# Raja Hussain v. State

- **Citation:** (2019) 1 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raja-hussain-v-state-44463
- **Pages:** 16

## Headnote

A. Section 134 Evidence Act. - Non
examination of all witnesses - Legal
position - it is well settled principle of
law that it is not necessary for the
prosecution to produce all the witnesses
in support its case. Quality of witnesses
is material not the quantity of witnesses.
Time honoured principle is that evidence
has to be weighed and not counted. Test
is whether evidence has a ring of truth,
cogent, credible and trustworthy or
otherwise. (Para 36 & 37)

B. It is settled that merely because
witnesses are close relatives of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is
not a factor that affects credibility of
witness, more so, a relative would not
conceal the actual culprit and make
allegation against an innocent person.
(Para 45)

C. Direct evidence, worthy of credence.
Then
motive
does
not
carry
much
weight. Thus, merely because that there
was no strong motive to commit the
offence, prosecution case cannot be
disbelieved.(Para 46)

D. Delay in lodging FIR - duly explained.
No adverse inference can be drawn
1 All. Ashok Vs. Stae of U.P.
355
against
prosecution
merely
on
the
ground that the FIR was lodged with
delay. There is no hard and fast rule that
any length of delay in lodging FIR 16
would
automatically
render
the
prosecution case doubtful. (Para 49)

Conviction upheld. Jail Appeal dismissed.

Chronological list of Cases Cited: -

## Text

_Characters 0–39,983 of 51,198. This is a partial read: ask again with offset=39983 for what follows._

354 INDIAN LAW REPORTS ALLAHABAD SERIES
tothis witness. Hence, this witness is
hearsay witness.

26. DW-4 is Shushila @ Shsashi Devi,
wife of convict-appellant Ashok. She, in her
Examination-in-Chief, has said that her
husband was taken by police on 5.11.2004
from her home. A telegram to National
Human Right Commission was sent by her.
Subsequently, it came to notice that accused
has been challaned by S.O. Jagdishpura. In
cross-examination this witness has said that
she is illiterate lady, not aware of date and
time of arrest or sending of telegram. She is
not aware of her date of birth. Her husband
was taken on 5th but not under her
knowledge of month or year. Her testimony
is not with force for creating doubt in a
proved case of prosecution.

27.

Upon
above
facts
and
circumstances and testimony, learned
Trial Court passed impugned judgment of
conviction and order of sentence. There
occurred no failure in appreciation of law,
evidence and facts placed before the
Court. Thereby this appeal merits its
dismissal.

28. Accordingly, this Criminal
Appeal is dismissed.

29. Convict-appellant Ashok Kumar
who is on bail is being directed to
surrender before learned Trial Court
within 15 days of judgment, from where
he shall be taken in custody by learned
Trial Court and be sent for suffering
remaining sentence.

30. Record of trial Court along with
certified copy of the judgment be
transmitted to learned Trial Court at an
earliest, for follow up.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

JAIL APPEAL No. 5632 OF 2007

Raja Hussain ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Ms. Nishi Mehrotra (A.C.)

Counsel for the Opposite Party:
Sri Rishi Chadha (A.G.A.)

A. Section 134 Evidence Act. - Non
examination of all witnesses - Legal
position - it is well settled principle of
law that it is not necessary for the
prosecution to produce all the witnesses
in support its case. Quality of witnesses
is material not the quantity of witnesses.
Time honoured principle is that evidence
has to be weighed and not counted. Test
is whether evidence has a ring of truth,
cogent, credible and trustworthy or
otherwise. (Para 36 & 37)

B. It is settled that merely because
witnesses are close relatives of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is
not a factor that affects credibility of
witness, more so, a relative would not
conceal the actual culprit and make
allegation against an innocent person.
(Para 45)

C. Direct evidence, worthy of credence.
Then
motive
does
not
carry
much
weight. Thus, merely because that there
was no strong motive to commit the
offence, prosecution case cannot be
disbelieved.(Para 46)

D. Delay in lodging FIR - duly explained.
No adverse inference can be drawn
1 All. Ashok Vs. Stae of U.P.
355
against
prosecution
merely
on
the
ground that the FIR was lodged with
delay. There is no hard and fast rule that
any length of delay in lodging FIR 16
would
automatically
render
the
prosecution case doubtful. (Para 49)

Conviction upheld. Jail Appeal dismissed.

