# Raj Kumar & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-21
- **Case number:** Criminal Appeal No. 657 of 1982
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-ors-v-state-of-u-p-47992
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 148, 149 &
302 - Challenge to-Conviction- P.W.-1, the
complainant ,witnesses P.W.-4 and P.W.-5
stated that the deceased was going to the
shop of Doctor for bandage -when the
complainant
alongwith
his
brother)
reached in front of the shop five accused
assaulted collectively upon the deceased
severed his head from the body, the head
and body was put on fire and set-ablazedP.W.-1 brother of deceased, his evidence
could not be thrown aside merely on the
ground that he is brother of deceased. He
categorically explained how the accused
dragged his brother (deceased), severed
his head and again dragged the body and
head towards the field -The manner in
which murder is committed leads to the
conclusion that no independent witness
can dare to come forward and deposed in
the court against appellants-Therefore, in
these circumstances it is not expectation
of
law
to
demand
corroboration
of
evidence
by
independent
witness
or
villager-Thus the evidence of P.W.-1 is
natural and reliable-During the cross
examination too the witness corroborated
the incident, in consonance with the
evidence of P.W.-1 -There is no material
contradictions in the evidence of P.W.-1
112 INDIAN LAW REPORTS ALLAHABAD SERIES
and P.W.-4.-Therefore, the evidence of
P.W.-4 cannot be discarded only on the
ground that he was inimical witness and
co-accused in the murder of grand son and
the son of his brother-in- the police
officials recovered the body of deceased in
semi burnt stage- It is also evident from
the evidence on record that the accused
were more than five in numbers and they
have motive to murder, as the deceased
was accused in the murder of grand son
and
the
son
of
his
brother-in-lawProsecution proved motive, place of
occurrence and injuries on the corpse of
deceased by the cogent evidence.-Injuries
are corroborated by the witnesses of fact
and doctor. Accused-appellants are said to
have used Gun, Banka, Kanta and Ballam
in the incident and the injuries of all the
four arms are found on the body of
deceased- Severed head of deceased and
the body separated were recovered in the
semi burned condition in the field-Learned
trial court has given very clear and
convincing reasoning elucidated all the
evidences.
There
is
no
infirmity
or
perversity in the judgment and order
passed by learned trial court. (Para 19 to
24)

B. As regards the contention that all the
eyewitnesses are close relatives of the
deceased, it is by now wellsettled that a
related witness cannot be said to be an
''interested' witnesses merely by virtue of
being a relative of the victim. This court
has elucidated the difference between
''interested' and '' related' witness in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result
of a litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punished due to prior enmity
or other reasons, and thus has a motive to
falsely implicate the accused. (Para 18)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,990 of 41,986. This is a partial read: ask again with offset=39990 for what follows._

12 All. Raj Kumar & Ors. Vs. State of U.P.
111
appellants under Section 304 Part I of the
Indian Penal Code and sentences them to
seven years' rigorous imprisonment along
with fine of Rs.10,000/-, which this Court
considers adequate in the circumstances of
the case. In default of payment of fine of
Rs.10,000/-,
appellants
shall
undergo
additional imprisonment of three months.

Appellants Devendra Pandey and
Mohd. Anish of Criminal Appeal No. 549
of 2016; appellants Vijendra Singh, M.P.
Vimal, R.K. Raghav, Surjeet Singh, Rashid
Hussain, Syed Aale Raza Rizvi, Satya Pal
Singh of Criminal Appeal No. 513 of 2016;
and appellants Harpal Singh, Subhash
Chandra of Criminal Appeal No. 551 of
2016, are on bail and shall be taken into
custody forthwith to serve out their
sentence as directed hereinabove.

The other appellants, namely,
Ramesh Chandra Bharti, Veer Pal Singh,
Nathu Singh, Sugam Chand, Collector
Singh, Kunwar Pal Singh, Shyam Babu,
Banwari Lal, Dinesh Singh, Sunil Kumar
Dixit, Arvind Singh, Ram Nagina and Vijay
Kumar Singh in Criminal Appeal No. 549
of 2016; appellants Udai Pal Singh, Munna
Khan, Durvijay Singh, Gaya Ram, Register
Singh, Durvijay Singh son of Dila Ram,
Harpal Singh and Ram Chandra Singh in
Criminal Appeal No. 513 of 2016; and
appellants Rajendra Singh, Gayan Giri,
Lakhan Singh, Nazim Khan, Narayan Das,
Krishan Veer, Karan Singh, Rakesh Singh,
Nem Chandra, Shamsher Ahmad, Sailendra
Singh, are in jail and shall serve out the
sentence as directed hereinabove.

