# Nathu & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 402
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-05-02
- **Case number:** Criminal Appeal No. 813 of 1991
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathu-ors-in-jail-v-state-of-u-p-44312
- **Pages:** 13

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973, Section 157- Ante-Timed
F.I.R- Upon going through the evidence of P.W4
S.I. Chandra Shekhar Gupta, we find that the
time at which the special report was dispatched
to the higher authority in Badaun has been
deliberately suppressed by him and hence, an
adverse inference can safely be drawn against
the prosecution from the fact that the police
constable who had gone to Badaun to deliver
the special report to the higher authorities, had
returned at 8 P.M. on 30.07.1989 that there was
an inordinate delay on the part of the
prosecution in dispatching the special report to
the higher authority which indicates that the
F.I.R. of the incident is ante-timed and it was
not lodged at the time mentioned in the check
F.I.R.
Deliberate suppression of the Special Report
and inordinate delay in sending the same to the
Magistrate is indicative of the F.I.R being antetimed.
The absence of any blood under the cot of the
deceased although each of the accusedappellants had fired at him, gives rise to a very
strong suspicion that the incident had not taken
place at the place alleged by the prosecution
and P.W.1 by deposing that a lot of blood was
found spilled on the ground, had spoken a lie
before the trial court.
The testimony of a witness, unsupported and
contradicted by other evidence (Blood marks),
renders the case of the prosecution suspicious
and unreliable.

B. Evidence Law - Indian Evidence Act,
1872 - Section 3- Testimony of Related
Witnesses- Reliability- In a case where the
occurrence takes place partly inside the house
and partly outside the family members and the
close relatives are bound to be the natural
witnesses and they cannot be said to be the
chance witnesses. The mere fact that the
witnesses are related to the deceased cannot be
ground to discard their evidence. Both the
natural witnesses and the chance witnesses
have to be relied upon subject to their evidence
being trustworthy and admissible in accordance
with law.
Relatives of the deceased who are present in
the house at the time of the commission of the
offence are natural witnesses and relationship of
the witnesses cannot be a factor to discard their
evidence,
provided
the
same
is
legally
admissible and trustworthy.

C. Evidence Law - Indian Evidence Act,
1872-
Section
114
(
g)-
Withholding
evidence- Adverse Inference by the Court-
Jagan, in whose chaupal murder of Dhanpal was
committed would have been the best witness to
prove the prosecution's claim that the deceased
along with his father and cousin brother, had
slept in his chaupal on the night of the incident,
was strangely not produced as witness by the
prosecution during the trial. Since no reason is
forthcoming for non-production of Jagan as a
witness during the trial, we have no option but
to draw an adverse inference that in case he
was examined as a witness, he would not have
supported the prosecution case.
Where the prosecution withholds the best
evidence deliberately, then the Court may draw
an adverse inference that if produced, the said
6 All. Nathu & Ors. Vs. State of U.P.
403
witness would not have supported the case of
the prosecution.

D. Evidence Law - Indian Evidence Act,
1872 - Section 155- Credibility of witness-
Contradiction between ocular and oral evidence-
The inconsistency in the medical and ocular
evidence goes to show that the incident had not
taken place in the manner alleged and also that
the two witnesses produced by the prosecution
were actually not present on the spot.
Where the medical evidence contradicts the
ocular version, then the same leads to the
conclusion that the witnesses are untrustworthy
and their presence on the spot is doubtful. (Para
21,22,25,27,33)

Criminal Appeal Allowed. (E-3)

Case law relied upon/ discussed:-

## Text

_Characters 0–39,978 of 45,694. This is a partial read: ask again with offset=39978 for what follows._

402 INDIAN LAW REPORTS ALLAHABAD SERIES

36. Office is directed to transmit the lower
court record along with copy of this judgement
to the learned court below for information and
necessary compliance.
----------
(2020)06ILR A402
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2017

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 813 of 1991

Nathu & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.C. Katiyar, Sri Pradeep Kumar, Sri
Raghuvansh Mishra, Sri Rahul Mishra

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

A. Criminal Law - Code of Criminal
Procedure, 1973, Section 157- Ante-Timed
F.I.R- Upon going through the evidence of P.W4
S.I. Chandra Shekhar Gupta, we find that the
time at which the special report was dispatched
to the higher authority in Badaun has been
deliberately suppressed by him and hence, an
adverse inference can safely be drawn against
the prosecution from the fact that the police
constable who had gone to Badaun to deliver
the special report to the higher authorities, had
returned at 8 P.M. on 30.07.1989 that there was
an inordinate delay on the part of the
prosecution in dispatching the special report to
the higher authority which indicates that the
F.I.R. of the incident is ante-timed and it was
not lodged at the time mentioned in the check
F.I.R.
Deliberate suppression of the Special Report
and inordinate delay in sending the same to the
Magistrate is indicative of the F.I.R being antetimed.
The absence of any blood under the cot of the
deceased although each of the accusedappellants had fired at him, gives rise to a very
strong suspicion that the incident had not taken
place at the place alleged by the prosecution
and P.W.1 by deposing that a lot of blood was
found spilled on the ground, had spoken a lie
before the trial court.
The testimony of a witness, unsupported and
contradicted by other evidence (Blood marks),
renders the case of the prosecution suspicious
and unreliable.

