# Sarjeet & Anr v. State of U.P

- **Citation:** (2022) 12 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-14
- **Case number:** Criminal Appeal No. 3171 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarjeet-anr-v-state-of-u-p-47997
- **Pages:** 17

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 147, 148, 302,
& 120-B - Challenge to-Conviction- P.W.1
in his examination-in-chief admitted the
factum of previous enmity between the
parties-the prosecution has produced as
many as five witnesses as eye-witness of
the
occurrence
including
P.W.1,
but
158 INDIAN LAW REPORTS ALLAHABAD SERIES
except him, others have been declared
hostile- P.W.1 is the sole eye-witness of
the case and he, being the father of the
deceased is highly interested witness,
who has inimical terms with the accusedpersons-In the present case, the ocular
evidence finds corroboration by medical
evidence
and
the
prosecution
has
successfully
proved
its
case
beyond
reasonable doubt- testimony of a witness
in a criminal trial cannot be discarded
merely because the witness is a relative or
family member of the victim of the offence
if the testimony of the related witness is
otherwise found credible, accused can be
convicted on the basis of the testimony of
such related witness.(Para 38 to 81 )

B. Evidence of hostile witness can be
relied upon to the extent it supports the
version of prosecution and it is not
necessary that it should be relied upon or
rejected as a whole. It is settled law that
evidence of hostile witness also can be
relied upon to the extent to which it
supports
the
prosecution
version.
Evidence of such witness cannot be
treated as washed off the record. It
remains admissible in the trial and there is
no legal bar to base the conviction upon
his testimony if corroborated by other
reliable evidence. (Para 21 to 33)

C. It is settled proposition of law that even
if
there
are
some
omissions,
contradictions
and
discrepancies,
the
entire evidence cannot be disregarded.
After exercising care and caution and
sifting through the evidence to separate
truth from untruth, exaggeration and
improvements, the court comes to a
conclusion as to whether the residuary
evidence is sufficient to convict the
accused. Thus, an undue importance
should not be attached to omissions,
contradictions and discrepancies which do
not go to the root of the matter and shake
the basic version of the prosecution's
case. As the mental abilities of a human
being cannot be expected to be attuned to
absorb all the details of the incident,
minor discrepancies are bound to occur in
the statements of witnesses.(Para 37 to
40)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

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12 All. Sarjeet & Anr. Vs. State of U.P.
157
arranging his clothes from the spot also
supports the ingredients of Section 6 of the
Evidence Act. The testimony of the victim
(P.W.-2) to the extent that the accused had
sexual intercourse with her cannot be said
to have proved offence under Section 376
IPC since her medical examination does
not support prosecution version that she
was subjected to sexual intercourse at the
time of incident as alleged. The trial Court
which has considered the entire evidence
on record in this connection and the
findings arrived at by the trial Court
appears to be well reasoned. Minor
contradictions pointed out by the defence
are not material and does not make the
testimony of these witnesses unbelievable
to that extent. I, therefore, find myself in
full agreement with the reasons given by
the trial Court that the accused attempted to
commit rape on the victim (P.W. 2), and the
conviction of the accused for the said
offence under Section 376 read with
Section 511 IPC deserves to be maintained
and does not call for any interference in
this appeal.

41. Therefore, keeping in view the
fact situation and evidence discussed in the
forgoing
part
of
the
judgment,
I
unhesitatingly hold that the present case
would fall under Section 376 read with
Section 511 IPC and it would not fall under
Section 354 IPC. Accordingly, the instant
Jail Appeal deserves to be dismissed and is
dismissed.

42. Since the appellant has already
served out the entire sentence awarded to
him including the default clause of nonpayment of fine, he need not surrender, if
he is not wanted in any other case crime.

43. A copy of this order be sent to jail
and another copy be sent to the court
concerned along with the original record
forthwith.

44.

Sri
Rajesh
Kumar
Singh
Advocate, who has very efficiently assisted
this Court in the hearing of the appeal as
Amicus Curiae, shall be paid Rs.11,000/- as
fee within 15 days from the date of this
order.

45. There will be no order as to costs.
----------
(2022) 12 ILRA 157
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3171 of 2010

Sarjeet & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Faneesh Mishra, Sri Chandra Kesh
Misra, Sri D.S. Misra, Sri Deepak Kumar
Pandey, Dr. C.P. Upadhyay, Sri Govind
Saran Hajela, Sri Pradeep Kumar Bhardwaj,
Ms. Renu Singh, Sri T. Islam, Sri Saroj
Kumar Tiwari, Sri Yogesh Srivastava

