# Prem Singh v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-02
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-singh-v-state-of-u-p-ors-43928
- **Pages:** 26

## Headnote

(1) The first information report is delayed.
(2) There was no motive for the appellant to commit the offence.
(3) The witnesses examined by the prosecution are related and interested witnesses.
(4) The injuries on the person of the accused have not been explained by the prosecution.
(5) The accused has the right to private defence which was exercised by him.
(6) The investigation is defective and there may be shortcomings in the investigation.

Court held that the conviction of the appellant is liable to be upheld but the sentence is liable to be reduced
from 5 years rigorous imprisonment, under Section 304 part II read with Section 34 I.P.C. to a fine of Rs.
25,000/-. The further sentence of three months rigorous imprisonment, under Section 323 read with Section
34 I.P.C. is reduced to a fine of Rs. 1,000/-.
The appeal is partly allowed.

List of Cases Cited:

## Text

_Characters 0–39,938 of 76,301. This is a partial read: ask again with offset=39938 for what follows._

216 INDIAN LAW REPORTS ALLAHABAD SERIES
indicates the method of the preparation of a waiting list that also does not appear to have been
followed by the learned District Judge in the matter of appointment of the appellant.

8. Sri Umakant, learned counsel for the appellant has invited the attention of this Court to the
letter of appointment and confirmation order of the appellant that are Annexure-1 and Annexure-2
respectively to the writ petition. The said appointment letter and confirmation order leaves no room
for doubt that the appellant was appointed as a Farrash and, therefore, it could have been done only
in accordance with the procedure as indicated above. Since neither the procedure has been followed
nor the circular has been adhered to, we do not find any reason to take a different view than what
has been stated above.

9. On the issue of no advertisement, the judgement in the case of Sachin Kumar (supra) stands
supervened by a host of judgements that have been filed along with the counter affidavit but in the
present case even the circular of the High Court dated 20.2.1996 has been ignored by the District
Judge and has gone unnoticed in the interim order dated 15.9.2008 passed in this appeal.

10. The appeal therefore lacks merit and is accordingly dismissed. Interim order dated
15.9.2008 is hereby discharged.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 1267 Of 1982

Prem Singh ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Appellant:
Smt. Rathore, Kapil Rathore, S.S. Rathore,T. Rathore,Vikram Deo Singh Rathore,Vinay Kumar Singh

Counsel for Respondents:
A.G.A.

Present appeal was filed challenging the order dated 12.05.1982 passed by XIIth Additional Sessions Judge,
Agra, in Sessions Trial No. 166 of 1980 whereby the accused-appellant has been convicted and sentenced to
five years' rigorous imprisonment under section 304 part II read with Section 34 I.P.C.; three months rigorous
imprisonment under section 323 read with Section 34 I.P.C. On 5.02.1979 FIR was lodged by the informant
stating that Mohar Singh was going to his college, as he reached near field of Khubi, suddenly, Prem Singh
assaulted him with the lathi who came out of the field of Khubi. When he raised alarm, Nek Ram reached the
place of incident who was also assaulted by Prem Singh, Mangal Singh and Bhikam Singh by means of lathi.
5 All. Prem Singh Vs State Of U.P. & Ors.

217
Counsel for the appellant has raised certain points:

(1) The first information report is delayed.
(2) There was no motive for the appellant to commit the offence.
(3) The witnesses examined by the prosecution are related and interested witnesses.
(4) The injuries on the person of the accused have not been explained by the prosecution.
(5) The accused has the right to private defence which was exercised by him.
(6) The investigation is defective and there may be shortcomings in the investigation.

Court held that the conviction of the appellant is liable to be upheld but the sentence is liable to be reduced
from 5 years rigorous imprisonment, under Section 304 part II read with Section 34 I.P.C. to a fine of Rs.
25,000/-. The further sentence of three months rigorous imprisonment, under Section 323 read with Section
34 I.P.C. is reduced to a fine of Rs. 1,000/-.
The appeal is partly allowed.

