# Parto (In Jail) v. State

- **Citation:** (2019) 3 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-19
- **Case number:** Criminal Appeal No. 477 of 1987
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parto-in-jail-v-state-44890
- **Pages:** 12

## Headnote

A. Criminal Law-Indian Penal Code,1860 -
Section 302 of IPC - statements of two
eye-witnesses - accused appellant caused
firearm injuries to the deceased, resulting
his death - Postmortem report of the
deceased supports the prosecution - the
evidence of an interested witness should
not be equated with that of a tainted
evidence or that of an approver so as to
require corroboration as a matter of
necessity - the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased - In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon - Relationship is not a
factor to affect credibility of a witness - A
close relative cannot be characterized as
an 'interested' witness. He is a 'natural'
witness
-
evidence

found
to
be
intrinsically reliable, inherently probable
and wholly trustworthy, conviction can be
based on the 'sole testimony of such
witness - FIR can be proved ante-timed
or
ante-dated
by
adducing
proper
3 All. Parto Vs. State
941
evidence - trial Court fully justified in
convicting the appellant.(Para 14,16,18,19 )

B. Criminal Law-Code of Criminal Procedure,
1973 - Section 174 of Cr PC - inquest report -
The evidentiary value of the inquest report
prepared under Section 174 of Cr PC is not a
substantive piece of evidence and can only
be looked into for testing the veracity of the
witnesses of inquest - object of report is
merely to ascertain the apparent cause of
death, namely, whether it is suicidal,
homicidal, accidental or caused by animals
or machinery etc. and stating in what
manner, or by what weapon or instrument,
the injuries on the body appear to have been
inflicted. (Para 15)

Appeal dismissed (E-7)

Chronological list of cases cited: -

## Text

940 INDIAN LAW REPORTS ALLAHABAD SERIES

"I dare say some sentimentalists
would assent to the proposition that it is
better that a thousand, or even a million,
guilty persons should escape than that one
innocent person should suffer; but no
responsible and practical person would
accept such a view. For it is obvious that
if our ratio is extended indefinitely, there
comes a point when the whole system of
justice has broken down and society is in
a state of chaos."

The fact that there has to be clear
evidence of the guilt of the accused and that in
the absence of that it is not possible to record
a finding of his guilt was stressed by this
Court in the case of Shivaji Sahabrao Bobade
& Anr. (AIR 1973 SC 2622) as is clear from
the following observations :

"Certainly it is a primary
principle that the accused must be and not
merely may be guilty before a court can
convict
and
the
mental
distinction
between 'may be' and 'must be' is long and
divides vague conjectures from sure
considerations".

18. Having considered the aforesaid
facts, law and the evidence available on
record, in our opinion, present appeal
deserves
to
be
allowed.
Order
accordingly. The impugned judgment and
order is set aside. Since the appellant is
reported to be on bail, no further order is
required in his respect.

19. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.

20. We appreciate the assistance
rendered by Sri Abrar Ahmad Siddiqui,
learned Amicus and the State Government
is directed to pay him Rs.7,000/- towards
his remuneration.
----------
(2019)11ILR A940

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 477 of 1987

Parto ...Appellant (In Jail)
Versus
State ...Respondent.

Counsel for the Appellant:
Sri Santosh Kumar Tiwari, Sri Surendra
Nath Tiwari, Sri Tejpal.

Counsel for the Respondent:
Sri H.M.B. Singh, A.G.A.

A. Criminal Law-Indian Penal Code,1860 -
Section 302 of IPC - statements of two
eye-witnesses - accused appellant caused
firearm injuries to the deceased, resulting
his death - Postmortem report of the
deceased supports the prosecution - the
evidence of an interested witness should
not be equated with that of a tainted
evidence or that of an approver so as to
require corroboration as a matter of
necessity - the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased - In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon - Relationship is not a
factor to affect credibility of a witness - A
close relative cannot be characterized as
an 'interested' witness. He is a 'natural'
witness
-
evidence

found
to
be
intrinsically reliable, inherently probable
and wholly trustworthy, conviction can be
based on the 'sole testimony of such
witness - FIR can be proved ante-timed
or
ante-dated
by
adducing
proper
3 All. Parto Vs. State
941
evidence - trial Court fully justified in
convicting the appellant.(Para 14,16,18,19 )

B. Criminal Law-Code of Criminal Procedure,
1973 - Section 174 of Cr PC - inquest report -
The evidentiary value of the inquest report
prepared under Section 174 of Cr PC is not a
substantive piece of evidence and can only
be looked into for testing the veracity of the
witnesses of inquest - object of report is
merely to ascertain the apparent cause of
death, namely, whether it is suicidal,
homicidal, accidental or caused by animals
or machinery etc. and stating in what
manner, or by what weapon or instrument,
the injuries on the body appear to have been
inflicted. (Para 15)

