# Rohtash Singh v. State of U.P

- **Citation:** (2022) 10 ILRA 286
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Criminal Appeal No. 8082 of 2008
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohtash-singh-v-state-of-u-p-47716
- **Pages:** 15

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 148, 302, 149
&120B-murder-death of the deceased was
caused as a result of ante-mortem fire arm
injuries- bullets were recovered from the
dead body of both the deceased-PW-1
stated that the appellants made firetestimony of PW-1 gets support from
medical as well as other evidence on
record-the method, time and manner as
deposed by the ocular witness PW-1
proves his presence on the spot-As a
result, his testimony is wholly reliable and
trustworthy, though interested witnessThus, trial court rightly appreciated the
evidence.(Para 1 to 46)

B. It is well settled that the evidence of
interested or inimical witnesses is to be
scrutinized with care but cannot be
rejected merely on the ground of being a
partisan evidence. if on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
the Court relying on the said evidence.
(Para 32 to 35)
The appeals are dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,942 of 49,743. This is a partial read: ask again with offset=39942 for what follows._

286 INDIAN LAW REPORTS ALLAHABAD SERIES

61. Record and proceedings be sent
back to the Court below forthwith.

62. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.
----------
(2022) 10 ILRA 286
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 8082 of 2008
With
Criminal Appeal No. 8081 of 2008
With
Criminal Appeal No. 8137 of 2008
With
Criminal Appeal No. 7626 of 2008
With
Criminal Appeal No. 7889 of 2008
With
Criminal Appeal No. 6973 of 2008

Rohtash Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Abhishek Mayank, Sri Anil Saxena, Sri
Neeraj Singh, Sri Pavan Kumar

Counsel for the Respondent:
Govt. Advocate, Sri Ronak Chaturvedi

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 148, 302, 149
&120B-murder-death of the deceased was
caused as a result of ante-mortem fire arm
injuries- bullets were recovered from the
dead body of both the deceased-PW-1
stated that the appellants made firetestimony of PW-1 gets support from
medical as well as other evidence on
record-the method, time and manner as
deposed by the ocular witness PW-1
proves his presence on the spot-As a
result, his testimony is wholly reliable and
trustworthy, though interested witnessThus, trial court rightly appreciated the
evidence.(Para 1 to 46)

B. It is well settled that the evidence of
interested or inimical witnesses is to be
scrutinized with care but cannot be
rejected merely on the ground of being a
partisan evidence. if on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
the Court relying on the said evidence.
(Para 32 to 35)
The appeals are dismissed. (E-6)

List of Cases cited:

1. Dalip Singh Vs St. of Punj. (1953) AIR SC 364

2. Piara Singh & ors. Vs St. of Punj. (1977) AIR
SC 2274

3. Hari Obula Reddy & ors. Vs St. of A.P. (1981)
3 SCC 675

4. Ramashish Rai Vs Jagdish Singh (2005) 10
SCC 498

5. Darya Singh Vs St. of Punj. (1965) AIR SC
328

6. Raghubir Singh Vs St. of U.P. (1972) 3 SCC 79

7. Appabhai & anr.. Vs St. of Guj. (1988) Supp 1
SCC 241

8. Leela Ram Vs St. of Har. (1999) 9 SCC 525

9. Subal Ghorai & ors. Vs St. of W.B. (2013) 4
SCC 607

10. Rammi @ Rameshwar Vs St. of M.P. (1999)
8 SCC 649

11. Leela Ram (dead) thru Duli Chand Vs St. of
Har. &anr. (1999) 9 SCC 525
10 All. Rohtash Singh Vs. State of U.P.
287
12. Bihari Nath Goswami Vs Shiv Kumar Singh &
ors. (2004) 9 SCC 186

13. Vijay @ Chinee Vs St. of M.P. (2010) 8 SCC
191

14. Sampath Kumar Vs Insp. of Police,
Krishnagiri (2012) 4 SCC 124

15. Shyamal Ghosh Vs St. of W.B. (2012) 7 SCC
646

16. Mritunjay Biswas Vs Pranab @ Kuti Biswas &
anr. (2013) 12 SCC 796

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Heard Sri Abhishek Mayank
learned counsel for the appellants in all the
connected appeals, Sri Ronak Chaturvedi
learned counsel for the first informant and
Sri Patanjali Mishra learned A.G.A. for the
State-respondents.

2. These appeals emanate from the
judgment and order dated 30.09.2008
passed by the Additional Session Judge,
Court No.5, Aligarh in S.T. No.934 of
2004 (State vs. Kaptan Singh and others)
arising out of Crime No.122 of 2003,
under Sections 148, 302/149 & 120-B
I.P.C., Police Station Khair, District
Aligarh whereby the appellants have been
convicted and sentenced for a period of
18 months rigorous imprisonment under
Section 148 I.P.C.; life imprisonment u/s
302 readwith section 149 I.P.C. with fine
of Rs.5000/- for each of the appellants,
and in default of payment of fine to
undergo
three
months
additional
imprisonment. All the sentences are to
run concurrently.