List of Cases Cited:

1. Jai Lal (dead) and others vs. State of U.P. 2001 (1) JIC 9143 Allahabad
2. Dilawar Singh vs. State of Delhi 2007 Crl.L.J. 4709
3. Ramdas vs. State of Maharashtra (2007) 2 SCC page 170
4. Amar Singh vs. Balvinder Singh and others 2003 Crl.L.J. 1282
5. Tara Singh and others vs. State of Punjab AIR 1991 SC page 63
6. Jai Prakash Singh vs. State of Bihar 2012 (77) ACC 245
7. Ranganayaki vs. State (2004) 12 SCC 521
8. Thaman Kumar vs. State of Union Terriotiry of Chdndigarh 2003 (47) ACC 7 (SC)
9. Mangaru and others vs. State of U.P. 2008 (62) ACC 40
10. Dalip Singh and others vs. State of Punjab AIR 1953 SC 364
11. Masalti and others vs. State of U.P. A.I.R. 1965 SC 202
12. Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698
13. Vadivelu Thevar vs. State of Madras AIR 1975 SC 614
14. Israr vs. State of U.P. 2005(51) ACC 113
15. Galivenkataiah vs. State of A.P. 2008 (60) ACC 370
16. State of Andhra Pradesh vs. S. Rayappa and others 2006 (1) AAR 259 (SC)
17. Mohd. Khalil Chisti vs. State of Rajasthan 2013 (80) ACC page 622
18. Lakshmi Singh and others vs. State of Bihar (1976) 4 SCC 394
19. State of Rajasthan vs. Rajendra Singh AIR 1998 SC 2554
20. State of Uttar Pradesh vs. Gajey Singh and another (2009) 11 Supreme
Court Cases 414
21. Lakshmi Singh and others vs. State of Bihar (1976) 4 Supreme Court Cases, 394
22. Boddella Babul Reddy vs. Public Prosecutor, High Court of Andhra Pradesh (2010) 3 Supreme Court Cases,
648
23. State of M.P. vs. Mishrilal (Dead) and others (2003) 9 Supreme Court Cases 426
24. State of Punjab vs. Rajinder Singh (2009) 15 Supreme Court Cases 612
25. State of Rajasthan vs. Madho and another 1991 Supp. (2) Supreme Court Cases 396
26. Wassan Singh vs. State of Punjab (1996) 1 Supreme Court Cases, 458
27. Darshan Singh vs. State of Punjab and another (2010) 2 Supreme Court cases (Cri) 1037
28. Krishnan vs. State of Tamil Nadu (2007) 1 Supreme Court Cases (Cri) 437
29. State of Gujarat vs. Bai Fatima and another 1975 AIR page 1478
30. Darshan Singh vs. State of Punjab
31. Satendra vs. State of U.P. 2012 (77) ACC 291
218 INDIAN LAW REPORTS ALLAHABAD SERIES
32. Deo Raj vs. State of U.P. 2012 (79) ACC 549
33. Sunil Kumar Sambhudayal Gupta and others vs. State of Maharashtr 2011 (72) ACC 699
34. State of U.P. vs. Harban Sahai and others 1998 C.A.R. (S.C.) 208
35. Ambika Prasad and another vs. State (Delhi Administration) 2000 (S.C.) page 648
36. Gopal vs. State of U.P. 1999 (39) ACC page 981
37. Krishna Manjhi and others vs. State of Bihar AIR 2002 Supreme Court page 1965
38. Kishori vs. State of U.P. 2012 (77) ACC 483
39. State of Punjab vs. Bira Singh and others 1995 Suppl. (3) SCC 708

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. Challenge in this appeal is to the judgment and order dated 12.05.1982 passed by XIIth
Additional Sessions Judge, Agra, in Sessions Trial No. 166 of 1980 (State vs Prem Singh and
others), arising out of Case Crime No. 27 of 1979, under Sections 304/34, 323/34 I.P.C., Police
Station Kheragarh, District Agra, whereby the accused-appellant has been convicted and sentenced
to five years' rigorous imprisonment under section 304 part II read with Section 34 I.P.C.; three
months rigorous imprisonment under section 323 read with Section 34 I.P.C.