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 147, 148, 302,
& 120-B - Challenge to-Conviction- P.W.1
in his examination-in-chief admitted the
factum of previous enmity between the
parties-the prosecution has produced as
many as five witnesses as eye-witness of
the
occurrence
including
P.W.1,
but
158 INDIAN LAW REPORTS ALLAHABAD SERIES
except him, others have been declared
hostile- P.W.1 is the sole eye-witness of
the case and he, being the father of the
deceased is highly interested witness,
who has inimical terms with the accusedpersons-In the present case, the ocular
evidence finds corroboration by medical
evidence
and
the
prosecution
has
successfully
proved
its
case
beyond
reasonable doubt- testimony of a witness
in a criminal trial cannot be discarded
merely because the witness is a relative or
family member of the victim of the offence
if the testimony of the related witness is
otherwise found credible, accused can be
convicted on the basis of the testimony of
such related witness.(Para 38 to 81 )

B. Evidence of hostile witness can be
relied upon to the extent it supports the
version of prosecution and it is not
necessary that it should be relied upon or
rejected as a whole. It is settled law that
evidence of hostile witness also can be
relied upon to the extent to which it
supports
the
prosecution
version.
Evidence of such witness cannot be
treated as washed off the record. It
remains admissible in the trial and there is
no legal bar to base the conviction upon
his testimony if corroborated by other
reliable evidence. (Para 21 to 33)

C. It is settled proposition of law that even
if
there
are
some
omissions,
contradictions
and
discrepancies,
the
entire evidence cannot be disregarded.
After exercising care and caution and
sifting through the evidence to separate
truth from untruth, exaggeration and
improvements, the court comes to a
conclusion as to whether the residuary
evidence is sufficient to convict the
accused. Thus, an undue importance
should not be attached to omissions,
contradictions and discrepancies which do
not go to the root of the matter and shake
the basic version of the prosecution's
case. As the mental abilities of a human
being cannot be expected to be attuned to
absorb all the details of the incident,
minor discrepancies are bound to occur in
the statements of witnesses.(Para 37 to
40)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Keshavlal Vs St. of M.P. (2002) 3 SCC 254

2. Gopal Singh Vs St. of U.K. (2013) 7 SCC 545
(para12 & 13)

3. Syed Ibrahim Vs St. of A.P. (2006) AIR SC
2908

4. St. of Karn. Vs J. Jailalittha (2017) 6 SCC 263

5. Tomaso Bruno & anr. Vs St. of U.P.(2015) 7
SCC 178

6. Chennadi Jalapathi Reddy Vs Baddam Pratapa
Reddy (2019) 14 SCC 220

7. Muniappan Vs St. of T.N. (2011) 72 ACC 988

8. Deepak Verma Vs St. of H.P.(2011) 10 SCC
129

9. Bikau Pandey Vs St. of Bih. (2003) 12 SCC
616

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

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

12. Anil Rai Vs St. of Bih (2001) 7 SCC 318

13. Dhari & ors.Vs St. of U.P. ( 2013) AIR SC 308

14. Shyam Babu Vs St. of U.P. (2012) AIR SC
3311

15. Shyamal Ghosh Vs St. of WB (2012) AIR SC
3539

16. Dayal Singh Vs St. of U.K. (2012) SC 3046

17. Amit Vs St. of U.P. (2012) AIR SC 1433

18. St. of Har.Vs Shakuntala & ors.(2012) 77
ACC 942 SC
12 All. Sarjeet & Anr. Vs. State of U.P.
159
19. Bhagwan Jagannath Markad Vs St. of Mah.
(2016) 10 SCC 537

20. Surinder Kumar Vs St. of Punj. (2020) 2 SCC
563

21. Rajesh Yadav & anr. Vs St. of U.P. (2022)
119 ACC 978

22. Gura Singh Vs St. of Raj. (2001) 2 SCC 205

23. St. of U.P. Vs Ramesh Prasad Misra & anr.
(1996) AIR SC 2766

24. Ramesh Harijan Vs St. of U.P. (2012) 5 SCC
777

25. Lakhmanbhai Chandabhai Vs St. of Guj.
(1999) 8 SCC 624
(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This Criminal Appeal has been
preferred by appellants - Sarjeet and
Devendar against the judgment and order
dated 1.5.2010 passed by Additional
District and Sessions Judge, Fast Track-I
Court No.9, District Gautam Budh Nagar in
Sessions Trial No.291 of 2002 (State Vs.
Hari Singh and Others) arising out of Case
Crime No.42 of 2002 under Sections 147,
148, 302, 120-B IPC, Police Station
Dankaur, District Gautam Budh Nagar,
convicting
and
sentencing
both
the
appellants for the offence under Section
147
IPC
to
undergo
six
months
imprisonment with fine of Rs.500/- each,
for the offence under Section 148 IPC to
undergo one year imprisonment with fine
of Rs.1000/- each and for the offence under
Section 302 IPC to undergo imprisonment
for life with fine of Rs.10,000/- each with
default sentence.

