# The State of U.P v. Brij Raj Singh & Ors

- **Citation:** (2022) 6 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** Government Appeal No. 1880 of 1984
- **Bench:** Om Prakash-Vii, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-brij-raj-singh-ors-48844
- **Pages:** 21

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 372 - Indian
Penal Code, 1860-Sections 302/149, 148
& 307/149 - Challenge to-Acquittal-the
occurrence is of day light-all the accused
persons were present on the spot having
firearms
in
their
hand-they
have
committed the offence in furtherance of
common object of wrongful assembly-no
contradiction in the prosecution evidenceMere rivalry in gram panchayat election is
not
sufficient
cause
to
commit
the
offence-Trial court wrongly appreciated
the
evidence
holding
the
accused
respondents not guilty for committing the
murder of the deceased.(Para 1 to 62)

B. The motive may be considered as a
circumstance
which
is
relevant
for
assessing the evidence but if the evidence
is
clear
and
unambiguous
and
the
circumstances prove the guilt of the
accused, the same is not weakened even if
the motive is not a very strong one. It is
also settled law that the motive loses all
its importance in a case where direct
evidence of eyewitnesses is available.
(Para 47 to 49)

The appeal is allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,847 of 70,632. This is a partial read: ask again with offset=39847 for what follows._

6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
71

12. Considering the facts and
circumstances of the case and law settled
by Hon'ble Apex Court, the compensation
awarded by the Claims Tribunal is
reassessed as follows :-

1. Monthly Income : Rs. 7,000/-

2. Annual Income : Rs. 7,000//- x 12
= Rs. 84,000/-

3. Future prospects (30%)
 =
Rs.
25,200/-

4. Total annual income
:
Rs.
84,000/- + Rs. 25,200/- = Rs. 1,09,200/-

5. Deduction towards

personal expenses (1/4th)
 :
Rs.
1,09,200/- - Rs. 27,300/- = Rs. 81,900/-

6. Multiplier applicable (14) :
Rs.
81,900/- x 14= Rs. 11,46,600/-

7. Non-pecuniary damages :
Rs.
70,000/-

Total : Rs. 11,46,600/- + Rs. 70,000/-
= Rs. 12,16,600/-

13. The Appeal is hereby partly
allowed and award of the Claims Tribunal
is modified and compensation awarded by
the Claims Tribunal is enhanced from Rs.
Rs. 65,000/- to Rs. 12,16,600/-. The
claimants-appellants are also entitled for
interest at the rate of 7% on the enhanced
amount from the date of filing claim
petition.
The
respondent-Insurance
Company is directed to pay enhanced
amount a well as interest to the claimants
within two months from today.

14. No order as to costs.
----------
(2022)06ILR A71
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2022

BEFORE

THE HON'BLE OM PRAKASH-VII, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Government Appeal No. 1880 of 1984

The State of U.P. ...Appellant
Versus
Brij Raj Singh & Ors. ...Respondents

Counsel for the Petitioner:
A.G.A.

Counsel for the Respondents:
Ma, Sri Kuldeep Johri

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 372 - Indian
Penal Code, 1860-Sections 302/149, 148
& 307/149 - Challenge to-Acquittal-the
occurrence is of day light-all the accused
persons were present on the spot having
firearms
in
their
hand-they
have
committed the offence in furtherance of
common object of wrongful assembly-no
contradiction in the prosecution evidenceMere rivalry in gram panchayat election is
not
sufficient
cause
to
commit
the
offence-Trial court wrongly appreciated
the
evidence
holding
the
accused
respondents not guilty for committing the
murder of the deceased.(Para 1 to 62)

B. The motive may be considered as a
circumstance
which
is
relevant
for
assessing the evidence but if the evidence
is
clear
and
unambiguous
and
the
circumstances prove the guilt of the
accused, the same is not weakened even if
the motive is not a very strong one. It is
also settled law that the motive loses all
its importance in a case where direct
evidence of eyewitnesses is available.
(Para 47 to 49)

