# Ramesh Yadav v. State of U.P

- **Citation:** (2024) 7 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-29
- **Case number:** Criminal Appeal No. 156 of 2004
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-yadav-v-state-of-u-p-52180
- **Pages:** 14

## Headnote

Law
-
appeal
against
conviction - acquittal - Indian Penal Code,
1860 - Section 302 (Murder) r.w. 14 -
Section 304 - (Culpable Homicide Not
Amounting to Murder) - enmity is a double
edged weapon - evidence of eyewitness, if
found truthful, cannot be discarded simply
because the witnesses were relatives of
the deceased - evidence of interested
witnesses should be subjected to careful
scrutiny and accepted with caution -
testimony of a reliable witness must be of
sterling quality on which implicit reliance
can
be
placed
for
convicting
the
appellants.(Para - 26,32,33)

Allegation of old enmity between deceased and
accused - no whisper about the enmity with
accused
-
Contradictions
in
eyewitness
statements - Discrepancies in police witnesses'
statements - Lack of strong motive for
appellants to commit murder - False implication
possible due to contradictions and lack of
motive. (Para - 43 to 49)

HELD: - Trial judge erred in convicting
appellants due to contradictions in eye and
police witnesses' statements, making the entire
story doubtful and benefiting the appellants.
Accused appellants entitled to benefit of doubt.
Impugned judgment of conviction set aside.
Appellants acquitted of charges. Bail bonds
cancelled. Sureties discharged. (Para - 50)

Both criminal appeals were allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,827 of 44,585. This is a partial read: ask again with offset=39827 for what follows._

1032 INDIAN LAW REPORTS ALLAHABAD SERIES
domestic jurisdiction of one country have
international ramifications. Criminal trial
proceedings in the domestic courts of one
country can get linked to the legal system
and the Government of another country.
There is a need for an international
framework of laws which is created by
consensus among the comity of nations in
order to deal with such issues in a fair,
transparent and just manner. For the
moment this issue is not within the ken of
this Court. However, it is a problem which
the Government of India and other
members of the comity of nations will have
to address.
----------
(2024) 7 ILRA 1032
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 156 of 2004
AND
Criminal Appeal No. 147 of 2004

Ramesh Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Bharat Singh Pankaj, Harindra Prasad Pal,
Ramakant Singh, Vineet Kumar Singh

Counsel for the Respondent:
Govt. Advocate

(A)
Criminal
Law
-
appeal
against
conviction - acquittal - Indian Penal Code,
1860 - Section 302 (Murder) r.w. 14 -
Section 304 - (Culpable Homicide Not
Amounting to Murder) - enmity is a double
edged weapon - evidence of eyewitness, if
found truthful, cannot be discarded simply
because the witnesses were relatives of
the deceased - evidence of interested
witnesses should be subjected to careful
scrutiny and accepted with caution -
testimony of a reliable witness must be of
sterling quality on which implicit reliance
can
be
placed
for
convicting
the
appellants.(Para - 26,32,33)

Allegation of old enmity between deceased and
accused - no whisper about the enmity with
accused
-
Contradictions
in
eyewitness
statements - Discrepancies in police witnesses'
statements - Lack of strong motive for
appellants to commit murder - False implication
possible due to contradictions and lack of
motive. (Para - 43 to 49)

HELD: - Trial judge erred in convicting
appellants due to contradictions in eye and
police witnesses' statements, making the entire
story doubtful and benefiting the appellants.
Accused appellants entitled to benefit of doubt.
Impugned judgment of conviction set aside.
Appellants acquitted of charges. Bail bonds
cancelled. Sureties discharged. (Para - 50)

Both criminal appeals were allowed. (E-7)

List of Cases cited:

1. Daleep Singh Vs St. of Punj., AIR 1953 SC
364

2. Hari Obula Reddy Vs St. of A.P., (1981) 3 SCC
675

3. S. Sudershan Reddy and ors. Vs St. of A.P,
(2006) 10 SCC 163

4. Rai Sandeep Vs St. (NCT of Delhi), (2012) 8
SCC 21

(Delivered by Hon'ble Mohd. Azhar Husain
Idrisi, J.)

1. We have heard Sri H.N. Singh,
Advocate assisted by Sri Arvind Kumar
Tiwari, learned counsel for the appellant as
well as learned A.G.A. for the State in
7 All. Ramesh Yadav Vs. State of U.P.
1033
extenso and have been taken through the
entire material on record.

2. The afore-captioned both
appeals arise out of the judgment and order
dated 17.12.2003, passed by the then
Additional Sessions Judge/Fast Track Court
No. 2, District Mau, in Sessions Trial No.
59 of 2002 (State Vs. Narendra Singh and
others) convicting the accused/ appellants
Narendra Singh, u/s 302 I.P.C. and accused
Dharmendra Singh and Ramesh Yadav,
under Section 302 read with Section 34 IPC
and sentenced accused Narendra Singh for
R.I. for life and a fine of Rs.10,000/- with
default clause and accused Dharmendra
Singh
and
Ramesh
Yadav,
for
life
imprisonment, under Section 302 read with
34 with fine of Rs. 5,000/-, with default
clause. Both these appeals are pending
since year 2004 since then about 20 years
have lapsed. Therefore, for the sake of
precision, brevity and convenience, both
the appeals have been clubbed and heard
together and are being decided by a
common judgment and order.