2. Filtering out the unnecessary details the prosecution case in brief is that the informant Ram
Singh has lodged a report on 05.02.1979 at Police Station Kheragarh, District Agra stating that his
nephew Mohar Singh was going to his college at 09:30 A.M. to pursue his studies. As soon as he
reached near the field of Khubi, suddenly, Prem Singh assaulted him with the lathi who came out of
the field of Khubi. When he raised alarm, Nek Ram reached the place of incident who was also
assaulted by Prem Singh, Mangal Singh and Bhikam Singh by means of lathi. The informant Ram
Singh and Mehtab Singh has raised alarm on which Viram Singh, Hakim and other villagers came
on the spot who saved everybody. Nek Ram has sustained many injuries on his head who was taken
to Agra District Hospital. Thereafter, the report was lodged.

3. On the basis of this report Head Constable Sonpal Singh PW-6 who scribed the chik report
and proved it as Exhibit Ka-5. He further proved the copy of G.D. as Exhibit Ka-6. Investigation
was conducted by PW-9 S.I. R.C. Singh, who inspected the spot, prepared the site plan which was
proved as Exhibit Ka-7 and submitted charge sheet which was proved as Exhibit Ka-9. Dr. N. B.
Saxena is PW-1, who has examined the injured Nek Ram on 05.02.1979 at 08:35 P.M. and found
the following injuries on his body:-

(i) Lacerated wound 3/4" X 2/10" X skull deep on the right collar bone inner end 1" away
from the mid line.

(ii) Contusion 2" X 1 1⁄2 " around the right eye.

(iii) Contusion 2" X 1" on the left lower eye lid.

(iv) Scabbed abrasion 1" X 1 1⁄2 " on the right side of the face 1" away from the nose.
5 All. Prem Singh Vs State Of U.P. & Ors.

219

(v) Traumatic wound on the right side of the face and skull 8" X 6" extremely from the
right temporal upto upper part of the right side neck.

(vi) Scabbed abrasion 1⁄2 " X 1/10" at back of the right fore arm upper part.

4. Injury no. (iv) was kept under observation and X-ray skull was advised. Injuries (iv) to (vi)
were caused by friction rest by blunt weapon. This witness has proved the injury report as Exhibit
Ka-1.

5. PW-2 is Dr. J.K Agrawal, who has examined the injured Mohar Singh on 05.02.1979 at
08:10 P.M. and found the following injuries on his body:-

(i) Lacerated wound 2 1⁄2 " X 1/4" X scalp on the top of head left side 3" above left eye
brow and 5" above left ear.

(ii) Abraded contusion with swelling 1" X 3/4" on the right side fore head just above the
outer part of eye brow.

(iii) Scabbed abrasion 3" X 2/10" on the back of the left fore arm middle.

(iv) Contusion 4" X 1⁄2 " on the left side back lower part just above back portion.

6. All the injuries were simple in nature. This witness has proved the injury report as Exhibit
Ka-2.

7. PW-3 is Ram Singh, who is the informant and also an eye witness who proved the first
information report as Exhibit Ka-3. PW-4 is Dr. M. K. Rawat, who conducted the post-mortem of
the body of the deceased (Nek Ram) and found the following ante-mortem injuries :-

(i) Stitched wound 4 1⁄2 " size with drainage tube on right side head 3" above right ear.

(ii) Stitched wound 3" size with drainage tube on left side head 1" above left ear.

(iii) Scabbed abrasion 1 1⁄2 " X 3/4" over the right cheek.

8. The bones of the right middle cranial fossa were found fractured. The death was due to
comma as a result of skull injury. This witness has proved the post-mortem report as Exhibit Ka-4.
PW-5 is Mohar Singh, who is also an injured witness. The evidence of PW-6 Sonpal Singh has
earlier been discussed. PW-7 is Viram Singh, who is said to be the witness of the incident. PW-8 is
Mahtab Singh, who is also said to be a witness of the incident. PW-9 is S.I. R.C. Singh, whose
evidence has already been discussed. The formal proof of the police information, the photo of dead
body, Information letter sent to the C.M.O. and the inquest report was dispensed with hence they
were marked as Exhibits Ka-12, Ka-13, Ka-14 and Ka-15 respectively.
220 INDIAN LAW REPORTS ALLAHABAD SERIES