The appeal is allowed. (E-6)
List of Cases cited:

1. Surjit Singh @ Gurmit Singh Vs St. of Punj.
(1993) Supp 1 SCC 208
72 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Majju & anr. Vs St. of M.P. (2002) SCC Cri.
597

3. Prithvi (Minor) Vs Mam Raj & ors. (2004) 13
SCC 279

4. Kathi Bharat Vajsur & anr. Vs St. of Guj.
(2012) AIR SC 2163

5. Yogesh Singh Vs Mahabeer Singh & ors.
(2016) AIR SC 5160

6. St. of U.P. Vs Jagdeo & ors. (2003) 1 SCC
456

7. Munigadappa Meenaiah Vs St. of A.P. (2008)
11 SCC 661

8. Brahma Swarup & ors. Vs St. of U.P. (2004)
2 JIC 827 All

9. Hardev Singh & ors. Vs Harbhej Singh & ors.
(1996) 4 Crimes 216 SC

10. St. of U.P. Vs Naresh & ors. (2011) ACR
370

11. St. of Raj. Vs Bhawani & anr. (2003) 7 SCC
291

12. Amar Singh Vs Balwinder Singh & ors.
(2003) 46 ACC 619

13. Munshi Prasad & ors. Vs St. of Bih. (2002)
SCC Cri. 175

14. Gopal Singh Vs St. of U.K. (2013) 7 SCC
545

15. Rohtash Kumar Vs St. of Har., CRLA No.
896 of 2011

16. Bipin Kuamr Mondal Vs St. of W.B. (2010)
12 SCC 91

17. Uma Shankar Vs St. of U.P. (2015) 89 ACC 421

18. Kaki Ramesh & ors. Vs St. of A.P. (1994)
SCC Cri 1214

19. Subodh Nath & anr, Vs St. of Tripura
(2013) 4 SCC 122
20. Marwadi Kishor Parmanand & anr. Vs St. of
Guj. (1994) 4 SCC 549

21. Hayat Singh Bora Vs St. of U.K. (2012) 77
ACC 615

22. St. of U.P. Vs Shane Haidar & ors. (2015) 1
J.Cr.C. 775

23. Hardev Singh Vs Harbhej Singh & ors.
(1996) 4 Crimes 216

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. The instant Government Appeal has
been filed against the judgment and order dated
09.03.1984 passed by the Additional Sessions
Judge, Bareilly in S.T. No. 67 of 1993, Case
Crime No. 114 of 1982, State of U.P. Vs. Braj
Raj Singh and Others, under Sections 147/ 148/
149/ 302/ 307 IPC whereby the learned Trial
Court acquitted the accused persons from the
charges of offence defined under Sections
302/149, 148, 307/149 IPC.

2. The record indicates that the accused
Braj Raj Singh, Kandhari Singh and Master
Singh have died during the pendency of
instant appeal and the appeal has been abated
for above accused respondents. At present
accused-respondents Ram Chandra Singh and
Omkar Singh are surviving. Hence, we are
proceeding to consider the Governement
Appeal in respect of the said accused
respondents, namely, Ram Chandra Singh
and Omkar Singh.

