# Rakesh Kumar Pandey @ Daddu Pandey v. State of U.P

- **Citation:** (2023) 1 ILRA 622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Criminal Appeal No. 3544 of 2012
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-pandey-daddu-pandey-v-state-of-u-p-49168
- **Pages:** 16

## Headnote

A. Criminal Law - Indian Penal Code,1860
- Sections 302 - Murder - Appeal against
conviction and Sentence - Related and
interested witnesses - Reliability - Rajesh
Yadav's case relied upon - A close relative
cannot be characterised as an 'interested'
witness. He is a 'natural' witness. His
evidence, however, must be scrutinised
carefully. If on such scrutiny, his evidence
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
623
is
found
to
be
intrinsically
reliable,
inherently
probable
and
wholly
trustworthy, conviction can be based on
the "sole" testimony of such witness.
Close relationship of witness with the
deceased or victim is no ground to reject
his evidence - Held, The court below has
accepted the prosecution case relying
upon the testimony of PW-2 and PW-3
without subjecting it to careful scrutiny
and analysis. The fact that PW-2 and PW-3
are chance and interested witnesses and
their testimony leaves many unexplained
aspects are left totally untouched - High
Court
disapproved
the
judgment
of
conviction. (Para 35 and 61)
Appeal allowed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,971 of 53,961. This is a partial read: ask again with offset=39971 for what follows._

622 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant for offence punishable under
Section 302 I.P.C. and Section 25 Arms
Act. The learned trial court has rightly
convicted and sentenced the appellant for
the offences as mentioned above, according
to law, which requires no interference.

42. Considering the overall facts and
circumstances of the case, we are of the
opinion that there is no illegality or
perversity in the impugned common
judgment of conviction and order of
sentence dated 16.12.2004 passed by
Additional District & Sessions Judge, Fast
Track Court No.4, Hardoi in Sessions Trial
No.673 of 2003 ( State Vs. Amitabh Dixit),
arising out of Case Crime No.209 of 2003,
under Sections 302/307 I.P.C., Police
Station- Shahabad, District- Hardoi, and
Session Trial No. 674 of 2003 (State vs.
Amitabh Dixit), arising out of Case Crime
No. 266 of 2003, under Section 25 Arms
Act, Police Station- Shahabad, District
Hardoi,
whereby
the
appellant
was
convicted for offence punishable under
Section 302 I.P.C. and Section 25 Arms
Act and was sentenced to undergo
imprisonment for life along with fine of
Rs.5000/- under Section 302 I.P.C. and
further to undergo rigorous imprisonment
for two years along with fine of Rs.500/-
under Section 25 of Arms Act, in default of
payment of fine, to undergo additional
simple
imprisonment
for
two
years.
Consequently, the impugned judgment of
conviction and order of sentence dated
16.12.2004 passed by Additional District &
Sessions Judge, Fast Track Court No.4,
Hardoi is, hereby, upheld.

43. The instant criminal appeal is,
accordingly, dismissed.

44. Since the appellant Amitabh Dixit
is on bail, his personal bonds are cancelled
and the sureties are discharged. The trail
court concerned shall cause him to be
arrested and lodge in jail to serve out the
remaining sentence awarded to him by the
trial court.

45. Let certified copy of this
judgment along with lower court record be
transmitted to the trial court concerned
immediately for information and necessary
compliance.
----------
(2023) 1 ILRA 622
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 3544 of 2012

Rakesh Kumar Pandey @ Daddu Pandey
 ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Apul Misra, Sri A.N. Pandey, Sri D.M.
Tripathi, Sri Lav Srivastava, Sri Prabha
Shanker Mishra, Sri Tarun Pratap Singh, Sri
Saghir Ahmad, Sri V.P. Srivastava (Sr.
Adv.), Sri Manish Tiwari (Sr. Adv.)

Counsel for the Opposite Party:
G.A., Sri Sheshadri Trivedi, Sri Satish
Trivedi, Sr. Adv.

