# Ram Naresh v. The State of U.P

- **Citation:** CRIMINAL APPEAL No. 1313 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Case number:** CRIMINAL APPEAL No. 1313 of 1996
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-v-the-state-of-u-p-46424
- **Pages:** 24

## Headnote

Criminal law- Indian Penal Code -
Section 302/34 IPC - Arms Act, 1959 -
Section 25
(i)(c)
-
Appeal
against
conviction.

Held :- Testimony of related witnessesCannot be rejected only on the basis of
relationship with deceased. (Para 23)
Interested witnesses - Statement can be
relied upon in support of prosecution story.
(Para 35)
Minor Contradiction / Inconsistency In
Evidence -
Does not affect the core of the prosecution
case. (Para 37)
Motive - Becomes insignificant in case of
availability of the eye-witnesses. (Para 46)
Defective Investigation- Cannot be fatal to
prosecution where ocular testimony is found
credible and cogent. (Para 62)

Appeal rejected. (E-2)

List of Cases Cited:-

## Text

_Characters 0–39,825 of 76,795. This is a partial read: ask again with offset=39825 for what follows._

3-5 All. Ram Naresh Vs. The State of U.P.
449
India Vs. Aashu Pandit @ Aashu Bajpai @
Aash Narayan Sharma) is set aside. Appeal
is allowed. Appellant is acquitted of all the
charges leveled against him.

28. Appellant is in jail. Let he be set
free at once, if not wanted in any other
case.

29. Let a copy of the judgment along
with the lower court record be transmitted
to the trial court concerned for compliance
and necessary action.
----------
(2020)03-05ILR A449
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL,
J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

CRIMINAL APPEAL No. 1313 of 1996
And
CRIMINAL APPEAL No. 1315 of 1996
And
CRIMINAL APPEAL No. 1316 of 1996

Ram
Naresh
...Appellant
Versus
The State of U.P. ...Opposite
Party

Counsel for the Appellant:
Sri Pradeep Kumar Mishra (A.C.) Sri A.
Ghosh

Counsel for the Opposite Party:
A.G.A.

Criminal law- Indian Penal Code -
Section 302/34 IPC - Arms Act, 1959 -
Section 25
(i)(c)
-
Appeal
against
conviction.

Held :- Testimony of related witnessesCannot be rejected only on the basis of
relationship with deceased. (Para 23)
Interested witnesses - Statement can be
relied upon in support of prosecution story.
(Para 35)
Minor Contradiction / Inconsistency In
Evidence -
Does not affect the core of the prosecution
case. (Para 37)
Motive - Becomes insignificant in case of
availability of the eye-witnesses. (Para 46)
Defective Investigation- Cannot be fatal to
prosecution where ocular testimony is found
credible and cogent. (Para 62)

Appeal rejected. (E-2)

List of Cases Cited:-

1. Dalip Singh Vs. St. of Punj. (1954) SCR 145,

2. Masalti Vs. St. of UP AIR 1965 SC 202

3. Darya Singh Vs. St. of Punjab, AIR 1965 SC
328,

4. St. of UP Vs. Kishanpal, (2008) 16 SCC 73,

5. Appa Vs. St. of Gujarat, AIR 1988 SC 698,

6. St. of AP Vs. S. Rayappa (2006) 4 SCC 512,

7. Pulicherla Nagaraju @ Nagaraja Reddy Vs. St.
of AP (2007) 1 SCC (Cri) 500
450 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Satbir Singh Vs. St. of UP, (2009) 13 SCC
790,

