# Ram Kishan & Ors v. State

- **Citation:** (2019) 2 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** Criminal Appeal No. 584 of 1982
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-ors-v-state-44732
- **Pages:** 32

## Headnote

A. Indian Evidence Act, 1872 - Section
118 and 134 - Neither any number of
witness required to prove a fact nor
evidence of a witness can be rejected
only on the ground of his relationship
with the victim - The whole prosecution
case can be proved by a single witness if
evidence is natural and trustworthy.

Held:- It is therefore settled that merely
because witnesses are close relatives of the
victim, their testimonies cannot be discarded
- Relationship with the deceased is not a
factor that affects credibility of a witness - a
relative would not conceal the actual culprit
and make allegation against an innocent
person - Court to adopt a careful approach
and analyse the evidence to find out,
whether it is cogent and credible evidence -
appellants deserve to be convicted with
regard to the common object of the unlawful
assembly of causing grievous hurt to which
they concurred i.e. under Section 326 read
with Section 149 of the I.P.C. instead of
Section 302 read with Section 149 of the
IPC. (Para 16,33 & 64)
B. Indian Evidence Act, 1872 - Section 45
- Opinions of experts - the evidence of
any medical witness is only an evidence
of an expert admissible under Section 45
of the Indian Evidence Act, therefore, it
is not conclusive.

Held:-when a case of prosecution is based on
direct evidence of eye witnesses the medical
witness should follow such trustworthy and
acceptable oral account of the wittiness's
unless the trust worthy oral account of the
incident is completely eclipsed by the medical
evidence. Otherwise no dent can be made in
the story of prosecution on the basis of
hypothetical answers of any medical witness.
In the instant case there is no material
contradictions in the ocular and medical
evidence available on record and the case of
prosecution could not be doubted on the basis
of hypothetical answers of Doctor who
conducted the post mortem specially when he
has supported the case of prosecution on the
time of death of deceased. (Para 35 & 39)

C. Indian Penal Code, 1860 - Section 149 -
accused-appellant certainly exceeded the
common object of the unlawful assembly
which was only to cause hurt or likely to
cause grievous hurt, in order to restrain
any one from digging the drain - other
accused persons could not be held liable
vicariously
for
the
independent
and
isolated act of appellant , which was
neither
committed
in
furtherance
of
original common object of the unlawful
assembly nor it was a possible or likely
object
which
may
come
in
the
contemplation of any of the members of
unlawful assembly, either at the time of
initial formation of the unlawful assembly
or even during the course of the incident.
 (Para 62)

Criminal appeal partly allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,918 of 103,110. This is a partial read: ask again with offset=39918 for what follows._

2 All. Ram Kishan & Ors. Vs State
287
(2019)10ILR A 287

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.10.2019

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 584 of 1982

Ram Kishan & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Sri L.R. Acharya, Sri R.R. Acharya, Sri
Wasim Ahmad.

Counsel for the Respondent:
A.G.A.

A. Indian Evidence Act, 1872 - Section
118 and 134 - Neither any number of
witness required to prove a fact nor
evidence of a witness can be rejected
only on the ground of his relationship
with the victim - The whole prosecution
case can be proved by a single witness if
evidence is natural and trustworthy.

Held:- It is therefore settled that merely
because witnesses are close relatives of the
victim, their testimonies cannot be discarded
- Relationship with the deceased is not a
factor that affects credibility of a witness - a
relative would not conceal the actual culprit
and make allegation against an innocent
person - Court to adopt a careful approach
and analyse the evidence to find out,
whether it is cogent and credible evidence -
appellants deserve to be convicted with
regard to the common object of the unlawful
assembly of causing grievous hurt to which
they concurred i.e. under Section 326 read
with Section 149 of the I.P.C. instead of
Section 302 read with Section 149 of the
IPC. (Para 16,33 & 64)
B. Indian Evidence Act, 1872 - Section 45
- Opinions of experts - the evidence of
any medical witness is only an evidence
of an expert admissible under Section 45
of the Indian Evidence Act, therefore, it
is not conclusive.

Held:-when a case of prosecution is based on
direct evidence of eye witnesses the medical
witness should follow such trustworthy and
acceptable oral account of the wittiness's
unless the trust worthy oral account of the
incident is completely eclipsed by the medical
evidence. Otherwise no dent can be made in
the story of prosecution on the basis of
hypothetical answers of any medical witness.
In the instant case there is no material
contradictions in the ocular and medical
evidence available on record and the case of
prosecution could not be doubted on the basis
of hypothetical answers of Doctor who
conducted the post mortem specially when he
has supported the case of prosecution on the
time of death of deceased. (Para 35 & 39)

C. Indian Penal Code, 1860 - Section 149 -
accused-appellant certainly exceeded the
common object of the unlawful assembly
which was only to cause hurt or likely to
cause grievous hurt, in order to restrain
any one from digging the drain - other
accused persons could not be held liable
vicariously
for
the
independent
and
isolated act of appellant , which was
neither
committed
in
furtherance
of
original common object of the unlawful
assembly nor it was a possible or likely
object
which
may
come
in
the
contemplation of any of the members of
unlawful assembly, either at the time of
initial formation of the unlawful assembly
or even during the course of the incident.
 (Para 62)