Chronological list of Cases Cited: -

1. Namdeo v. State of Maharashtra (2007) 14
SCC 150,

2. Kunju @ Balachandran vs. State of Tamil
Nadu, AIR 2008 SC 1381,

3. Jagdish Prasad vs. State of M.P., AIR 1994
SC 1251,

4. Vadivelu Thevar vs. State of Madras, AIR
1957 SC 614,

5. Yakub Ismailbhai Patel Vs. State of Gunjrat
reported in (2004) 12 SCC 229,

6. State of Haryana v. Inder Singh and Ors.
reported in (2002) 9 SCC 537,
7. Dalip Singh v. State of Punjab, AIR,1953, SC
364,

8. Dharnidhar v. State of UP (2010) 7 SCC
759,

9. Ganga Bhawani v. Rayapati Venkat Reddy
and Others, 2013(15) SCC 298,

10. Lokesh Shivakumar v. State of Karnataka,
(2012) 3 SCC 196

11. Ravinder Kumar &Anr. Vs. State of
Punjab", (2001) 7SCC 690,

12. Amar Singh Vs. Balwinder Singh &Ors.
(2003) 2 SCC 518,

13. Tara Singh V. State of Punjab AIR (1991)
SC 63,

14. Sahebrao &Anr. Vs. State of Maharashtra
(2006) 9 SCC 794,
15. Palani V State of Tamilnadu, Criminal
Appeal No. 1100 of 2009,

16. Sampath Kumar v. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124,

17. Sachin Kumar Singhraha v. State of
Madhya Pradesh in Criminal Appeal Nos. 473474 of 2019,

18. Criminal Appeal No. 56 of 2018, Smt.
Shamim v. State of (NCT of Delhi),

19. Inspector of Police v. Saravanan &Anr., AIR
2009 SC 152,

20. Arumugam v. State, AIR 2009 SC 331,

21. Mahendra Pratap Singh v. State of Uttar
Pradesh, (2009) 11 SCC 334;

22. Dr. Sunil Kumar Sambhudayal Gupta &Ors.
v. State of Maharashtra, JT 2010 (12) SC 287,

23. Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323,

24. Sham Sunder vs. Puran, (1990) 4 SCC 731,
25. M.P. v. Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175 (E-2)
(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. This jail appeal has been filed by
accused-appellant Raza Hussain through
Senior
Superintendent,
Central
Jail,
Varanasi against judgment and order
dated 04.03.2006 passed by Sri Alla
Rakkhey
Khan,
Additional
Sessions
Judge (FTC-I), Kushinagar at Padrauna in
Sessions Trial No.56 of 2002, (State
versus Raza Hussain), under Sections 302
and 324 IPC. By the impugned judgment
accused-appellant has been convicted
under Sections 302 and 324 IPC. Under
Section 302 IPC, he has been sentenced to
undergo life imprisonment along-with
fine of Rs.25,000/-. In the event of default
of payment of fine, he has to undergo
356 INDIAN LAW REPORTS ALLAHABAD SERIES
further one year's simple Imprisonment.
He has been sentenced to undergo three
years Rigorous Imprisonment, under
Section 324 IPC and also with a fine of
Rs.5,000/-. In case of default in payment
of
fine,
three
months
simple
Imprisonment has to be suffered by him.
Both the sentences have been directed to
run concurrently.

2. The facts emanating from Fist
Information Report (hereinafter referred
to as "FIR") and the material available on
record may briefly be stated as under for
adjudication of this appeal:-

3. Informant Abdul Hannan, PW-1 son
of Mukhtar Khan resident of village
Dhanauji Khurd was village Pradhan. On
10.02.1990 at about 10:00 P.M., Raza
Hussain younger brother of Abdul Haq son
of Rasheed Miyan had come from Gauhati,
(Assam) at the house of Abdul Haq. He
called Abdul Haq and when Abdul Haq
opened the door, Raza Hussain stabbed knife
in his stomach. When his wife Husna Bano
went to rescue him, accused stabbed her also
in her stomach. On hearing noise, Zahrul
Haq and his wife rushed to save them but
Raza Hussain assaulted Zahrul Haq also with
knife on his back. Thereafter, Raza Hussain
could succeed in fleeing away after throwing
the knife. On alarm being raised, Mohd.
Hussain, Khurshid and many other persons
of the village reached the place of occurrence
and
took
injured
persons
to
FazilnagarHospital,
where
they
were
medically examined. Noticing deteriorating
condition of injured persons, Informant and
others took them to DeoriaCivilHospital,
where
Doctors
referred
them
to
MedicalCollege, Gorakhpur. All the injured
were
then
taken
to
MedicalCollege,
Gorakhpur on 11.02.1990 in the morning.
Due to strike of Doctors, injured could be not
admitted or attended. Injured Smt. Husna
Bano died at 09:00 A.M. and Abdul Haq at
09:30 A.M. on 11.02.1990 in the Hospital.

4. Postmortem of Smt. Husna Bano
was conducted on 11.02.1990 and her last
rites
were
observed
in
the
Village.
Postmortem of Abdul Haq was conducted on
12.02.1990. Since family members and other
persons were busy in taking care of deceased
in Hospital, PW-1, Informant went to Police
Station Patherwa, District Deoria and handed
over written report Ex.Ka-1 containing
aforesaid details at the Police Station. On the
basis of written report Ex.Ka-1 filed by PW1 Abdul Hannan, chick FIR Ex.Ka-10 was
prepared and case under Section 302 and 324
I.P.C. was registered against accusedappellant Raza Hussain, on 12.12.1990 at
9:15 A.M.