B. Evidence Law - Indian Evidence Act,
1872 - Section 3- Testimony of Related
Witnesses- Reliability- In a case where the
occurrence takes place partly inside the house
and partly outside the family members and the
close relatives are bound to be the natural
witnesses and they cannot be said to be the
chance witnesses. The mere fact that the
witnesses are related to the deceased cannot be
ground to discard their evidence. Both the
natural witnesses and the chance witnesses
have to be relied upon subject to their evidence
being trustworthy and admissible in accordance
with law.
Relatives of the deceased who are present in
the house at the time of the commission of the
offence are natural witnesses and relationship of
the witnesses cannot be a factor to discard their
evidence,
provided
the
same
is
legally
admissible and trustworthy.

C. Evidence Law - Indian Evidence Act,
1872-
Section
114
(
g)-
Withholding
evidence- Adverse Inference by the Court-
Jagan, in whose chaupal murder of Dhanpal was
committed would have been the best witness to
prove the prosecution's claim that the deceased
along with his father and cousin brother, had
slept in his chaupal on the night of the incident,
was strangely not produced as witness by the
prosecution during the trial. Since no reason is
forthcoming for non-production of Jagan as a
witness during the trial, we have no option but
to draw an adverse inference that in case he
was examined as a witness, he would not have
supported the prosecution case.
Where the prosecution withholds the best
evidence deliberately, then the Court may draw
an adverse inference that if produced, the said
6 All. Nathu & Ors. Vs. State of U.P.
403
witness would not have supported the case of
the prosecution.

D. Evidence Law - Indian Evidence Act,
1872 - Section 155- Credibility of witness-
Contradiction between ocular and oral evidence-
The inconsistency in the medical and ocular
evidence goes to show that the incident had not
taken place in the manner alleged and also that
the two witnesses produced by the prosecution
were actually not present on the spot.
Where the medical evidence contradicts the
ocular version, then the same leads to the
conclusion that the witnesses are untrustworthy
and their presence on the spot is doubtful. (Para
21,22,25,27,33)

Criminal Appeal Allowed. (E-3)

Case law relied upon/ discussed:-

1. Waman & ors. Vs St. of Maha. (2011) Crl. L.J.
4827

2. Balraje @ Trimbak Vs St. of Maha, (2010) 70
ACC 12 SC, (2010) 90 AIC 32

3. St. of U.P. Vs Naresh & ors, (2011) 75 ACC
215 SC, (2011) 106 AIC 76 SC.

4. Thoti Manohar Vs St. of A.P., (2012) 78 ACC
511 SC

5. Mano Dutt & anr. Vs St. of U.P., (2012) 77
ACC 209

6. Namdeo Vs St. of Maha.,(2007) 58 ACC 414
(52) , (2007) 54 AIC 162

(Delivered by Hon'ble Bala Krishna
Narayana, J. &
Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Rahul Mishra and Sri
Pradeep Kumar, learned counsel for the
appellants and Smt. Manju Thakur, State
Law Officer for the State.

2. This appeal has been preferred by
the appellants against the judgement and
order dated 19.04.1991 passed by Ist
Additional Session Judge, Badaun in S.T.
No.17 of 1990, State Vs. Nathoo and
others, by which the appellants have been
convicted and sentenced to imprisonment
for life under Section 302 read with Section
34 I.P.C.

3. Briefly stated the facts of this case
are that deceased Dhanpal was on friendly
terms with accused Nathoo (A1) and used
to visit the latter's house. Accused Prem Pal
(A2) and Jai Lal (A3) were the friends of
Nathoo (A1). The deceased developed
intimate relations with Smt. Sushila, wife
of Nathoo (A1). About 10 days before the
incident, Smt. Sushila eloped and Nathoo
(A1) held the deceased responsible for it
and started bearing enmity against him. On
29.07.1989,
informant
Balak
Ram,
deceased Dhanpal and Raja Ram, nephew
of the informant were sleeping in the
chaupal of Jagan. A lit lantern was hanging
on the wall-peg. Balak Ram and Raja Ram
also had torches with them. At about 11.30
P.M., the informant was awakened by some
noise and he flashed the torch. He saw the
three accused-appellants, all armed with
pistols. Nathoo (A1) then said that Dhanpal
had eloped with his wife, he will kill him.
Thereafter, each of the three accused fired a
shot at Dhanpal and he died on the spot.
The informant and Raja Ram raised an
alarm but none came to the spot. The
accused-appellants then ran away towards
east.

4. On 30.07.1989, the informant went
to the police station with the village
chaukidar, and gave a written report of the
occurrence (Ext.Ka.1) at P.S.- Binawar,
District- Badaun at 6.30 A.M., scribed by
one Shiv Kumar Sharma. On the basis of
the written report (Ext.Ka.1), check F.I.R.
(Ext.Ka.13) and G.D. Entry (Ext.Ka.14)
404 INDIAN LAW REPORTS ALLAHABAD SERIES
were prepared and a case, namely, Crime
No. 341/89 u/s 302 I.P.C. was registered
against the accused-appellants.