Appeal dismissed (E-7)

Chronological list of cases cited: -

1. Pedda Narayana Vs St. of A.P. (1975) 4 SCC 153

2. Khujji Vs St. of M.P. (1991) 3 SCC 627

3. Kuldip Singh Vs St. of Pun. (1992) Suppl.3
SCC 1

4. George & Ors. Vs St. of Ker. & anr. (1998)
4 SCC 605

5. Suresh Rai Vs St. of Bihar (2000) 4 SCC 84

6. Amar Singh Vs Balwinder Singh (2003) 2
SCC 518

7. Radha Mohan Singh Vs St. of U.P. (2006) 2
SCC 450 and

8. Sambhu Das Vs St. of Assam (2010) 10 SCC
374

9. Radha Mohan Singh @ Lal Saheb & ors. Vs
St. of U.P. (2006) 2 SCC 450

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

11. St. of U.P. Vs Jagdeo Singh (2003) 1 SCC
456

12. Bhagalool Lodh & anr. Vs St. of U.P.
(2011) 13 SCC 206
13. Dahari & ors. Vs St. of U.P. (2012) 10 SCC
256

14. Raju @ Balachandran & ors. Vs St. of T.N.
(2012) 12 SCC 701

15. Gangabhavani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298

16. Jodhan Vs St. of M.P. (2015) 11 SCC 52

17. Bur Singh & anr. Vs St. of Pun. (2008) 16
SCC 65

18. Sudhakar v. St. AIR (2018) SC 1372

19. Ganapathi Vs St. of T.N. AIR (2018) SC
1635

20. Harbans Kaur & anr. Vs St. of Har. (2005)
AIR SCW 2074

21. Namdeo Vs St. of Mah. (2007) AIR SCW
1835

22. Sonelal Vs St. of M.P., (2008) AIR SCW
7988

23. Dharnidhar Vs St. of U. P. & ors.(2010) 7
SCC 759)

24. Yogesh Singh Vs Mahabeer Singh & ors.
(2016) AIR (SC) 5160

25. Bikau Pandey Vs St. of Bihar AIR (2004)
SC 997

26. Jai Prakash Singh Vs St. of Bihar (2012) 4
SCC 379

27. Madru Singh Vs St. of M.P. (1997) SCC
(Crl.) 3527

28. Ram Sanjiwan Singh Vs St. of Bihar (1996)
8 SCC 552

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of
impugned judgment and order dated
10.2.1987 passed by the Sessions Judge,
Mathura in Sessions Trial No.283 of
942 INDIAN LAW REPORTS ALLAHABAD SERIES
1985, convicting the appellant under
Section 302 of IPC and sentencing him to
undergo imprisonment for life.

2. As per prosecution case, on
5.7.1985 at 7:00 pm, accused appellant
Parto along with three other accused
persons namely, Biri Singh, Radhey
Shyam and Jaggo reached near the well,
where deceased Soran Singh, after taking
his bath, was sitting on a platform. It is
said that the accused appellant was
carrying gun; accused Biri Singh was
having a country made pistol; and
accused Radhey Shyam and Jaggo were
having gun with them. After reaching to
the place of occurrence, accused Biri
Singh exhorted by saying 'kill him, as he
contests lot of cases'. Accused Radhey
Shyam and Jaggo caught hold the
deceased and then the appellant caused
gunshot injury to the deceased, as a result
of which the deceased fell down. Hue and
cry was raised by the witnesses, including
(PW-1) Bhura, (PW-2) Gumani and (PW6) Raman and an attempt was also made
by them to catch hold the accused
persons, but as the accused persons were
having weapons with them, they fled
away from the spot. When injured Soran
Singh was being shifted to the Hospital,
on the way he expired. On the basis of
written report Ex.Ka.1 lodged by (PW-1)
Bhura (brother of the deceased) FIR
Ex.Ka.10 was registered at 10:00 pm on
5.7.1985 against four accused persons,
including the appellant under Section 302
of IPC.

3. Inquest on the dead body of the
deceased was conducted vide Ex. Ka.3 on
5.7.1985 and the body was sent for
postmortem which was conducted on
6.7.1985 vide Ex. Ka.2 by (PW-4) Dr.
Nepal Singh.

As
per
Autopsy
Surgeon,
following gunshot injuries were noticed
on the body of the deceased:

1. Fire arm wound of entry 2 cm
x 2 cm x cavity deep on Rt. side back, 7
cm above from Rt. hip bone. Blackening,
tattooing and scorching present on
around the wound.