3. In brief, the facts of the case are
that the informant Phoolan Singh S/o
Malkhan Singh lodged the FIR under
Section 147, 148, 149, 307 and 302 IPC
against the accused persons Braj Raj Singh,
Kandhari Singh, Omkar Singh, Ram
Chandra Singh and Master Singh with the
contention that accused Braj Raj Singh had
6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
73
taken some loan from the Lala Ram Awtar,
which could not be repaid, consequently
the land of Braj Raj Singh got auctioned in
lieu of loan amount. The brother of
informant Buddha Singh took part in
auction proceedings and was successful
bidder. He paid Rs. 8,000/- as auctioned
money but due to subsequent litigation
Buddha Singh could not get possession
over the property auctioned. Since Buddha
Singh had purchased the aforesaid land of
Braj Raj Singh in auction, therefore, Braj
Raj Singh and his family members were
feeling enmity with Buddha Singh. On
29.10.1982
at
about
3.00
p.m.
the
informant alongwith his brother Buddha
Singh was going with his animals towards
pond for providing them bath, as they
reached near the hut (Mandvi/Chhappar) of
accused Master Singh, the accused persons
who were carrying the guns in their hand
came out from inside the hut of Master
Singh. Accused Braj Raj Singh exhorted
them to kill. As the informant and Buddha
Singh saw and felt intention of the armed
accused persons and heard the voice of
exhortation they ran towards north east by
raising alarm to save their life. After
running some distance informant and
Buddha Singh for taking shelter, entered
into the house of Phoolan Singh S/o
Lakhan Singh and tried to close the door.
At same time all the accused persons, who
were chasing them reached there and
opened fire on informant and Buddha
Singh with intention to kill. The brother of
the informant fell down by receiving the
fire arm injuries, informant also received
the pellet injuries on his body. At that time
witnesses Phoolan Singh S/o Lakhan
Singh, Bheekam Singh, Balbir Singh,
Hardwari Singh, Indar Pal Singh and Badri
Singh and other villagers reached on the
spot. Having seen them, the accused
persons fled away towards north. While
causing
the
attack,
accused
persons
Kandhari Singh and Ram Chandra Singh
were carrying their licensee guns and Braj
Raj Singh, Omkar Singh and Master Singh
were carrying single barrel guns in their
hands. Buddha Singh had died on the spot.
Accordingly, the FIR of the occurrence was
lodged under Crime No. 114 of 1982
against aforesaid accused persons at Police
Station Bhuta.

4. The investigation was entrusted to
S.I., Pooran Singh, who reached on spot
prepared the inquest report, sent the body
of the deceased for post mortem, sketched
the spot map, recorded statement of
witnesses, prepared the recovery memo of
empty cartridge, pellets and bamboo stick.
After
completing
investigation,
the
Investigating Officer submitted charge
sheet against accused persons in Court
concerned.

5. The trial of the case was committed
to Court of Sessions, where the charges
under Sections 148, 302 read with Section
149 and 307 read with Section 149 IPC
were framed against the accused persons,
who denied and abjured the charges,
claimed not guilty and preferred trial.

6. On behalf of the prosecution
informant Phoolan Singh S/o Malkhan
Singh as P.W. 1, Indra Pal Singh as P.W. 2,
Phoolan Singh S/o Lakhan Singh as P.W. 3,
Soran Singh as P.W. 4 and Jawahar Lal as
P.W. 5 recorded their statements as
witnesss.

7. P.W. 1 Phoolan Singh S/o Malkhan
Singh in his oral testimony narrated almost
the same fact, as mentioned in the FIR. He
deposed that Buddha Singh had purchased
the land of Braj Raj Singh in auction, due
to the said reason the accused Braj Raj
74 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh and his family members were
enimical with Buddha Singh and in
furtherance of the aforesaid enmity, on
29.10.1982 when he and his brother
Buddha Singh were going towards pond
with their animals, armed accused persons,
who were present in the hut (Mandvi /
Chhappar) of accused Master Singh seeing
them (victims) came out with exhortation
and threat to kill. Having seen their gesture
and smelling danger, the informant and
Buddha Singh ran towards north and east to
save their lives. They took shelter in the
house of Phoolan Singh, at the same time
the accused persons, who were chasing
them, rached at the door of house of
Phoolan Singh S/o Lakhan Singh and
opened
fire
on
Buddha
Singh
and
informant when they were trying to hide
themselves. After receiving the fire arm
injuries, Buddha Singh fell down and died
on the spot, whereas informant received
injuries of pellets on his body. When the
witnesses and other village persons reached
on the spot, the accused persons escaped.
He lodged the FIR in Police Station
concerned and undergone the treatment of
their injuries after medical examination.

