# Prahlad & Ors v. State of U.P

- **Citation:** (2019) 3 ILRA 959
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-08
- **Case number:** Criminal Appeal No. 605 of 1982
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prahlad-ors-v-state-of-u-p-44897
- **Pages:** 32

## Headnote

A. Criminal Law-Indian Penal Code,1860 -
Section 374(2) of the Cr.P.C.- direct
evidence of eyewitnesses. Motive - has no
significance - the prosecution is not obliged
to prove those facts which are either
impossible for the prosecution to prove or
which are locked up in the mind of the
accused persons, as to what tempted them
to commit the crime- cases based on direct
evidence of the witnesses should be
decided on the basis of quality and
probative value of the evidence of such eye
witnesses - The evidence of all prosecution
witnesses is consistent on the point of
identification of the accused persons, role
played by all of them and firing of gun shot
-
The
medical
evidence
also
fully
corroborates the ocular evidence of the
incident - Statements of the witnesses
clearly reveal that all the accused persons
were present at the scene of occurrence
and were actively involved in accomplishing
their part of common design - prosecution
by its trustworthy, acceptable and reliable
evidence has proved its case beyond all
reasonable doubts. (Para 19,25,27,28)
B. Evidence Law-The Indian Evidence
Act, 1872 - Section134 - evidence has to
be weighed and not counted -no legal
impediment in convicting a person on
the sole testimony of a single witness- if
there are doubts and suspicion about the
testimony of such a witness the courts
will insist on corroboration-The test is
whether the evidence has a ring of truth
around
it,
is
cogent,
credible
and
trustworthy, or otherwise - serious
contradictions
and
omissions
may
materially
affect
the
case
of
the
prosecution but not every contradiction
or omission. (Para 21)

 Appeal dismissed. (E-7)

Chronological list of cases cited:-

## Text

_Characters 0–39,875 of 106,977. This is a partial read: ask again with offset=39875 for what follows._

3 All. Prahlad & Ors. Vs. State of U.P.
959
(2019)11ILR A959

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2019

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 605 of 1982

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

Counsel for the Appellants:
Sri Satish Chandra, Sri Neeraj Sahu, Sri
Sushil Pandey

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law-Indian Penal Code,1860 -
Section 374(2) of the Cr.P.C.- direct
evidence of eyewitnesses. Motive - has no
significance - the prosecution is not obliged
to prove those facts which are either
impossible for the prosecution to prove or
which are locked up in the mind of the
accused persons, as to what tempted them
to commit the crime- cases based on direct
evidence of the witnesses should be
decided on the basis of quality and
probative value of the evidence of such eye
witnesses - The evidence of all prosecution
witnesses is consistent on the point of
identification of the accused persons, role
played by all of them and firing of gun shot
-
The
medical
evidence
also
fully
corroborates the ocular evidence of the
incident - Statements of the witnesses
clearly reveal that all the accused persons
were present at the scene of occurrence
and were actively involved in accomplishing
their part of common design - prosecution
by its trustworthy, acceptable and reliable
evidence has proved its case beyond all
reasonable doubts. (Para 19,25,27,28)
B. Evidence Law-The Indian Evidence
Act, 1872 - Section134 - evidence has to
be weighed and not counted -no legal
impediment in convicting a person on
the sole testimony of a single witness- if
there are doubts and suspicion about the
testimony of such a witness the courts
will insist on corroboration-The test is
whether the evidence has a ring of truth
around
it,
is
cogent,
credible
and
trustworthy, or otherwise - serious
contradictions
and
omissions
may
materially
affect
the
case
of
the
prosecution but not every contradiction
or omission. (Para 21)

 Appeal dismissed. (E-7)

Chronological list of cases cited:-

1. Ezajhussain sabdarhussain Vs St. Of Guj.
(2019) 2 JIC 33(SC)

2. St. Of Raj. Vs ANI @ Hanif & ors. (1997)
Supreme Court Cases (Cri) 851.

3. Ramesh Singh @ Photi Vs St. Of A.P. ,
(2004) 11 SCC 305

4. Ramaswami Ayyangar & ors. Vs St. Of T.N.
(1976) Supreme Court Cases (Cri) 518.

5. Vijender Singh Vs St. Of U.P. (2017) 1 JIC
328(SC).

6. Rajkishore Purohit Vs St. Of M. P. & ors.
(2017) Supreme Court Cases (Cri) 483.

7. Balwant Singh & ors. Vs St. Of pun. (2008)
CRI.L.J. 1648.

8. Dalip Singh & ors. Vs The St. of Pun.
MANU/SC/0031/1953 : [1954]1SCR145

9.
Appabhai
&
ors.
Vs
St.
of
Guj.
MANU/SC/0028/1988

10. Gangabhavani Vs Rayapati Venkat Reddy
& ors. MANU/SC/0897/2013

11. St. of Raj. Vs Smt. Kalki & anr.
MANU/SC/0254/1981: AIR 1981 SC 1390
960 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Molu & ors. v. St. of Har. AIR (1976)
SUPREME COURT 2499