A. Criminal Law - Indian Penal Code,1860
- Sections 302 - Murder - Appeal against
conviction and Sentence - Related and
interested witnesses - Reliability - Rajesh
Yadav's case relied upon - A close relative
cannot be characterised as an 'interested'
witness. He is a 'natural' witness. His
evidence, however, must be scrutinised
carefully. If on such scrutiny, his evidence
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
623
is
found
to
be
intrinsically
reliable,
inherently
probable
and
wholly
trustworthy, conviction can be based on
the "sole" testimony of such witness.
Close relationship of witness with the
deceased or victim is no ground to reject
his evidence - Held, The court below has
accepted the prosecution case relying
upon the testimony of PW-2 and PW-3
without subjecting it to careful scrutiny
and analysis. The fact that PW-2 and PW-3
are chance and interested witnesses and
their testimony leaves many unexplained
aspects are left totally untouched - High
Court
disapproved
the
judgment
of
conviction. (Para 35 and 61)
Appeal allowed. (E-1)
List of Cases cited:-
1. Rajesh Yadav & anr. Vs St. of U.P., 2022
online SC 150
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is directed against
judgment
and
order
passed
by
the
Additional Sessions Judge (Ex-cadre),
Court No.20, Allahabad, dated 31.7.2012,
in Sessions Trial No.99 of 2006, arising out
of Case Crime No.152 of 2005 under
Section 302 IPC, Police Station Khuldabad,
District Allahabad as well as in Sessions
Trial No. 100 of 2006, arising out of Case
Crime No.169 of 2005, under Section 3/25
of the Arms Act, Police Station Khuldabad,
District Allahabad, convicting the accused
appellant under Section 302 IPC read with
Section 3/25 of the Arms Act and
sentencing him to rigorous imprisonment
for life and Rs.5,000/- fine under Section
302 IPC and on failure to deposit the fine to
undergo additional rigorous imprisonment
for a year; five years imprisonment under
Section 3/25 of the Arms Act and
Rs.2,000/- fine and on failure to deposit the
fine to undergo additional imprisonment for
six months. All punishments are to run
concurrently.

2. First informant in the present case
is one Sudhir Kumar Dwivedi (PW-1) who
has lost his brother Suresh Kumar Dwivedi
in the incident in question. Prosecution case
is that the deceased was going on his
motorcycle on 18.7.2005, at about 8.45 pm,
from Rajrooppur to Beniganj in Allahabad.
When he reached Chak Niratul Badi
Maszid two persons fired on him due to
which he died. The assailants fled towards
Karbala. The incident is alleged to have
been seen by Sushil Kumar Tripathi (PW3), who happens to be the first cousin of the
deceased and; Nagendra Kumar Dwivedi
(PW-2), the nephew of the deceased;
alongwith others and that they can
recognize the assailants on seeing them,
since there was sufficient light at the place
of occurrence. On account of the incident
members of public started running helterskelter and an atmosphere of terror was
created in the locality. The shutters of
shops were pulled down and there was
complete chaos.

3. The prosecution case further is that
informant's other brother namely, Surendra
Kumar Dwivedi was earlier killed on
14.5.2004. Accused Rakesh Kumar Pandey
@ Daddu Pandey and Munna Pandey were
accused of murdering him. The deceased
Suresh Kumar Dwivedi was the informant
in respect of murder of his brother Surendra
Kumar Dwivedi. The bail application of
accused
Rakesh
Kumar
Pandey
was
allowed and he was enlarged on bail while
that of Munna Pandey was rejected by the
High Court. The deceased Suresh Kumar
Dwivedi was to appear as the prosecution
witness in that case and he has been
eliminated so that he may not survive to
support the prosecution case and accused
624 INDIAN LAW REPORTS ALLAHABAD SERIES
Munna Pandey be released on bail. The
Court
is
further
informed
that
the
prosecution in the murder case of Surendra
Kumar Dwivedi ended in acquittal of
accused as the main witness, namely
Suresh Kumar Dwivedi, could not depose
and other witnesses turned hostile.

4. The informant's family was
allegedly on inimical terms with Awadh
Narain Pandey and his two sons Rakesh
Kumar Pandey @ Daddu Pandey i.e.
accused appellant and Munna Pandey. This
enmity
is
the
alleged
reason
for
commissioning of crime in this case.

5. The two eye-witnesses, who have
come forward to support the prosecution
version namely PW-2 and PW-3, are close
relatives and the primary issue to be
examined in this appeal is the credibility
and reliability of these eye-witnesses. PW1 is the first informant, who got the written
report in respect of the above incident
scribed from PW-3, on the basis of which
the first information report was lodged and
registered as Case Crime No. 152 of 2005,
under Section 302 IPC. Two unknown
persons were shown as accused in the FIR.

6. Pursuant to the FIR registered in
this case the Investigating Officer collected
bloodstained and plain earth from the place
of
occurrence
vide
Ex.
Ka-4.
The
motorcycle of deceased was also recovered
and was given in custody of the first
informant.
The
inquest
proceedings
commenced at 6.30 am and ultimately
concluded at 8.00 am on 19.7.2005. The
delay apparently was explained stating that
sufficient light was not available at the
place of occurrence.