9. After the close of the prosecution evidence, the statements of the accused was recorded
under section 313 Cr.P.C., in which they denied the occurrence and has stated that Mohar Singh
was dismantling the sugarcane fields of the accused Prem Singh. When he was asked not to do so,
Nek Ram, Mohar Singh, Prakash, Hakim and Ram Singh came armed with hockey and danda to his
fields and assaulted Prem Singh and his companions. This accused also had a lathi. He used his
lathi for the self-defence. His wife also sustained the injuries on the head. Accused Bhikam Singh
while denying the occurrence has stated that he has been falsely implicated. The accused Mangal
Singh has also stated that he had been falsely implicated in this case. The accused have produced
DW-1 Dr. N.B. Saxena who examined the accused Prem Singh on 06.02.1979 at 06:00 A.M. and
found the following injuries on his person:-

(i) Lacerated wound 3/4" X 1/4" scalp deep on the left side of forehead 1 1⁄2 " above the
eye brow with traumatic swelling 2" X 1 1⁄2 ".

(ii) Contusion 1 3/4" X 1" X 1/4" on the top of the right shoulder.

(iii) Scabbed abrasion on 1⁄2 " X 2/10" on the front of the left shoulder with traumatic
swelling 2" X 1 1⁄2 ".

(iv) Two scabbed abrasions 2/10" X 2/10" each 2" apart from each other left forearm
lower part.

(v) Traumatic swelling 3" X 2" on the front of the left side lower part.

10. Injury no. (i) was kept under observation and advised X-ray. DW-2 is Lakhan Singh, who
is said to be an eye witness to the incident.

11. After hearing the learned counsel for the parties, the learned lower court convicted and
sentenced the accused as stated in para 1 of the judgment.

12. Feeling aggrieved, the accused has come up in appeal.

13. Heard Kapil Rathore, learned counsel for the appellant, learned Additional Government
Advocate for the State-respondent and perused the lower court record.

14. Learned counsel for the appellants while assailing the impugned judgment of the trial court
has argued on the following points:-

(1) The first information report is delayed.

(2) There was no motive for the appellant to commit the offence.

(3) The witnesses examined by the prosecution are related and interested witnesses.
5 All. Prem Singh Vs State Of U.P. & Ors.

221

(4) The injuries on the person of the accused have not been explained by the prosecution.

(5) The accused has the right to private defence which was exercised by him.

(6) The investigation is defective and there may be shortcomings in the investigation.

(1) The first information report is delayed:-

The first information report is the backbone of the criminal case. No doubt, the first
information report is not an encyclopedia of the prosecution case but if all the requisite details are
present in the first information report then it would be sufficient. In the present case, the first
information report is very cryptic and short. It contains the details of the presence of assault, the
weapons used, the presence of accused, the date, the time and place of assault, although motive is
wanting in the first information report.

Counsel for the appellant has contended that the offence took place on 05.02.1979, at
09:30 A.M., whereas, the report was lodged on the same day at 05:00 P.M. the police station being
14 Km. away from the place of occurrence, thus, there is inordinate delay in lodging the first
information report which has not at all been explained by the prosecution, hence the delay in
lodging the first information report gives way to the fact that the accused has been falsely
implicated. In case of prompt first information report, the chances of false implication of the
accused are very remote.

In 2001 (1) JIC 9143 Allahabad, [Jai Lal (dead) and others vs. State of U.P.], it has
been held that if the the first information report is prompt, eye-witnesses are named in the first
information report and vivid account of incident is given, then it is sufficient for the prosecution.

Counsel for the appellant has submitted that it is an admitted case of the prosecution, that
consultations were made for quite some time and the present first information report is a result of
such consultation. He has drawn the attention of the court to the statement of the informant PW-3
Ram Singh who has stated that " नेकराम की हालत गम्भीर थी इसललये सोच विचार में 1-2 घंटा लग गये। फिर
िैलगाडी मे खाट लादकर दूधाधारी कौलेज पह ुँचे जो गांि से 3 मील कच्चे में था। जहाुँ 212 ददन को पह ुँचे।"

The aforesaid statement of the informant does not show that deliberations and
consultations were being made about the names of the accused but this statement goes to show that
since the condition of the injured was serious, it was being decided how to take the injured to the
hospital, inasmuch as, the injured, son of the deceased Mohar Singh PW-5 has stated that his father
vomited blood. He lifted his father and kept on a cot but he could not be managed on the cot. Then
a bullock-cart was arranged by which he was taken to Doodadhari College, where the bus stops
only on request. The bus came after one and half hour. After that this injured, Biram, Mahtaab
Singh and Hakim Singh took his father to the emergency ward of the S. N. Medical College but he
222 INDIAN LAW REPORTS ALLAHABAD SERIES
was not admitted there. Then he was taken to the District Hospital. From the District Hospital, his
father was referred to the Medical College, where later-on his father had died.