2. Fire arm wound of exit 1 cm
x 1.5 cm x cavity deep on front of
Abdomen, 3 cm above from Penis in midline connected with Injury No.1.

Cause of death of the deceased
was due to Syncopy as a result of A/M
Injury noted.

4. While framing charge, the trial
Judge has framed charge against the
accused persons under Section 302/34 of
IPC.

5. So as to hold accused persons
guilty, prosecution has examined eight
witnesses,
whereas
three
defence
witnesses have also been examined.
Statements of accused persons were
recorded under Section 313 of Cr PC in
which, they pleaded their innocence and
false implication.

6. By the impugned judgment and
order, the trial Judge has acquitted
accused Biri Singh, Radhey Shyam and
Jaggo of all the offences, whereas the
appellant has been convicted under
Section 302 of IPC and sentenced, as
mentioned
in
paragraph-1
of
this
judgment. Hence, this appeal.

7. Counsel for the appellant
submits:-

(i) that the FIR is ante-timed.

(ii) that on the same set of
evidence, three accused persons have
3 All. Parto Vs. State
943
been acquitted and, therefore, the learned
trial Judge has erred in law, in convicting
the appellant.

(iii) that (PW-1) Bhura and
(PW-2) Gumani are interested witnesses
and,
therefore,
they
have
falsely
implicated the appellant.

(iv) that there are material
contradictions in the statements of (PW-1)
Bhura and (PW-2) Gumani and, therefore,
they are not trustworthy witnesses.

(v) that another eye-witness has
been examined as (PW-6) Raman, but his
testimony has been discarded by the trial
Court.

(vi) that if the FIR was
registered before preparing inquest, in the
inquest, (PW-1) Bhura and (PW-2)
Gumani ought to have disclosed the
names of accused persons and likewise,
details of the incident ought to have been
given by them.

(vii) that on account of previous
enmity
between
two
families,
the
appellant has been falsely implicated.

8. On the other hand, supporting the
impugned judgment and order, it has been
argued by learned State Counsel that the
conviction
of
the
appellant
is
in
accordance with law and there is no
infirmity in the same. He submits that the
incident occurred in the presence of (PW1) Bhura and (PW-2) Gumani and their
testimony cannot be discarded simply on
the ground that they are relatives of the
deceased. He further submits that minor
contradictions in the statements of eyewitnesses are required to be ignored
considering the fact that they are rustic
villagers and those minor contradictions
do not go to the root of the matter. He
also submits that in the inquest report,
prosecution was not obliged to mention as
to in what manner the incident took place
and likewise, it was not necessary to
mention the names of the accused
persons. It has been argued that the
postmortem report of the deceased also
supports the prosecution case. Lastly, it
has been argued that the acquittal of coaccused persons will not give any benefit
to the appellant as there is sufficient
material against him.

9. (PW-1) Bhura, is a brother of the
deceased and the informant. He is also an
eye-witness to the occurrence. He has
stated that he knew all the accused
persons and there is an old dispute
between his family and that of accused
Parto/Parma and Biri. On the date of
incident, after taking bath, deceased
Soran was sitting on a platform and he
(this witness) along with some other
persons were also taking bath. Brother-inlaw of the deceased, namely Dharmo
(Raman-PW-6) also reached to the place
of occurrence and then all the accused
persons reached there carrying firearms
with them. Accused appellant was having
gun with him; accused Jaggo and Sita
Ram caught hold the deceased and
thereafter, accused Biri exhorted that 'the
deceased has become chronic litigant and,
therefore, be killed' and hearing this,
accused appellant caused gunshot injuries
to the deceased. He has clarified that Sita
Ram and Radhey Shyam are the same
person and on account of fear, none of the
witnesses could come forward. He
picked-up his brother, took him on a
bullock cart and on the way to police
station, they could get tractor of one
Sonahari, however, by the time, injured
was shifted in the tractor, he expired.

In the cross-examination, this
witness remained very firm and reiterated
944 INDIAN LAW REPORTS ALLAHABAD SERIES
as to the manner in which the incident
occurred.

10. (PW-2) Gumani, is another
brother of the deceased and also an eye
witness to the occurrence. His statement
is almost identical to that of (PW-1)
Bhura. He too has stated that after taking
bath, the deceased was sitting on a
platform, whereas he and other witnesses
were also taking bath on the well. The
accused persons, including the appellant
reached at the place of occurrence,
accused Jaggo and Radhey Shyam caught
hold the deceased and then accused Biri
exhorted that 'the deceased is contesting
number of cases and, therefore, he be
killed' and then, the appellant caused
firearm injuries to the deceased.