7. Various injuries were noticed on
the deceased in the inquest and the inquest
witnesses opined that the deceased had died
on account of gunshot injuries sustained by
him. The body was sealed and sent for
postmortem. The postmortem has been
conducted on 19.7.2005 and following
ante-mortem injuries have been found on
the body of the deceased:-

"1. Firearm wound of entry 5cm x
3cm in front of right ear adjacent to labula.
Blackening and tattooing present. Depth of
wound brain cavity deep. Blood present in
brain cavity. Right temporo-parital and left
temporal base fracture. Four piece of pallet
and wedding piece recovered from brain
cavity
direction
to
wound
front
to
backward region obliquely left side. Right
mandible fracture.

2. Firearm wound of entry 2cm x
2cm thoracic region deep on the right side
of the chest 5cm below the mid point of
right clavicle. Blackening and tattooing
present directed from front to back slightly
oblique. Bullet recovery from heart.

3. Abraded contusion 6cm x 4cm
on the left shoulder."

8. The two eye-witnesses to the
incident, namely PW-2 and PW-3, did not
know the assailants from before, although it
was claimed that they could recognize the
assailants. PW-2 claims that he visited a
relative at Village Imli and there he saw
one of the two assailants, namely the
accused appellant. On enquiry the assailant
was identified as Rakesh Kumar Pandey
i.e. the accused appellant. PW-2 claims to
have
returned
and
informed
the
Investigating Officer about the identity of
one of the accused who had fired at the
deceased. On the basis of aforesaid
disclosure made by PW-2, with regard to
identity of assailant, the police arrested the
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
625
accused appellant on 2.8.2005. From his
possession a .315 bore Tamancha was
recovered and accused confessed that this
is the same firearm with which he shot the
deceased. Recovery of country-made pistol,
live cartridges and memo of arrest of
accused was consequently prepared vide
memo of recovery marked as Ex. Ka-16. A
first information report was also lodged
under Section 3/25 of the Arms Act being
Case Crime No.169 of 2005.

9. The investigation proceeded and
ultimately two chargesheets came to be
filed before the concerned magistrate in
Case Crime No. 152 of 2006 on 26.8.2005
and in Case Crime No.169 of 2005 on
29.10.2005 (Ex. Ka-18 and Ex. Ka-15
respectively). The District Magistrate also
sanctioned prosecution under Section 39 of
the Arms Act vide his order dated
18.8.2005. Session Trial No. 99 of 2006
was registered in respect of Crime No.152
of 2005, under Section 302 IPC and
Sessions Trial No. 100 of 2006 was
registered in respect of Case Crime No. 169
of 2005, under Section 3/25 of the Arms
Act. The charges were read out to the
accused on 22.3.2006, who denied the
charges and demanded trial.

10. The prosecution in order to
establish the guilt of the accused adduced
documentary evidence in the form of
written
report
(Ex.Ka-1),
FIR
dated
18.7.2005 (Ex.Ka-20), FIR dated 3.8.2005
(Ex.Ka-22), postmortem report (Ex.Ka-2),
site plan with index dated 19.7.2005
(Ex.Ka-3), recovery memo of countrymade pistol, live cartridges and memo of
arrest (Ex.Ka-16), recovery memo of blood
stained and plain earth (Ex.Ka-4), recovery
memo of Chappal (Ex.Ka-5), recovery
memo & supurdaginama of motorcycle
(Ex.Ka-6),
Panchayatnama
(Ex.Ka-7),
chargesheet dated 26.8.2005 (Ex.Ka-18),
chargesheet dated 29.10.2005 (Ex.Ka-15),
order of District Magistrate (Ex.Ka-19),
site plan with index dated 29.10.2005 (Ex.
Ka-14) and site plan with index dated
4.8.2005 (Ex.Ka-17).

11. Prosecution has also adduced oral
evidence of Sudhir Kumar Dwivedi (first
informant)
(PW-1),
Nagendra
Kumar
Dwivedi
(PW-2)
and
Sushil
Kumar
Tripathi (PW-3). Dr. A.P. Tripathi, who
had conducted the autopsy, has been
produced as PW-4. Mahmood Alam (PW5), Krishna Kant Tiwari (PW-6), Praduman
Kumar Singh (PW-7), Mahabali (PW-8),
Shavimuddin (PW-9), Rajaram (PW-10)
and Dhanush Dhari Pandey (PW-11) are
formal witnesses.

12.

PW-1
has
supported
the
prosecution case and has stated that the
deceased was coming from Rajrooppur to
Beniganj by a motorcycle and was
followed by two assailants, who shot him
dead. The accused fled towards Karbala.
PW-1 and PW-2 alongwith others have
seen the incident in the street light and the
assailants can be identified by them. He has
implicated the appellant on the ground that
deceased was a witness in the trial in the
murder case of his brother Surendra Kumar
Dwivedi and the deceased allegedly has
been done to death so that the accused
Munna Pandey could be enlarged on bail.
In the cross-examination PW-1 has stated
that there was a dispute relating to land
between father of the accused appellant and
the informant.