(152) Office is directed to transmit the
lower Court record along with a copy of the
judgment to the Court concerned forthwith.
----------
(2022) 12 ILRA 111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2022

BEFORE

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

Criminal Appeal No. 657 of 1982

Raj Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sanjai Srivastava, R.N.S. Chauhan

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 148, 149 &
302 - Challenge to-Conviction- P.W.-1, the
complainant ,witnesses P.W.-4 and P.W.-5
stated that the deceased was going to the
shop of Doctor for bandage -when the
complainant
alongwith
his
brother)
reached in front of the shop five accused
assaulted collectively upon the deceased
severed his head from the body, the head
and body was put on fire and set-ablazedP.W.-1 brother of deceased, his evidence
could not be thrown aside merely on the
ground that he is brother of deceased. He
categorically explained how the accused
dragged his brother (deceased), severed
his head and again dragged the body and
head towards the field -The manner in
which murder is committed leads to the
conclusion that no independent witness
can dare to come forward and deposed in
the court against appellants-Therefore, in
these circumstances it is not expectation
of
law
to
demand
corroboration
of
evidence
by
independent
witness
or
villager-Thus the evidence of P.W.-1 is
natural and reliable-During the cross
examination too the witness corroborated
the incident, in consonance with the
evidence of P.W.-1 -There is no material
contradictions in the evidence of P.W.-1
112 INDIAN LAW REPORTS ALLAHABAD SERIES
and P.W.-4.-Therefore, the evidence of
P.W.-4 cannot be discarded only on the
ground that he was inimical witness and
co-accused in the murder of grand son and
the son of his brother-in- the police
officials recovered the body of deceased in
semi burnt stage- It is also evident from
the evidence on record that the accused
were more than five in numbers and they
have motive to murder, as the deceased
was accused in the murder of grand son
and
the
son
of
his
brother-in-lawProsecution proved motive, place of
occurrence and injuries on the corpse of
deceased by the cogent evidence.-Injuries
are corroborated by the witnesses of fact
and doctor. Accused-appellants are said to
have used Gun, Banka, Kanta and Ballam
in the incident and the injuries of all the
four arms are found on the body of
deceased- Severed head of deceased and
the body separated were recovered in the
semi burned condition in the field-Learned
trial court has given very clear and
convincing reasoning elucidated all the
evidences.
There
is
no
infirmity
or
perversity in the judgment and order
passed by learned trial court. (Para 19 to
24)

B. As regards the contention that all the
eyewitnesses are close relatives of the
deceased, it is by now wellsettled that a
related witness cannot be said to be an
''interested' witnesses merely by virtue of
being a relative of the victim. This court
has elucidated the difference between
''interested' and '' related' witness in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result
of a litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punished due to prior enmity
or other reasons, and thus has a motive to
falsely implicate the accused. (Para 18)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Kartik Malhar Vs St. of Bih. (1996) 1 SCC 614
2. Rameshwar Vs St. of Raj. (1952) SCR 377=
AIR 1952 SC 54

3. Mohd. Rojali Vs St. of Assam (2019) 19 SCC
567

4. St. of Raj. Vs Kalki (1981) 2 SCC 752

5. Amit Vs St. of U.P. (2012) 4 SCC 107

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

7. Ganapathi Vs St. of T.N. (2018) 5 SCC 549

8. Dalip Singh Vs St. of Punj. (1954) SCR 145

9. Jayabalan Vs U.T. of Pondicherry (2010) 1
SCC 199

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

1. The present Criminal Appeal has
been filed under Section 374(2) Cr.P.C.
against the judgment and order passed by
IIIrd Additional Sessions Judge, Sitapur, on
28.08.1982, convicting the appellants Raj
Kumar, Jagannath and Mullu in Sessions
Trial No.100 of 1980 and sentencing them
to rigorous imprisonment for life and fine
of Rs.1000/- each under section 149 read
with
section
302
IPC,
rigorous
imprisonment of six months in default of
payment of fine and one year rigorous
imprisonment under section 148 IPC.