In the cross-examination, this
witness also remained firm and has
reiterated as to the manner in which the
incident occurred.

11. (PW-6) Raman, is a brother-inlaw of the deceased, has also been cited
as an eye-witness to the incident. He
states that he came to the house of the
deceased to take his sister and when he
came to know that his brother-in-law had
gone to the well for taking bath, he too
had gone there and as soon as he reached
there, he saw the accused appellant
causing firearm injuries to the deceased.

In the cross-examination, he
however, has stated that he did not know
the accused persons prior to the incident
and he came to know about their names
after the incident. It is relevant to note
here that no test identification parade had
been conducted by the prosecution and
considering the inconsistencies in the
statement of this witness, he has already
been disbelieved by the trial Judge.

12. (PW-3) Sheoraj Singh, is a
Constable, took the body for postmortem.
(PW-4) Dr Nepal Singh, conducted the
postmortem on the body of the deceased.
(PW-5) Ninmani Singh, Scribe of the FIR.
(PW-7) Pratap Singh Verma, is the first
Investigating
Officer,
did
the
part
investigation, and (PW-8) Ram Pratap
Singh, is the second Investigating Officer,
has duly supported the prosecution case.

13. (DW-1) Chetrapal Singh, is
Scribe of the written report which was
lodged
by
(PW-1)
Bhura.
(DW-2)
Mahendra Singh, has stated that injureddeceased was taken on a tractor. (DW-3)
Chandra Prakash Saxena has not stated
anything specific.

14. Close scrutiny of the evidence,
in particular the statements of two eyewitnesses, i.e. (PW-1) Bhura and (PW-2)
Gumani, makes it clear that on 5.7.1985,
it is accused appellant Parto who caused
firearm injuries to the deceased, resulting
his death. In the Court, (PW-1) Bhura was
very firm in saying that it is the accused
appellant who caused firm arm injuries to
the
deceased,
resulting
his
death.
Postmortem report of the deceased also
supports the prosecution case. We have no
reason to doubt the same. True it is that
(PW-6) Raman does not appear to be a
trustworthy and reliable witness and that
is why, his testimony has been discarded
by the Court below.

15. We find no substance in the
argument of the defence that in the
inquest, details as to how the incident
occurred have not been mentioned and
likewise, as to who caused firearm injury
3 All. Parto Vs. State
945
to the deceased has also not been
mentioned in the inquest.

The evidentiary value of the
inquest report prepared under Section 174
of Cr PC has also been long settled
through
a
series
of
judicial
pronouncements. It is well established
that inquest report is not a substantive
piece of evidence and can only be looked
into for testing the veracity of the
witnesses of inquest. The object of
preparing such report is merely to
ascertain the apparent cause of death,
namely, whether it is suicidal, homicidal,
accidental or caused by animals or
machinery etc. and stating in what
manner,
or
by
what
weapon
or
instrument, the injuries on the body
appear to have been inflicted. (See: Pedda
Narayana vs. State of AP, (1975) 4 SCC
153; Khujji vs. State of MP, (1991) 3 SCC
627; Kuldip Singh vs. State of Punjab,
1992 Suppl. 3 SCC 1; George & Ors. vs.
State of Kerala & Anr., (1998) 4 SCC
605; Suresh Rai vs. State of Bihar, (2000)
4 SCC 84; Amar Singh vs. Balwinder
Singh, (2003) 2 SCC 518; Radha Mohan
Singh vs. State of UP, (2006) 2 SCC 450
and Sambhu Das vs. State of Assam,
(2010) 10 SCC 374.

The Apex Court, while dealing
with similar issue, in Radha Mohan
Singh @ Lal Saheb & Ors. vs. State of
UP1, observed as under:

13. The provision for holding of
inquest is contained in Section 174 Cr PC
and the heading of the section is Police to
enquire and report on suicide etc. Subsections (1) and (2) thereof read as under :

"174. Police to enquire and
report on suicide, etc. (1) When the
officer in charge of a police station or
some other police officer specially
empowered by the State Government in
that behalf receives information that a
person has committed suicide, or has been
killed by another or by an animal or by
machinery or by an accident, or has died
under circumstances raising a reasonable
suspicion that some other person has
committed
an
offence,
he
shall
immediately give intimation thereof to the
nearest Executive Magistrate empowered
to hold inquests, and, unless otherwise
directed by any rule prescribed by the
State Government, or by any general or
special order of the District or Subdivisional Magistrate, shall proceed to the
place where the body of such deceased
person is, and there, in the presence of
two or more respectable inhabitants of the
neighbourhood,
shall
make
an
investigation, and draw up a report of the
apparent cause of death, describing such
wounds, fractures, bruises, and other
marks of injury as may be found on the
body, and stating in what manner, or by
what weapon or instrument (if any), such
marks appear to have been inflicted.

