# Rajesh v. State of U.P

- **Citation:** (2019) 2 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** Jail Appeal No. 2935 of 2013
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-v-state-of-u-p-44793
- **Pages:** 19

## Headnote

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of her relationship with the
victim. The whole prosecution case can
be proved by a single witness if evidence
is natural and trustworthy.
The adequacy of evidence as has been
propounded under Section 134 of Evidence
Act. As a general rule, Court can and may act
on the testimony of a single witness, provided
he is wholly reliable. Testimony of witness,
cogent, credible and trustworthy having ring of
truth, deserves its acceptance. (Para 46)
C. Indian Evidence Act, 1872 - Section
118
-
Marginal
variations
in
the
statement of a witness cannot be dubbed
as improvements as the same may be
elaborations of the statements made
earlier. Natural, minor contradictions
and discrepancies in comparison to the
statement recorded during examinationin-chief which do not go to the root of
case, to be overlooked.
Minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a
ground on which the evidence can be rejected
in its entirety. Therefore, mere marginal
variations in the statement of a witnesses
cannot be dubbed as improvements as the
same may be elaborations of the statements
made by the witnesses earlier. (Para 58)
Jail Appeal dismissed (E-2)
List of Cases Cited: -

## Text

_Characters 0–39,943 of 60,063. This is a partial read: ask again with offset=39943 for what follows._

2 All. Rajesh Vs State of U.P.
495
Looking into the nature and gravity of the
offence, we are of the view that
punishment awarded by Trial Court
requires no interference. Appeal is liable
to be dismissed and impugned judgment
and order passed by Trial Court is liable
to be affirmed.

57. In the light of above discussions,
appeal is hereby dismissed. Impugned
judgment and order dated 21.2.2014
passed by Additional Session Judge,
Court No. 8 Firozabad in Session Trial No
483 of 2013 (State vs. Mahendra)
whereby appellant has been convicted and
sentenced for the offence under Section 5
(i) and 5 (m) read with Section 6 of
POCSO Act is maintained and affirmed.

58. Let a copy of his judgment along
with lower court record be sent to
Additional Session Judge, Court No. 8,
Firozabad for necessary information and
compliance.

59. A compliance report be sent to
this Court within two months. Copy of his
judgment be also supplied to the accused
through Superintendent of Jail, concerned.
----------

(2019)10ILR A 495

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE

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

Jail Appeal No. 2935 of 2013

Rajesh ...Appellant
Versus
State of U.P. ...Opposite Party
Counsel for the Appellant:
From Jail, SrI Mamta Maurya A.C, Sri
Saurabh Sachan (A.C.), Sri Surendra Bir
Maurya (A.C.)

Counsel for the Opposite Party:
Sri P.C. Joshi (A.G.A.)

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of her relationship with the
victim. The whole prosecution case can
be proved by a single witness if evidence
is natural and trustworthy.
The adequacy of evidence as has been
propounded under Section 134 of Evidence
Act. As a general rule, Court can and may act
on the testimony of a single witness, provided
he is wholly reliable. Testimony of witness,
cogent, credible and trustworthy having ring of
truth, deserves its acceptance. (Para 46)
C. Indian Evidence Act, 1872 - Section
118
-
Marginal
variations
in
the
statement of a witness cannot be dubbed
as improvements as the same may be
elaborations of the statements made
earlier. Natural, minor contradictions
and discrepancies in comparison to the
statement recorded during examinationin-chief which do not go to the root of
case, to be overlooked.
Minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a
ground on which the evidence can be rejected
in its entirety. Therefore, mere marginal
variations in the statement of a witnesses
cannot be dubbed as improvements as the
same may be elaborations of the statements
made by the witnesses earlier. (Para 58)
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Rameshwar Vs St. of Raj. AIR 1952 SC 54
496 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Masalti Vs St. of U.P. AIR 1965 SC 202
3. Hari Obula Reddi & ors. Vs St. of A.P. AIR
1981 SC 82
4. Kartik Malhar Vs St.of Bih. (1996) 1 SCC
614
5. Pulicherla Nagaraju @ Nagraja Reddy Vs St.
of A.P. AIR 2006 SC 3010
6. Harivadan Babubhai Patel Vs St. of Guj.
(2013) 7 SCC 45
7. Namdev Vs St. of Mah. (2007) 14 SCC 150,
8. Veer Singh & ors. Vs St. of U.P. (2014) 84
ACC 681,
9. St. of Karnataka Vs Suvarnamma (2015) 1
SCC 323
10. Hema Vs St. (2013) 81 ACC 1 (SC)
11. C. Muniappan Vs St. of T.N. 2010 (6) SCJ 822
12. Sampath Kumar Vs Insp. of Police,
Krishnagiri (2012) 4 SCC 124
13. Sachin Kumar Singhraha Vs St. of M.P.
(2019) 8 SCC 371
14. Smt. Shamim Vs St. of (GNCT of Delhi)
(2018) 10 SCC 509
15. St. Represented by Insp. of Police Vs
Saravanan & anr. AIR 2009 SC 152
16. Arumugam Vs St. AIR 2009 SC 331
17. Mahendra Pratap Singh Vs St. of U.P.
(2009) 11 SCC 334
18. Dr. Sunil Kumar Sambhudayal Gupta &
ors. Vs St. of Mah. JT (2010) 12 SC 287
19. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323
20. Sham Sunder Vs Puran (1990) 4 SCC 731
21. M.P. Vs Saleem (2005) 5 SCC 554
22. Ravji Vs St. of Raj. (1996) 2 SCC 175
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This jail appeal under section 383
Cr.P.C. has been filed by accusedappellant,
Rajesh
through
Senior
Superintendent of Police, Meerut against
judgement and order dated 31.05.2013
passed by Sri Ajay Kumar, Additional
District and Sessions Judge, Court No. 16,
Meerut. By the impugned judgement,
Rajesh has been convicted under Section
302
I.P.C.
and
sentenced
to
life
imprisonment along with fine of Rs.
10,000/-. In case of default in payment of
fine, he has to further undergo one year
additional imprisonment.