In this regard, counsel for the appellant has placed reliance on 2007 Crl.L.J. 4709
(Dilawar Singh vs. State of Delhi), in which it has been held as under:-

"In criminal trial one of the cardinal principles for the Court is to look for plausible
explanation for the delay in lodging the report. Delay sometimes affords opportunity to the
complainant to make deliberation upon the complaint and to make embellishment or even make
fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be
presented before the Court at the earliest instance. That is why if there is delay in either coming
before the police or before the Court, the Courts always view the allegations with suspicion and
look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to
the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held
that the delay in lodging the first information report quite often results in embellishment as a result
of afterthought. On account of delay, the report not only gets bereft of the advantage of
spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The
State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to
throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of
factors which would vary from case to case. Even a long delay can be condoned if the witnesses
have no motive for implicating the accused and/or when plausible explanation is offered for the
same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the
truthfulness or authenticity of the version of the prosecution."

Delay is always not fatal for the prosecution. In (2007) 2 SCC page 170 (Ramdas vs.
State of Maharashtra), the Hon'ble Apex Court has observed as follows:-

"24. ... mere delay in lodging the first information report is not necessarily fatal to the
case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of
which the court must take notice. This fact has to be considered in the light of other facts and
circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging
the report has been sufficiently explained. In the light of the totality of the evidence, the court of
fact has to consider whether the delay in lodging the report adversely affects the case of the
prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct
evidence to explain the delay. Even in the absence of direct explanation, there may be
circumstances appearing on record which prov ide a reasonable explanation for the delay. There
are cases where much time is consumed in taking the injured to the hospital for medical aid and,
therefore, the witnesses find no time to lodge the report promptly. There may also be cases where
on account of fear and threats, witnesses may avoid going to the police station immediately. The
time of occurrence, the distance to the police station, mode of conveyance available, are all factors
which have a bearing on the question of delay in lodging of the report. It is also possible to
conceive of cases where the victim and the members of his or her family belong to such a strata of
5 All. Prem Singh Vs State Of U.P. & Ors.

223
society that they may not even be aware of their right to report the matter to the police and seek
legal action, nor was any such advice available to them."

Besides, there are many factors which have to be taken into consideration, while looking
into the factum of delay in a criminal case. It is true that the court has a duty to take notice of the
delay and examine the same in a backdrop of the factual score, whether there has been any
acceptable explanation offered by the prosecution and whether the same deserves acceptation being
satisfactory, but when delay is satisfactorily explained, no adverse inference is to be drawn. It is to
be seen whether there has been possibility of embellishment in the prosecution version on account
of such delay.

In the present case, it has been stated that since the injured was serious, the family
members were more concern about taking him to the doctor and getting first aid for him. Even the
doctor has written that when the patient came to him, he was restless.

In 2003 Crl.L.J. 1282 (Amar Singh vs. Balvinder Singh and others), the Hon'ble Apex
Court has observed as under:-

"Delay in lodging of the FIR many circumstances have to be seen." It has been held that,
"There is no hard and fast rule that in delay in lodging FIR would automatically render the
prosecution case doubtful. It is necessarily depends upon facts and circumstances of each case
where there has been any delay in lodging the FIR which may cast doubt about the veracity of the
prosecution case and for this host of circumstance like conditions of first informant, nature of
injury sustained, number of victims, efforts made to provide medical aid to them distance of the
hospital and the police station etc. have to be taken into consideration. There is no mathematical
formula by which an inference may be drawn and either way where merely on account of delay in
lodging of the first information report."

