# Ram Shanker & Ors v. State of U.P - **Citation:** (2019) 2 ILRA 2224 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-10-22 - **Case number:** Criminal Appeal No. 541 of 1998 - **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shanker-ors-v-state-of-u-p-44710 - **Pages:** 37 ## Headnote A. Section 149, 299, 300, 302 & 304 Part- 1 and Part-2 I.P.C. Distinguish between motive intention and knowledge. 2 All. Ram Shanker & Ors. Vs State of U.P. 2225 Relative witness: - Relationship with deceased is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. The testimony of the PW-1 and PW-6 cannot be discarded only on the basis of their relationship with the deceased. The trial Court is able to seprate grain from the chaff, the reliable and acceptable part of the evidence can be accepted and the untruthful part of the evidence may be rejected and on the basis of truthful evidence some accused may be convicted and others may be acquitted. Distinguish between motive intention and knowledge: - There is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. The facts and circumstances of the present case of grave and sudden provocation and hence the Accused is entitled to the benefit of Section 300 Exception 4 of the Indian Penal Code." It is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged. There was no pre-mediation and the act done by the Appellant was in the heat of passion without the Appellant taking any undue advantage or acted in a cruel manner. Over all discussion, it is apparent that the act of appellant is covered under Section 304 PartI of the I.P.C. instead of Section 300 punishable under Section 302 of the I.P.C. and, therefore, appellant is liable to be convicted under Section 304 Part-I of I.P.C. and not under Section 302 I.P.C. Appeal partly allowed (E-2) Case Law Referred: - ## Text _Characters 0–39,979 of 122,450. This is a partial read: ask again with offset=39979 for what follows._ 2224 INDIAN LAW REPORTS ALLAHABAD SERIES of the opinion that in the fitness of things, extreme penalty of death was not called for and the same is fit to be commuted to life imprisonment." 132. It is apparent from the above position of law that death penalty should be awarded only in circumstances as enumerated in the above-mentioned cases and only in that eventuality when collective conscience of the community is so shocked that it will expect the court to inflict death penalty irrespective of their personal opinion as desirability. In the present case, we find that facts were not such as would shock our conscience to that extent that we would feel compelled to award death penalty because the murder in the present case is not committed in such gruesome manner that it will require imposition of death penalty. 133. In this regard, in our opinion, this is not one of such cases in which the offence of murder is committed in such gruesome manner that it would require imposition of death penalty. The accused are stated to have made fires upon the deceased and also on other three injured persons by which they have received injuries. Therefore, we find it adequate that ends of justice would be met if the punishment under Section 302/149 IPC is reduced to that of life imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, two months simple imprisonment. Rest of the punishments which have been awarded under the above mentioned sections do not require any interference and they are upheld. 134. Accused are in jail. 135. The Criminal (Capital) Appeal No.205 of 2015 stands partly allowed and the reference for confirmation stands rejected. 136. The Criminal Appeal Nos. 206 of 2018 and Criminal Appeal No.207 of 2018 stand dismissed. 137. Let a copy of this judgment be transmitted to the court below along with original record of lower court for necessary information and compliance forthwith ---------- (2019)10ILR A 2224 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. 541 of 1998 along with Criminal Appeal No. 542 of 1998 along with Criminal Appeal No. 564 of 1998 along with Criminal Appeal No. 1839 of 2004 Ram Shanker & Ors. ...Appellants Versus State of U.P. ...Respondent Counsel for the Appellants: Sri Anand Mohan, Begum Sabiha Kamal, Sri Mohd. Shahid Akhtar. Counsel for the Respondent: Govt. Advocate. A. Section 149, 299, 300, 302 & 304 Part- 1 and Part-2 I.P.C. Distinguish between motive intention and knowledge. 