellants appeared in the
Court and after taking cognizance, the
Court concerned committed the case to the
Court of Sessions.

8. The Sessions Court framed charges
against all the accused. The accused abjured
from the charges and claimed to be tried.

9. In order to prove the case against
the convict appellants, the prosecution
produced the following witnesses:
1070 INDIAN LAW REPORTS ALLAHABAD SERIES

(A) P.W.-1 Mushtjab Ahmad.

(B) P.W.-2 Nijamuddin.

(C) P.W.-3 Gulab Chand Bhatiya
Investigating officer.

(D) P.W.-4 Dr. Gopal Swaroop
who conducted the autopsy on 08.08.1979
at 3 p.m. and found injuries on the body of
the deceased.

(E) P.W.-5 Head Constable 35
Onkar Nath who prepared the chik report
on the basis of written report. He proved
the G.D entries.

(F) P.W. -6 Kripa Shanker Dubey.
He send the case property to Forensic
Science
Laboratory
through
constable
Ayodhya Prasad in sealed condition.

(G) P.W.-7 Constable Mohd. Jubair
Khan. Who send the case property (2 bundle and 2
 box) and entered it in G.D. No. 11.

10. Besides oral evidence, prosecution
produced
and
proved
following
documentary evidence:

(a) FIR (Exhibit Ka-1).

(b) Inquest report (Exhibit Ka-2).

(c) Photo lash (Exhibit Ka-3).

(d) Challan lash (Exhibit Ka-4).

(e) Letter to C.M.O (Exhibit Ka5).

(f) Site plan (Exhibit ka-6).

(g) Recovery memo (Exhibit ka7,8,9)

(h) Charge-sheet (Exhibit ka-10)

(I) Postmortem report (Exhibit
ka-11)

(J) FIR (Exhibit Ka-12).

11. After concluding the evidence
from the side of the prosecution statement
of accused were recorded under Section
313 Cr.P.C.

12.

Convict
appellant
No.
1
Muntazim stated in his statement under
Section 313 Cr.P.C that he is falsely
implicated in the case because he is brother
of Mustaqim. The convict appellant No. 2
Mustaqim stated in his statement under
Section 313 Cr.P.C that the deceased
wanted to purchase his house therefore he
is falsely implicated in the case. Convict
appellant No. 3 Rahimuddin denied the
evidences adduced against him and stated
that he was residing in Kanpur and was
working in hotel since the last eight to ten
years. His father Shaukat had expired.
Convict appellant No. 4 Idris denying all
the evidences stated that he is falsely
implicated in the case. He was playing on
transistor, Nizamuddin forbade him from
playing transistor but he did not turned off
the transistor. Nizamuddin threw his
transistor, then he entangled with Nizam
Uddin. Due to this animosity he is falsely
implicated.
The
convict
appellant
Moharram Ali denied the incident.

13. He had expired during the
pendency of this appeal and the appeal had
already stood abated against him.

14. The accused produced D.W.-1
Kashiram to show that Moharram Ali had
no concerned with the Village Sipahiya as
such he had no motive for murder.

15. After hearing both the parties and
perusal of the record, learned trial Court
reached to the conclusion that the prosecution
has succeeded in proving the guilt to hilt against
the accused person and all of them were found
guilty in Sessions Trial No. 241 of 1982 arising
out of Crime No. 84 under Section 302, 147,
148, 149 IPC Police Station Mawai District
Barabanki.

16. Aggrieved by the judgment and
order the present appeal has been preferred
by the convict appellants.
12 All. Mumtazim & Ors. Vs. State of U.P.
1071

17. Heard Shri Anrendra Nath
Tripathi, Shri Suresh Kumar Yadav, learned
counsel for the appellants and Shri
Arunendra, learned Additional Government
Advocate appearing on behalf of the State
respondents.

