# Rajdeo Pandey & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 1117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** Criminal Appeal No. 2010 of 1986
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajdeo-pandey-ors-in-jail-v-state-of-u-p-44635
- **Pages:** 12

## Headnote

A. Evidence Law-Indian Evidence Act,1872
- interested and inimical witnesses - mere
relationship with deceased cannot be a
factor to doubt testimony of a witness - a
natural witness may not be labelled as
interested witness - Interested witnesses
are those who want to derive some benefit
out of the litigation/case - Relationship is
not sufficient to discredit a witness unless
there is motive to give false evidence to
spare the real culprit and falsely implicate
an innocent person is alleged and proved -
A witness is interested only if he derives
benefit from the result of the case or as
hostility to the accused - prosecution is not
required to examine all the witnesses of
incident - It is the quality and not quantity
of evidence which matters - the testimony
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
of the injured witness is accorded a special
status in law and the deposition of the
injured witness should be relied upon
unless there are strong grounds for
rejection of his evidence on the basis of
major contradictions and discrepancies
therein - involvement of the accused
appellants in the alleged incident is
established - prosecution proved motive of
the alleged incident - version is consistent
with medical evidence - trial court was fully
justified
in
convicting
the
accusedappellant under Sections 302 and 307 of
IPC. (Para 22,27,28)

Appeal dismissed. (E-7)

List of cases cited:-

## Text

3 All. Rajdeo Pandey & Ors. Vs. State of U.P.
1117
discrepancies which have been tried to be
demonstrated by the learned counsel for
the appellant in the police papers prepared
during the inquest proceeding. The
evidence of P.W.6 Chhotey Lal Baniya
and other prosecution witnesses goes to
show that they were witnesses of the
incident but they have sided with the
accused and have not supported the
prosecution case in order to help the
accused persons. After going through the
evidence of P.W.1 Babu Lal and P.W.9
Chandrapal, it is well established that
they have witnessed the incident and were
present at the place of occurrence and
their statements corroborate the medical
evidence and the trial court was perfectly
right in believing their evidence and
coming to the conclusion that it was the
accused-appellant who had shot dead the
deceased who died on account of fire-arm
injury. Thus the prosecution has proved
it's case beyond reasonable doubt against
the accused-appellant.

30. In view of the foregoing
discussions, the participation of the
accused-appellant Raghubhushan Singh is
well established by the prosecution
evidence and the trial court has rightly
convicted the appellant for the offences,
which he has been charged with and there
appears to be no infirmity or illegality in
it's judgment, hence the conviction and
sentence of the appellant by the trial court
is hereby upheld.

31. The appellant Raghubhushan
Singh is stated to be on bail. He shall be
taken into custody forthwith to serve out
the sentence awarded by the trial court.
His bail bonds and sureties are cancelled.

32. The present appeals lacks merit
and is, accordingly, dismissed.

33. The copy of this judgement
along with the lower court record be
transmitted to the trial court concerned
immediately for compliance at once.
----------

(2019)11ILR A1117

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2019

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

Criminal Appeal No. 2010 of 1986

Rajdeo Pandey & Ors.
 ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Anoop Trivedi, Sri Abhishek Kumar
Chaubey, Sri Ajay Kumar Tripathi, Sri P.N.
Misra, Sri Virendra Singh.

Counsel for the Respondent:
Sri J.K.Upadhyay, A.G.A., Sri Satyawan
Shah.

A. Evidence Law-Indian Evidence Act,1872
- interested and inimical witnesses - mere
relationship with deceased cannot be a
factor to doubt testimony of a witness - a
natural witness may not be labelled as
interested witness - Interested witnesses
are those who want to derive some benefit
out of the litigation/case - Relationship is
not sufficient to discredit a witness unless
there is motive to give false evidence to
spare the real culprit and falsely implicate
an innocent person is alleged and proved -
A witness is interested only if he derives
benefit from the result of the case or as
hostility to the accused - prosecution is not
required to examine all the witnesses of
incident - It is the quality and not quantity
of evidence which matters - the testimony
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
of the injured witness is accorded a special
status in law and the deposition of the
injured witness should be relied upon
unless there are strong grounds for
rejection of his evidence on the basis of
major contradictions and discrepancies
therein - involvement of the accused
appellants in the alleged incident is
established - prosecution proved motive of
the alleged incident - version is consistent
with medical evidence - trial court was fully
justified
in
convicting
the
accusedappellant under Sections 302 and 307 of
IPC. (Para 22,27,28)

Appeal dismissed. (E-7)

List of cases cited:-

1. St. of Pun. Vs Hardam Singh, (2005), S.C.C.
(Cr.) 834

2. Dilip Singh Vs St. of Pun. A.I.R. (1953), S.C.
364

3. Harbans Kaur Vs St. of Har. (2005),
S.C.C.(Crl.) 1213

4. Dalbir Kaur Vs St. of Pun. AIR (1977) SC
472

5. State of Gujrat Vs Naginbhai Dhulabhai
Patel, AIR (1983) SC 839

6. Jarnail Singh Vs St. of Pun. (2009) 9SCC
719

7. Krishan Vs St. of Har. (2006) 12 SCC 459

8. Baleshwar Mahto & anr. Vs St. of Bihar &
anr Cri. Appeal Nos. 513-514 of 2014

9. Abdul Sayeed Vs St. of M.P. (2010) 10 SCC
259

(Delivered by Hon'ble Raj Beer Singh, J.)