Brief Facts of the case -

2. Prosecution story, in nutshell, as
unfolded in written report (Ex.Ka.-1), is as
follows:

On 21.3.2002 at about 7.00 a.m.
the complainant Nepal Singh alongwith
Ramesh, Gajraj and Pawan was sitting in
his Gher, when his son Bijendra was sent to
Milak to collect money. After Bijrendra
left, the complainant saw that accused
Sarjeet and Devendar alongwith 5-6 young
aged unknown fellows armed with country
made pistols and knives were going
towards Milak. Apprehending that the
accused may not indulge in fight with his
son Bijendra, the complainant alongwith
Ramesh and others went towards Milak and
saw that near Johar Bijendra was caught
hold by accused Devendar, Sarjeet and their
5-6 associates who were beating him. The
accused Devendar and Sarjeet armed with
knives assaulted his son Bijendra on his
face
and
cut
his
neck.
When
the
complainant raised alarm, hearing his
shrieks,
Prithvi,
Satti
and
Malkhey
alongwith other people reached at the place
of occurrence, then the accused persons
fled away towards the village Milak. It is
further stated in the report that 5-6 years
back, accused Devendar's brother Harveer
had fallen in a well and died, for which the
accused Devendar and his family members
had a suspicion over the informant party. A
land dispute was also pending between the
informant and accused Sarjeet's father Hari
Singh. Due to aforesaid reasons, Hari
Singh, Jasram, Sarjeet, Devendar called
other miscreants on 20.3.2002 at their
house
and
after
hatching
conspiracy
committed murder of the son of the
complainant. With the help of villagers, the
complaint took his son to Government
Hospital in injured condition where the
doctors declared him dead.
160 INDIAN LAW REPORTS ALLAHABAD SERIES

3. On the basis of written report
(Ex.Ka.-1), on 21.03.2002 at 9:05 hours,
Chik First Information Report at Crime
No.42 of 2002 under Sections 148, 302,
120-B IPC was

4. The investigation started. During
the course of examination, both the accused
were arrested and murder weapon knives
were recovered at the pointing out of the
accused-persons. The Investigating Officer
recorded the statement of all the witnesses
of fact and also the formal witnesses.

5. The inquest of deceased Bijendra
was conducted and autopsy of the body was
performed by Dr. Yashwant Singh P.W.17
who found the following ante-mortem
injuries over the body of the deceased :

(i) Incised wound 7 cm. x 3.5 cm. x
great vessel deep & muscle deep on left side
neck (left sub mandibula region). On
examination - trachea cut, muscles cut,
internal carotid artery and internal jugular
vein cut and esophagus cut.

(ii) Multiple incised wounds in an
area of 12 cm. x 10 cm. of left side face &
chest of sizes varying from 1 cm. x 0.5 cm. x
sub cut deep to 2.5 cm. x 1 cm. x muscle
deep.

(iii) Incised wound 1 cm. x 0.5 cm.
x sub cutaneous deep right side chest 8 cm.
medial to right nipple at 4'O clock position.

(iv) Incised wound 1 cm. x 0.5 cm.
x sub cutaneous deep right side abdomen 6
cm. outer to umbilical at 9'O clock position.

It was found by the doctor that the
death was caused due to shock and
haemorrhage as a result of ante-mortem
injuries.

6. After completing all the formalities,
the Investigating Officer submitted chargesheet against five accused-persons.

7. The appellants / accused appeared
before the Court and the matter, being
exclusively triable by the Sessions, was
committed to the Court of Sessions.

8. Accused Hari Singh, Devendar,
Inder, Sarjeet and Jasram were charged
under Sections 147, 148, 302/149, 120-B
IPC and charges under Section 25/4 Arms
Act were also framed separately against
accused Devendar and Sarjeet.

9. The accused-persons denied all the
charges and claimed to be tried.

Evidence
adduced
by
the
Prosecution -

10. The prosecution, to bring home
the charge against the accused persons, has
relied upon the oral as well as documentary
evidence.

11. As per oral evidence, a total of 17
witnesses have been produced by the
prosecution, who are as under.

1.
Nepal Singh
P.W.1,
the
informant
/
eyewitness
2.
Gajraj Singh
P.W.2, eyewitness
3.
H.C. Rampal Singh P.W.3, scribe of F.I.R. and
G.D.
4.
Prithi Singh
P.W.4, eye-witness / witness of
inquest
5.
Constable
Jai
Prakash Sharma
P.W.5, witness of recovery of
murder weapon
6.
Santi @ Santo
P.W.6, witness of fact
7.
Ram Mehar
P.W.7, witness of fact
8.
Constable Nekpal
P.W.8, scribe of F.I.R. and
G.D. under Section 25/4 Arms
Act
9.
Ram Singh
P.W.9, witness of fact
10.
Dhiri
Singh
@
Dheeraj Singh
P.W.10, witness of recovery of
murder weapon
12 All. Sarjeet & Anr. Vs. State of U.P.
161
11.
Amarpal
P.W.11, witness of recovery of
murder weapon
12.
Constable
Shaukendra Singh
P.W.12, witness of memo of
recovery of murder weapon
13.
Malkhey
P.W.13, witness of fact
14.
S.I. Binda Singh
Chandel
P.W.14, second Investigating
Officer
15.
S.I. Rakesh Babu
Yadav
P.W.15,
first
Investigating
Officer
16.
S.I. Om Prakash
Singh
P.W.16,
third
Investigating
Officer
17.
Dr. Yashwant Singh P.W.17 (Performed Autopsy)

12. The Investigating Officer of the
matter under Section 25 Arms Act C.P.
Balbeer Singh has not been examined and
P.W.16 has deposed for him as secondary
witness.