18. It is contended by the learned
counsel for the appellants that the judgment
passed by the trial court is erred in law and
on facts. The evidences on record is most
tenuous, limping, shaky, suspicious and
fragile and the conviction cannot be
sustained. Learned trial court misread the
evidence on record and did not properly
appreciate the veracity of prosecution case
as the prosecution case is absolutely
inconsistent from the very beginning.

19. The presence of P.W-1 and P.W.-2
is highly doubtful. P.W-2 is a chance
witness and it is quite unsafe to rely upon
his testimony. The conduct of P.W.-1 is
inherently strange against a human conduct
to be mere spectator of the occurrence
without making any effort to rescue his
father. Therefore, the impugned judgment
and order dated 19.09.1984 is liable to be
set aside and the appellants are entitled to
be acquitted from the charges levelled
against them.

20. On the contrary Shri Arunendra,
learned A.G.A for the State has argued that
it is a case based on ocular evidence. P.W.-1
is the son of the deceased and P.W.-2 is the
eye-witness of the incident of murder. He is
an independent witnesses who witnessed
the incident and therefore there is no reason
to disbelieve the witnesses. The injuries are
corroborated by the eye-witnesses and the
post-mortem report. The evidence against
the
appellants
are
proved
beyond
reasonable doubt. Place of occurrence is
also established by the investigating officer.
There is no error in the judgment and order
passed by the court below, hence, the
present appeal is liable to be dismissed.

21. Considered the rival submissions
and perused the record as well as the record
of appeal and gone through the case law
cited.

22. During the course of trial accused
Israr died and the trial stood abated against
him whereas accused Moharram Ali died
during the pendency of the appeal and the
appeal was abated against him. Now the
present appeal survives on behalf of
appellants
Muntazim,
Mustaqim,
Rahimuddin and Idris is being heard and
decided.

23. In the present matter, the
complainant has alleged in the FIR that on
account of previous animosity regarding
the flow of water parties have strained
relations and on 07.08.1979, at about 4
p.m. he was going to the police station to
lodge FIR against the accused persons, he
was assaulted by the accused persons near
''phool ka talab'. The complainant and Ejaz
escaped from the place of occurrence
however, Haji Ashraf being an old man
could not escape and was killed by
accused.

24. In order to prove his case the
prosecution had adduced seven witnesses.
P.W-1 Mushtjab Ahmad stated that he is the
son of the deceased when he was going to
police station along with his father Haji
Ashraf Khan (now deceased) and other
relative Ejaz for lodging the FIR in the
police station about the incident that had
taken place in the fore-noon of the day of
occurrence relating to the flow of parnala,
prior to this incident. His father constructed
a house on the vacant land in the south of
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
their house, accused Israr claimed that land
and about 13 years ago accused Israr (now
deceased) assaulted his father Haji Ashraf
Khan (now deceased) near Mazwa Nala
and a criminal case against Israr was
lodged. Israr was acquitted of that case and
thereafter both the families have animosity.
Again on the date of occurrence accused
Muntazim, Mustakeen, Israr, Moharram Ali
destroyed their parnala situated in the west
of their house and erected a wall in front of
their main gate. When his father raised
objection to the construction, then the
accused abused his father. His father
wanted to lodged an FIR regarding that
incident but accused obstructed their way
towards the police station and he could
manage to move for police station at about
3:45 p.m. along with complainant and his
relative Ejaz when they reached near
''Phool Ka Talab' the accused came out
from the ambush, chased them and
Muntazim assaulted with axe and Idris with
balam and rest of the accused with lathi in
their hands. The incident was witnessed by
Abrar Ahmad, Nizamuddin, Fiyaz, Ejaz,
Shahnawaz, Shabbir and Shyam Lal.

25. P.W.-2 Nizamuddin deposed that
he belongs to village Sipahiya to which the
accused
belongs.
This
witness
was
returning from Mehmoodpur, where he had
gone for getting his Kripan and fawda (axe)
sharpen from the shop of a carpenter. This
witness is stated to be an eye-witness of the
incident who tried to prove the guilt to the
hilt.