1. This appeal has been preferred
against the impugned judgement and
order dated 28.07.1986 passed by learned
VIth
Additional
Sessions
Judge,
Azamgarh in Session Trial No. 194 of
1985, (State V Rajdeo Pandey and three
others), under Sections 302, 307 of IPC,
P.S.
Mehnagar,
District
Azamgarh,
whereby all the four accused-appellants,
namely, Rajdeo Pandey, Lalji Singh, Om
Prakash and Shesh Nath Pandey have
been convicted under Sections 302 and
307
of
IPC
and
sentenced
to
imprisonment for life and four years
rigorous imprisonment respectively.

2. Accused-appellants Lalji Singh
and Om Prakash expired during pendency
of this appeal and thus, the appeal on their
behalf was already abated by this Court
vide
orders
dated
28.03.2018
and
17.07.2019. Now, this appeal is confined
only in respect of accused-appellants
Rajdeo Pandey and Shesh Nath Pandey.

3. As per prosecution version, there
was a dispute between complainant
Ramjeet and accused-appellant Rajdeo
Pandey over a pond of village, as
accused-appellant Rajdeo Pandey has got
mutated pond land in his name, while way
of complainant was through that pond. In
that regard, a case was lodged against the
complainant, but he was acquitted in that
case. Deceased Jhagroo was a witness in a
case initiated under Section 110 Cr.P.C.
against accused-appellant Rajdeo Pandey.
Proceedings under Section 107 Cr.P.C.
have also taken place against the parties.
Due to these reasons, accused persons
were nurturing animosity against the
complainant and deceased. Three days
prior to the incident, accused-appellants
Rajdeo Pandey, Lalji, Om Prakash and
Shesh Nath Pandey have threatened the
complainant and his brother Jhagroo
(deceased). The incident of this case took
place on 10.07.1983. On that day,
complainant's
brother
Jhagroo
was
3 All. Rajdeo Pandey & Ors. Vs. State of U.P.
1119
ploughing his field, while complainant
and his wife were collecting grass nearby.
At around 9:00 AM, all the accusedappellants armed with clubs, came out
from nearby bushes and hurling abuses
they started assaulting complainant and
his
brother
Jhagroo
with
clubs.
Complainant and Jhagroo fell down, but
accused-appellant Shesh Nath Pandey
continued to assault complainant, while
deceased-appellant Lalji Singh caught
hold of his wife and accused-appellant
Rajdeo Pandey and deceased-appellant
Om Prakash assaulted Jhagroo and they
even jumped at his chest. Hearing noise,
Dhruv Narayan Singh, Shesh Bahadur
Singh, Surendra and some other persons
reached there and intervened. Thereafter,
all the accused-appellants ran away from
spot. Complainant and injured were taken
to police station, but Jhagroo succumbed
to injuries on the way.

4.

Complainant/PW-1
Ramjeet
submitted a written report Ex. Ka-1 at the
police station and on that basis, case was
registered on 10.07.1983 at 11:30 hours,
under Sections 302, 307, 323/34 of IPC
against all the four accused-appellants
vide FIR Ex. Ka-4.

5. The inquest proceedings were
conducted by PW-6 S.I. Daya Ram and
inquest report Ex. Ka-7 was prepared.
Dead body of the deceased was sealed
and sent for postmortem.

6. Post-mortem on the dead body of
the
deceased
was
conducted
on
11.07.1983 vide post-mortem report Ex.
Ka.3 and following injuries have been
found on the person of the deceased.

(i) Lacerated wound 4 cm x 4
cm x bone deep on the front and middle
of left leg on exposure haematoma
present in area of 5 cm x 4 cm. Both bone
are fractured.

(ii) Abrasion 1 cm x 1 cm on
right side forehead close to right eyebrow.

(iii) Abrasion 1 cm x 1 cm on
tip of nose.

(iv) Contusion 8 cm x 4 cm on
middle and both side front of chest in
between both nipple.

(v) Contused abrasion in an area
of 12 cm x 6 cm on anterio lateral aspect
of right arm elbow and forearm seen
above right wrist.

(vi) Lacerated wound on left
side front of 3rd, 4th and 5th toe in an
area of 8 cm x 2 cm x bone deep on
Exposure underneath bone fractured.

(vii) Contused swelling 8 cm x
4 cm on dorsal aspect of right sole.

(viii) Contusion 4 cm x 4 cm on
front of right ankle and leg.

(ix)Abrasion 1 cm x 1 cm on
front of right knee.

(x) Multiple contusion in one
area of 8 cm x 4 cm on outer aspect of left
shoulder and arm.

(xi) Lacerated wound 1 cm x 2
cm x bone deep on the front of right 3rd
toe on exposure bone fractured.

As per Autopsy Surgeon, cause
of death of the deceased was due to
asphyxia as a result of ante-mortem
injuries.

7. PW-1 Ramjeet, who was also an
injured in the incident, was medically
examined by PW-3 Dr. Ram Jas Ram and
following injuries were found on his person:

(i) Lacerated wound 3.5 cm x
bone deep x .5 cm on the left parietal part
of skull 8 cm above few centemeter
uppper margin of pinna left side wound
and contused by soft blood clot.
1120 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Lacerated wound 2 cm x .5
cm x bone deep on the forehead 1 cm
above for the root of nose.

(iii) Lacerated wound .5 x.25
cm x bone deep posterior surface of
forearm right side 10 cm above the wrist
joint and lateral swelling 8 cm x 5 cm
around this lacerated wound and there is
suspected fracture of bone underneath.
Advised x-ray for wrist right side.

(iv) Lacerated wound .5 x .5 cm
deep bone dorsal surface of palm and the
root of index finger blood is oozing out
from the wound and swelling around this
wound and whole of the palm right side
dorsal surface advised x-ray palm right
side.

(v) Tromated swelling whole of
the upper arm left side advised x-ray.
upper arm left side.

(vi) Lacerated wound 2 cm x .5
cm x muscle deep on the back of upper
arm left side soft rose blood clot inside
the wound.

(vii) Bruise 10 cm x 2 cm on the
back of gluteal region (skin in rose in
colour).

(viii) Bruise 4 cm x 2 cm on
upper and lateral surface of thigh left side
(skin in rose in colour).

(ix) Bruise 7 cm x 2 cm on the
upper end posterior surface of thigh right
side (skin in rose in colour).

(x) Bruise 15 cm x 2 cm on the
posterior surface of thigh and gluteal
foled (skin in rose in colour).

(xi) Bruise 4 cm x 1 cm on the
lateral surface of right thigh above knee
joint (skin in rose in colour).

8. During course of investigation,
PW-6 Daya Ram recorded statements of
the witnesses and after completion of the
investigation, all the accused-appellants
were chargesheeted.

9. Learned trial court framed charge
under Sections 302 and 307 of IPC
against all the four accused-appellants.
Accused persons pleaded not guilty and
claimed trial.

10. To substantiate the charges,
prosecution has examined six witnesses.
Accused persons were examined under
Section 313 Cr.P.C., wherein they have
denied the prosecution evidence and
claimed false implication. In defence,
accused persons have examined DW-1
Girja Prasad Yadav.

11. After hearing and analysing
evidence, all the four accused were
convicted under section 302 and 307 of
IPC vide impugned judgment dated
28.07.1986 and sentenced, as stated in
para no. 1 of this judgment.

12. Being aggrieved by the
impugned judgment and order, accusedappellants have preferred the present
appeal.

13. Heard Sri Anoop Trivedi,
learned Senior Counsel, assisted by Sri
Abhishek
Kumar
Chaubey,
learned
counsel for the accused-appellants and Sri
J.K.
Upadhyay,
learned
Additional
Government Advocate.

14. Learned Senior Counsel for the
accused-appellants
has
raised
the
following points:

(i) that presence of alleged eye
witnesses at the scene is doubtful. There
is no evidence to show that PW-1
Ramjeet
and
PW-4
Kulwanti
were
collecting grass at the spot as their
position was not shown in site plan. It is
also doubtful that the deceased was
3 All. Rajdeo Pandey & Ors. Vs. State of U.P.
1121
ploughing his field. As per PW-1,
deceased was ploughing his field by ox,
but there is no evidence of presence of
any ox. PW-1 Ranjeet has sustained only
simple injuries.

(ii) that PW-1 Ramjeet and PW4 Kulwanti are highly interested and
inimical witnesses. As per prosecution
version, one Dhruv Narayan Singh, Shesh
Bahadur
Singh
and
Surendra
have
reached at the spot, but none of them has
been examined by the prosecution. It was
submitted that in absence of evidence of
any independent witness, testimony of
PW-1 and PW-4 cannot be relied upon.

(iii) that prosecution could not
establish spot of incident. Prosecution has
changed the spot of incident from one
place
to
another,
which
makes
prosecution case doubtful.

(iv)
that
accused-appellant
Rajdeo Pandey has made complaint
against S.I. Hari Bhajanlal Arya, Incharge
of Police Station Mehnagar, District
Azamgarh and that PW-6 S.I. Daya Ram
has taken charge from S.I. Hari Bhajanlal
Arya on the day of the incident. It was
stated that a case was also lodged against
Hari Bhajanlal Arya under Section 218
IPC and one inquiry against him was
conducted by the C.I.D. Leaned counsel
has argued that the accused-appellants
were implicated falsely in this case with
connivance of said S.I. Hari Bhajanlal
Arya. In this regard, learned counsel also
pointed out statement of DW-1 Girja
Prasad Yadabv and certain documents
filed in defence evidence.

15. Per contra, learned A.G.A. for
the State has supported the impugned
judgment and argued that in the alleged
incident PW-1 Ramjeet is an injured
witness and he has made a clear statement
against the accused-appellants. PW-1
Ramjeet and PW-4 Kulwanti have stated
about entire incident and their version is
supported by medical evidence. They
have been subjected to cross-examination
but no adverse fact could emerge. The
fact that PW-1 was injured in the alleged
incident, itself establishes his presence at
the spot. It was submitted that even if
there was enmity between accusedappellant Rajdeo Pandey and alleged S.I.
Hari Bhajanlal Arya, it would not affect
the testimony of PW-1 and PW-4. At the
time of the alleged incident and when the
case was lodged, the Incharge of police
station Mehnagar was PW-6 S.I. Daya
Ram, who has investigated the case. It
cannot be believed that the Investigating
Officer would implicate the accusedappellants falsely in this case at instance
of his predecessor i.e. S.I. Hari Bhajanlal
Arya. The FIR has been lodged by PW-1
promptly by filing written complaint Ex.
Ka-1 naming all four accused persons.
Learned State counsel submitted that
conviction of the accused-appellants is
based on evidence and the same does not
call for any interference and the present
appeal has no substance.

16. We have considered rival
submissions and perused record.

17. In evidence, PW-1 Ramjeet
stated that on the day of incident at about
9:00 AM, his brother Jhagaroo was
ploughing his field, while he (PW-1) and
his wife were collecting grass. Accusedappellants Rajdeo Pandey, Shesh Nath
Pandey, deceased accused Om Prakash
and Lalji Singh, armed with lathis
appeared there and on the exhortation of
accused-appellant Rajdeo Pandey to kill
Jhagaroo and Ramjeet, all the four
accused-appellants started attacking PW-1
complainant and deceased Jhagaroo with
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
lathis (clubs). Hearing noise of PW-1
Ramjeet and his brother Jhagaroo, one
Dhruv Narayan Singh, Shesh Bahadur
Singh and Surendra Singh reached there.
When wife of the complainant Kulwanti
tried to intervene, accused-appellant Lalji
Singh caught hold of her. Accusedappellants
Rajdeo
Pandey
and
Om
Prakash jumped on the chest of Jhagaroo
and gave lathi blows at his chest. Due to
injuries, Jhagaroo fell down. Accusedappellant Shesh Nath Pandey assaulted
PW-1 Ramjeet. After incident, all the
accused-appellants ran away from spot.
While the villagers were taking away
Jhagaroo and Ramjeet on cots, Jhagaroo
succumbed to injuries. PW-1 Ramjeet,
further stated that he got written a
complaint from one Dhruv Narayan and it
was sent to police station and he was
medically examined. PW-1 further stated
that they have initiated proceedings under
Section 110 Cr.P.C. against accusedappellant Rajdeo and Jhagaroo was a
witness in that case. Earlier, proceedings
under Section 107 Cr.P.C. were also going
on between the parties and that about 3-4
days prior of the incident, accused
persons
have
threatened
to
kill
complainant and his brother. It was also
stated that accused-appellant Rajdeo has
got mutated land of pond of village in his
name, while the way of PW-1 Ramjeet
was through that pond.

18. PW-4 Kulwanti, has stated that
on the day of incident at about 9:00 AM,
Jhagaroo was ploughing his field, while
she and her husband PW-1 Ramjeet were
collecting grass. All the four accusedappellants
came
there
and
started
assaulting Jhagaroo and Ramjeet with
clubs. When she tried to save them,
accused-appellant Lalji caught hold her
and accused-appellants Rajdeo and Om
Prakash jumped on the chest of Jhagaroo
and caused injuries on his chest. Hearing
noise, Dhruv Narayan Singh, Shesh
Bahadur Singh and Surendra Singh
reached there and thereafter, accusedappellants ran away from there.

19. PW-2 Constable Panchu Prasad,
is a formal witness, who assisted during
investigation. PW-3 Dr. Ram Jas Ram,
has medically examined PW-1 Ramjeet
and PW-5 Dr. S.K. Gupta has conducted
post-mortem on the dead body of the
deceased. PW-6 S.I. Daya Ram, has
investigated the case and has duly proved
documents prepared during investigation
of the case.

20. DW-1 Constable Girja Prasad
Yadav, has stated that on 05.09.1986, on
the complaint of Shambhu Prasad Singh,
Satyadev and Gopal Singh, a report was
lodged by C.I.D. on 24.03.1986 and its
report and G.D. entry have been proved
by by him as Ex. Kha-1 and Ex. Kha-2

21. So far the contention, that
presence of alleged eye witnesses i.e. PW1 Ramjeet and PW-4 Kulwanti is
doubtful, is concerned, it may be seen that
both theses witnesses have made clear
and
cogent
statements
about
their
presence at the spot and have narrated
entire incident in detail. PW-1 Ramjeet is
an injured witness, who has received as
many as 11 injuries in the alleged incident
and thus, his presence at the spot cannot
be doubted. Merely because the nature of
injuries was simple, it would not create
any doubt about the presence of these
witnesses at the spot. There is nothing to
indicate that the injuries sustained by PW1 were self inflicted. One important fact is
that the FIR of the present incident has
been lodged by PW-1, naming all the
3 All. Rajdeo Pandey & Ors. Vs. State of U.P.
1123
accused-appellants
and
stating
all
necessary details of incident. The alleged
incident took place on 10.07.1983 at 9:00
AM and the FIR was lodged on the same
day at 11:30 AM and distance of the
concerned police station from the spot
was shown four miles. Here, it is also to
be kept in mind that PW-1 has sustained
several injuries and as per his statement,
he as well as deceased Jhagaroo were
brought from the spot by putting them on
cots. In view of these facts, it is clear that
prompt first information report was
lodged by PW-1. Merely because location
of PW-1 and PW-4 was not shown in the
site plan, it would not make their presence
at the spot doubtful. Similarly, the fact
that no Ox was found at spot is of no
consequence. It cannot be presumed that
Ox would have remained at spot till the
Investigating Officer reached there. Once
in the FIR, PW-1 has alleged that he as
well as his wife were present at the spot
and he has also sustained injuries, it was
for the Investigating Officer to inquire as
to at which particular spot they were
collecting grass and to indicate that spot
in the site plan and thus, their testimony
would not affect due to alleged lapse.
Both PW-1
and
PW-4
have been
subjected to lengthy cross-examination
but no such substantial fact could emerge,
which may create any doubt about their
presence at the spot. In view of these
facts, there is no ground to doubt presence
of PW-1 and PW-4 at the spot and thus,
contention of learned counsel has no
force.

22. It was argued that PW-1 Ramjeet
and PW-4 Kulwanti are interested and
inimical witnesses. It is correct that PW-1
is brother of deceased Jhagaroo, while
PW-4 is wife of PW-1, but mere
relationship cannot be a factor to doubt
testimony of a witness, which otherwise
inspires confidence. It is well settled that
a natural witness may not be labelled as
interested witness. Interested witnesses
are those who want to derive some benefit
out of the litigation/case. In case the
circumstances reveal that a witness was
present on the scene of the occurrence
and had
witnessed
the
crime,
his
deposition cannot be discarded merely on
the ground of being closely related to the
victim. Generally close relations of the
victim are unlikely to falsely implicate
anyone. Relationship is not sufficient to
discredit a witness unless there is motive
to give false evidence to spare the real
culprit and falsely implicate an innocent
person is alleged and proved. A witness is
interested only if he derives benefit from
the result of the case or as hostility to the
accused. In case of State of Punjab Vs
Hardam Singh, 2005, S.C.C. (Cr.) 834, it
has been held by the Hon'ble Apex Court
that ordinarily the near relations of the
deceased would not depose falsely against
innocent persons so as to allow the real
culprit to escape unpunished, rather the
witness would always try to secure
conviction of real culprit. In case of Dilip
Singh Vs State of Punjab, A.I.R. 1953,
S.C. 364, it was held by the Hon'ble
Supreme Court that the ground that the
witnesses being the close relatives and
consequently being the partition witness
would not be relied upon, has no
substance. Similar view has been taken by
the Hon'ble Supreme Court in case of
Harbans Kaur V State of Haryana,
2005, S.C.C. (Crl.) 1213.

The contention about branding
the witnesses as interested witness and
credibility
of
close
relationship
of
witnesses has been examined by Hon'ble
Apex court in a number of cases. A close
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
relative, who is a very natural witness in
the circumstances of a case, cannot be
regarded as an 'interested witness', as held
by the Hon'ble Supreme Court in Dalbir
Kaur V. State of Punjab, AIR 1977 SC
472. The mere fact that the witnesses
were relations or interested would not by
itself be sufficient to discard their
evidence straightway unless it is proved
that their evidence suffers from serious
infirmities which raises considerable
doubt in the mind of the court. Similar
view was taken in case of State of Gujrat
v. Naginbhai Dhulabhai Patel, AIR
1983 SC 839. Similarly, so far as question
of non-examination of alleged witnesses,
who have reached at the spot, is
concerned,
it
is
well
settled
that
prosecution is not required to examine all
the witnesses of incident. It is the quality
and not quantity of evidence which
matters. PW-1 Ramjeet was a star witness
as he sustained injuries in same incident.
No adverse inference can be drawn
against prosecution merely on the ground
that all the persons, who reached at the
spot have not been examined, particularly
when prosecution has produced two eyewitnesses, including the injured witness.

In the instant case, as stated
earlier, there is nothing to doubt about
presence of PW-1 Ramjeet and PW-4
Kulwanti at the spot of incident. PW-1
himself has sustained injuries in the very
same incident, which establishes his
presence at the spot. These witnesses have
made clear and cogent statement and have
even assigned specific role of the accused
persons. The version of these witnesses is
consistent with the FIR and medical
evidence. The incident took place in
broad day light and all the accused
persons were known to these witnesses
since before the incident. There are no
grounds that why these witnesses would
depose falsely against accused-appellants,
sparing the actual assailants. Thus, the
contention of learned counsel has no
force.

23. It was next argued that
prosecution has shifted place of incident
from one place to another. In this regard,
it was stated that in the FIR, the incident
of alleged spot was shown at the field of
deceased and complainant, but the sample
of blood stained as well as simple soil
collected from the spot have not been
examined. It was further stated that in his
cross-examination, PW-1 Ramjeet has
stated that deceased had fallen in the
western side of the field but this fact is
not consistent with the site plan of the
spot. PW-4 Kulwanti has stated in her
cross-examination that when the alleged
incident took place, the deceased has
already ploughed four biswa field and that
two biswa field was yet to be plough, but
this fact is also not consistent with the site
plan. Learned counsel further stated that
PW-4 has stated that, at the spot, blood
has fallen on the ground but no blood was
found at the spot.

24. We find no force in the
contention that prosecution has changed
spot of incident from one place to another.
It is consistent case of prosecution that at
the time of the alleged incident, deceased
was ploughing land belonging to him and
as per complainant as well as as per site
plan also, incident has been shown in the
their field. In FIR as well in statements of
eye witnesses, substantially, the spot of
incident remained same and it also
matches with spot shown in the site plan
prepared by Investigating Officer. Some
part of the alleged field has been shown
ploughed,
which
further
supports
prosecution case. Merely because the
3 All. Rajdeo Pandey & Ors. Vs. State of U.P.
1125
samples of plain and blood stained soil
lifted from the spot have not been
examined would not give rise to inference
that prosecution has shifted or changed
spot of incident. Such laxity on the part of
Investigating Officer, cannot be a ground
to doubt spot of incident, particularly
when PW-1 Ram Jeet and PW-4 Kulwanti
have
made
consistent
and
cogent
statements. It has also come in evidence
that blood has fallen at the spot, but PW 4
has clarified that it has diminished due to
movements of persons. PW 6 SI Dyaram,
who investigated the case, has also stated
that there were some spot of blood at the
scene of offence, however, he admitted
that he has not send sample of blood
stained soil to FSL. On the point of spot
of incident, version of eye witnesses
matches with site plan and statement of
investigating officer. Merely because
some minor variations in peripheral
aspect of the spot of incident have
emerged in statements of PW-1 and PW4, it cannot be said that spot of the
incident has been changed. Such minor
inconsistencies are quite natural in every
case, but such inconsistencies do not
indicate that spot of incident has been
changed. The contention of learned
counsel for the accused-appellants has no
substance.

25. A contention was raised that
accused-appellants
were
falsely
implicated in this case at the instance of
S.I. Hari Bhajanlal Arya, however, there
is no material in support of this allegation.
It is correct that PW-6 S.I. Daya Ram,
who has investigated the case, has stated
that he has taken charge of police station
Mehnagar from S.I. Hari Bhajanlal Arya
on day of incident, but it would not mean
that he has acted at the instance of S.I.
Hari Bhajanlal Arya. Even if, S.I. Hari
Bhajanlal Arya was residing in the
premises of police station, it cannot be
presumed that the Investigating Officer
PW-6 Daya Ram has acted at his instance
in order to falsely implicate the accusedappellants. Though it has been shown that
earlier a complaint was filed against S.I.
Hari Bhajanlal Arya by accused-appellant
Rajdeo Pandey, but that can also not be a
ground
to
presume
that
accusedappellants have been falsely implicated in
this case at the instance of the said S.I.
Hari Bhajanlal Arya. Here, it would be
pertinent to mention that this case has
been lodged on the basis of written report
of PW-1 Ramjeet. It is not the case of
defence that PW-1 has lodged FIR at the
instance of said S.I. Hari Bhajanlal Arya.
Even otherwise, in the alleged incident,
PW-1 himself has sustained injuries and
his brother Jhagaroo was brutally done to
death, thus, it can not be imagined that he
would falsely implicate the accusedappellants in the alleged incident just at
the instance of one police official, who at
the time of the alleged incident was even
not posted in the concerned police station
and that too sparing the actual assailants,
who murdered his brother and caused
injuries to him. The contention of learned
counsel has no substance at all.

26. Close scrutiny of entire evidence
on record clearly shows that testimony of
PW-1 Ramjeet and PW-4 Kulwanti could
not be shaken in their cross-examination.
The version of PW-1 and PW-4 is
consistent with the medical evidence as
well as with their previous statements.
Motive of the alleged incident has also
been proved. No substantial reason could
be shown as to why these witnesses
would depose falsely against accusedappellants, sparing their actual assailants.
One of the important aspects of the case is
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
that PW-1 himself has sustained as many
as 11 injuries in the alleged incident,
which establishes his presence at the spot
beyond any doubt. In Jarnail Singh Vs.
State of Punjab (2009) 9SCC 719, the
Hon'ble Supreme Court reiterated the
special evidentiary status accorded to the
testimony of an injured accused. It was
held that the fact that witness sustained
injuries at the time and place of
occurrence, lends support to his testimony
that he was present during the occurrence.
In case the injured witness is subjected to
lengthy cross- examination and nothing
could be elicited to discard his testimony,
it should be relied upon. Similar view was
expressed in the case of Krishan v State
of Haryana, (2006) 12 SCC 459.
Regarding testimony of injured witness,
in Criminal Appeal Nos. 513-514 of 2014
Baleshwar Mahto & Anr. v. State of
Bihar & Anr., decided on 09.01.2017,
Hon'ble Apex Court reiterating the law
laid down in case of Abdul Sayeed v.
State of Madhya Pradesh, (2010) 10
SCC 259, held as under :

"28. The question of the weight
to be attached to the evidence of a witness
that was himself injured in the course of
the occurrence has been extensively
discussed by this Court. Where a witness
to the occurrence has himself been injured
in the incident, the testimony of such a
witness is generally considered to be very
reliable, as he is a witness that comes
with a built-in guarantee of his presence
at the scene of the crime and is unlikely to
spare his actual assailant(s) in order to
falsely implicate someone.

"Convincing
evidence
is
required to discredit an injured witness."
[Vide Ramlagan Singh v. State of Bihar
[(1973) 3 SCC 881:1973 SCC (Cri)
563:AIR 1972 SC 2593], Malkhan Singh
v. State of U.P. [(1975) 3 SCC 311 : 1974
SCC (Cri) 919 : AIR 1975 SC 12],
Machhi Singh v. State of Punjab [(1983) 3
SCC 470 : 1983 SCC (Cri) 681],
Appabhai v. State of Gujarat [1988 Supp
SCC 241 : 1988 SCC (Cri) 559 : AIR
1988 SC 696], Bonkya v. State of
Maharashtra [(1995) 6 SCC 447 : 1995
SCC (Cri) 1113], Bhag Singh [(1997) 7
SCC 712 : 1997 SCC (Cri) 1163], Mohar
v. State of U.P. [(2002) 7 SCC 606 : 2003
SCC (Cri) 121] (SCC p. 606b-c), Dinesh
Kumar v. State of Rajasthan [(2008) 8
SCC 270 : (2008) 3 SCC (Cri) 472],
Vishnu v. State of Rajasthan [(2009) 10
SCC 477 : (2010) 1 SCC (Cri) 302],
Annareddy Sambasiva Reddy v. State of
A.P. [(2009) 12 SCC 546 : (2010) 1 SCC
(Cri) 630] and Balraje v. State of
Maharashtra [(2010) 6 SCC 673 : (2010)
3 SCC (Cri) 211] 29. While deciding this
issue, a similar view was taken in Jarnail
Singh v. State of Punjab [(2009) 9 SCC
719 : (2010) 1 SCC (Cri) 107] , where
this
Court
reiterated
the
special
evidentiary
status
accorded
to
the
testimony of an injured accused and
relying on its earlier judgments held as
under: (SCC pp. 726-27, paras 28-29)

"28.
......In
Shivalingappa
Kallayanappa v. State of Karnataka [1994
Supp (3) SCC 235 : 1994 SCC (Cri)
1694] this Court has held that the
deposition of the injured witness should
be relied upon unless there are strong
grounds for rejection of his evidence on
the basis of major contradictions and
discrepancies, for the reason that his
presence on the scene stands established
in case it is proved that he suffered the
injury during the said incident.

29. In State of U.P. v. Kishan
Chand [(2004) 7 SCC 629 : 2004 SCC
(Cri) 2021] a similar view has been
reiterated observing that the testimony of
3 All. Rajdeo Pandey & Ors. Vs. State of U.P.
1127
a stamped witness has its own relevance
and efficacy. The fact that the witness
sustained injuries at the time and place of
occurrence, lends support to his testimony
that he was present during the occurrence.
In case the injured witness is subjected to
lengthy cross-examination and nothing
can be elicited to discard his testimony, it
should be relied upon (vide Krishan v.
State of Haryana [(2006) 12 SCC 459 :
(2007) 2 SCC (Cri) 214] ). Thus, we are
of the considered opinion that evidence of
Darshan Singh (PW 4) has rightly been
relied upon by the courts below."

30. The law on the point can be
summarised to the effect that the
testimony of the injured witness is
accorded a special status in law. This is as
a consequence of the fact that the injury
to the witness is an inbuilt guarantee of
his presence at the scene of the crime and
because the witness will not want to let
his actual assailant go unpunished merely
to falsely implicate a third party for the
commission of the offence. Thus, the
deposition of the injured witness should
be relied upon unless there are strong
grounds for rejection of his evidence on
the basis of major contradictions and
discrepancies therein."

27. When the aforesaid principles
are applied in the facts of this case, it
would show that the injured witness PW1, Ramjeet has sustained as many as 11
injuries in incident and he has named all
the accused-appellants in FIR, which was
lodged, without any undue delay. He has
made a cogent and clear statement and his
testimony could not be shaken in his
cross-examination. As stated earlier, the
testimony of the injured witness is
accorded a special status in law and the
deposition of the injured witness should
be relied upon unless there are strong
grounds for rejection of his evidence on
the basis of major contradictions and
discrepancies therein. In the instant case,
PW-1 Ramjeet has been subjected to
lengthy cross-examination, but nothing
adverse could come out. His version is
consistent with medical evidence. No
such reasons could be shown as to why he
would depose falsely against appellants,
sparing
the
actual
assailants.
The
prosecution has also proved motive of the
alleged
incident.
Considering
entire
evidence on record, the involvement of
the accused appellants in the alleged
incident
is
established.
Similarly,
presence of PW-4 Kulwanti is also
established at the spot. She has also made
cogent statement regarding involvement
of accused-appellants in the incident and
she
remained
firm
in
her
crossexamination. The version
of
PW-1
Ramjeet Singh finds ample corroboration
from testimony of PW-4 Kulwanti. After
considering all aspects, the testimony of
PW-1 Ramjeet and PW-4 Kulwanti is
found credible and inspires confidence.

28. Considering all the aspects of
the case, we are of the view that the trial
court was fully justified in convicting the
accused-appellant under Sections 302 and
307 of IPC and accordingly, conviction
and
sentence
of
accused-appellants
Rajdeo Pandey and Sheshnath Pandey is
affirmed. Accused-appellants are stated to
be on bail. Their bail is cancelled and they
be taken into custody forthwith for
serving remaining sentence.

29.

Appeal
is,
accordingly,
dismissed.

30. Copy of this judgment be sent to
Court concerned for necessary compliance.
----------
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A1128

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

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

Criminal Appeal No. 2148 of 1986

Rajol And Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi, Sri Samit Gopal, Sri
Babaloo, Sri Anurag Shukla, Sri O.P. Singh.

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

A. Evidence Law-Indian Evidence Act, 1872
- Child witness - the conviction of an
accused can be based solely on the
statement of a child witness - the Court as a
rule of prudence while considering such
evidence is required to make close scrutiny
of the said evidence and only on being
convinced about the quality thereof and
reliability can record the conviction, based
thereon - suspicion howsoever strong,
cannot take place of evidence - weak
evidence adduced by the prosecution -
accused-appellants are entitled to get the
benefit of doubt - Trial Court not justified
in convicting the accused-appellants.(Para
15, 20,22 )

Appeal allowed (E-7)

List of cases cited:-

1. Panchi Vs St. of U.P., (1998) 7 SCC 177

2. Dattu Ramrao Sakhare Vs St. of Mah.
(1997) 5 SCC 341

3. Nivrutti Pandurang Kokate & ors. Vs St. of
Mah. (2008) 12 SCC 565
4. Golla Yelugu Govindu Vs St. of A.P. (2008)
4 SCALE 569

5. St. of U.P. Vs Krishna Master & ors. (2010)
47 OCR (SC) 263

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

7. Kali Ram Vs St. of H.P. the Supreme
Court;(1973) AIR 2773

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

1. This appeal arises out of
impugned judgement and order dated
04.08.1986 passed by II Additional
Sessions Judge, Kanpur Dehat in Sessions
Trial No. 292 of 1984, convicting the
accused-appellants under Sections 302/34
and 201 of IPC and sentencing them to
life imprisonment under Section 302/34
of IPC and further sentencing them under
Section 201 of IPC for three years
rigorous imprisonment.

2. As per prosecution case, about a
month prior to the incident, cow of the
deceased had entered the premises of
accused-appellant Rajol for which he had
abused the deceased and there was some
verbal exchange between the two. It is
said that on 14.07.1984, when deceased
Gauri Shanker and his minor son Ganesh
Shanker, aged 11 years were returning
from their agricultural field, on the way,
they saw the accused persons sitting near
the 'Babool' tree and at the relevant time,
accused Rajol and Mahboob were having
axe with them, whereas the other accused
Munia and Mukta were armed with clubs.
Accused Rajol had asked the other
accused persons that this is the best
opportunity to ensure that the enemy may
not escape from there and then all of them
caused injuries to the deceased. Further
case of the prosecution is that the incident
has been witnessed by PW-2, Ganesh