9. M.C. Ali Vs. St. of Kerala AIR 2010 SC 1639,

10. Himanshu Vs. St. (NCT of Delhis, (2011) 2
SCC 36,

11. Bhajan Singh & ors. Vs. St. of Har.;
(2011) 7 SCC 421,

12. Jayabalan Vs. U.T. of Pondicherry,
2010(68) ACC 308 (SC),

13. Dharnidhar Vs. St. of UP, (2010) 7 SCC
759,

14. Ram Bharosey Vs. St. of UP AIR 2010
SC 917,

15. Balraje @ Trimbak Vs. St. of Mah.,
(2010) 6 SCC 673,

16. Jalpat Rai Vs. St. of Har. AIR 2011 SC
2719,

17. Waman Vs. St. of Mah. AIR 2011 SC
3327,

18. Shyam Babu Vs. St. of UP, AIR 2012 SC
3311,

19. Dhari & ors. Vs. St. of UP, AIR 2013 SC
308,

20. Ganapathi Vs. St. of T.N., AIR 2018 SC
1635,

21. Rupinder Singh Sandhu Vs. St. of Punj.,
(2018) 16 SCC 475,

22. Shio Shanker Dubey Vs. St.of Bihar AIR
2019 SC 2275,

23. St. of UP Vs. Naresh; 2011 (75) ACC 215)
(SC),

24. Gosu Jayarami Reddy & anr. Vs. St. of A.P.
(2011) 3 SCC(Cri) 630,

25. Parsu Ram Pandey Vs. St. of Bihar AIR 2004
SC 5068,

26. Shivappa Vs. St. of Karn.; AIR 2682,

27. Ramchandaran Vs. St. of Kerala AIR 2011
SC 3581,

28. Mukesh Vs. St. for NCT of Delhi, AIR 2017
SC 2161

29. Bhagwan Jagannath Markad Vs. St. of Mah.,
(2016) 10 SCC 53,

30. Jarnail Singh Vs. St. of Punj., 2009 (6)
Supreme 526, Bhagwan

31. Jagannath Markad Vs. St. of Maha., (2016)
10 SCC 537,
3-5 All. Ram Naresh Vs. The State of U.P.
451
32. Ramji Singh Vs. St. of UP, 2019 (4) Crimes
585 (SC),

33. Munir Ahmad Vs. St. of Raj., AIR 1989 SC
705,

34. Rachapalli Abbulu Vs. St. of AP, AIR 2002 SC
1805,

35. Smt. Sudha Devi Vs. M.P. Narayanan, AIR
1988 SC 1381,

36. Ayaaubkhan Vs St. of Mah., AIR 2013 SC
58,

37. Abu Thakir Vs St. AIR 2010 SC 2119,

38. St. of UP Vs Nawab Singh AIR 2010 SC
3638,

39. Bipin Kumar Mondal Vs St. of W.B. 2005
SCC (Criminal) 33,

40. Shivraj Bapuray Jadhav Vs St. of Karn.
(2003) 6 SCC 392,

41. Thaman Kumar Vs St. of U.T. of Chandigarh
(2003), 6 SCC 380,

42. St. of HP Vs. Jeet Singh; (1999) 4 SCC 370,

43. Gopi Ram Vs. St. Of UP, 2006 (55) ACC 673
SC,

44. R.R. Reddy Vs. St. of AP, AIR 2006 SC 1656,
45. Sucha Singh Vs. St. of Punj.; AIR 2003 SC
1471,

46. St. of Raj. Vs. Arjun Singh AIR 2011 SC
3380,

47. Varun Chaudhry Vs. St. of Raj. AIR 2011 SC
72.

48. Saddik Vs. St. of Guj., (2016) 10 SCC 663,

49. Suresh Chandra Bahri Vs. St. of Bihar, AIR
1994 SC 2420,

50. Bodh Raj Vs. St. of J & K, AIR 2002 SC
3164,

51. Geejaganda Somaiah, T.N. Vs. St. of Karn.
AIR 2007 SC 1355,

52. Sandeep Vs. St. of UP, (2012) 6 SCC 107

53. Mukesh Vs. St. for NCT of Delhi & ors., AIR
2017 SC 2161,

54. Navneethakrishnan Vs. St. , AIR 2018 SC
2027

55. Nathu Singh Vs. St. of MP, 1974 Cri. L J 11,

56. Pramod Kumar Vs. St. (GNCT) of Delhi, AIR
2013 SC 3344,

57. Govindaraju @ Govinda Vs. St. of Shri
Ramapuram P.S., AIR 2012 SC 1292,
452 INDIAN LAW REPORTS ALLAHABAD SERIES
58. Ayaaubkhan Vs. St. of Mah., AIR 2013 SC
58,

59. C. Muniappan Vs. St. of TN, 2010 (6) SCJ
822,

60. Hema Vs. St., 2013 (81) ACC 1 (SC),

61. St. of Karn. Vs. Suvarnamma, (2015) 1 SCC
323,

62. Khem Ram Vs. St. of H.P., (2018) 1 SCC
202,

63. Rahul Mishra Vs. St. of Uttarakhand, AIR
2015 SC 3043,

64. V.K. Mishra Vs. St. of Uttarakhand, (2015) 9
SCC 588

65. Dhanaj Singh Vs. St. of Punj., (2004) 3 SCC
654,

66. Sheo Shankar Singh Vs. St. of Jharkhand,
2011 CrLJ 2139(SC),

67. Maqbool Vs. St. of A.P., AIR 2011 SC 184,

68. Maqbool Vs. St. of A.P., AIR 2011 SC 184,

69. St. of Punj. Vs. Hakam Singh, 2005(7) SCC
408

70. Dhanaj Singh Vs. St. of Punj., (2004) 3 SCC
654,
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. &
Hon'ble Pradeep Kumar Srivastava, J.)