2 All. Ram Shanker & Ors. Vs State of U.P. 2225 Relative witness: - Relationship with deceased is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. The testimony of the PW-1 and PW-6 cannot be discarded only on the basis of their relationship with the deceased. The trial Court is able to seprate grain from the chaff, the reliable and acceptable part of the evidence can be accepted and the untruthful part of the evidence may be rejected and on the basis of truthful evidence some accused may be convicted and others may be acquitted. Distinguish between motive intention and knowledge: - There is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. The facts and circumstances of the present case of grave and sudden provocation and hence the Accused is entitled to the benefit of Section 300 Exception 4 of the Indian Penal Code." It is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged. There was no pre-mediation and the act done by the Appellant was in the heat of passion without the Appellant taking any undue advantage or acted in a cruel manner. Over all discussion, it is apparent that the act of appellant is covered under Section 304 PartI of the I.P.C. instead of Section 300 punishable under Section 302 of the I.P.C. and, therefore, appellant is liable to be convicted under Section 304 Part-I of I.P.C. and not under Section 302 I.P.C. Appeal partly allowed (E-2) Case Law Referred: - 1. Gangabhavani Vs Rayapati Venkat Reddy & ors., MANU/SC/0897/2013 2. St. of Rajasthan Vs Smt. Kalki & anr. MANU/SC/0254/U.P. 3. Sachchey Lal Tiwari Vs St. of U.P. MANU/SC/0865/2004 AIR 2004 SC 5039, 4. Bhagaloo Lodh & ors. Vs St. of U.P. reported in MANU/SC/0700/2011 5. M.C. Ali & anr. Vs St. of Kerala MANU/SC/0247/2010 AIR 2010 SC 1639 6. Myladimmal Surendran & ors. Vs St. of Kerala MANU/SC/0670/2010 AIR 2010 SC 3281 7. Shyam Vs St. of M.P. MANU/SC/7112/2007 (2009) 16 SCC 531 8. Prithi Vs St. of Haryana ANU/SC/0532/2010 :(2010) 8 SCC 536 9. Surendra Pal & ors. Vs St. of U.P. & anr. MANU/SC/0713/2010 (2010) 9 SCC 399 10. Himanshu @ Chintu Vs St. (NCT of Delhi) MANU/SC/0006/2011:(2011) 2 SCC 36) 11. Mahendran & ors. Vs St. of Tamil Nadu & ors. Reported in MANU/SC/0257/2019 12. Chanakya Dhibar (Dead) Vs St. of W. B. & ors., MANU/SC/1096/2003 13. Lalji Vs St. of U.P. MANU/SC/0283/1989 14. Roy Fernandes Vs St. of Goa & ors. Reported in MANU/SC/0072/2012 15. Kuldip Yadav & ors. Vs St. of Bihar, MANU/SC/0390/2011 16. Manjit Singh Vs The St. of Punjab, MANU/SC/1195/2019 17. Lallu Manjhi Vs St. of Jharkhand, AIR 2003 SC 854 18. AIR 2003 SUPREME COURT 3617, Sucha singh v/s St. of Punjab 2226 INDIAN LAW REPORTS ALLAHABAD SERIES 19. Masalti & ors. Vs St. of U.P. MANU/SC/0074/1964, St. of Punjab Vs Jagir Singh (AIR 1973 SC 2407) 20. Lehna Vs St. of Haryana (2002 (3) SCC 76) 21. AIR 2013 SUPREME COURT 3150, Raj Kumar Singh @s Raju alias Batya Vs St. of Rajasthan 22. Budhi Singh Vs St. of H.P. reported in MANU/SC/1126/2012 23. Arjun & ors. Vs St. of Chhattisgarh reported in MANU/SC/0153/2017 24. Arumugam Vs State, Represented by Inspector of Police, Tamil Nadu MANU/SC/8108/2008: (2008) 15 SCC 590 25. Surinder Kumar Vs Union Territory, Chandigarh MANU/SC/0589/1989 (1989) 2 SCC 217 26. Ghapoo Yadav & ors. Vs St. of M.P. (2003) 3 SCC 528, MANU/SC/0124/2003 27. Sukhbir Singh Vs St. of Haryana (2002) MANU / SC/0116/2002, (2002) 3 SCC 327 28. Alister Anthony Pareira Vs St. of Maharashtra (2012) 2 SCC 648, MANU/SC/0015/2012 29. Singapagu Anjaiah Vs St. of A.P. (2010) 9 SCC 799, MANU/SC/0451/2010 30. Basdev Vs The State of PEPSU AIR 1956 SC 488 31. Pulicherla Nagaraju @ Nagaraja Reddy Vs St. of A.P. (2006) 11 SCC 444, MANU/SC/8419/2006 32. Surain Singh Vs St. of Punjab reported in MANU/SC/0399/2017 (2017) 5 SCC 796 33. Atul Thakur Vs St. of H.P. & ors., MANU/ SC/0018/2018, AIR 2018 SC 570. (Delivered by Hon'ble Mohd. Faiz Alam Khan, J.) 1. Heard Shri Mohd. Shahid Akhtar, Advocate for the appellant in Criminal Appeal Nos. 542 of 1998, 564 of 1998, 541 of 1998 and as Amicus Curiae for appellant, Kalloo in Criminal Appeal No. 1839 of 2004 as well as Shri Chandra Shekhar Pandey, learned A.G.A. for the State. These Criminal Appeal Nos. 542 of 1998, 564 of 1998, 541 of 1998, 1839 of 2004 have been filed by above appellants against the judgment and order dated 29.09.1998 passed by learned Additional Sessions Judge XIth, Lucknow in Sessions Trial No. 316 of 1996 "State vs. Siya Ram and others", arising out of Case Crime No. 86 of 1995, under Sections 147, 148, 149 and 302 I.P.C., Police Station Itaunja, District Lucknow, whereby all the appellants were convicted under Section 147, 148, 149 and 302 I.P.C. and sentenced for life imprisonment. 