13. Krishna Pillai Sree Kumar & anr. Vs St. of
Ker. AIR (1981) SUPREME COURT 1237

14. Praful Sudhakar Parab Vs St. of Mah. AIR
(2016) SUPREME COURT 3107

15. Vadivelu Thevar Vs St. of Mad. AIR (1957)
SC 614

16.
Appabhai
&
ors.
Vs
St.
of
Guj.
MANU/SC/0028/1988

17. Bharwada Bhoginbhai Hirjibhai Vs St. of
Guj.
as
reported
in
AIR
(1983)
753,MANU/SC/0090/1983

18. Krishna Mochi & ors. Vs St. of Bihar
MANU/SC/0327/2002

19.
Rajasthan
Vs
Smt.
Kalki
&
anr.
MANU/SC/0254/1981

20. Gangadhar Behera & ors. Vs St. of Ori.
MANU/SC/0875/2002

21. St. Of Raj. Vs ANI @ Hanif & ors. (1997)
Supreme Court Cases (Cri) 851,

22. Ramesh Singh @ Photi Vs St. Of A.P.
,(2004) 11 SCC 305,

23. Ramaswami Ayyangar & ors. Vs St. of T.N.
(1976) Supreme Court Cases (Cri) 518,

24. Vijender Singh Vs St. Of U.P. (2017) 1JIC
328(SC),

25. Rajkishore Purohit Vs St. Of M.P. & ors.
(2017) Supreme Court Cases (Cri) 483,

26. Balwant Singh & ors. Vs St. of Pun. (2008)
CRI.L.J. 1648.

27. St. of Raj. Vs ANI @ Hanif & ors. 1997
Supreme Court Cases (Cri) 851:1997 CRI. L. J.
1529

28. Zahira Habibullah Sheikh & ors. Vs St. of
Guj. & ors. AIR (2006) SUPREME COURT 1367

29. Ramesh Singh @ Photi Vs St. of A.P.
MANU/SC/0278/2004, (2004) 11 SCC 305,

30. Ramaswami Ayyangar & ors. Vs St. of T.N.
(1976) 3 SCC 779 (1976 CRI. L. J. 1563),

31. Vijender Singh Vs St. Of U.P. (2017) 1 JIC
328(SC)

32. Rajkishore Purohit Vs St. Of M.P. & ors.
(2017) Supreme Court Cases (Cri) 483

33. Balwant Singh & ors. Vs St. of Pun. (2008)
CRI.L.J. 1648

34.
Nand
Kishore
Vs
St.
of
M.P.
(MANU/SC/0753/2011 : (2011) 12 SCC 120),

35. Asif Khan Vs St. of Mah. & ors.
MANU/SC/0323/2019

36.
Mehbub
Shah
Vs
Emperor
MANU/PR/0013/1945,

37. Pandurang & ors.Vs St. of Hyderabad
MANU/SC/0048/1954

38. Mohan Singh & anr. Vs St. of Pun.
MANU/SC/0176/1962

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

Heard learned counsel for
the
appellants and learned A.G.A. for the
State.

2- This criminal appeal has been
preferred by the appellants Prahlad,
Suresh, Ram Jeewan and Vishwanath
under Section 374(2) of the Cr.P.C.
against the judgment and order dated
03.08.1982 passed by Vth Additional
Sessions Judge, Sitapur convicting the
appellant Suresh for imprisonment for life
under Section 302 I.P.C. and one year R.I.
under Section 323 read with Section 34
I.P.C. and appellants Prahlad, Ram
Jeewan, Vishwanath for imprisonment for
3 All. Prahlad & Ors. Vs. State of U.P.
961
life under Section 302 I.P.C. read with
Section 34 I.P.C. and one year R.I. under
Section 323 I.P.C. read with Section 34
I.P.C. in Sessions Trial No. 445 of 1979
arising out of Case Crime No. 152 of
1978, Police Station Mishrikh, District
Sitapur.

3- Appellants No.3 & 4 namely Ram
Jiwan and Vishwanath have died during
the pendency of this appeal and appeal
with regard to them has been abated vide
order dated 08.01.2019 and 11.04.2019.

4- The prosecution story as emerges
from the record of the trial Court is that a
written report, Exhibit-ka4 was presented
by informant Inderdutt at 7:30 am on
11.06.1978 scribed by one Mahesh Prasad
at Police Station Mishrikh, District
Sitapur stating therein that Ramjiwan and
ramdutt are his real brothers, they were
inmical towards each other pertaining to
the partition of their agricultural land and
on the basis of this enmity Ram Jiwan
lodged an FIR against Ramdutt and others
for the offence under Section 452 I.P.C.
and a case pertaining to that was pending
in the Court. About 15 days before, there
was some quarrel in between his nephew
Satya Narayan and maternal grandson of
Ram Jiwan, on which Ram Jiwan came to
the house of Ramdutt with a ''lathi', in
order to beat Satya Narayan and when he
did not find Satya Narayan, he threatened
to see them.