1. Heard Shri Pradeep Kumar Mishra,
learned Amicus Curiae for the accusedappellant Ram Naresh in Criminal Appeal
nos. 1313 & 1315 of 1996, Shri Vinod
Kumar Srivastava, learned counsel for the
accused-appellant Kamal in the connected
Criminal Appeal No. 1316 of 1996 and
Shri L.D. Rajbhar & Shri Prem Shankar
Mishra, learned AGA for the State
respondent and perused record.

2. These three Criminal Appeals have
been filed by accused-appellants namely
Ram Naresh and Kamal against the
impugned judgment and order dated
18.6.1996 passed by the Session Judge,
Farrukhabad in ST No. 474 of 1993 and
475 of 1993, arising out of Case Crime
No.118 & 138 of 1993, Police Station
Rajepur, District Farrukhabad, by which
accused Ram Naresh and Kamal have been
convicted and sentenced under Section
302/34 IPC for life imprisonment and for
the offence under Section 25 (i)(c) Arms
Act for a term of one year RI each. It has
been
further
directed
that
both
the
sentences shall run concurrently.

3. Brief prosecution version is that the
incident took place on 3.8.1993 at 1:30 PM
village Salempur when the informant Smt.
Sudha Devi, her mother Beti Devi and
brother Ram Lakhan were going from
village through footpath (pagdandi) to
village Salempur for taking medicine from
doctor. The moment they reached to the
footpath of the field of Antu, the accused
persons namely Ram Naresh (her elder
brother) and Kamal, hidden behind the
hedges of mooj, came out having country
made pistol in their hands and to the
3-5 All. Ram Naresh Vs. The State of U.P.
453
mother who was going ahead to her, the
accused Ram Naresh said that today he
would not spare her alive as she was the
reason for family dispute and she would not
let him get his share in the property.
Thereafter, in order to kill her mother, he
fired on her. The fire hit her mother and the
informant
and
her
brother
became
apprehensive and in order to save their
lives ran back shouting to save her mother
and her mother ran towards Salimpur. Her
mother had sustained injuries by fire and
she could not run ahead and fell down.
Accused Ram Naresh and Kamal went
closer to her mother and by their country
made pistol again fired on her mother, who
died on spot in the field of Antu. The
informant any how concealing herself with
her brother went to the police station and
gave a written report on the basis of which
an offence under Section 302 IPC was
registered against both the accused persons.
The police went to the place of occurrence
and took over the possession of the dead
body, prepared inquest report and other
papers, sealed the dead body and delivered
to the police personnel for post-mortem.
The statements of the witnesses were
recorded by the Investigating Officer on the
same day. From the spot, two empty
cartridges and one live cartridge were
found near the dead body and the same
were taken into possession and sealed.
Samples of blood stained and plain earth
was also collected from the spot and that
was also sealed. A pair of slipper of the
deceased Beti Devi and one empty
cartridge and one live cartridge was also
found there at some distance from the dead
body, which were taken in possession and
sealed. The memo thereof was prepared in
the
presence
of
the
witnesses.
Subsequently,
the
accused
persons
surrendered before court and were taken on
police remand as they made confessional
statements and stated that they have
concealed the country made pistol by
which they committed the offences which
they have concealed in the courtyard of the
accused Ram Naresh. By digging a pit on
their instance, the said country made pistol
was recovered for which they could not
show licence and, therefore, on the basis of
recovery of illegal country made pistol, an
FIR was lodged under Section 25 Arms
Act. The site plan for both the offences was
prepared
during
the
investigation,
thereafter,
finding
sufficient
evidence
against the accused persons, charge sheet
was submitted against them under the
aforesaid sections.

4. The learned trial court framed
charges
against
the
accused
persons
separately under Section 302 IPC and
Section 25 of the Arms Act and in the
alternative, also framed charge for the
offence under Section 302 read with
Section 34 IPC. The accused persons
denied the charges and claimed trial.

5. In support, the prosecution
examined eight witnesses. The statements
of the accused persons were recorded under
Section 313 Cr.P.C. and they put forward
the case of denial saying that the witnesses
had given false statements because of
enmity and property disputes. The defence
has examined DW-1 Sri Ravindra Kumar,
Advocate and DW-2 Krishan Pal.

6. The learned trial court after hearing
the prosecution and defence, convicted and
sentenced both the accused persons by the
impugned judgment.

7. Aggrieved by the conviction and
sentence, the accused persons have filed
this appeal challenging the impugned
judgement
being
against
weight
of
454 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence on record, is bad in the eyes of
law and awarded sentence is too severe.
Therefore, the impugned order is liable to
be set aside and the accused persons are
entitled for acquittal.

8. The learned counsel for the
appellant-accused has submitted that both
the fact witnesses examined by the
prosecution are related being daughter and
son of the deceased and as such they are
highly
interested
witnesses.
No
independent witness has been examined.
There
are
material
contradiction,
improvement and discrepancy in the
evidence of fact witnesses. The defence
evidence has not been given due weight.
There is no such motive alleged for the
offence. The recovery of weapon allegedly
used for commission of offence is tainted
and planted and the same cannot be relied
upon.