5.

After registration of Case,
Investigation was initiated by PW-7 Prem
Singh Bist, the then Station Officer
(hereinafter referred to as 'SO') of Police
Station Patherwa, District Deoria. He rushed
to spot, recorded statement of PW-1 Abdul
Hannan, PW-2 Khurshid Alam, Amzad Ali,
Mohd. Hussain, Imtyaz Ali and Jamshed. On
indicating place of occurrence by witnesses,
Investigating Officer (hereinafter referred to
as 'IO') prepared site plan Ex.Ka-8. He took
in possession an earthen lamp (Dhibri) from
rooms of Abdul Haq and Zahrul Haq and
handed over the same in custody of Rashidan
and prepared recovery memo Ex.Ka-2.
Blood stained knife lying on the spot was
taken in possession, and sealed recovery
memo Ex.Ka-3 was prepared in respect
thereof. Thereafter, he recorded statements of
other witnesses and made efforts for
searching the accused.

6. PW-5 Dr. S.K. Sharma had
examined injured Abdul Haq (deceased)
1 All. Ashok Vs. Stae of U.P.
357
on 10.02.1990 at 11.30 P.M and prepared
injury
report
Ex.Ka-4.
He
found
following injuries on his person :-

Punctured wound 3 cm x 1.5 cm
x depth not measured, on the middle and
upper part of the right half of abdominal
wall, 4 cm away from middle and 17 cm
below right nipple. Pain and distension of
abdomen present, three stitches were
applied.
Referred
to
Surgeon,
DistrictHospital
Deoria
(suspected
peritonitis).

7. The same Doctor PW-5 had
examined
injured
Zahrul
Haq
on
10.02.1990 at 11.45 P.M and prepared
injury
report
Ex.Ka-5.
He
found
following injuries on his person :-

Punctured wound 3.5 cm x 1.5
cm x depth not measured, lying medial on
the middle of left half of back, 5 cm away
from midline and 20 cm below inferior
angle of left scapula. Referred to Surgeon,
DistrictHospital Deoria for opinion and
management. Three stitches were applied.

8. The same doctor PW-5 had also
examined injured Husna Bano (deceased)
on 10.02.1990 at 11.55 P.M and prepared
injury
report
Ex.Ka-6.
He
found
following injuries on her person :-

Punctured wound 3.5 cm x 1.5
cm x depth not measured, on the middle
and upper part of abdominal wall 2 cm
left to midline and 7 cm above the
umbilicus. Three stitches were applied.
Injuries to be kept under observation.
Referred to DistrictHospital, for Surgeon
opinion and management.

9. As stated above, Husna Bano and
Abdul Haq succumbed to their injuries in
the morning of 11.02.1990 in Hospital.

10. Autopsy on the dead body of
Husna Bano was conducted by PW-8 Dr.
O.N. Gupta on 11.02.1990 at 3:30 P.M.
According to him, deceased was aged about
30 years and of average body built; her eyes
and mouth were half closed; rigor mortis was
present in all four limbs. He found following
ante-mortem injuries on her person :-

1. A stitched wound of 11⁄2 cm
long with three stitches in the middle of
the epigastric region. On opening the
stitches the wound was found cavity deep,
stomach punctured in area of 1 cm x 1 cm
region. Stomach containing undigested
food which was coming out of wound of
stomach. About 11⁄2 liter of blood present
in Abdomenal cavity.

11. According to doctor Husna Bano
died due to hamarrage and shock as a
result
of
ante-mortem
injuries.
He
prepared autopsy report Ex.Ka-11-A.

12. Autopsy on the dead body of
Abdul Haq was conducted by Dr. P.N.
Pandey, PW-6 on 12.02.1990 at 5:00 P.M.
According to him, deceased was aged
about 35 years and of average built body;
rigor mortis was present all over the body
except upper limb; no decomposition;
eyes closed; mouth and face pale; nails
and lips livid. He found following antemortem injuries on his person :-

Stitched wound with 3 stitches
on the right side epigastrium 8 cm below
the lung right costal margin in mid
Clavicle bone. On opening, the wound
was cavity deep with clotted blood 3 Lbs
in peritoneal cavity. Omentum was cut
with the mesentery of the traversa
column, mesenteric and arotal vessals
cut, small cut mark 1⁄2 cm x 1⁄2 cm x lumen
deep on the lower part of transverse
column. A cut mark 1⁄2 cm x 1⁄2 cm x 1 cm
358 INDIAN LAW REPORTS ALLAHABAD SERIES
deep on the right Lobe of liver, anterior
aspect, clotted blood present.