Criminal appeal partly allowed (E-7)

List of Cases Cited: -

1.
Appabhai
&
ors.
Vs
St.
of
Guj.
MANU/SC/0028/1988

2. Sucha Singh & ors. Vs St. of Punj.
MANU/SC/0527/2003
288 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Bhagaloo Lodh & ors. Vs St. of U.P.
MANU/SC/0700/2011

4. Ramkant Rai Vs Madan Rai & ors.
MANU/SC/0780/2003: 2004CriLJ36

5. Ram Praksh & ors. Vs St. of U.P.
Manu/SC/0062/1968

6. Krishna Mochi & ors. Vs St. of Bihar
MANU/SC/0327/2002

7. Gangabhavani Vs Rayapati Venkat Reddy &
ors. MANU/SC/0897/2013

8. Bharwada Bhoginbhai Hirjibhai Vs St. of
Guj. AIR 1983, 753, MANU/SC/0090/1983

9. Shashi Kant Vs St. of U.P. (2008)1 ALJ (Noc) 167

10. Sikandar Singh & ors. Vs St. of Bihar
MANU/SC/0462/2010

11. Mariadasan &ors. Vs St. of T.N. (1980)3
SCC page 68

12. Chanakya Dhibar (Dead) Vs St. of W.B. &
ors. MANU/SC/1096/2003

13. Roy Fernandes Vs St. of Goa & ors.
MANU/SC/0072/2012

14. Kuldip Yadav & ors. Vs St. of Bihar
MANU/SC/0390/2011

15.
Manjit
Singh
Vs
St.
of
Punj.
MANU/SC/1195/2019

16. Bhimrao and ors. Vs St. of Mah.
MANU/SC/0081/2003
(Delivered by Hon'ble Mohd. Faiz Alam
Khan. J.)

1. Heard learned counsel for the
appellants, Wasim Ahmad as well as
learned AGA for the State and perused
the record.

2. This criminal appeal has been
preferred by appellants- Ram Kishan,
Jagannath, Janki, Sri Ram, Babu, Ramadhar
and Hardev, under Section 374(2) of the
Cr.P.C. against the judgment and order
dated 20.7.1982, passed by III- Additional
District and Sessions Judge, Sitapur, in
Sessions Trial No. 103 of 1980, ''State Vs.
Ram Kishan and others', arising out of Case
Crime No. 154 of 1979, under Sections 147,
148, 149, 302 IPC, relating to Police Station
Tal Gaon, District Sitapur, convicting the
appellant Hardev under Sections 148, 302
and 149 read with Section 323 IPC and
appellants- Ram Kishan, Jagannath, Janki,
Sri Ram, Babu and Ramadhar for the
charges under Sections 147, 149 read with
Section 302 and 149 read with Section 323
IPC whereby Hardev was sentenced for
imprisonment for life with fine stipulation
for one year imprisonment, for the offence
under Section 148 IPC, for imprisonment of
one and half year and under Section 149
IPC rigorous imprisonment for six months
and for the offence under Section 323 IPC
six months rigorous imprisonment. The trial
court further sentenced appellants- Ram
Kishan, Jagannath, Janki, Shri Ram,
Ramadhar and Babu for life imprisonment
and fine stipulation for the offence under
Section 149 IPC read with Section 302 IPC
and six months rigorous imprisonment for
offence under Section 149 read with Section
323
IPC
and
one
year
rigorous
imprisonment for the offence under Section
147 IPC.

3. The prosecution story as unfolded
from the record of the subordinate court is
that on 14.8.1979 at 9.10 A.M a written
report was submitted to the S.H.O., Police
Station Talgaon, Sitapur by informant
Ram Raj son of Suraj Deen R/o Mauza
Jaraili, Police Station Talgaon, District
Sitapur alleging that in the rainy season a
heavy water logging occurred in village
Jaraili, Jaraili Purwa and Makhpur. In
2 All. Ram Kishan & Ors. Vs State
289
order to drain this water a drain was being
dug from a pond situated in the west side
of the village under the orders of the
Block Development Authorities of Block
Persendi. The drain was dug from village
Jaraili till north of village Kailashpur. A
part of this drain was passing in front of
the field of accused Hardev. Today
(14.8.1979)
the
labourers,
namely,
Shatrohan Lal Bahelia and Mahavir
Chamar etc. were working in the drain.
The informant was digging out weed from
his paddy field. At that time Ram Kishan,
Jagannath, Janki, Shri Ram, Babu and
Ramadhar, armed with ''Lathis' and
Hardev armed with a ''Kudal' arrived at
the drain. Hardev scolded the labourers
that as they have cut the roots of his trees
and have also dug the ''mend', he will see
them. Accused persons started cutting the
roots of their trees and also started
pouring mud in the drain in order to fill it.
The labourers stopped the works of drain
and went to the village Jaraili. After some
time at about 8 A.M. Ambika Prasad
along with Shatrohan and Mahaveer came
at the drain and started explaining and
pacifying the accused persons. There
happened an exchange of hot words and
this got the attention of Ram Raj,
Chhotakau, Sant Ram and Satguru Prasad
who reached the spot. Ram Kishan and
others who were armed with Lathis
chased Ambika Prasad up to the paddy
filed of Kallu by giving blows of Lathis to
him. Ambika Prasad fell down in the field
of kallu and thereafter all accused persons
declared that they will finish him so that
he may taste the consequences of getting
the drain dug . On this Hardev gave four
blows on the neck of Ambika Prasad with
his Kudal and all accused persons fled
away. Informant along with Shatrohan,
Chhotkau, Sant Ram and Satguru went to
see Ambika Prasad and found him lying
dead in the Nali drenched with blood.