9. The learned AGA has submitted
that the case is based on direct evidence
supported by recovery of weapon and and
medical evidence and the learned trial court
has rightly held the accused persons guilty
and has awarded adequate sentence.

10. In the light of rival arguments of
parties, let us see the evidence on record on
the basis of which the learned trial court
has passed the impugned judgement. PW-1
A.K. Kulshrestha, ASI is the formal
witness, who has proved chik FIR Ext. Ka1, GD report No.26 of 6:05 PM Ext. Ka-2,
inquest report Ext. Ka-3 and other papers
necessary for sending the dead body for
post-mortem from Ext. Ka-4 to Ext. Ka-8.
The witness also stated that he recorded the
statement of informant, recovered two
empty cartridges and one live cartridge
near the dead body and sealed the same. He
also picked up blood stained and plain
earth, slippers of the deceased and one
empty cartridge and one live cartridge from
the place where the slipper was found. All
these articles were sealed and memo was
prepared before the witnesses which are
Ext. Ka-9 to Ext. Ka-12. He has further
stated that on 4.8.1993, he made
attempt to search the accused persons
and recorded the statement of Ram
Lakhan and on the pointing of the
informant, the site map of the place of
occurrence was also prepared, which is
Ext.
Ka-13.
The
accused
persons
surrendered
before
the
Court
on
12.8.1993 and they were taken on
police remand on 29.8.1993 and on
their instance the country made pistol
was recovered, which was used in the
murder of deceased and which was
concealed in the house of accused Ram
Naresh, who after digging the place in
the house got the country made pistol
recovered and gave the same to the
police. Their statements have been
proved as Ext. Ka-14 and Ext. Ka-15,
the country made pistol was sealed on
spot and on that basis, recovery memo
was prepared, which is Ext. Ka-16 and
site plan of recovery was prepared,
which is Ext. Ka-18. Prior to it, the
witness entered his departure from the
police station on GD report no.15 at
10:20 AM on 29.8.1993, copy thereof
has been attached and filed by the
witness, which is Ext. Ka-17. On the
basis of recovery, FIR was lodged for
the offence under Section 25 Arms
Act, chik FIR and GD report is Ext.
Ka-19 and Ext. Ka-20. The witness has
also proved the empty cartridge and
live cartridge, which were recovered
from the spot as material Ext.-1 to
Ext.-5. The recovered country made
pistol is material Ext.-6 and material
Ext.-7. The case under Section 25
3-5 All. Ram Naresh Vs. The State of U.P.
455
Arms Act was investigated by SI Jaipal
Singh, who recorded the statement of
the witnesses.

11. PW-2 Constable Kamlesh Babu
has stated that accused persons Ram
Naresh and Kamal, present in the Court,
had confessed that they committed murder
of Beti Devi and the country made pistol by
which she was killed is in the house of
accused Ram Naresh and he can get the
same recovered. This witness has proved
the recovery of country made pistol at the
instance of accused persons.

12. PW-3 Smt Sudha Devi (informant
and eye witness) has stated that her mother
Beti Devi was killed about one year 10
months ago by the accused persons Kamal
and Ram Naresh. Three years before her
murder, the witness had become widow and
she was living with her parents. With her
mother, her brothers Ram Pratap, Ram
Lakhan were also living. Accused Ram
Naresh is her real brother but he used to
live separately in the same house. Her
father was a teacher and he died on
24.10.1989. She had no share in his
property. But she had her share in the
money deposited in the fund and she had
given affidavit that her share be also given
to her mother. The accused Ram Naresh
was always angry with her mother as the
money and the account was in her control.
On the date of incident, she was going to
Salempur with her brother and mother.
When they reached to the footpath
(pagdandi), the accused persons who were
hidden in the hedges of mooj (sarpat) came
out and said to her mother that they would
not let her alive and they fired on her
mother which hit her mother who ran
towards Salimpur and she and her younger
brother Ram Lakhan ran backwards. Her
mother could not run much far. The
accused persons went close to her mother
and fired from close range on her. She
sustained injuries and died on the spot.
Thereafter, the accused persons ran away
from there. She lodged the first information
report by giving a written report which she
got scribed by Shamsher Singh, which is
Ext. Ka-21. On the place of incident, empty
cartridge was lying close to her mother's
dead body and other was lying at some
distance from the dead body and one live
cartridge was also found from the place
from where the slippers of her mother were
recovered.

13. PW-4 SI Ram Naresh Pandey has
stated that he was posted at police station
Rajepur on 29.8.1993 and on that day the
accused persons were taken on police
remand and they took the police and
witnesses to the house of accused Ram
Naresh and got the country made pistol
recovered
which
was
used
for
the
commission of offence. The memo was
prepared on which he also signed.