26. P.W-3 Gulab Chand Bhatia, the
investigating officer of the case who
recorded the statement of witnesses,
inspected and prepared the site plan (Ex.
Ka-6) and conducted inquest of deceased,
prepared photo lash, challan lash, letter to
C.M.O and other relevant papers and send
the body of the deceased for inquest
through constables recorded the statements
of witnesses. He collected plain and blood
stained earth, sealed and prepared the
recovery memo on the spot (Exhibit Ka 7
and 8), and prepared recovery memo of
blood stained cloth (Ghamcha) of deceased
(Exhibit Ka-9).

26. P.W.-4 Dr. Gopal Swaroop
conducted post-mortem on the dead body
of the deceased and found following
injuries on the body of the deceased:

1. Lacerated wounds 4cm x1cm x
muscle bone deep over the oxipital bone on
the left side 6cm above the trans of VII
cervical vertebra.

2. Lacerated wounds 5 cm X.5
cm x muscle deep over the o oxipital bone
on the right side 2 cm above the injury
no.1.

3. Lacerated wounds 4 cmx.5 cm
muscle bone deep over the left side of
oxipital bone 2 cm above injury no. 2.

4. Lacerated wounds 5 cm x/75
cm x muscle deep over the left partial bone
3.5 cm above he injury no. 3.

5. Lacerated wounds 6 cm x.5 cm
x muscle bone deep over the lower arm on
the lateral aspect 10 cm below the left
elbow joint.

6. Lacerated wounds 2 cm x .5 x
muscle bones deep over the left lower arm
on the lateral aspect 10 cm below the left
elbow joint.

7. Lacerated wound 1 cm .5 cm
muslce bone deep over the left lower and 5
cm above the waist joint.

8. Contused swelling 10cm x .5
cm x black colour over the lower arm on
the lateral aspect 4 cm below the left elbow.

9. Contused swelling 13 cm x 8.5
cm black in color around the right elbow
joint and arm.
12 All. Mumtazim & Ors. Vs. State of U.P.
1073

10. Abrasion 3 cm x 1⁄2 cm.

11. Abrasion 2.5. cm .5 cm black
in color below the left knee.

28. P.W.-5 Head Constable 35 Uma
Nath stated on oath that he was posted as
Head Constable Muharir at Police Station
Mawai and prepared chick report on the
basis of written report and endorsed the
same in G.D No. 22 dated 07.08.79 at 3:10
p.m. on the same day and proved in Court
Ex Ka-13. This witnesses stated that Shri
Gulab
Singh
Bhatia
submitted
case
property; blood stained earth, plain earth
and blood stained tehmat on 08.08.79 at 810 p.m. which he endorsed on G.D. No. 17.

29. P.W.-5 further stated that Constable
138 Subedar Singh submitted one packet of
blood strained tehmat and kurta on 09.08.1979
at about 7:10 a.m. which were endorsed by him
at G.D. No. 6 on the same day. 30. The above
four packets were given to Constable Mohd.
Zubair for submitting in Sadar Malkhana which
was endorsed by Head Constable Shri Prakash
Srivastava in G.D on 06.03.80.

31. P.W.-6 Sub-Inspector Kripa Shankar
Dubey deposed that he was posed in Sadar
Malkhana and four packets were submitted by
Constable Jubair in sealed condition on
06.03.80 which was again sent to forensic
science laboratory through Constable Ayodhya
Prasad on 19.03.80 which was endorsed in G.D
by Constable Mewa Lal.

32. P.W.-7 Mohd. Jubar Khan C.P.
471 stated that he submitted four packets
(two bundle and two packets) in Sadar Mal
Khana in sealed position. The said
witnesses proved G.D. No. 17.

33.