13. The witness PW-1 has also denied
the suggestion that on account of enmity
the accused appellant has been falsely
implicated. PW-1 in the cross-examination
has stated that he reached the place of
626 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence at 9.00 pm and only 10 minutes
thereafter the Investigating Officer arrived.
When the Investigating Officer arrived
PW-3 also came to the place of occurrence.
On the enquiry by Investigating Officer
PW-3 informed that he is literate person
and on the asking of PW-1 the FIR was
scribed by PW-3.

14. PW-2 has also supported the
prosecution case. He has stated that the
deceased was coming from Beniganj to
Rajrooppur. His motorcycle was got
stopped by two persons. PW-2 and PW-3
claims to have been present and seen the
incident. Initially the two assailants talked
to deceased, which turned into a hot talk
and abuses were hurled on deceased,
whereafter the assailants fired one gunshot
each at the deceased. PW-2, however,
claims that he was not aware of the identity
of the accused. PW-2 has recognized and
identified the accused appellant, in the
Dock, as being one of the two assailants,
who fired on the deceased. PW-2 has
claimed that by the time he reached the
deceased, he had already died. Leaving the
dead body at the place of occurrence PW-2
left for Beniganj and informed PW-1 of the
incident. PW-1 and PW-3 thereafter came
on the spot. PW-2, however, remained at
Beniganj.

15. On the next day PW-2 left for his
village and informed the family members
about the incident. After 2-3 days he visited
Village Imli where he saw the accused
appellant. On inquiry from the villagers he
could ascertain the identity of the accused
appellant. In the cross-examination he,
however, admitted that he had not informed
the Investigating Officer that he was coming
from Rajrooppur or that he had gone to meet
the deceased at Rajrooppur. No reasons for
meeting the deceased was disclosed either.

16. The deceased was although the
uncle of PW-2, yet he did not return to
enquire about the condition of the deceased.
He further admitted that his statement was
not recorded on the day of incident or the day
thereafter, as he had gone to his native village
and thereafter to Village Imli and only
thereafter his statement was recorded under
Section 161 Cr.P.C. He claims that he did not
know the accused from before and was also
not aware as to whether the identification of
other accused was undertaken in jail or not.
He, however, admitted later that he visited
the jail for identification of Rajesh Kumar
Mishra but he was not identified as one of the
assailants.

17. PW-3 has stated in his sworn
testimony that he was at a distance of about
10-15 paces when he heard the gunshot
injury and by the time he reached the spot
the accused had fled on their motorcycle.
PW-3 claims to have accompanied PW-2
for going to Rajrooppur from Beniganj.
PW-3, unlike PW-2, claims to have
signalled the deceased to stop when they
crossed each other, but the deceased had
moved ahead. By the time he returned to
the deceased he found that the two
assailants were abusing the deceased and
shot him dead. By the time PW-3 reached
the place of occurrence, the deceased had
already died and the accused had fled.

18. PW-3 has also identified the
accused appellant in the dock as being the
accused who fired at the deceased. PW-3
has, however, identified a different place as
being the place of occurrence from the one
informed by PW-2. As per PW-3 the place
of occurrence was at G.T. Road, whereas
the place of occurrence as per the
prosecution is on Rajrooppur-Beniganj
Road. The two eye-witnesses are therefore
not consistent with each other in their
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
627
testimony with regard to the place of
incident. There is a distance of nearly 600
metres between the locations identified by
them.

19. PW-3 claims that he had gone to
meet the deceased but he left for
Rajrooppur after getting to know that
deceased had left for Rajrooppur. This
disclosure, however, was not made to the
police under Section 161 Cr.P.C. This
witness has denied the suggestion that he
has not seen the incident and that the
incident had already occurred by when he
reached the place of occurrence.

20. The doctor and other formal
witnesses have also supported the prosecution
case. The incriminating material collected
against the accused has been put to him under
Section 313 Cr.P.C. The accused has stated
that though he was an accused in the murder
of Surendra Kumar Dwivedi but he was
falsely implicated and the proceedings have
resulted in his acquittal. About the FIR he
claims that its registration was
after
consultation with police. He has also denied
the recovery of firearm from him and has
alleged that he was arrested from his house.
He specifically asserted that due to enmity he
has been falsely implicated in the matter.