5. P.W.4 S.I. Chandra Shekhar
Gupta
was
entrusted
with
the
investigation of the case, who recorded
the statements of the informant and the
Head Moharrir at the police station and
then reached the place of occurrence.
He
inspected
the
place
of
the
occurrence on the pointing out of the
P.W.1 informant Balak Ram and P.W.2
Raja Ram, and prepared its site plan
(Ext.Ka.4).
He
then
prepared
the
inquest report (Ext.Ka.5) and other
related papers (Exts.Ka.6 to Ka.10). He
got the dead body of the deceased
sealed and dispatched for postmortem
through Constable Ganga Saran and
village chowkidar Om Prakash. On the
same day, he interrogated P.W.2 Raja
Ram and took blood-stained 'baan' of
the cot and mattress from the place of
occurrence and sealed them separately
vide memo (Ext.Ka.11). He inspected
the lantern which was said to be
burning on the spot at the relevant time
and also the torches of the complainant
and Raja Ram and gave them back in
their supurdagi, vide memo (Ext.Ka.2).

6. P.W.3 Dr. S.P. Behal, the then
Emergency
Medical
Officer,
District
Hospital-
Badaun,
conducted
the
postmortem on the dead body of the
deceased
on
30.07.1989
at
4
P.M.
According to his opinion, the deceased was
aged about 22 years and had died about 3/4
day ago. The deceased was of average
built. Rigor mortis was present in upper
and lower limbs but had passed off from
the neck. The doctor found the following
antemortem injuries on the person of the
deceased :-

(1) A firearm injury on the right
side of abdomen 9 cm away from umblicus at
10 o'clock position size 2 cm x 2 cm x cavity
deep. Direction medially and backwards.
Surrounded by blackening and tattooing in
an area of 6 cm circular. Margins charred
and inverted.

(2) A firearm injury on the left side
of skull at parietal bone 10 cm above the left
ear, size 2 cm x 2 cm x skull deep. Margins
inverted. Blackening and tattooing present.

(3) An abraded firearm wound on
the right side of chest 9.5 cm above the nipple
at 10 o'clock position, size 1.5 cm x 1 cm x
skin deep. Tattoing present at margins.

(4) Multiple small puncted firearm
abrasions on the right side of chest at and
around clavicular area front of chest and
right side of chin and face in an area of 18
cm x 10 cm. Tattooing of skin present.

7. On internal examination, the doctor
found that in the antemortem injury of skull,
there was a circular fracture in left parietal
bone and its size was 2 cm x 2 cm. A long
bullet was recovered from the brain matter.
Membranes of the brain were lacerated and
they corresponded to the skull injury. There
was blood clot about 100 gms, in the left side
of brain. Peritoneum was lacerated in the
abdomen. Blood clot, weighing about 200
gms, was present in the abdominal cavity.
Intestines were lacerated at places and 9
small pellets and two wadding pieces were
recovered from the abdominal cavity.
Indigested food was present in small
intestine. Some faecal matter and gases were
present in large intestine. According to P.W.3
Dr. S.P. Behal, the death of the deceased had
been caused due to shock and haemorrhage
as a result of antemortem injuries on the skull
and stomach. The doctor prepared the
postmortem report and proved the same as
(Ext.Ka.3). The doctor sealed the bullet,
pellets and wadding pieces which were
6 All. Nathu & Ors. Vs. State of U.P.
405
recovered from the dead body and handed
them over to the constable along with one
vest, one underwear and one amulet which
were worn by the deceased.

8. The Investigating Officer, after
completing the investigation, submitted
charge-sheet (Ext.Ka.12) against all the
accused-appellants u/s 302 I.P.C. before
Chief Judicial Magistrate, Badaun. Since
the offence mentioned in the charge sheet
was triable exclusively by the Court of
Sessions,
Chief
Judicial
Magistrate,
Badaun
committed
the
the
accusedappellants for trial to the Court of Sessions
Judge, Badaun where the case was
registered as S.T. No.17 of 1990, State Vs.
Nathoo and others and made over for trial
from there to the Court of Ist Additional
Sessions Judge, Badaun, who on the basis
of material collected during investigation
and after hearing the prosecution as well as
accused-appellants on the point of charge,
framed charge u/s 302/34 I.P.C. against the
accused-appellants. The accused-appellants
abjured the charge and claimed trial.

9. The prosecution in order to prove
its case examined as many as four
witnesses of whom P.W.1 informant Balak
Ram, father of the deceased and P.W.2
Raja Ram, nephew of the informant were
examined as witnesses of fact while P.W.3
Dr. S.P. Behal, the medical officer who had
conducted the postmortem on the dead
body of the deceased and P.W.4 S.I.
Chandra Shekhar Gupta, the Investigating
Officer of the case were produced as formal
witnesses.

10. The accused-appellants in their
statements recorded under Section 313
Cr.P.C. alleged false implication in the case
due to enmity and village partibandi.
Accused-appellant no.2, Prem Pal further
stated that he and the other accusedappellants were real brothers.