4. On the basis of the aforesaid
written information, a case was registered
against all above mentioned accused
persons at Case Crime No. 154 of 1979
under Sections 147, 148, 149, 302 IPC
and the investigation of the case was
entrusted to S.H.O. Shri Shiv Shankar
Singh.

5.

The
Investigating
officer
proceeded to the scene of the crime and
prepared inquest report Ex. Ka-9 and
necessary papers for the purpose of
postmortem of the dead body of Ambika
Prasad and handed over the dead body in
a sealed condition to constable Satish
Kumar Pandey and village Chaukidar
Ram Pal. He also, after recording the
statement of informant and injured
witnesses as well as the eye witnesses
Chhotaku
and
Shatrohan
forwarded
injured Chhotkau and Shatrohan to
hospital for the purpose of medical
examination of the injuries sustained by
them. He also collected simple and blood
stained soil from the paddy field of Kallu
and prepared a memo Ex. Ka-15.

6. The postmortem on the dead body
of the deceased Ambika Prasad was
performed by Dr. Azeez Ahmad Khan,
Medical
Officer,
District
Hospital
Lakhimpur Kheri on 15.8.1979 at about
4.30 P.M. The doctor found the age of the
deceased about 35 years and probable
time of death is about 11⁄2 day before the
time of postmortem. The deceased was a
young man of good health. Rigor mortis
passed from upper limbs and was passing
from the lower limbs. He found blisters at
some places. He also found following
290 INDIAN LAW REPORTS ALLAHABAD SERIES
ante-mortem injuries on the body of the
deceased:-

(I) Incised wound with sharp
edge cutting 9cm x 4 cm bone deep on
right side of upper part of neck, 5 cm.
Below the right ear, more towards back
and extending up to occipital region.

(II) Multiple incised wounds, 4 in
number in an area of 21 cm x 5 cm vertebra
deep on right side of the neck extending up to
the mid line in front and in the back, 5 cm.
Below the angle of mandible, every wound
was bone deep, all the articles and veins,
trachea and thyroid cartilage were cut off, the
margins were sharp cut, the injury was 1 1⁄2
cm. below injury no.1.

(III) Incised wound 6 cm. X 1 1⁄2
cm. X muscle deep, 2 cm. Below injury no.2,
in the middle, just above the collar bone.

(IV) Incised wound 9 cm. X 3
cm. X bone deep, over collar bone, 2
1/2cm. Below injury no.3.

(V) Incised wound with sharp
cutting edges 3.5 cm. X bone deep on
right parietal region, 8 cm. Above the
right of ear. Fracture of occipital, parietal
and frontal bones were present.

(VI) Multiple contused area 21
cm. X 11 cm. On outer aspect of right
arm, 11 cm. Below the acrominal
prominence.

(VII) Seven contusions in area
of 41 cm. X 15 cm. on the right side of
chest and abdomen extending, 3 cm.
Below the axilla up to the iliac cryst.

(VIII) Abrasion 2 cm. X 1 1⁄2
cm., 22 cm. Above the right of knee.

(IX) Abrasion 2 cm. X 1 cm. In
front of the right Shin, 16 cm. Below the
right knee.

(X) Contused area 23 cm. X 4
cm. On outer aspect of left forearm just
below the elbow.

(XI) Abrasion 4 cm. X 1 cm. In
front of the left leg, 12 cm. Below the
knee.

(XII) Multiple contused area 30
cm. X 30 cm. On the whole of the back,
right and left both sides, extending from
the root of the neck.

7. On internal examination half lb
semi digested food was found in Stomach,
the small intestine was partially full and
large intestine was full in its upper side
while the rectum was empty. Gallbladder
was half full and cause of death was due
to shock and hemorrhage as a result of
ante-mortem injuries.

8. Injured witness Shatrohan Lal
was medically examined on 14.8.1979 at
6 P.M. at P.H.C. Persendi, District Sitapur
who was brought by the Constable
Jasbeer Singh and following injuries were
found on his person :-

(I) Contusion 4 cm. X 1.5 cm.
In the back left thigh, middle.

(II) Contusion 7 cm. X 1.5 cm.
In the calf of left leg (back).

(III) Contusion 5 cm. X 1.5 cm. In
the back and inner side of right leg (middle).