8. P.W. 2 -Indra Pal Singh, who is the
S/o informant's brother stated in his oral
statement that informant and Buddha Singh
were going towards pond with their
animals, on the way they had seen that the
armed accused persons came out from the
hut (Mandvi / Chhappar) of accused Master
Singh and exhorted and extended threat to
kill Buddha Singh. Hearing the exhortation,
feeling the danger the informant and
deceased turned back and ran away from
the spot. The accused persons started
chasing them. Having seen the above
activities, the witness also followed them.
The informant and deceased entered inside
the open house of Phoolan Singh S/o
Lakhan Singh and to save their lives, they
tried to close the door of house, but all the
accused persons, who had reached there,
opened fire indiscriminately. In the firing of
accused persons informant and Buddha
Singh received fire-arm injuries. Buddha
Singh died on the spot. The witness also
stated that the occurrence took place due to
enimity
because
the
deceased
had
purchased the land of Braj Raj Singh in
auction.

9. Wintess Phoolan Singh S/o Lakhan
Singh deposed as P.W. 3. He did not
support the prosecution case. Consequently,
he had been declared as hostile witness.
Although in his examination- in- chief he
stated that on the date of occurrence at
about 03-04 p.m., the informant and his
brother Buddha Singh entered into his
house raising voice for help and in his
house they received the fire arm injuries,
but who had opened the fire, he could not
see.

10. P.W. 4 Soran Singh and P.W. 5
Jawahar Lal, as formal witnesses, have
proved the investigation proceedings.

11. Since the accused persons had
accepted
genuineness
of
medical
examination report of informant Phoolan
Singh and post mortem report of deceased
Buddha Singh, the doctors had not been
produced by the prosecution.

12. In their statement under Section
313 Cr.P.C., the accused persons, except the
accused Master Singh (since died), had
accepted that the deceased Buddha Singh
had purchased the land of Braj Raj Singh in
auction. All the accused persons stated that
the facts and allegations of prosecution are
false and concocted. They are innocent and
they have been roped in the case due to the
6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
75
reason of previous enmity and village party
bandi.

13. Learned trial Court after hearing
the arguments of rival parties acquitted the
accused persons from the charges of
offences defined under Sections 147, 148,
149, 302 and 307 IPC, which has been
assailed by the prosecution by way of
instant appeal.

14. We have heard the arguments of
learned AGA as well as learned counsel for
the accused respondents and perused the
record carefully.

15. Learned AGA argued that
judgment
and
order
of
acquittal
is
misconceived and bad in the eye of law.
The impugned judgment and order passed
by the Trial Court is against the provisions
of law and same is based on conjectures
and surmises. Prosecution had succeeded to
prove its case beyond any shadow of doubt
against the accused persons but the trial
Court failed to appreciate the evidence
available on record in right perspective. To
substantiate his arguments, learned AGA
referred the evidence of P.W. 1 and P.W. 2,
who were eye witnesses of occurrence, and
submitted that P.W. 1 is injured witness.
The statement of eye witnesses is supported
with medical evidence. The findings
recorded by the Trial Court in the
impugned judgment and order are perverse
and same are liable to be set aside and the
appeal deserves to be allowed.

16. In reply, learned counsel for the
accuesed respondents vehemently opposed
the arguments of learned AGA. Learned
counsel for the respondents submitted that
the deceased had been attacked by some
unknown persons, who were interested in
the lady, namely, Dhandei. She was living
with deceased Buddha Singh illicitely who
had enticed her. The prosecution story is
false and baseless. There is no existance of
hut (Chhappar/ Mandvi) of accused Master
Singh (since died) in the village nor
accused persons were present in the hut of
accused Master Singh (since died). The
alleged pond, where deceased as well as the
informant were going with their animals,
was dried and also was too far from the
residence of victims. The accused persons
are innocent. They have not committed any
offence, rather they have been falsely
implicated in the case by the informant due
to enmity and village party bandi. The FIR
was ante timed. Motive of offence has not
been proved. The prosecution witnesses
had
given
false
statements.
The
investigation was defective and biased. The
prosecution failed to prove its case against
accused persons beyond reasonable doubt.
Findings recorded by the trial court in the
impugned judgment and order are in
accordance with facts, evidence and law.
The appeal has no force and is liable to be
dismissed.