3. During the pendency of the appeal,
appellant Om Prakash had died and the
appeal on his behalf has been abated.

4. The prosecution case in brief is that
informant Sanjeev Kumar S/o Jugveer
Singh, resident of Village Bisara, Police
Station Khair, District Aligarh lodged an
F.I.R. on 04.06.2003 at about 13:25 P.M. at
the Police Station Khair, District Aligarh
being brother of deceased Bablu and
nephew of deceased Harveer Singh @
Munna. The written report was filed by him
stating therein that on 18.03.2003 Manveer
S/o Om Prakash, resident of his village,
was murdered wherein his brother Banti
and father Jugveer Singh and other persons
of the village were implicated falsely by the
brother of the deceased Manveer namely
Kaptan Singh. As a result his brother and
father were lodged in jail. On 04.06.2003,
the date was fixed for hearing of their bail
applications in relation to which the
informant, his brother Bablu @ Virendar
Singh, his uncle Harveer Singh @ Munna,
one Alchendra Singh and Subhash went to
Aligarh to do pairvi of the case but hearing
was adjourned. His uncle Harveer Singh @
Munna, brother Bablu @ Virendar Singh on
one
motorcycle
and
the
informant,
Alchendra Singh and Subhash on another
motorcycle were returning to their village
Bisara. Bablu and Harveer Singh were
ahead of them and when they reached near
Lavkush Uchchatar Madhyamik Vidyalaya,
Andala, a Maruti Car bearing no. DL 2CB-
2483 crossed the motorcycle of the
informant. They saw that it was being
driven by Bhoora S/o Nepal Singh R/o
Bisara and wherein Kaptan Singh S/o Om
Prakash, Om Prakash S/o Raghunath Singh,
Tikam Singh S/o Pratap Singh, Rajan @
Rajendra Singh S/o Satyaveer residents of
the same village and Rohtash S/o Shanker
Singh (son of phuphi of Kaptan Singh)
resident of Sarua Ka Nagla Police Station
Chandaus were sitting. After crossing the
bike of the informant, they started firing
indiscriminately at the brother and uncle of
288 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant namely Bablu and Harveer
Singh who were on the motorcycle at the
turning of Lavkush Uchchatar Madhyamik
Vidyalaya at that time. Their motorcycle
fell into the pit and both the deceased ran to
escape but the accused persons came down
from the car, surrounded them and killed
both on the spot. The informant and other
two persons witnessed the incident hiding
there but could not gather courage to go
ahead. The accused persons went away in
the car while making fire creating terror on
the spot. It was further stated that Hoshiyar
Singh S/o Raj Bahadur Singh, Suresh S/o
Roshan Singh and Habib Khan S/o Naseer
Khan residents of the village told him four
days prior to the incident that Bhoora,
Kaptan Singh, Om Prakash, Tikam Singh,
Dharmwati, Buddha, Shyam Singh and
Rajan @ Rajendra were collected at the
house of village Pradhan Kaptan Singh
where Rohtash was also present and they
were talking that they would take revenge
of the murder of Manveer Singh by killing
at least two persons of informant side. The
informant stated that he did not give much
importance to the said information but now
he realised that the murder of the brother
and uncle of the informant was committed
at about 12:45 P.M. by the abovenamed
persons in execution of the conspiracy
hatched by them.

5. On the basis of the written report
scribed by Vinod Kumar, case was
registered as Crime No.122 of 2003, under
Sections 147, 148, 149, 302, 120-B I.P.C.
& under Section 2/3 Gangster and Anti
Social Activities (Prevention) Act. The
detail of the case was entered into the G.D.
as report no.32 The investigation of the
case was handed over to S.I. Lakhan Lal.

6. The inquest of deceased Harveer
Singh and Bablu @ Virender Singh was
conducted by S.I. Rajendra Prasad Singh
on the same day and the inquest reports
were prepared by him along with other
relevant papers required for the purposes of
postmortem. The dead bodies of both the
deceased persons were sealed and handed
over to Constable Harpal Singh and Home
Guard Bhoori Singh who took them to
Mortuary at District Hospital, Aligarh.

7. The postmortem of both the
deceased
persons
was
conducted
on
05.06.2003 at about 10:00 A.M. and 10:40
A.M.; respectively by Dr. S.K. Porwal who
mentioned in the postmortem reports that
dead bodies were brought by Constable
Harpal Singh and Home Guard Bhoori
Singh in sealed state sent by S.H.O., Khair.
The sample seal was compared and found
correct.