13. To support the oral evidence, the
following
documentary
evidence
was
produced by the prosecution, which is as
under.

1.
Written Report
Ex.Ka.-1
2.
Memo of supurdagi of
cycle
Ex.Ka.-2
3.
Chik F.I.R.
Ex.Ka.-3
4.
G.D.
Ex.Ka.-4
5.
Inquest Report
Ex.Ka.-5
6.
Memo of Fard of
blood-stained
and
plain
soil,
bloodstained
knife
and
bicycle
Ex.Ka.-6
7.
Chik F.I.R. and G.D.
under Section 25 Arms
Act
Ex.Ka.- 7 & 8 respectively
8.
Recovery memo of
murder weapon knife
Ex.Ka.-9
9.
Site plan of the place
of recovery
Ex.Ka.-10
10.
Charge-sheet
Ex.Ka.-11
11.
Site plan of the place
of occurrence
Ex.Ka.-12
12.
Papers
relating
to Ex.Ka.13, 14, 15, 16, 17
postmortem,
photo
nash,
challan
nash,
letter to C.M.O. and
letter to R.I.
respectively
13.
Charge-sheet
against
accused Inder
Ex.Ka.-18
14.
Charge-sheet- 2 Sets
under
Section
25/4
Arms Act
Ex.Ka.-19 & 20 respectively
15.
Autopsy Report
Ex.Ka.-21

Statement under Section 313 Cr.P.C.
-

14. The incriminating circumstances
and evidence available on record against
the accused-persons were put to them in
their statements under Section 313 Cr.P.C.
wherein the plea of false implication has
been taken and the truthfulness and
genuineness
of
the
entire
oral
and
documentary evidence produced by the
prosecution was denied. However, no
defence evidence has been adduced by the
accused-persons / appellants.

15. Having heard both the sides and
after analyzing the evidence on record the
learned
trial
court
found
that
the
prosecution has succeeded to prove its case
beyond reasonable doubt and recorded
conviction of the accused persons and
sentenced them as mentioned here-inabove.

Submissions made by the learned
counsel for Appellants -

16. It has been submitted by the
learned counsel for the appellants that the
witnesses of fact, except P.W.1, have been
declared hostile by the prosecution and do
not support its case at all. P.W.1 is said to
be the sole eye-witness of the case and his
statement is also shaky and does not inspire
confidence. It has also been submitted that
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the
testimony
of
P.W.1
is
full
of
contradictions and unnatural statements. It
has further been submitted that public
witnesses of the alleged recovery of the
murder weapons at the pointing out of the
accused-persons are also not reliable and
have been declared hostile which resulted
into the acquittal of accused persons of the
charges under Arms Act. It has further been
submitted that the informant had a grudge
with the accused-persons / appellants for
some land dispute and in order to grab that
land,
he has
falsely
implicated
the
appellants in this case. On the aforesaid
grounds, it has been prayed that the
accused-persons / appellants are liable to be
acquitted as the prosecution miserably
failed to prove its case.

Submissions made on behalf of the
State -

17. Per contra, the learned A.G.A.
vehemently
opposing
the
submissions
made by the learned counsel for the
appellants,
has
contended
that
the
prosecution has successfully proved its case
beyond reasonable doubt. The evidence of
P.W.1 is trustworthy and reliable and as per
the
established
legal
principles,
the
conviction can always be successfully
recorded on the basis of the evidence of
sole eye-witness. The recovery of murder
weapon - knives at the pointing out of the
appellants has been proved by the cogent
evidence. It is a case of cold-blooded
murder of a young chap and all the relevant
evidence to record the conviction of the
appellants is available on record. The false
implication theory does not find any basis
in the light of the evidence on record. On
these grounds, the dismissal of the present
criminal appeal has been prayed for.

Analysis - Ocular Evidence -

18. We have heard the submissions
made by the learned counsel for the
appellants and learned A.G.A. We have to
travel through the entire prosecution
evidence so as to reach at the right
conclusion whether impugned judgment is
liable to be sustained or not and before we
go through the evidence, we have patiently
noted the submissions made by the learned
counsel for the appellants while assailing
the impugned judgment as well as by the
learned A.G.A.

19. At the very outset, it is to be borne
in mind that present is the case which is
based on eye-witness account. P.W.1 Nepal
Singh, P.W.2 Gajraj Singh, P.W.4 Prithi
Singh, P.W.6 Santi @ Santo and P.W.13
Malkhey have been produced by the
prosecution
as
eye-witnesses
of
the
occurrence.