3. Bereft of unnecessary details,
prosecution case, as culled out from the
first
information
report,
is
that
on
07.12.2001
at
about
21.15
hrs.
the
complainant-Ram Pukar Singh s/o Raj
Kumar Singh r/o Village Mirzapur, police
station ranipur District Mau, gave a tehrir
(Ext Ka-1) at P.S. Ranipur, District Mau
divulging therein that the house of Kapil
Singh S/o Gorakh Singh is situate on the
southern side of his house. A programme
(Path) of Ramayan recital, was staged, on
7.12.2001 from 10 a.m. He and his younger
brother-Vijay Bahadur Singh alias Aangnu
had gone to listen Ramayan. In the evening
at about 6.00 pm., his younger brother
Vijay Bahadur Singh went to wash his
hands and face at the hand-pipe (nal),
installed at the door of Kapil Dev Singh.
Seeing Vijay Bahadur alias Angnu alone at
the hand pipe (nal), Narendra Singh s/o
Shri Ram Singhasan Singh, Dharmendra
Singh s/o Mangla Singh and Ramesh Yadav
s/o Ramchandar Yadav, came from their
houses
and
exhorted
to
kill
him.
Meanwhile, Narendra Singh fired at his
younger brother by a country made pistol,
the bullet hit him on the back of his head.
Vijay Bahadur fell down on the hand-pipe
(nal) and died at the spot. Vijay Bahadur
had old enmity with these people and in
past, had threatened to kill them. On
hearing the sound of fire, he alongwith
Panchanand Singh s/o of Rama Shanker
Singh, and Shiv Murat Singh son of
Chandra Bhusan, ran towards the hand-pipe
(nal) and saw the accused persons running
away from the spot, after killing Vijay
Bahadur. They chased the miscreants, but
they managed to run away.

4. On the basis of the abovestated
scribe (Ext Ka-1) a Criminal Case Crime
No. 275 of 2001 u/s 302 IPC against
Narendra Singh, Dharmendra Singh and
Ramesh Yadav was registered at P.S.
Ranipur, District Mau. Entries of the same
were drawn in Kaimi G.D. (Ext Ka-7) and
also in Chik FIR (Ext Ka-3). Initially, the
investigation
was
entrusted
to
S.I.
Yogendar Nath Singh (Pw-3).

5. On F.I.R. being launched, the
investigation was set into motion. The
Investigation
Officer
recorded
the
statements of several witnesses under
Section 161 of Cr.P.C. collected blood
stained and simple soil and other material
from the spot. prepared site plan, and after
appointing the witnesses, inquest of the
corpse of the deceased Vijay Bahadur
Singh, was conducted on 07.12.2001, at
about 21:15 p.m. He also prepared the
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
inquest report. In the opinion of witnesses
(panchan) the death of the deceased was the
result of fire arm injury. However in order
to confirm the exact cause of death, they
suggested to carry out autopsy of the corpse
of the deceased.

6. Consequentially I.O., prepared
letter of request for postmortem to C.M.O.,
photos lash and other relevant and
necessary papers and after wrapping the
dead body in a cloth, sealed it, prepared
sample of seal and sent it to mortuary for
postmortem through constable Ram Ji
Yadav and Ram Briksh Prashad on
08.12.2001. The autopsy was conducted by
Dr. Anand Kumar Srivastava (Pw-5) who
prepared postmortem report (Ext Ka-8) in
his own writing and signature wherein he
opined that the cause of death of the
deceased
Vijay
Bahadur
Singh
is
instantaneous, due to ante-mortem Injury.

7. I.O. sent the material collected
from the spot to FSL, Lucknow. After duly
completing the investigation and other
necessary formalities, I.O. submitted the
charge-sheet against the accused appellants
namely Narendra Singh, Dharmendra Singh
and Ramesh Yadav under Sections 302/34
I.P.C in the court of Chief Judicial
Magistrate, Mau , who took the cognizance
of the case. Finding the case being
exclusively triable by the court of Sessions,
Chief Judicial Magistrate, committed it to
the court of Sessions Mau, on 19.03.2002
for trial. In the Court of sessions it was
registered as Sessions Trial No. 59 of 2002
(State vs Narendra Singh and others) and in
turn transferred it to court of Additional
Sessions Judge / FTC Court No. 2, Mau for
trial.

8. The learned trial Sessions Judge
framed Charges against the accused/
appellant Narendra Singh u/s 302 I.P.C. and
against accused/ appellant Dharmendra
Singh and Ramesh Yadav u/s 302/34 IPC.
The accused / appellants abjured the
Charge, pleaded not guilty and claimed to
be tried.