2. The prosecution case as borne out of the record of the Subordinate Court is that a written report was presented by Sri Rafique Khan son of Sri Husaini Khan resident of Village Ludhauli, Police Station Itaunja, District Lucknow to S.H.O. Police Station Itaunja, on 22.05.1995 at about 9:45 pm. alleging that the younger brother of the applicant namely Zaheer Khan is running a shop of Electric appliances at Manpur Chauraha. One Munna son of Ram Shanker Pasi is employed in his shop as a servant. On 22.05.1995 at about 8:30 pm., he (Rafique) and Zaheer went to the residence of Munna with regard to some work pertaining to installation of decorative lights and when Zaheer called Munna from the main gate of the house, Siya Ram Lodhi son of Munni Lal, Karan 2 All. Ram Shanker & Ors. Vs State of U.P. 2227 Singh son of Bhagwan Bux Singh, Harish Chandra son of Hem Raj, Santosh Singh son of Sheetla Bux Singh, Arjun Singh son of Bhagwan Bux Singh, Khem Chandra son of Munna, Ram Shanker son of Putti Lal and Kallu son of unknown emerged out from the house and dragged his brother namely Zaheer inside the house and started assaulting him by ''Kicks and Fists'. His brother fell down and Siya Ram took out a knife from his pocket and stabbed Zaheer below his chest with an intention to kill him. His brother (Zaheer)after receiving grievous injuries died at the spot, inside the house of Ram Shanker. On hearing alarm, Mohd. Shamim son of Maqsood Khan and Krishna Kumar Mishra son of Lal Bihari Mishra of the same village Ludhauli arrived on the spot and witnessed the incident in the light of torch and 'Dhibri' , which was lighting inside the house. The other villagers of the village also arrived on the spot and witnessed the incident. The dead body of his brother is lying inside the house of Ram Shanker. 3. On the basis of the aforesaid written application (Exhibit-ka-1), Chik FIR (Exhibit-ka-2) was prepared and a case was registered at Case Crime No. 86 of 1995 on 22.05.1995 at 9:45 pm, under Sections 147, 148, 149 and 302 I.P.C.. A corresponding G.D. entry (Exhibit-ka-3), was also made in the General Diary as Serial No. 86 of 1995 at 9:45 pm. on 22.05.1995 and investigation of the F.I.R. was entrusted to S.H.O. Shri M.M. Khan. The Investigating Officer visited the place of incident and prepared Inquest Report (Exhibit-ka-5) and other necessary papers for the purpose of postmortem of the dead body i.e. 'Photo Lash' (Exhibit-ka-7), Sample Seal (Exhibit-ka-6), letter to C.M.O, (Exhibit-ka-9), Form No.13 (Exhibit-ka-8). The Investigating Officer also prepared the Site Plan (Exhibit-ka10) and collected the blood stained and simple soil from the place of occurrence and also prepared a Recovery-memo (Exhibit-ka-11). The dead body of deceased Zaheer was thereafter sent for postmortem. 4. P.W.-4/Doctor Nalini Kant Tripathi conducted the postmortem on the body of the deceased Zaheer on 23.05.1995 at 11:30 am and prepared a postmortem report (Exhibit-ka-4). He found the age of the deceased as about 32 years, a person of average built body. Rigor mortis was present all over the body. The postmortem staining was present on the back, Eyes were closed and mouth was half open. The Doctor found following ante mortem injuries on the dead body of the deceased:- Injury No.1/Stab wound of 5 cm. x 2 cm. x abdominal cavity deep present on point of abdomen 6 cm. above from umbilicus, margins are sharp and clear cut and well defined. On opening ecchymosis present beneath injury, small intestine cut through and through at one place place. Small intestine and abdomen omentum is coming out of wound. Direction is oblique forward to move downward. Injury No.2/Stab wound of 4 cm. x 2 cm. x Abdomen cavity deep present on right side lower base 7 cm. behind mid line and 10 cm. above from post superior Iliac spine. Margins are sharp clear cut and well defined. Direction is obliquely forwarded upward 2228 INDIAN LAW REPORTS ALLAHABAD SERIES from right to left. On opening ecchymosis present underneath injury. Stomach cut through and through at one place about 01 liter of fluid and clotted blood with food material present in abdominal cavity. On internal examination, 90 ml. liquid food matter was found in the Stomach, digested food and gases were found in small intestine and faecal matter and gases were found in big intestine. Galbladder was empty. The cause of death was determined as death