20 P.W.1, who is the father of the
deceased and also the informant of the
case, has proved the prosecution case in his
deposition and without any hesitation he
has categorically stated that on the fateful
day his son Bijendra was caught by the
accused-persons - Devendar, Sarjeet and
six other unknown persons. Accused
Devendar and Sarjeet gave several blows
over the face and neck of the deceased. The
unknown accused-persons had desi pistols
with them. He had seen the occurrence and
witnesses Chaman, Ramesh and Gajraj
were also present with him. On their
shrieks, other persons of the village also
came there and the accused-persons fled
away. The deceased in injured condition
was taken to the hospital, but was declared
dead by the doctor. This witness has also
proved the written report Ex.Ka.-1 and the
memo of supurdgi of cycle on which the
deceased was going as Ex.Ka.-2. No
material contradiction is found in the entire
12 All. Sarjeet & Anr. Vs. State of U.P.
163
testimony of P.W.1 despite a lengthy crossexamination by the defence. His presence
over the place of occurrence is natural and
probable because at the time of the
occurrence, he was sitting along with other
persons in his Gher and had sent his son
Bijendra to the village Milkey to receive
some money. This witness also clearly
states
that
the
accused-persons
had
previous enmity and grudge with him and
when his son went by his cycle and he saw
the accused-persons nearby, he had a
suspicion for some mishappening, so he
chased them and became the witness of the
fatal incident.

Evidence of Hostile Witnesses -
Evidentiary value

21. The learned counsel for the
appellants has contended that the witnesses
Chaman and Ramesh, who are said to
accompany the informant at the time of the
occurrence, have not been produced by the
prosecution and the third witness Gajraj,
who has been examined as P.W.2, is a
hostile witness and does not support the
prosecution version at all and categorically
states that he has seen nothing. The
statement of P.W.4 Prithi Singh, P.W.6
Santi @ Santo and P.W.13 Malkhey has
also been assailed by the learned counsel
for the appellants by arraying them in the
category of total hostile witness. He has
contended that in no material terms, these
witnesses support the deposition of P.W.1
and their testimony proves the appellants
innocent.

22. A perusal of the statement of P.W.2,
P.W.4, P.W.6 and P.W.13 shows that they
have nowhere stated to see the accusedpersons attacking over the deceased and
thereby causing his murder. This makes us to
travel through the relevant laws and legal
position in respect of the evidence of a hostile
witness and to scrutinize the statement of the
aforesaid witnesses in the light of the relevant
legal position.

23. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], has held that
evidence of hostile witness can be relied upon
to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a whole.
It is settled law that evidence of hostile
witness also can be relied upon to the extent
to which it supports the prosecution version.
Evidence of such witness cannot be treated as
washed off the record. It remains admissible
in the trial and there is no legal bar to base the
conviction upon his testimony if corroborated
by other reliable evidence.

24. In Ramesh Harijan vs. State of
U.P. [2012 (5) SCC 777], it has been
reiterated that it is settled legal position that
the evidence of a prosecution witness cannot
be rejected in toto merely because the
prosecution chose to treat him as hostile and
cross-examined him. The evidence of such
witness cannot be treated as effaced or
washed off the record altogether.

25. In State of U.P. vs. Ramesh
Prasad Misra and another, AIR 1996 SC
2766, the Hon'ble Apex Court held that
evidence of a hostile witnesses would not be
totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of
the evidence which is consistent with the case
of the prosecution or defence can be relied
upon.

26. In Gura Singh vs. State of
Rajasthan (2001) 2 SCC 205, the Hon'ble
Supreme Court held like this - "It is a
164 INDIAN LAW REPORTS ALLAHABAD SERIES
misconceived notion that merely because
the witnesses have been declared hostile
their entire evidence is excluded or
rendered unworthy of consideration. The
evidence remains admissible in the trial and
there is no legal bar to base the conviction
upon the testimony of such witness". (Para
11)

"............In a criminal trial where
a prosecution witness is cross-examined
and contradicted with the leave of the Court
by the party calling him for evidence
cannot, as a matter of general rule, be
treated as washed off the record altogether.
It is for the court of fact to consider in each
case whether as a result of such crossexamination and contradiction the witness
stands discredited or can still be believed in
regard to any part of his testimony. In
appropriate cases the court can rely upon
the part of testimony of such witness if that
part of the deposition is found to be
creditworthy." (Paras 12 and 11)

27. In the light of the aforesaid settled
legal position, the law on the subject can be
summarized to the effect that the testimony
of hostile witness cannot be thrown away
just on the basis of the fact that he has not
supported the prosecution case and was
cross-examined by the prosecutor. The
testimony of hostile witness can be relied
upon to the extent it supports the
prosecution case. Needless to say that the
testimony of such witness should be
scrutinized
meticulously
and
very
cautiously.

