# Ram Sanehi & Ors v. State of U.P

- **Citation:** (2023) 1 ILRA 817
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Case number:** Criminal Appeal No. 551 of 1982
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sanehi-ors-v-state-of-u-p-49687
- **Pages:** 12

## Headnote

Criminal Law- Indian Evidence Act, 1972-
Section 3 - Interested Witness- P.W.-2 is
the real brother of deceased, he admitted
in his statement that his brother Prakash
was tried for the murder of Chote, who is
the real brother of Ram Sahai, he also
stated that he was prosecuted for the
murder of the brother of accused Ram
Sahai, therefore, he may be partisan
818 INDIAN LAW REPORTS ALLAHABAD SERIES
witness, but merely because he is the
brother of deceased and both families has
inimical relationship, his evidence cannot
be discarded, moreover his evidence is
corroborated by independent witness-The
evidence of related witness cannot be
brushed aside merely on the ground that
he is related to deceased.

Settled law that a witness can be called
interested only when he derives some benefit
from implicating the accused but where the
witness is a natural one, his evidence is cogent
and truthful, and is the only possible eyewitness
in the circumstances of the case, then he cannot
be said to be interested. (Para 29, 30)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

1 All. Ram Sanehi & Ors. Vs. State of U.P.
817
trustworthy and cogent evidence to prove
that Mohd. Aslam mixed some poison in
the meat while the meat was being cooked.

(12) The evidence on record is not of
such a quality that we can unhesitatingly
hold that the death of deceased persons
were result of administration of poison by
the convict/appellant. In other words the
prosecution has failed to prove that Mohd.
Aslam brought meat alongwith spices and
handed over to Khairunnisa to cook and
mixed the poison in the meat at the time of
cooking.

(13) It is painful for this Court to note
that four persons of the family were done to
death by poisoning but the real culprit of
the crime could not be brought to book. So
far as the appellant-accused Mohd. Aslam
is concerned the prosecution has failed to
conclusively establish by cogent evidence
that it was the accused/appellant who
committed the murder of four deceased.

(14) Hence the impugned judgment
and order deserves to be set-aside and is
set-aside.

(15) The appeal is allowed. The
appellant is in jail. He shall be released
forthwith, if not required in any other case.

(16) Appellant Mohd. Aslam is
directed to file personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned in
compliance with Section 437-A of the Code
of Criminal Procedure, 1973.

(17) Before we part with the case, we
must candidly express our unreserved and
uninhibited appreciation for the assistance
rendered by Mr. R.B.S.Rathaur, Amicus
Curiae for the convict-appellant, therefore,
we deem it appropriate to direct for
payment to Mr.R.B.S.Rathaur, learned
Amicus Curiae for his valuable assistance
as per Rules of the Court.

(18)
Office
is
directed
to
pay
remuneration to Mr.R.B.S.Rathaur, learned
Amicus Curiae as per Rules of the Court
within a month.

(19) Let a copy of this order
alongwith original record be transmitted to
the trial court concerned forthwith for
necessary information and follow action.
----------
(2023) 1 ILRA 817
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 551 of 1982

Ram Sanehi & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.K. Singh, Anurag Kumar Singh, Brij
Mohan Sahai, Sunil Kumar Singh

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1972-
Section 3 - Interested Witness- P.W.-2 is
the real brother of deceased, he admitted
in his statement that his brother Prakash
was tried for the murder of Chote, who is
the real brother of Ram Sahai, he also
stated that he was prosecuted for the
murder of the brother of accused Ram
Sahai, therefore, he may be partisan
818 INDIAN LAW REPORTS ALLAHABAD SERIES
witness, but merely because he is the
brother of deceased and both families has
inimical relationship, his evidence cannot
be discarded, moreover his evidence is
corroborated by independent witness-The
evidence of related witness cannot be
brushed aside merely on the ground that
he is related to deceased.

Settled law that a witness can be called
interested only when he derives some benefit
from implicating the accused but where the
witness is a natural one, his evidence is cogent
and truthful, and is the only possible eyewitness
in the circumstances of the case, then he cannot
be said to be interested. (Para 29, 30)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Gulab Vs St. of U.P., 2021 SCCOnline SC 1211

2. Rajesh Yadav & anr. etc. Vs St. of U.P., 2022
SCCOnline SC 150

3. Kartik Malhar Vs St. of Bih. (1996) 1 SCC 614
(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. The present Criminal Appeal has
been filed under Section 374(2) Cr.P.C.
against the judgment and order passed by
IInd Additional District & Sessions Judge,
Hardoi on 14.07.1982, in S.T. No.06 of 1982,
arising out of Case Crime No.43/143, Police
Station Pali, District Hardoi, convicting the
appellants Ram Sahai, Bishram, Jograj and
Motilal and sentencing them to rigorous
imprisonment for life under section 302 read
with section 34 IPC.