13. In the opinion of doctor, death
had occurred due to hamarrage and shock
as a result of ante-mortem injuries. He
prepared postmortem report Ex.Ka.-7.

14.

After
conclusion
of
the
investigation, PW-7, Prem Singh, I.O.,
submitted charge-sheet Ex.Ka-09 in Court
against accused-appellant under Section
302 and 324 I.P.C.

15. CJM, Deoria took cognizance of
the offence against accused-appellant.
Case, being exclusively triable by Court
of Sessions, committed to Sessions Court
on 06.05.2002. It was registered as
Sessions Trial No.56 of 2002. Learned
Sessions Judge framed charges against
accused-appellant
on
25.02.2003
as
under:-

"I, D.P. Varshney, Sessions
Judge, Kushinagar at Padrauna do
hereby charge you Raza Hussain as
follows: -

Firstly - That on 10th February,
1990 at 22:00 hours at Village Dhanauji
Khurd lying within the local limits of
Police
Station
Pataherawa,
District
Kushinagar you committed murder of
Abdul Haq and his wife Hushbano and
thereby committed an offence punishable
under Section 302 IPC and within my
cognizance.

Secondly - That on the aforesaid
date, time and place, you also caused
knife injuries on the person of Jahirulhaq
and
thereby
committed
an
offence
punishable under Section 324 IPC and
within the cognizance.

And I hereby direct that you be
tried on the said charge."

16. Accused-appellant pleaded not
guilty and claimed trial.

17. In order to prove guilt of
accused, prosecution examined as many
as eleven witnesses, out of whom, PW-1
Abdul Hannan (Gram Pradhan), PW-2
Khursheed Alam, PW-3 Zahrul Haque,
PW-4 Nazma Khatoon (wife of Zahrul
Haque PW-3) are witnesses of fact. PW-5
to 11 are formal witnesses.

18. PW-5 Dr. S.K. Sharma had
initially examined injuries of deceased
Abdul Haque, injured Zahrul Haque and
deceased Husna Bano and proved injury
reports Ex.Ka-4, 5 and 6 respectively;
PW-6 Dr. P.N. Pandey, had conducted
postmortem on the dead body of Abdul
Haque and proved injury report Ex.Ka-7;
PW-8 Dr. O.N. Gupta had conducted
postmortem on the dead body of deceased
Husna Bano and proved postmortem
report Ex.Ka-11-A; PW-9 Tribhuwan is a
Ward-Boy, who had gone to Kotwali
Gorakhpur along with information papers
no. 14-Ka/9 and 14-Ka/2 with respect to
death of Abdul Haque and Husna Bano;
and PW-7 Prem Singh Bist is the I.O. and
has proved site plan Ex.Ka.-8, recovery
memo in respect of earthen lamp Ex.Ka-2,
as also Ex.Ka-3 recovery memo in respect
of blood stained knife. He has also proved
charge sheet Ex.Ka-9 and stated that he
recognizes
writing
and
signatures
of
Constable Moharrir Dev Nath Singh, who had
prepared Chick FIR Ex.Ka-10 and had made
entry in the G.D., a copy whereof is Ex.Ka-11.
PW-10 S.I. Mahendra Pratap Singh has
proved inquest Ex.Ka-12 in respect of
deceased Abdul Haque, Photo Nash Ex.Ka13, Chalan Nash Ex.Ka-14, Paper police form
no. 13 Ex.Ka-15 and request to C.M.O. for
post
mortem
Ex.Ka-16.
PW-11
C.P.
Manmohan Misra has proved handwriting
1 All. Ashok Vs. Stae of U.P.
359
and signatures of S.I. Shyam Nandan Singh,
who at the relevant time had visited the
hospital and prepared inquest Ex.Ka-17 in
respect of deceased Husna Bano. He has
stated that relevant documents Photo Nash
Ex.Ka-18, letter to C.M.O. to District Hospital
Ex.Ka-19, Chalan Nash Ex.Ka-20 and letter
to S.P. Ex.Ka-21 had been written and signed
by S.I. Shyam Nandan Singh.

19. After closure of prosecution
evidence, accused-appellant was examined
under Section 313 Cr.P.C. He has stated
prosecution story to be false and concocted
and that witnesses were deposing falsely.
Documents prepared by Police and Health
Department are stated to be false. According
to him in order to usurp the land of accusedappellant, Pradhan in connivance with
Pattidars of accused has got him implicated in
the false case. He has stated that he was not
present at his house.

20. On appreciation of evidence
available on record and after hearing both
the parties, learned Additional Sessions
Judge recorded the verdict of conviction
and
sentence
against
the
accusedappellant as stated above.

21. Feeling aggrieved, accusedappellant has approached this Court
through Senior Superintendent, Central
Jail, Varanasi assailing the impugned
judgement.