9. In order to bring the charge
home, prosecution has examined, following
witnesses of facts including the formal
witnesses in in ocular evidence:-

Sl
no.
Name of the witnesses
PW Nos
1
Ram
Pukar
Singh
(Informant)
PW1
2
Panchanand
Singh
(witness)
PW2
3
S.I.
Yogendra
Nath
Singh, I- I.O.
PW3
4
Subhash Varma, H.M
PW4
5
Dr.
Anand
Kr
Srivastava, (PMR)
PW5
6
Vinod Kumar Tiwari
II- I.O.
PW6
7
C-Chandrabhan
Pandey,
Inquest
conductor
PW7

10. To corroborate the oral
evidence,
prosecution
also
adduced
following documentary evidence:-

Sl.
Nos.
Particulars
Ext. Nos.
Proved
by
i
Ii
Iii
Iv
1.
Tehrir
Ext. Ka1
PW-1
2.
Inquest report Ext. Ka2
PW-4
3.
Recovery
memo Gas /
Petro-max
Ext. Ka 3 PW-3
4.
Sample
of Ext. KaPW-3
7 All. Ramesh Yadav Vs. State of U.P.
1035
Fard
4
5.
Site
Plan,
C.D.
Ext. Ka5
PW-3
6.
Chik F.I.R.
Ext. Ka6
PW-4
7.
Carbon copy
of G.D.
Ext. Ka7
PW-4
8.
Post Mortem
Report
Ext. Ka8
PW-5
9.
Charge sheet
Ext. Ka9
PW-6

11. Prosecution has also produced
FSL reports which is on record, as paper
no. 70 Ka and 20 ka. Which has been
refereed by P.W.-6 S.H.O. Vinod Kumar
Tiwari in his deposition.

12. Prosecution has also exhibited
material evidence as under:-

Sl.
No
Particulars
Ext.
Nos.
Proved
by
i
ii
iii
iv
1.
Bullet
recovered from
the
dead
body
during PM
Ext.-
1
P.W.-6
2.
Plain earth
Ext.-
2
P.W.- 6
3.
Wrapper clothe
Ext.-
3
P.W. -6
4.
Blood
stained
earth
Ext.-
4
P.W.-6

13. After completion of the
prosecution
evidence
accused
were
examined 313 Cr.P.C. who denied the
statement of the prosecution witnesses and
stated that they are false. He further stated
that they are implicated on account of
political and otherwise personal enmity.
14. The accused appellant did not
adduce any oral evidence in defence.
However in documentary evidence they
have filed copy of NCR 65 Kha, orders of
the consolidation court being etc. 66 -Kha/1
to 66 Kha-3,

15. The learned trial court, after
examining the entire material on record,
testimony of the prosecution witnesses and
also evaluating the oral and documentary
evidence, came to the conclusion that there
is a complete chain of evidence showing
the complicity of the accused appellant in
the commission of said crime and the
prosecution has proved its case beyond
reasonable doubt, pointing towards the
guilt against the accused persons and
convicted accused under Section 302,
302/34 IPC and sentence accused Narendra
Singh u/s 302 and sentenced to undergo
R.I. for life and a fine of Rs. 10,000/- with
default clause and accused Dharmendra
Singh and Ramesh Yadav were sentenced
u/s 302 read with 34 I.P.C. to undergo R.I.
for life and fine of Rs.5,000/- each with
default
clause.
Ld.
counsel
for
the
appellants assailed the conviction and
sentence on various grounds and advanced
several arguments in this behalf, which
may be tested on the touchstone of the
evidence adduced, undisputed facts and
circumstances of the case.

16. In order to appreciate the
submissions made by learned counsel for
the appellant and learned A.G.A., it is
imperative to discuss the evidence adduced
by the prosecution.

17. PW-1 Ram Pukar Singh, is the
complainant of the case, has deposed in his
examination-in-chief that the house of
Kapildev Singh is situated southwards
adjoining to his house. On 07.12.2001,
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramayan recital programme (Ramayan
Path) was going on at the house of
Kapildev Singh since 10.00 a.m. Vijay
Bahadur Singh alias Agnu Singh who is his
younger brother, was also a participant in
Ramayan Path. They reached in the
programme at around 5:30 pm. It was 10
minutes less in 6 o'clock, when Vijay
Bahadur went to hand-pipe (nal) located in
front of house of Kapil Dev, for washing
hands and face. Seeing him, Narendra
Singh, Dharmendra Singh and Ramesh
Yadav reached at the hand pipe (nal).
Dharmendra and Narendra Singh were
having country made pistol in their hands.
Pointing
towards
Vijay
Bahadur,
Dharmendra Singh said to Narendra Singh
that "यि ििी िै, इसे ज न से म र ड िो।" At this
Narendra Singh fired with country made
pistol at Vijay Bahadur hitting him on his
temporal region. He, Panchanand and
Shivmurat Singh witnessed the incident.
On account of gun-shot injury, Vijay
Bahadur fell down and died on the spot.
The aforesaid witnesses chased the accused
persons, but they managed their escape
good and ran away towards the south. This
incident took place at 6.00 pm. On the day
of incident itself, he had given written
report (tehrir) at police station in between
9-10 o'clock. Seeing the written report
which is on the record, the witness stated
that it is the tehrir which is in his hand
writing and it bears his signature. He
proved it as Ext. ka-1. The I.O. recorded his
statement regarding the incident.