2. Wrapping the facts in brief,
complainant Jhinguri son of Lochan,
Resident Ahir Mauja Anta, had previous
enmity with Ram Sahai as his brother
Prakash (deceased) had fired at Ram Sahai
10 years ago and his brother was tried and
convicted
for
the
same
with
the
imprisonment of 7 years and he come out
of jail few days before the incident after
completing his incarceration. Accused
Bishram & Jograj are the real brother and
nephews of accused Ram Sahai. Accused
Motilal is also the nephew of Ram Sahai.
On the date of incident i.e. on 11.07.1981 at
about 6.30 p.m. complainant had gone for
defecation near pond on the western side of
village and his brother Prakash was going
to home from the path situated on the north
side of pond. He heard a sound of fire shot
and saw his brother running towards village
followed by Ram Sahai son of Diwani
armed with katta, Jograj son of Murli
armed with lathi, Moti son of Chote armed
with Spear, Bishram son of Murli armed
with Katta. His brother fell down on the
western path near the house of Baijnath. All
the four accused started beating and
assaulting his brother with the arms in their
hands. He rushed towards the place of
occurrence and shouted to save his brother.
Raghunandan, Bare, Darbari and many
other villagers reached there and scolded
the accused, but all the accused started
threatening them and dragged & beat his
brother, rushed towards western side of
sugar cane field. They followed the accused
keeping some distance, then the accused
leaving the brother of complainant in the
fields of Jawahar took to their heels
towards western side. His brother sustained
injuries of Kanta, Spear Bhala and Fire
Arm. There was slight cut on the neck of
deceased. The written report was moved to
police station in the next morning and is is
explained in the FIR itself that he could not
report in the night due to fear and darkness.

3. On the basis of written report FIR
was lodged in Police Station Pali, District
Hardoi and the investigation was entrusted
upon S.I. Prahalad Tiwari, who recorded the
1 All. Ram Sanehi & Ors. Vs. State of U.P.
819
statement of complainant and proceed to the
place
of
occurrence
immediately.
He
conducted inquest and prepared inquest
report alongwith other connected papers
Photo Lash, Challan Lash, letter to CMO and
Letter to R.I, etc. The dead body was sealed
and sent for postmortem examination to
District
Hospital
Shahajahanpur.
Investigating officer thereafter recorded the
statement of witnesses. He visited to place of
occurrence and found the bundle of grass at
the place of occurrence and prepared site
plain (Ex. Ka-9), collected grass and prepared
recovery memo (Ex. Ka-10). Investigating
officer collected six pellets and 3 bullets at
the scene of occurrence. He collected the
same and prepared recovery memo (Ex. Ka11). He also collected plain and blood stained
earth from two different places and prepared
recovery memo Ex.Ka-12 and Ex.Ka-13,
respectively.
The
investigating
officer
deputed S.I., B. P. Singh for the arrest of
accused. Accused Ram Sahai and Bhishram
were arrested on 15.07.1981 and Jograj and
Motilal surrendered in court on 02.07.1981.
After collecting essential evidence the
investigating officer submitted charge sheet
in the court on 24.07.1981.

4. All the accused were summoned in
the court and after the compliance of section
207 Cr.P.C. all the accused were committed
to the Court of Session for their trial. Charges
were framed against the accused under
section 302 read with section 34 IPC and read
over and explained to the accused, who
abjured from the charges and claimed to be
tried.

5. Prosecution produced following eight
witnesses to prove the prosecution story:-

(i) P.W.-1 Ram Prasad, who
brought the dead body for postmortem
examination,

(ii) P.W-2 Jhinguri, complainant,

(iiI) P.W.-3, Bade, who is said to
be witness of the case,

(iv)
P.W.-4,
Prahlad
Tewari,
investigating officer,

(v)
P.W.-5,
Head
Constable,
Bhola Singh, who proved the G.D. Ex. Ka17 regarding the dispatch of the case
property,

(vi) P.W.-6, Constable. Shivlal
who brought the case property in sealed
bundles to Sadar Malkhana, Hardoi,

(vii) P.W.-7, Dr. M.L. Tandon,
who conducted postmortem examination of
the dead body of Prakash at 4.00 P.M. on
13.07.1981.