22. We have heard Ms. Nishi
Mehrotra, Amicus Curiae for appellant
and Sri Rishi Chaddha, learned AGA for
State at length and have gone through the
record
carefully
with
the
valuable
assistance of learned Counsel for parties.

23.

Leaned
Amicus
Curiae
appearing for accused-appellant assailed
the impugned judegment and order and
advanced arguments as under:-

(i) There is no eye witness of the
case. None has seen the real incident. PWs 1
and 2 themselves admitted that they have not
seen any person assaulting and they reached
on the spot after the real incident.

(ii) No independent witness has
been produced by prosecution. PW-4
Nazma Khatoon is wife of PW-3 Zahrul
Haq (injured) and she cannot be termed as
independent witness.

(iii)
No
other
witness
is
produced by prosecution whereas FIR
itself
recites
that
Mohd.
Hussain,
Khursheed and other villagers have
reached there. Mohd. Hussain is said to be
eye witness but she could not be produced
by prosecution, therefore, presumption
under Section 114(g) of Indian Evidence
Act, 1872 (hereinafter referred to as "Act,
1872") goes against prosecution.

(iv) There is no motive of
incident to accused to commit the present
crime.

(v) FIR has been lodged, two
days after the incident without any proper
explanation.

(vi)
There
are
major
contradiction
in
the
statement
of
witnesses
which
may
render
the
prosecution case doubtful.

(vii) Medical evidence does not
support the prosecution version.

(viii)
Prosecution
failed
to
establish its case beyond reasonable doubt
against accused and accused is entitled to
benefit of doubt and deserves acquittal.

24. Learned AGA for the State
opposed submissions of learned Amicus
Curiea
for
accused-appellant
and
contended that accused is named in the
FIR; he is brother of Abdul Haq; PW-3 is
360 INDIAN LAW REPORTS ALLAHABAD SERIES
injured witness and PW-4 is eye witness;
she, being wife of PW-3, is natural
witness; PW-3 is injured and his presence
cannot be doubted; Medical evidence is
totally compatible with ocular version;
prosecution proved its case beyond
reasonable doubt and Trial Court has
rightly
convicted
him.
He
sought
dismissal of appeal.

25. Although time, date and place of
occurrence, death of Abdul Haq and
Hushna Bano and injury of PW-3 could
not be disputed from the side of defence
but according to Advocate, he is not
responsible for causing death of Abdul
Haq and Hushna Bano. We find that
injuries found on the person of PW-3 are
established
by
prosecution.
Even
otherwise from the evidence of PWs 1 to
4 time, date and place of incident stands
established.

26. Only question remains for
consideration
is
"whether
accusedappellant committed murder of Abdul
Haq and Smt. Hushna Bano, and caused
injury to PW-3 Zahrul Haq by inflicting
knife; and Trial Court has rightly
convicted accused-appellant?"

27. Now, we would like to briefly
consider the statement of witnesses
examined by prosecution and some
important decisions on the point.

28. Point nos.1, 2 and 3 of
arguments made by learned Amicus
Curiae for appellant are being dealt
altogether.

29. PW-1 Abdul Hannan has deposed
that on the fateful day at about 10:00 PM
in the night, he was sleeping in his house.
Hearing shrikes of Abdul Haq, Zahrul Haq
and Husna Bano, he came out of his house
and reached there and saw that all the three
persons with knife injuries. They were
shouting that accused Raza Hussain has
assaulted them with knife. When Zahrul
Haq, PW-3 came to save them, accused
assaulted him with knife on the back.
Accused-appellant ran away from the spot
throwing knife. All the injured were taken
to PHC Fazilnagar, from where they were
referred to DistrictHospital, Deoria but in
Deoria hospital injured were not admitted
and referred to GorakhpurMedicalCollege.
Victim Husna Bano and Abdul Haq
succumbed to injuries. He has further
deposed that there was a dispute of
partition between accused and deceased
due to which accused committed murder of
his brother and his wife. PW-1 being
Pradhan of village presented written Tehrir
(Ex.Ka-1) in the police station concerned.
Witness has proved recovery of knife.
Witness stated in the cross-examination
that he has not seen anybody killing
deceased. In this way PW-1 is not an eye
witness of incident. He has proved other
circumstances
which
happened
after
incident.
Witness
stated
in
crossexamination that he has not seen any one
assaulting. He reached ten minutes after
the incident.

30. PW-2, Khurshid Alam deposed
that at about 10:00 PM in the fateful
night, he was sleeping in his house. On
hearing noise of villagers, he arrived at
spot and saw that beneath of Neem tree,
victim Abdul Haq, his wife Husna Bano
and one Zahrul Haq were injured. Abdul
Haq was shouting that Raza Hussain
stabbed knife to him and his wife Hushna
Bano. Abdul Haq and Hushna Bano
received knife injuries on stomach and
Zahrul Haq received knife injury on his
back. Incident was witnessed by PW-2
1 All. Ashok Vs. Stae of U.P.
361
himself and Mohd. Husain and other
villagers. It is further deposed by him that
Hushna Bano and Abdul Haq succumbed
to injuries in GorakhpurHospital. In crossexamination, he stated that he has not
seen any person inflicting knife. He has
arrived at spot after 6 - 7 minutes of
incident.