(2) The report shall be signed
by such police officer and other persons,
or by so many of them as concur therein,
and shall be forthwith forwarded to the
District Magistrate or the Sub- Divisional
Magistrate."

14.
The
language
of
the
aforesaid statutory provision is plain and
simple and there is no ambiguity therein.
An investigation under Section 174 is
limited in scope and is confined to the
ascertainment of the apparent cause of
death. It is concerned with discovering
whether in a given case the death was
accidental, suicidal or homicidal or
caused by animal and in what manner or
by what weapon or instrument the injuries
on the body appear to have been inflicted.
It is for this limited purpose that persons
acquainted with the facts of the case are
946 INDIAN LAW REPORTS ALLAHABAD SERIES
summoned and examined under Section
175. The details of the overt acts are not
necessary to be recorded in the inquest
report. The question regarding the details
as to how the deceased was assaulted or
who assaulted him or under what
circumstances he was assaulted or who
are the witnesses of the assault is foreign
to the ambit and scope of proceedings
under Section 174. Neither in practice nor
in law is it necessary for the person
holding the inquest to mention all these
details.

15. In Pedda Narayana v. State
of A.P., AIR 1975 SC 1252, it was held
that the proceedings under Section 174
have a very limited scope. The object of
the proceedings is merely to ascertain
whether
a
person
has
died
under
suspicious circumstances or an unnatural
death and if so what is the apparent cause
of the death. The question regarding the
details as to how the deceased was
assaulted or who assaulted him or under
what circumstances he was assaulted is
foreign to the ambit and scope of the
proceedings under Section 174. Neither in
practice nor in law was it necessary for
the police to mention those details in the
inquest report. It is, therefore, not
necessary to enter all the details of the
overt acts in the inquest report. Their
omission is not sufficient to put the
prosecution out of Court. In Shakila
Khader v. Nausher Gama, AIR 1975 SC
1324, the contention raised that nonmention of a person's name in the inquest
report would show that he was not an
eyewitness of the incident was repelled on
the ground that an inquest under Section
174 Cr PC is concerned with establishing
the cause of death and only evidence
necessary to establish it need be brought
out. The same view was taken in Eqbal
Baig v. State of A P, AIR 1987 SC 923
that the non-mention of name of an
eyewitness in the inquest report could not
be a ground to reject his testimony.
Similarly, the absence of the name of the
accused in the inquest report cannot lead
to an inference that he was not present at
the time of commission of the offence as
the inquest report is not the statement of a
person wherein all the names (accused
and also the eyewitnesses) ought to have
been mentioned. The view taken in Pedda
Narayan (supra) was approved by a threeJudge Bench in Khujji @ Surendra Tiwari
v. State of M P, AIR 1991 SC 1853 and it
was held that the testimony of an
eyewitness could not be discarded on the
ground that their names did not figure in
the inquest report prepared at the earliest
point of time. The nature and purpose of
inquest held under Section 174 Cr PC was
also
explained
in
Amar
Singh
v.
Balwinder Singh, 2003 (2) SCC 518. In
the said case the High Court had observed
that the fact that the details about the
occurrence were not mentioned in the
inquest
report
showed
that
the
investigating officer was not sure of the
facts when the inquest report was
prepared and the said feature of the case
carried weight in favour of the accused.
After noticing the language used in
Section 174 Cr PC and earlier decisions
of this Court it was ruled that the High
Court was clearly in error in observing as
aforesaid or drawing any inference
against the prosecution. Thus, it is well
settled by a catena of decisions of this
Court that the purpose of holding an
inquest is very limited, viz. to ascertain as
to whether a person has committed
suicide or has been killed by another or
by an animal or by machinery or by an
accident or has died under circumstances
raising a reasonable suspicion that some
other person has committed an offence.
3 All. Parto Vs. State
947
There is absolutely no requirement in law
of mentioning the details of the FIR,
names of the accused or the names of the
eyewitnesses
or
the
gist
of
their
statements nor is it required to be signed
by any eyewitness. In Meharaj Singh v.
State of UP (supra), the language used by
the legislature in Section 174 Cr PC was
not taken note of nor the earlier decisions
of this Court were referred to and some
sweeping observations have been made
which are not supported by the statutory
provision. We are, therefore, of the
opinion that the observations made in
paras 11 and 12 of the reports do not
represent the correct statement of law and
they are hereby overruled. The challenge
laid to the prosecution case by Shri Jain
on the basis of the alleged infirmity or
omission in the inquest report has,
therefore, no substance and cannot be
accepted."