(viii) P.W.-8, Constable, Ram
Samujh Yadav, who brought the case
property from place of occurrence to Police
Station Pachdeora, District Hardoi on
13.07.1981.

6. Besides ocular evidence the
following documentary evidences are also
produced and proved by the prosecution.

(i) Ex. Ka.-1, First Information
Report,

(ii) Ex. Ka-2, Sight Plan,

(iii) Ex. Ka-3, inquest report,

(iv) Ex. Ka-10, recovery of grass,

(v) Ex. Ka-11, recovery of Tikuli
and Charra,

(vi) Ex. Ka-12, recovery of blood
stain and plain earth,

(vii)
Ex.
Ka-18,
report
of
postmortem examination,

(ix) Ex. Ka-19, Affidavit filed by
one Vishwa Nath Pandey,

(x) Ex. Ka-20, Affidavit filed by
Rangnath Mishra,

(xi) Ex. Ka-21, report of chemical
examiner,

(xii)
Ex.
Ka-22,
report
of
Serologist and the recovery list.
820 INDIAN LAW REPORTS ALLAHABAD SERIES

7. On the basis of evidence produced
in court, learned trial court found all the
accused Ram Sahai, Bishram, Jograj and
Motilal guilty of the charges under section
302 read with section 34 IPC and convicted
& sentenced them to undergo imprisonment
for life. Aggrieved with the judgment and
order dated 14.07.1982 passed by learned
trial court, the present appeal is filed.

8. During the course of appeal, the
accused Ram Sahai, Bishram and Motilal,
have expired and appeal was ordered to be
abated against them, vide order dated
20.11.2019, passed by Co-ordinate Bench
of this Court and now in fact the appeal
survives only on behalf of appellant Jograj,
hence the Court proceed to hear it.

9. We have heard the submissions of
Sri Brij Mohan Shai, learned counsel for
the
appellants,
Sri
Chandra
Shekhar
Pandey, learned Additional Government
Advocate for the State and perused the
material brought on record.

10. Learned counsel for the appellants
submitted that the finding arrived by the
learned trial court are perverse and contrary
to the evidence on record. The medical
evidence is in not in consonance with the
eye witness account given in the FIR. The
prosecution case is falsified with the
absence of abrasion on the body which
makes whole story of prosecution doubtful.
There is material contradictions in the
statement of witnesses, therefore, the
judgment and order passed by the trial
court is liable to be set-aside.

11. On the contrary, learned AGA for
the
State-respondent
argued
that
the
judgment and order passed by trial court is
based on cogent evidence and there is no
material
contradictions
between
the
medical evidence and the ocular evidence.
The appellants committed brutal murder
and created terror in whole of the village.
Motive of the case is proved, therefore, the
judgment of the trial court is liable to be
upheld.

12. It transpires from the FIR that on
account of previous enmity the appellants
assaulted
Prakash,
the
brother
of
complainant
Jhinguri.
The
incident
occurred on 11.07.1981 at 18.30 p.m. and
the report was lodged on 12.07.1981 at
7.10 a.m. The delay has been explained in
the
FIR
itself
that
the
brother
of
complainant was assaulted and murdered
brutally by appellants, therefore, due to fear
and darkness of night he could not lodged
the FIR in the night and lodged the report
in the morning, therefore, the delay is
properly explained. Before elucidating the
evidence produced in the trial court it is
desirable to recapitulate them in brief.

13. P.W.-1, stated on oath that he was
posted as a constable clerk in Chauki
Pachdewra and brought the dead body of
deceased Prakash in sealed condition with the
necessary documents and sample seal and
handed over the dead body in District
Hospital, Shahjahanpur. He stated that
constable-58 Ramdayal, watchman Ram Sahai
and the brother of complainant Sarkas were
also with him. He endorsed his arrival in G.D.
No.3 at 6.10 a.m. on 13.07.1981 and got the
docket prepared. He identified the dead body
before doctor and after postmortem, the cloths
of deceased were handed over to him in sealed
envelop from the Hospital, which he submitted
on the next day in Chauki Pachdewra. The
dead body, envelop and bundles remained in
his custody intact and sealed.