2. The prosecution case in short may
be stated as under:-

3. On 28.01.2002, a written report
(Exhibit
Ka-1)
was
presented
by
Informant PW-1, Laxmi, at Police Station
Nauchandi, District- Meerut, stating that
she along with her husband, Dinesh were
residing in Sector-4, Shastri Nagar,
Meerut, in a rented house of Sharda
Sharma. Informant's husband used to pull
rickshaw. Smt. Manglo i.e. Dayawati, Bua
of Informant's husband resided in House
No.114, Sector-3, Shastri Nagar, Meerut.
She was ailing. Informant had gone to see
her in Sector-3, Shastri Nagar. In the
night at about 10:15 PM, her husband
Dinesh went to Sector-3 to take her
(Informant) back to home. When they
reached near Water Tank (Pani ki tanki)
situated in Sector-3, accused Rajesh,
brother in distant relation, who was
hidden in bushes near the corner house
situated on road leading to Sector-4,
suddenly came out and inflicted knife
blow on the neck of Informant's husband
by a knife held in his hand. Resultantly,
Dinesh fell on the ground. Rajesh again
2 All. Rajesh Vs State of U.P.
497
assaulted him with knife. Rajesh had
murdered Informant's husband by knife.
When
she
raised
alarm,
accused
threatened and chased her. She ran and
reached back to house of her husband's
Bua and apprised her of incident. F.I.R.
further says that Rajesh and his elder
brother, Natthi used to reside with
Informant about 9-10 months prior to
lodging of F.I.R. Rajesh and Natthi after
consuming liquor used to quarrel with
Informant's husband. For that reason,
Informant's husband evicted both of them
from his house. Since then, Rajesh bore
enmity and while leaving the house, he
also held threat to Informant's husband
Dinesh that he would settle the score.
Rajesh committed murder of informant's
husband in her presence. She had seen
and recognised Rajesh very well in the
electric light. F.I.R. further states that her
husband's dead body was lying at the spot.

4. On the basis of written report
(Exhibit Ka-1), chik report (Exhibit Ka-2)
was prepared by Head Muharrir, Ram
Bahadur on 28.01.2002 at 23:45 P.M. He
also made an entry of incident in General
Diary at Report no. 32, a copy of which is
Exhibit
Ka-13
on
record.
After
registration of F.I.R, initially case was
investigated by PW-6 S.I., Arun Kumar
Chauhan, who was then S.O. of Police
Station
Nauchandi.
After
obtaining
necessary
documents,
he
recorded
statement
of
PW-1,
Informant
and
witnesses. He visited spot and on pointing
out of PW-1, prepared site plan (Exhibit
Ka-5). He got inquest (Exhibit Ka-2)
prepared by S.I. Manish Kumar Sharma,
who also took blood stained and simple
soil from place of occurrence and
prepared recovery memo in respect
thereof
as
well
as
other
relevant
documents for sending dead body to post
mortem, marked as Exhibit Ka-6 to Ka11.

5. Autopsy on dead body of
deceased Dinesh was conducted by PW-5,
Dr. R.K. Gupta, on 29.01.2002 at 4:00
PM. According to him deceased was aged
about 35 years and duration of death at
the time of post-mortem, was about one
day. Deceased was of average body built
and rigor mortis found present all over the
body. There was no decomposition. He
found following ante-mortem injuries on
the body of deceased:-

"i. Incised wound 13 cm x 4 cm
x bone cut on outer and joint of right side
neck, 4th cervical vertebra cut, blood
vessels, trachea and oesophagus cut,
incised wound 5.5. cm below the chin.

ii. Stab wound 3 cm x 1 cm x
chest cavity deep on front of chest (left
side), 5 cm medial to left nipple at 11 O'
clock positive.

iii. Incised wound 2 cm x 1 cm x
muscle deep on outer side of just upper
arm upper part, 8 cm below left
shoulder." (emphasis added)

6.