occurred due to shock and haemorrhage, as a result of, Anti-mortem stab wounds . The Investigation Officer, during the course of investigation also sent the blood stained soil and other articles, recovered form the spot, for chemical examination and the report of the chemical analyst (Exhibit-ka-12) is available on record, which states that human blood has been found on all these articles. The Investigating Officer after completing the investigation filed a charge-sheet against all the named accused persons under Section 147, 148, 149 and 302 I.P.C. 5. The case being triable by the Court of Sessions was committed to the Sessions Court and charges under Section 147, 149/302 I.P.C. were framed against Karan Singh son of Bhagwan Bux Singh, Harish Chandra son of Hem Raj, Santosh Singh son of Sheetla Singh, Arjun Singh son of Bhagwan Bux Sing, Khem Chandra son of Munna, Ram Shanker son of Putti Lal, while charges under Section 148 and 149/302 of I.P.C. was framed against accused-appellant, Siya Ram. The appellants denied the charges and claimed trial. 6. The prosecution in order to bring home the charges framed against appellants/accused persons relied on following documentary evidence:- 1. Application FIR, Exhibit-ka-1 2. Chick FIR, Exhibit-ka-2 3. G.D. Entry of FIR, Exhibit-ka-3 4. Postmortem report, Exhibit-ka-4 5. Inquest Report, Exhibit-ka-5 6. Seal Sample, Exhibit-ka-6 7. Photo Lash, Exhibit-ka-7 8. Form-13, Exhibit-ka-8 9. Letter to C.M.O, Exhibit-ka-9 10. Site Plan, Exhibit-ka-10 11. Seizure Memo of Simple & blood stained Soil, Exhibit-ka-11 12. Chemical Analyst Report, Exhibit-ka-12 13. Charge-sheet, Exhibit-ka-13 Apart from the above mentioned documentary evidence, the prosecution also testified following witnesses :- P.W.-1/Rafique Khan (Informant/Eye witness) P.W.-2/Mohd. Shamim (Eye witness) P.W.-3/Constable Vishnu Narayan Shukla, (Scribe of the Chick FIR and G.D.) 2 All. Ram Shanker & Ors. Vs State of U.P. 2229 P.W.-4/Doctor Nalini Kant Tripathi, the (Doctor, who conducted postmortem) P.W.-5/Shri M.M. Khan, (Investigating Officer) P.W.-6/Raees Khan @ Rahees, (Scribe of the application of FIR) 7. After the completion of prosecution evidence, the statement of appellants was recorded under section 313 of the Code Of Criminal Procedure wherein they denied the occurrence as alleged by the prosecution and alleged false implication due to enmity. Appellant Siyaram also denied his presence at the spot and further stated that police has shielded the actual culprits. He claimed that deceased has been murdered as he was of bad character. Appellant Ram Shankar Stated that injured Zaheer entered his house to save his life. He went to the house of Rafique to call him and when he went to lodge the report the dead body of deceased remained in his care. Appellants in their defence also produced D.W.-1 Loknaam, D.W.-2 Khemchandra, D.W.-3 Santram and D.W.-4 Krishna Kumar. 8. The Trial Court after appreciating and analyzing the evidence made available on record came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt against appellants Siya Ram, Karan Singh, Harishchandra, Ram Shanker and Kalloo, and vide impugned judgment and order convicted and sentenced the appellants in the manner described in the first paragraph of this judgment. Trial Court by the same judgment and order acquitted the accused persons Santosh Singh, Arjun Singh and Khemchandra of the charges under Sections 147, 148, 149/302 I.P.C. No appeal, till date, is stated to have been filed by the State against the Judgment and Order of acquittal, pertaining to Santosh Singh, Arjun Singh and Khemchandra. Shri Mohd. Shahid Akhtar, learned counsel for the appellants while referring to the judgment of the Trial Court submits that the Court below has convicted the appellants only on the basis of ''surmises, assumptions and conjectures'. The prosecution, according to him, failed in its duty to prove the charges against the appellants. 9. Learned counsel for appellantaccused further submits that as per the facts and circumstances of the present case, the case of other appellants is different from the case of appellant Siyaram and in absence of any unlawful assembly they could not be convicted for the Act of Siyaram. Learned counsel for the appellants further submits that the Court below have acquitted 03 accused persons and convicted the appellants on the same set of evidence. No motive has been proved of the crime and the prosecution story is highly improbable. He further submits that the evidence of 02 eye witnesses namely P.W.