9. All injuries were simple and
caused by blunt weapon. The duration
was about half day old.
2 All. Ram Kishan & Ors. Vs State
291

10. Chhotakan was also medically
examined on 14.8.1979 at 6.30 at P.H.C.
Persendi who was brought by constable
Jasbeer Singh of Police Station Talgaon,
District Sitapur and following injuries
were noticed on his person:-

(I) Contusion 7 cm. X 1.5 cm.
In the back of left thigh.

(II) Complaint of pain in right
hand middle finger but no external of
injury is present.

(III) Injuries are simple and
caused by blunt weapon duration about
half day.

11. The Investigating Officer after
completing the necessary formalities
including sending blood stained soil
collected from the place of occurrence
along with Baniyan and underwear of the
deceased to chemical examiner and the
report so collected which Confirmed
human blood on these articles and after
completing
investigation
submitted
charge sheet against all accused persons
on 26.9.1979.

12. The case being exclusively
triable by the court of sessions was
committed to the sessions court.

13. The charges under Sections 148
and 302, and 323 read with Section 149
IPC were framed against the accused
Hardev while the charges under Sections
147, 302 read with Section 149 IPC and
under Section 323 read with Section 149
IPC were framed against the accused-
appellant- Ram Kishan, Jagannath, Janki,
Shri Ram, Ramadhar and Babu.

14. The prosecution in order to
prove its case before the trial court
produced
following
documentary
evidence:-

(I) Postmortem report

 Ex. Ka-1

(II) Chemical examiner reports

 Ex. Ka-2 and Ka-3

(III) Injury report of Shatrohan Lal

Ex.Ka-4.

(IV)
Injury report of Chhotakau

 Ex. Ka-5

(V) Chick F.I.R.

Ex. Ka-6

(VI)
G.D. Entry of the FIR

Ex. Ka-7

(VII)
Special
reprot
sent
to
higher authorities
Ex. Ka-8

(VIII)
Inquest report

Ex. Ka-9

(IX) Challan Lash

Ex. Ka-10

(X) Seal sample

Ex. Ka-11

(XI)
Scratch of dead body

Ex. Ka-12

(XII)
 Letter to C.M.O.

Ex. Ka-13

(XIII)
Copy of FIR

Ex. Ka-14
292 INDIAN LAW REPORTS ALLAHABAD SERIES

(XIV)
Memo of seizure of blood
stained earth

Ex. Ka-15

(XV)
 Site plan

Ex. Ka-16

(XVI)
 Charge sheet

Ex. Ka-17

15. The prosecution also produced
following witnesses in support of its
case:-

(I) P.W.1- Ram Raj (Informant)

(II)
P.W.2-
Shatrohan
Lal
(Injured)/ eye witness)

(III) P.W.3- Constable Satish
Kumar Pandey, (who took the body to the
postmortem house.)

(IV) P.W.4- Sant Ram (eye
witness)

(V) P.W.5- Dr. Azeez Ahmad
Khan, (who conducted the postmortem).

(VI) P.W.6- Constable Mohan
Lal Rastogi, (who sent the blood stained
earth to the chemical examiner)

(VII) P.W. 7-Dr. S. R. Verma
(who inspected two injured persons)

(VIII) P.W.8- S.I. Ram Autar
Singh (who kept the material in Sadar
Malkhana)

(IX) P.W.9- S.O. Shiv Shankar
Singh ( Investigating Officer)

(X) P.W.10- Shri V.K. Tandon
(who sent the material to chemical
examination from the office of C.M.O.)

16. After completion of the evidence of
the prosecution the statement of the accused
persons was recorded under Section 313 of
the Cr.P.C., wherein they denied the
occurrence and stated that the evidence has
been given on the basis of enmity. Accused
Ram Kishan in his statement has further stated
that the incident of cleaning of the drain had
happened 10-12 days before the instant
incident. Some quarrel happened with
Mahaveer and Shatrohan who cut the roots of
his trees. He moved an application against
them and only on the basis of that enmity they
have been falsely roped in . They did not
allow Shatrohan to catch birds from their
trees, so he was also having enmity on this
score.

17. The accused persons in their defence
produced D.W.1- Rajendra Prasad, who is the
Lekhpal of the village concerned.

18. The trial court after analyzing
and appreciating the evidence on record
found the case of the prosecution proved
beyond reasonable doubt and convicted
and sentenced all the accused persons in
the manner described in the second
paragraph of this judgment.

19. Aggrieved by the impugned
judgment and order of conviction and
sentence the appellants have preferred instant
appeal, however during the course of
pendency of this appeal, appellant no.1 Ram
Kishan, appellant no.2 Jagannath, appellant
no.4- Shri Ram and appellant no.7- Hardev
died and the appeal with regard to them was
abated vide order dated 9.8.2019. Hence we
are now left to decide the appeal pertaining to
appellant no.3- Janki, appellant no.5- Babu
and appellant no. 6- Ramadhar.

20. Learned counsel for the
appellants while pressing the appeal
2 All. Ram Kishan & Ors. Vs State
293
submits that the court below without
appreciating the evidence available on
record in right perspective has convicted
the appellants for the offence which they
have not done. There are material
contradictions in the testimony of all the
eye witnesses and prosecution story is
highly improbable.