2. Wrapping the facts in brief,
complainant alongwith his brother Krishna
Behari @ Krishna (deceased) was going for
bandage to Ganj Bazar, as deceased had
sustained sprain in his foot. When they
reached near the shop of Dr. Nisar at about
12.30 p.m. the accused Rajkumar @ Babu
son of Bhabhuti armed with Ballam, his
brother Jagannath armed with Kanta, Mullu
son of Jagannath armed with Banka and
Dinesh son of Kameshwar armed with gun,
dragged the deceased and reached in front
12 All. Raj Kumar & Ors. Vs. State of U.P.
113
of liquor shop, where Kameshwar Pradhan
son of Raghuveer armed with Banka, his
brother Ram Autar having Lathi, Kaushal
Kishore @ Karna son of Ram Autar having
Banka, Ram Lakhan son of Shriram armed
with gun and his brother Kanshiram having
Katta(pistol) and Sriram son of Jagnu
armed with Gandasa were standing. The
accused Kameshwar Pradhan sought and
abated to kill the deceased by severing the
head of the deceased. Thereafter all the
accused assaulted collectively on deceased
with the arms in their hands. The
complainant raised alarm then Om Prakash
son of Ram Gopal, Virendra @ Babu son of
Jai Daya, Chandrika son of Matadeen,
Premsagar son of Channu Lal, Darbari Lal
son of Asharfi Lal, Mangu Lal son of
Rameshwar reached and witnessed the
incident. They raised alarm, then the
accused aimed the gun at them and
threatened them to kill if they come
forward, therefore, the complainant could
not save the deceased. The accused severed
the head of his brother (deceased). The
accused Kameshwar Pradhan picked up the
severed head and remaining accused
dragged the body of deceased by his legs
towards the field via road and grove of
Vednath Taula. They followed the accused
to some distance. Many villagers gathered
there and the accused ablazed the dead
body of the deceased. Elder brother of the
complainant Pyare Lal and the ladies of his
house and other villagers arrived and
challenged the accused at the spot, then the
accused took to their heels towards the field
of sugar cane. The complainant Radhey
Shyam and others extinguished the fire and
took out the body and the head of deceased
Krishna Behari @ Krishna from fire and
brought the dead body of deceased to his
home. It is also stated in the FIR that the
complainant and the deceased were named
in the murder of grand son Kameshwar
Pradhan and the son of his brother-in-law
(Sadhu) namely Subhkaran and they had
previous enmity on this account with the
accused.

3. On the basis of written report (Ex.
Ka-1), a case of murder was registered on
G.D. No.20(Ex. Ka-2) on 05.02.1979 at
14.00
p.m.
The
investigation
was
conducted by S.I. Shesh Ram Singh. He
reached on the spot at 3.15 p.m. conducted
inquest proceedings and prepared inquest
report (Ex. Ka-6). Sealed the dead body
and handed it over to Constable Ram
Prasad at 4.15 p.m. He prepared Challan
Lash (Ex. Ka-7), Photo Lash (Ex. Ka-8),
Sample of the seal (Ex. Ka-9) and letter to
the C.M.O. (Ex. Ka-10), inquest report and
the copy of the FIR (Ex. Ka-11) and handed
over these documents to the constable. The
special report of the occurrence was
forwarded from the police station at 2.50
p.m. through constable Rameshwar Prasad
vide
G.D.
No.21(Ex.
Ka-23).
The
investigating officer, S.I. Shesh Ram Singh
recorded the statement of witnesses at
police station and sent other police force in
the search of the accused persons and he
himself proceeded to inspect the place of
occurrence. Prepared site plan (Ex. Ka-16)
on the pointing out of complainant.
Collected ash of the leaves from the field of
Ram Sagar, sealed it and prepared recovery
memo (Ex. Ka-12), prepared the recovery
memo of unburnt leaves (Ex. Ka-14),
collected blood stained and plain earth
from the place of occurrence, sealed and
prepared recovery memo (Ex. Ka-13),
collected blood stained and semi burnt
clothes of deceased, sealed the same and
prepared recovery memo (Ex. Ka-15) and
then recorded the statements of Om
Prakash, Darbari Lal, Satrohan Lal, Pyare
Lal, Surajdin, Chandrika Mangu Lal and
Virendra. The investigating officer also
114 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded the statements of Premsagar and
Pyare Lal. However, the statements of
Nisar and other shop keeper could not be
recorded at that time due to their
unavailability. The statements of Kamla
Devi, Smt. Rajrani, Swami Dayal, Ram
Sahai, Ved Nath Taula, Nisar Ahmad,
Mewa Lal, Ram Sagar and Chedu were
also
recorded
later
on
during
the
investigation.
After
recording
the
statements of witnesses and collecting
sufficient evidence against the accused
persons, adopting the result of postmortem
report, the charge sheet has been submitted
by the investigating officer in the court.

4. Trial court framed the charges
against the accused under sections 147.
148, 302, 201, IPC against all the 10
accused persons. The accused abjured from
the charges and claimed to be tried.