-1/Rafique and P.W.-2/Mohd. Shamim is not trustworthy in facts and circumstances of the case and also on the count that they are related to the deceased Zaheer and, therefore, their evidence is partisan and interested and could not be believed 2230 INDIAN LAW REPORTS ALLAHABAD SERIES He further submits that the story of the prosecution is highly improbable specially the fact that deceased Zaheer was dragged inside the house by all accused persons and the theory of prosecution that all accused persons caught hold of him and dragged the deceased for some distance is not believable in the facts and circumstances of the case, as no mark of injury or any sign has been found on the body of the deceased, which may suggest any scuffle. The Investigating Officer namely P.W.- 5/M.M. Khan has also not found any sign of scuffle at the spot. Therefore, the story of the prosecution is full of lies. He further submits that, in fact it is a blind murder. Deceased Zaheer has been murdered somewhere else by some unknown persons and to save himself, he came in the Courtyard of Ram Shanker and simply on the basis that his dead body has been found there, the appellants have been falsely roped in. He further submits that P.W.- 2/Mohd. Shamim is a chance witness and other independent witness/Krishna Kumar has not been produced by the prosecution and he testified himself as defence witness (D.W.-4) and in his statement has stated that P.W.-2/Mohd. Shamim was with him at the time of occurrence. Therefore, the presence of P.W.-2/Mohd. Shamim at the spot is highly doubtful and could not be believed in the facts and circumstances of the case. It is further submitted by learned counsel for the appellants that the accused persons were not having any prior information of the arrival of the deceased and, therefore, in absence of any prior enmity, there was neither any opportunity nor occasion for the appellants to form any unlawful assembly. No member of the assembly except Siya Ram was having any arm with him and the fact that Siya Ram is possessing a knife, was not known to any other accused person either before or during the hot talks or during alleged scuffle of deceased with Siya Ram. Therefore, there was no unlawful assembly formed at any time of the alleged incident. 10. Per contra, Shri Chandra Shekhar Pandey, learned A.G.A. submits that the prosecution by reliable and acceptable evidence has proved the case of prosecution and in cases of direct evidence, the prosecution is not obliged to prove the motive and, therefore, the case is to be decided on the basis of direct evidence of eye witnesses. He further submits that on the day of occurrence the deceased was dragged into the house by all accused persons and the unlawful assembly was formed at that point of time when deceased was dragged inside the house by all appellants and accused Siya Ram as a member of that Unlawful Assembly, in order to achieve its common object, stabbed deceased Zaheer in his Stomach and waist and caused his death. Therefore, each and every appellant is liable for the murder of Zaheer, being part and parcel of the Unlawful Assembly.Therefore, the Court below has not acted illegally in convicting the appellants and no interference is required in the Judgment and Order of the Trial Court and the appeal is liable to be dismissed. 11. Before proceeding further, it is expedient to have a brief survey of the evidence of the prosecution as well as 2 All. Ram Shanker & Ors. Vs State of U.P. 2231 of the defence available on record, so that the evidence available on record may be appreciated in a better way in the backdrop of the arguments advanced on behalf of the appellants and State. P.W.-1/Rafique Khan is the brother of the deceased Zaheer and was accompanying him at that point of time. He has stated that Munna was working with Zaheer and on the fateful day at 8:30 pm, when he along with Zaheer came to the house of Munna to take him (Munna) with them and gave a call to him from his main door, father of Munna i.e. Ram Shanker came out followed by Siya Ram, Kalloo, Harishchandra, Karan Singh and 03 other unknown persons and they caught hold of the deceased. Ram Shanker, Kallu, Harishchandra and Karan Singh caught hold of the deceased and Siya Ram took out a knife from his pocket and started stabbing the deceased below his chest. The incident was witnessed by him as well as by Shamim and Krishna Kumar, who