8. The findings recorded in the postmortem report of the deceased Bablu @
Virendra Singh are as under :-

Aged about 30 years. The time of
death about one day.

External Examination

Average built body, rigor mortis
present in both upper extremities, eyes half
closed, and clotted blood in both nostrils.

Ante Mortem Injuries

1. Lacerated wound 2 cm x 1 cm x
scalp deep in front of head 1 cm below hair
line in mid line with scorching of hair and
blackening and tattooing present over face
and forehead.

2. Gun shot wound of entry 1 cm x 1
cm x cavity deep on the back of head 11 cm
below right ear. Occipital bone fractured.
One bullet recovered from cavity, scalp hair
scattered.

3. Gun shot wound 5 cm x 4 cm x
bone deep in outer part of right upper chest,
blackening and tattooing in an area of 11
10 All. Rohtash Singh Vs. State of U.P.
289
cm present on upper forearm. Right
humerous bone fractured. Clotted blood
present.

4. Gun shot wound of exit 1.5 cm x
1.5 cm x corelating to injury no.5, left side
chest 11 cm away at 5 O'clock position
with 3 cm, blackening and tattooing
present.

5. Gun shot wound of exit 2 cm x 2
cm in right side chest, 3 cm below right
nipple at 6 O'clock position.

6. Gun shot wound of entry 2 cm x 1
cm x left side back 2 cm lateral mid line, 7
cm at the spine with bleeding all around in
an area of 3 cm.

7. Gun shot wound of exit 2.5 cm x 1
cm corelating to injury no.6.

8. Two gun shot wound of entry 2 cm
apart in middle of sternum with blackening
and tattooing in 4 cm area. 1 cm x 1 cm x
bone deep sternum fractured. Other 1 cm x
1.5 cm x chest cavity deep underlying heart
lacerated. One bullet recovered from the
heart.

9. Lacerated wound 2 cm x 1 cm into
skin deep over right knee.

Internal Examination

Scalp/Skull - occipital bone fractured,
Membrane - lacerated, Brain - lacerated,
Base - NAD, Vertebra - NAD, Spinal Cord
- NAD. Clotted blood in ventricles and
cortex present. One bullet recovered.

Thorex

Walls, ribs and cartilages - sternum
fractured, Pleura - NAD, Larynx - NAD,
Lungs - NAD, Pericardium - lacerated,
Heart - lacerated and bullet recovered,
Vessels - NAD

Abdomen

Walls, Peritoneum - lacerated, Cavity -
blood mixed fluid present, Buccal Cavity -
NAD, Teeth - 15/15, esophagus - NAD,
Contents of stomach - small intestine and
large intestine lacerated, gases and faecal
matter present, blood in stomach cavity,
Liver and Gallbladder - half full, Pancreas,
Spleen and Kidney - NAD, Bladder -
empty , Cause of death - coma, shock and
hemorrhage.

9. The findings recorded in postmortem report of the deceased Harveer
Singh @ Munna are as under:-

age about 40 years, time of death
about one day

External Examination

Average built body, rigor mortis
present in both upper extremities, eyes
closed, natural orifices - NAD

Ante-Mortem Injuries

1. Lacerated wound 1 cm x 1 cm x
through and through in left side head 1 cm
behind outter end of left eyebrow. Margins
irregular and inverted. Blackening and
tattooing all around the wound in an area of
8 cm in face and scalp present and top of
left shoulder corelating to injury no.2.

2. Lacerated wound 1.5 cm x 1.5 cm
corelating to injury no.1 in back of left ear
3 cm behind margins everted.

3. Multiple abraded contusions in
whole of the back in an area of 20 cm x 15
cm.

4. Abraded contusion 6 cm x 5 cm in
outer part of elbow.

5. A bruise 4 cm x 3 cm in front of
right knee.

6. Abrasion 2 cm x 2 cm in back of
right leg.

Internal Examination

Scalp/skull - left frontal and right
temporal and parietal bone fractured,
Membranes - lacerated, Brain - lacerated,
Base - NAD, Vertebra - NAD, Spinal Cord
- not opened, Clotted Blood - in ventricles
and cortex present under injuries

Thorex

Walls - NAD, Pleura - NAD, Larynx
and trachea - NAD, Right and Left lungs -
290 INDIAN LAW REPORTS ALLAHABAD SERIES
NAD, Pericardium - NAD, Heart - right
full and left empty, Vessels - NAD

Abdomen

Walls Pericardium and Cavity - NAD,
Buccal Cavity and Larynx - NAD, Teeth -
15/15, oesophagus - NAD, Contents of
stomach - one ounce pasty material present,
Small and Large intestine - gases and faecal
matter present, Liver - NAD, Gallbladder -
half full, Pancreas - NAD, Spleen - NAD,
Kidney - NAD, Bladder - empty, Cause of
death - Coma as a result of ante-mortem
injury.