After
conclusion
of
the
prosecution
witnesses
statements
of
accused under Section 313 Cr.P.C was
recorded. The accused adduced D.W.-1
Kashi Ram who stated on oath in the Court
that accused Moharram Ali was lame and
physically impaired since birth due to
paralysis. So far as the evidence of this
witness is concerned he deposed only
regarding Moharram Ali who had already
died during the pendency of the appeal and
the appeal has been abated against him. No
other defence evidence is adduced.

34. According to the FIR Sifat
Ahmad, Abrar Ahmad, Nizamuddin, Ejaz
Ahmad, Shahnawaz and Shabbir witnessed
the incident. Nizamuddin who is an ocular
witness has appeared as prosecution
witnesses and stated that he himself had
seen the incident of murder of Haji Ashraf
Khan by the accused persons in front of
house of Jagjeevan. The witnesses stated
that
he
was
coming
from
village
Mehmoodpur after getting his fawda
sharpen by ironsmith. He also stated that
there is no ironsmith in his own village
Sipahiya, therefore, most of the fellow
villagers
got
their
work
done
in
Mehmoodpur therefore, he himself came to
Mehmoodpur for sharpening his axe The
witnesses prove the place of occurrence
and provided the correct location of
Sipahiya,
Mawai,
Naya
Purwa
and
Malwanala. He also stated on oath that
village Mehmoodpur is about 1⁄2 Km away
from Naya Purwa in the north and is about
1 Km away in the south of Naya Purwa he
further stated that village Sipahiya is about
2 km away in the west of Madhwa Nala. A
person who wants to reach village Sipahiya
from Mehmoodpur will certainly have to
go through village Naya Purwa where the
occurrence happened. This witnesses is a
farmer and he needs agricultural tools
ready. He is not a chance witness and was
present on the spot. This witnesses stated
on oath that the house of Jagjeevan Ram
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
was locked and house of Babu Ram was
closed from inside at the time of incident
and after the incident, residents of both the
house came outside.

35. It is argued on behalf of the
appellants that there are two ways to reach
police station. In his cross-examination,
P.W.-2 stated that one can reach to police
station from village Sipahiya through fields
on the bank of Madhuwanala also, but this
is a very inconvenient way especially in the
rainy season.

36. It is also clear from the evidence
that at the time of incident, it was a rainy
season and the mud on road do not allow
any person to walk in. If there is any other
alternative route to police station it is very
natural that the person will move through
the convenient route. P.W-2 Nizamuddin
stated that there were seven witnesses
present at the time who were trying to
challenge the accused orally but none of
them was courageous enought to intervene
in the fight because accused were having
axe, spear and knife in their hands and were
assaulting the deceased collectively. The
evidence of this witness inspire confidence
to the extent that he was present at the spot
and his presence was very natural.

37. Learned counsel for the appellant
argued that the witness Ejaz, Sifat, Abrar,
Shahnawaz, Shabbir, Jagjeevan Ram and other
eye-witnesses
were
not
produced
by
prosecution. Learned A.G.A replied that it is not
the number of witnesses which is to be
countered but it is the reliability and veracity of
witnesses which has to be considered.

38. Supreme Court in the case of
Sunil Kumar Vs. State Government of
NCT of Delhi reported at (2003) 11 SCC
367 has held thus:

"It is not the number, the quantity
but quality that is material. The time
honoured principle is that evidence has to
be weighed and not counted. On this
principle stands the edifice of Section 134
of the Evidence Act. The test is whether the
evidence has a ring of truth is cogent,
credible and trustworthy or otherwise."

39. Similarly in the case of Gulam
Sabar Vs. State of Bihar reported at
(2014) 3 SCC 401:

"19. In the matter of appreciation
of evidence of witnesses, it is not the
number of witnesses but quality of their
evidence which is important, as there is no
requirement under the Law of Evidence that
any particular number of witnesses is to be
examined to prove/disprove a fact. It is a
time-honoured principle that evidence must
be weighed and not counted. The test is
whether the evidence has a ring of truth, is
cogent,
credible
and
trustworthy
or
otherwise."