were holding torches in their hand and a''Dhibri' was also lighted inside the house. He also narrated the motive of crime as some dispute about monetary transaction between Siya Ram and Zaheer. He acknowledges that the FIR was written by Raees on his dictation. In cross-examination, he stated that Munna was working as an employee of Zaheer, so was Putanni. On the fateful night, they took a contract of decorative lighting near Shamsherganj and all material pertaining to that was already transported to the Site and as Munna did not come to the shop, they came to the house of Munna to call him. He further stated that responding to the call given by deceased- Zaheer, at first, Ram Shanker came out and thereafter other accused persons named by him in his chiefexamination emerged and dragged Zaheer inside the house. They took his brother inside the house near the door of ''Baretha' and at that time Siya Ram took out a knife and stabbed Zaheer. He did not go inside the house and raised an alarm. His brother used to come at the house of Munna as and when required. The dead body of Zaheer was lying near the door. He further stated that a women lived in the house of Munna and he did not know whether she was of loose character. He stated to have told ''Daroga Ji' that she was of loose character and she was on talking terms with his brother Zaheer and his brother has been killed due to this. P.W.-2/Mohd. Shamim is a witness, who though was not accompanying the deceased or P.W.- 1/Rafiq Khan, but on the fateful day, he went to the shop of deceased, as he was in need of some money and when he did not find Zaheer at the shop and was informed by a neighbor Shopkeeper that Zaheer had gone to Munna's home, he came to Manpur. When he reached near the Railway line, he heard an alarm being raised by Rafique, which was coming from the house of Munna. He went near the main door of Munna and saw 5 to 6 persons catching hold of Zaheer, he recognized few of them as Siya Ram, Kalloo, Harishchandra and Ram Shanker but could not identify others. Siya Ram stabbed Zaheer with a knife, who fell down and he gave another blow and thereafter, accused persons fled away. He was having a torch and according to him, a ''Dhibri' was also lighting inside the house. In nut shell, he stated that he went to the shop of Zaheer as he was in need of some money and after being informed that Zaheer had gone to the house of Munna, he came there and on the way he met 2232 INDIAN LAW REPORTS ALLAHABAD SERIES Krishna Kumar. When he reached the spot, he found Rafique raising an alarm that Zaheer was being dragged and he found all accused persons surrounding the deceased and therefore, he could not see who amongst the accused persons was holding which part of the body of Zaheeer. Siya Ram's face was in front of Zaheer and all other accused persons were scattered here and there. There was no source of light at the place, where Zaheer was being dragged and only a ''Dhibri' was lighting at the door. He again stated that the main door of the house was open and he did not make any attempt to save his brother. He further stated that his brother was dragged for about 10 ft. and all accused persons were catching hold of him. He remained at the door till the incident was over and when the accused persons stopped assaulting the deceased, he returned to his home. He further stated that Krishna Kumar took his own way from Manpur Crossing. When he first heard the alarm raised by Rafique, he could not understand that Zaheer is being done to death or who are the persons committing the crime. Zaheer was injured below his chest and he had told at his home that the knife might have been used by only one person. P.W.-3/Constable Vishnu Narayan Shukla has proved the Chick FIR, Exhibit-ka-2 and G.D., Exhibit-ka-3 to be in his own hand writing and signatures. P.W.-4/Doctor Nalini Kant Tripathi has proved to have conducted the postmortem on the body of the deceased (Zaheer) on 23.05.1995 at about 11:30 am and also to have prepared the postmortem report, Exhibit-ka-4. The injuries noted by him on the person of the deceased Zaheer as well as other observations pertaining to internal and external examination have been elaborately dealt with in Para no. 4 of this Judgment. P.W.