11. The accused-appellants examined
D.W.1 Sri Arvind Kumar, Advocate Oath
Commissioner and D.W.2 Sri Gyanendra
Nath Gupta, Advocate Oath Commissioner
to show that P.W.2 Raja Ram had twice on
07.03.1990 and 14.03.1990, sworn two
affidavits (Exts.Kha.4 and Kha.3) in which
he had mentioned that in the night of
29.07.1989 at about 11.30 P.M. he was
sleeping in his field and that he had not
seen the incident and that he had falsely
been made an eye witness of the incident
by Balak Ram.

12. Learned Ist Additional Sessions
Judge, Badaun, after considering the
submissions advanced before him by the
learned counsel for the parties and
scrutinizing the entire evidence on record,
both oral as well as documentary, convicted
the accused-appellants u/s 302/34 I.P.C.
and sentenced them to imprisonment for
life.

13. Hence, this appeal.

14. It has been submitted by the
learned counsel for the appellants that the
F.I.R. in this case which is highly belated
was scribed after due deliberations and
consultations with the police after the dead
body of the deceased was discovered
falsely implicating the appellants and is
ante-timed. The prosecution has miserably
failed to prove the motive spelt out in the
F.I.R. for the accused-appellants to commit
the murder of the deceased. Learned trial
Judge committed a patent error of law in
placing reliance on the so-called eyeaccount of P.W.1 informant Balak Ram and
P.W.2 Raja Ram who are father and cousin
brother of the deceased and hence, highly
406 INDIAN LAW REPORTS ALLAHABAD SERIES
interested in seeing the accused-appellants
convicted for the murder of deceased on
account of admitted previous enmity and
whose presence at the time and place of
occurrence
is
wholly
unnatural
and
doubtful. The medical evidence on record
neither corroborates the time of occurrence
nor the manner in which the murder of the
deceased was allegedly committed by the
accused-appellants, as narrated in the F.I.R.
Absence of any blood at the place of
occurrence clearly indicated that the
deceased had not been murdered at the
place mentioned in the F.I.R. and after he
was found dead, his body was brought from
the place of actual occurrence to the
chaupal of Jagan and kept there. Neither
the recorded conviction of the accusedappellants nor the sentences awarded to
them can be sustained and are liable to be
set-aside.

15. Per contra Smt. Manju Thakur,
State Law Officer appearing for the State
advanced her submissions in support of the
impugned judgement and order. She
submitted that it is fully proved from the
evidence of P.W.1 informant Balak Ram
and P.W.2 Raja Ram that the deceased
Dhanpal was murdered by the accusedappellants while he was sleeping in the
chaupal of Jagan with P.W.1 and P.W.2 at
about 11.30 P.M. on 29.07.1989. There is
no material discrepancy in the medical
evidence vis-a-vis the eye witness account.
It was proved beyond all reasonable doubts
from the eye witness account of P.W.1
informant Balak Ram and P.W.2 Raja Ram
and other evidence on record that deceased
Dhanpal was shot dead by the accusedappellants while he was sleeping on a cot in
the chaupal of Jagan. Absence of blood
below the cot on which he was sleeping at
the place of occurrence is not sufficient to
disbelieve the prosecution claim that the
deceased Dhanpal was shot dead at the
place mentioned in the F.I.R. The motive as
well as the time, place and manner of attack
as well as the identity of the perpetrators of
crime stood fully proved from the evidence
of P.W.1 informant Balak Ram and P.W.2
Raja Ram. The conviction of the accusedappellants recorded by the trial court is
based on cogent reasons and the sentence
awarded to them is supported by relevant
considerations. The impugned judgement
and order do not suffer from any illegality
or legal infirmity and do not require any
interference by this Court. This appeal
lacks merit and is liable to be dismissed.

16. The only question which arises for our
consideration in this appeal is that whether the
prosecution has been able to prove its case
against the accused-appellants beyond all
reasonable doubts or not ?

17. The first ground on which the learned
counsel for the appellants have challenged the
appellants conviction is that the F.I.R. in this
case is ante-timed. There is an inordinate and
unexplained delay of seven hours in lodging the
same and upon perusal of the facts deposed by
P.W.2 Raja Ram in the last paragraph of his
examination-in-chief, it transpires that the same
was prepared after due deliberations and
consultations with the police and after the police
had seen the deceased's body and inspected the
crime scene, falsely implicating the accusedappellants on account of which the very
foundation of the prosecution case is shattered
and the entire case becomes suspicious and
doubtful. Record of this case shows that the
incident had taken place at about 11.30 P.M. on
29.07.1989 in the chaupal of Jagan in village
Bhooripur, P.S.- Binawar, District- Badaun.
The distance between the place of occurrence
and P.S.- Binawar where the written report of
the incident (Ext.Ka.1) was given by P.W.1
informant Balak Ram as mentioned in the
6 All. Nathu & Ors. Vs. State of U.P.
407
check F.I.R. is about 8 km. The check F.I.R.
(Ext.Ka.13) shows that the case was registered
on 30.07.1989 at 6.30 A.M. As far as the
question of delay in lodging the F.I.R. of the
occurrence is concerned, in our opinion the
same was satisfactorily explained by P.W.1
informant Balak Ram by deposing in his
examination-in-chief on page 20 of the paper
book that he had not gone to the police station
immediately after the occurrence but had left
for the police station in the early hours of the
morning with the village chowkidar.