40. So far as witnesses Jagjeevan Ram is
concerned P.W.-2 has clarified that his house was
locked at the time of incident, therefore, it cannot
be said that Jagjeevan Ram witnessed the incident.
So far as other independent witnesses are
concerned, there is no evidence on record to show
that any person of naya purwa has witnessed this
incident. On the contrary P.W,-1 stated that the
names of witnesses of Naya Purwa have not been
mentioned in the FIR as they have not witnessed
the incident. There is no evidence on record to
show that any person witnessed the incident of
marpit near ''Phool ka talab' where the incident of
marpit took place. P.W.-2 stated that witness of
Naya Purwa came after the incident.

41. It is argued that P.Ws. 1 and 2 are
interested witnesses as P.W.-1 is the son of
deceased and P.W.-2 is the brother of the
12 All. Mumtazim & Ors. Vs. State of U.P.
1075
deceased. But the witnesses appeared in
court and deposed about the incident. In
lengthy cross-examination no material
contradiction could be extracted. Therefore
they cannot be disbelieved merely because
they are interested witnesses.

42. In Kartik Malhar Vs. State of
Bihar (1996) 1 SCC 614, the Hon'ble Apex
Court has held as under:-

"We may also observe that the
ground that the witness being a close
relative and consequently, being a partisan
witnesses, should not be relied upon, has
no substance. This theory was repelled by
this Court as early as in Dilip Singh's case
(supra) in which this Court expressed its
surprise
over
the
impression
which
prevailed in the minds of the members of
the Bar that relative were not independent
witnesses. Speaking through Vivian Bose,
J., the Court observed :

We are unable to agree with the
learned Judges of High Court that the
testimony of the two eye-witnesses requires
corroboration. If the foundation for such an
observation is based on the fact that the
witnesses are women and that the fate of
seven men hangs on their testimony, we
know of no such rules. If it is grounded on
the reason that they are closely related to
the deceased we are unable to concur. This
is a fallacy common to many criminal cases
and one which another Bench of this Court
endeavoured to dispel in Rameshwar v. The
State of Rajasthan [1952] SCR 377= AIR
1952 SC 54. We find, however, that it is
unfortunately still persist, if not in the
judgments of the Courts, at any rate in the
arguments of counsel."

In this case, the Court further
observed 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 an 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
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.

In another case of Mohd. Rojali
Versus State of Assam: (2019) 19 SCC
567, the Hon'ble Apex Court in this regard
has held as under:-

"As regards the contention that
all the eyewitnesses are close relatives of
the deceased, it is by now wellsettled that a
related witness cannot be said to be an
''interested' witnesses merely by virtue of
being a relative of the victim. This court
has elucidated the difference between
''interested' and '' related' witness in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result of a
litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punished due to prior enmity
or other reasons, and thus has a motive to
falsely implicate the accused (for instance,
see State of Rajasthan v. Kalki (1981) 2
SCC 752; Amit v. State of Uttar Pradesh,
(2012) 4 Scc 107; and Gangabhavani v.
Rayapati Venkat Reddy, (2013) 15 SCC
298).
Recently,
this
difference
was
reiterated in Ganapathi v. State of Tamil
Nadu, (2018) 5 SCC 549, in the following
erms, by referring to the three Judge bench
decision in State of Rajasthan v. Kalki
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra): "14. "Related" is not equivalent to
"interested". A witness may be called
"interested' only when he or she derives
some benefit from the result of a litigation;
in the decree in a civil case, or in seeing an
accused person punished. A witness who is
a natural one and is the only possible eye
witness in the circumstances of the case
cannot be said to be "interested".."

11. In criminal cases, it is often
the case that the offence is witnessed by a
close relative of the victim, whose presence
on the scene of the offence would be
natural. The evidence of such a witness
cannot automatically be discarded by
labelling the witness as interested. Indeed,
one of the earliest statements with respect
to interested witnesses in criminal case was
made by this Court in Dalip Singh v. State
of Panjab 1954 SCR 145, wherein this
Court observed:

"26. 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..."

12. In case of related witness, the
Court may not treat his or her testimony as
inherently tainted, and needs to ensure only
that the evidence is inherently reliable,
probable, cogent and conistent. We may
refer to the observations of this Court in
Jayabalan
v.
Union
Territory
of
Pondicherry, (2010) 1 SCC 199;

"23. 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
witnesses cannot be ignored or shown out
solely because it comes from the mouth of a
person who is closely related to the victim."

43. It is argued on behalf of the
appellants that the presence of complainant
on the place of occurrence is highly
improbable. He is the son of the deceased.
He did not try to save his father and
allowed his father to die in this marpit. His
conduct is not natural and convincing but
according to prosecution story all the six
accused having deadly weapons attaked
them when he was going alongwith the
deceased and Ejaz to the police station
Mawai to lodge FIR in the police station
about the incident that took place in the
forenoon of that day regarding the
obstruction in the flow of parnala by
constructing wall by accused. He is the
natural witnesses who have accompanied
his father while going to police station for
lodging the FIR. There is no evidence on
record to show that deceased had any other
son alive who might have accompanied
him. Therefore, it is very natural conduct of
complainant that he was going to lodged
FIR with his father (now deceased) and
close relatives who described the incident
in the court on oath.

44. It is stated that there are certain
infirmities in the statement of witnesses.
P.W.-1 complainant and P.W.-2 Nizamuddin
have stated in their statement that they were
going on foot to lodge the FIR and it is
admitted by them that there were cycles in
the house of the deceased. Therefore, it is
the contention of learned counsel that there
is no sense of going on foot while they
12 All. Mumtazim & Ors. Vs. State of U.P.
1077
have cycle in their homes. Normally,
persons having cycles would prefer to go
on cycles. This argument of learned counsel
is based on assumption. The incident took
place during the rainy season. There were
muddy roads everywhere. Complainant
went to the police station along with his
son and Ejaz and other persons with him.
Therefore, it is a convenience of complainant
to walk on foot or on cycle. It cannot be
insisted upon that he must use cycle while
going to police station. Therefore, this
argument do not appeal to the Court. The FIR
discloses the manner of assault. Hence the
contradiction is of trivial in nature and does
not adversely affect
the evidence of
prosecution. Furthermore the fact has been
proved by evidence. It is admitted fact that in
the forenoon of 07.08.1979 at about 10 p.m.
the incident took place at the door of the
complainant. A report was lodged by Smt
Majid wife of Habbu who is the father of the
accused Mustakim regarding the incident for
which the deceased was going to lodge first
information report. Therefore, it is admitted
that the incident occurred in the forenoon of
07.08.1979 and report thereof was lodged in
the police station. If the incident of forenoon
is correct, then the subsequent event of this
incident may also be presumed to be true.

45. According to the post mortem report
several injuries were found on the person of the
deceased out of which seven injuries were lacerated
wounds. Three injuries were found on the occipital
bone, two on parietal bone, two on lower arm in
lateral aspect below the elbow joint in left hand.
Two contusions were found on the right hand.
Injuries number 1 to 5 are head injuries and
hemorrhage were found on the brain and nose.
Doctor opined that cause of death was shock and
hemorrhage due to ante mortem injuries.

46. According to the prosecution case
the accused assaulted the deceased with
lathi and ballam. Muntazim attacked with
axe. Therefore, the injuries found on the
person of the deceased are in consonance
with the case of prosecution as well as
corroborated by prosecution witnesses.