14. P.W.-2 complainant stated that
Murli, Chote, Ram Singh and Ram Sahai are
1 All. Ram Sanehi & Ors. Vs. State of U.P.
821
four sons of of Dewani. Ten years ago his
brother Prakash (now deceased) was tried
under section 307 IPC for firing on appellant
Ram Sahai and he was convicted with the
imprisonment of seven years and he was
released from the jail two years before this
incident, therefore, there was inimical
relationship between the families. At about
nine months ago when he went for defecation
near the western side of pond at about 6.30
p.m. he saw his brother Prakash going
towards eastern side towards his house.
Immediately he heard the sound of fire and
his brother started running and raising alarm,
but he fell down on the southern path in front
of house of Hemsingh and in the north west
of the house of Baijnath due to fire arm
injury. Two fires were shot by Ram Sahai,
even after he fell down. Bishram assaulted
with Kanta, Jograj with lathi and Motilal with
pointed and sharp edged spear. He came to
the north west corner of the house of
Baijnath. On hearing the sound of fire
witnesses Raghunandan, Bare and Darbari
also reached there and challenged the
accused, but the appellant did not pay any
heed and picked the body of his brother and
threw it in the southern corner of the fields of
Jawahar. The witnesses identified the cloths
of the deceased produced before him in the
court.

15. P.W.-3 Bare is an eye witness of
the case who stated on oath that 8-9 months
ago at about 6.30 p.m. he heard the sound
of three fires and the alarm raised by some
one, he immediately reached on the north
south corner of the residence of Baijnath.
Jhinguri Raghunandan and Darbari also
arrived there. Bishram by Kanta, Jograj
with lathi and Motilal by spear were
assaulting Prakash who was lying on the
ground on the north west side of Baijnath
and on the southern path in front of the
house of Hemsing. They scolded Ram
Sahai etc., then they hang Prakash and took
him towards western side and threw in the
fields of Jawahar and when they saw
Prakash he was dead. He also stated that he
saw blood on the ground.

16. P.W.-4 Prahlad Tiwari, S.I. Chauki
Pachdeora, District Pali, Hardoi, stated on
oath that the case was registered Chauki and
he identified his signature Ex. Ka-1. He
proved Ex.Ka-1 as well as G.D. No.6 dated
12.07.1981, Ex.Ka-2. He also proved site
plain, inquest report and the necessary papers
related to inquest from Ex.Ka-3 to Ex. Ka-8.
This witness also proved site plain Ex.Ka-9,
recovery memo Ex. Ka-10 and recovery
memo of grass Ex.Ka-2. This witness proved
recovery memo of bullets and pellets as
material Ex.-11. The container was opend
before the witness in court and he proved that
the material is the same which he collected,
sealed and saved it from the place of
occurrence and brought it as Material
Exhibit-3. The witness proved the recovery
memo of plain and blood stain earth as
Material Exhibit-12 & Material Exhibit-13
and proved all the recovered items as
Material Exhibit-4. He obtained the result of
postmortem and made it a part of case diary.
He arrested Ram Sahai and Bishram at about
8.30 p.m. on 15.07.1981 and entered in G.D.
No.24 at 23.00 p.m. and recorded the
statement of accused Jograj and Motilal on
24.07.1981 with permission of court, as they
were sent to jail on 22.07.1981 on the
application for surrender. The witness proved
charge sheet and G.D. No.9 dated 13.07.1981
at 09.30 a.m. as Ex. Ka-15 and G.D. No.16
on the same day at 16.35 as Ex. Ka-16 and
G.D. No.6 dated 31.08.1981 at 6.20 a.m. as
Ex. Ka-17.

17. P.W.-5 Bhola Singh and P.W.-6
Shivlal are formal witnesses, who proved
Ex. Ka-17
822 INDIAN LAW REPORTS ALLAHABAD SERIES

18.

P.W.-7
Dr.
M.L.Tandon,
conducted postmortem of the body of
deceased and prepared postmortem report
and proved it. He found following
postmortem injuries on the dead body:-

"1 Incised wound 12 cm. x 4 cm.
x Bone deep on left side neck on the back
part 8 cm. below and behind lobule of left
ear 6th and 7th Carvical vertibra body cut
(fractured) Margins clean cut.

2. Incised wound 2 cm. x 0.5 cm.
x muscle deep on left side back 1.5 cm.
below injury no.1.

3. Incised wound 2 cm. x 0.5 cm.
x muscle on back and mid-line 17 cm.
below injury no.2 Margins clean cut.

4 Gun shot would of entry 1.5 cm.
x 0.5 cm. x bone deep on left cheek
adjacent to left mostril, Margins inverted,
Blackening present around the wound.
Upper jaw and teeth broken. Direction from
front to back downwards and to the right.

5. Gunshot would of exit 2 cm. x
1.5 cm. x bone deep on inner aspect upper
lip and jaw Communicating to injury no.4
with upper teeth of both Sides broken.