18. Now coming to the question
whether the F.I.R. in this case was actually
registered at 6.30 A.M. on 30.07.1989 or
not, we have before us the evidence of
P.W.1 informant Balak Ram and P.W.2
Raja Ram, the two eye witnesses of the
occurrence.
Another
issue
which
is
interconnected with this issue is that
whether the police had arrived at the place
of occurrence before the F.I.R. was
registered and had then returned to the
police station with P.W.1 informant Balak
Ram and the village chowkidar and then
the F.I.R. of the incident was registered or
the police had arrived at the place of
occurrence after the F.I.R. of the incident
had been lodged by P.W.1 informant Balak
Ram at P.S.- Binawar, District- Badaun
where he had gone with the village
chowkidar early in the morning after the
incident had taken place at about 11.30
P.M.

19. P.W.1 informant Balak Ram in his
examination-in-chief on page 17 of the
paper book has deposed that he had gone to
P.S.- Binawar with the village chowkidar in
the morning. He had got the written report
of the incident scribed in front of the police
station by a man and he had written
whatever P.W.1 informant Balak Ram had
dictated and after the contents of the
written report were read over to him, he
had put his thumb impression thereon. He
proved the written report of the incident as
(Ext.Ka.1). On the same page, he further
deposed that the police had reached the
village at about 10 A.M. However, P.W.2
Raja Ram in paragraph 27 of his crossexamination on page 41 of the paper book
deposed that when the police had come to
the village, thereafter P.W.1 informant
Balak Ram had returned with the police to
the police station and he had heard the
police personnel telling P.W.1 informant
Balak Ram that he should lodge the F.I.R.
of the incident on which P.W.1 informant
Balak Ram had gone to the police station
with the police personnel. The aforesaid
discrepancy in the testimonies of P.W.1
informant Balak Ram and P.W.2 Raja Ram
on the point whether the F.I.R. of the
incident was lodged before the police had
arrived at the place of occurrence or the
police on receiving information about the
incident from some other source, had
reached the place of occurrence and
thereafter, returned with P.W.1 informant
Balak Ram to the police station and then
the F.I.R. of the incident was then lodged,
gives rise to a very strong doubt that the
F.I.R. of the incident is a product of police
interference. It is significant to note that the
learned D.G.C. (Criminal) did not recall
P.W.2 Raja Ram for getting the facts
deposed by him in paragraph 27 of his
cross-examination clarified. Although, the
prosecution case is that the F.I.R. was
lodged at 6.30 A.M. on 30.07.1989 but the
facts of the case and the evidence of the
witnesses show that the F.I.R. could not
have been lodged at 6.30 A.M. The
distance between the place of occurrence
and the place of incident is about 8 km.
P.W.4 S.I. Chandra Shekhar Gupta, the
Investigating Officer of this case, on page
56 of the paper book in his statement
408 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded before the trial court, has stated
that it takes about four hours on foot to
reach the police station from the village
where the incident had taken place. P.W.1
informant Balak Ram in his examinationin-chief on page 17 of the paper book to
which
we
have
already
referred
to
hereinabove, has stated that he had left for
P.S.- Binawar with the village chowkidar
early in the morning. Although he has not
disclosed the exact time but we can safely
presume that he had left for the police
station between 4.30 and 5 A.M. by which
time some light is visible in that part of the
year in which the incident had taken place.
P.W.1 informant Balak Ram in his
statement has not deposed that he had gone
to the police station by a vehicle.
Therefore, we can safely infer that he had
gone to the police station with the village
chowkidar on foot and in that case, it was
not possible for him to have reached the
police station and lodge the F.I.R. at 6.30
A.M. after getting the same scribed in front
of the police station and he could not have
reached the police station before 8.30 A.M.

20.

Another
very
clinching
circumstance which supports the argument
of the learned counsel for the appellants
that the F.I.R. in this case is ante-timed is
that the police had arrived at the place of
incident by jeep as deposed by P.W.4 S.I.
Chandra Shekhar Gupta in his crossexamination on page 57 of the paper book
around 11 A.M. which is the time at which
the inquest had commenced as is evident
from the perusal of the inquest report
(Ext.Ka.5). Now the question which arises
for our consideration is that if the F.I.R. in
this case was lodged at 6.30 A.M., why it
took more than four hours for the police to
reach the place of incident. P.W.4 S.I.
Chandra Shekhar Gupta, the Investigating
Officer of this case, in his examination-inchief on page 48 of the paper book has
categorically deposed that the case was
registered on 30.07.1989 at about 6.30
A.M. at P.S.- Binawar, District- Badaun in
his presence and he had taken up the
investigation of the case. There is no
whisper of any explanation in his evidence
for his failure to reach the place of
occurrence promptly or atleast within a
reasonable time. No prudent man can
presume that it will take three or four hours
for a police jeep to cover a distance of 8
kms.