-5/Shri M.M. Khan is the Investigating Officer of the crime, who proved preparation of Inquest Report as Exhibit-ka-5. He also stated to have prepared and proved necessary papers required for the postmortem of the deceased and have stated to have also prepared the Site Plan, Exhibit-ka-10 and Memo of collection of blood stained and simple soil as Exhibit-ka-11 and also to have submitted the Charge-sheet against the accused persons as Exhibit-ka-13. In cross-examination, he stated that the body of the deceased was lying inside the house of Ram Shanker. There was a pool of blood around the body. He found one wound below the chest of deceased, which may be caused by any sharp aged weapon. According to him, he found no other visible injury marks on the body of the deceased and he also did not find any trail of blood from the main door of the house till the place, where the body was lying. He further stated in his crossexamination that he did not find any sign of ''struggle' near the dead body. He admitted to have been told by witness Shamim that deceased was of a bad character and he along with accused persons were having illicit relationship with the same girl and reason of his murder was the bad character of the deceased. He further stated that if someone is standing at the right side of the main door of the house of Ram Shankar, where the dead body of the deceased was found, he could not see what is happening inside the house. While 2 All. Ram Shanker & Ors. Vs State of U.P. 2233 referring to the Site Plan, this witness stated that from Point-B and C shown in the Map, one could not be able to see Point-A. P.W.-6/Raees Khan @ Rahees is brother of deceased, who stated to have written the FIR on the dictation of P.W.- 1/Rafique Khan and proved the same in his hand writing as Exhibit-ka-9. Admittedly, he came at the scene of occurrence after the incident was over, therefore, his testimony is not of much relevance so far as the commission of the crime is concerned. Accused persons in their defence have also produced 04 witnesses:- D.W.-1 Loknaam has been produced by the accused persons to prove the fact that the police arrested the Khemchandra at about 9-10 pm from his home. D.W.-2 is Khemchandra, has also stated that he was arrested at about 910 pm. by the police from his home. D.W.-3/Santram has stated that Siya Ram accused is known to him as they are residents of the same village. He is son of Ram Shanker Pasi. Munna is also the other son of Ram Shanker. He stated that deceased Zaheer was done to death and his dead body was lying in the house of Ram Shanker. Siya Ram also went to see the dead body along with him. He further stated that on the next day also, he saw Siya Ram in the village. D.W.-4/Krishna Kumar is the witness about whom, P.W.-2/Mohd. Shamim has stated that he met him at Manpur Crossing and from there, he took his own way. This witness stated that Ram Shanker came to meet him about 10 days ago. He met with the Investigating Officer, however, his statement was not recorded by him. He went to the scene of crime. Before incident, he was at Manpur Crossing, where he met with Shamim (P.W.-2) who told him to accompany him to village Manpur. Thereafter, Shamim departed from there and he after taking beetle returned to his home. When he arrived at his house, a little thereafter there was alarm in the village that Shamim had been killed. He also went to the spot along with others and saw that the dead body of Zaheer was lying inside the house of Ram Shanker and there was a pool of blood. He went to the spot at about 8:00 pm. He was not having any watch with him. He stated that Ram Shanker was also there. 12. Having gone through the evidence made available on record, the case of the prosecution, as put forth in the shape of oral and documentary evidence before the Court below, is that, deceased Zaheer was running a shop of electrical goods at Village Manpur and he was also doing the work of electricity decoration. Munna, who is the son of accusedappellant/Ram Shanker Pasi was working in his shop as an employee and he used to install decorative lights as and when required. On the fateful night, deceased Zaheer came to the house of Munna with his younger brother Rafiq, as he had sent decorative material at a Site and as on that day Munna did not come to the shop, they came to the house of Munna for the purpose of sending him to the Site for installation of decorative lights. The story as unfolds further from the statement of witnesses is that at 8:30 pm, when 2234 INDIAN LAW REPORTS ALLAHABAD SERIES deceased Zaheer along with Rafique arrived at the house of Munna and called him (Munna) from the main door of his house, at first Ram Shanker emerged from inside the house and, thereafter, all other accused persons came and caught hold of Zaheer and dragged him inside the house of Ram Shanker, while others caught hold of the deceased from all around , Siya Ram took out a knife and stabbed Zaheer below his chest and all other assaulted him with fists and kicks. 