5. The prosecution examined 10
witnesses in support of prosecution case.
P.W.-1, Radhey Shyam, P.W.-4 Premsagar
and P.W.-5, Virendra, are witnesses of facts.
P.W.-3 Dr. R. V. Singh, P.W.-2 Head
Constable Bansi Lal, who registered the
case, P.W.-6 Ram Autar Singh, A.S.I., who
received the case property in the Malkhana
and had issued it for being sent to chemical
examiner, P.W.-7 Constable Ram Prakash,
who carried the dead-body to the mortuary,
P.W.-8 Constable Ayodhya Prasad, who had
deposited the case property in the Sadar
Malkhana, P.W.-9 Sri V. K. Tandon, Clerk
of Sadar Hospital, who sent the case
property for the Chemical Examination.
P.W.-10
Shesh
Ram
Singh,
who
investigated the case. After conclusion of
the prosecution witlessness the statement of
accused were recorded under section 313
Cr.P.C. Only one witness i.e. D.W.-1
constable Harishankar Mishra was adduced
in defence evidence. During the trial the
accused Dinesh son of Kameshwar had
expired and the case was abated against
him.

6. Having perused the evidence on
record
and
hearing
the
submissions
advanced by the State Counsel and the
counsel for the accused, the trial court
reached to the conclusion that complainant
Radhey Shyam who was with the deceased
could
not
commit
a
mistake
in
identification of accused, as they were
armed with Gun, Banka, Kanta and Ballam.
These weapons can account for all the
injuries found at the person of deceased. As
regard to the assailants the evidence is
consistent that accused were in front of
liquor shop and had participated in the
assault. It was also concluded that even
though there were reliable evidence that
there were number of assailants who were
loaded with gun and involved in firing.
There is reasonable doubt that those
assailants included the other six also
besides Ram Kumar, Jagannath, Mullu and
Dinesh, therefore, learned trial court
acquitted six of the assailants Ram Autar,
Kaushal Kishor, Ram Lakhan, Kashiram,
Kameshwar and Shri Ram, of the charges
levelled against them and convicted to the
accused Raj Kumar, Mullu and Jagannath
of the charges under sections 149 read with
section 302 IPC and section 148 IPC.
Accused Dinesh expired during the course
of trial & case was abated against accused
Dinesh. Aggrieved with the judgment and
order dated 27.08.1982 passed by learned
trial court, the present appeal is filed.

7. We have heard the submissions of
Sri R. N. S. Chauhan, learned counsel for
the appellants and Ms. Smiti Sahay, learned
Additional Government Advocate for the
State and perused the material brought on
record.
12 All. Raj Kumar & Ors. Vs. State of U.P.
115

8. Learned counsel for the appellants
argued that the statements of witnesses are
contradictory inter se and medical evidence
do not corroborate the oral evidence. The
appellants
are
innocent
and
falsely
implicated in the case. The sentence
awarded to them is too severe and improportionate to the crime. Therefore it is
prayed to allow the appeal and acquit the
appellants.

9. On the other hand, contrary to it the
learned AGA for the State-respondent
vehemently opposed and argued that this is
case of very brutal murder and all the
accused armed with Gun, Banka, Kanta and
Ballam assaulted the deceased, as they have
a suspicion that the deceased murdered the
grand son of village pradhan Kameshwar.
The head of deceased was severed from his
body and holding the severed head in his
hand, accused Kameshwar wandered in
whole of the village along road and grove
and the remaining part of dead body was
dragged with legs by the other assailants.
Therefore, the judgment passed by the
learned trial court is in consonance with the
evidence on record. Therefore, it is prayed
to reject the appeal filed by the appellants.

10. To recapitulate the evidence
produced by the prosecution, P.W.-1, the
complainant Radhey Shyam, witnesses
P.W.-4 Premsagar and P.W.-5 Virendra have
stated that the deceased was going to the
shop of Dr. Nisar Ahmad for bandage at
about 12.30 p.m., when the complainant
alongwith his brother Krishna Bihari (now
deceased) reached in front of the shop of
Dr. Nisar Ahmad, the accused Raj Kumar,
Jagannath, Mullu and Dinesh reached. The
accused Raj Kumar with Ballam, Jagannath
with Kanta, Mullu with Banka and Dinesh
with gun, assaulted collectively upon the
Krishna Bihari (deceased), severed his head
from the body, the head and body was put
on fire and set-ablazed, it is to be examined
as to how far the prosecution case is
corroborated by medical evidences. P.W.-3
Dr. R. B. Singh conducted autopsy on the
dead-body of the deceased and found
following injuries on his person:-

"1. Incised wound 5 cm. x 1.5
cm. x bone deep on the left side of top of
head, 5.5 cm. above the left eye brow.

2. Fire arm wound of entry 4 cm.
x 3 cm. x bone deep on the left eye,
margins were ragged.

3. Fire arm wound multiple in
number in an area of 5 cm. x 5 cm. around
injury no.2, each measuring 0.2 cm. x 0.2
cm. x skin deep.