21. He further submits that the
prosecution witnesses no.1- Raja Ram,
PW-2 Shatrohan Lal and PW-4 Sant Ram
are related witnesses as they are related to
the deceased Ambika Prasad and their
testimony could not have been believed
by the court below.

22. He further submits that the First
Information Report was after thought and
prepared in consultation with Police
Authorities of Police Station Talgaon.

23. He further submits that injuries
allegedly
sustained
by
witnesses
Chhotakan and Shatrohan were self
inflicted to carve out a false case against
the appellants.

24. He further submits that from the
evidence on record it is evident that
Ambika Prasad has been done to death in
the dead hours of night and therefore the
prosecution case is not believable.

25. Learned counsel for the
appellants overwhelmingly submits that
the trial court has committed a manifest
error
in
convicting
the
surviving
appellants for the offence under Under
Section 302 IPC read with Section 149 of
the I.P.C. as there was no evidence that
any unlawful assembly was formed by the
appellants, object of which was to murder
the deceased. Even if the story of
prosecution is believed the ingredients of
formation of unlawful assembly and
sharing of its unlawful object are missing
and it is evident from the facts and
circumstances as well as the evidence on
record that there was no unlawful
assembly the object of which was to
murder the deceased, therefore the finding
of the trial court with regard to it is
perverse.
Learned
counsel
for
the
appellants in order to substantiate his
argument has relied on following case
laws:-

(I) Shashi Kant Vs. State of
U.P., (2008)1 ALJ (Noc) 167 Allahabad.

(II) Sikandar Singh and others
Vs. State of Bihar (2010)7 SCC page 477.

(III) Mariadasan and others Vs.
State of Tamilnadu (1980)3 SCC page 68.

26. Per contra learned AGA
appearing for the State submits that the
prosecution has proved its case beyond all
reasonable doubts and there is nothing
illegal or wrong in the judgment of the
trial court. Learned AGA further submits
that it was established from the evidence
produced by the prosecution that the drain
was being dug in pursuance of the
decision taken by the Block Development
Authority and some time prior to the
incident the labourers allegedly cut the
roots of the trees standing on the land of
the accused Hardev. All accused persons
are related to Hardev and on the fateful
day after hearing that the drain is being
cleaned they reached the spot and scolded
the labourers working there. He further
submits that all accused persons were
carrying lathis with them and accused
Hardev was carrying a Kudal and keeping
in view the arms carried by the accused
persons it is established and evident that
294 INDIAN LAW REPORTS ALLAHABAD SERIES
the object of this unlawful assembly was
to commit murder of anyone, who so ever
will come in their way.

27. He further submits that at the
fateful time deceased Ambika only came
to persuade the accused persons for not to
make any hindrance in a beneficial work
being carried out by the labourers under
the Authority of Block Development
Parsenda. However, all the accused
persons, in pursuance of common object
of unlawful assembly, assaulted Ambika
Prasad
as
well
as
Shatrohan
and
Chhotakau with lathis and when Ambika
Prasad fell in the paddy field of Kallu,
accused
Hardev
in
furtherance
of
common object of the unlawful assembly
assaulted him with Kudal, therefore all
the accused persons have participated in
the occurrence and hence have rightly
been convicted for the murder of Ambika
with the help of Section 149 IPC .

28. Before proceeding further we
would like to have a brief survey of the
evidence of the witnesses, so that
submissions of the learned counsel for the
rival parties could be appreciated in a
better way.

P.W.1-
Ram
Raj
is
the
informant of the FIR who in his statement
has stated that under orders of Persendi
block a drain was being dug, a part of
which was situated adjacent to the land of
accused Hardev. On the day of occurrence
labourers were cleaning and digging this
drain. He further stated that at the time of
incident he was in his agriculture field. At
about 8 A.M. in the morning accused
persons arrived at the site of the drain. All
accused persons except Hardev were
carrying lathis, while accused Hardev was
carrying a ''Kudal'. After arriving at the
drain accused persons asked the labourers
to see them as they have cut the roots of
their trees. The labourers departed from
the site, however after a short time
Ambika accompanied by Shatrohan and
Mahaveer came at the site of the drain and
started pacifying the accused persons.
There were some verbal altercations and
thereafter
accused
persons
started
assaulting Ambika with lathis, whereby
Ambika Prasad fell in the paddy field of
Kallu and thereafter accused persons Ram
Kishan and Jagannath dragged Ambika
Prasad from his legs and put him in a Nali
situated on the other side of the drain
towards the land of Hardev. Thereafter all
accused persons asked to murder him and
accused Hardev inflicted 3-4 Kudal blows
on the neck of Ambika Prassad. He
further stated that when Ambika Prasad
was being dragged, Shatrohan Lal and
Chhutkan attempted to save him but they
were assaulted by Shri Ram, Janki, Babu
and Ramadhar by lathis and they also
sustained injuries. He stated to have
informed the police by giving a written
application. In his cross examination this
witness stated that when the work started
at the drain, Ambika Prasad was not there
and only labourers were working. He
(Ram Raj) came to his field at 6 A.M. and
when Hardev and others were talking to
the labourers he did not go there.
However, he heard the conversation while
staying in his field. He again stated in his
cross examination that when at 8 A.M.
Ambika Prasad came at the site along
with Shatrohan Lal and Mahaveer they
were not carrying any arm with them. He
could not hear the conversation clearly
but was able to hear that Ambika Prasad
was saying that why they are making
hindrance in the cleaning of the drain. At
that point of time some accused persons
were filling the drain with mud. This
2 All. Ram Kishan & Ors. Vs State
295
witness admitted that deceased Ambika
Prasad was related to him as he was the
son of his maternal aunt. He further stated
that at the time of assault on Ambika
Prasad he was near the mend of the field
of Kallu. He was standing about 10-15
paces from the place where Ambika
Prasad fell . He was dragged by Ram
Kishan and Jagannath across the drain. He
could not say as to who assaulted which
part of Ambika's body. He witnessed the
murder of Ambika Prasad from the field
of Kallu and at that point of time
Shatrohan Lal and Mahaveer were in the
drain and Sant Ram , Satguru and
Chhutkan were standing towards the north
of the drain. There were no verbal
exchanges in between Ambika Prasad and
accused persons in his presence. He
further stated that before the incident
there was no enmity in between Ambika
Prasad and accused persons, rather they
were having cordial relations.