14. PW-5 Ram Lakhan Singh
(eyewitness) has stated that his father was a
teacher who died. His elder sister Sudha
Devi is widow and after death of her
husband, she used to live with his mother in
their house. Accused Ram Naresh also
lived with them, who is real brother but he
got separated himself from the family from
the time of his father. After death of his
father, his mother inherited the property.
Accused Ram Naresh had instituted a case
against his mother regarding the property
of his father, which was pending at the time
of the murder. About one year and 10
months ago, his mother was killed at 1:30
PM and at that time he, his sister Sudha
Devi and his mother were going to
Salempur for taking medicine. When they
reached to the footpath (pagdandi) of
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Salempur, the accused persons Ram Naresh
and Kamal came out from the hedges of
mooj. Ram Naresh said that he would not
spare the mother alive as she was the sole
reason for the family dispute. Thereafter,
he fired on his mother, which hit her on
pelvis (kulha). On being injured, she ran
away leaving her slippers there. Thereafter,
she fell on the ground and both the accused
Ram Naresh and Kamal went close to her
and both fired on her. Consequently, his
mother died on spot. They shouted and on
their shout 2-3 persons reached there and
later on people from the side of their house
also came. His sister went to Rajepur and
got FIR scribed by one Shamsher and gave
the same to the police station. The accused
Kamal is samdhi (father-in-law of son) of
accused Ram Naresh.

15. PW-6 SI Kripal Singh took over the
investigation
when
most
part
of
the
investigation was completed and filed charge
sheet, which is Ext. Ka-22.

16. PW-7 Dr. S.B. Singh has stated that
on 4.8.1993, he was posted in District Hospital,
Farrukhabad and in the evening, at 3:00 PM,
conducted the post-mortem of Smt. Beti Devi,
who was brought to the hospital by constable
Chote Lal and constable Nawab Singh of PS
Rajepur. The deceased was aged about 70 years
and she had died one day before. Eyes were
closed and mouth was partly opened, rigor
mortis had passed from the upper limbs and
was present in lower limbs. There was a little
swelling on the stomach and the lower part of
the stomach was greenish, dried blood, dust,
mud and piece of grass were found on the chest
and head. On examination, following ante
mortem injuries were found on the body of the
deceased-

(I) Firearm entry wound 3.5 cm x 2.5
cm x cranial cavity deep left mastoid region,
just behind left ear. Margins inverted,
lacerated, ecchymosed, mostoid; blackening
and tattooing present around the wound in an
area of 12 cm x 10.00 cm.

(II) Multiple pellets wound of entry
12 in number, dorso- medial aspect of right
forearm in the area of 13.0 cm x 9.0 cm
measuring 0.5 cm x 0.3 cm to 0.3 cm x 0.2 cm
skin and muscle deep.

(III) Multiple pellet wounds of entry
20 in number, posterior lateral aspect of right
buttock in area of 18.0 cm x 14.0 cm measuring
from 1.0 cm x 0.3 cm to 0.3 cm x 0.2 cm, muscle
to skin deep.

17. In the internal examination, left
parietal bone and occipital bone were found
broken, brain-lacerated, base of scalp was
also broken, spinal cord not opened, heart
empty, stomach contained 200 gm semi
digested foot. The doctor has proved the
post-mortem report as Ext. Ka-23 and has
stated that the deceased must have died
because of shock and haemorrhage, which
must have resulted due to ante mortem
injuries. From the body of the deceased,
one wad, two ticklies and 26 pellets from
scalp, 5 pellets from right arm from the
skin and 7 small pellets from right buttock
were recovered, which were sealed. One
blouse, one sari, one peti-coat, one
rudrakhsh mala of deceased were sealed
and handed over to the constable. The
doctor has also stated that the deceased
must have died on 3.8.1993 at 1:30 PM and
the injuries caused by firearms found on
her body were sufficient to cause death.

18. PW-8 SI Jaipal Singh Yadav
prepared inquest report and other papers
necessary for sending the dead body for
post-mortem. A live cartridge, empty
cartridge and slippers, blood stained and
3-5 All. Ram Naresh Vs. The State of U.P.
457
plain earth, two empty cartridges and one
live cartridge were taken into custody and
memos were prepared on the dictation of
SO. On all the memos, SO signed. The
witness has further stated that in relation to
the offence under Section 25 Arms Act, he
recorded the statement of SO A.K.
Kulsheshtra and statements of accused
persons and other witnesses, prepared site
plan of place of recovery, which is Ext. Ka24 and Ext. Ka-25 and after getting
sanction for prosecution, charge sheet was
submitted against both the accused persons
for the offence under Section 25 of the
Arms Act, which is Ext. Ka-28 and Ext.
Ka-29. The sanction order is Ext. Ka-26
and
Ext.
Ka-27.