47. It is argued by the learned counsel
for the accused appellant that none of the
injuries were found on the face of the
deceased. As per the panchnama (Ex. Ka-2)
the dead body was found lying keeping the
face downwards. The deceased was killed
by lathi blows. It is natural conduct of
human beings that when he is assaulted by
someone, he raises his hands first to save
his face or head. It transpires from the postmortem report that both of his hands were
got fractured which goes to show that the
deceased himself had sustained blows of
lathis on his hand and must have saved his
face. Moreover, the incident is witnessed
by ocular evidence who proved the incident
by their cogent evidence.

48. It is argued by learned counsel for
the appellants that the deceased must have
been attacked by someone else, at any other
place as no witnesses was produced from
the place of occurrence. According to the
prosecution case Haji Ashraf Khan was
injured near ''Phool ka talab' and was killed
near
the
gate
of
Jagjeevan
Ram.
Investigating Officer Gulab Chand Bhatiya
has taken blood from the walls of his house
which was sent for forensic science
laboratory report. The Forensic Science
Laboratory report is on record and human
blood was found on the sample. Recovery
memo is proved by the investigating officer
(Ex. Ka-7). It is proved by prosecution that
blood sample was collected from the place
of occurrence which was proved in the
court, therefore, the place of occurrence
cannot be disbelieved to be elsewhere. If
the witnesses from Naya Purwa are not
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
produced before this Court. This fact,
alone,
cannot
change
the
place
of
occurrence.

49. So far as the motive is concerned,
motive loses its importance when there is ocular
evidence. However, in the impugned case the
motive is very much clear. There was a dispute
regarding flow of parnala and accused closed the
parnala of deceased and raised their wall. In the
forenoon also the dispute arose regarding the
obstruction of flow of water from parnala by the
construction of wall and FIR was also lodged by
the mother of accused themselves which proved
that there was animosity between the parties and
due to this animosity accused assaulted the
deceased when he was going to lodge FIR in the
police station.

50. The learned trial court had
discussed the evidence at length. From the
perusal of the record of the trial court it
transpires
that
there
was
a
dispute
regarding flow of water in parnala which
was obstructed by the accused and the
quarrel took place in the fore-noon of
fateful day. The ocular evidence adduced
by
the
prosecution
has
proved
the
prosecution case in court. Motive is well
established. Place of occurrence is proved
by the prosecution as blood stain earth was
collected from the place of occurrence and
blood stain were found on kurta, tehmat
and gamcha of the deceased.

51. According to the forensic science
laboratory report human blood was found
in the sample. The injuries found on the
body of the deceased are well
in
consonance with the prosecution case.
Accused Mustakim was said to have axe in
his hand at the time of incident however, no
injury of axe was found on the body of the
deceased. It is stated that Mustakim was
using the stick of axe and his presence at
the place of occurrence was proved.

52. It is also stated that the motive accrue
only to accused Israr who has expired during
the course of trial but it is admitted in the
statement of Section 313 Cr.P.C and during the
course of evidence that all the accused formed
unlawful assembly and attacked the deceased
with common object to kill him. The
participation of all the accused is proved in this
incident.

53. Learned trial court discussed the
evidence of all prosecution witnesses and
formal witnesses at length. There is no
infirmity or perversity in the judgment and
order passed by the learned trial court.

53. Hence, we do not find any reason
to interfere with the judgment of the trial
court passed in Sessions Trial No.241 of
1982 whereby the accused are convicted by
the trial court.

54. The appeal is accordingly,
dismissed.

55.

The
accused
appellantsMuntazim, Mustaqim, Rahimuddin and
Idris are on bail. Their bail bonds stand
cancelled and sureties discharged they are
directed to surrender before the concerned
Court within a period of two weeks from
today failing which they shall be taken into
custody by the trial court and be sent to jail
to serve out the sentence awarded by the
trial court and confirmed by this Court.

56. Let a copy of this judgment as
well as lower court record be transmitted to
the trial court forthwith for necessary
information and compliance.
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