On
internal
examination,
membranes of head and neck were found
pale; pleura was lacerated on left side;
both lungs were pale and upper lobe of
left lung was lacerated; right side heart
contained blood weighing 250 gm; left
thoracic cavity contained 700 ml blood. In
the opinion of Doctor, death had occurred
due to shock and haemorrhage as a result
of ante-mortem injuries. Doctor prepared
post mortem report (Exhibit Ka-4).

7. Despite search, accused could not
be arrested and thereafter PW-3 second
498 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer was transferred. It
appears from the statement of PW-4 S.I.
Mahipal Singh, the second Investigating
Officer that since accused could not be
arrested, earlier S.O. Shiv Pooran Singh had
submitted
final
report
in
Court.
On
30.11.2011 PW-1 Informant had made an
application (Exhibit Ka-3) to Police Station,
Nauchandi, that accused Rajesh was residing
near Maliyana Phatak, Meerut and pulling on
rickshaw. On the said application of PW-1,
investigation was undertaken by PW-4 Sri
Mahipal Singh after obtaining requisite
permission from Court. On 05.12.2011
accused was arrested. Thereafter investigation
was undertaken by Smt. Alka Singh, PW-7.
After concluding investigation, she submitted
charge sheet (Exhibit Ka-14). On charge
sheet, cognizance was taken by Chief Judicial
Magistrate, Meerut against accused-appellant
under Section 302 I.P.C. on 27.01.2012.

8. As the case was exclusively
triable by Court of Sessions, learned
C.J.M. committed matter to Court of
Sessions which was registered as Sessions
Trial No. 350 of 2012. Sessions Trial was
transferred to Additional District &
Sessions Judge, Court No.16, Meerut,
who framed charge against accusedappellant on 14.08.2012, which reads as
under:-

"eSa vt; dqekj] vij ftyk ,oa l=
U;k;k/kh'k] d{k la0 16] vki vfHk;qDr jkts'k dks
fuEufyf[kr vkjksiksa ls vkjksfir djrk gwa%&

;g fd fnukad & 28-01-2002 le; jkf=
ds 11 cts LFkku lSDVj 3 ikuh dh Vadh ds ikl
lSDVj 4 dks tkusokyh lM+d ij 'kkL=h uxj Fkkuk
{ks= ukSpUnh ftyk esjB esa vkius oknuh Jherh y{eh
ds ifr fnus'k dks pkdqvksa ls ?kk;y djds
tkucw>dj LosPN;k mldh gR;k dj nh FkhA bl
izdkj vkius ,slk vijk/k dkkfjr fd;k tks /kkjk 302
Hkk-n-la- ds v/khu naMuh; gS vkSj bl U;k;ky; ds
laKku esa gSA

vkSj eSa ,rn~}kjk vkidks funsZf'kr djrk
gwa fd mijksDr vkjksi ds fy;s vkidk fopkj.k bl
U;k;ky; }kjk fd;k tk;sxkA"

"I Ajay Kumar District &
Sessions Judge, Court No. 16 Meerut
charge you accused Rajesh as under:-

That on 28.01.2002 at about
11:00 PM in the night on the road
heading towards Sector-4 near Water
Tank (Pani ki Tanki) in Sector-3 Shastri
Nagar, Police Station Nauchandi, District
Meerut, you intentionally and voluntarily
by causing injuries to deceased with
knife,
killed
Dinesh,
husband
of
informant, Smt. Laxmi. Thereby you
committed such an offence which is
punishable under Section 302 I.P.C. and
within the cognizance of this Court.

I had directed you that will be
tried for the aforesaid charge by this
Court." (emphasis added)
 (English translation by Court)

9. Accused-appellant pleaded not
guilty and asked for trial.

10. -1 Laxmi and PW-2 Ram Pal are
witnesses of fact. Rest are formal
witnesses of Police and Department of
Health.

11. PW-6 S.I. Arun Kumar Chauhan
was the first Investigating Officer who
initiated investigation after lodging of F.I.R.
and has proved site plan (Exhibit Ka-5). He
has also proved inquest (Exhibit Ka-2) and
other documents Exhibit Ka-6 to Ka-11
pertaining to sending of dead body to hospital
for post-mortem. Thereafter investigation was
undertaken by PW-3, S.I. Pooran Singh on
27.05.2002, who tried to arrest accused but
could not succeed and accordingly submitted
2 All. Rajesh Vs State of U.P.
499
final report in the matter. Thereafter
investigation was resumed by PW-4 S.I.
Mahipal Singh, who has proved application
filed by Informant (Exhibit Ka-3) to the effect
that accused-appellant was residing in Meerut
and pulling on rickshaw. PW-7, Smt. Alka
Singh, is the third Investigating Officer, who
has proved charge sheet (Exhibit Ka-14).