In same context, it will be usefull to take note of the following observations made by the
Hon'ble Apex Court in Tara Singh and others vs. State of Punjab, AIR 1991 SC page 63 is as
follows:-

"The delay in giving F.I.R. by itself cannot be a ground to doubt the prosecution case.
Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police
station immedicately after the occurrence. Human nature as it is, kith & kin who have witnesses the
occurrence cannot be expected to act mechanically with all promptitudes in giving report to the
police. At times being grief-stricken because of calamity it may not immediately occur to them that
they should give report. After all it is but natural in these circumstances for them to take sometime
to go to the police station for giving the report. Of course in cases arising out of acute factions,
there is a tendency to implicate persons belonging to opposite faction falsely. In order to avert the
danger of convicting such an innocent persons, the court should be cautious to scrutinize the
evidence of such interested witness with greater care and caution and separate grin from chaff
after subjecting the evidence to a closure scrutiny and in doing to, the contents of the first
224 INDIAN LAW REPORTS ALLAHABAD SERIES
information report also will have to be scrutinized carefully. However, unless there are indications
of fabrications, the Court cannot reject the prosecution version as given in the F.I.R. and later
substantiated by the evidence merely on the ground of delay. These are all matters for appreciation
and much depends on the facts and circumstances of each case."

Counsel for the appellant has also submitted that the promptness in lodging the first
information report lends assurance with regard to the truth of information given by the informant
and the delay in lodging the first information report, 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 consultation / deliberation as has been held in Jai Prakash Singh vs. State of
Bihar [2012 (77) ACC 245].

As I have stated earlier, the consultations between the family members was clear as to
how the injured was to be carried to the hospital. The first information report itself reveals, which
was short and cryptic and there is nothing on record to prove that consultation were made as to how
the first information report would be lodged.

Thus, the delay in lodging the first information report has been very satisfactorily and
reasonable explained which has also been freely discussed by the trial court and the delay is not at
all fatal for the prosecution case.

(2) There was no motive for the appellant to commit the offence :-

Counsel for the appellant has submitted that in the first information report, no motive has
been assigned to the accused for committing the offence. It is trite law that in cases of direct
evidence, motive looses its value.

Perusal of the first information report shows that the motive is wanting in the first
information report. No doubt motive is a double edged weapon which on one hand instigates the
accused to commit the crime and on the other hand it works as a catalyst in falsely roping the
accused in the case. It is only the author of the crime who knows what was the circumstances and
cause of action, lead to the commission of the crime.

Different person reacts differently under the given circumstances. Murder can be
committed even on very trivial issues. It is also difficult to say or lay down any hard and fast rule as
to how and in what manner a person would react and could go to extent to achieve his motive in the
commission of the crime under a particular circumstances. It is not possible to measure the extent
of his feeling, sentiments and reactions, as may be, who under frustration or on mere possibility
may take decision to commit crime. It all depends as to how a person reacts in a given
circumstances. The Hon'ble Apex Court in the case of Ranganayaki vs. State, (2004) 12 SCC 521
has held as under:
5 All. Prem Singh Vs State Of U.P. & Ors.

225

"The motive for committing a criminal act is generally a difficult area for the
prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a
man to do a particular act. Such impulsion need not necessarily be proportionally grave to do
grave crimes. Many murders have been committed without any known or prominent motive. It is
quite possible that the aforesaid imputing factor would remain undiscovered."

In this connection, following observations of the Hon'ble Supreme Court given in the
case of Thaman Kumar vs. State of Union Terriotiry of Chdndigarh, 2003 (47) ACC 7 (SC) are
also relevant:

"There is no principle or rule of law that where the prosecution fails to prove the motive
for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular
evidence is found to be trust-worthy and reliable and finds corroboration from the medical
evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime
has not been proved."

The Hon'ble Apex Court in Mangaru and others vs. State of U.P., 2008 (62) ACC 40 has
laid down that motive may be of importance in the cases of circumstantial evidence and it is well
settled principle of law that in the case of direct evidence, motive looses its value.

After all motive is psychological phenomenon to translate the mental deposition of the
accused. Though, no motive has been mentioned in the first information report. The motive finds
place in the Statement of PW-5 Mohar Singh, who is the injured witness, due to which the whole
incident is said to have taken place. He has stated that some altercations took place between the
parties in the village. The accused were annoyed, due to the fact that PW-5 Mohar Singh used to
negate down Bhikam Singh (the party of the accused in wrestling). This witness was not crossexamined on this point, although, if the prosecution goes with a weak motive or with the motive
which does not stand proved, it will not make much difference because in cases of direct evidence,
as I have said earlier, motive looses its value, hence the motive in this case is not of much
consequence.