31. PWs 1 and 2 admitted in their
cross-examination that they were not
present on spot at the time of incident but
both told that when they reached on spot
injured Abdul Haq was shouting that
accused Raza Hussain assaulted him and
his wife Hushna Bano with knife. In this
way both the witnesses have not seen
actual incident.

32. PW-3, Zahrul Haq deposed that
on the fateful night at about 10:00 PM, on
hearing shrieks of Abdul Haq, he reached
the spot and saw that Raza Hussain was
inflicting knife blow to Abdul Haq. When
his wife Hushna Bano rushed to save her
husband, accused-appellant inflicted knife
blow to Hushna Bano also. When he
(witness) rushed to save them, accused
inflicted knife blow to him on his back.
Thereafter accused ran away from the
spot throwing knife at some distance.
Incident was seen by his wife Nazma
Khatoon and Mohd. Khurshid Hussain in
the light of lantern. All the injured
persons were taken to PHC Fazilnagar
where from they were referred to
DistrictHospital, Deoria. On that date,
there was a strike of doctors in Deoria
hospital, then injured were taken to
GorakhpurMedicalCollege
wherefrom
due to strike of doctors, they went to
DistrictHospital, Gorakhpur. On the next
day of incident Hushna Bano and Abdul
Haq succumbed to injuries. Due to enmity
regarding land, accused Raza Hussain
murdered his brother and his Bhabi (wife
of brother).

33. PW-4 Nazma Khatoon deposed
that in the fateful night at 10:00 PM, she
slept after taking meal. When she heard
noise, she woke up and rushed there and
saw that accused-appellant Raza Hussain
got opened the door of his brother Abdul
Haq. When Abdul Haq opened door,
accused-appellant Raza Hussain stabbed
the knife in the stomach of Abdul Haq.
Hushna Bano came to save her husband,
accused-appellant also stabbed knife in
her stomach. On the noise, she and her
husband rushed to save them, then
accused-appellant Raza Hussain inflicted
knife injuring on the back of her husband
and ran away from there throwing knife at
some distance. On the noise, Mohd
Hussain,
Khurshid
and
some
other
persons came there and took all three
injured persons to Government Hospital
Fazilnagar wherefrom they referred to
District Hospital Deoria, thereafter to
medical college, Gorakhpur but due to
non-availability of doctors, three injured
persons
were
admitted
to
District
Hospital, Gorakhpur where Abdul Haq
and Hushna Bano succumbed to injuries
on next date.

34. PWs 3 and 4 withstood lengthy
cross-examination but nothing material
could be brought so as to disbelieve their
statements on oath. PW-3 Zahrul Haq is
injured witness and PW-4 is an eye witness
and wife of PW-3. Both the witnesses have
supported prosecution case. PW-4 deposed
that on the shrieks of Abdul Haq, she
himself and her husband (PW-3) reached
the spot. PW-3 was injured in the same
incident and PW-4 being wife of PW-3 are
natural witnesses and their presence on
spot can not be doubted.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

35. From the statements of PWs 3
and
4,
injured
and
eye
witness
respectively and that of PWs 1 and 2 who
proved that when they reached on spot
Abdul Haq was shouting that Raza
Hussain assaulted them with knife, it is
established that accused Raza Hussain
assaulted Abdul Haq, Smt. Hushan Bano
and PW-3 Zahrul Haq by causing injuries
with knife. Later on Abdul Haq and Smt.
Hushna Bano succumbed to injuries.

36. So far as legal position for nonexamination of entire witnesses are
concerned, it is well settled principal of
law that it is not necessary for the
prosecution to prove all the witnesses in
support its case, quality of witnesses is
material not the quantity of witnesses. In
view of Section 134 of Act,1872, we do
not find any substance in the submission
of learned counsel for the appellant.
Section 134 of Act, 1872, reads as under:-

"134. Number of witnesses.-No
particular number of witnesses shall in
any case be required for the proof of any
fact."

37. Law is well-settled that as a
general rule, Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable. There is no legal
impediment in convicting a person on the
sole testimony of a single witness. That is
the logic of Section 134 of Act, 1872, but
if there are doubts about the testimony,
Court will insist on corroboration. In fact,
it is not the numbers, the quantity, but the
quality that is material. Time-honoured
principle is that evidence has to be
weighed and not counted. Test is whether
evidence has a ring of truth, cogent,
credible and trustworthy or otherwise.

38. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court
re-iterated the view observing that it is the
quality and not the quantity of evidence
which is material. Quantity of evidence
was never considered to be a test for
deciding a criminal trial and emphasis of
Court is always on quality of evidence.
The legal system has laid emphasis on
value, weight and quality of evidence
rather than on quantity, multiplicity or
plurality of witnesses. It is, therefore,
open to a competent court to fully and
completely rely on a solitary witness and
record conviction. Conversely, it may
acquit the accused in spite of testimony of
several witnesses if it is not satisfied
about the quality of evidence.

39. In Kunju @ Balachandran vs.
State of Tamil Nadu, AIR 2008 SC 1381
a similar view has been taken placing
reliance on earlier judgments including
Jagdish Prasad vs. State of M.P., AIR
1994 SC 1251; and Vadivelu Thevar vs.
State of Madras, AIR 1957 SC 614.

40. In Yakub Ismailbhai Patel Vs.
State of Gunjrat reported in (2004) 12
SCC 229, Court held that :-

"The legal position in respect of
the testimony of a solitay eyewitness is
well settled in a catena of judgments
inasmuch as this Court has always
reminded that in order to pass conviction
upon it, such a testimony must be of a
nature which inspires the confidence of
the Court. While looking into such
evidence this Court has always advocated
the
Rule
of
Caution
and
such
corroboration from other evidence and
even in the absence of corroboration if
testimony of such single eye-witness
1 All. Ashok Vs. Stae of U.P.
363
inspires confidence then conviction can
be based solely upon it."

41. In State of Haryana v. Inder
Singh and Ors. reported in (2002) 9
SCC 537, Court held that it is not the
quantity but the quality of the witnesses
which matters for determining the guilt or
innocence of the accused in the criminal
case. The testimony of a sole witness
must be confidence-inspiring, leaving no
doubt in the mind of the Court.

42. So far as question of interested
witness is concerned, it is now well
settled law laid down in Dalip Singh v.
State of Punjab, AIR,1953, SC 364,
where Court has held 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 generalisation. Each case must be
judged on its own 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."

43. In Dharnidhar v. State of UP
(2010) 7 SCC 759, Court has observed as
follows :-

"There is no hard and fast rule
that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the
Court. It will always depend upon the
facts and circumstances of a given case.
In the case of Jayabalan v. U.T. of
Pondicherry (2010) 1 SCC 199, this
Court had occasion to consider whether
the evidence of interested witnesses can
be relied upon. The Court took the view
that a pedantic approach cannot be
applied while dealing with the evidence of
an interested witness. Such evidence
cannot be ignored or thrown out solely
because it comes from a person closely
related to the victim"

44. In Ganga Bhawani v. Rayapati
Venkat Reddy and Others, 2013(15)
SCC 298, Court has 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: Bhagalool Lodh &Anr.
v. State of UP, AIR 2011 SC 2292; and
Dhari &Ors. v. State of U. P., AIR 2013
SC 308)."
364 INDIAN LAW REPORTS ALLAHABAD SERIES

45. It is settled that merely because
witnesses are close relatives of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is not
a factor that affects credibility of witness,
more so, a relative would not conceal the
actual culprit and make allegation against
an innocent person. However, in such a
case Court has to adopt a careful approach
and analyse the evidence to find out that
whether it is cogent and credible
evidence.

46. So far as motive is concerned, it
is well settled that where direct evidence
is worthy, it can be believed, then motive
does not carry much weight. It is also
notable that mind set of accused persons
differs from each other. Thus merely
because that there was no strong motive
to
commit
the
present
offence,
prosecution case cannot be disbelieved.
We do not find any substance in the
argument advanced by learned counsel for
appellants.

47. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
has held as under :-

"As regards motive, it is well
established that if the prosecution case is
fully established by reliable ocular
evidence coupled with medical evidence,
the issue of motive looses practically all
relevance. In this case, we find the ocular
evidence led in support of the prosecution
case wholly reliable and see no reason to
discard it."

48. So far as the question of delay in
lodging FIR is concerned, FIR itself
recites that all the three injured persons
were taken to FazilnagarHospital for
treatment, where they were medically
examined in the night. On seeing serious
condition of victims they were taken to
District Hospital, Deoria where from
Doctor referred the victims to Medical
College, Gorakhpur but due to strike of
Doctors they could not be admitted in
Medical College and they were got
admitted in District Hospital Gorakhpur.
On 13.02.1990, victim Hushna Bano
succumbed to injuries at 09:00 AM and
Abdul Haq breath the last at 09:30 AM in
the Hospital. In this way delay in FIR is
properly explained.