It was further stated that in the
intervening night, his family members
and Ramdutt along with his family
members went asleep after taking their
dinner. A lantern was lighting in each of
the house. In the mid of night, Prahlad
and Suresh armed with ''katta' (Countrymade pistols) and Ram Jiwan and Vishwa
Nath armed with ''lathi' (Stick), climbed
on the roof of his (Inderdutt) house.
Suresh
pointed
his
pistol
towards
Inderdutt in order to murder him, on
which Ram Jiwan told him that he is
Inderdutt and not Ramdutt and he is not
the person to be killed. On this, all
accused persons with the help of a ladder
reached in the Courtyard of Ramdutt's
house, where he along with his family
members was sleeping. They caught hold
of Ramdutt and dragged him in a room
(Kothri) of his house. Suresh fired a shot
at Ramdutt in that ''Kothri' and Ramdutt
ran towards his courtyard, where he was
assaulted with ''lathi' by Ram Jiwan and
Vishwanath.
Ram
Jiwan
was
commanding others to kill Ramdutt and
when wife of Ramdutt attempted to save
him, Ram Jiwan and Vishwanath also
assaulted her. On an alarm raised by
them, Nattharam, Sarju and Shripal and
other villagers came to the house of
Ramdutt and made a noise, where-on all
accused persons ran away from the main
door of the house of Ramdutta. He after
arranging a bullock cart was coming to
the police station for lodging the FIR,
however,
near
village
Karmasepur
Ramdutt succumbed to the injuries and
died.

5- On the basis of this written
report, the Chick FIR, Exhibit-ka-8 was
prepared and a corresponding G.D. Entry,
Exhibit-ka-9 was made in the General
Diary at ''Rapat No.9 dated 11.06.1978 at
7:30 am. Injured Smt. Rani wife of
deceased Ramdutt was referred to the
hospital for management of her injuries.

6- The investigation of the crime
was entrusted to Shri Narayan Dutt
Pandey, who at first conducted the
Inquest (Exhibit-ka-10) of the dead body
962 INDIAN LAW REPORTS ALLAHABAD SERIES
of Ramdutt, which was lying in a bullock
cart at the police station and also prepared
necessary papers for the purpose of postmortem of the body of deceased i.e. Photo
lash,
Exhibit-ka-11,
Challan
Lash,
Exhibit-ka-12, letter to the C.M.O.,
Exhibit-ka-13, Sample seal, Exhibit-ka-14
and Memo of Cloth (Sari), Exhibit-ka-15
of the wife of deceased, by which the
body was covered. The dead body of the
deceased was sent through Constable
Bhoorelal for the post-mortem. The
statement of the wife of deceased, who
was present at the police station was also
recorded by him along with the statement
of other persons present there.

7- Smt. Rani wife of deceased, who
was referred to P.H.C., Mishrikh for her
medical examination was examined on
11.06.1978 at 8:30 pm. by P.W.-1/Ravi
Shanker Tripathi, who after examining the
injured
prepared
a
medical
report
(Exhibit-ka-1). He also noted following
injuries on her person :-

Injury No.1/Contusion 4" x 2"
on the outer side of the left arm just
below the shoulder.

Injury No.2/Contusion 21⁄2" x
2" on the right side of the chest 6" below
the axilla.

Injury No.3/Contusion 3" x 2"
on the left buttock.

Injury No.4/Contusion on 4" x
4" on the left side of the back 3" below
shoulder and 3" from middle.

In the opinion of Dr. Tripathi
these injuries were simple, appeared to be
caused by some blunt weapon like lathi
and at the time of the examination all
injuries were found more than half day
old.

8- On 11th June, 1978 at 4.15 pm.
the post-mortem examination on the body
of late Ramdutt was performed at the
district mortuary by P.W.-2, Dr. L.P.
Shukla, the then M.O. District Hospital,
Sitapur and he also prepared a report
Ex.ka-2. At the time of post mortem rigor
mortis was present in upper and lower
limbs of body and there was no sign of
decomposition. Dr. Shukla came to the
conclusion that the death of the deceased
had occurred about half day before. He
also found following antemortem injuries
on the body of the deceased :-

Injury No.1/Multiple contusion
in an area of 30 cm. x 8 cm. on left
shoulder and upper arm upto left elbow
on postero-lateral aspect.

Injury No.2/Multiple contusion
in an area of 33 cm. x 28 cm. on whole of
the back left side.

Injury No.3/Multiple firearm
wounds of entry in an area of 9 cm. x 9
cm. on left side chest 6 cm. below nipple
at 5:30' O clock position each wound
measuring 0.3 cm. x 0.3 cm. x cavity deep
margins inverted. Blackening present
direction left to right and downwards.

Injury No.4/Abrasion 1 cm. x
1⁄2 cm. on front of left knee at patella line.

Injury No.5/Abrasion 1 cm. x
1⁄2 cm. on the right upper leg in front 7
cm. below knee.

Injury No.6/Abrasion 1⁄2 cm. x
1⁄2 cm. on the right upper part leg just
below right knee.

The internal examination of the
body disclosed that the 7th rib was
punctured and left lung, pleura were
lacerated and ruptured. Heart was empty.
The chest cavity contained about 4 ozs of
blood. Stomach contained 3 to 4 ozs of
digested food. Both the intestines were
full upto rectum. 24 small rounded pellets
3 All. Prahlad & Ors. Vs. State of U.P.
963
were recovered from the chest cavity. The
blood stained ''angoochha' and ''Janeu'
Exhibits ka-3 and 4 were found on the
dead body and were sealed separately. In
the opinion of Dr. Shukla death of
Ramdutt was caused due to shock and
hemorrhage resulting from the said
antemortem injuries. He further opined
that it was likely that after being injured
Ram Dutt might have remained alive for
4-5 hours.