(3) The witnesses examined by the prosecution are related and interested witnesses
:-

No doubt, the evidence of related and interested witnesses has to be scrutinized with
caution. Ram Singh PW-3 has admitted that the injured Mohar Singh, PW-5 is his nephew by
virtue of being of same pedigree.

As far as related and interested witnesses are concerned, in the case of Dalip Singh and
others vs. State of Punjab, (AIR 1953 SC 364), it has been laid down as under by the Hon'ble
Apex Court:-
226 INDIAN LAW REPORTS ALLAHABAD SERIES

"A witness is normally to be considered independent unless he or she springs from
sources which are likely to be tainted and unless the witness has cause, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the
real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is
personal cause for enmity, that there is tendency to drag in an innocent person against whom a
witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure guarantee of truth. However,
we are not attempting any sweeping generalization. Each case must be judged on its own facts."

Observations of the Hon'ble Apex Court Masalti and others vs. State of U.P., A.I.R.
1965 SC 202, are worth mentioning:-

"But it would, we think, be unreasonable to contend that evidence given by witnesses
should be discarded only on the ground that it is evidence of partisan or interested witnesses. The
mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead
to failure of justice. No hard and fast rule can be laid down as to how such evidence should be
appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that
such evidence should be rejected because it is partisan cannot be accepted as correct."

The above decision has been followed in Guli Chand and others vs. State of Rajasthan,
1974 (3) SCC 698, in which Vadivelu Thevar vs. State of Madras, AIR 1975 SC 614 was also
relied upon. The following observations were made by the Hon'ble Apex Court in Israr vs. State of
U.P., [2005(51) ACC 113] in para-12 of the judgement are also important:-

".... Relationship is not a factor to affect credibility of a witness. It is more often than not
that a relation would not conceal the actual culprit and make allegations against an innocent
person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has
to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."

The above position has been highlighted again in the case of Galivenkataiah vs. State of
A.P., 2008 (60) ACC 370, in which reference has been made to some other cases also.

The Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and
others, 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses has observed as
under:-

"...... By now it is a well-established principle of law that testimony of a witness otherwise
inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is
an interested witness. A close relative who is a very natural witness cannot be termed as an
interested witness. The term interested postulates that the person concerned must have some direct
interest in seeing the accused person being convicted somehow or the other either because of
animosity or some other reasons.:
5 All. Prem Singh Vs State Of U.P. & Ors.

227

In para-8 their Lordships have further observed:

"The relative witness is not necessarily an interested witness. On the other hand, being a
close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There
is no reason as to why a close relative will implicate and depose falsely against somebody and
screen the real culprit to escape unpunished. The only requirement is that the testimony of the
relative witnesses should be examined cautiously..."

The concept of interested witness essentially must carry with it the element of unfairness
and undue intention to falsely implicate the accused. It is only when these elements are present and
statement of the witness is unworthy of credence that the Court would examine the possibility of
discarding such statements. But where the presence of the eye-witnesses is proved to be natural and
their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the
occurrence itself, it is not permissible for the Court to discard the statements of such related or
interested witnesses.

No doubt, Ram Singh PW-3, Mohar Singh PW-5 and the deceased were related to each
other but Ram Singh PW-3 besides being the eye witness is also the informant.

Counsel for the appellant has submitted that there was no reason as to why the deceased
went for 4 to 5 fields away to ease himself. There is contradiction in the prosecution case, whether
the deceased Nek Ram came to the spot from his house or came from the nearby fields, where he
was easing himself because as per the statement of Mohar Singh PW-5, injured who has stated that
his father Nek Ram came to the spot from some nearby field, where he was attending the call of
nature. He came, when he heard hue and cry, whereas, Ram Singh PW-3, the eye witness and the
informant has stated that when the injured Mohar Singh PW-5 was being assaulted, his father
namely Nek Ram reached the spot.

I do not think this is something which would entitled the accused for acquittal because,
even the defence has half heatedly admitted the presence of the deceased at the spot.