21. Trial court on the basis of
evidence led by the prosecution during trial
has found the charges to be proved against
the accused under Section 302 IPC and
Section 3/25 of the Arms Act. Life
sentence under Section 302 IPC alongwith
lesser sentence under the Arms Act and
fine etc. has been awarded to the accused
appellant. Thus aggrieved, the accused
appellant is before this Court.

22. Sri Manish Tiwari, learned Senior
Counsel assisted by Sri D.M. Tripathi for
the appellant submits that the accused
appellant has been falsely implicated in the
present case on account of old enmity, and
that
the
two
eye-witnesses
are
not
trustworthy. Various contradictions in the
statement of witnesses have been pointed
out in order to allege that the witnesses are
not reliable. He further submitted that the
conduct of witnesses in leaving the dead
body at the place of occurrence; not taking
the deceased to the hospital for medical aid;
not being a witness of inquest proceedings
etc. clearly go to show that the alleged eyewitnesses were actually not present at the
spot when the incident occurred. Argument
is that this is a case of blind murder on
account of involvement of deceased in
property dealing and merely because there
was an old enmity with the accused
appellant, therefore, he has been falsely
implicated in the matter.

23. Sri Tiwari also argued that there
was no source of light available at the place
of occurrence for the assailants to have
been recognized. He further submitted that
though various shops etc. were in existence
in the vicinity but no independent witness
has come forward to testify and merely on
the strength of suspicion, due to old enmity,
the accused appellant has been implicated.
Submission is that the judgment of
conviction and sentence is contrary to the
weight of evidence and material available
on record.

24. Per contra, learned AGA and Sri
Satish Trivedi, learned Senior Counsel
assisted by Mr. Sheshadri Trivedi for the
informant submits that this is a case of
murder of an eye-witness only to ensure
that the deceased may not testify against
Munna Pandey, so that he may be enlarged
on bail. He further submits that there was
sufficient light on the spot. It is also urged
628 INDIAN LAW REPORTS ALLAHABAD SERIES
that eye-witnesses account is wholly
natural and believable and the judgment of
conviction and sentence is well reasoned
and requires no interference.

25. In the facts of this case we are
therefore required to examine whether the
incident occurred in the manner stated by
the prosecution; the two eye-witnesses PW2 and PW-3 are reliable and trustworthy;
whether there was sufficient light on the
spot in which the assailants could be
recognized; the conduct of witnesses are
natural and inspiring and whether the court
below has rightly returned the finding of
guilt against the accused and the sentence is
just, fair and proper?

26. We have carefully examined the
testimony of the two eye-witnesses PW-2
and PW-3. As per prosecution the incident
occurred when the deceased was going on a
motorcycle from Rajrooppur to Beniganj.
He was all alone on his bike. The two
accused allegedly stopped the deceased;
hurled abuses at him and fired one shot
each causing his death. The place of
incident is Rajrooppur-Beniganj Road near
Chak Niratul Badi Maszid falling within
the limits of Khuldabad Police Station. The
time of incident is around 8.45 pm on 18th
July, 2005.

27. The site plan is on record. The
road coming from Rajroopur joins the old
G.T. Road. There is a narrower road
originating from this road joining G.T.
Road, through Karbala, a little further
towards east on G.T. Road. On one side of
this road is Chakia locality having cluster
of houses and shops of Raj Kumar, Satish
Kumar, Pappu Verma and Santosh etc.,
while on the other side of the road is
Mohalla Chak Niratul followed with a lane
whereafter is the house of Shyam Carpenter
and house of Farrukh followed with the
mosque of Chak Niratul. The place is
surrounded by small shops and houses of
various persons and is just in front of the
mosque. It transpires that there are shops
and houses of various persons around the
place of incident and thus existence of
public around the place of occurrence is
natural and probable. However, none has
been produced by the prosecution from the
nearby shops or houses nor any endeavour
is made to enquire from the local residents
about the manner in which the incident
occurred.

28. The prosecution has placed
reliance upon the three witnesses of fact,
namely PW-1, PW-2 and PW-3. So far as
PW-1 is concerned, he is not an eyewitness to the incident. His testimony is
based upon the disclosure of facts made to
him by PW-2 and PW-3. His personal
knowledge is limited to the aspect of
enmity between the parties i.e. the accused
family and the informant family. PW-1
came to the police station to lodge the
report. PW-3 is the scribe of the written
report (Ex.Ka-1). PW-1 has verified the
contents of the written report. In his crossexamination PW-1 has stated that he
arrived at the place of occurrence at 9.00
pm and the Investigating Officer came ten
minutes thereafter. When the Investigating
Officer arrived, at about the same time PW3 also came.