10. During the investigation blood
stained
soil,
plain
soil,
one
bullet
motorcycle, 17 empty cartridges 315 bore,
two bullets 315 bore were taken into
possession and recovery memos were
prepared by the investigating officer. After
recording the statement of the informant
and inspection of the place of occurrence
site plan was prepared and statements of
the witnesses conversant to the facts of the
case were also recorded. On the basis of the
material collected during the investigation
prima facie case was found to be made out
against the accused persons except Smt.
Dharmwati Devi u/s 147, 148, 149, 302,
120-B I.P.C. and the charge-sheet was
submitted before the court concerned.

11. Cognizance of the offences was
taken by the learned C.J.M. who provided
the copies of prosecution papers to the
appellants in compliance of Section 207
Cr.P.C. and committed the case to the court
of session for trial.

12. Learned trial court framed the
charges under Sections 148, 302 readwith
Section 149 and 120-B I.P.C. on the basis
of the material on record after giving
opportunity of hearing to the appellants,
charges were read over and explained to
them. They pleaded not guilty, denied the
charges
and
claimed
for
trial
and
consequently the case was fixed for
prosecution evidence.

13. The prosecution examined PW-1
Alchendra Singh as witness of fact, PW-2
Vinod Kumar scribe of written report, PW3 Constable Sarvesh Kumar who had
prepared the chick F.I.R. on the basis of
tehrir and entered the detail in the G.D.,
PW-4 Habib Khan witness relating to the
criminal conspiracy, PW-5 S.I. Rajednra
Prasad Singh who had prepared the inquest
report and other relevant papers, PW-6 Dr.
R.K. Porwal who conducted the postmortem of the bodies of both the deceased
and prepared the post-mortem reports, PW7
S.I.
Lakhan
Lal
who
conducted
investigation of the case, PW-8 S.I. Suresh
Chandra Omhare who concluded the
investigation of the case after PW-7 and
submitted the charge-sheet.

14.

After
conclusion
of
the
prosecution evidence the statements of
appellants under Sections 313 Cr.P.C. were
recorded
wherein
they
negated
the
statements made by the witnesses before
the court and stated that they had been
falsely implicated on account of enmity and
the witnesses made false statements. The
appellant Bhoora Singh also stated that the
case against the brother and father of
informant was proved and they had been
convicted and that he was not present on
the place of occurrence. Prior to this
incident, brother of Kaptan Singh namely
Manveer Singh was murdered wherein
Alchendra, Rajjo, Anees S/o Habib Khan
were accused and he was the witness of
recovery of knife and that was the enmity
for his false implication. Appellant Rajan
@ Rajendra also stated that Hoshiyar Singh
10 All. Rohtash Singh Vs. State of U.P.
291
brother of Alchendra Singh was an accused
and convicted in the case under Section 307
I.P.C. wherein he was witness and on
account of this enmity he was falsely
implicated. Appellant Rohtash stated that
he was falsely implicated on account of
village party bandi as being cousin of
Kaptan Singh and he was resident of
another village. Appellants had produced
Kunwar Pal Singh as DW-1 in defence.

15. Learned counsel for the appellants
argued that the judgment of the trial court is
against the evidence available on record. It
is bad in the eye of law being based on the
testimony of interested witness related to
the deceased who was not present on the
spot and his testimony was full of
contradictions. No independent witness had
been examined though the occurrence took
place at a public place. The prosecution had
failed
to
establish
the
motive
for
committing the offence. There was no
evidence of unlawful assembly and of
common object. The appellants were
named in the F.I.R. due to enmity but the
trial court did not consider these facts while
appreciating the evidence on record and
illegally sentenced all the appellants. As the
prosecution could not prove its case beyond
reasonable doubt the appellants are entitled
for acquittal and the appeals deserve to be
allowed.

16. Learned A.G.A. opposed the
contentions raised by the learned counsel
for the appellants and urged that in this case
there was proved enmity between the
parties relating to the murder of Manveer
S/o Kaptan Singh and the appellants, in
revenge had planned the murder of the
deceased persons who were making pairavi
for bail of the accused persons Banti and
Jugveer Singh who were in jail. The
informant
Sanjeev
Kumar
was
also
murdered later on and PW-1 Achlendra
Singh who was an eye-witness of the
incident had deposed about the incident.
The testimony of PW-1 is wholly reliable
and cannot be discarded only on the ground
of he being relative of the deceased
persons, as his presence on the spot could
not be disputed. The F.I.R. was lodged
promptly without any delay which rules out
the possibility of concoction. The place of
occurrence and the death of deceased
persons due to fire arm injury could not be
disputed.
There
are
no
material
contradictions in the testimony of PW-1
Achlendra Singh which would go to the
very root of the case. His testimony is
wholly reliable and conviction as recorded
by the trial court is based on the evidence
available on record, it cannot be said to be
erroneous from any angle. The appeals
being devoid of merit are liable to be
dismissed.