6. Incised wound 3 cm. x 1 cm. x
muscle deep on left side neck 2 cm. above
left clavical Margins clear cut.

7. Multiple incised would in an
area os 29 cm. X 27 on left side chest and
upper abdomen 3 cm. below left clavical.
Smallest size 1 cm. X 0.5 on x muscle deep
to largest size 2 cm. x 1 cm. x chest cavity
deep Margins clear cut.

8. Gun shot wound of entry 1.5.
cm. X 0.5 cm. x chest cavity deep on left
side chest 12 cm. away and below the left
nipple, Margins inverted. Direction from
front to back and to right.

9. Gun shot wound of entry 1 cm.
x 0.5 cm. x abdominal cavity deep on left
side abdomen 13 cm. above and left of
umbilicus. Margins inverted. Blackening
around the wound present.

10. Gun shot wound of entry 1
cm. x 0.5 cm. x abdominal cavity deep on
left side abdomen just near left anterior
superior iliac spin. Margins inverted
Direction from front to back downward and
to left. No blackening. No tattooing.

11. Gun shot wound of exit 1.5.
cm. x 1 cm. x abdomen cavity deep on left
upper thigh 3 cm below left anterior
Superior iliac spin and communicating
injury no.10 margins everted.

12. Gun shot wound of entry 1.5
cm. x 0.5 cm. x abdomen cavity deep right
side abdomen 2 cm. to the right of umilicus
with piece of intestine and omentum
coming out of the wound. Margins inverted.
Blackening present. Direction from front to
back.

13. Gun shot wound of entry on
right side abdomen 11 cm. above injury
no.12. Blackening around the wound
present. Direction front to back. Margins
inverted.

14. Contusion 3 cm. x 2 cm. on
top of right shoulder.

15. Lacerated wound 2 cm. x 1
cm. muscle deep in web space between
right thumb and right index finger of right
hand.

16. Incised would 1 cm. x 0.5 cm.
x muscle deep on back of right hand
middle. Margins clean cut.

17. Incised would 1 cm. x 0.5 cm.
x Bone deep on front of left leg 14 cm.
below knee, Margins clean cut.

18. incised wound 2 cm. x 1 cm. x
muscle deep in web space between left little
and right finger of left hand. Margins clean
cut.
Internal examination

6th and 7th Cervical vertebra
fractured. Vassels of the neck cut and
1 All. Ram Sanehi & Ors. Vs. State of U.P.
823
lacerated. Left side pleura and lung
lacerated. Heart empty.

Chest cavity contained 4 oz.
Blood and 1 big metallic pallet was
recovered from the cavity. Peritoneum
lacerated. Abdominal cavity contained
about 4 oz. blood one big metallic pellet
recovered.

Somach
contained
1-1⁄2
oz.
Semidigested food material. Small intestine
lacerated. Large intestine contained fecal
matter at places.

Liver was lacerated 1 one big
metallic pellet was recovered from left lobe
of liver."

19. It is opined by the doctor that
death of deceased was caused by Antemortem injuries and haemorrhage. Injury
nos.1, 2, 3, 6, 7, 16, 17 and 18 were incised
wounds and may be caused by sharp edged
weapon as Kanta and injury nos. 4, 5, 8, 9,
10, 11, 12 and 13 were caused by fire arm,
which he opined more than one in number.
P.W.-7 identified the cloths of deceased and
the three pellets recovered from the body of
deceased, as Ex.Ka.-18. It is also stated that
injury nos.6, 16 and 18 can be caused by
pointed and sharp edged weapon like spear

20. P.W.-8, Ram Samujh Yadav,
proved G.D. No.9 date 13.07.1981 time
9.30.

21. Besides the above mentioned oral
evidences Vishwanath Pandey, clerk in the
office
of
District
Hospital,
Hardoi,
Raghunath Mishra, Head Constable No.34,
C.P., Malkhana Moharar produced their
affidavit in court and stated that the case
property in five bundles were sent to
chemical examiner Agra, U.P.. through
constable-681 Shivlal, O.P. Pachdeora,
Police Station Pali and case property
remained
intact
during
this
period.
Raghunath Mishra stated in his affidavit
that the case property (4 contenor and 1
potli) were send through constable Shivlal681 for chemical test to CMO Office
Hardoi and it remained intact.

22. After the conclusion of evidence
of witnesses the statements of accused were
recorded under section 313 Cr.P.C. All the
accused denied the allegations and the
evidences produced against them and stated
that they are falsely implicated in the
present case due enmity and partibandi. No
defence witnesses were adduced, however,
opportunity to adduced defence witness
were given.

23. So far as enmity is concerned all
the accused-appellant admitted in their
statement under section 313 Cr.P.C. that
they were falsely implicated as there was
previous enmity between the parties. P.W.-2
Jhinguri specifically stated in FIR that his
brother Prakash, (now deceased) was tried
and convicted by the court for firing on
appellant Ram Sahai and he was punished
with seven years imprisonment in that case.
He came out of jail two years before this
incident. It is true that animosity is double
edged weapon and it can be used to falsely
implicate or the incident may occurred due
to enmity. Now it is to be seen that whether
the
accused
appellants
was
falsely
implicated in the case or they are actually
committed the offence. In this case the
P.W.-2 and P.W.-3, are eye witnesses of the
case, both appeared and deposed in the
court. P.W.-2 specifically stated that when
he went to defecation near pond he heard
the sound of fire and cries of his brother
and he also seen his brother crying and
running towards his house. It is also stated
that he fell down due to fire and two fire
were shot even after he fell down. The
accused-appellants were challenged by
824 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses Raghunandan, Bare and Darbari
and Bare as P.W.-3 has corroborated the
evidence of P.W.-2 Jhinguri, on oath. Both
of the witnesses proved that thereafter the
appellants picked the dead body of
deceased and threw in the fields of
Jawahar. It is also admitted by P.W.-2 that
when the Prakash was in jail the real
brother of appellant Ram Sahai namely
Chote was murdered by some one else and
he alongwith his brother Sarkash, Anangpal
and Harkaran were named in that case and
they were acquitted of the charges of
murder 4 to 5 months before the incident.
The wife of his brother Sarkash was also
murdered and Gangaram, Mulayam and
Bhramarpal were tried for the same.

24. It is argued by learned counsel for
the appellants that according to FIR the
dead body of the deceased was dragged by
the appellants, while taking towards the
field of Jawahar. However, during the
statement in court the witnesses stated that
the dead body of Prakash was hang and
thrown in the field of Jawahar. This is
minor contradictions, which do not destroy
the whole case of prosecution.

25. It is also argued on behalf of
appellants that evidence of P.W.-2 is also
doubtful, as appellants did not target him,
however, animosity is said between both
the families. In this contest it transpires
from the record that deceased Prakash,
aimed fire at Ram Sahai in earlier case,
however, P.W.-3 has no direct concerned
with
that
case,
moreover,
accusedappellants were following the deceased
Prakash, while he was bringing the bundle
of grass and going to his house. However,
the victim was on the western side of pond
for defecation. Hence there was no reason
to target the complainant. Therefore, this
argument is not tenable.

26. P.W.-4 collected the blood stain
and the plain earth from the place of
occurrence and from the place where the
dead body was thrown, that material was
send for chemical examination through
letter Ex.Ka-21 and as per report Ex.Ka-22,
human blood was found on the blood
stained earth and underwear of deceased, as
per serological report. It is also important
to mention here that according to Ex.Ka-11,
investigating officer collected six pellets
and three bullets from the place of
occurrence and on the bottom of bullets
L.G. was engraved. According to P.W.-7
three pellets were recovered from the body
of deceased and one matelic pellet was
recovered
from
cavity
of
abdomen.
According to P.W.-7 injury nos. 4, 5, 8, 9,
10, 11, 12 and 13 were caused by gun shot.
All the case properties were produced
before the P.W.-4 investigating officer, who
proved in court that six tiklies and three
pellets were recovered from the place of
occurrence,
which
are
proved
by
investigating officer in court. P.W.-4,
investigating officer proved the site plan
also, according to which the bundle of
grass was recovered from the place shown
by letter ''x' in site plain. This is the bundle
of grass which the deceased was carrying
on his head at the time of occurrence.
However, "B" is the place where he was
fired and he started running towards the
village and "C" is the place where he is fell
down due to the injury sustained by him.
The dead body of deceased was recovered
from the place shown by letter ''C' in the
site plan.

27. It is stated on behalf of the present
appellant Jograj that he is assigned role of
assaulting by lathi and the persons who
shot fire and assaulted by spear and kanta
have already expired and the appeal has
been abated against them.
1 All. Ram Sanehi & Ors. Vs. State of U.P.
825

28. As per injury report the injury
nos.14 and 15 were found to be caused by
lathi. Injury no.14 is contusion 3 cm. X 2
cm., on the top of right shoulder and injury
no.15 is lacerated wound of 2 cm. X 1 cm.
x muscle deep in web space between right
thumb and right index finger of right hand.
Therefore, there is no confusion regarding
the presence of accused Jograj at the time
of occurrence and the accused Jograj
alongwith other co-accused assaulted the
deceased Prakash and cause injury on him.
According to the opinion of doctor P.W.-7,
the death has taken place about two days
before of postmortem examination and
cause of death was opined as shock and
haemorrhage as a result of antemortem
injuries. It is also opined that injuries were
sufficient to cause of death in ordinary
course of nature. Prosecution proved the
cogent evidence that fire arm, sharp &
pointed weapon and lathi were used to
cause death of deceased.

29. It is also argued that P.W.-2
Jhinguri is interested and related witness
and, therefore, for this obvious reason he
deposed against the accused persons,
therefore, his statement could not be relied
upon. Jhinguri, P.W.-2 is the real brother of
deceased, he admitted in his statement that
his brother Prakash was tried for the
murder of Chote, who is the real brother of
Ram Sahai, he also stated that he was
prosecuted for the murder of the brother of
accused Ram Sahai, therefore, he may be
partisan witness, but merely because he is
the brother of deceased and both families
has inimical relationship, his evidence
cannot be discarded, moreover his evidence
is corroborated by independent witness
Bare.

30. It is argued by learned counsel for
the appellant that evidence of P.W-2 is not
reliable as he is interested witness in the
case. In this context Hon'ble Apex Court
held in plethora of judgment that the
evidence of related witness cannot be
brushed aside merely on the ground that he
is related to deceased.

31. It was held by Hon'ble Supreme
Court in para-15 of the case of ''Gulab Vs.
State
of
U.P.',
reported
in
2021
SCCOnline SC 1211 that:-

"a related witness cannot be said
to be an "interested" witness merely by
virtue of being a relative of the victim. This
Court has elucidated the difference between
"interested and "related" witness in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result of a
litigation, which in the context of a
criminal case would mean that the witness
has a direct or indirect interest in seeing
the accused punish due to prior enmity or
other reasons, and thus has a motive to
falsely implicate the accused".

32. It was also held by Hon'ble
Supreme Court in para-28 of the case of
''Rajesh Yadav and Another etc. Vs.
State
of
U.P.'
reported
in
2022
SCCOnline SC 150 that:-

"a related witness cannot be
termed as an interested witness per se. One
has to see the place of occurrence
alongwith 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
826 INDIAN LAW REPORTS ALLAHABAD SERIES
corroboration. A related witness would
become an interested witness, only when he
is desirous of implicating the accused in
rendering a conviction, on purpose."

33. In Kartik Malhar Vs. State of
Bihar (1996) 1 SCC 614, the Hon'ble Apex
Court has held as under:-

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

We are unable to agree with the
learned Judges of High Court that the
testimony of the two eye-witnesses requires
corroboration. If 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 rules. 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 which another Bench of this Court
endeavoured to dispel in Rameshwar v. The
State of Rajasthan [1952] SCR 377= AIR
1952 SC 54. We find, however, that it is
unfortunately still persist, if not in the
judgments of the Courts, at any rate in the
arguments of counsel."

In this case, the Court further
observed 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 an 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
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.

In another case of Mohd. Rojali
Versus State of Assam: (2019) 19 SCC
567, the Hon'ble Apex Court in this regard
has held as under:-

"As regards the contention that
all the eyewitnesses are close relatives
of the deceased, it is by now wellsettled
that a related witness cannot be said to
be an ''interested' witnesses merely by
virtue of being a relative of the victim.
This court has elucidated the difference
between ''interested' and '' related'
witness in a plethora of cases, stating
that a witness may be called interested
only when he or she derives some
benefit from the result of a litigation,
which in the context of a criminal case
would mean that the witness has a
direct or indirect interest in seeing the
accused punished due to prior enmity
or other reasons, and thus has a motive
to falsely implicate the accused (for
instance, see State of Rajasthan v.
Kalki (1981) 2 SCC 752; Amit v. State
of Uttar Pradesh, (2012) 4 Scc 107;
and Gangabhavani v. Rayapati Venkat
Reddy, (2013) 15 SCC 298).
Recently, this difference was reiterated
in Ganapathi v. State of Tamil Nadu,
(2018) 5 SCC 549, in the following
1 All. Ram Sanehi & Ors. Vs. State of U.P.
827
erms, by referring to the three Judge
bench decision in State of Rajasthan v.
Kalki (supra): "14. "Related" is not
equivalent to "interested". A witness
may be called "interested' only when he
or she derives some benefit from the
result of a litigation; in the decree in a
civil case, or in seeing an accused
person punished. A witness who is a
natural one and is the only possible eye
witness in the circumstances of the case
cannot be said to be "interested".."