21. There is another very significant
aspect of the matter which was brought to
our notice by the learned counsel for the
appellants by referring to paragraph 16 of
the statement of P.W.4 S.I. Chandra
Shekhar Gupta, in which he had stated that
the constable who had gone to Badaun to
deliver the special report to the higher
authorities had returned to the police
station at 8 P.M. Placing reliance on the
aforesaid extract of the statement of P.W.4
S.I. Chandra Shekhar Gupta, the learned
counsel for the appellants has submitted
that the aforesaid fact shows that the F.I.R.
was written much later and was ante-timed
and its special report was dispatched
sometime in the afternoon on 30.07.1989.
Upon going through the evidence of P.W4
S.I. Chandra Shekhar Gupta, we find that
the time at which the special report was
dispatched to the higher authority in
Badaun has been deliberately suppressed
by him and hence, an adverse inference can
safely be drawn against the prosecution
from the fact that the police constable who
had gone to Badaun to deliver the special
report to the higher authorities, had
returned at 8 P.M. on 30.07.1989 that there
was an inordinate delay on the part of the
prosecution in dispatching the special
report to the higher authority which
6 All. Nathu & Ors. Vs. State of U.P.
409
indicates that the F.I.R. of the incident is
ante-timed and it was not lodged at the time
mentioned in the check F.I.R.

22. The next ground on which the
learned counsel for the appellants has
assailed the accused-appellants conviction
is that the prosecution has miserably failed
to prove the place of occurrence by any
cogent and reliable evidence. As per the
prosecution case, the deceased Dhanpal
was shot dead by the accused-appellants
while he was sleeping on a cot in the
chaupal of Jagan along with P.W.1
informant Balak Ram and P.W.2 Raja Ram
who were also sleeping on adjacent cots.
Both P.W.1 and P.W.2 in their statements
recorded before the trial court have
deposed that the deceased was shot dead by
the accused-appellants while he was
sleeping in the chaupal of Jagan. P.W.1
informant Balak Ram in his crossexamination on page 23 of the paper book
had further deposed that blood was spilled
over an area of about 1 and 1⁄2 ft. on the
ground and the Investigating Officer had
collected plain and blood-stained earth
from the place of occurrence. However,
P.W.4 S.I. Chandra Shekhar Gupta, in
paragraph 21 of his statement on page 25 of
the paper book, has categorically deposed
that he had neither found any blood under
the cot of the deceased nor any pellet. The
absence of any blood under the cot of the
deceased although each of the accusedappellants had fired at him, gives rise to a
very strong suspicion that the incident had
not taken place at the place alleged by the
prosecution and P.W.1 by deposing that a
lot of blood was found spilled on the
ground, had spoken a lie before the trial
court.

23. The third ground on which the
learned counsel for the appellants has
castigated
the
accused-appellants
conviction is that the prosecution has failed
to prove the motive, as disclosed by the
informant in the F.I.R., for the appellants to
commit the murder of the deceased. It
appears from the perusal of the F.I.R. and
the evidence of the two witnesses of fact,
P.W.1 informant Balak Ram and P.W.2
Raja Ram that Smt. Sushila, wife of Nathoo
(A1)
had
eloped
and
Nathoo
(A1)
suspected that his wife had eloped with
deceased Dhanpal and on account of
aforesaid suspicion about 10 days before
the occurrence, a quarrel had taken place
between Nathoo (A1) and the deceased
whereafter Nathoo (A1) had threatened to
kill him and the murder of the deceased
was
the
outcome
of
the
aforesaid
animosity. It is significant to note that there
is nothing in the evidence of P.W.1
informant Balak Ram and P.W.2 Raja Ram
which may indicate that either P.W.1
informant Balak Ram or P.W.2 Raja Ram
had witnessed the alleged quarrel which
had taken place between the deceased
Dhanpal and Nathoo (A1) after which he
had threatened to kill the deceased
Dhanpal. No report regarding the alleged
quarrel was lodged by the deceased with
the police. There is also no direct evidence
on record showing that the wife of Nathoo
(A1) had actually eloped with the deceased
and the theory of elopment is based
primarily
upon
suspicion.
Both
the
witnesses of fact had categorically deposed
in their evidence that they had heard of
Smt. Sushila, wife of Nathoo (A1) having
an affair with deceased Dhanpal. The
evidence of P.W.1 informant Balak Ram
and P.W.2 Raja Ram on the point of motive
is legally inadmissible being hearsay.
Moreover, it has come in the evidence that
Smt. Sushila had returned to her husband
Nathoo (A1) and on the date of the
occurrence, she was living with him. Thus,
410 INDIAN LAW REPORTS ALLAHABAD SERIES
in the absence of any direct evidence of the
incident involving the quarrel between the
deceased and Nathoo (A1) in which he had
allegedly stated over the elopment of Smt.
Sushila, wife of Nathoo (A1) with the
deceased whereafter he had threatened to
kill Dhanpal, we cannot presume that no
such incident had taken place and the
motive spelt out by the prosecution in the
F.I.R. and as later testified by the
prosecution witnesses in fact appears to
have been concocted for the purpose of the
case. Thus, we hold that the prosecution
has failed to prove the motive for the
accused-appellants to commit the offence.