19. The defence has examined DW-1
Sri Ravindra Kumar, Advocate who stated
that he is a practising lawyer and he knew
Ram Lakhan who came to him for
preparing an affidavit, which was got
prepared and sworn by oath Commissioner
after reading over to Ram Lakhan on which
he put his signature. In the crossexamination, he has stated that he has been
lawyer of Ram Lakhan and he does not
know Ram Prakash and Chhavi Nath. He
has denied that he prepared false affidavit
for him.

20. DW-2 Krishan Pal has also been
examined by defence, who has stated that
he knew the accused persons. He also knew
the deceased Beti Devi, who belonged to
his village. She had three sons and two
daughters and the eldest son is Ram Naresh
(accused), thereafter, Ram Pratap and then
youngest one Ram Lakhan, who is the
witness in this case. Daughters are Sudha
Devi (witness & informant) and Suman.
Suman has been married with his nephew.
Three years before, Beti Devi was killed in
the noon at 12:00 PM. He was sitting on his
door towards road side and some boys
rushed crying that the mother of Ram
Naresh has been killed by someone. The
dead body of Beti Devi was found in the
field of Antu. He tried to trace out the sons
of Beti Devi, but the two sons had gone to
Fatehgarh. They were informed by him.
Sudha Devi, Ram Pratap, Ram Lakhan and
Shamsher came there after 3:00 PM. The
chaukidar was sent to lodge report about
the incident to the police station. After
sometimes, the SO came there. Inquest
report was prepared on which he is also a
witness.

21. From the perusal of the evidence
on record, it appears that PW-3 Sudha Devi
and PW-5 Ramlakhan both are daughter
and son of the deceased. PW-3 started
living with her mother after death of her
husband and at the time of incident, both
were accompanying the deceased and were
going to Salempur to a doctor for taking
medicine for the deceased. In the fact and
circumstances, their being together and
presence at the time of incident is natural.
Both have stated that the accused persons
fired on deceased by their country made
pistol, injured her and caused her death.
Defence has examined DW-2 to show that
they were not with the deceased and
someone killed the deceased at about 12
PM in the noon and he heard some boys
were crying that she had been killed and
her body was found in the field of Antu.
Her sons had gone to Fatehpur and after 3
PM, Sudha and her brothers reached there.
Apparently, DW-2 is not eyewitness nor he
has been able to state about or identify any
of the boys he heard crying. It is also
established that the dead body was found in
the field of Antu which supports the case of
prosecution to the extent that the incident
took place somewhere around the field of
Antu. Before the IO, he gave statement that
in the afternoon the news spread that Beti
458 INDIAN LAW REPORTS ALLAHABAD SERIES
Devi has been killed by Ram Naresh and
Kamal,
but
when
controverted
by
prosecution, he has denied this. Remaining
statement given under section 161 has been
admitted by him which includes the
recovery of slipper of deceased and
cartridges from the spot. He has stated that
he sent the Village Chaukidar to Police
Station to lodge FIR. If it was so, the
Village Chaukidar was the right person to
prove this fact. But, he has not been
examined by the defence. On the other side,
it has been proved by the informant that she
lodged the FIR by giving written report in
the Police Station. In absence of any cogent
and clinching evidence, the version of DW2, to the extent it contradicts prosecution
version, cannot be believed. Clearly, he has
made improvement to shift the time of
incident from 1.30 PM to around 12 PM.
Moreover, the difference he has tried to
create in the timing is just of one hour and
15 to 30 minutes which is not relevant in
view of the ocular testimony supported by
medical evidence establishing the time of
incident alleged by prosecution.

22. The learned counsel to the
accused-appellant has challenged the
credibility of fact witnesses on the basis
of their being related witness, certain
contradiction and improvement and lack
of any motive for the commission of
offence. He has submitted that no
independent witness has been examined
and both the fact witnesses are relatives
and highly interested witnesses and on
their evidence no reliance could be
placed by the learned trial court. It is
admitted
fact
that
both
the
fact
witnesses are brother and sister and the
deceased has been their mother. But, it
can hardly make a difference as the
prosecution case is that at the time of
incident, there was none on the place of
occurrence except these witness who
were accompanying their mother and
they were going to the doctor in relation
to the ailment of the deceased.

23. The law in respect of the
testimony of related witnesses has been
time
and
again
reiterated
by
the
Supreme Court that the testimony of
related witnesses cannot be discarded
merely on the basis of relationship. The
only requirement is that the testimony
of such witness should be scrutinized
cautiously and carefully. In Dalip
Singh v State of Punjab (1954) SCR
145, while rejecting the argument that
witnesses who are close-relatives of the
victim should not be relied upon, the
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 cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative would
be the last to screen the real culprit and
falsely implicate an innocent person. It is
true, when feelings run high and there is
personal cause for enmity, that there is a
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However,
we are not attempting any sweeping
generalisation. Each case must be judged
on its own facts. Our observations are only
made to combat what is so often put
forward in cases before us as a general
rule of prudence. There is no such general
rule. Each case must be limited to and be
governed by its own facts."
3-5 All. Ram Naresh Vs. The State of U.P.
459

24. In Masalti v State of UP AIR
1965 SC 202, the Supreme Court observed:

"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."