9.

The
Investigating
Officer
thereafter arrived at the spot, where he
recorded the statements of the family
members of informant and deceased and
also prepared the Site Plan, Exhibit-ka17. Four Tickli of cartridge was given to
him by the informant, which was sealed
by him at the spot and a memo, Exhibit-
Ka-6 was prepared. He also inspected the
lanterns of the house of Inderdutt and
Ramdutt (Deceased) and prepared a
memo, Exhibit-ka-5. He also inspected
the torches of Nattharam, Sarju and
Shripal and also prepared a memo,
Exhibit-ka-3. After the transfer of the first
Investigating Officer, Shri Narayan Dutt
Pandey, the investigation was taken over
by Sub Inspector Prem Madhava, who
after recording the statement of scribe of
FIR namely Mahesh submitted the
Charge-sheet in the matter (Exhibit-ka-7)
against all accused persons.

10. The case being exclusively
triable by the Court of Sessions was
committed to Sessions Court and charges
under Section 302 I.P.C. and 323 read
with Section 34 I.P.C. were framed
against appellant Suresh, while charges
under Section 302 read with Section 34
I.P.C. and Section 323 read with Section
34 of I.P.C. were framed against accusedappellants Prahlad, Ram Jiwan and
Vishwanath. All accused persons pleaded
not guilty and claimed trial.

11. The prosecution in order to
prove its case beyond reasonable doubt
relied
on
following
documentary
evidence:-

1. Written Report,

Exhibit-ka-1

2. Chick FIR,

Exhibit-ka-8

3. G.D. Entry of FIR,

Exhibit-ka-9

4. Inquest report,

Exhibit-ka-10

5. Photo Lash,

Exhibit-ka-11

6. Challan Lash,

Exhibit-ka-12

7. Letter C.M.O.,

Exhibit-ka-13

8. Sample seal,

Exhibit-ka-14

9. Memo of Cloth (Sari),

Exhibit-ka-15

10. Memo of ''dhoti' found on
the dead body,

Exhibit-ka-16,

11. Site Plan

Exhibit-ka-17

12. Memo of taking ticklis
provided by complainant,
Exhibit-ka6,

13. Memo of inspection of
lanterns

Exhibit-ka-5

14. Memo of examination of
torches of witnesses Shripal, Sarju and

Nattharam

Exhibit-ka-3

15. postmortem report

Exhibit-ka-2

16. Charge-sheet

Exhibit-ka-7.
964 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Apart from above mentioned
documentary evidence, prosecution also
testified following witnesses in support of
their case:-

P.W.-1/Dr.
Ravi
Shanker
Tripathi, (Doctor, who examined Smt.
Rani)

P.W.-2/Dr. L.P. Shukla (Doctor,
who conducted the postmortem on the
body of deceased Ramdutt)

P.W.-3/Smt. Rani

(Eye witness/wife of deceased)

P.W.-4/Nattharam

(Eye witness)

P.W.-5/Inderdutt

(Informant/eye witness)

P.W.-6/Sarju Prasad

(Eye witness)

P.W.-7/Prem Madhav Shukla

(Second Investigating Officer)

P.W.-8/Constable Bhoorelal,

(who took the body for postmortem)

P.W.-9/Shri
Ram
Bahadur
Verma, (Constable clerk who scribed
FIR and G.D.)

P.W.-10/Shri
Narayan
Dutt
Pandey, (Ist Investigating Officer)

13. After the completion of the
evidence of the prosecution, the statement
of the all accused persons were recorded
under Section 313 of the Cr.P.C., wherein
all accused persons have denied the
incident or any offence committed by
them.

Accused Prahlad has further
stated that he lives in his in-law's house
situated about 16 miles away from the
spot and he is a resident of village
Daripur which is about 20 miles away
from
the
village,
where
incident
happened.

Accused Ram Jiwan in his
statement has stated that no litigation was
pending pertaining to the partition of
agricultural land, the roofs of houses of
Ram Dutt and Inderdutt are adjacent and
also that he is having 03 daughters and he
has given all his properties in their favour
and his brothers were inimical towards
him for this reason. Accused Vishwanath
in his statement has stated that he lives
about 16 miles away from the place of
occurrence, Suresh is son-in-law of Ram
Jiwan and his maternal nephew and,
therefore, he has been falsely implicated.

14. Learned counsel for the
appellants while referring to the judgment
and order of the Trial Court submits that
all the witnesses produced by the
prosecution in this case are related to the
deceased and informant. Independent
witness Sripal and others, though were
present at the spot, have not been
produced by the prosecution.

He further submits that there
was no motive alleged by the prosecution
for the offence and a very strong motive
is required to murder a real brother,
therefore, the case of the prosecution is
false.