28. P.W.2, in his cross-examination,
has stated that when the villagers came to
know about the injuries of Bijendra at
about 9:30 A.M., he along with other
villagers Prithi, Hari Singh etc. reached the
spot and took Bijendra to Dankaur from the
place of occurrence. He has also admitted
that Harveer, the brother of accused
Devendar had died after falling into a Well
5 - 6 years before the occurrence. This
statement affirms the time and place of
occurrence and also the history of enmity
between the parties, as stated by P.W.1.

29. Likewise, P.W.4 Prithi Singh has
also stated that he had seen the accusedpersons from hundred steps behind, who
were running away. He was behind his
brother Nepal and Malkhey was also with
him. He had not seen the faces of the
assailants, but had seen them from the back
when they were fleeing away from the spot.
They
took
Bijendra
to
Government
Hospital, Dankaur where he was declared
dead. This witness also states that the crime
was committed on 21.3.2002 when he was
having a conversation with Malkhey and
Santi at his house. He also proves his
signature over the inquest report Ex.Ka.-5
and the seizure memo of blood-stained and
plain soil, one pair of sleeper, one bloodstained knife and cycle as Ex.Ka.-6. The
aforesaid
deposition
of
P.W.4
also
corroborates
the
date
and
place
of
occurrence
and
fact
regarding
other
incriminating materials taken into custody
by the police.

30. Likewise P.W.6, though declared
hostile, proves the time and other material
aspect of the matter when he says that he
had reached the spot following Prithi where
Bijendra was lying dead in the lap of
Nepal.

31. P.W.13 Malkhey in the same
fashion states that when on noise he
alongwith Prithi and Santi reached the spot,
he saw Bijendra lying in the lap of Nepal in
the injured condition. He had seen the
assailants from behind.
12 All. Sarjeet & Anr. Vs. State of U.P.
165

32. The aforesaid depositions of
P.W.2, P.W.4, P.W.6 and P.W.13 can be
taken into account so far as they relate to
the date, time and place of occurrence. It is
true that they have not seen the faces of the
assailants, but in material particulars their
evidence supports the prosecution case.
P.W.1 has clearly seen the assailants
committing the crime. The learned trial
court has taken into account the aforesaid
legal position and has well appreciated and
scrutinized the evidence of the hostile
witnesses. We also find that up to some
extent, but in significant manner, the
prosecution version in this case is affirmed
by the statements of hostile witnesses also.
The ocular evidence of P.W.1 is also found
cogent and reliable.

33. The legal theory, as denoted herein-above, operating upon the appreciation
of evidence of a hostile witness has been
reproduced by the Hon'ble Supreme Court
recently in Rajesh Yadav & Another vs.
State of U.P. (2022) 119 ACC 978 which
can also be taken note of.

Other Witnesses of Fact -

34. The deposition of P.W.7 and P.W.9
has also been assailed by the learned
counsel for the appellants and argument has
been advanced that they are the witnesses,
who are said to be the eye-witness of the
fact that the accused-persons were planning
for the murder of the deceased at the house
of Hari Singh but both of them have denied
even to hear or see such incident of
planning and they have also been declared
hostile.

35. Learned A.G.A. for the State
fairly admits that there is nothing in the
statement of P.W.7 and P.W.9, which goes
to help the prosecution in any way.

36. We are of the considered opinion
that even if the depositions of P.W.7 and
P.W.9 are completely washed off, it brings
no harm to the prosecution case because the
reliable and cogent occular evidence is
available on record in the form of
deposition of P.W.1.

Related
/
Interested
witness
-
Evidentiary value -

37. The learned counsel for the
appellants has forcefully submitted that P.W.1
is the sole eye-witness of the case and he,
being the father of the deceased is highly
interested witness, who has inimical terms
with the accused-persons and in this way, his
evidence should not be relied upon to convict
the accused-persons for such a grave offence
like murder. His deposition is always under the
cloud of suspicion and is not acceptable.

38. As has been discussed here-in-above,
the prosecution has produced as many as five
witnesses as eye-witness of the occurrence
including P.W.1, but except him, others have
been declared hostile. The prosecution story is
very natural in this way that on the fateful day
the informant had sent his son to receive some
money from the other village when he was
sitting in his Gher along with other persons,
but as soon as he saw the accused-persons
moving near his Gher, who had a previous
enmity with him, he had a suspicion for some
mishappening and he went behind them and
became the witness of the unfortunate
incident. In these circumstances, how he can
be said to be an unnatural witness and what
makes his presence on the spot improbable.
His evidence cannot be brushed aside only
because of the fact that he is the father of the
deceased.