11. In criminal cases, it is often
the case that the offence is witnessed by a
close relative of the victim, whose presence
on the scene of the offence would be
natural. The evidence of such a witness
cannot automatically be discarded by
labelling the witness as interested. Indeed,
one of the earliest statements with respect
to interested witnesses in criminal case was
made by this Court in Dalip Singh v. State
of Panjab 1954 SCR 145, wherein this
Court observed:

"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..."

12. In case of related witness, the
Court may not treat his or her testimony as
inherently tainted, and needs to ensure only
that the evidence is inherently reliable,
probable, cogent and conistent. We may
refer to the observations of this Court in
Jayabalan
v.
Union
Territory
of
Pondicherry, (2010) 1 SCC 199;

"23. 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
witnesses cannot be ignored or shown out
solely because it comes from the mouth of a
person who is closely related to the victim."

34. Hence prosecution proved the
case beyond reasonable doubts by cogent
evidence
that
the
present
appellant
alongwith other co-accused assaulted the
deceased and caused injuries, which doctor
P.W.-7 opined as sufficient caused of death.
Ocular witnesses proved the case and
learned counsel for the appellant could not
show
any
flaw
or
any
material
contradiction
in
the
statements
of
witnesses. Learned counsel could not
reveal any perversity or illegality in the
judgment passed by the trial court.

35 Learned trial court considered the
entire
evidence
on
record
led
by
prosecution and elucidated the evidences
under the circumstances of the case and
found that the evidences produced by the
prosecution are sufficient to prove the case
against the appellant beyond reasonable
doubt.

36. In view of the forgoing
discussion, we are of the view that
reasoning given by the court below for
convicting and sentencing the appellant
no.3 Jograj, to rigorous imprisonment for
life, for the alleged offence under section
302 read with section 34 IPC, are sufficient
and prosecution established the guilt of the
accused beyond reasonable doubt.
828 INDIAN LAW REPORTS ALLAHABAD SERIES

37. On the basis of above discussion,
the appeal filed by the appellant Jograj is
liable to be dismissed and is accordingly
dismissed. The judgment of trial court is
hereby confirmed.

38. The accused Jograj is in jail. He
shall served out the punishment awarded by
the trial court.

39. Let the copy of judgment and
order as well as the records of trial court be
transmitted to the trial court concerned
forthwith for necessary information and
compliance of this order.
----------
(2023) 1 ILRA 828
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.01.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1385 of 2021

Viresh Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Nadeem
Murtaza,
Amit
Kr.
Singh
Bhadauriya, Jayant Mohan Verma

Counsel for the Respondent:
G.A., Anupam Rastogi, Parijat Belerwa

Criminal
Law-
Scheduled
Castes
and
Scheduled Tribes ( Prevention of Atrocities
)
Act,
1989-Section
3(1)(r)-
Section
3(1)(s) - It is settled law that all insults
or intimidation to a person will not be an
offense under the Act unless such insult or
intimidation is on account of victim
belonging
to
Scheduled
Caste
or
Scheduled Tribe-Offence under the Act is
not established merely on the fact that the
informant is a member of Scheduled Caste
unless there is an intention to humiliate a
member of Scheduled Caste or Scheduled
Tribe for the reason that the victim
belongs to such caste-It is not the case of
the complainant that at the time of
incident other peoples of the locality were
present. The incident had occurred inside
a house which was not within the public
view and no member of public was
present
at
that
time-The
complaint
neither
discloses
the
caste
of
the
complainant or her family members nor
the allegations are that they were made in
public view. Also , the offending words are
not purported to be made for the reason
that the informant is a person belonging
to Scheduled Caste.

Where the incident has occurred inside the
house and not in public view then offence u/s
3(1)(r) and 3(1)(s) of the SC/ST Act will not be
made out merely because the complainant
belongs to SC/ST. (Para 10, 11, 13, 14)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Hitesh Verma Vs St. of UK &anr. (2020)10
SCC 710

2. Khuman Singh Vs St. of M.P., (2020) 18 SCC
763

3. Swaran Singh Vs St., (2008) 8 SCC 435
(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
appellants,
learned
counsel
for
the
respondent no.2, learned AGA and perused
the material available on record.

2. By means of the present appeal
under Section 14-A (1) of Scheduled Castes
and Scheduled Tribes ( Prevention of
Atrocities ) Act, 1989 the appellants have
prayed
for
quashing
the
impugned
summoning order dated 9.3.2021 passed by