4. Lacerated wound 3.5 cm. x 1.5
cm. x bone on the right side of the back of
the head, 9.5c.m. behind the right ear.

5. Incised wound 10 cm. x 1.5
cm. x bone deep (cut) starting behind the
right ear from the head.

6. Incised wound 10 cm. X 1.5
cm. x bone deep (cut) on the back side of
head and 0.5 below injury no.5.

7. Incised wound (with four
blows) 19 cm. x 14 cm. x thickness,
starting from occipital bone to lower border
of lower jaw, head severed from the neck of
the the level of second, cervical vertebra
(body cut) wound smeared in dust and
earth.

8. Incised wound 18 cm. x 13 cm.
joint thickness of neck, body of second
cervical vertebra cut.

9. Incised wound 9 cm. x 2 cm. x
bone deed in front of neck 5 cm. below
injury no.8.

10. Incised wound 12 cm. x 2 cm.
x muscle deep, the left side of neck, 1 cm.
below injury no.1.

11. 5 incised wounds all muscle
deep in an area of 13 cm. x 9 cm. on the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
back of neck, all place one blow the other,
largest one was 10 cm. x 1.5 c.m. x muscle
deep and the smallest was 8.3 c.m. x 1.5
c.m. x muscle deep.

12. Incised wound on the top of
right shoulder 5 cm. x 2 cm. x muscle deep.

13. Stab wound 1.5 cm. x 1 cm. x
cavity deep in front of abdomen 5 cm.
above amblicus.

14. Punctured wound 1 cm. x 1
cm. x bone in the mid-line of back, 1 cm.
above the lumbo sacrel joint.

15. Multiple abrasion in front of
chest and abdomen in an area of 28 cm. x
23 cm.

He further stated that on internal
examination he found the following facts:-

Occipital, right temporal bones
with linear fracture and frontal bone was
fracture into pieces. The brain membrance
was lacerated, brain membrance in the
frontal lobe was lacerated, 7 pellets were
plunged in the brain and were recovered,
right middle and left anterior cranial foesa
were fractured. Second vertebra of neck
was cut. The spinal cord was wholly cut at
the level of second vertebra of neck. The
larynx, trachea, and the neck vessels were
cut. The abdomen peritonium etc. were
punctured, mesentery was lacerated and
there was 1 pound blood in the cavity.
There was 80 ounce food in the stomach
and the stomach was perforated near the
pyloric end. The small intestine was full.
The large intestine and the rectum were
empty. The doctor was of the opinion that
the death was the result of shock and
haemorrhage due to the above mentioned
injuries."

According to the doctor, after
death there were burns on the head and the
body, pubic hair, eye brows and scalp hair
etc. and head was blackened by smoke. The
head was severed from the body at the level
of second neck vertebra.

11. P.W.-2 Constable Banshilal
appeared and deposed in the court and
proved G.D. No.21, time 14.50 p.m. dated
05.02.1979 (Ex. Ka-3). P.W.-6 Assistant
Sub-Inspector Ram Autar Singh appeared
in the court and has stated that the case
property of the deceased was submitted by
Constable Ayodhya Prasad to the Malkhana
and it was send for chemical examination
by the same constable Ayodhya Prasad. The
witness proved the entry of the case in
register at Sl. No.402. P.W.-7 Constable
No.494 Ram Prasad deposed in court that
he received the dead body of the deceased
Krishna in sealed condition and submitted
it alongwith requisite papers to the Police
Line Sitapur, which was entered in
G.D.No.22 at 10.30 a.m. on 06.02.1979.
The dead body remained in sealed
condition during the period it was in his
custody. P.W.-8 Ayodhya Prasad deposed in
the court that he has submitted the case
property in Sadar Malkhana and resubmitted it in C.M.O. Office Sitapur and
the case property remained in sealed
condition during this period. P.W.-9 V.K.
Tandon, the clerk in District Hospital
Sitapurt appeared and deposed in the court
that he received the case property in sealed
condition from C.P. No.366 Ayodhya
Prasad and send the same for chemical
examination to Agra through railway
department. P.W.-10, Sub-inspector Shri
Shesh Ram Singh appeared in court and
proved the FIR Ex. Ka-1, inquest report
(Ex. Ka-6), Challan Lash (Ex. Ka-7), Photo
Lash (Ex. Ka-8), Sample of the seal (Ex.
Ka-9) and letter to the C.M.O.(Ex. Ka-10),
copy of chek report (Ex. Ka-11), Ex. Ka-6
to Ka-11 and handed over these documents.
Witness proved recovery memo of cloths
Ex. Ka-12 and half burnt leaves and clothes
of the deceased Ex.Ka-14. Recovery memo
of half burnt pieces of Tahmad, shirt, blood
stain vest of deceased, Ex. Ka-15 and
12 All. Raj Kumar & Ors. Vs. State of U.P.
117
material exhibit as well. P.W.-10 proved
site plain Ex. Ka-16 and also proved the
charge sheet Ex. Ka-17 as a secondary
evidence. It transpires from the FIR that
incident took place in broad day light at
12.30 p.m. on 05.02.1979 and the report
was lodged orally at 14.00 p.m. on the
same day.