29. PW-2 is the first eye witness
produced by the prosecution. He is 19 years
of age and is a resident of Pure Bunapurwa,
Police
Station
Sarai
Akil,
District
Allahabad and is a student. He claims that
it was around 9.00 or quarter to 9.00 when
he was coming alongwith PW-3 from
Beniganj to Rajrooppur. The deceased was
coming from the opposite direction i.e.
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
629
Beniganj to Rajrooppur when the two
assailants stopped him a little ahead of the
mosque. PW-2 is the nephew of the
deceased and claims to have seen the
incident.

30. The purpose of visit of PW-2 is
not disclosed. This witness has not
disclosed
his
place
of
residence
in
Allahabad nor any specific reason is
disclosed for having gone to meet the
deceased or returning from Rajrooppur to
meet him. It is not even alleged that this
was his daily route. His presence at the spot
in connection with any specific purpose is
also not established. In his statement under
Section 161 Cr.P.C. PW-2 has not claimed
that he was going to meet the deceased. No
reason for meeting the deceased is
disclosed either. Thus, from the testimony
of PW-2 it can safely be deduced that he is
a chance witness.

31. Before proceeding with the matter
any further it would be worth examining
the circumstances relating to the presence
of PW-3 at the place of occurrence, at this
juncture. PW-3 is a resident of Karela Bagh
Colony and is aged about 48 years. He is
doing some job. He claims that he was
going alongwith PW-2 from Beniganj to
Rajrooppur. The deceased was the son of
his father's sister (Bua) and thus PW-3 was
the first cousin of the deceased. He has,
however, disclosed the place of occurrence
to be on the G.T. Road, contrary to the
prosecution case of incident occurring on
Rajrooppur-Beniganj Road. He too claims
that he had gone to meet the deceased at
Beniganj where he came to know that he
had gone to Rajrooppur and so PW-3 was
also going to Rajrooppur. PW-3 also had
not disclosed this fact to the Investigating
Officer in his statement under Section 161
Cr.P.C. nor even the purpose of his visit
was disclosed to the Investigating Officer.
This witness too is thus a chance witness.

32. There is yet another aspect, which
has to be borne in mind before evaluating
the testimony of PW-2 and PW-3. Both
PW-2 and PW-3 are related to the deceased
being his nephew and cousin. There is an
admitted old enmity between the deceased
and the accused. Enmity can be the cause
for committing the offence and can also be
the cause for false implication.

33. The two witnesses nevertheless
are related to the deceased and apparently
would be interested in conviction of the
accused. They would thus fall in the
category of interested witnesses. The Court,
therefore, has to be careful in evaluating
their testimony upon whom the prosecution
case rests.

34. Law with regard to chance
witness and interested witness has been
summed up, recently, by the Supreme
Court in Rajesh Yadav and another Vs.
State of U.P., 2022 online SC 150. In
paragraph 26 and 27 of the judgment the
Court has observed as under:-

"26. A chance witness is the one
who happens to be at the place of
occurrence of an offence by chance, and
therefore, not as a matter of course. In other
words, he is not expected to be in the said
place. A person walking on a street
witnessing the commission of an offence
can be a chance witness. Merely because a
witness happens to see an occurrence by
chance, his testimony cannot be eschewed
though a little more scrutiny may be
required at times. This again is an aspect
which is to be looked into in a given case
by the court. We do not wish to reiterate
the aforesaid position of law which has
630 INDIAN LAW REPORTS ALLAHABAD SERIES
been clearly laid down by this Court in
State of A.P. v. K. Srinivasulu Reddy,
(2003) 12 SCC 660:

"12.
Criticism
was
levelled
against the evidence of PWs 4 and 9 who
are independent witnesses by labelling
them as chance witnesses. The criticism
about PWs 4 and 9 being chance witnesses
is also without any foundation. They have
clearly explained as to how they happened
to be at the spot of occurrence and the trial
court and the High Court have accepted the
same.

13. Coming to the plea of the
accused that PWs 4 and 9 were "chance
witnesses" who have not explained how they
happened to be at the alleged place of
occurrence, it has to be noted that the said
witnesses were independent witnesses. There
was not even a suggestion to the witnesses
that they had any animosity towards any of
the accused. In a murder trial by describing
the
independent
witnesses
as
"chance
witnesses" it cannot be implied thereby that
their evidence is suspicious and their
presence at the scene doubtful. Murders are
not committed with previous notice to
witnesses; soliciting their presence. If murder
is committed in a dwelling house, the inmates
of the house are natural witnesses. If murder
is committed in a street, only passers-by will
be witnesses. Their evidence cannot be
brushed aside or viewed with suspicion on
the ground that they are mere "chance
witnesses". The expression "chance witness"
is borrowed from countries where every
man's home is considered his castle and
everyone must have an explanation for his
presence elsewhere or in another man's castle.
It is quite unsuitable an expression in a
country where people are less formal and
more casual, at any rate in the matter
explaining their presence."