39. Hence, we do not find ourselves
in agreement with the aforesaid plea taken
166 INDIAN LAW REPORTS ALLAHABAD SERIES
by the learned counsel for the appellant.
The legal position in respect of a relative
witness has been made clear in a catena of
decisions by the Hon'ble Apex Court and
by this Court also. It is well settled that the
testimony of a witness in a criminal trial
cannot be discarded merely because the
witness is relative or family member of the
victim of the offence. In such a case the
Court has to adopt a careful approach in
analysing the evidence of such a witness
and if after careful scrutiny, the testimony
of the related witness is otherwise found
credible the accused can be convicted on
the basis of testimony of such related
witness. Recently, in Surinder Kumar Vs.
State of Punjab (2020) 2 SCC 563
Hon'ble Supreme Court has reiterated that
merely
because
prosecution
did
not
examine any independent witness, would
not necessarily lead to conclusion that
accused was falsely implicated.

40. The Hon'ble Apex Court in
Bhagwan JagannathMarkad Vs. State of
Maharastra (2016) 10 SCC 537 has held that
the testimony of a witness in a criminal trial
cannot be discarded merely because the
witness is a relative or family member of the
victim of the offence. In such a case Court has
to adopt a careful approach in analyzing the
evidence of such witness and if the testimony
of the related witness is otherwise found
credible, accused can be convicted on the basis
of the testimony of such related witness.

41. The same view has been taken in
Dhari & Others Vs. State of U.P., AIR 2013
SC 308, Shyam Babu Vs. State of U.P., AIR
2012 SC 3311, Shyamal Ghosh Vs. State of
WB, AIR 2012 SC 3539, Dayal Singh Vs.
State of Uttaranchal, AIR 2012 SC 3046,
Amit Vs. State of U.P., AIR 2012 SC 1433
and State of Haryana Vs. Shakuntala &
Others, 2012 (77) ACC 942 (SC) and so on.

Motive -

42. In this sequence, it has also been
vehemently argued that the motive assigned
behind the crime has not been properly proved.
It has also been argued that if there was an
enmity between the parties the accused
undoubtedly have been falsely implicated due
to enmity.

43. From the careful scrutiny of the
deposition of P.W.1, we find that in his
examination-in-chief he has admitted the
factum of previous enmity between the parties.
He has been cross examined at length on this
point wherein he has clarified that the parties
have some land disputes and civil litigation is
also pending between them. P.W.1 has fairly
admitted that prior to this occurrence, Harveer,
the brother of accused Devendar died by falling
into a Well and he himself was suspected in his
murder by the accused-persons, but if this story
is taken as a cause for enmity between the
parties, the informant had no reason to falsely
implicate the accused-persons in this case,
rather it was a strong reason for the appellants /
accused-persons to commit the crime against
the informant. In their statement under Section
313 Cr.P.C., the accused persons have admitted
the factum of enmity between the parties.

44. In the aforesaid context, another
plea has been raised by the appellants that
since the parties are on inimical terms, as per
statement of P.W.1 and also as per the version
of F.I.R. itself, a possibility of false
implication of the accused-persons cannot be
thrown out completely.

45. In Anil Rai Vs. State of Bihar
(2001) 7 SCC 318 it has been held that
enmity is a double edged weapon which
can be a motive for the crime as also the
ground for false implication of the accused
persons.
12 All. Sarjeet & Anr. Vs. State of U.P.
167

46. In Dalip Singh vs. State of
Punjab, AIR 1953 SC 364 it was observed
that -

"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".

47. The Hon'ble Supreme Court in
Darya Singh Vs. State of Punjab, AIR
1965 SC 328 held that evidence of an eyewitness, who is a near relative of the victim
should be closely scrutinized, but no
corroboration is necessary for acceptance
of his evidence.

48. The trial Court has also discussed
the various aspects of motive and enmity
existing between the parties in the present
case particularly in the light of the evidence
of P.W.1. Reliance has been placed upon
Bikau Pandey Vs. State of Bihar (2003)
12 SCC 616 wherein it has been held that
when the direct evidence establishes the
crime, motive is of no significance and
pales into insignificance.

49. There are catena of decisions on
the point that in a case based upon the eye
witness account, the motive loses its
significance. In Deepak Verma Vs. State
of Himachal Pradesh (2011) 10 SCC 129
It has been held as under:

"...Proof of motive is not a sine
qua non before a person can be held guilty
of commission of crime. Motive being a
matter of mind, is more often than not
difficult to establish through evidence."

Reliable Ocular Evidence -

50. In fact, P.W.1 has been crossexamined at length by the defence. His
statement, which started in the year 2003
before the trial court, was concluded finally
in 2005, as it appears from the perusal of
the record, but despite the lengthy and
thorough cross-examination conducted into
a long span of time, his entire evidence is
found cogent, trustworthy and innocent.
The trial court has rightly relied upon his
statement, no material contradiction is
found wherein. The contradictions and
discrepancies found in his deposition are
minor in nature and are not such as to hit at
the very root of the prosecution case and
are as such, ignorable. He is the eyewitness of the crime of murder and the
unfortunate father of the young deceased.