P.W.2- Shatrohan Lal is the
person who was a labourer engaged in
digging of the disputed drain and was
there since morning. He corroborated the
statement of P.W.1- Ram Raj pertaining
to the incident which happened in the
morning when all accused persons armed
with Lathis and Hardev armed with
Kudal, arrived at the site of drain and
scolded them that they have cut the roots
of their trees and they will see them. He
stated to have returned to the village and
contacted Ambika Prasad, who was a
social worker and he along with Ambika
Prasad and Mahaveer returned to the drain
at about 8 A.M.. He further stated that
Ambika and accused persons had some
hot verbal exchanges where after the
accused persons assaulted Ambika Prasad
with lathis, who fell down in the field of
Kallu and was dragged by Ram Kishan
and Jagannath. When Chhutkan and he
tried to intervene, they were also
assaulted by Ramadhar, Shri Ram Babu
and Janki. He further stated that when
Ambika Prasad was lying in the Nali
Hardev gave 3-4 blows of Kudal on his
neck whereby he died in the Nali. In cross
examination he stated that Janki, Babu,
Shri Ram and Ramadhar assaulted him
and Chhutkan with lathis. According to
him when he went to Ambika Prasad, he
told him that he will talk to the accused
persons and thereafter they returned to the
site of drain within 10-15 minutes. He
stated that when Ambika Prasad was
being assaulted by accused persons, they
did not assault either him or Mahaveer.
Ambika Prasad fell in the field of Kallu
about 20-25 paces away from the drain
and when Ambika Prasad fell down, they
dragged him (Ambika) and when he
(satrohan) objected to it he was assaulted
with lathis and Chhutkan was also present
near him. Ram Raj at that point of time
was in the field of Paragi, about 5-7 paces
away from him. He witnessed the murder
from about 4-5 paces away from the site.
He categorically stated that Hardev was
giving blows on the neck of the deceased
while
other
accused
persons
were
standing towards the west and he was
crying and making an alarm. According to
him the whole incident ended within 10 to
12 minutes and he sustained three
injuries.

P.W.4- Sant Ram has stated to
be present in his agriculture field along
with his brother Satguru, at the time of the
incident. He claimed to have seen the
accused persons holding lathis and Kudal
on the northern mend of Hardev's land
and Ambika Prasad, Mahaveer and
Shatrohan were standing towards the
north of drain. He heard hot exchanges in
296 INDIAN LAW REPORTS ALLAHABAD SERIES
between Ambika Prasad and Hardev and
other accused persons and thereafter he
saw that Ambika Prasad is being assaulted
by accused persons with lathis and
thereafter Ambika Prasad fell in the paddy
field of Kallu and was dragged from his
legs by Ram Kishan and Jagannath, at this
moment
Shatrohan
and
Chhutkan
objected to it on which Ramadhar, Shri
Ram, Janki and Babu assaulted him and
Chutkan by giving lathi blows and when
Ambika Prasad was placed in a Nali
situated towards the west of Hardev's
land, Hardev gave 3-4 blows of Kudal on
the neck of Ambika Prasad. In cross
examination this witness admitted to be a
relative of deceased Ambika Prasad and
also that agricultural land where he was
doing work, is in the name of his sons
Prem Kumar and Kuldeep Kumar. He
stated that he could not hear the
conversation of accused persons and
Ambika Prasad clearly as he was standing
about 2 1⁄2 - 3 meters away from the place
where Ambika Prasad and accused
persons were talking. He specifically
stated that he did not hear the call of
accused persons to murder Ambika
Prasad before start of assault and also that
''Marpeet' (assault) occurred in the filed of
Kallu where Ambika Prasad fell down.
He claimed that when Ambika Prasad was
being assaulted, Hardev was also there
but he was not assaulting with the
''Kudal'. When Ambika Prasad fell in the
field of Kallu he was standing 10-15
paces away from him and Chhutkan and
Shatrohan were standing at about 10
paces away from Ambika Prasad towards
the west. Ambika Prasad was dragged for
about 28-30 paces from the place where
he fell down.