16. We further find no substance in
the argument of the defence that only
interested witnesses have been examined
and there is no independent witness and,
therefore, the prosecution case becomes
doubtful.

It is settled position of law that
the evidence of an interested witness
should not be equated with that of a
tainted evidence or that of an approver so
as to require corroboration as a matter of
necessity. All that the Courts require as a
rule of prudence, not as a rule of law, is
that the evidence of such witness should
be scrutinized with a little care. It has to
be realized that related and interested
witness would be the last persons to
screen the real culprits and falsely
substitute innocent ones in their places.
Indeed there may be circumstances where
only interested evidence may be available
and no other, e.g. when an occurrence
takes place at midnight in the house then
the only witnesses who could see the
occurrence may be the family members.
In such cases, it would not be proper to
insist that the evidence of the family
members should be disbelieved merely
because of their interestedness. But once
such witness is scrutinized with a little
care and the Court is satisfied that the
evidence of the interested witness have a
ring of truth such evidence could be relied
upon even without corroboration. Thus,
the evidence cannot be disbelieved
merely on the ground that the witnesses
are related to each other or to the
deceased. In case the evidence has a ring
of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon. (See: Anil Rai vs. State of
Bihar (2001) 7 SCC 318; State of U.P. vs.
Jagdeo Singh (2003) 1 SCC 456;
Bhagalool Lodh & Anr. vs. State of U.P.
(2011) 13 SCC 206; Dahari & Ors. vs.
State of U.P. (2012) 10 SCC 256; Raju @
Balachandran & Ors. vs. State of Tamil
Nadu (2012) 12 SCC 701; Gangabhavani
vs. Rayapati Venkat Reddy & Ors. (2013)
15 SCC 298; Jodhan vs. State of M.P.
(2015) 11 SCC 52)

The Supreme Court in Bur
Singh and Anr. vs. State of Punjab2 has
held that merely because the eyewitnesses
are family members their evidence cannot
per se be discarded. When there is
allegation of interestedness, the same has
to be established. Mere statement that
being relatives of the deceased they are
likely to falsely implicate the accused
cannot be a ground to discard the
evidence which is otherwise cogent and
credible. Further, the Supreme Court in
Sudhakar v. State3 and Ganapathi v.
State of Tamil Nadu4 relying in its
earlier judgments held as under:
948 INDIAN LAW REPORTS ALLAHABAD SERIES

"18. Then, next comes the
question 'what is the difference between a
related witness and an interested witness?.
The plea of "interested witness", "related
witness" has been succinctly explained by
this Court that "related" is not equivalent
to "interested". The 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. In this case
at hand PW 1 and 5 were not only related
witness, but also 'interested witness' as
they had pecuniary interest in getting the
accused petitioner punished. [refer State
of U.P. v. Kishanpal and Ors., (2008) 16
SCC 73] : (2008 AIR SCW 6322). As the
prosecution has relied upon the evidence
of interested witnesses, it would be
prudent in the facts and circumstances of
this case to be cautious while analyzing
such evidence. It may be noted that other
than these witnesses, there are no
independent
witnesses
available
to
support the case of the prosecution."

Relationship is not a factor to
affect credibility of a witness. There is no
proposition in law that relatives are to be
treated as untruthful witnesses. To the
contrary, reason has to be shown when a
plea of partiality is raised to show that the
witnesses had reason to shield the actual
culprit and falsely implicate the accused.
A witness who is a relative of deceased or
victim
of
the
crime
cannot
be
characterized as 'interested'. The term
'interested' postulates that the witness has
some direct or indirect 'interest' in having
the accused somehow or other convicted
due to animus or for some other oblique
motive. 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. (See: Harbans
Kaur and another vs. State of Haryana,
2005 AIR SCW 2074; Namdeo vs. State
of Maharashtra, 2007 AIR SCW 1835;
Sonelal vs. State of M.P., 2008 AIR SCW
7988; and Dharnidhar vs. State of Uttar
Pradesh and Others & other connected
appeals, (2010) 7 SCC 759).