He further submits that the First
Information Report is ante-timed and in
the facts and circumstances of the case
could not be believed. According to him,
deceased Ramdutt was killed by unknown
persons in an incident of dacoity and due
to enmity with the accused persons this
false case has been carved out against the
appellants with the help of local police.
The incident is highly improbable. Source
of light as shown by the prosecution
could not be believed. No blood has been
recovered from the room (kothri), where
shot was allegedly fired and the medical
evidence also does not corroborate the
ocular evidence, therefore, the whole
story of the prosecution is not believable.
3 All. Prahlad & Ors. Vs. State of U.P.
965

He further submits that Prahlad
has apparently been falsely implicated, as
no role has been assigned to him by
P.W.3- Smt. Rani, therefore, he could not
be convicted with the help of Section 34
I.P.C.

He
overwhelmingly
submits
that it is a case, wherein it is apparent that
the false implication of the appellants has
been done and the Trial Court has
therefore
erred
in
appreciating
the
evidence available on record and the
appellants are liable to be acquitted of the
charges framed against them.

In support of his submissions,
learned counsel for the appellants relied
on a case law namely Ezajhussain
sabdarhussain
vs
State
Of
Gujrat
reported in 2019(2)JIC 33(SC).

15. Learned A.G.A. on the other
hand has stated that the prosecution has
proved its case beyond all reasonable
doubts
and
no
illegality
or
even
irregularity has been committed by the
Court below in appreciation of evidence.

He further submits that the
evidence of P.W.-3/Smt. Rani, P.W.-
4/Nattharam, P.W.-5/Inderdutt and P.W.-
6/Sarju Prasad is natural, trustworthy and
reliable. The case being based on direct
evidence
the
motive
looses
its
significance, otherwise also it is evident
and proved on record that parties were
highly inimical towards each other.

He further submits that P.W.-
3/Smt. Rani is a Rustic villager and minor
contradictions appearing in her testimony
should be seen in the background of her
status,
power
of
perception
and
reproduction. All witnesses of the fact
have given a natural and reliable ocular
account of the incident, whereby it is
proved that appellant Suresh by firing
shot at deceased Ramdutt committed his
murder in furtherance of the common
intention of all accused persons.

He further submits that the
common
intention
of
all
the
appellants/accused persons is evident by
the manner in which, they climbed the
roof of the deceased after arming
themselves with country-made pistols and
''lathis' and the manner in which the
deceased was taken in the inner room
(kothri), where he was shot at by Suresh,
while his hands were caught hold by
accused appellants Ram Jiwan and
Vishwanath, which clearly suggests that
all accused persons were working in
prosecution of their common intention.

He further submits that it is also
proved that Prahlad has pointed his pistol
towards the son of deceased namely
Satyanarain and therefore, the manner in
which all the accused persons departed
after committing the crime through the
main door of the house of deceased
Ramdutt is also sufficient proof that they
were sharing a common intention to
murder deceased Ram Dutt. Therefore,
there is nothing wrong in the Judgment of
the Trial Court, whereby the accused
Suresh has been convicted for the offence
under Section 302 of I.P.C. and rest of the
accused persons were convicted for the
offence of murder with the help of
Section 34 of I.P.C.

Learned A.G.A. in support of
his arguments relied on following case
laws:-

1. State Of Rajasthan vs ANI
alias Hanif and others reported in 1997
Supreme Court Cases (Cri) 851.

2. Ramesh Singh @ Photi vs
State Of A.P. reported in (2004) 11 SCC
305

3. Ramaswami Ayyangar and
Othrs vs State Of Tamil Nadu reported in
1976 Supreme Court Cases (Cri) 518.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Vijender Singh Vs State Of
UP reported in 2017(1)JIC 328(SC).

5. Rajkishore Purohit vs State
Of Madhya Pradesh & Others reported
in 2017 Supreme Court Cases (Cri) 483.

6. Balwant Singh & Othrs vs
State Of punjab, reported in 2008
CRI.L.J. 1648.

16. Having heard the arguments of
learned counsel for the rival parties, it
appears in the interest of things that a
brief survey of the testimony of the
prosecution witnesses be made, so that
the arguments of the rival parties may be
appreciated in a better way.

P.W.-1/Dr.
Ravi
Shanker
Tripathi is the Doctor, who has examined
Smt. Rani wife of deceased on 11.06.1978
at P.H.C., Mishrikh at 8:30 am in the
morning. He has proved the injury report
of injured Smt. Rani in his signature and
hand writing and proved the same as
Exhibit-ka-1. The details of the injuries
noted by him have been given in
paragraph No. 7 of this judgment.

P.W.-2/Dr. L.P. Shukla has
conducted the postmortem on the body of
the deceased Ramdutt at District Hospital,
Sitapur on 11.06.1978 at 4:15 pm. He has
proved the postmortem report in his
handwriting and signature as Exhibit-ka2. The details of the injuries and other
particulars noted by him pertaining to the
body of the deceased Ram dutt has been
elaborately mentioned in Para no. 8 of
this Judgment.