18. P.W.2 Panchanand Singh
reiterating the statement of the P.W.-1, and
further deposed that the Ramayan Path was
going on since 10 o' clock in the morning.
He reached in the programme at about
05:00 PM. At that time gas was lighting
and bonfire was illuminating at the west of
the Kapildev's house and he sat there.
Rampukar Singh, Shivmurat and his
relatives, as well as three-four other
villagers were present there. Agnu Singh
alias Vijay Bahadur Singh who was also
present there, was washing his hands at the
hand pipe (nal) at about 6 o'clock. At that
time, Narendra Singh, Dharmendra Singh
and Ramesh Yadav, suddenly emerged
there from south and surrounded Vijay
Bahadur
Singh.
Ramesh
Yadav
and
Dharmendra Singh challenged to kill Vijay
Bahadur Singh. At this Narendra Singh
fired with the country made pistol at the
temporal region of Vijay Bahadur Singh,
from the west. Thereafter these people ran
away
from
west
towards
south,
Dharmendra Singh, brandishing pistol,
stating that if anyone comes forward, he
too will be killed. Vijay Bahadur fell down
near hand-pipe (nal) and was screaming
"aaye aaye". After about 15-20 minutes, he
died on the spot. On the next day at 6.00
O'clock in the morning, Investigating
Officer reached at the place of occurrence.

19.

Prosecution
witness
Panchanand further stated that Inquest
proceedings of the dead body of Vijya
Bahadur Singh was conducted in the
presence of I.O., who appointed the
witnesses. Inquest report (Ext. ka-2) was
prepared, which bears signature of I.O. and
Panchan Lal Bihari Yadav, Kedar Yadav,
Vijay Shankar alias Bablu and Manoj. The
witness identified his signatures on inquest
report. He further stated that his statement
was recorded after 20 days of the incident
by the Police at his home. He proved
inquest report as Ext. Ka- 2.

20. P.W-3 Yogendra Nath Singh
the I.O. has deposed that on 08.12.2001 he
was posted as Sub Inspector at police
station Ranipur. On that day, he started
investigation of case crime no. 275 of 2001.
7 All. Ramesh Yadav Vs. State of U.P.
1037
He recorded the statement of complainant
Rampukar Singh and gathered blood
stained and plain earth from the spot,
prepared recovery memo of the same and
obtained signatures of witnesses on it. One
gas was also taken into custody, which was
lighting and spreading illumination, by
which accused persons were recognized.
Recovery memo of the same was prepared
by him on the spot. Later Gas was
handover into custody of Ravindra Singh.
The recovery memo Ext Ka-3. for the same
was also prepared, which is on record. He
sealed the recovered items and prepared the
samples seal. He proved it as Ext. ka-4. He
further stated that he conducted the spot
inspection, prepared site-plan and proved it
as Ext. Ka- 5. After that, hearsay evidences
of Kapil Dev Singh, Ramdhari Singh and
Ram Sakal Singh were recorded statement
of witness Raj Kumar Singh and Hawaldar
Yadav, Ravindra Singh were also recorded.

21. Prosecution witness, PW- 4
Subhash Verma, Head Constable, has
averred
in
his
examination
that
on
07.12.2001, he was posted as Head Moharir
at police station Ranipur. On that day, on
the basis of a tehrir of complainant
Rampukar Singh, case crime no. 275 of
2001, under section 302 I.P.C. was
registered against the accused persons
Narendra Singh, Dharmendra Singh and
Ramesh Yadav, at 9.15 PM. by him.
Corresponding entry in G.D. report no. 31
at 21.15 pm on 07.12.2001 was written by
him in his own hand writing and signature.
He also prepared Carbon copy of the G.D.,
with original in the same process, which is
on record. He also prepared chik FIR (Ext
Ka-6). in his hand writing bearing his
signature Thus the witness proved Kaimi
G.D. as Ext Ka-7 as Chik FIR Ext Ka-6.

22. PW-5 Dr. Anand Kumar
Srivastav, has stated in his examination that
on 08.12.2001, he was posted in District
Hospital,
Azamgarh
as
Cardiologist
Surgeon. On that day, at 4.00 p.m. he
conducted the post-mortem of the dead
body of Vijay Bahadur Singh alias Agnu
Singh, brought by constable C.P. No.-03
Ramji Yadav and C.No. 224 Rambraksh
Prasad. In the course of post-mortem the
autopsy surgeon notice following facts,
mentioned in PMR.

(i)-
External
Examination: According to doctor,
the body of the deceased was of
average height and built, eyes and
mouth were closed. The blood
ooze, behind the right ear, over the
right side of the head, was clotted.
Rigor mortis was present in his
both hands and feet. Post-mortem
staining was present on the back of
the body. deceased was aged about
25 years and died about one day
before the autopsy.
(ii)-
Internal
Examination:-
Right
temporal
bone fractured. Membrane of brain
and brain lacerated. Brain was also
ruptured. Base of skull fractured.
Metallic bullet found therein of
which one part was blunt. Left
chamber of heart was empty. Right
chamber was full. Weight-180
gram. Stomach Empty.
(iii)-
Ante-mortem
injuries:-
Fire arm, wound of entry 1
cm x 1cm cavity deep on the right
side of head 04 cm backwards from
ear, margin of injury inverted.
Blackening and charring present.
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
(iv)- Cause of Death:-
The death of the deceased
was instantaneous,due to ante-
mortem injuries.
(v) Recovery from corpse
During
the
course
of
autopsy Dr. found a metallic bullet
yellow in colour, whose head was
blunt, which has been recovered
from the body of the deceased. It
was Sealed and forwarded to S.P.
Mau.
PW-5 Dr. Anand Kumar
Srivastava further stated that Postmortem report (PMR) was prepared
by him in his hand-writing and
signature, which has been proved
by him as Ext. ka-08. Dr. witness
opined that the aforesaid injuries
are likely to be caused by country
made pistol on 07.12.2001 at 06:00
pm. These injuries are sufficient to
cause death of any person.

23. PW-6 Vinod Kumar Tiwari has
stated that on 12.12.2001 he was posted at
police station- Ranipur as Station House
Officer and was entrusted the investigation
of Case Crime No. 275 of 2001 u/s 302 IPC
from sub-inspector Y.N. Singh. After
perusal of the record of investigation
conducted by his predecessor, he copied
post-mortem and inquest reports in C.D on
14.12.2001. On 16.12.2001, the accused
persons surrendered in the court, regarding
which information was entered in the case
diary. Accused Narendra Singh did not
surrender, against whom he obtained nonbailable warrant from the Chief Judicial
Magistrate.
However
on
24.12.2001,
information regarding surrender of the
accused Narendra Singh was received.
Later he recorded statements of Dayanand
Singh, Kedar Yadav, Vijay Shanker and
Manoj Kumar Singh, who are witnesses of
inquest report. Statements of accused
persons,
namely,
Narendra
Singh,
Dharmendra Singh and Ramesh Yadav
were recorded in district jail on 03.01.2002.
On 19.01.2002, the articles relating to the
case were sent to the Forensic Science
Laboratory, Lucknow, for examination and
analysis. After concluding investigation, he
submitted charge-sheet against the accused
persons
Narendra
Singh,
Dharmendra
Singh and Ramesh Yadav in the court of
Chief Judicial Magistrate Mau, in his own
hand writting and signature, he proved it as
Ext. ka-09.

24. Chandrabhan Pandey (P.W.7)
in his testimony stated that inquest
proceeding of the deadbody of the deceased
Vijay Bahadur Singh alias Anganu Singh
was conducted by him in the presence of
the other witnesses. He prepared inquest
report in his hand writing and signature.
Proved it as Ext. ka-2. He also deposed that
he prepared request Letter to CMO to
conduct post mortem of the dead body of
the deceased, in his own handwriting,
which bears his signature. He proved it as
Ext. ka-10. The witness said that Form-13
too was prepared at the time of preparing
the inquest report in his hand-writing and
signature. He proved it as Ext. ka-11. He
further stated that he prepared photo of
dead body Ext Ka-12. He also wrote letter
to R.I. paper no.-14ka/01, in his own handwriting and signature. He proved it as Ext.
ka-13.

25. The above stated witnesses
were put to detailed cross examination
which
is
proposed
to
refer
during
discussion and scrutinizing and evaluation
of arguments.

26. Learned counsel for the
appellants has odiously argued that the
7 All. Ramesh Yadav Vs. State of U.P.
1039
conviction of the appellants is wholly
erroneous and unjustified as the findings of
the guilt recorded by the Trial Court is not
based on correct appreciation of the
evidence on record. The learned Trial Judge
has lost sight of the fact that there are major
contradictions
and
omissions
in
the
statements of eye witnesses, who are close
relatives and have fabricated a false story to
implicate the appellants in the case. It is
further contended that appellants has been
falsely roped in the present case on account
of political and otherwise personal enmity.
Learned A.G.A. refuted the contentions.