12. After closure of prosecution
evidence,
accused-appellant
was
examined under Section 313 Cr.P.C, who
has denied the charge and claimed that he
has been falsely implicated and witnesses
are deposing against him on account of
enmity. He said that he is innocent and
had been pulling rickshaw and had not
committed any crime.

13. On appreciation of evidence on
record and hearing counsel for both the
parties,
Trial
Court
convicted
and
sentenced accused-appellant as mentioned
above. Trial Court has convicted the
accused-appellant
by
recording
its
findings that:

I- There is no delay in lodging
FIR inasmuch as incident is said to have
taken place at 11:00 PM on 28.01.2002
and report was lodged at 23:45 on the
same date, i.e., within 45 minutes.

II- The Informant is eye witness
and mere fact that she is wife of deceased
would not be sufficient to discard her
otherwise trustworthy ocular evidence.

III- There was no difficulty in
identification of accused appellant by Informant
since she knew her from earlier time.

IV-
Production
of
no
independent witness by prosecution was
duly explained by Informant that the place
at which incident occurred, at relevant
time, there was none present and her
submission looking to the time and place
was natural and trustworthy.

V- PW-2, Ram Pal Saini, another
witness of fact, has stated that on the date of
incident, deceased and his wife had gone to
his residence to meet his ailing wife. Deceased
went for his work of Rickshaw pulling after
leaving Informant at the residence of PW-2 at
around 4-4:30 PM and came back at around
9-10 PM. They left his residence at around
10:45 PM and after 15-20 minutes, Informant
came back in a frightened condition and
narrated entire incident. Thereafter, PW-2 and
other family members went to the spot where
they found Dinesh lying dead and accusedappellant had run away. Police prepared
Panchayatnama after seizing dead body of
Dinesh at the place of incident. Post-mortem
report proves that injuries may have been
sustained by a sharp edged weapon which
supports the manner of death of deceased as
explained by PW-1.

VI-
Formal
witnesses
proved
documents and no adverse factor could be
extracted from their cross examination by
defence.

VII- Though, the motive was
not relevant in a case where there is
ocular evidence but motive was explained
by the Informant and nothing otherwise
could
be
extracted
in
her
cross
examination by the defence.

VIII- Though investigation has
not been properly conducted in the case
but for that reason no benefit can be taken
by the accused.

14. Feeling dissatisfied with the
judgment of conviction and sentence,
500 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellant has preferred this Jail
Appeal through Senior Superintendent of
Jail, Meerut.

15. We have heard Sri Saurabh
Sachan, learned Amicus Curiae, Sri P.C.
Joshi, learned A.G.A. and perused record
carefully with valuable assistance of
learned counsel for parties.

16. Learned counsel for the appellant
has challenged conviction and sentence by
Trial Court, raising following issues:-

I- The entire prosecution against
appellant is founded on the statement of
Informant, PW-1, who is the wife of
deceased. She had illicit relation with the
younger brother of deceased and this fact
came
to
be
detected
by deceased
whereupon they both murdered deceased
and have falsely implicated appellant.
This aspect has not been properly
examined by Court below.

II- Informant had motive to
commit
murder
of
deceased
and,
therefore, her conduct ought to have been
properly examined in the matter but that
has not been done by Court below.

III- The sole ocular evidence of
Informant could not have been relied to
convict appellant since she was close
relative of deceased and had reason to
falsely implicate appellant.

IV- Appellant never resided at
the residence of deceased and Informant,
hence there was no occasion of his
eviction by deceased for the alleged
reason that he quarreled with deceased in
drunken condition and for that reason,
accused-appellant in revenge, committed
murder.

V- Even, PW-2 is relative of
deceased and was not present at his house
on the date and time of incident. He was a
tubewell operator and had gone to attend
his duty in the night, but falsely stated in
his statement that on the date of incident,
he had not gone to attend his duty and
was present at his residence. In this
regard, no evidence could be adduced by
him to prove that he had not gone to
attend his duty on that date. The statement
of PW 2 that he had not gone on duty is
false for the reason that in crossexamination, he could not tell as to what
was the time of his duty to attend tubewell
which is unbelievable.

VI- Incident took place on
28.01.2002 while appellant was arrested
by police on 05.11.2012 alleging that
during
checking
at
Shashtri
Nagar
Crossing he was arrested as stated by PW
4, S.I. Mahipal Singh. The story of arrest
given by PW-4 that on the information of
Informant, appellant was arrested is
concocted.

VII- Post-mortem report does
not support the manner in which deceased
has been murdered. No weapon of crime
has been recovered from appellant.

VIII- Prosecution has failed to
prove its case beyond reasonable doubt.