13. The first submission of Ld. Counsel for the appellants is that PW1 Sri Rafique and P.W.-6 Raees Khan are the real brothers of deceased and they are interested witnesses. Trial Court by the same judgment and order has acquitted the accused persons Santosh Singh, Arjun Singh and Khemchandra of the charges under Sections 147, 148, 149/302 I.P.C. and on the same set of evidence convicted the appellants, which is not tenable in the facts and circumstances of the case. So far as the submission of Ld. Counsel for the appellants pertaining to the two witnesses i.e. PW1 Sri Rafique and P.W.-6 Raees Khan, being relatives of the deceased is concerned, this issue is no more res inregra. Hon'ble Supreme Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors. , MANU/SC/0897/2013 has held as under :- "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.(Vide: Bhagaloo Lodh and Anr. v. State of U.P. MANU/SC/0700/2011 : AIR 2011 SC 2292; and Dhari and Ors. v. State of U.P. MANU/SC/0848/2012 : AIR 2013 SC 308). 12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390, this Court held: "5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. '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 a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents."(Emphasis added)(See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473). 2 All. Ram Shanker & Ors. Vs State of U.P. 2235 13. In Sachchey Lal Tiwari v. State of U.P. MANU/SC/0865/2004 : AIR 2004 SC 5039, while dealing with the case this Court held: "7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased." 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 re-appreciated 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 interrelated 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 herein above, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses." It is therefore settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with deceased is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. 2236 INDIAN LAW REPORTS ALLAHABAD SERIES However, in such a case Court has to adopt a careful approach and analyse the evidence of such witness to find out whether he is a natural witness and whether in the facts and circumstances of the case his evidence is cogent and credible. Keeping in view the above factual and legal matrix, we do not find any substance in the sumissions of Ld. Counsel for appellants that the testimony of the PW-1 Sri Rafeeque and PW-6 Raees be discarded only on the basis of their relation with the deceased.How ever the same has to be appreciated with care and caution. So far as second submission of the Ld. Counsel for appellants with regard to the fact that some accused persons have been acquitted and some have been convicted on the same set of evidence by the trial Court is concerned, it is permissible for any Criminal Court to sift the evidence produced by the prosecution and to seprate truth from falsehood and if in this exercise the trial Court is able to seprate grain from the chaff, the reliable and acceptable part of the evidence can be accepted and the untruthful part of the evidence may be rejected and on the basis of truthful evidence some accused may be convicted and others may be acquitted. Hon'ble Supreme Court Of India in Mahendran and Ors. Vs. State of Tamil Nadu and Ors. Reported in MANU/SC/0257/2019 in para 38 of the report held as under :- "38. .............. The argument that the entire case set up is based on falsehood and thus not reliable for conviction of the Appellants, is not tenable. It is well settled that the maxim "falsus in uno, falsus in omnibus" has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera's case, wherein the Court held as under: 15 . To the same effect is the decision in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : (1974) 3 SCC 277 and Lehna v. State of Haryana, MANU/SC/0075/2002 : (2002) 3 SCC 76. Stress was laid by the Accused- Appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an Accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an Accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other Accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars.