# Shri Kant Pandey & Ors. (In Jail) v. The State of U.P

- **Citation:** (2020) 11 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-11
- **Case number:** Criminal Appeal No. 1247 of 2000
- **Bench:** Manoj Misra, Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-kant-pandey-ors-in-jail-v-the-state-of-u-p-45421
- **Pages:** 24

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 302 readwith 34 - Appeal has been
filed against the conviction under

Testimony of Interested Witness:- Can
alone from the basis of conviction but
scrutining by court must careful test whether it
is free from suspicion and whether the
substratum of the story narrated by the
witness which is consistent with the other
evidence on record.

Motive : The role of motive in assessing the
credibility of prosecution case - absence of
strong motive may not be fatal to the
prosecution case but where there is an occasion
to suspect the prosecution testimony motive
acquires some significance regarding the
probability of the prosecution case. (Para 38)

Ocular Witnesses - Whether the Ocular
Evidence is wholly reliable, and is not in the
absolute conflicted and is not absolute conflicted
with the medical evidences so as to render it
completely unreliable, the Ocular Witness
would prevail over the medical evidence.
(para54)
Prosecution has failed to discharge its burden to
prove the charge against accused beyond the
pale of doubt. (Para 62)
Appeal Allowed. (E-2)
List of Cases cited:-

## Text

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11 All. Shri Kant Pandey & Ors. Vs. The State of U.P.
459
(2020)11ILR A459
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Criminal Appeal No. 1247 of 2000

Shri Kant Pandey & Ors.
 ...Appellants (In Jail)
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri R.M. Pandey, Sri Rajesh Kishore
Srivastava (A.C.), Sri Pankaj Dwivedi, Sri
Shriprakash Dwivedi, Sri I.K. Chaturvedi

Counsel for the Respondent:
A.G.A., Sri Rajeev Kumar Saxena, Sri
Virendra Kumar Yadav, Sri Jitan Tiwari, Sri
Damodar Padney

Criminal Law - Indian Penal Code,1860 -
Section 302 readwith 34 - Appeal has been
filed against the conviction under

Testimony of Interested Witness:- Can
alone from the basis of conviction but
scrutining by court must careful test whether it
is free from suspicion and whether the
substratum of the story narrated by the
witness which is consistent with the other
evidence on record.

Motive : The role of motive in assessing the
credibility of prosecution case - absence of
strong motive may not be fatal to the
prosecution case but where there is an occasion
to suspect the prosecution testimony motive
acquires some significance regarding the
probability of the prosecution case. (Para 38)

Ocular Witnesses - Whether the Ocular
Evidence is wholly reliable, and is not in the
absolute conflicted and is not absolute conflicted
with the medical evidences so as to render it
completely unreliable, the Ocular Witness
would prevail over the medical evidence.
(para54)
Prosecution has failed to discharge its burden to
prove the charge against accused beyond the
pale of doubt. (Para 62)
Appeal Allowed. (E-2)
List of Cases cited:-
1. Jalpat Rai Vs St. of Har., (2011) 14 SCC 208
2. (vide Sheo Shankar Singh Vs St. of Jhark.,
(2011) 3 SCC 654, para 15)
3. (vide Alagupandi Vs St, of T.N., (2012) 10
SCC 451, para 29)
4. (vide St. of U.P. Vs Hari Prasad, (1974) 3
SCC 673, para 2)
5. Badam Singh Vs St. of M.P., (2003) 12 SCC
792,
6. Budhwa @ Ram Charan & ors.Vs St. of M.P.,
1991 Supp (1) SCC 9 (para 5)
7. Ram Bilas Vs St. of MP, (1997) SCC (Cri)
1222
8. Budhwa @ Ram Charan & ors. Vs St. of M.P.
(supra)
9. Lakshmi Singh Vs St. of Bihar, (1976) 4 SCC
394,

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal assails the judgment
and order dated 26.05.2000 passed by the
IVth Additional District & Sessions Judge,
Mirzapur in Sessions Trial No. 66 of 1997
by which the appellants Sri Kant Pandey
(A1); Ram Kant Pandey (A2); and Amar
Jeet Pandey alias Babboo (A3) have all
been convicted under sections 302 read
with Section 34 I.P.C. and sentenced to
undergo imprisonment for life and fine of
Rs. 5,000/- each with default sentence of
six months rigorous imprisonment.
460 INDIAN LAW REPORTS ALLAHABAD SERIES

INTRODUCTORY
FACTS
INCLUDING
THE
PROSECUTION
CASE

2. The prosecution case as per the first
information report (FIR) (Ex. Ka-1), which
was lodged on 29.01.1997 at 9:30 am at P.S.
Kotwali Dehat, District Mirzapur by Manoj
Kumar Pandey (P.W.1), is to the effect that in
the morning of 29.01.1997, at about 8 am,
while the deceased (Vijay Shyam Pandey),
the uncle of P.W.1, was sitting with P.W.1
near the fireplace to ward off winter chill, the
accused Sri Kant Pandey (A1); Rama Kant
Pandey (A2); and Amar Jeet Pandey (A3)
came with spear (Ballam) in their hands
shouting and exhorting each other to finish
off the deceased Vijay Shyam Pandey as he
had been doing pairvi (pursuing of cases) in
pending court cases. Upon hearing them, the
deceased ran towards the door of his house
but by the time could reach there, all the three
accused surrounded him and stabbed him
with Ballam. P.W.1 (the informant) raised
alarm. On hearing his cries, Radhey Shyam
Pandey (PW.2, the father of the informant
and brother of the deceased); Sanjay Kumar
Pandey (PW.3, another brother of the
deceased); Mool Chand Gaur (not examined);
Kamla (not examined) and others, who were
all not examined, arrived and challenged the
accused, as a result, all three accused escaped
with their respective Ballam. Whereafter, the
deceased was rushed to the District Hospital,
Mirzapur where, upon arrival, the doctor
(P.W.4) declared him dead.

3. The written report (FIR) was
scribed by Surendra Bahadur Singh Yadav
(not examined) on dictation of P.W.1, but
was, allegedly, lodged by P.W.1

4. The inquest was held at the
mortuary of the district hospital. It
commenced at about 11 am and was over
by 12:30 pm. The inquest report (Ex. Ka7), amongst others, is witnessed by PW1
but not by P.W.2 and P.W.3, and the other
inquest witnesses have not been examined
in the trial.

5. The post-mortem examination was
conducted
at
about
3:45
pm,
on
29.01.1997, by Doctor S.P. Singh (P.W.5)
who prepared and proved the post-mortem
report (Ex. Ka.3). According to the autopsy
report, following ante-mortem injuries were
found on the body of the deceased : (i) stab
wound, left side of chest 14cm below and
backward to left nipple, measuring 2cm x
1⁄2 cm x cavity deep; (ii) stab wound 2cm x
1 cm over right side of abdomen 25 cm
below right nipple and cavity deep; (iii)
stab wound over back on right side of
vertebral column, 38 cm below root of neck
measuring 1 1⁄2 cm x 1⁄2 cm x muscle deep;
and (iv) stab wound over right side of thigh
23 cm above knee joint measuring 2 cm x
1⁄2 cm x muscle deep. Margins of stab
wounds were clear.

6. Internal examination revealed that
abdominal aorta was ruptured coinciding
with track of injury no.2. Stomach was
empty though small intestine contained
partially digested food material and gases
whereas large intestine had faecal matter
and gases. According to the opinion of the
doctor, the death was due to haemorrhage
and shock as a result of ante-mortem
injuries.

7. On external examination of the
body, it was observed: "Average built.
Muscular body. Rigor mortis present in
both upper and lower limbs. Face pale eyes
half closed. Putrefaction not set."

8. The time since death was estimated
about one-half day.
11 All. Shri Kant Pandey & Ors. Vs. The State of U.P.
461

9. The investigation was conducted
and completed by Kapil Dev Tripathi
(P.W.7) who, allegedly, recovered the
murder weapon, a blood stained Ballam,
from the spot and prepared its fard
(recovery memo) (Ex. Ka-18). Collected
blood stained earth and plain earth from
the spot, prepared its fard (Ex. Ka 19). The
blood on Ballam and blood stained earth
was sent for chemical examination. The
chemical
report
(Ex. 21)
confirmed
presence of human blood though the
sample was not found fit to determine
blood group. Soil comparison report (
Ex.Ka 22) confirmed that the plain earth
and the blood stained earth had same soil
characteristics. After recording statement
of witnesses, PW7 prepared and submitted
charge sheet (Ex. Ka 20) against all the
three appellants. After taking cognisance
on the police report, the case was
committed to the Court of Session. Upon
committal,
charge
of
an
offence
punishable under Section 302 read with
Section 34 I.P.C. was framed against all
the three accused i.e. appellants. The
accused denied the charges and claimed
for trial.

10. During the course of trial, seven
prosecution witnesses were examined.
PW-1 (Manoj Kumar Pandey-informant);
PW-2 (Radhey Shyam Pandey, father of
the
informant
and
brother
of
the
deceased); and PW-3 (Sanjay Kumar
Pandey, brother of the deceased) were the
eye-witnesses of the incident. PW-4 Dr.
K.K. Jain proved that the deceased was
brought
dead
to
District
Hospital,
Mirzapur
by
Manoj
Kumar
Pandey
(P.W.1) at about 8:35 am in the morning
of 29.01.1997. PW-5 Dr. S.P. Singh, who
conducted the post-mortem, proved the
post-mortem report. PW-6 Suryabhan
Singh, who was posted as Head Moharir at
P.S. Kotwali Dehat on 29.01.1997, proved
the registration of the FIR, the Chik FIR
and the GD entry thereof. He also deposed
that special report of the registration of the
FIR was sent and GD entry of its return
(Ex. Ka 6) was made at 17:25 hours on the
same day. PW-7 Kapil Deo Tripathi, the
then Station House Officer of Kotwali
Dehat, who conducted the investigation,
proved various stages of the investigation
including
the
documents
connected
therewith as also the site plan (Ex. Ka 17).

11. The incriminating circumstances
emanating from the prosecution evidence
were put to the accused under Section 313
Cr.P.C.
The
accused
challenged
the
prosecution evidence as false and claimed
that the incident occurred in the night; the
deceased had several enemies; and that they
have been falsely implicated. The defence,
however, led no evidence.

12. The trial court found the
prosecution evidence reliable and that the
charge was proved beyond reasonable
doubt. Hence, all the three accused were
convicted under Section 302 read with
Section
34
I.P.C.
and
sentenced
accordingly, as already noticed above.

13. We have heard Sri I.K.
Chaturvedi, learned senior counsel, assisted
by Sri Pankaj Dwivedi and Sri Prakash
Dwivedi, for the appellants; Sri Ankit
Srivastava, learned A.G.A. for the State;
and Sri Virendra Kumar Yadav, learned
counsel for the informant.

SUBMISSIONS ON BEHALF OF THE
APPELLANTS

14. Challenging the judgment and
order of the trial court, the learned counsel
for the appellants submitted as follows:-
462 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) That there was no strong
motive for the crime. Initially, the motive
was attributed only to Sri Kant Pandey (A1) as the person who threatened the
deceased to withdraw case against his
master, Prem Sao, but, later, it was
improved to suggest that all the three
accused were interested in the land that was
subject matter of dispute between the
deceased and Prem Sao. No evidence was
led to demonstrate as to how the accused
would get the land by withdrawal of the
case when the land had already been sold to
Prem Sao.

(b) That the incident occurred in
the night, much before the time of the
incident put up by the prosecution, and in
some other manner, which is borne out
from the following circumstances:

(i) The post-mortem of the
deceased was completed by 3:45 pm on
29.01.1997.
As
per
autopsy
report
estimated time since death was one-half
day which is confirmed by presence of
rigor mortis on both upper and lower part
of the body as also by the presence of semidigested food material in the small
intestine; and faecal matter in the large
intestine.

(ii) The body of the deceased was
brought to the hospital at 8:35 am and was
declared already dead by PW.4. The
distance of the hospital from the place of
occurrence is 10 km. As per the testimony
of P.W.1 and P.W.3, the tractor of Panna
Lal Bind was used for carrying the body to
the hospital. Panna Lal Bind, as per the
statement of P.W.1, resided 10-11 km
away. Therefore, if the tractor of Panna Lal
Bind was utilised, it would have taken at
least an hour or about to arrive at the spot
and another 30 to 45 minutes to reach the
hospital. Hence, if the body reached the
hospital by 8.35 am, the murder must have
taken place prior to 7 am in the morning.

(c)
There
is
material
improvement in the prosecution case from
that taken in the first information report
lodged by P.W.1, alleged eyewitness of the
incident. This improvement is contrived
either with a view to hide the truth or to fill
the gap in the prosecution story as a bloodstained Ballam was found by the police.
Whereas as per the FIR all the three
accused came with Ballam in their hands
and after inflicting injuries upon the
deceased escaped with their respective
Ballam.

(d) The ocular evidence of all
three eye-witnesses with regard to the
mode, sequence and manner in which the
three accused inflicted injuries on the
victim is so identical and parrot-like that it
gives an impression that they did not at all
witness the incident but were just spinning
a story to explain the murder of the victim.
Further, presence of PW.2 and PW.3 is
highly doubtful on the spot at the time of
the incident as their presence is neither
reflected in medical papers nor the inquest
report. More over, in cross examination,
PW-1 admitted that his father had built a
Pucca house about two furlongs away.

(e) The external dimensions of
the injuries found on the body of the
deceased were similar so as to suggest that
they could be from one weapon. This
probability
gets
fortified
from
the
circumstance that the Ballam allegedly
recovered from the spot had blood stain up
to a length of five hand-span when,
otherwise, none of the injuries was through
and through the body. Blood to this extent
could be found only if the Ballam was used
multiple times to inflict deep injuries or the
Ballam was kept in an upright position
resulting in dripping of blood from the top.
But since the Ballam was found lying on
the ground, possibility of over implication,
out of enmity, is hightly probable.
11 All. Shri Kant Pandey & Ors. Vs. The State of U.P.
463

(f) The investigation of the case
has not been fair as, firstly, the recovery of
the Ballam from the spot appears contrived;
secondly, it was tampered so much so that
the pointed metallic portion of the Ballam
was dismembered from the stick portion
and only the metallic portion was kept and
sealed; and, thirdly, the finger prints
available on the Ballam, if any, were
neither
lifted
nor
sent
for
forensic
examination to ascertain whether Ballam
found on the spot was used by the accused
Sri Kant Pandey. The recovery of the
Ballam from the spot appears doubtful,
because it was shown lying next to the
place where the deceased was assaulted
whereas in the FIR it was stated that all the
accused had escaped with their Ballam. The
error, if at all, in the FIR cannot be
inadvertent as the Ballam was lying on the
spot. Whereas, the Ballam had blood up to
a length of five hand-span which is much
more than the depth of human body. More
so, when none of the injuries was through
and through. This clearly suggests that
Ballam was hidden some where in an
upright position letting the blood drip
across its length. But when it was found,
the
prosecution
story
improved
in
conspiracy with the I.O. to save the guilty.

(g) The deceased had no issue.
His wife had left him, probably, after legal
proceeding. On his death, his property
came to the informant's side. Further, the
deceased was made accused in a murder
case and suggestion was put to P.W.2 that
he had evil eye on other persons' wife
therefore his own wife had left him. All of
which suggest that the deceased had several
enemies. That apart, suggestion was given
to P.W.2 and P.W.3 that they got him
murdered to grab his property. Thus, there
was strong motive for the informant side to
spin a false story not only to save their own
skin but also to implicate the appellants
who were allegedly eyeing the land for
which the informant side had been
litigating.

15. In a nutshell, the submission of
the learned counsel for the appellants is that
the deceased was killed in the night hours
either by persons with whom he had enmity
or by his own family comprising his
brothers
and
nephew
which
gets
probabilized by discovery of the murder
weapon in the house and to save their own
skin, the informant side, with the help of
the police, developed a case that the
appellants committed murder. This theory
gets credence from the circumstance that
when the police discovered the murder
weapon in the house, the case was
improved to show that the appellant no.1
had left the murder weapon while fleeing.
This theory gets further support from the
circumstance that the police to help the
informant side, dismembered the murder
weapon into two parts. The stick portion,
which could have carried finger prints, was
not kept, whereas the metallic portion was
kept as a material exhibit, and, deliberately,
finger prints available on the stick portion
of the Ballam, allegedly left by Sri Kant
Pandey, were not lifted and compared with
those of the accused.

16. In addition to above, it was
submitted on behalf of the appellants that
absence of injury on any of the prosecution
witnesses of fact, against whom the motive,
if any, was equally strong, being rival
claimants to the land, suggests that they
were either not present on the spot or they
are hiding the truth. Further, there is no
recovery of either blood stained clothes or
the murder weapon or any incriminating
material on the pointing out, or from the
possession, of the appellants. Thus, there is
no corroboration to the prosecution case
464 INDIAN LAW REPORTS ALLAHABAD SERIES
which
flows
from
highly
interested
witnesses. Lastly, it was urged, the
prosecution
produced
no
independent
witness of the incident though, as per
allegation, witnesses had arrived upon
hearing the cries. All this leaves a ring of
doubt around the prosecution case thereby
entitling the accused-appellants the benefit
of doubt.

SUBMISSIONS ON BEHALF OF THE
PROSECUTION

17. Per contra, the learned A.G.A. and
the learned counsel for the informant
submitted that the motive for the crime has
been proved. Even if the motive was not so
strong, that cannot be a ground to acquit the
accused against whom the guilt has been
established by cogent and reliable ocular
evidence which stood the test of cross
examination and is not in conflict with,
rather corroborated by, medical evidence .
The doctor (PW-5), who conducted postmortem examination had clearly suggested
that death could have taken place within 12
hours, which suggests that the incident
could have occurred at the time put by the
prosecution. Nothing much turns on the use
of Tractor of Panna Lal Bind to carry the
deceased to the hospital because no
question was put to the prosecution
witnesses as to whether the tractor of Panna
Lal had to be called or it was already
available. On the issue that the ocular
evidence was not specific with regard to the
exact role of each of the three accused, it
was submitted that absence of such
particulars
would
not
discredit
the
testimony, particularly, when it is deposed
that all the accused came armed with
Ballams and, after exhorting each other,
surrounded the victim, inflicted fatal
injuries, thereby exhibiting a common
intention to finish off the victim. On the
issue of improvement in the prosecution
case from that taken in the FIR, it was
contended that omission in the FIR was
explained by PW-1 by stating that while
dictating
the
FIR
he
may
have
inadvertently missed out mentioning that
fact. Moreover, that omission was corrected
at the earliest opportunity, that is while
recording statement under section 161
CrPC. Hence, non mention in the FIR that
one of the accused persons left the murder
weapon while fleeing is inconsequential. It
was
submitted
that
the
prosecution
evidence is reliable and is corroborated by
medical evidence, therefore the trial court
rightly held that the prosecution was
successful in proving the guilt of all the
three accused beyond the pale of doubt.
Hence, the appeal is liable to be dismissed.

18.

Having
noticed
the
rival
submissions and having perused the record,
before we proceed to test and analyse the
submissions against the weight of evidence
on record, it would be apposite to find out
whether the eyewitnesses fall in the
category of interested witnesses. If so, then
what precautions are to be taken while
appreciating and evaluating their testimony.

WHETHER THE WITNESSES OF
FACT FALL IN THE CATEGORY OF
INTERESTED WITNESS

19. In this regard it be noticed that
PW1 is nephew of the deceased. PW2 is
father of PW1 and brother of the deceased;
and PW3 is the brother of the deceased.
Except these three witnesses no other
witness of fact has been examined. As per
the prosecution case, victim's family
including the above three witnesses and the
three accused, who are real brothers, come
from a common ancestor. One Shitla
Prasad, coming from that ancestry, sold
11 All. Shri Kant Pandey & Ors. Vs. The State of U.P.
465
ancestral land to one Prem Sao. Accused
Sri
Kant
Pandey
(A-1)
was
under
employment of Prem Sao. It is the case of
the prosecution that the sale made by
Sheetla Prasad in favour of Prem Sao was
challenged by the victim's family including
the three witnesses in civil court. In that
case, arguments were heard a day before
the incident. Pairvi on behalf of victim's
family, in that case, was being done by the
deceased. According to the prosecution, as
taken in the FIR, accused Sri Kant Pandey
(A-1), as an employee of Prem Sao, was
threatening the deceased to withdraw the
case. Later, to attribute motive to all the
three accused, the prosecution case was
improved to suggest that all the three
accused were interested in that land as it
was appurtenant to their house. Thus,
viewed from any angle, the three eye
witnesses are not only related to the
deceased
but
also
interested
in
the
conviction of the accused persons as they
perceive that the accused had an eye over
the land for which they had been litigating
with Prem Sao. Hence, in our view, the
three eye-witnesses fall in the category of
an interested witness.

LAW WITH REGARD TO
EVALUATION OF TESTIMONY
RENDERED BY AN INTERESTED
WITNESS.

20. In Hari Obula Reddy v. State of
A.P., (1981) 3 SCC 675, a three-judge
Bench of the apex court, with regard to the
care and caution with which the testimony
of an interested witness is to be appreciated
and assessed, in paragraph 13 of the
judgment, as reported, had observed as
follows:

".............. 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. Although in the
matter of appreciation of evidence, no hard
and fast rule can be laid down, yet, in most
cases, in evaluating the evidence of an
interested or even a partisan witness, it is
useful as a first step to focus attention on
the question, whether the presence of the
witness at the scene of the crime at the
material time was probable. If so, whether
the substratum of the story narrated by the
witness, being consistent with the other
evidence on record, the natural course of
human
events,
the
surrounding
circumstances and inherent probabilities of
the case, is such which will carry
conviction with a prudent person. If the
answer to these questions be in the
affirmative, and the evidence of the witness
appears to the court to be almost flawless,
and free from suspicion, it may accept it,
without seeking corroboration from any
other source. Since perfection in this
imperfect world is seldom to be found, and
the evidence of a witness, more so of an
interested witness, is generally fringed with
embellishment and exaggerations, however
true in the main, the court may look for
some assurance, the nature and extent of
which
will
vary
according
to
the
circumstances of the particular case, from
466 INDIAN LAW REPORTS ALLAHABAD SERIES
independent evidence, circumstantial or
direct, before finding the accused guilty on
the basis of his interested testimony. We
may again emphasise that these are only
broad guidelines which may often be useful
in assessing interested testimony, and are
not iron-cased rules uniformly applicable
in all situations." Emphasis Supplied

21. In Jalpat Rai v. State of Haryana,
(2011) 14 SCC 208, after reiterating the
general principles as noticed above, in
paragraph 42 of the judgment, as reported,
the apex court cautioned the courts of the
stark reality that where there is rivalry,
hostility and enmity there is a tendency to
over implicate and distort the true version
against the person(s) with whom there is
rivalry, hostility and enmity. In that
context, it was observed as follows:

"42.......................... But it is a
reality of life, albeit unfortunate and sad,
that human failing tends to exaggerate,
over implicate and distort the true version
against the person(s) with whom there is
rivalry, hostility and enmity. Cases are not
unknown where an entire family is roped in
due to enmity and simmering feelings
although one or only few members of that
family may be involved in the crime.

22. Prior to that, in paragraph 41 of
the judgment, with regard to the mode to be
adopted by the court to assess the worth of
the testimony of interested witnesses, it was
observed:

"41................To
find out
the
intrinsic worth of these witnesses, it is
appropriate to test their trustworthiness
and credibility in light of the collateral and
surrounding circumstances as well as the
probabilities and in conjunction with all
other facts brought out on record."

23. Thus, the law is clear that though
testimony of an interested witness can
alone form the basis of conviction but
before acting on it the court must carefully
test whether it is free from suspicion,
embellishment
and
exaggeration
and
whether the substratum of the story
narrated by the witness is such which is
consistent with the other evidence on
record, the natural course of human events,
the surrounding circumstances and inherent
probabilities of the case so that it carries
conviction with a prudent person.

EVIDENCE LED BY THE
PROSECUTION

24. Now, we shall proceed to notice
the evidence brought on record by the
prosecution. For the sake of convenience
and better understanding of the case, the
evidence led by prosecution is being split
into multiple parts. First part is in respect of
the relationship, status and place of living
of the accused and the witnesses of fact
including the location of the place from
where blood stained soil and blood stained
Ballam was recovered. Second part is with
regard to the motive for the crime. Third
part is in respect of the incident including
the sequence of events, pre and post the
incident. Fourth is the medical evidence in
respect of the ante mortem injuries and the
approximate time of death.

Evidence in respect of the relationship,
status and place of living of the accused
and the witnesses of fact including the
location of the place from where blood
stained soil and blood stained Ballam
was recovered.

25. The evidence led in respect of
relationship, status and place of living of
the accused and the witnesses of fact would
11 All. Shri Kant Pandey & Ors. Vs. The State of U.P.
467
go to show that the victim and the accused
had common ancestry. As per the site plan
(Ex. Ka 17), prepared and proved by the
I.O., the accused, the deceased and the
witnesses had their place of residence in
close proximity with each other. The
deceased and his brothers' house block is
shown towards north with three rooms and
multiple exit points, opening in different
directions, suggestive of separate exit
points for the inmates of the house. The
house of the accused lies separately
towards south of the house of the deceased
and his brothers. The house of one of the
Pattidars, namely, Sheetla Prasad, lies
south to the house of the victim and
towards west of the house of the accused.
The fire place where the deceased was
allegedly sitting with PW1 is on extreme
north at about 14-15 paces from the
northern door of the deceased's house.
Blood stained earth, where the deceased
was allegedly assaulted, is towards north,
next to the door of deceased's house, and
just by its side is the place where the
Ballam, allegedly, left by accused Sri Kant
Pandey (A-1), was found.

26. In paragraph 8 of his cross
examination, PW1 admitted that his father
had two pucca quarters built near the road
which were at a distance of two furlongs
from the place of occurrence but at the time
of the incident those quarters had no
electricity supply.

27. As regards their status, all the
three eye-witnesses examined by the
prosecution are literate. PW1 is B.A. 1st
year
student
with
Political
Science,
Sociology and Ancient History as his
subjects (vide paragraph 6 of his statement
recorded on 10.11.1998). PW2, who is
father of PW1, is a teacher in an Inter
College; whereas, PW3 is a student
appearing
privately
for
intermediate
examination (vide statement of PW3 made
during
his
cross
examination
on
22.4.1999). Interestingly, according to
PW2 (vide paragraph 15 of his crossexamination), the deceased was least
literate. He had been educated upto class 2
or 3 but could sign. It has come in the
evidence that though the deceased was
married but his wife had left him after court
proceedings and he was single with no
issues. It has also come in the evidence that
on his death, his property had come to the
informant's family.

28. With regard to the antecedents of
the deceased, it has come in the evidence
that he had been implicated in a murder
case. As regards the antecedents of the
accused nothing much has come though it
has come that they are all married with
family.

Evidence in respect of motive for the
crime

29. In respect of motive for the crime,
in the FIR the motive shown is that a
Pattidar of the victim's family, namely,
Sheetla Prasad Pandey, had sold his land to
one Prem Sao for whom Sri Kant Pandey
(A-1) was working. The victim's family had
questioned that sale in court in connection
with which, on behalf of informant's side,
the deceased was doing pairvi. In that
proceedings, a day before the incident,
arguments were heard. It has been alleged
that Sri Kant Pandey (A-1) had threatened
the victim not to do pairvi and to withdraw
the case. Thus, in the FIR motive was
limited to accused Sri Kant Pandey (A-1).
Later, there was improvement. According
to which, the accused were Pattidars of the
informant side. Another Pattidar, Sheetla
Prasad Pandey, while leaving the village,
468 INDIAN LAW REPORTS ALLAHABAD SERIES
sold his house with appurtenant land to
Prem Sao. Victim's family (informant side)
had interest in that land, as a result, they
challenged the sale in court. The land fell
towards south of informant's house and
towards west of accused persons' house.
Therefore, all the accused were themselves
interested in that land. And Sri Kant
Pandey was putting pressure upon the
deceased to withdraw the case.

30. However, no evidence was led to
show as to how the accused persons would
get that land by killing the victim. Further,
there is no evidence that on any previous
date
or
otherwise
any
incident
of
altercation or fight, on any issue, occurred
between the accused and the victim which
may have driven them to take a decision to
finish off the deceased in the manner in
which he was.

Evidence in respect of the incident
including the sequence of events pre and
post the incident

31. PW1 (Manoj Kumar Pandey)
(the informant) in his testimony has
deposed that, in the morning, when he
woke up, he found the deceased sitting next
to the fire-place located about 14 paces
away from the door of the house of the
deceased.
After
easing
himself
i.e.
attending nature's call, he joined the
deceased. At about 8 am, the accused
persons (A1, A2 and A3), each armed with
Ballam (spear), arrived exhorting each
other to finish off the deceased as he was
taking too much interest in the litigation.
Upon hearing their shouts, the deceased
stood up and ran, about 14 paces, towards
the door of his house but was surrounded
by all the three accused who assaulted him
with Ballams, as a result, the deceased fell
on the spot. On the alarm raised by PW.1,
PW-2 and P.W3 including Mool Chand and
Kamla Gaur, amongst others, arrived. They
challenged the accused. The accused
persons got worried and escaped. However,
while escaping, accused Sri Kant Pandey
(A1), dropped his Ballam. Immediately,
thereafter, P.W.1 and others took the
deceased to the hospital on a tractor of
Panna Lal Bind, who resides 10-11 km
away. It took them 30 to 45 minutes to
reach the hospital. There, at the hospital,
the doctor declared the deceased dead.
After the deceased was declared dead, PW1
stayed at the hospital for about one-half
hour and during that period he dictated the
first
information
report
to
Surendra
Bahadur (not examined); thereafter, he took
the report and lodged it at the police
station. He stated that his father (PW2) had
accompanied him to the hospital but did not
accompany him to the police station. At the
police station, the investigating officer
(I.O.)
recorded
his
statement
and,
thereafter, the I.O. took him to the place of
occurrence. He showed the place of
occurrence to the I.O. The I.O. left two
police officers there and from there he,
along with the I.O., went to the hospital. At
the hospital, inquest proceedings were held.

In
his
cross-examination,at
paragraph 21, P.W.1 stated that when he
went to the spot with the I.O. he had shown
the Ballam to the I.O. The I.O. took that
Ballam in his possession and, thereafter, he
and the I.O. went to the Hospital where
inquest was conducted and statements of
PW2 and PW3 were recorded.

In respect of the place from
where he watched the incident, PW1 stated
that he witnessed the incident sitting next to
the fire-place. When question was put to
him as to why he himself did not escape
seeing the accused coming and exhorting
each other, he stated in paragraph 16 of his
11 All. Shri Kant Pandey & Ors. Vs. The State of U.P.
469
cross-examination that there was no reason
for him to run. On question whether he
made effort to save the deceased, he stated
that he made no effort because he was
alone and the accused were three. He could
not tell whose blow hit first or who hit
where and as to how the accused were
locationally positioned qua the deceased.
He just stated that all the three accused
exhorted each other to finish off the
deceased, thereafter, they surrounded the
deceased and inflicted multiple blows.
Some of the blows landed on the wall of
the house though he could not tell whose
blow landed on the wall. Interestingly, in
paragraph 17 of his cross-examination, he
stated that the accused had assaulted the
deceased for about 5-6 minutes.

Upon a specific question as to
why he did not mention in the report that
Sri Kant Pandey (A-1) had left his Ballam,
he stated that he might have missed out,
inadvertently, due to panic, while dictating
the report. He refuted the suggestion that
the incident was of night; perpetrated by
unknown person; that he had not witnessed
the incident; and that false story has been
spun to implicate the accused. He also
refuted the suggestion that PW2 and PW3
were not on spot. In his cross-examination,
however, PW1 admitted that on death of
Vijay Shyam (the deceased), his property,
comprising house and 2-4 Bigha land, came
to his family.

32. PW2 (Radhey Shyam Pandey)
and PW3 (Sanjay Kumar Pandey) both
deposed that when they heard cries of PW1
they came out, witnessed the incident and
challenged the accused upon which they ran
away. While they were running away, Sri
Kant Pandey (A-1) dropped his Ballam
whereas the other two accused ran away with
their Ballam. These two witnesses state that
they along with PW1 took the deceased to the
Hospital on a tractor where the doctor
declared him dead.

In his cross examination PW2
stated that the tractor used for going to the
hospital was of Surendra Bahadur whereas
PW3 stated that the tractor was of Panna Lal
Bind.

In respect of his location at the time
of hearing the cries of PW1, PW2 stated that
he was at the Dallan of his own house which
is at a distance of about 20-22 paces from the
house of the accused. He also stated that the
house of the accused could easily be seen
from that spot. He stated that from the outer
portion of his house, the accused could be
noticed if they move out of their house.
However, on the date of the incident, he
didn't see them coming but did hear faint
noises of their exhorting each other to finish
off the deceased and soon thereafter he heard
cries of his son upon which he came out but
had nothing for defence. He could not tell as
to which accused was in the front and who
was at the back as also who was on which
side of the deceased. He could not tell as to
who hit the deceased where.

PW2 stated that he was with PW1
at the hospital but as PW1 was going to
lodge the report he remained at the hospital
though he was not part of the inquest which
took place at the hospital. He refuted the
suggestion with regard to the false
implication of the accused as also that he
was not present at the spot as well as at the
hospital therefore he was neither a witness
to the inquest nor had gone to lodge the
report.

Similar is the statement of PW3
who also, allegedly, came out with PW2 at
the spot upon hearing the cries. He too
could not tell which accused was where and
who inflicted what injury and where.

Defence suggestion to PW2,
inter-alia, was that the deceased was a
470 INDIAN LAW REPORTS ALLAHABAD SERIES
person with criminal antecedents, had been
involved in murder of Kajhanchi Kunbi;
that he used to have evil eye on other
women therefore his own wife had left him;
and that he had an evil eye on the wife of
PW3. It was also suggested that they
(informant's side) had themselves finished
him off in the night to grab his property as
he had no other heir.

The suggestion that the informant
side had planned his murder to grab his
property was denied but the suggestion that
the deceased was implicated in a murder
case and that his wife had left him was not
denied.

Similar suggestion was given to
PW3. Apart from that, though he denied, it
was suggested to him that the accused were
falsely implicated to ensure that they are
forced to flee so that their entire land in the
village could be grabbed.

33. PW4 (Dr. K.K. Jain) deposed that
at about 8.35 am PW1 had brought body of
the deceased to the hospital. He kept the
body at the mortuary and sent report (Ex
Ka 2), in respect of receiving a dead body
with injuries, to police station Kotwali
City. Ex Ka 2, the report sent by PW4, is an
information that a dead person (description
given) with injuries was brought to the
hospital by Manoj Kumar Pandey (PW1).

34. P.W.6 (Surya Bhan Singh)
deposed that he was the Head Clerk at P.S.
Kotwali Dehat (where the FIR was lodged)
and was posted as such on 29.01.1997
when the first information report was
lodged. He stated that on his instruction,
Chik FIR was prepared by Assistant,
Munna
Ram
(not
examined),
whose
signature he recognises. Thereafter, GD
entry of the report was made by him in his
own hand and signature as Entry No. 11 at
9.30 am on 29.01.1997. He stated that
special report was prepared by him and
dispatched within one hour. Its return was
entered by him on the same day as Entry
No. 23 at 15:25 hours.

In
his
cross-examination,
he
specifically stated that the informant
arrived at the police station at 9.30 am and,
at that time, when he had prepared the GD
entry of the report, the I.O. was present.
Immediately after making entry of the
report, he handed over copy of the Chik
FIR, copy of the report and other papers to
the I.O. Whereafter, the I.O., after taking
the papers, left the police station with a
Sub-Inspector, four constables and homeguard for the Sadar Hospital and the place
of occurrence of which time, entered in the
G.D. entry, is 9.30. am. He stated that the
return of the I.O. on the same day is not
entered in the GD.