12. The distance between the place of
occurrence and the police station is 5 Km.,
therefore, there is no delay in lodging the
FIR. From the contents of FIR it is also
clear that accused Rajkumar, Jagannath,
Mullu and Dinesh are named in the FIR
itself. The role assigned to Kameshwar
Pradhan, Ram Auta, Kaushal Kishor, Ram
Lakhan, Shri Ram and Kashiram is of
exhortation.

13. It argued on behalf of appellant
that the time of death is not ascertained by
the evidence of prosecution and the time of
death could vary by six hours. In this
contest it is pertinent to mention that the
FIR of the incident was lodged at police
station at 14.00 p.m., inquest was started at
15.15 p.m. and concluded at 16.15. p.m.
The postmortem of the deceased was
conducted on 06.02.1979 at 11.00 a.m. at
District Hospital, Sitapur. P.W.-3 Dr. R. V.
Singh
deposed
that
he
conducted
postmortem of the deceased at 11.00 p.m.
on 06.02.1979. In his cross examination
P.W.-3 stated that dead body had arrived at
10.00 a.m. on 06.02.1979. Duration of time
of death may vary six hours either way. As
per postmortem report small intestine was
filled with faecal matter and large intestine
and rectum were empty. It is argued that if
the death of deceased is presumed at 12.30
p.m. then he must have taken food before
six hours prior to his death. Without
entering to the petty controversy we are of
the view that the prosecution version is
corroborated by medical report, regarding
the date and time of the death of deceased
at about 12.30 a.m. to 1.00 a.m. on
05.02.1979. Learned counsel for the
appellant further argued that the place of
occurrence is not fixed by prosecution.
From the FIR version itself it is clear that
the incident occurred in front of the shop of
Dr. Nisar Ahmad. It transpires from the site
plan that deceased was caught by the
accused from road in front of the shop of
Dr. Nisar Ahmad and severed the head of
deceased in front of liquor shop. P.W.-10
deposed in court that he collected blood
stain and plain earth from the place shown
in his map by letter-B. The deceased was
dragged by his legs along the road and
blood was collected by the investigating
officer from the place shown in his map by
letter-C. Investigating officer also shown
the place-D in site plan where dead body
and severed head was lying in the field of
Ram Sagar. Thus there is no doubt in the
place of occurrence, as the plain earth and
blood
stain
earth
was
collected
by
investigating officer from the places B and
C shown in the map and recovered the
body from place D. There are four places of
occurrence. "A"- The point where the
deceased was caught, "B"- where the
deceased was murdered, "C"- where the
blood was found and dead body of
deceased was dragged, "D"- where the
deceased was set-ablazed, and all the four
points were proved by witnesses. The blood
stained and plain material of Kharanja (Ex.
Ka-8, 9, 10 and 11) were produced and
proved in the trial court. The material
collected
was
send
for
chemical
examination. The chemical report Ex. Ka-5
is on record, as per FSL report human
blood was found on the piece of Tahmad,
Baniyan and blood stain earth. The witness
stated that he found blood stains in the field
of Ram Sagar and as per Ex. Ka-5, the
118 INDIAN LAW REPORTS ALLAHABAD SERIES
large quantity of blood was found in blood
stain earth, which was collected from the
fields of Ram Sagar. Therefore, the
prosecution proved by ample evidence that
Krishna Bihari (deceased) was caught from
road side in front of the shop of Dr. Nisar
Ahmad, dragged by accused to the shop of
liquor and his head was chopped at place
"B' and as it is the prosecution case that
accused dragged him from the legs along
the road and in front of north western
corner of the grove of Vednath Taula and
finally took him to the fields of Ram Sagar
and set his dead body and head ablazed.