25. The Supreme Court has also taken
the view that related witness does not
necessarily mean or is equivalent to an
interested witness. A witness may be called
interested only when he or she derives
some benefit from the result of litigation; a
decree in a civil case, or in seeing a person
punished in a criminal trial. In Darya
Singh v State of Punjab, AIR 1965 SC
328, followed by State of UP v Kishanpal
(2008) 16 SCC 73, the Court held as under:

"On principle, however, it is
difficult to accept the plea that if a witness
is shown to be a relative of the deceased
and it is also shown that he shared the
hostility of the victim towards the assailant,
his evidence can never be accepted unless
it is corroborated on material particulars."

26. Again, in Appa v State of
Gujarat, AIR 1988 SC 698, the Court has
observed:

"Experience reminds
us that
civilized people are generally insensitive
when crime is committed even in their
presence. They withdraw from both, victim
and vigilant. They keep themselves away
from the Court. They take crime as a civil
dispute. This kind of apathy of general
public is indeed unfortunate but it is
everywhere whether in village life or town
and city. One cannot ignore this handicap.
Evidence
of
witnesses
has
to
be
appreciated keeping in view such ground
realities. Therefore, the Court instead of
doubting the prosecution case where no
independent witness has been examined
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."

27. Similar view has been taken in
State of AP v S. Rayappa (2006) 4 SCC
512, where the court observed that it is now
almost a fashion that public is reluctant to
appear and depose before the court
especially in criminal cases and the cases
for that reason itself are dragged for years
and years. The Court stated the principle as
follows:

" ....by now, it is a wellestablished principle of law that testimony
of a witness otherwise inspiring confidence
cannot be discarded on the ground that he
being a relation of the deceased is an
interested witness. A close relative who is a
very natural witness cannot be termed as
interested witness. The term interested
postulates that the person concerned must
have some direct interest in seeing the
accused person being convicted somehow
or the other either because of animosity or
some other reasons."

28. Further, in Pulicherla Nagaraju
@ Nagaraja Reddy v State of AP (2007)
1 SCC (Cri) 500, the Supreme Court has
held as under:

"In this case, we find that the trial
court had rejected the evidence of PW1 and
PW2 merely because they were interested
witnesses being the brother and father of
460 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased. But it is well settled that
evidence of a witness cannot be discarded
merely on the ground that he is either
partisan or interested or closely related to
the deceased, if it is otherwise, found to be
trustworthy and credible. It only requires
scrutiny with more care and caution, so
that neither the guilty escape nor the
innocent wrongly convicted. If on such
careful scrutiny, the evidence is found to be
reliable and probable, it can be acted upon.
If it is found to be improbable or
suspicious, it ought to be rejected. Where
the witness has a motive to falsely implicate
the accused, his testimony should have
corroboration
in
regard
to
material
particulars before it is accepted."

29. Similarly, in Satbir Singh v State of
UP, (2009) 13 SCC 790, the Court has held as
under:-

"It is now a well-settled principle of
law that only because the witnesses are not
independent ones may not by itself be a ground
to discard the prosecution case. If the
prosecution case has been supported by the
witnesses and no cogent reason has been
shown to discredit their statements, a judgment
of
conviction
can
certainly
be
based
thereupon........."

30. In M.C. Ali v State of Kerala AIR
2010 SC 1639; and Himanshu v State (NCT
of Delhis, (2011) 2 SCC 36, Bhajan Singh
and others v State of Haryana; (2011) 7 SCC
421, it was laid down that evidence of a related
witness can be relied upon provided it is
trustworthy. Again, in Jayabalan v U.T. of
Pondicherry, 2010(68) ACC 308 (SC), the
Supreme
Court
has
made
following
observation:

"We are of the considered view that
in cases where the court is called upon to deal
with the evidence of the interested witnesses, the
approach of the court, while appreciating the
evidence of such witnesses must not be
pedantic. The court must be cautious in
appreciating and accepting the evidence given
by the interested witnesses but the court must
not be suspicious of such evidence. The primary
endeavour of the court must be to look for
consistency. The evidence of a witness cannot
be ignored or thrown out solely because it
comes from the mouth of a person who is
closely related to the victim."