P.W.-3/Smt. Rani is the wife of
deceased Ram dutt and in the facts and
circumstances of the case, she is the star
witness of instant crime. She has stated
that there was some dispute in between
her husband Ramdutt and Ram Jiwan
pertaining to their agriculture land. She
further stated that Ram Jiwan had
instituted a criminal case against her
husband, son, complainant Inderdutt and
his son. She further stated that the house
of Inderdutt/complainant is adjacent to
her house. About 01 year and 11 months
ago, when she, her husband, her son as
well as her daughters were sleeping in the
courtyard of the house and a lantern was
lighting outside the room, at about mid
night all accused persons descended,
through a ladder from the roof of her
house, in her courtyard. Suresh and
Prahlad were armed with country-made
pistols, while Ram Jiwan and Vishwanath
were armed with ''lathis'. They dragged
her husband Ramdutt in the inner room
situated towards east of her house, where
Ram Jiwan and Vishwanath caught hold
the hands of her husband and accused
Suresh fired at Ramdutt. Her husband in
order to save himself ran towards
courtyard
and
fell
there,
where
Vishwanath and Ram Jiwan assaulted him
with ''lathis'. She covered her husband
and requested the accused persons not to
beat him, on which, she was also
assaulted. On an alarm raised by her and
her brother-in-law Inderdutt from the roof
of her house and by Shripal, Natthu and
Sarju who came at the spot, all accused
persons fled from the main door of her
house. After the departure of the accused
persons above witnesses came in her
house with torches and ''lathis' along with
Inderdutt and she told the whole story to
them. Her husband at that point was alive.
They were taking him in a bullock cart to
the police station along with other persons
of the village and when they reached near
village Karmasepur, her husband died.
The FIR of the incident was lodged by
Inderdutt, which was written by Mahesh
Master.

P.W.-4/Nattharam is the first
cousin of deceased Ramdutt, Inderdutt,
3 All. Prahlad & Ors. Vs. State of U.P.
967
complainant/informant as well as of Ram
Jiwan. He stated that at about mid night
he heard gunshot sound and took his
''lathi' and torch and rushed towards the
house of Ram Dutt. When he arrived near
the house of Inderdutt, he heard shouts
from within the house of Ramdutt and
also that accused persons Suresh, Prahlad,
Ram
Jiwan
and
Vishwanath
were
assaulting the inmates of the house.

He further stated to have seen
accused Suresh and Prahlad armed with
''katta' (Country-made pistol) and Ram
Jiwan and Vishwanath armed with ''lathis'
emerging from the main door of the
deceased Ramdutt. Sarju Prasad and
Shripal were also holding torches in their
hands. When he went inside, he saw that
Ramdutt was unconscious and the wife of
deceased Ramdutt told them that her
husband has been dragged in the ''Kothri'
by accused persons and when her son
Satyanarain
attempted
to
intervene,
Prahlad took him on gun point and at that
time, Suresh fired at her husband who
after being hit ran towards the courtyard
to save himself and when she attempted
to save her husband, she was also beaten
with ''lathis' by them.

P.W.-5/Inderdutt
is
the
informant of this case, who stated that a
criminal case was lodged by Ram Jiwan
against him, deceased Ram dutt and other
persons and also that about 15 days
before the murder of Ramdutt, there was a
quarrel in between Satyanarain and the
grand-maternal son of Ram Jiwan, on
which, Ram Jiwan came to the house of
Ram dutt with a ''lathi' and when he did
not find Satyanarain, he intimidated that
he will see them. He further stated that at
the relevant time, he was lying on his cot
at the roof of his house. The house of
Ramdutt is adjacent to his house and there
is a ladder for the purpose of climbing on
the roof of their houses. He saw that
accused persons Suresh and Prahlad
armed with ''katta' and Vishwanath and
Ram Jiwan armed with ''lathis' climbed on
his roof and Suresh pointed his pistol
towards him, when Ram Jiwan intervened
and told Suresh not to shoot, as he was
Inderdutt and not Ramdutt. At this, all
accused
persons
descended
in
the
courtyard of Ramdutt through the ladder
and dragged Ram Dutt towards ''kothri',
wherein accused Suresh fired at Ramdutt.

He further stated that, when
Ramdutt ran towards the courtyard, he
was assaulted by Ram Jiwan and
Vishwanath by ''lathis' and when wife of
deceased Smt. Rani attempted to save
him, she was also assaulted by them. On
an alarm raised by them, Nattharam, Sarju
Prasad, Shripal came at the spot with
''lathis' and torches and when all of them
raised an alarm, accused persons ran
away from the main door of the house of
Ramdutt.

He further stated that he after
arranging a bullock cart was carrying
Ramdutt to the Police Station, however
Ramdutt died on the way and he after
getting a report written by Mahesh master
informed the police. He also stated that
when the Investigating Officer came, he
showed him the lantern of his house as
well as of Ramdutt's house and handed
over 04 tiklis of cartridge to the
Investigating Officer.

P.W.-6/Sarju Prasad is an eye
witness, who came along with Nattharam,
who is his real brother. They are living
nearby with three or four houses falling in
between. He corroborated the testimony
of Nattharam that they heard a noise and a
gunshot sound at mid of night and arrived
outside the house of Ramdutt and saw
Sarju,
Prahlad,
Ram
Jiwan
and
Vishwanath armed with ''katta' and
968 INDIAN LAW REPORTS ALLAHABAD SERIES
''lathis' emerging from the main door of
Ramdutt. He also stated that there was
high pitch enmity in between Ram Jiwan
and Ram Dutt. He also stated that about
15 days prior to the instant incident a
quarrel had occurred in between son of
Ram Dutt i.e. Satyanarain and grandmaternal son of Ram Jiwan i.e. Raj
Bahadur. Accused Ramjiwan thereafter
came to the house of Ramdutt to beat
Satyanarain and when did not find him,
he threatened to teach him a lesson.