27. The principle was reiterated
by this court in Jarnail Singh v. State of
Punjab, (2009) 9 SCC 719:

"21. In Sachchey Lal Tiwari v.
State of U.P. [(2004) 11 SCC 410: 2004
Supp SCC (Cri) 105] this Court while
considering the evidentiary value of the
chance witness in a case of murder which
had taken place in a street and a passerby
had deposed that he had witnessed the
incident, observed as under:

If the offence is committed in a
street only a passerby will be the witness.
His evidence cannot be brushed aside
lightly or viewed with suspicion on the
ground that he was a mere chance witness.
However, there must be an explanation for
his presence there.

The Court further explained that
the
expression
"chance
witness"
is
borrowed from countries where every
man's home is considered his castle and
everyone must have an explanation for his
presence elsewhere or in another man's
castle. It is quite unsuitable an expression
in a country like India where people are
less formal and more casual, at any rate in
the matter of explaining their presence.

22. The evidence of a chance
witness requires a very cautious and close
scrutiny and a chance witness must
adequately explain his presence at the place
of occurrence (Satbir v. Surat Singh
[(1997) 4 SCC 192 : 1997 SCC (Cri) 538],
Harjinder Singh v. State of Punjab [(2004)
11 SCC 253 : 2004 Supp SCC (Cri) 28],
Acharaparambath Pradeepan v. State of
Kerala [(2006) 13 SCC 643 : (2008) 1 SCC
(Cri) 241] and Sarvesh Narain Shukla v.
Daroga Singh [(2007) 13 SCC 360 : (2009)
1 SCC (Cri) 188]). Deposition of a chance
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
631
witness whose presence at the place of
incident
remains
doubtful
should
be
discarded (vide Shankarlal v. State of
Rajasthan [(2004) 10 SCC 632 : 2005 SCC
(Cri) 579]).

23. Conduct
of
the
chance
witness, subsequent to the incident may
also be taken into consideration particularly
as to whether he has informed anyone else
in the village about the incident (vide
Thangaiya v. State of T.N. [(2005) 9 SCC
650 : 2005 SCC (Cri) 1284]). Gurcharan
Singh (PW 18) met the informant Darshan
Singh (PW 4) before lodging the FIR and
the fact of conspiracy was not disclosed by
Gurcharan Singh (PW 18) and Darshan
Singh (PW 4). The fact of conspiracy has
not been mentioned in the FIR. Hakam
Singh, the other witness on this issue has
not been examined by the prosecution.
Thus, the High Court was justified in
discarding the part of the prosecution case
relating to conspiracy. However, in the fact
situation of the present case, acquittal of
the said two co-accused has no bearing, so
far as the present appeal is concerned.""

35. The Court has also dilated upon
the distinction between the related and
interested witness in paragraph 28 and 29
of
the
report,
which
is
reproduced
hereinafter for the better understanding of
the issue:-

"28. A related witness cannot be
termed as an interested witness per se. One
has to see the place of occurrence along
with other circumstances. A related witness
can also be a natural witness. If an offence
is committed within the precincts of the
deceased, the presence of his family
members cannot be ruled out, as they
assume the position of natural witnesses.
When their evidence is clear, cogent and
withstood the rigor of cross examination, it
becomes sterling, not requiring further
corroboration. A related witness would
become an interested witness, only when he
is desirous of implicating the accused in
rendering a conviction, on purpose.

29. When the court is convinced
with the quality of the evidence produced,
notwithstanding the classification as quoted
above, it becomes the best evidence. Such
testimony being natural, adding to the
degree of probability, the court has to make
reliance upon it in proving a fact. The
aforesaid position of law has been well laid
down
in
Bhaskarrao
v.
State
of
Maharashtra, (2018) 6 SCC 591:

"32.
Coming
back
to
the
appreciation of the evidence at hand, at the
outset, our attention is drawn to the fact
that the witnesses were interrelated, and
this Court should be cautious in accepting
their statements. It would be beneficial to
recapitulate
the
law
concerning
the
appreciation of evidence of related witness.
In Dalip Singh v. State of Punjab, 1954
SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ
1465], Vivian Bose, J. for the Bench
observed the law as under : (AIR p. 366,
para 26)

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

33. In Masalti v. State of U.P.,
(1964) 8 SCR 133 : AIR 1965 SC 202 :
(1965) 1 Cri LJ 226], a five-Judge Bench of
this Court has categorically observed as
under : (AIR pp. 209-210, para 14)