31. Dharnidhar v State of UP,
(2010) 7 SCC 759 referred the above
observation of Jaya Balan (supra) and
held that there is no hard and fast rule that
family
members
can
never
be
true
witnesses to the occurrence and that they
will always depose falsely before the Court.
It will always depend upon the facts and
circumstances of a given case. Similar view
has been taken in Ram Bharosey v State
of UP AIR 2010 SC 917, where the Court
stated that a close relative of the deceased
does not become an interested witness. An
interested witness is one who is interested
in securing the conviction of a person out
of vengeance or enmity or due to disputes
and deposes before the Court only with that
intention and not to further the cause of
justice.

32. Again, in Balraje @ Trimbak v
State of Maharashtra, (2010) 6 SCC 673,
it has been held that when the eyewitnesses are stated to be interested and
inimically deposed against the accused, it
would not be proper to conclude that they
would shield the real culprit and rope in
innocent person. The truth or otherwise of
the
evidence
has
to
be
weighed
pragmatically.
The
Court
would
be
required to analyze the evidence of related
witnesses and those witnesses who are
3-5 All. Ram Naresh Vs. The State of U.P.
461
inimical towards the accused. But if after
careful analysis and scrutiny of their
evidence, the version given by the
witnesses appears to be clear, cogent and
credible, there is no reason to discard the
same.

33.

Subsequently,
in
Jalpat Rai v State of Haryana AIR 2011
SC 2719 and Waman v State of
Maharashtra AIR 2011 SC 3327, it was
observed
that
the
over-insistence
on
witnesses having no relation with the
victims often results in criminal justice
going away. The testimony of a witness in
a criminal trial cannot be discarded merely
because the witness is a relative or family
member of the victim of the offence. This
view has been reiterated in Shyam Babu v
State of UP, AIR 2012 SC 3311, Dhari &
Others v State of UP, AIR 2013 SC 308
and
Bhagwan
Jagannath
Markad
(supra). Recently, in Ganapathi v State
of Tamilnadu, AIR 2018 SC 1635, the
Court found no force in the argument that
the conviction based on the evidence of
family members in a murder trial is not
sustainable. In Rupinder Singh Sandhu v
State of Punjab, (2018) 16 SCC 475, it
has been reiterated by the Supreme Court
that relationship by itself will not render the
witness untrustworthy. The Supreme Court
laid down as below:

"Relationship is not a factor to
affect credibility of a witness. It is more
often than not that a relation would not
conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent and credible. ...... A witness is
normally to be considered independent
unless he or she springs from sources
which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish
to implicate him falsely. Ordinarily, a close
relative would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high
and there is personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a
grudge
along
with
the
guilty,
but
foundation must be laid for such a criticism
and the mere fact of relationship far from
being a foundation is often a sure guarantee
of truth."

34. Recently, in Shio Shanker Dubey
v State of Bihar AIR 2019 SC 2275, the
Supreme Court has reiterated the law as
under:

"...... a close relative cannot be
characterized as an "interested" witness.
He is a "natural" witness. His evidence,
however, must be scrutinized 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 deceased or
victim is no ground to reject his evidence.
On the contrary, close relative of the
deceased would normally be most reluctant
to spare the real culprit and falsely
implicate an innocent one."

35. Thus, in view of aforementioned
decisions of the Supreme Court, it is settled
position of law that the statements of the
interested witnesses can be safely relied
upon by the court in support of the
prosecution story. But this needs to be done
with
care
and
to
ensure
that
the
462 INDIAN LAW REPORTS ALLAHABAD SERIES
administration of criminal justice is not
undermined by the persons who are closely
related to the deceased and inimical with
the accused. When their statements find
corroboration by other evidence, expert
evidence and the circumstances of the case
clearly depict completion of the chain of
evidence pointing out to the guilt of the
accused, then there is no reason as to why
the statement of so-called 'interested
witnesses' cannot be relied upon by the
Court. It would be hard to believe that the
close relatives shall leave the real culprit
and shall implicate innocent persons falsely
simply because they have enmity with the
accused persons. There is no rule to the
effect that the evidence of related or
partisan
witness
is
not
acceptable.
Association or relation does not render the
evidence false and partisanship is no
ground to reject the testimony given on
oath.

36. So far as non-examination of the
independent witness is concerned, the
option lies with the prosecution to examine
as many witness as is required to be
examined to prove the charge. Moreover,
no other witness has been alleged to be
present on spot at the time of incident and
therefore, there was no question of
examining any other witness. Moreover, it
is not the quantity, rather quality of the
evidence which is decisive in arriving at the
right conclusion.

36.

Certain
contradictions,
discrepancies and improvements have been
mentioned in the statements of fact
witnesses. PW-3 has stated that they were
going to Dr. Ramprasad of salempur where
her mother used to go for injection. She has
said that her mother was patient of
tuberculosis and on the previous night,
because of cough (khansi), blood came out
from her mouth.