49. It is well settled, if delay in lodging
FIR has been explained from the evidence on
record, no adverse inference can be drawn
against prosecution merely on the ground that
the FIR was lodged with delay. There is no
hard and fast rule that any length of delay in
lodging FIR would automatically render the
prosecution case doubtful. In "Ravinder
Kumar &Anr. Vs. State of Punjab", (2001)
7SCC 690, Court has held;

"The attack on prosecution
cases on the ground of delay in lodging
FIR has almost bogged down as a
stereotyped redundancy in criminal cases.
It is a recurring feature in most of the
criminal cases that there would be some
delay in furnishing the first information to
the police. It has to be remembered that
law has not fixed any time for lodging the FIR.
Hence a delayed FIR is not illegal. Of course
a prompt and immediate lodging of the FIR is
the ideal as that would give the prosecution a
twin advantage. First is that it affords
commencement of the investigation without
any time lapse. Second is that it expels the
opportunity for any possible concoction of a
false version. Barring these two plus points
for a promptly lodged FIR the demerits of the
delayed FIR cannot operate as fatal to any
prosecution case. It cannot be overlooked that
1 All. Ashok Vs. Stae of U.P.
365
even a promptly FIR is not an unreserved
guarantee for the genuineness of the version
incorporated therein. When there is criticism
on the ground that FIR in a case was delayed
the court has to look at the reason why there
was such a delay. There can be a variety of
genuine causes for FIR lodgment to get
delayed. Rural people might be ignorant of
the need for informing the police of a crime
without any lapse of time. This kind of
unconversantness is not too uncommon
among urban people also. They might not
immediately think of going to the police
station. Another possibility is due to lack of
adequate transport facilities for the informers
to reach the police station. The third, which is
a quite common bearing, is that the kith and
kin of the deceased might take some
appreciable time to regain a certain level of
tranquility of mind or sedativeness of temper
for moving to the police station for the
purpose
of
furnishing
the
requisite
information. Yet another cause is the persons
who are supposed to give such information
themselves could be so physically impaired
that the police had to reach them on getting
some
nebulous
information
about
the
incident."

50. In Amar Singh Vs. Balwinder
Singh &Ors. (2003) 2 SCC 518, Court held :

"In our opinion, the period
which elapsed in lodging the FIR of the
incident has been fully explained from the
evidence on record and no adverse
inference can be drawn against the
prosecution merely on the ground that the
FIR was lodged at 9.20 p.m. on the next
day. There is no hard and fast rule that
any delay in lodging the FIR would
automatically render the prosecution case
doubtful. It necessarily depends upon
facts and circumstances of each case
whether there has been any such delay in
lodging the FIR which may cast doubt
about the veracity of the prosecution case
and for this a host of circumstances like
the condition of the first informant, the
nature of injuries sustained, the number
of victims, the efforts made to provide
medical aid to them, the 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 either way
merely on account of delay in lodging of
the FIR."

51. In this connection it will also be
useful to take note of the following
observation made in Tara Singh V. State
of Punjab AIR (1991) SC 63.

"The delay in giving the FIR 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 immediately after the occurrence.
Human nature as it is, the kith and kin
who have witnessed the occurrence
cannot be expected to act mechanically
with all the promptitude in giving the
report to the police. At times being grief
stricken because of the calamity it may
not immediately occur to them that they
should give a report. After all it is but
natural in these circumstances for them to
take some time 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 the opposite faction falsely. In order to
avert the danger of convicting such
innocent persons the courts should be
cautious to scrutinize the evidence of such
interested witnesses with greater care and
caution and separate grain from the chaff
after subjecting the evidence to a closer
366 INDIAN LAW REPORTS ALLAHABAD SERIES
scrutiny and in doing so the contents of
the FIR also will have to be scrutinised
carefully. However, unless there are
indications of fabrication, the court
cannot reject the prosecution version as
given in the FIR 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 circumstance of each case."

52. In Sahebrao &Anr. Vs. State
of Maharashtra (2006) 9 SCC 794,
Court has held:

"The settled principle of law of
this Court is that delay in filing FIR by
itself cannot be a ground to doubt the
prosecution case and discard it. The delay
in lodging the FIR would put the Court on
its guard to search if any plausible
explanation has been offered and if
offered whether it is satisfactory."

53. From the above discussed
exposition of law, it is manifest that
prosecution version cannot be rejected
solely on the ground of delay in lodging
FIR. Court has to examine the explanation
furnished by prosecution for explaining
delay.
There
may
be
various
circumstances particularly number of
victims, atmosphere prevailing at the
scene of incidence, the complainant may
be scared and fearing the action against
him in pursuance of the incident that has
taken place. If prosecution explains the
delay, Court should not reject prosecution
story solely on this ground. Therefore, the
entire incident, as narrated by witnesses,
has to be construed and examined to
decide whether there was an unreasonable
and unexplained delay which goes to the
root of the case of prosecution. Even if
there is some unexplained delay, court has
to take into consideration whether it can
be termed as abnormal. Recently in
Palani V State of Tamilnadu, Criminal
Appeal No.