27. It is common knowledge that
enmity is a double edged weapon. On one
side it may be a cause to falsely implicate
the accused, where as it may be the real
cause of the incident, on the other hand. So,
benefit of enmity may go either side
depending
upon
the
facts
and
the
circumstances of the case. In the present
case as per FIR there was an old enmity
between the deceased and the accused.
They have threatened him at the time of
occurrence and earlier occasions too, to kill
him. At an other place he has stated
Complainant P.W.-1 Ram Puakr Singh, has
also admitted that about twenty days ago
appellants father was abusing the deceased,
then he had given a blow to their father.
Thus, complainant Ram Puakr Singh, who
is the real brother of the deceased Vijay
Kumar Singh alias Angnu, though has
deposed that there was no enmity of any
person with the deceased in the village, is
not believable. It follows appellants has no
motive or have very weak kind of motive to
commit the crime.

28. Learned counsel for the
appellant vehemently argued that witnesses
produced by the prosecution are partisan
and inimical to the appellants interested
witnesses and not independent witness.
They are unreliable witnesses and as such
no credence can be attached to their
testimony and their deposition is therefore
liable to be discarded. Learned A.G.A.
refuted the contention of the learned
counsel for the appellants. He submitted
that ordinarily a close relative would not
spare the real culprit who has caused the
death and implicate an innocent person. It
will be beneficial to discuss law on the
interested witnesses and evaluation of their
evidence.

29. The above submission was
thoroughly considered by the Hon'ble Apex
Court in case of Daleep Singh Vs. State of
Punjab AIR 1953 SC 364 and enunciated
the following principles:-

"26. A witness is normally
to
be
considered
independent
unless he or she springs from
sources which are likely to be
tainted and that usually means
unless the witness has cause, such
as enmity against the accused, to
wish to implicate him falsely
ordinarily, a close relative would be
the last to screen the real culprit
and falsely implicate an innocent
person. It is true, when feelings
run high and there is personal
cause for enmity, that there is a
tendency to drag in an innocent
person against whom a witness
has a grudge along 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."

30. In a three Judges Bench of the
Supreme Court of India in Hari Obula
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
Reddy Vs. State of A.P. (1981) 3 SCC 675
observed as under:-

"13. ...it is well settled that
interested
evidence
is
not
necessarily
unreliable
evidence.
Even partisanship by itself is not a
valid ground for discrediting or
rejecting sworn testimony. Nor can
it be laid down as an invariable rule
that interested evidence can never
form the basis of conviction
unless corroborated to a material
extent in material particulars by
independent evidence. All that is
necessary is that the evidence of
interested witnesses should be
subjected to careful scrutiny and
accepted with caution. If on such
scrutiny, the interested testimony
is
found
to
be
intrinsically
reliable or inherently probable, it
may, by itself, be sufficient, in the
circumstances of the particular
case,
to
base
a
conviction
thereon."

31. Again in S. Sudershan Reddy
and others Vs. State of A.P (2006) 10
SCC 163, the Hon'ble Supreme Court has
held as under:-

"12. We shall first deal with
the contention regarding interests
of the witnesses for furthering the
prosecution version. Relationship is
not a factor to affect the 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
analyze
evidence to find out whether it is
cogent and credible.
15. We may also observe
that the ground that the witness
being
a
close
relative
and
consequently
being
a
partisan
witness, should not be relied upon,
has no substance. This theory was
repelled by this Court as early as in
Dilip Singh case in which surprise
was expressed over the impression
which prevailed in the minds of the
Members of the Bar that relatives
were not independent witnesses."

32. Thus, we find that Hon'ble
Apex Court in its enumerable decisions has
categorically held that evidence of eyewitness, if found truthful, can not be
discarded simply because the witnesses
were relatives of the deceased. The only
caveat is that the evidence of interested
witnesses should be subjected to careful
scrutiny and accepted with caution.

33. The testimony of a reliable
witness must be of sterling quality on
which implicit reliance can be placed for
convicting the appellants. The Apex Court
in Rai Sandeep v. State (NCT of Delhi),
(2012) 8 SCC 21 has very vividly describe
the characteristics of a sterling witness as
under.

"22. In our considered
opinion, the "sterling witness"
should be of a very high quality
and calibre whose version should,
therefore, be unassailable. The
court considering the version of
such witness should be in a position
to accept it for its face value
without any hesitation. To test the
quality of such a witness, the status
of the witness would be immaterial
7 All. Ramesh Yadav Vs. State of U.P.
1041
and what would be relevant is the
truthfulness of the statement made
by such a witness. What would be
more
relevant
would
be
the
consistency of the statement right
from the starting point till the end,
namely, at the time when the
witness makes the initial statement
and ultimately before the court. It
should be natural and consistent
with the case of the prosecution qua
the accused. There should not be
any prevarication in the version of
such a witness. The witness should
be in a position to withstand the
cross-examination of any length
and howsoever strenuous it may be
and under no circumstance should
give room for any doubt as to the
factum
of
the
occurrence,the
persons involved, as well as the
sequence of it. Such a version
should have co- relation with each
and every one of other supporting
material such as the recoveries
made, the weapons used, the
manner of offence committed, the
scientific evidence and the expert
opinion. The said version should
consistently match with the version
of every other witness. It can even
be stated that it should be akin to
the test applied in the case of
circumstantial
evidence
where
there should not be any missing
link in the chain of circumstances
to hold the accused guilty of the
offence alleged against him. Only if
the version of such a witness
qualifies the above test as well as
all other such similar tests to be
applied, can it be held that such a
witness can be called as a "sterling
witness" whose version can be
accepted by the court without any
corroboration and based on which
the guilty can be punished. To be
more precise, the version of the
said witness on the core spectrum
of the crime should remain intact
while all other attendant materials,
namely, oral, documentary and
material objects should match the
said version in material particulars
in order to enable the court trying
the offence to rely on the core
version
to
sieve
the
other
supporting materials for holding the
offender guilty of the charge
alleged."

34. It is germane to point out here
that prosecution in the present case has
examined as many as 07 witnesses in
support of its version. While there are 15
witnesses mentioned in charge sheet, Ext.
Ka- 9. Out of these, prosecution has
produced only two witnesses of facts and
rest are formal witnesses. PW- 1 Ram
Pukar Singh, complainant, is the elder
brother of the deceased Vijay Bahadur alias
Angnu, while PW- 2 Panchanand Singh is
the cousin brother of the deceased. Thus,
they are relative witnesses and therefore, as
per discussion of legal scenario their
evidence should be carefully scrutinized.

35. Elaborating his arguments,
learned Counsel for the appellant has
submitted that the incident has occurred on
7.12.2001 at about 6 PM and it was dark.
As a matter of fact it is a case of hit and run
and none has seen the accused person but
on account of inimical terms, appellants
have been falsely implicated. As stated in
the FIR, accused exhorted to kill Kapil
Singh but only one accused fired a shot. It
has also been argued that programme of
Ramayana was going inside the house of
Kapil Deo Singh and the complainant and
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
his brother Vijay Bahadur (deceased), as
narrated in the FIR were listening Ramayan
and as such it is hard to believe that
complainant has seen the assailants that too
in the darkness of winter night. From the
statement of witnesses, it is clear that
improvement has been made by them to
cover up the lacunae.

36. The present incident has
occurred on 07.12.2001 at about 6.00 p.m.
it was the month of December. There is no
mention about the light on the place of
occurrence in the FIR Ext. Ka-1. However,
P.W.-1 in his cross- examination has stated
that the Gas (petromax) material Ext. was
litting and illuminating. Complainant and
some other people were sitting around the
fire due to cold. I.O. P.W.- 3 Yogendra Nath
Singh has not shown the place where the
Gas was put in the site plan Ext. Ka- 5.
However, he stated that the petromax was
given to one Ravindra Singh. It is also
mentioned in the memo of supurdginama
Ext. Ka- 3 but the same was not produced
in the court while examining I.O. P.W.- 3.
Thus, either there was no light or a dim
light, while the witnesses were sitting in the
light of fire. It cast doubt that these
witnesses has seen the occurrence.

37.
 While
referring
to
the
statement of P.W.1-Ram Pukar Singh,
learned Counsel has submitted that there
are contradictions in his statement. At one
place, he has stated that he and his brother
were listening Ramayan and at the other
place, he stated that when his brother
reached at the tap for washing hands and
face, Dharmendra Singh exhorted Narendra
Singh to kill him and Narendra Singh fired
shot on his brother. At an other place, this
witness stated that both Dharmendra and
Narendra were armed with weapon. In the
FIR, the complainant had stated that
accused persons were chased by them but
in his deposition before the court this
witness has stated that accused persons ran
away towards the south.

38. As regard the testimony of
P.W.2-Panchanand Singh is concerned, it
has been urged that this witness introduced
the story of light and bonfire was lighting.
He was sitting there and alongwith him
Ram Pukar Singh, Shiv Murat Singh and
relatives of Kapil Deo Singh @ Vijay
Bahadur including three to four other
villagers were present. When at about 6 PM
Agnu was washing his face and hands then
all
of
a
sudden
Narendra
Singh,
Dharmendra Singh and Ramesh yadav
came and surrounded Vijay Bahadur.
Ramesh and Dharmendra exhorted to kill
Vijay Bahadur and then Narendra Singh
came on the west side and fired a shot on
the temporal region and then ran away
towards the south. Dharmendra was
brandishing pistol and said that if any
one will come forward, he would be
killed. This witness further stated that
police had come at the spot on the next
day at about 6 AM in the morning and in
his presence panchnama was written and
was signed by him and also by Lal
Bihari
Yadav,
Kedar
Yadav,
Vijay
Shanker @ Bablu. Thus, the version
given by him is altogether different than
the version given by the Ram Pukar
Singh (P.W.1)

39. It has also been contended that
there are contradictions in the statement of
P.W.Yogendra
Nath,
SI,
P.W.6-Vinod
Kumar, S.I. and Chandra Bhan Pandey,
P.W.7. It has also been pointed out that the
police witness had deposed before the
Court that they reached at the spot in the
night itself whereas the eye witness Panch
Nand (P.W.2) has stated that the police had
7 All. Ramesh Yadav Vs. State of U.P.
1043
reached at the spot next day in the morning
at about 6 AM and statement was recorded.

40. Lastly, it has been urged that
the learned Trial Court has erred in
recording
the
finding
of
the
guilt
overlooking the fact that there are major
contradictions in the statement of witnesses
which were fatal for the prosecution. Even
from the statement of the witnesses, the
place of occurrence also becomes doubtful
but this aspect of the matter has not been
considered.

41. On the basis of evidence on
record, learned A.G.A. has submitted that
there is no contradiction in the statement of
the prosecution witnesses and medical
evidence supports the oral evidence and
slight deviations in the statement of
witnesses would be of no benefit to the
prosecution as it would not demolish the
entire prosecution version. Allegation of
false implication is wholly baseless as the
prosecution was successful in proving the
motive of the accused persons to commit
the murder of deceased-Vinay Bahadur
Singh.

42. Elaborating his submissions,
learned AGA has submitted that from the
testimony of the eye witnesses, it is proved
that the accused persons had reached at the
spot with a common intention to commit
the murder of Vijay Bahadur Singh with
whom there was prior enmity. The medical
evidence fully corroborates the prosecution
version as the doctor has found gun shot
injury in the post-mortem examination.

43. Here it is relevant to point out
that in the FIR, the complainant has alleged
that when his brother was washing hands at
the Tap, Narendra Singh, Dharmendra
Singh and Ramesh Yadav came from their
houses and uttered that he should be killed
and Narendra Singh fired a shot on his
brother. The complainant, Panchanand
Singh and Shiv Murat Singh ran towards
the tap and saw that the accused persons
are running away after killing his brother
and they were chased, but they managed to
escape but before the Court this witness
stated that the accused persons ran away
towards
the
southern
side;
accused
Dharmendra and Narendra were having
Katta in their hands. Surprisingly, the name
of Ramesh Yadav, who has been assigned
the role of exhortation in the FIR , has not
been taken and role of exhortation has been
assigned only to Dhramendra Singh and
Narendra Singh. Here, it is significant to
point out that Shiv Murat Singh, who is
said to be not only an eye witness but a
material witness of the case has not been
examined by the prosecution for the
reasons best known to the prosecution

44.

One
more
important
contradiction in his statement is that in his
examination in chief, Ram Pukar Singh
witness had stated that he and his brother
were listening Ramayan in the house of
Kapil Deo Singh. However, in the cross
examination this witness deposed that
Ramayan was going on inside the room and
five-six persons were reading and could be
seen from the window and he has not gone
inside the room. This witness further
deposed that he and Vijay Bahadur were
sitting at one place This witness further
deposed that Shiv Murat Singh and Pancha
Nand are his witness and belongs to his
clan.

45. As regard the motive, this
witness initially stated that regarding earlier
quarrel no report was lodged but later on
stated that there was no quarrel of his
brother Vijay Bahadur Singh with any one
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
and also clarified that he also had no
quarrel with any one. In his cross
examination, this witness further stated that
his brother were threatened to death twenty
days ago at the Farm House in his presence
but neither any report was lodged nor any
application was given in this regard.

46. It is significant to mention that
different versions have been given by the
prosecution witnesses with regard to
registration of the FIR of the incident and
reaching of the police at the spot. The
incident is said to have occurred on
7.12.2001 at about 6 PM and the FIR was
lodged on the same day about 9.15 PM.
The distance of the police station from the
place of occurrence is said to be 9
Kilometer. Ram Pukar Singh (P.W.1), who
is the complainant of the case has deposed
before the court that he had reached to the
police
station
at
8
PM
alongwith
Panchanand Singh and Brijesh Singh. He
further deposed that he had carried the
written report which he had written in his
house and it took about 10-15 minutes. He
further deposed that Inspector ( Daroga)
had come to the place of occurrence on the
next day in the morning in between 6-6.30
PM. The Inspector collected the plain earth
and blood stained earth and carried the
dead body to Azamgarh at about 8 AM in a
jeep, which was a private one. The
complainant further deposed that he also
went in a private vehicle. On the other
hand, Pancha Nand Singh (P.W.2) in his
cross-examination stated that he had gone
to the police station by cycle alongwith
Ram Pukar Singh, Shiv Murat Singh and
Vikresh Singh for giving information at the
police station and reached at about 9.00 PM
but Daroga ji was not present and the
Constable gave him the paper. No Inspector
had visited in the night and it was in the
morning at about 6 AM Inspector (Daroga
ji) alongwith other police personnel had
come but his statement was not recorded on
that day, which was recorded after twenty
two days after the post-mortem. He also
stated that dead body was lying as was left
in
the
night.
However,
in
cross
examination, this witness stated that dead
body was carried to Police Line, Azamgarh.

47.