17. Per contra, learned A.G.A.
contended that it is a simple case of hit
and run. Informant and her husband,
while returning from the residence of PW2, where they had gone to see his ailing
wife, when reached the place of incident,
accused-appellant, who was well known
to Informant and her husband, and was
hiding thereat, appeared and attacked
Informant's husband with knife on his
2 All. Rajesh Vs State of U.P.
501
neck and thereafter on his body and when
she raised alarm, he pushed her. She
turned to go towards residence of PW-2.
Thereupon accused-appellant ran after her
also for some time but could not catch
her. She reached residence of PW-2 and
narrated the entire incident. Therefrom
PW-2, his two sons and younger brother
of deceased alongwith Informant came
back to the place of incident and found
deceased, dead. Appellant thereafter ran
away and could be arrested after a long
time, i.e., in 2011. Only thereafter, Police
could submit charge-sheet and therefore,
statements
of
witnesses
have
been
recorded after more than a decade which
may have shown some inconsistencies or
contradictions but the same are minor and
do not impact the otherwise trustworthy
ocular evidence of PW-1, Informant.
Further the manner in which appellant
attacked and committed murder and
various injuries found on the dead body as
reported in post-mortem report fortify
statement of PW-1. Hence appellant has
been rightly convicted and awarded
adequate sentence by Court below. The
judgment is based on evidence and
prosecution succeeded in proving guilt of
appellant beyond doubt, therefore, no
interference is called for in this appeal
and it deserves to be dismissed.

18. We have heard arguments of learned
counsel for both parties and relevant
authorities relied by both the side.

19. As per F.I.R., as also the
statement
of
PW-1,
Informant,
the
incident had taken place near water tank
in Sector 3 on road coming towards
Sector 4. Panchayatnama (Ex.Ka-2) also
shows the place of incident as mentioned
in F.I.R. lodged by Informant, PW-1.
Time of recording of F.I.R. mentioned in
Panchayatnama is 23:45, i.e. 11:45 PM, in
the night on 28.01.2002. Panchayatnama
was prepared at 02:05 AM on 29.01.2002
i.e. within two hours twenty minutes of
recording of F.I.R. The statements of PW1 and PW-2 also mention the same place,
date and time of incident and this is
fortified by statement of PW-5, Dr. R.K.
Gupta who conducted post-mortem and
stated that the time of death could have
been 11:00 PM on 28.01.2002. PW-6,
S.I.,
Arun
Kumar
Chauhan,
is
Investigating
Officer
who
initially
commenced investigation in this case
after recording of F.I.R. He has also
supported the date, time and place of the
incident. He has also proved site plan
which supports place of incident as well
as date and time. In these facts and
circumstances, date, time and place of
occurrence and death of deceased is duly
proved by evidence available on record.
In facts it is also not seriously disputed by
learned
counsel
for
appellant.
He,
however, submitted that he has been
falsely implicated in the case inasmuch as
murder has been committed by Informant
herself in conspiracy with one Lokesh
with whom, she had illicit relations and
appellant has been implicated falsely.

20.

Now,
the
question
for
consideration is "whether prosecution has
proved guilt of accused-appellant beyond
reasonable doubt by adducing adequate
and
trustworthy
evidence
and
he
(appellant) has rightly been convicted by
Court below or not?"

21. In order to examine the aforesaid
issue, it would be appropriate to go
through the evidence on record.

22. As we have already said, in this
case, star witness is Informant herself,
502 INDIAN LAW REPORTS ALLAHABAD SERIES
who is eye witness of the incident. It is
her statement which is foundation of
findings of guilt against appellant. PW-1,
wife of deceased, Dinesh, has stated that
she and her husband were residing in
Sector 4, Shashtri Nagar, Meerut. Her
husband's Bua, Smt. Manglo (wife of PW2, Rampal Saini) was residing in Sector 3.
She was calling husband and wife for last
few days since she was unwell. On the
date of incident, around 10:45 or 11:00
PM, Informant and her husband Dinesh
both were returning from the house of
husband's Bua. When they reached near
Water Tank in Sector 3, from the bushes
standing on side of road, Rajesh, accusedappellant, came out and attacked her
husband with knife on chest and neck. At
that time, road light was glowing in which
she could see Rajesh, accused-appellant,
clearly. She knew Rajesh since earlier.
She tried to protect her husband but
Rajesh, accused-appellant pushed her
away. When she raised alarm, none came.
She started to move towards house of
Bua, Smt. Manglo, whereupon Rajesh,
accused-appellant ran after her with knife
upto some distance but she did not look
back and came running to the residence of
husband's
Bua
and
narrated
entire
incident. Thereupon, Fufa of Informant's
husband, i.e., Ram Pal Saini, his two sons
and
younger
brother
of
deceased
alongwith Informant came to the place of
incident and found Dinesh, husband of
Informant, dead. Rajesh came alongwith
Informant's husband from Kanpur about
9-10
months
back
and
stayed
in
Informant's house for about two months.
He was accompanied by his brother.
Informant's husband told her that Rajesh
was son of his uncle. On one day, Rajesh
and his brother came after taking liquor
and
quarreled
with
her
husband
whereupon they were thrown away from
house. While going, Rajesh threatened
P.W.-1's husband that he will see him. For
this reason, Rajesh committed murder of
her husband. Report was lodged by
Informant through younger brother of
deceased, i.e., Lokesh. At the time when
incident took place, none else was
present. She identified Rajesh in Court
and stated that he had committed murder
of her husband and he is the same person
who stayed in her house for about two
months. She categorically stated that she
was residing in Sector-4, Shastri Nagar
while her husband's Bua was residing in
Sector-3, Shastri Nagar and the incident
took place near Water Tank of Sector- 3,
Shashtri Nagar. In cross-examination, she
stated that she married Dinesh about
seven years prior to the incident. Her
husband were five brothers and two
sisters. Dinesh was eldest and thereafter
Jitendra,
Brijendra,
Rajendra
and
youngest one Lokesh. At the time of
incident, Lokesh was working as a doctor.
Her father-in-law and mother in law both
died earlier. Brothers of her husband used
to visit residence of Informant. At the
time of incident, Lokesh was unmarried.
Rajesh was son of uncle of deceased but
not real uncle. She was not aware whether
Rajesh and his brother were residing at
Kanpur or not. When they came, her
husband told that they were residing at
Kanpur. Her husband was a rickshaw
puller. On the date of incident also, he had
gone to do his work of rickshaw pulling
and came to residence of his Bua in
Sector 3 in the night around 10:00 or
10:30 PM. Distance from house of Bua to
PW-1's
house
was
not
known
in
kilometers but she said that it is 15
minutes' walk. Her husband when came to
take her, had not brought rickshaw since it
was parked at the residence. Rickshaw
was on hire and in the night, it used to be
2 All. Rajesh Vs State of U.P.
503
parked at her residence. She had gone to
residence of Bua on the date of incident at
around 3:45-4:00 PM. Her husband had
gone for Rickshaw pulling the in morning
at 10:00 AM and came in the night at
around 10:00-10:30 PM to take her from
the residence of Bua, Smt. Mango, i.e.,
wife of PW-2, Rampal Saini. Lokesh had
not visited Informant's house but had
come to residence of Bua. Incident took
place on main road and on both sides,
there were houses and shops. People were
residing in the houses. She was not able to
tell as to how much time she took to reach
from the place of incident to residence of
Bua. At that time, Fufa, i.e., PW-2, Ram
Pal Saini, his two sons and younger
brother of deceased were present and Bua
was sleeping on upper storey. When
Informant and other people reached
Police Station, there was none present and
they waited. Thereafter Inspector came.
Report was scribed by Lokesh in the
Police Station itself. She had no issue
from Dinesh. Her parents were residing at
Khurja. After cremation and other rituals,
she went to stay at her parents' residence.
After one year, she solemnized another
marriage with a person residing near
Kanpur, and from said wedlock, she has a
son. Her second husband also died in an
accident. At the time of statement
recorded in Trial Court, i.e., September,
2012, she was residing with her father.
Younger brothers of her husband, Dinesh,
after his death, never came to meet her at
Khurja. When accused-appellant was
arrested, Police visited residence of
Informant alongwith younger brother of
her husband and then she came from
Khurja to Meerut Police Station. She
specifically denied suggestion of illicit
relations with Lokesh, youngest brother of
her husband and further suggestion of
herself committing murder of Dinesh in
conspiracy with Lokesh.

23. Thus, PW-1 in her examinationin-chief, very categorically stated about
manner of death, time and place of
incident. She has stated that it is accusedappellant who has committed murder of
her husband, Dinesh, by inflicting injuries
with knife on chest and neck. F.I.R. was
scribed by Lokesh on being told by her
and she signed the same and proved said
F.I.R. marked as Exhibit Ka-1.

24. There is long cross-examination
of PW-1 but we do not find any
substantial material which could have
been extracted by defence to discredit
ocular version of PW-1. Hence, we find
no reason to disbelieve her. In our view,
statement of PW-1 is natural, pure and
trustworthy. The fact that she is directly a
close relative of deceased and therefore
her statement should not be relied to hold
accused-appellant guilty, has no substance
inasmuch as law is now well settled that
statement of relatives merely on the
ground that he or she is relative, cannot be
discredited or rejected.

25. Normally, when incident takes
place in presence of relatives, it is only
they who come forward to depose against
accused since they are the persons who
would like to see that person who has
committed
crime,
is
given
due
punishment in a Court of law. Such
witnesses would not like to give a wrong
statement against a person who has not
committed crime, and, try to save actual
accused. Mere relationship, therefore, is
no
ground
to
reject
an
otherwise
trustworthy deposition of such witnesses
unless there are other factors to taint such
504 INDIAN LAW REPORTS ALLAHABAD SERIES
statements providing some reason to
doubt the witness.

26. In a catena of judgments
Supreme Court has repeatedly held that a
close relative would be the last to screen
the real culprit and falsely implicate an
innocent person.

27. In Rameshwar Vs. The State of
Rajasthan, AIR 1952 SC 54 at page 59,
Court 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 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."

 (emphasis added)

28. In Masalti Vs. State of U.P.,
AIR 1965 SC 202, Court said:

"Normally close relatives of the
deceased would not be considered to be
interested witnesses."

29. In Hari Obula Reddi and
others v. The State of Andhra Pradesh,
AIR 1981 SC 82, a three-Judge Bench of
Supreme Court has held:

"Evidence
of
interested
witnesses is not necessarily unreliable
evidence. Even partisanship by itself is
not a valid ground for discrediting or
rejecting sworn testimony. It cannot be
laid down as an invariable rule that
interested evidence can never form the
basis of conviction unless corroborated to
a material extent in material particulars
by independent evidence. All that is
necessary
is
that
the
evidence
of
interested witnesses should be subjected
to careful scrutiny and accepted with
caution. If on such scrutiny, the interested
testimony is found to be intrinsically
reliable or inherently probable, it may, by
itself, be sufficient, in the circumstances
of the particular case, to base a
conviction thereon."

 (emphasis added)

30. In Kartik Malhar Vs. State of
Bihar, (1996) 1 SCC 614 Court has
opined as under:-

"A close relative who is a
natural witness cannot be regarded as an
interested
witness,
for
the
term
''interested' postulates that the witness
must have some interest in having the
accused, somehow or the other, convicted
for some animus or for some other
reason."
 (emphasis added)

31. In Pulicherla Nagaraju alias
Nagraja Reddy Vs. State of Andhra
Pradesh, AIR 2006 SC 3010, Court has
observed as follows:

"It is well settled that evidence
of a witness cannot be discarded merely
on the ground that he is either partisan or
interested or close relative to the
deceased, if it is otherwise found to be
trustworthy
and
credible.
The
said
evidence only requires scrutiny with more
care and caution, so that neither the
guilty escapes nor the innocent is wrongly
convicted. If on such careful scrutiny, the
evidence is found to be reliable and
probable, then it can be acted upon."
2 All. Rajesh Vs State of U.P.
505
 (emphasis added)

32. In Harivadan Babubhai Patel
vs. State of Gujarat (2013) 7 SCC 45,
Court observed as under:-

"In view of our aforesaid
analysis, we are unable to accept the
submission of the learned counsel for the
appellant that the evidence of the eye
witnesses should be rejected solely on the
ground that they are close relatives and
interested witnesses."

33. Oral and ocular testimony of
PW-1 is supported by PW-2, who is not
an eye witness to the incident himself but
he corroborates other facts that PW-1
after attack upon her husband (Dinesh) by
Rajesh, came back to residence of Bua
and Fufa and told them about incident and
thereafter Fufa of deceased alongwith his
two
sons
and
younger
brother
of
deceased, went to the place of incident
and found Dinesh, dead. His dead body
was lying at site of incident. Statement of
PW-2,
therefore,
is
corroborating
statement in respect of other facts i.e. first
narration of incident by Informant to PW2 and other persons at his residence and
thereafter their visit to place of incident
and finding dead body of Dinesh.

34. PW-2 has said that not real but
in relation, he is Fufa of deceased Dinesh.
One Manglu, who, in relation, is brotherin-law of PW-2, was married in family of
Dinesh and from that relation, he became
Fufa of Dinesh. At the time when incident
took place, his wife Dayawati was ill.
Deceased and his wife came to see her
around 4-4:30 PM, in evening, whereafter
deceased left his wife at residence of PW2 and himself went to do his work of
rickshaw pulling. He came back in the
night around 9:30-10:00 PM to take his
wife and at around 10:45 PM, they both
walked towards their house. After 15 to
20 minutes, PW-1, Laxmi came back. She
was frightened. She told that Rajesh has
murdered Dinesh by knife near Water
Tank. Thereupon, PW-2 and other family
members went to the place of incident and
found Dinesh lying dead and Rajesh was
not present on the spot. Thereafter, PW-1,
Laxmi, wife of deceased, lodged report in
Police Station and Police came and
prepared Panchayatnama in presence of
PW-2. He also signed Panchayatnama and
proved said document which was marked
as Exhibit Ka-2. In cross-examination,
PW-2 stated that he was residing in House
No.114, Sector 3, Shashtri Nagar, Meerut.
At the time of incident also, he was
residing at the same address. His wife was
ill at that time. His family comprised of
his sons, namely, Subhas and Kiran Pal,
their wives and wife of PW-2. All were
residing with PW-2 in the said house. His
wife remained ill for about 5 years and
more but exact disease could not be
diagnosed. Dinesh, at the time of incident,
was residing in Sector 4, Shashtri Nagar.
He was 5 brothers. Dinesh used to reside
alone and his other brothers were residing
at some other places, not known to him.
Dinesh never took wife of PW-2 to any
doctor for treatment. Dinesh was earning
livelihood by pulling rickshaw. On the
date of incident, Dinesh and his wife had
come to see wife of PW-2 and no other
relative of PW-2 had come on that date.
Laxmi, PW-1 came to the house of PW-2
on date of incident at around 4:00 PM and
went in night. PW-2 was working as
Tubewell Operator in Nagar Nigam.
Tubewell was in Sector 2, Shashtri Nagar.
On the date of incident, PW-2 had not
gone on duty and was present at his
residence. In the night, Dinesh alone came
506 INDIAN LAW REPORTS ALLAHABAD SERIES
to take his wife and stayed for about half
an hour. He came about 10-10:15 PM, in
night. He came on foot. After Dinesh and
his wife left residence of PW-2, he ,i.e.,
PW-2 and his family had not gone to
sleep. Question of sleeping does not arise
since Laxmi came with information of
incident just within 15 to 20 minutes. She
came alone. When she came, both sons
and their wives, PW-2 and Lokesh were
present. Lokesh had come to house of
PW-2 in the night at around 9:30 PM. On
the date of incident, Lokesh and Dinesh
had met at residence of PW-2. After
information
given
by
PW-1
about
incident, PW-2, his two sons and Lokesh,
all went to the place of incident and saw
dead body of Dinesh. He has also proved
Panchayatnama and in cross-examination,
has clarified that Police came to place of
incident during his presence and prepared
Panchayatnama whereupon he had also
signed. He has also stated that street light
was present at the place of incident and
light was glowing. This part also fortifies
statement of PW-1 regarding presence of
light in the manner stated by PW-1.
Suggestion made on behalf of defence
that Laxmi, PW-1 and Lokesh were
having illicit relations and therefore, may
have caused murder of Dinesh has been
specifically denied by him. In fact in long
cross-examination,
defence
has
completely failed to make out any
material contradiction or inconsistencies
or otherwise fact to discredit statement of
PW-2 which supports that part of
deposition of PW-1 that she had gone to
residence of PW-2 to see his ailing wife,
came back around 10:45 or 11:00 PM
from his house and within 15 to 20
minutes, entire incident took place and
she went back, gave information to PW-2
and then PW-2 and other family members
came to place of incident and found dead
body of deceased lying on place of
incident
in
respect
whereto
Panchayatnama
was
also
prepared.
Therefore, we find that statement of PW-2
in
this
regard,
is
also
clear
and
trustworthy.

35. Amongst the remaining witness,
who are formal, we find that witnesses,
who themselves had some information in
connection with incident, are PW-3, PW4, PW-5, PW-6 and PW-7. Reason being
that incident took place on 28.01.2002 but
accused was arrested on 05.12.2011,
charge was framed on 18.08.2012 and
trial commenced thereafter. There was a
gap of about 10 to 12 years from date of
incident and time when witnesses were
examined. On account of this lapse of
long time, some dates have been given
wrongly by some witnesses.

36. PW-3, S.I. Pooran Singh was
posted as Station House Officer in Police
Station Nauchandi on 07.05.2002. He
took over investigation of case from
earlier Investigating Officer, Ajay Kumar,
Sub-Inspector. He deposed that he tried to
find out accused on various dates but
when failed, submitted final report. In
cross-examination, he admitted of having
not visited spot and said that it must have
been done by earlier investigating officer.
He has also not taken any statement. He
said that he only made investigation by
searching out accused but when failed to
do so, submitted final report. He did not
make any investigation with respect to
said incident.

37. PW-4, S.I. Mahipal Singh,
Police
Officer,
who
alongiwth
Investigating Officer, Alka Singh and
other Police Officers arrested accused on
05.12.2011, has proved this fact. He was
2 All. Rajesh Vs State of U.P.
507
posted as Sub-Inspector in Police Station
Nauchandi on 30.11.2011. Due to non
arrest of accused, earlier Investigating
Officer, Pooran Singh Chauhan had
submitted final report. But, on 30.11.2011
Informant gave a tehrir that accused
Rajesh was residing near Maliyana Gate,
Meerut and pulling rickshaw. Thereafter,
PW-4 took permission from Court to
proceed
with
investigation
and
on
05.12.2011, arrested accused-appellant
near Shashtri Nagar Crossing. Accused
was identified by Jitendra Saini, brother
of
deceased.
Information
given
by
Informant regarding presence of accused
at Meerut, was proved by PW-4 and it
was marked as Exhibit Ka-3. In crossexamination, he has also said that after
arrest, accused told that knife by which he
committed murder of Dinesh, was thrown
by him in Sector 3 near Tubewell
whereupon PW-4 alongwith accused
came to the said place and made attempt
to find out weapon of murder but since it
was 10 years old incident, there was no
chance of recovery and it could not be
recovered. On the aspect of arrest though
lot of cross-examination has been made
but we do not find any substantial
material extracted by defence to discredit
this part of statement of PW-4.

38. PW-5, Dr. R.K. Gupta, posted as
Medical Officer in mortuary of Medical
College,
conducted
post-mortem
on
29.01.2002 at 4:00 PM. He has noted
injuries on dead body as we have already
noticed.