14. It is version of prosecution case
that the deceased was assaulted by Ballam,
Kanta, Banka and Gun by the accused.
P.W.-1, 4 and 5 are the witnesses of facts
proved the prosecution case in this regard,
which is further corroborated by medical
evidence. As per postmortem report Ex.
Ka-4, 7 pellets were recovered from the
body of the deceased, which were sent to
S.P. Sitapur in sealed cover through the
accompanying constable. Occipital and
right temporal bone was found linearly
fractured and frontal bone fractured in
pieces. The membrane of head were
lacerated and the brain membrane in the
frontal lobe was lacerated and pellets were
recovered from brain. As per postmortem
report the second cervical vertebra was cut.
The spinal cord was also cut at the level of
second cervical vertebra. The larynx,
trachea and neck vessels were also found
cut. Punctured wound were found in the
whole peritoneum in cavity of abdomen.
Stab wound 1.5 cm. x 1 cm. cavity deep
and puncture wound of 1 cm. x 1 cm. bone
is also detected by doctor at the time of
postmortem.
The
injury
stated
by
prosecution witness is fully corroborated by
the medical evidence and it is fully proved
that sharp edged weapon, pointed weapon,
fire arm weapons were used to cause the
death of deceased. Doctor opined that the
death of deceased was due to shock and
hemorrhage as a result of antemortem
injuries. In the external examination it is
opined by the doctor that left side lacerated
head blackened due to smoke, body
senured in dust, scalp hair and left eye
brow were burnt and charring on head,
right and left forearms lower neck and back
pubic hair and head separated from the
body at the level of second cervical
vertebra.

15. P.W.-10 Shri Shish Ram Singh
stated that he found the head of Krishna
Bihari severed from the body when he
visited the fields of Ram Sagar, after
lodging of the FIR and he found the
injuries, corresponding to the injuries
noticed by the doctor and the burn injuries
were also found on the body and head.
Therefore, there is no scope to dispute that
the deceased was killed in some other
manner, than that of prosecution case and
evidence of prosecution established beyond
any shadow of doubt that the deceased was
assaulted with sharp edged, pointed, blunt
object and was also fired by the appellantaccused.

16. It is also argued on behalf of
appellants
that
bare
reading
of
the
statement of P.W.-4 and P.W.-5 shows that
the witnesses were not present on the spot
at the time of occurrence and they appeared
and deposed before the court because they
are interested witnesses and P.W.-1 is real
brother of deceased, other witnesses are
close relative to the deceased and their
presence at the spot is only by the chance.s

17. We have to go through the
veracity of witnesses and further to the
facts whether their evidence is liable to be
12 All. Raj Kumar & Ors. Vs. State of U.P.
119
thrown away at the very outset. There are
various guidelines of Hon'ble Supreme
Court on this point.

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

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

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

In this case, the Court further
observed as under:

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause such an enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative would
be the last to screen the real culprit and
falsely implicate an innocent person. It is
true, when feelings run high and there is
personal cause for enmity, that there is
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth.

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

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

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

"26. A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative would
be the last to screen the real culprit and
falsely implicate an innocent person..."

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

"23. We are of the considered
view that in cases where the Court is called
upon to deal with the evidence of the
interested witnesses, the approach of the
Court while appreciating the evidence of
such witnesses must not be pedantic. The
Court must be cautious in appreciating and
accepting the evidence given by the
interested witnesses but the Court must not
be suspicious of such evidence. The
primary endeavour of the Court must be to
look for consistency. The evidence of a
witnesses cannot be ignored or shown out
solely because it comes from the mouth of a
person who is closely related to the victim."

19. In the preview of above case law,
it is to be analyzed whether the witnesses
produced are interested witnesses and they
could not be relied upon. According to FIR
deceased was going with his brother, P.W.-
1 Radhey Shyam when he was dragged by
the
accused-appellants
and
murdered
brutally. Radhey Shyam is brother of
deceased, his evidence could not be thrown
aside merely on the ground that he is
brother of deceased. He categorically
explained how the accused dragged his
brother Krishna (deceased), severed his
head and again dragged the body and head
towards the field of Ram Sagar. P.W.-1
stated that Kameshwar Pradhan exhorted to
severe the head of the deceased and all the
accused started beating the deceased with
their arms. He could not save the deceased
due the fear. Accused dragged the body of
his brother from legs towards the field of
Ram Sagar, he could do nothing except
following his brother alongwith his family
members. His brother Pyare Lal, ladies of
the house and others relatives were
weeping and following the dead body. The
manner in which murder is committed
leads to the conclusion that no independent
witness can dare to come forward and
deposed in the court against appellants.
Therefore, in these circumstances it is not
expectation of law to demand corroboration
of evidence by independent witness or
villager. Thus the evidence of P.W.-1 is
natural and reliable.