24. The fourth ground on which the
learned counsel for the appellants has
challenged the appellants' conviction is that
the trial court had committed a patent error
of law in placing reliance upon the
evidence of P.W.1 informant Balak Ram
and P.W.2 Raja Ram who claimed
themselves to be the eye witnesses of the
occurrence for the purpose of convicting
the accused-appellants. In this regard, it has
been canvassed that both P.W.1 informant
Balak Ram and P.W.2 Raja Ram are
closely related to the deceased Dhanpal.
P.W.1 informant Balak Ram being his
father and P.W.2 Raja Ram his cousin
brother and hence, both were partisan and
inimical towards the accused-appellants
and highly interested in getting them
convicted. Moreover, their presence as well
as the presence of the deceased at the time
and place of occurrence is absolutely
unnatural. No reason has been given by
P.W.1 informant Balak Ram for not
sleeping in his own house. He has merely
stated that on the date of the incident, his
four sons, three daughters and his wife
were sleeping in the house. He has nowhere
deposed that no space was left for him and
his son deceased Dhanpal to sleep in his
house. The reason given by P.W.2 Raja
Ram for P.W.1 informant Balak Ram
sleeping along with the deceased Dhanpal
in the chaupal of Jagan despite having their
own separate fairly huge house in the
village, does not inspire confidence.
Moreover P.W.2 Raja Ram has failed to
furnish any reason for his sleeping in the
chaupal along with the deceased and P.W.1
informant Balak Ram, leaving the comfort
of his own house. Before proceeding to
examine the sustainability of the aforesaid
ground of challenge to the accusedappellants conviction, we consider it proper
to first have a glance at the law on the issue
:-

The Apex Court in Waman and
others v. State of Maharashtra reported in
2011 Crl. L.J. 4827 has observed in
paragraph no.9 which reads as follows :

"In Balraje @ Trimbak v. State
of Maharashtra, 2010 (70) ACC 12 (SC) =
2010 (90) AIC 32, this Court held that mere
fact that the witnesses were related to the
deceased cannot be a ground to discard
their evidence. It was further held that
when the eye witnesses are stated to be
interested and inimically disposed towards
the accused, it has to be noted that it would
not be proper to conclude that they would
shield the real culprit and rope in innocent
persons. The truth or otherwise of the
evidence has to be weighed pragmatically
and the Court would be required to analyse
the evidence of related witnesses and those
witnesses who are inimically disposed
toward the accused. After saying so, this
Court held that 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."

It has been further observed in
Waman (supra) that relationship cannot be
6 All. Nathu & Ors. Vs. State of U.P.
411
a factor to affect the credibility of a
witness. The evidence of a witness cannot
be discarded solely on the ground of his
relationship with the victim of the offence.
The plea relating to relatives' evidence
remains without any substance in case the
evidence has credence and it can be relied
upon. In such a case the defence, has to lay
foundation if plea of false implication is
made and the Court has to analyse
evidence of related witnesses carefully to
find out whether it is cogent and credible.
The same view has been reiterated in State
of U.P. v. Naresh and others, reported in
2011 (75) ACC 215 (SC) = 2011 (106) AIC
76 (SC).

In Thoti Manohar v. State of
A.P., reported in 2012 (78) ACC 511 (SC),
it has recently been observed by Hon'ble
Supreme Court that in case the occurrence
partly takes place inside the house and
partly outside it, the family members and
the close relatives are bound to be the
natural witnesses. They cannot be said to
be chance witnesses but they are most
natural witnesses. Further it has also been
observed that the minor discrepancies on
trivial matters not touching the core of the
matter cannot bring discredit to the story of
the prosecution.

Regarding evidentiary value of
testimony of the interested or relatives
witnesses, Hon'ble Supreme Court in Mano
Dutt and another v. State of U.P., reported
in 2012 (77) ACC 209, has observed in
paragraph no.19 referring to the case of
Namdeo v. State of Maharashtra, reported
in 2007 (58) ACC 414 (52) = 2007 (54)
AIC 162, that this Court drew a clear
distinction between a chance witness and a
natural witness. Both these witnesses have
to be relied upon subject to their evidence
being
trustworthy
and
admissible
in
accordance with law.

25. Thus, what follows from the
reading of the aforesaid authorities is that
in a case where the occurrence takes place
partly inside the house and partly outside
the family members and the close relatives
are bound to be the natural witnesses and
they cannot be said to be the chance
witnesses. The mere fact that the witnesses
are related to the deceased cannot be
ground to discard their evidence. Both the
natural witnesses and the chance witnesses
have to be relied upon subject to their
evidence being trustworthy and admissible
in accordance with law.

26. We now propose to evaluate the
evidence of P.W.1 informant Balak Ram
and P.W.2 Raja Ram on the touchstone of
the principles enunciated by the Apex
Court hereinabove.