17. From the statements and perusal
of the record, the following questions
emerge for consideration of this Court; as
to whether there was motive to commit the
murder of the deceased persons; witness
being relative and interested is reliable and
trustworthy;
non-examination
of
independent witness would have adverse
effect
on
the
prosecution
case;
the
contradictions in the statements of witness
are material which make the testimony
unreliable; further whether the appellants
have been implicated falsely due to enmity.

18. Before we deal with the
contentions of the learned counsel for the
appellants, it would be convenient to take
note of the witness account as adduced by
the prosecution.

19. PW-1 Achlendra Singh, the
informant had deposed that on 04.06.2003
292 INDIAN LAW REPORTS ALLAHABAD SERIES
he went to the District Court, Aligarh for
doing pairavi for bail of Jugveer Singh and
others. Sanjeev Kumar, Subhash, Bablu @
Virendra, Munna @ Harveer were also with
him. On 18.03.2003 Manveer brother of
Kaptan Singh, son of Om Prakash of his
village was murdered. In the said murder
case, Jugveer Singh, Banti, Manish and
Rabbo were accused. Kaptan Singh was the
village
pradhan.
On 04.06.2003,
the
hearing was adjourned so they were
returning to their village. Munna @
Harveer and Bablu on one motorcycle and
he, Sanjeev Kumar alongwith Subhash on
other motorcycle were going towards the
village. When they reached at the Indian
Gas Plant, Munna @ Harveer and Bablu
went ahead on the motorcycle. Sanjeev and
Bablu were driving two motorcycles. When
they
reached
near
the
Uchchatar
Madhyamik Vidyalaya, Andala, Police
Station Khair, one Maruti Car driven by
one Bhoora Singh overtook his motorcycle
wherein appellants Kaptan Singh, Om
Prakash, Tikam Singh, Rajan @ Rajendra
Singh R/o Bisara and Rohtash son of
phuphi of Kaptan Singh R/o Sarua were
sitting. All those persons started firing at
Munna and Bablu. As a result, their
motorcycle fell on the side of the road in a
pit. They tried to escape but were chased by
the accused persons surrounded and shot
dead on the spot. All the accused persons
were equipped with fire arms. He, Sanjeev
Kumar and Subhash witnessed the incident
while hiding themselves. The accused
persons were working as a gang for
extracting
money
unlawfully.
The
occurrence took place at about 12:45 P.M.
The F.I.R. was lodged by Sanjeev Kumar at
the police station. It was further stated that
3-4 days prior to this incident, Suresh,
Habib Khan, Hoshiyar, Bhoora, Kaptan
Singh, Om Prakash, Tikam Singh, Rajan @
Rajendra
Singh,
Shriniwas,
Buddha,
Dharmwati and Rohtash were conspiring to
take revenge of murder of Manveer by
killing two persons on the informant side.
These people in conspiracy committed
murder of Munna and Bablu. Later on
02.03.2005, the informant Sanjeev Kumar
was also murdered. This witness was
subjected to gruelling cross-examination by
the defence counsel but he could not be
shaken and nothing was found in his
deposition which weakens his testimony.
PW1 has confirmed the fact of firing and
murder committed by the appellants
though, he categorically stated the fact of
enmity relating to the murder of Manveer
wherein his son Rabbo was also an accused
and has been convicted. PW1 also admitted
that in the said murder case, he was also an
accused under Section 120-B I.P.C., but
deceased Munna and Bablu were not
accused persons in the murder case of
Manveer. The impact of the admitted
enmity will be discussed alongwith the
argument of the learned counsel for the
appellants at a later stage in this judgment.

20. PW-2 Vinod Kumar had deposed
that informant Sanjeev Kumar who was
murdered on 02.03.2005 was his nephew.
Munna, his real brother and Bablu real
nephew were murdered on 04.06.2003. The
written report of this incident was scribed
by him on the dictation of Sanjeev Kumar.
Whatever was dictated by Sanjeev Kumar
he wrote the same and readover the
contents
thereof
and
then
informant
Sanjeev Kumar put his signature on it.
PW2 proved paper no.6 Ka the report
written in his hand writing and bearing the
signature of informant Sanjeev Kumar as
Ex Ka-1.

This witness was also subjected
to
lengthy
cross-examination
but
he
asserted the fact that on the information
10 All. Rohtash Singh Vs. State of U.P.
293
given on telephone by Sanjeev Kumar
about the murder at about 1 O'clock, he
came to the police station by Marshal Jeep
where he met to Sanjeev Kumar out of the
gate of the police station and wrote the
F.I.R./Tehrir. Afterwards he went back to
his house to console the family members.
Nothing adverse could be pointed out from
the testimony of this witness.

21. PW-3 Constable Sarvesh Kumar
deposed that on 04.06.2003 he was posted
as Constable Clerk at the Police Station
Khair. He prepared the check report no.77
on the basis of the written tehrir presented
by informant Sanjeev Kumar and he
entered the detail thereof in the report
no.32 of the G.D. at 13:25 O'clock. He
proved the check F.I.R. to be in his hand
writing and signature as Ex Ka- 2. He also
proved the carbon copy of G.D. by
comparing it with the original being in his
hand writing and signature as Ex Ka-3.
During the cross-examination, nothing
adverse was found in his testimony.

22. PW-4 Habib Khan deposed that
prior to this incident brother of Kaptan
Singh namely Manveer was murdered. He
stated that four days prior to the present
incident at about 6:30 P.M. while he was
passing by the house of Kaptan Singh
where on the terrace of Kaptan Singh other
persons namely Hoshiyar Singh, Suresh,
Kaptan Singh, Om Prakash, Tikam Singh,
Dharmwati, Srinivas, Rohtash, Buddha,
Bhoora, Rajan @ Rajendra Singh were
talking, he heard Kaptan Singh saying that
they would kill two persons instead of one
murder by the informant side and every
person there agreed to him and stated that
they were with him and see that the work
be done. He told about this conversation to
deceased Munna, Bablu and informant
Sanjeev Kumar but they did not pay
attention and replied that they did not
believe him. Later on, deceased Munna and
Bablu were murdered.

This witness was also subjected
to gruelling cross-examination by the
defence wherein it was disclosed that his
son Anees was accused in the murder of
Manveer and remained in jail for a period
of 8-10 months. Prior to the incident,
Kaptan Singh and others shot fires on
Anees at the home for which a case under
Section 307 I.P.C. was registered. The
statement of this witness also disclosed the
enmity with appellant Kaptan Singh and it
will also be dealt with in the later part of
this judgment with the submissions of the
learned counsel for the appellants.

23. PW-5 S.I. Rajendra Prasad Singh
deposed that on 04.06.2003, he was posted
as Sub-Inspector at the Police Station
Khair. He went to conduct the inquest with
Inspector Lakhan Lal and S.S.I. Baljit
Singh. He conducted inquest, prepared the
inquest report and other relevant papers and
also sealed the dead body of the deceased
persons and handed over to Constable
Harpal and Home Guard Bhoori Singh to
carry for the post-mortem. He proved the
inquest report relating to deceased Bablu @
Virendra Singh being in his hand writing
and signature as Ex Ka- 4 and other papers
as Ex Ka-5 to 9; the inquest of dead body
of Munna @ Harveer Singh be as Ex Ka-11
to 15. During cross-examination nothing
adverse could be found in his testimony.

24. PW-6 Dr. S.K. Porwal deposed
that on 05.06.2003 he was posted at the
District Hospital, Aligarh and conducted
post-mortem of the dead body of deceased
Bablu @ Virendra aged about 30 years S/o
Jugveer Singh R/o Bisara, Police Station
Khair at 10:00 A.M. He proved the contents
294 INDIAN LAW REPORTS ALLAHABAD SERIES
of the post-mortem report as prepared by
him in his hand writing and signature as Ex
Ka- 16. He also opined that the death of the
deceased was caused by shock and
hemorrhage as a result of ante-mortem
injuries one day prior to the post-mortem
and that the death was possible at about
12:45 P.M. on 04.06.2003. He further stated
that on 10:40 A.M., on the same day, he
conducted the post-mortem of the dead
body of Munna @ Harveer Singh and also
proved the contents of the post-mortem
report as prepared by him in his hand
writing and signature as Ex Ka- 17. The
cause of death was stated as a result of
ante-mortem injuries at about 12:45 P.M.
on 04.06.2003. This witness was also
subjected to gruelling cross-examination
but nothing adverse was found in his
deposition.

25. PW-7 Inspector Lakhan Lal
deposed that on 04.06.2003 he was posted
as the Officer In-charge at the Police
Station Khair and in his presence at about
13:25 P.M. F.I.R. of this case was lodged
on the basis of written report Ex Ka-1
presented by informant Sanjeev Kumar and
the investigation of the case was handed
over to him. He went to the place of
occurrence where he recorded the statement
of informant Sanjeev Kumar and other
witnesses. He also inspected the place of
occurrence as narrated by the informant
and witnesses and prepared the site plan in
his hand writing and signature which he
proved as Ex Ka- 18. He got the inquest
prepared and sent the dead bodies for the
post-mortem. On the place of occurrence
one Bullet Motorcycle was found and
Memo relating thereto was prepared which
was proved as Ex Ka- 13. From the spot, 17
empty cartridges 315 bore and two bullets
315 bore were taken into possession, Memo
of which was prepared and proved as Ex
Ka- 20. Blood stained and plain earth was
also taken and sealed for sample and Memo
was prepared which he proved as Ex Ka21. Thereafter, PW-7 tried to arrest the
accused persons but they had absconded.
PW-7 was transferred and the investigation
was handed over to S.S.I. Baljit Singh.

This witness was also subjected
to
lengthy
cross-examination
by
the
defence counsel.

26. PW-8 S.I. Suresh Chandra
Omhare stated that on 31.03.2004 he was
posted in the office of S.I.S., I.G. Zone,
Kanpur and the investigation of this case
was handed over to him by the order of
I.G., Zone Kanpur. He recorded the
statements of witnesses conversant to the
facts of the case and after concluding the
investigation submitted the charge-sheet
which he proved as Ex Ka- 23 being in his
hand writing.

This witness was also subjected
to
lengthy
cross-examination
by
the
defence counsel.

27. The informant Sanjeev Kumar
was murdered on 02.03.2005, before he
could be examined.

28. PW-1 Alchendra Singh is the sole
witness of fact who was produced as eye
witness of the occurrence. PW-2 Vinod
Kumar was not an eye-witness but only
scribe of the written report given by the
informant Sanjeev Kumar. Likewise PW-4
Habib Khan was also not an eye-witness of
the occurrence but he had only narrated
overhearing the conspiracy hatched by the
appellants for committing murder of the
deceased persons but the charge of
conspiracy under Section 120-B I.P.C. was
not found to have been proved beyond
10 All. Rohtash Singh Vs. State of U.P.
295
reasonable doubt, therefore, the appellants
were acquitted of the charges under Section
120-B I.P.C. No appeal against the acquittal
under the said offence is before us. The
testimony of this witness (PW-4), thus, is of
no use.

29. Now reliability and veracity of the
testimony of the sole witness PW-1
Alchendra Singh is to be tested before this
Court in the context of the submissions
made by the learned counsel for the
appellants.

30. Learned counsel for the appellants
submits that PW-1 is an interested witness
and is inimical to the appellants. He as such
is not a reliable witness. No doubt Rabbo
Singh S/o Alchendra Singh (PW-1) was an
accused in the case of murder of Manveer
Singh wherein brother of informant, Banti
and his father Jugveer Singh were also
accused persons. Manveer was related to
appellants. On the date of the incident, PW1 Alchendra Singh and informant Sanjeev
Kumar along with the deceased went to the
District Court, Aligarh for doing pairavi for
bail of accused persons namely Banti and
Jugveer Singh. Further PW-1 also admitted
in his cross-examination that in the murder
case of Manveer, his son was also
convicted and enlarged on bail and he was
also an accused in that case for the offence
under Section 120-B I.P.C. PW1 further
admitted that his son contested the election
of Village pradhani against Kaptan Singh
and Jugveer & Sanjeev were on their side.
A case was registered under Section 307
I.P.C. against Hoshiyar brother of PW-1
Alchendra Singh. All these facts clearly
indicate that there was adequate evidence
of enmity between PW-1 Alchendra Singh
and the family of the appellants. The PW1,
thus, clearly falls in the category of an
interested witness but merely on the ground
of being an interested witness, his evidence
cannot be disbelieved outrightly unless it
can be discerned from the record that his
testimony as a whole deserves to be
rejected being untrustworthy. There is an
excuse to save the real culprits and to
implicate the appellants falsely which is
lacking.

31. On the issue of appreciation of
evidence of interested witnesses, Dalip
Singh Vs. State of Punjab, AIR 1953 SC
364, is one of the celebrated cases. It was
held therein:-

"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."

32. Similarly, in Piara Singh and
Ors. Vs. State of Punjab, AIR 1977 SC
2274, the Supreme Court held:

"It is well settled that the
evidence of interested or inimical witnesses
is to be scrutinised with care but cannot be
rejected merely on the ground of being a
partisan evidence. If on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
the Court relying on the said evidence."
296 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In Hari Obula Reddy and Ors.
Vs. The State of Andhra Pradesh, (1981) 3
SCC 675, a three-judge Bench of the
Supreme Court observed:

".. 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."

34. Again, in Ramashish Rai Vs.
Jagdish Singh, (2005) 10 SCC 498, the
following observations were made by the
Supreme Court:

"The requirement of law is that
the testimony of inimical witnesses has to
be considered with caution. If otherwise the
witnesses are true and reliable their
testimony cannot be thrown out on the
threshold by branding them as inimical
witnesses. By now, it is well-settled
principle of law that enmity is a double-
edged sword. It can be a ground for false
implication. It also can be a ground for
assault. Therefore, a duty is cast upon the
court to examine the testimony of inimical
witnesses with due caution and diligence."

35. The learned counsel for the
appellants has also urged that in absence of
testimony of an independent witnesses, the
prosecution story is liable to be discarded.
We are not impressed with this submission
in the light of the observations made by this
Court in Darya Singh Vs. State of Punjab,
AIR 1965 SC 328, wherein it was
observed:

"It is well-known that in villages
where murders are committed as a result of
factions existing in the village or in
consequence of family feuds, independent
villagers are generally reluctant to give
evidence because they are afraid that
giving evidence might invite the wrath of
the assailants and might expose them to
very serious risks. It is quite true that it is
the duty of a citizen to assist the
prosecution by giving evidence and helping
the administration of criminal law to bring
the offender to book, but it would be wholly
unrealistic to suggest that if the prosecution
is not able to bring independent witnesses
to the Court because they are afraid to give
evidence, that itself should be treated as an
infirmity in the prosecution case so as to
justify the defence contention that the
evidence actually adduced should be
disbelieved on that ground alone without
examining its merits."

36. Similarly, in Raghubir Singh Vs.
State of U.P., (1972) 3 SCC 79, it was held
that the prosecution is not bound to produce
all the witnesses who are said to have seen
the
occurrence.
Material
witnesses
considered necessary by the prosecution for
unfolding the prosecution story alone need
be produced without unnecessary and
redundant multiplication of witnesses. In
this connection, general reluctance of an
average villager to appear as a witness and
get himself involved in cases of rival
village factions when tempers on both sides
are running high, has to be borne in mind.
10 All. Rohtash Singh Vs. State of U.P.
297

37. Further, in Appabhai and Anr. Vs.
State of Gujarat, 1988 Supp (1) SCC 241,
the Supreme Court has observed :

"Experience
reminds
us
that
civilized people are generally insensitive
when a crime is committed even in their
presence. They withdraw both from the
victim and the vigilante. They keep
themselves away from the Court unless it is
inevitable. They think that crime like civil
dispute is between two individuals or
parties and they should not involve
themselves. This kind of apathy of the
general public is indeed unfortunate, but it
is there everywhere whether in village life,
towns or cities. One cannot ignore this
handicap with which the investigating
agency has to discharge its duties. The
Court, therefore, instead of doubting the
prosecution case for want of independent
witness must consider the broad spectrum
of the prosecution version and then search
for the nugget of truth with due regard to
probability, if any, suggested by the
accused."

38. Another reason for which the
learned counsel for the appellants insists to
disbelieve the prosecution story is that
there are improvements and exaggerations
in the testimony of PW 1. We find it
difficult to agree with this argument in light
of the judgment in the case Leela Ram Vs.
State of Haryana, (1999) 9 SCC 525,
wherein it was observed:

"It is indeed necessary to note
that one hardly comes across a witness
whose evidence does not contain some
exaggeration or embellishment - sometimes
there could even be a deliberate attempt to
offer embellishment and sometimes in their
over anxiety they may give a slightly
exaggerated account. The court can sift the
chaff from the grain and find out the truth
from the testimony of the witnesses. Total
repulsion of the evidence is unnecessary.
The evidence is to be considered from the
point of view of trustworthiness. If this
element is satisfied, it ought to inspire
confidence in the mind of the court to
accept the stated evidence though not
however in the absence of the same."

39. Similarly, in Subal Ghorai and
Ors. Vs. State of West Bengal, (2013) 4
SCC 607, the Supreme Court stated as
follows:

"Experience shows that witnesses
do exaggerate and this Court has taken
note of such exaggeration made by the
witnesses and held that on account of
embellishments, evidence of witnesses need
not be discarded if it is corroborated on
material aspects by the other evidence on
record."

40. It is also argued that there are
discrepancies and contradictions in the
testimony of PW-1 which do not inspire
confidence. It is well settled in law that
minor discrepancies are not to be given
undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
298 INDIAN LAW REPORTS ALLAHABAD SERIES
not be taken to be a ground to reject the
prosecution evidence. The omission should
create
a
serious
doubt
about
the
truthfulness or creditworthiness of a
witness. It is only the serious contradictions
and omissions which materially affect the
case of the prosecution but not every
contradiction or omission. (See Rammi @
Rameshwar Vs. State of M.P., (1999) 8
SCC 649; Leela Ram (dead) through Duli
Chand Vs.