51. The Hon'ble Supreme Court in
Rajesh Yadav & another (supra) has
placed reliance upon the decision in C.
Muniappan vs. State of Tamil Nadu, 2011
(72) ACC 988 wherein it was held that it is
settled proposition of law that even if there
are some omissions, contradictions and
discrepancies, the entire evidence cannot be
disregarded. After exercising care and
caution and sifting through the evidence to
separate truth from untruth, exaggeration
and improvements, the court comes to a
conclusion as to whether the residuary
evidence is sufficient to convict the
accused. Thus, an undue importance should
not be attached to omissions, contradictions
and discrepancies which do not go to the
root of the matter and shake the basic
version of the prosecution's case. As the
mental abilities of a human being cannot be
expected to be attuned to absorb all the
168 INDIAN LAW REPORTS ALLAHABAD SERIES
details of the incident, minor discrepancies
are bound to occur in the statements of
witnesses.

Medical Evidence -

52. In order to establish the guilt of the
accused and to corroborate its story, the
prosecution, apart from the eye-witness
account, mainly relied on expert opinion of
Dr. Yashwant Singh (P.W.17), who performed
the autopsy of the body of the deceased and
has proved the autopsy report (Ex.Ka.-21).
From the perusal of the autopsy report, as
also affirmed by P.W.17, we find that several
incised wounds have been found on the face,
neck, chest and abdomen of the deceased. He
also found that the trachea muscles, internal
carotid artery, internal jugular vein and
esophagus were cut. The autopsy was
performed on 22.03.2002 at 11:00 A.M. and
according to the opinion of P.W.17, the
deceased was died one day before the
postmortem. The prosecution story also says
that
the
murder
was
committed
on
21.03.2002, one day before the postmortem.
The learned counsel for the appellants has
vehemently argued that P.W.17 in his crossexamination has categorically stated that the
injuries over the person of the deceased are
not probably to be inflicted by knife rather it
might have been inflicted by some sharpedged and heavy instrument e.g. spade, axe,
tabal etc. He has made it a point that in such
circumstances, the prosecution case is not
corroborated with the medical evidence. The
learned A.G.A., on the other hand, has
contended that the offence of murder has
been seen by the eye-witness P.W.1 in this
case and he has categorically deposed that the
murder was caused by use of knife.

53. The rival contentions of both the
sides take us to go through the law relating to
the evidentiary value of an expert particularly
when it is contrary in some aspects to that of
the occular version.

54. In Chennadi Jalapathi Reddy
Versus Baddam Pratapa Reddy, (2019) 14
SCC 220 it was held that the Court must be
cautious while evaluating expert evidence,
which is a weak type of evidence and not
substantive in nature. It may not be safe to
solely rely upon such evidence and the Court
may
seek
independent
and
reliable
corroboration in the facts of a given case, as a
general rule of prudence. Generally, mere
expert evidence as to a fact is not regarded as
conclusive proof of it.

55. Likewise in Tomaso Bruno and
Another Versus State of U.P., (2015) 7 SCC
178 it was held that Courts give due regard to
expert testimony but are not bound by it.
Report when read in conjunction with other
evidence on record, renders it unacceptable. It
was reiterated in State of Karnataka Versus
J. Jailalittha (2017) 6 SCC 263 that an
expert is not a witness of fact and his
evidence is really of an advisory character
and his duty is to furnish court with scientific
test criteria to test accuracy of conclusions.
Based
on
such
expert
opinion
and
appreciating facts of each case, court must
give its independent judgment. Court should
not subjugate its own judgment to that of
expert or delegate its authority to third party
but ought to access evidence of expert like
any other evidence.

56. The legal position which emerges
out from the study of several verdicts given
by the Hon'ble Supreme Court is that expert
evidence is only advisory in nature and the
Court is never bound by the evidence of the
experts.

57. Section 45 of the Evidence Act
though provides the relevancy of the expert
12 All. Sarjeet & Anr. Vs. State of U.P.
169
evidence or opinion, it nowhere discloses
the evidentiary value of it.

58. In fact, the hazard in accepting the
opinion of an expert is not because an
expert may not be reliable as a witness, but
because human judgment is fallible.

59. We should keep into mind that
occular evidence is cogent and credible.
Medical evidence to the contrary cannot
corrode the evidentiary value of the former.

60. In the present case also, as
discussed above, the evidence of P.W.1 is
cogent, reliable and trustworthy and free of
any kind of embellishment and that is why
against the occular version of P.W.1, the
opinion given by the Doctor (P.W.17)
cannot be given weightage to so far as the
instrument used in the crime is concerned.
Hence, the prosecution case is supported
with medical evidence also in the aforesaid
fashion.

61. At this juncture, we cannot
overlook the inquest report (Ex.Ka.-5)
wherein the Panchas have also opined that
the death seems to be caused due to the
injuries inflicted by knives upon the body
of the deceased and this report also favours
the prosecution case.

Place of occurrence -

62. Finger has also also been raised
by the learned counsel for the appellants
towards the place of occurrence in this
case.