P.W.-10/Shri Narayan Dutt
Pandey is the first Investigating Officer
of the case and he stated to have
conducted the inquest and prepared a
report, Exhibit-ka-10 and also prepared
necessary papers for the purpose of
postmortem, Exhibit-ka-11 to Exhibit-ka15 and also took the ''Saree' in his
custody by which the dead body of
ramdutt was covered and he also
inspected the lanterns and torches.

He further stated to have seized
04 tiklis of cartridge given to him by the
complainant and also that he recorded the
statement of witnesses Smt. Rani, Natthu,
Sarju, Sripal and Ramdutt and other
persons. He also stated to have collected
the material sent from the postmortem
house.

P.W.-7/Shri Prem Madhava
Shukla is the 2nd Investigating Officer,
who stated that he after recording the
statement of Mahesh Prasad submitted a
charge-sheet, (Exhibit-ka-7).

P.W.-8/Constable
Bhoorelal
has submitted to have taken the dead
body of Ramdutt to the hospital for the
purpose of postmortem in a sealed
condition and did not allow anyone to
touch the body.

P.W.-9/Shri Ram Bahadur was
Constable clerk at the relevant time at
Police Station Mishrikh, who stated to
have written the Chick First Information
Report, Exhibit-ka-8 and entry of G.D.,
Exhibit-ka-9 in his handwriting.

17.
Learned
counsel
for
the
appellants submits that all witnesses
produced by the prosecution are related to
the
deceased
and
informant
and
independent witnesses including Sri Pal
were not produced by the prosecution.

He
further
submits
that
conviction could not be based on the
evidence of interested witnesses, when
the prosecution has deliberately withheld
independent witnesses.

Learned
A.G.A.,
however,
confronted this argument on the basis that
all prosecution witnesses of this case are
the most natural witnesses, as they are
either inmates of the house of deceased or
were residents of the same village.

In Dalip Singh and Ors. v. The
State of Punjab MANU/SC/0031/1953 :
[1954]1SCR145 it has been laid down as
under:-

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to
be tainted and that usually means unless
the witness has cause, such as enmity
against the accused, to wish to implicate
him falsely, Ordinarily a close relative
would be the last to screen the real culprit
and falsely implicate an innocent person.
It is true, when feelings run high and
there is personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a
grudge along with the guilty, but
foundation must be laid for such a
criticism and the mere fact of relationship
far from being a foundation is often a sure
guarantee of truth. However, we are not
attempting any sweeping generalization.
Each case must be judged on its own
3 All. Prahlad & Ors. Vs. State of U.P.
969
facts. Our observations are only made to
combat what is so often put forward in
cases before us as a general rule of
prudence. There is no such general rule.
Each case must be limited to and be
governed by its own facts."

In Appabhai and Ors. vs.
State of Gujarat, MANU/SC/0028/1988
The Supreme Court held as under :-

"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."

Hon'ble
Supreme
Court
in
Gangabhavani vs. Rayapati Venkat
Reddy and Ors. , MANU/SC/0897/2013
held as under :-

"11. It is a settled legal
proposition that the evidence of closely
related witnesses is required to be
carefully scrutinised and appreciated
before any conclusion is made to rest
upon it, regarding the convict/accused in
a given case. 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.(Vide: Bhagaloo
Lodh
and
Anr.
v.
State
of
U.P.
MANU/SC/0700/2011 : AIR 2011 SC
2292; and Dhari and Ors. v. State of U.P.
MANU/SC/0848/2012 : AIR 2013 SC
308).

12. In State of Rajasthan v.
Smt.
Kalki
and
Anr.
MANU/SC/0254/1981 : AIR 1981 SC
1390, this Court held:

"5A. As mentioned above the
High Court has declined to rely on the
evidence of P.W. 1 on two grounds: (1)
she was a "highly interested" witness
because
she
"is
the
wife
of
the
deceased"......For, in the circumstances of
the case, she was the only and most
natural witness; she was the only person
present in the hut with the deceased at the
time of the occurrence, and the only
person who saw the occurrence. True, it is
she is the wife of the deceased; but she
cannot be called an 'interested' witness.
She is related to the deceased. '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 a case cannot be said to
be 'interested'. In the instant case P.W. 1
had no interest in protecting the real
culprit, and falsely implicating the
Respondents."(Emphasis added)(See also:
Chakali Maddilety and Ors. v. State of
A.P. MANU/SC/0609/2010 : AIR 2010 SC
3473)."

"14. In view of the above, it can
safely be held that natural witnesses may
not be labelled as interested witnesses.
Interested witnesses are those who want
970 INDIAN LAW REPORTS ALLAHABAD SERIES
to derive some benefit out of the
litigation/case. In case the circumstances
reveal that a witness was present on the
scene
of
the
occurrence
and
had
witnessed the crime, his deposition cannot
be discarded merely on the ground of
being
closely
related
to
the
victim/deceased."