P.W.3-
Constable
Satish
Kumar Pandey is the witness who took
the dead body of deceased Ambika for
post mortem.

P.W.5- Dr. A.A. Khan has
stated to have conducted postmortem on
the dead body of the deceased and to have
prepared the postmortem report in his
hand writing and signature and proved the
same as Ex. Ka-1. He also stated about
injuries sustained by deceased and other
particulars noted by him at the time of
postmortem. He, in cross examination has
stated that the death of the deceased might
have happened at about 1.00 A.M. in the
intervening
night
of
13/14.8.1979.
However, in the next breath he stated that
probable time of death of the deceased
was about 8 A.M. on 14.8.1979. If the
deceased had taken breakfast at about 5 or
5.30 A.M. semi-digested food will be
found in the stomach. According to him
the injuries no. 6, 7, 10 and 12 on the
person of deceased were caused by some
blunt object like lathis, and injury nos. 8
and 11 could have been caused by
friction. Injuries no.1, to 5 sustained by
deceased were caused by some sharp
edged weapon like ''Kudal' and the
injuries no. 1, 2 and 5 were sufficient in
the ordinary course of nature to cause
death. Fracture in the head occurred due
to injury no.5 and 3rd , 4th and 5th
survical vertebra was cut against the
injury no.2. All injuries according to him
were 1 1⁄2 day old.

P.W.6- Constable Mohan Lal
Rastogi is a formal witness who testified
to have seen material recovered from the
spot and sent the same for forensic
investigation.

P.W.7- Dr. S.R. Verma is the
doctor, who examined injured persons,
Shatrohan Lal and Chhutkan on 14.8.1979
2 All. Ram Kishan & Ors. Vs State
297
about 6 and 6.30 pm. at Primary Health
Centre Persendi. He proved the medical
reports of the injuries of the two injured
persons as Ex. Ka-4 and Ka-5. He
claimed that the injuries found on the
person of shatrohan and Chutkan were
about one and half day old and were
caused by some hard and blunt object.

P.W.8- Sub Inspector, Ram
Autar Singh is also a formal witness who
was Incharge of Sadar Mal Khana
wherein the material pertaining to the case
was kept and wherefrom sent to the
Chemical Analyst.

P.W.9- S.O. Shiv Shankar
Singh, is the Investigating Officer of the
crime and he proved preparation of
inquest and all necessary papers for the
postmortem in his hand writing and also
to have recorded the statement of the
witnesses
and
after
completion
of
investigation to have submitted the charge
sheet against all accused persons under
relevant sections of the Indian Penal
Code. He has been cross examined by the
accused persons at length but nothing
significant has been derived. He also
proved to have seen, Head Muharrir,
Mohd. Hashim working and has proved
Chick FIR and G.D. in his hand writing
and signature as Ex. Ka-1 and Ex. Ka-7
respectively.

P.W.10- Shri V.K. Tandon,
who is a clerk in the office of the C.M.O.
and testified to have sent material for
forensic examination.

D.W.1- Rajendra Prasad is the
lekhpal of Village Jareli Majra and has
stated that Gata No. 1204 and 1203 (grove
land) belongs to accused Hardev while
Gata No. 1122 is the field of Kallu. No
Nali is shown in the revenue map towards
the west of the grove of Hardev. Adjacent
to the grove land of Hardev, towards west
Gata No. 2000 is situated which belongs
to Jagannath, Hardev and Janki. There is
no khata belongs to Ram Raj. However,
in his cross examination he admitted that
towards the west of the field of Kallu the
field of Gokul bearing Gata No. 562 is
situated and after the death of Gokul this
land has come in the name of Suraj Deen
who is the father of Ram Raj. He further
stated that the name of Suraj Deen has
now been mutated on Gata No. 562 on
23.12.1980 and this land i.e. Gata No. 562
is about 2-2 1⁄2 furlong away from the
grove (Orchard) of Hardev.

29. Now we deal the submissions of
Ld. Counsel for the appellants. The first
submission of Ld. Counsel for the
appellants is that P.W.1- Ram Raj and
P.W.4- Sant Ram are related to the
deceased and P.W.-2 Shatrohan is an
interested
witness,
therefore
their
testimony could not be believed because
of their relation with the deceased and
these witnesses are highly interested
witnesses.

30. In Appabhai and Ors. vs. State
of
Gujarat,
MANU/SC/0028/1988
Hon'ble Supreme Court held as under :-

"Experience reminds us that
civilized people are generally insensitive
when a crime is committed even in their
presence. They withdraw both from the
victim and the vigilante. They keep
themselves away from the Court unless it
is inevitable. They think that crime like
civil dispute is between two individuals or
parties and they should not involve
themselves. This kind of apathy of the
general public is indeed unfortunate, but
298 INDIAN LAW REPORTS ALLAHABAD SERIES
it is there everywhere whether in village
life, towns or cities. One cannot ignore
this handicap with which the investigating
agency has to discharge its duties.