27. The occurrence in this case had
neither taken place partly inside the
deceased's house nor partly outside it.
Thus, the two eye witnesses, P.W.1
informant Balak Ram and P.W.2 Raja Ram
cannot be said to be the natural witnesses.
Both the witnesses admittedly have their
own houses in the village which were at
some
distance
from
the
place
of
occurrence. Both the witnesses have
deposed that on the night of the occurrence,
they along with the deceased had gone to
sleep in the chaupal of Jagan. We have very
carefully gone through the statements of
both the eye witnesses and we have found
that P.W.1 informant Balak Ram has failed
to come up with any reason in his
examination-in-chief for the deceased and
himself not sleeping in their house.
Similarly, P.W.2 Raja Ram has in his
examination-in-chief deposed that P.W.1
informant Balak Ram and deceased had
slept in the chaupal of Jagan due to paucity
of place in their house but he has failed to
412 INDIAN LAW REPORTS ALLAHABAD SERIES
come up with any reason for his sleeping
along with P.W.1 informant Balak Ram
and the deceased in the chaupal of Jagan.
P.W.1 has not stated anywhere in his
evidence that on the night of the
occurrence, he was forced to sleep along
with the deceased Dhanpal in the chaupal
of Jagan due to scarcity of space in his
house. Moreover, there is a material
discrepancy in the evidence of P.W.1
informant Balak Ram and P.W.2 Raja Ram
which
creates
a
doubt
about
the
genuineness of their claim of being the eye
witnesses
of
the
occurrence.
P.W.1
informant Balak Ram in his crossexamination on page 20 of the paper book
has submitted that the appellants had shot
Dhanpal while he was sleeping and he had
died instantaneously. However, P.W.2 Raja
Ram in his cross-examination on page 38
of the paper book has stated that after
Dhanpal had received injury, he had got up
and sat on the bed and then he had fallen
back on the bed. While getting up, he had
made a distress call "ki dadaa chalo". But
neither he nor P.W.1 informant Balak Ram
assured him that they were coming. The
aforesaid discrepancy in the statements of
P.W.1 informant Balak Ram and P.W.2
Raja Ram gives rise to an irresistible
conclusion that neither P.W.1 nor P.W.2
had
witnessed
the
occurrence.
The
prosecution having failed to come up with
any feasible explanation for the deceased,
his father P.W.1 informant Balak Ram and
his cousin P.W.2 Raja Ram choosing to
sleep in the chaupal of Jagan, instead of
sleeping in their own houses coupled with
the absence of blood on the ground below
the cot of the deceased evinces that neither
the incident had taken place at the place
mentioned in the F.I.R., as already held by
us hereinabove nor any of the two eye
witnesses had witnessed the same. Jagan, in
whose chaupal murder of Dhanpal was
committed would have been the best
witness to prove the prosecution's claim
that the deceased along with his father and
cousin brother, had slept in his chaupal on
the night of the incident, was strangely not
produced as witness by the prosecution
during the trial. Since no reason is
forthcoming for non-production of Jagan as
a witness during the trial, we have no
option but to draw an adverse inference that
in case he was examined as a witness, he
would not have supported the prosecution
case that the deceased Dhanpal and P.W.1
informant Balak Ram and P.W.2 Raja Ram
had slept in his chaupal on the night of
occurrence.

28. Thus, after a careful analysis of
the evidence of P.W.1 informant Balak
Ram and P.W.2 Raja Ram, we are of the
view that the entire prosecution story which
has been woven around the testimony of
P.W.1 informant Balak Ram and P.W.2
Raja Ram that the deceased was shot dead
by the accused-appellants at about 11.30
A.M. on the date of the incident while they
were sleeping in the chaupal of Jagan, does
not inspire confidence.

29. The final ground on which the
learned counsel for the appellants has
challenged
the
accused-appellants
conviction is that the medical evidence on
record does not corroborate the ocular
evidence vis-a-vis the manner of incident.
It is contended by the learned counsel for
the appellants that the injuries found on the
body of the deceased Dhanpal could not
have been inflicted on him in case the shots
were fired at him by the accused-appellants
if he was sleeping on the cot with his head
towards west and his legs towards east.
P.W.1 informant Balak Ram in paragraph
10 of his statement has stated that the
deceased was shot at while he was lying
6 All. Nathu & Ors. Vs. State of U.P.
413
down on the cot. His head was towards
east. The accused-appellants were at a
distance of about 1 and 1⁄2 pace and Nathoo
(A1)
was
facing
westwards.
The
postmortem report of the deceased shows
that the antemortem injury nos.1, 3 and 4
noted on the body of the deceased were on
the right side of his body while antemortem
injury no.2 was on the left side of the
corpse.

30. It is contended that the aforesaid
injuries could not have been caused while
the deceased was sleeping if the shots were
fired by the accused-appellants while
standing at the feet of the deceased, as
shown in the site plan (Ext.Ka.4). The
direction of these injuries should have been
upwards and thus the inconsistency in the
medical and ocular evidence goes to show
that the incident had not taken place in the
manner alleged and also that the two
witnesses produced by the prosecution had
not witnessed the incident. In this regard, it
would be useful to refer to the evidence of
P.W.3 Dr. S.P.