Perusal of the record would
reveal that accused Ram Jiwan, deceased
Ram Dutt and informant Inderdutt were
real brothers. Ram Jiwan being the eldest
and Inderdutt being the youngest brother.
It is also stated by the witnesses that
during the lifetime of his father, accused
Ram Jiwan started living separately and
doing separate cultivation after getting a
portion of land from his father, while
other two brothers Ram Dutt and
Inderdutt remained with their father.
However, at the time of incident, all
brothers
were
living
separately.
Therefore, it is a unique case, where a real
brother has been killed by another real
brother and the informant of the offence is
the third real brother. In the First
Information Report, it has been stated that
when Ram Dutt, his wife and their
children went asleep after taking their
dinner, at about mid of night, Prahlad and
Suresh armed with ''katta' and Ram Jiwan
and Vishwanath armed with Sticks (lathi)
came to the roof of Inderdutt, where he
was sleeping. Suresh pointed his pistol
towards him and at that moment, accused
Ram Jiwan informed him that the person
standing in front of him is Inder Dutt and
not Ram Dutt and he is not the person, to
be killed. Thereafter, all accused persons
went in the Courtyard of deceased Ram
Dutt through a ladder and all of them took
Ram Dutt in a ''Kothari' (Inner room) and
there Suresh fired at deceased Ram Dutt,
while Ram Jiwan and Vishwanath were
holding the hands of deceased and
Prahlad was pointing his country-made
pistol
towards
Satyanarain
(son
of
deceased Ram Dutta). Ram Dutt in order
to save himself ran towards courtyard,
where Ram Jiwan and Vishwanath
assaulted him with ''lathis' and when his
wife Smt. Rani came in between, she was
beaten too. Nattharam, Sarju and Shripal
and other people of the village stated to
have arrived at the scene holding sticks
and torches in their hands and all of them
saw all accused persons emerging from
the main door of the Ram Dutt. When the
witnesses went inside the house, the
whole story was told to them by P.W.-
3/Smt. Rani and, thereafter, Ram Dutt
was being taken to police station in a
Bullock cart, however, he died on his
way.

P.W.3/Smt. Rani has narrated
the whole story in detail as to how her
husband was killed. She stated that in the
''kothri', Ram Jeewan and Vishwanath had
caught hold of the deceased, while Suresh
fired at him from a country-made pistol
and in the courtyard also, her husband and
she were beaten by Vishwanath and Ram
Jiwan. She also stated about the arrival of
witnesses Sripal, Nattha and Sarju outside
her house who saw the accused persons
emerging out from the main door of her
house. In her cross-examination, she
stated that Nattha and Sarju are real
brothers and Sarju was an accused in
proceeding of Section 107, 116 of Cr.P.C.
along with her husband Ram Dutt. She
further stated that the houses of these
witnesses are near to each other with 2-3
houses falling in between their houses.

P.W.-4/Nattharam
and
P.W.-
6/Sarju Prasad have stated about hearing
of a sound of gunshot and also shouts
coming from the Ramdutt's house and
that they took ''lathi' and torches with
them and reached at the door of the
3 All. Prahlad & Ors. Vs. State of U.P.
971
Ramdutt's house. Both of them stated to
have seen, in the light of torches, all
accused persons emerging from the main
door of the house of Ramdutt and also
that they saw pistols in the hands of
Suresh and Prahlad and ''lathis' in the
hand of Ram Jiwan and Vishwanath.

P.W.-3/Smt. Rani has also stated
that after departure of accused persons,
P.W.-4/Nattharam and P.W.-6/Sarju as
well as P.W.-5/Inderdutt came in her
courtyard and to them, she narrated the
whole incident. It is evident that P.W.-
4/Nattharam and P.W.-6/Sarju are the
witnesses of only hearing the shouts
coming out from the house of Ram Dutt
and thereafter to have witnessed all
accused persons emerging out from the
main door of the house of Ram Dutt.

P.W.-5/Inder Dutt is also a
witness of only the fact, as to what had
happened on the roof and in the courtyard
of the house of deceased Ram Dutt.
Therefore, none of these witnesses was in
a position to witness as to what had
happened inside the ''Kothri' except P.W.-
3/Smt. Rani who was inside the Kothri.

As
said
earlier,
P.W.-
4/Nattharam and P.W.-6/Sarju are real
brothers and also first cousin of Ram
Dutt, Ram Jiwan and Inder Dutt. Apart
from them, only Sripal was named in the
First Information Report as a witness, but
has not been produced by the prosecution
during trial. Apart from them, certain
other persons have also stated to have
gathered at the scene, but they have also
not been produced by the prosecution. It
is also an admitted fact that P.W.-4/Nattha
and P.W.-6/Sarju are equally related to the
deceased, informant as well as to the
accused Ram Jiwan, and in the facts and
circumstances of the case, all these
witnesses appears to be natural witnesses
of the crime. P.W.-4/Nattha and P.W.-
6/Sarju only stated to have arrived outside
the house of Ram Dutt on hearing a
gunshot and shouts.