It has also been contended on behalf of the appellant that Mohar Singh was a young lad
and he was in a hurry to go to school. He would have walked hurriedly and the deceased being an
aged person, could not have reached the place of occurrence so soon. This argument has no legs to
stand because the deceased Nek Ram ultimately died and he did not appear before the court to say
anything. I do not think, the witnesses would have much in a position to say from where Nek Ram
came. Another arguments has been advanced on behalf of the appellant that the school bag was not
recovered by the I.O. and the presence of the school bag is doubtful. Although, it has come in
evidence that Mohar Singh PW-5 was carrying a school bag when he was being assaulted and when
he was going to attend his school. In this regard, Mohar Singh has admitted that he had a bag with
him in which books were kept but he said that he did not know who took away his bag. Most
probably, the bag must have been given to some child to give it back to his home. I do not think
that Mohar Singh PW-5 who was a young lad at the time of incident below 20 years, would have
228 INDIAN LAW REPORTS ALLAHABAD SERIES
been much bothered about his bag and copies than the life of his father, who was seriously injured.
Although Ram Singh PW-3 has stated that Mohar Singh was carrying bag when he went from his
house. He had collected the books and sent them home through a child. Thus, this is a very minor
fact which can be ignored in the circumstance of this case.

The Statement of Prem Singh, the accused was recorded under Section 313 Cr.P.C. which
could also be taken into consideration because, he has stated that in his sugarcane fields, Mohar
Singh was dismantling the sugarcane. When he shouted at him, Nek Ram, Mohar Singh, Prakash
and Hakim accompanied with Ram Singh came with lathi and started assaulting Prem Singh. Prem
Singh was also holding lathi which he used in self-defence. Thus, the presence of the eye witness
Ram Singh and the deceased Nek Ram is admitted by the defence also.

(4) The injuries on the person of the accused have not been explained by the
prosecution :-

Counsel for the appellant has submitted that the injuries on the person of the accused has
not been explained by the prosecution which is fatal for the prosecution case. In this regard,
counsel for the appellant has placed reliance upon 2013 (80) ACC page 622, (Mohd. Khalil Chisti
vs. State of Rajasthan), in which relying upon the case of Lakshmi Singh and others vs. State of
Bihar, (1976) 4 SCC 394, the Hon'ble Apex Court has observed as under :-

"...It is well settled that fouler the crime, higher the proof, and hence in a murder case
where one of the accused is proved to have sustained injuries in the course of the same occurrence,
the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case
and shows that the origin and genesis of the occurrence had been deliberately suppressed which
leads to the irresistible conclusion that the prosecution has not come out with a true version of the
occurrence....."

It is clear that where the prosecution fails to explain the injuries on the accused, two
results follow: (1) that the evidence of the prosecution witness is untrue and (2) that the injuries
probabilize the plea taken by the appellants. In a murder case, non-explanation of the injuries
sustained by the accused at about the time of the occurrence or in the course of altercation is a very
important circumstance from which the court can draw the following inferences:

"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and
has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the
accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the
accused it is rendered probable so as to throw doubt on the prosecution case."
5 All. Prem Singh Vs State Of U.P. & Ors.

229

It is further clear that the omission on the part of the prosecution to explain the injuries on
the person of the accused assumes much greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives a version which competes in probability
with that of the prosecution one. However, there may be cases where the non- explanation of the
injuries by the prosecution may not affect the prosecution case. This principle would apply to cases
where the injuries sustained by the accused are minor and superficial or where the evidence is so
clear and cogent, that it outweighs the effect of the omission on the part of the prosecution to
explain the injuries.

In the above ruling, itself it has been held that if the injuries of the accused are superficial
and minor, it out-raises the effect of omission, on the part of the prosecution to explain the injuries.

In the same context, counsel for the appellant has also placed reliance upon AIR 1998 SC
2554, State of Rajasthan vs. Rajendra Singh, in which it has been held that if there is lacerated
wound on the body of the accused which has not explained, then it casts a shadow of doubt on the
whole prosecution case.

As far as explanation of injuries on the person of the accused is concerned, in (2009) 11
Supreme Court Cases 414, (State of Uttar Pradesh vs.