The court, therefore, instead of
doubting the prosecution case for want of
independent witness must consider the
broad spectrum of the prosecution version
and then search for the nugget of truth
with due regard to probability if any,
suggested by the accused."

31. In Sucha Singh and Ors. vs.
State of Punjab, MANU/SC/0527/2003
Hon'ble Supreme Court has observed as
follows :-

"15. In Dalip Singh and Ors. v.
The
State
of
Punjab
MANU/SC/0031/1953 : [1954]1SCR145
it has been laid down as under:-

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to
be tainted and that usually means unless
the witness has cause, such as enmity
against the accused, to wish to implicate
him falsely, Ordinarily a close relation
would be the last to screen the real culprit
and falsely implicate an innocent person.
It is true, when feelings run high and
there is personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a
grudge along with the guilty, but
foundation must be laid for such a
criticism and the mere fact of relationship
far from being a foundation is often a sure
guarantee of truth. However, we are not
attempting any sweeping generalization.
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 a general rule of
prudence. There is no such general rule.
Each case must be limited to and be
governed by its own facts."

16. The above decision has
since been followed in Guli Chand and
Ors.
v.
State
of
Rajasthan
MANU/SC/0107/1973 : 1974CriLJ331 in
which Vadivelu Thevar v. State of Madras
MANU/SC/0039/1957 : 1957CriLJ1000
was also relied upon.

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

"We are unable to agree with
the learned Judges of the High Court that
the testimony of the two eyewitnesses
requires corroboration. It the foundation
for such an observation is based on the
fact that the witnesses are women and
that the fate of seven men hangs on their
testimony, we know of no such rule. If it is
grounded on the reason that they are
closely related to the deceased we are
unable to concur. This is a fallacy
common to many criminal cases and one
one which another Bench of this Court
endeavoured to dispel in - 'Rameshwar v.
State of Rajasthan MANU/SC/0036/1951 :
1952CriLJ547 . we find, however, that it
unfortunately still persists, it not in the
judgements of the Courts, at any rate in
the arguments of counsel."
2 All. Ram Kishan & Ors. Vs State
299

18. Again in Masalti and Ors. v.
State of U.P. MANU/SC/0074/1964 :
[1964]8SCR133 this Court observed: (p,
209-210 para 14):

"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 .......

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.

20. As observed by this Court in
State of Rajasthan v. Teja Ram and Ors.
MANU/SC/0189/1999 : 1999CriLJ2588
the over-insistence on witnesses having
no relating with the victims often results
in criminal justice going away. When any
incident happens in a dwelling house or
nearby the most natural witnesses would
be the inmates of that house. It would be
unpragmatic to ignore such natural
witnesses and insist on outsiders who
would not have even seen any thing. If the
Court has discerned from the evidence or
even from the investigation records that
some other independent person has
witnessed any event connecting the
incident in question then there is
justification for making adverse comments
against non-examination of such person
as prosecution witness. Otherwise, merely
on surmises the Court should not
castigate a prosecution for not examining
other
persons
of
the
locality
as
prosecution witnesses. Prosecution can be
expected to examine only those who have
witnessed the events and not those who
have
not
seen
it
though
the
neighbourhood may be replete with other
residents also."

32. In Bhagaloo Lodh and Ors. vs.
State
of
U.P.
reported
in
MANU/SC/0700/2011 it was held as
under :-

"14. Evidence of a close relation
can be relied upon provided it is trustworthy.
Such evidence is required to be carefully
scrutinised and appreciated before resting of
conclusion to convict the accused in a given
case. But where the Sessions Court properly
appreciated
evidence
and
meticulously
analysed the same and the High Court reappreciated the said evidence properly to
reach the same conclusion, it is difficult for
the superior court to take a view contrary to
the same, unless there are reasons to
disbelieve such witnesses. Thus, the evidence
cannot be disbelieved merely on the ground
that the witnesses are inter-related to each
other or to the deceased. (Vide: M.C. Ali and
Anr. v. State of Kerala MANU/SC/0247/2010
: AIR 2010 SC 1639; Myladimmal
Surendran and Ors. v. State of Kerala
MANU/SC/0670/2010 : AIR 2010 SC 3281;
Shyam v. State of Madhya Pradesh
MANU/SC/7112/2007 : (2009) 16 SCC 531;
Prithi
v.
State
of
Haryana
MANU/SC/0532/2010 : (2010) 8 SCC 536;
Surendra Pal and Ors. v. State of U.P. and
Anr. MANU/SC/0713/2010 : (2010) 9 SCC
399; and Himanshu @ Chintu v. State (NCT
of Delhi) MANU/SC/0006/2011 : (2011) 2
SCC 36).

In
view
of
the
law
laid
hereinabove, no fault can be found with
the evidence recorded by the courts below
300 INDIAN LAW REPORTS ALLAHABAD SERIES
accepting the evidence of closely related
witnesses."

33.