"14. ... There is no doubt that
when a criminal court has to appreciate
evidence given by witnesses who are
partisan or interested, it has to be very
careful in weighing such evidence.
Whether or not there are discrepancies in
the evidence; whether or not the evidence
strikes the court as genuine; whether or
not the story disclosed by the evidence is
probable, are all matters which must be
taken into account. But it would, we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence
of
partisan
or
interested
witnesses. Often enough, where factions
prevail in villages and murders are
committed as a result of enmity between
such factions, criminal courts have to
deal with evidence of a partisan type. The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice. No
hard-and-fast rule can be laid down as to
how
much
evidence
should
be
appreciated. Judicial approach has to be
cautious in dealing with such evidence;
but the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct."

34. In Darya Singh v. State of
Punjab [(1964) 3 SCR 397 : AIR 1965 SC
328 : (1965) 1 Cri LJ 350], this Court held
that evidence of an eyewitness who is a
near relative of the victim, should be
closely scrutinised but no corroboration is
necessary for acceptance of his evidence. In
Harbans Kaur v. State of Haryana [(2005) 9
SCC 195 : 2005 SCC (Cri) 1213 : 2005 Cri
LJ 2199], this Court observed that : (SCC
p. 227, para 6)

"6. There is no proposition in law that
relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be
shown when a plea of partiality is raised to
show that the witnesses had reason to
shield actual culprit and falsely implicate
the accused."

35. The last case we need to
concern ourselves is Namdeo v. State of
Maharashtra [(2007) 14 SCC 150 : (2009) 1
SCC (Cri) 773], wherein this Court after
observing
previous
precedents
has
summarised the law in the following
manner : : (SCC p. 164, para 38)

"38. ... it is clear that a close
relative cannot be characterised as an
"interested" witness. He is a "natural"
witness. His evidence, however, must be
scrutinised carefully. If on such scrutiny,
his evidence is found to be intrinsically
reliable, inherently probable and wholly
trustworthy, conviction can be based on the
"sole" testimony of such witness. Close
relationship of witness with the deceased or
victim is no ground to reject his evidence.
On the contrary, close relative of the
deceased would normally be most reluctant
1 All. Rakesh Kumar Pandey @ Daddu Pandey Vs. State of U.P.
633
to spare the real culprit and falsely
implicate an innocent one."

36. From the study of the aforesaid
precedents of this Court, we may note that
whoever has been a witness before the court
of law, having a strong interest in result, if
allowed to be weighed in the same scales
with those who do not have any interest in the
result, would be to open the doors of the court
for perverted truth. This sound rule which
remains the bulwark of this system, and
which determines the value of evidence
derived from such sources, needs to be
cautiously and carefully observed and
enforced. There is no dispute about the fact
that the interest of the witness must affect his
testimony is a universal truth. Moreover,
under the influence of bias, a man may not be
in a position to judge correctly, even if they
earnestly desire to do so. Similarly, he may
not be in a position to provide evidence in an
impartial manner, when it involves his
interest. Under such influences, man will,
even though not consciously, suppress some
facts, soften or modify others, and provide
favourable colour. These are most controlling
considerations in respect to the credibility of
human testimony, and should never be
overlooked in applying the rules of evidence
and determining its weight in the scale of
truth under the facts and circumstances of
each case.""

36. In the context of the above law we
are required to carefully scrutinize the
testimony of two interested chance witnesses
in order to determine their credibility and
reliability for ascertaining whether the
prosecution has established its case beyond
reasonable doubt.

37. PW-2 claims that while deceased
was returning from Rajrooppur to Beniganj
two persons stopped him a little ahead after
the mosque. They talked initially and then
abused the deceased and shot two fires
causing the death of deceased. He claims that
he was at a distance of 10-15 paces when he
heard the gunshot. Hearing the gunshot the
witness stopped and the assailants fled
towards Karbala on their motorbike, by the
time the witnesses reached the place of
occurrence.

38. This witness further stated that he
was going towards west to south having
come from the east and the road where the
incident occurred was going from the east to
west.

39. We have seen the site plan in which
the road where incident occurred is running
from north to south with Rajrooppur shown
on the south in the site plan. The deceased
was thus coming from the south and going
towards north while PW-2 was heading in the
opposite direction towards west and south.
The direction of deceased was thus towards
north while that of PW-2 towards south. PW2 also was on motorbike as was the deceased
and the assailants.

40. The statement of PW-2 shows that
deceased and PW-2 were both on the
motorbike and were travelling in opposite
directions.