The
Apex
Court,
while
considering
the
issue
relating
to
independent witness in Yogesh Singh vs.
Mahabeer Singh & Ors.5 observed as
under:

50. The learned counsel for the
respondents has also sought to assail the
prosecution version on the ground of lack
of independent witnesses. We are not
impressed by this submission in the light
of the observations made by this Court in
Darya Singh Vs. State of Punjab, AIR
1965 SC 328 = 1964 (7) SCR 397,
wherein it was observed:

"It
is
well-known
that
in
villages where murders are committed as
a result of factions existing in the village
or in consequence of family feuds,
independent
villagers
arc
generally
reluctant to give evidence because they
are afraid that giving evidence might
invite the wrath of the assailants and
might expose them to very serious risks.
It is quite true that it is the duty of a
citizen to assist the prosecution by giving
evidence and helping the administration
of criminal law to bring the offender to
book, but it would be wholly unrealistic
to suggest that if the prosecution is not
able to bring independent witnesses to the
Court because they are afraid to give
evidence, that itself should be treated as
an infirmity in the prosecution case so as
to justify the defence contention that the
3 All. Parto Vs. State
949
evidence actually adduced should be
disbelieved on that ground alone without
examining its merits."

51. Similarly, in Raghubir Singh
Vs. State of U.P., (1972) 3 SCC 79, it was
held that the prosecution is not bound to
produce all the witnesses said to have
seen the occurrence. Material witnesses
considered necessary by the prosecution
for unfolding the prosecution story alone
need be produced without unnecessary
and
redundant
multiplication
of
witnesses. In this connection, general
reluctance of an average villager to
appear as a witness and get himself
involved in cases of rival village factions
when tempers on both sides are running
high, has to be borne in mind.

52. Further, in Appabhai and
Anr. Vs. State of Gujarat, 1988 Supp (1)
SCC 241, this Court has observed :

"Experience reminds us that
civilized people are generally insensitive
when a crime is committed even in their
presence. They withdraw both from the
victim and the vigilante. They keep
themselves away from the Court unless it
is inevitable. They think that crime like
civil dispute is between two individuals or
parties and they should not involve
themselves. This kind of apathy of the
general public is indeed unfortunate, but
it is there everywhere whether in village
life, towns or cities. One cannot ignore
this handicap with which the investigating
agency has to discharge its duties. The
Court, therefore, instead of doubting the
prosecution case for want of independent
witness 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."

17. Further, there is no substance in
the argument of the defence that as some
of the accused have been acquitted, the
appellant
also
deserves
acquittal.
Assuming that if some of the accused
have wrongly been acquitted by the trial
Judge, it does not mean that similar
treatment
should
be
given
to
the
appellant. As there is no appeal assailing
the acquittal of some of accused, we
refrain ourselves to pass any comment on
the judgment impugned so far as acquittal
of some of the accused is concerned, but
benefit of the said mistake cannot be
given to the appellant.

The Apex Court in Bikau
Pandey vs. State of Bihar,6 while
considering the identical issue, observed
as under:

"8. Acquittal of some of the
accused persons will not come to the
rescue of the other appellants in respect of
whom the High Court has considered the
evidence on record and found them guilty.
As noted above, PW-1 has no relationship
with the deceased and his assertion in the
examination-in-chief
has
gone
unchallenged. It is to be noted that
nothing has been elicited in the crossexamination of various witnesses as
regards the place of occurrence and the
manner of occurrence. That being the
position, the convictions as done cannot
be faulted."

16. Merely because two persons
have been acquitted that benefit cannot be
extended to others in view of the direct
evidence establishing their presence and
participation in the crime. Though it was
pleaded that there was no evidence
regarding the breaking of lock as deposed
by eyewitnesses, it is to be noted that
investigating officer's objective findings
clearly lead to acceptability of such plea.
950 INDIAN LAW REPORTS ALLAHABAD SERIES
The broken lock was seized and exhibited
as Exb-1. The marks of violence on the
door were clearly noticed and noted by
the investigating officer."

18. We also find no substance in the
argument of the defence that the FIR is
ante-timed. The incident occurred at 7:00
pm on 5.7.1985 and at 10:00 pm, FIR was
lodged. Considering the fact that after the
incident, (PW-1) Bhura (his brother)
picked-up him, took him on a bullock cart
and on the way to police station, he could
get a tractor of one Sonahari and, by the
time, injured-deceased was shifted in the
same, he expired. (PW-1) Bhura, might
have taken sometime to adjust himself
and then rushed to the police station for
lodging the FIR. Three hours delay in
lodging the FIR, thus, cannot be called
unusual. There was no time for (PW-1) to
concoct the story or fabricate the evidence
in any manner. Therefore, it cannot be
said that the report is ante-timed.
Moreover, there is no evidence as to when
and in what manner this entire false story
has been cooked up by (PW-1). Law in
this respect is very clear.