20. It is argued that P.W.-4 Premsagar
was co-accused with the deceased in the
murder of grand son Kameshwar Pradhan
12 All. Raj Kumar & Ors. Vs. State of U.P.
121
and the son of his brother-in-law (Sadhu)
namely Subhkaran
and, therefore, he
deposed against the accused-appellants, but
this argument is not tenable, as P.W.-4 stated
that he was near the shop of Dr. Nisar
Ahmad, accused Dinesh, Mullu, Raj Kumar
and Jagannath, was standing there. As soon
as the deceased reached there all the accused
caught and dragged the Krishna (deceased)
and severed his head near the liquor shop.
During the cross examination too the
witness
corroborated
the
incident,
in
consonance with the evidence of P.W.-1
Radhey Shyam. There is no material
contradictions in the evidence of P.W.-1 and
P.W.-4. Therefore, the evidence of P.W.-4
cannot be discarded only on the ground that
he was inimical witness and co-accused in
the murder of grand son Kameshwar
Pradhan and the son of his brother-inlaw(Sadhu) namely Subhkaran. The learned
trial court however was reluctant to rely
upon the evidences of P.W.-4 Virendra and
P.W.-5 Premsagar, but there is no material
contradictions in the statement of P.W.-4 and
P.W.-5. It is also pertinent to mention here
that the police arrived at the place of
occurrence when the dead body was set to
fire by the accused-appellants in the fields of
Ram Sagar and the police officials recovered
the body of deceased in semi burnt stage.
The head of deceased was found separated
from the body. The murder has taken place a
broad day light in the noon that too on main
road in main market. The numbers of
injuries of various weapons were found on
the body of deceased and the use of various
weapons was confirmed by the witness of
facts. It is also evident from the evidence on
record that the accused were more than five
in numbers and they have motive to murder,
as the deceased was accused in the murder
of grand son Kameshwar Pradhan and the
son of his brother-in-law (Sadhu) namely
Subhkaran.

21. Prosecution proved, motive, place
of occurrence and injuries on the corpse of
deceased by the cogent evidence. Injuries
are corroborated by the witnesses of fact
and doctor. Accused-appellants are said to
have used Gun, Banka, Kanta and Ballam
in the incident and the injuries of all the
four arms are found on the body of
deceased. Severed head of deceased and the
body separated were recovered in the semi
burned condition in the field of Ram Sagar.

22. Learned trial court has given very
clear and convincing reasoning elucidated
all the evidences. There is no infirmity or
perversity in the judgment and order passed
by learned trial court, hence we do not find
any ground to intervene in the judgment
and order dated 28.08.1982 passed by
learned trial court in Sessions Trial No.100
of
1980,
whereby
convicting
and
sentencing the accused Raj Kumar, Mullu
and Jagannath to rigorous imprisonment for
life and fine of Rs.1000/- each under
section 149 read with section 302 IPC,
rigorous imprisonment of six months in
default of payment of fine and one year
rigorous imprisonment under section 148
IPC.

23. Accused Dinesh expired during
the course of trial and the case has already
been abated by the learned trial court.
Appellant no.1 Raj Kumar @ Babu and
appellant no.3 Mullu have died ten years
back, as per report dated 24.08.2016 of
Chief
Judicial
Magistrate,
Sitapur.
Therefore appeal is dismissed as abated
against the appeallnt no.1 Raj Kumar @
Babu and appellant no.3 Mullu vide order
dated 05.09.2016. Therefore, at the stage of
appeal only appellant no.2 Jagannath
survived and the judgment of trial court is
upheld only with regard to the appellant
no.2 Jagannath.
122 INDIAN LAW REPORTS ALLAHABAD SERIES

24. On the basis of above discussion,
the appeal filed by the appellant Jagannath is
liable to be dismissed and is accordingly
dismissed.

25. Accused appellant no.2 Jagannath is
directed to surrender before the court
concerned with 15 days from today. Failing
which the appellant Jagannath shall be taken
into custody by the court concerned and sent
him to jail to serve out the sentence awarded
by the trial court and confirmed by this Court.

26. Let the copy of judgment and order
as well as the records of trial court be
transmitted to the trial court concerned
forthwith for necessary information and
compliance of this order.
----------
(2022) 12 ILRA 122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2022

BEFORE

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

Criminal Appeal No. 1318 of 2007

Ajab Narain Baranwal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sheo Prakash Singh, Aditya Narayan,
Anurag Tilhari, Brij Mohan Sahai, Dashrath
Singh, Kapil Misra, Nagendra Mohan, RP
Misra, R.B.S. Rathaur, Rajendra Prasad
Mishra, S.S. Mishra, Shiv Shankar Mishra

Counsel for the Respondent:
Govt. Advocate, Amarjeet Singh Rakhra,
S.P. Pandey, Santosh Bhatt

A.