In Jai Prakash Singh v State
of Bihar7 the Supreme Court observed as
under:

12. The FIR in criminal case is
a vital and valuable piece of evidence
though may not be substantive piece of
evidence. The object of insisting upon
prompt lodging of the FIR in respect of
the commission of an offence is to obtain
early
information
regarding
the
circumstances in which the crime was
committed, the names of actual culprits
and the part played by them as well as the
names of eye-witnesses present at the
scene of occurrence. If there is a delay in
lodging the FIR, it looses the advantage
of spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story as
a
result
of
large
number
of
consultations/deliberations. Undoubtedly,
the promptness in lodging the FIR is an
assurance
regarding
truth
of
the
informant's version. A promptly lodged
FIR reflects the first hand account of what
has actually happened, and who was
responsible for the offence in question.
(Vide: Thulia Kali v. State of T.N. (1972)
3 SCC 393, State of Punjab v. Surja Ram,
1995 Supp. (3) SCC 419, Girish Yadav v.
State of MP, (1996) 8 SCC 186 and Takdir
Samsuddin Sheikh v. State of Gujarat
(2011) 10 SCC 158."

The Supreme Court in Madru
Singh vs. State of Madhya Pradesh8
and Ram Sanjiwan Singh Vs. State of
Bihar9, answered the similar question in
'negative'. In the said decisions, it has
been held by the Supreme Court that from
the cross-examination of prosecution
witnesses, circumstances have to be
elicited which would show that the FIR
was ante-timed and then alone an
inference can be drawn that the FIR was
ante-timed.

It is further settled position of
law that FIR can be proved ante-timed or
ante-dated by adducing proper evidence.
The lodger of FIR should be subjected to
proper cross examination as to on what
basis defence pleads the FIR to be antetimed or ante-dated. Likewise, the police
officer, who has recorded the FIR, is also
required to be properly cross-examined as
to on what basis defence pleads the FIR to
be ante-dated or ante-timed. If no such
requirement of law is completed and no
such proper cross-examination of the
witnesses is being done, it cannot be
presumed that the FIR is ante-dated or
ante-timed.
3 All. Madan Lal & Ors. Vs. State of U.P.
951

19. Applying to the above principles
of law and after due appreciation of the
evidence available on record, we are of
the view that the trial Court was fully
justified in convicting the appellant, who
has been named as main person to cause
firearm injuries to the deceased. Appeal
has no substance and, the same is,
accordingly, dismissed.

20. Appellant is reported to be on
bail, he be taken into custody forthwith to
serve the remaining sentence.

21. Let a copy of this judgment be
sent to the concerned trial Court for
necessary compliance.
----------

(2019)11ILR A951

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 591 of 1986

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

Counsel for the Appellants:
Sri Samar Singh, Sri Babit Kumar, Sri
Brajesh
Kumar,
Sri
Prabhat
Kumar
Srivastava, Sri Pratap bhanu Umrao
(A.C.), Sri Prashant Kumar Singh.

Counsel for the Opposite Party:
Sri H.M.B. Sinha, A.G.A.

A. Criminal Law- Indian Penal Code,1860
- Section 302 read with Section 34 of
IPC - under Section 201 of IPC - conduct
of the appellant suspicious - merely on
the basis of this conduct, it cannot be
held that he committed the murder of
the deceased - suspicion howsoever
grave, cannot substitute proof - no
conclusive
evidence
-
no
such
incriminating evidence - evidence of last
seen ("Last seen theory" & Principle of
"last seen alive")- not very conclusive -
merely on the basis of said evidence, it
cannot be said that the appellants
committed the murder of the deceased -
Circumstantial evidence - not good
enough to hold the conviction of the
accused-appellants - whether the chain is
complete or not, indeed it would depend
on the facts of each case emanating from
the evidence - circumstances adduced
when considered collectively - must lead
to the only conclusion that there cannot
be a person other than the accused who
alone is the perpetrator of the crime
alleged - circumstances must establish
the conclusive nature consistent only
with the hypothesis of the guilt of the
accused - trial court not justified in
convicting the appellants - Appellants are
entitled for benefit of doubt. (Para
21,23,24,25)

Appeal allowed.(E-7)

Chronological list of cases cited: -

1. Devi Lal Vs St. of Raj. AIR (2019) SC 688

2. Nizam & anr. Vs St. of Raj. (2016) 1 SCC 550

3. St. of Raj. Vs Kashi Ram (2006) 12 SCC 254

4. Sattatiya @ Satish Rajanna Kartalla Vs St.
of Mah. (2008) 3 SCC 210

5. S. Govindaraju Vs St. of Kar. (2013) 15 SCC 315

6. Sujit Biswas Vs St. of Assam (2013)12 SCC 406

7. Raja @Rajinder Vs St. of Har. 2015(11) SCC 43

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of
impugned judgment and order dated