17. Before proceeding to discuss the
submissions raised by the learned counsel
for the parties, we may mention the
findings of the trial court on material points
in the impugned judgement and order,
which are as under:

(i). There was no hut (madai)
belonging to Master Singh (since died) in
the village in question nor the accused
persons were hiding in the said hut at the
time of incident.

(ii). F.I.R. was lodged after due
consultation with the help of police
personnel
and
same
is
ante-timed
document.

(iii). PW-1 and PW-2 are interested
witnesses. They have made false statement
76 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Court. Their statements were not
reliable.

(iv). Prosecution case is not supported
with independent evidence.

(v). None has seen the incident.

(vi). Incident did not take place in the
manner and style as stated by the
prosecution witnesses.

(vii). Alleged motive has also not been
proved
by
the
prosecution
beyond
reasonable doubt.

(viii). Accused were implicated in this
case due to previous enmity and partibandi.

(ix). The Investigating Officer has not
conducted the investigation fairly.

(x). Deceased and injured witness
were not going to Tall (pond) alongwith
their cattle for providing them water.

(xi). There are major contradictions in
the statement of prosecution witnesses on
material points.

18. After outlining the findings
recorded by the trial court in the impugned
judgement and order on material points, we
are proceeding to deal with the submissions
advanced by the learned counsel for the
parties.

F.I.R.:-

19. The date and time of incident, as
shown in the FIR, was 03.00 p.m. on
29.10.1982 and the FIR of the case was
lodged at Police Station Bhuta at 07.15
p.m. on the same day. The distance of
Police Station from the place of occurrence
has been shown as 08 mile (i.e. equal to
approx 12.87 K.M.). P.W. 1 had stated in
his evidence that after the occurrence, they
moved from his village at about 04.00 p.m.
to lodge FIR at Police Station concerned by
bullockart and reached there in three hours
and lodged the FIR. So far as the condition
of informant is concerned, he had received
three injuries of lacerated wound on nonvital part of the body for which the doctor
opined that the injuries were simple in
nature. Apart from that he had received
eight wounds of .8 diameter in the part of
upper abdomen. The occurence had taken
place at 3.00 p.m. and FIR was lodged at
7.15 p.m. i.e. after 4.15 hours. Therefore it
can not be said that the informant was not
in a condition to lodge FIR. Moreover, the
informant
had
gone
under
medical
examination at 01.10 a.m. on 30.10.1982
i.e. after 10 hour, even then the doctor who
had examined him, did not mention any
srious condition of patient in his medical
examination report. The genuineness of the
medical examination report of informant
has been accepted by the learned counsel
for respondents. The witnesses of rural
background have tendency to explain the
conditions in exaggerate form which is
natural, and does not amount to material
contradiction. In view of report of injured
informant, it can not be said that informant
was not in fit physical condition and the
FIR had been lodged by the consultation of
police persons. It has also been argued by
learned counsel for appellant that inquest
report was having overwriting in the date of
29.10.1982, which creates doubt about
timing of registration of FIR. Inadvertently
or by mistake mentioning of wrong date is
possible and it is quite common also, and if
the wrong entry of date is corrected, and
the concerning witness has given the proper
explanation of such overwriting and there
is no other evidence on record which may
prove that such overwriting has been done
knowingly or has been done to mislead any
other fact, in that case such overwriting in
inquest report can't be said to be fatal for
prosecution case. The view taken by trial
Court,
regarding
anti
timed
FIR
is
presumptive, wrong and against the settled
6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
77
law. Taking into consideration the mode of
conveyance
i.e.
bullockart,
timing
mentioned in the FIR, other connecting
circumstances and evidence and in absence
of any evidence contrary, it can be
concluded that the FIR of the occurrence
was lodged with due promptness, without
any unnecessary delay or consultation. It is
not an ante-timed document. Finding of the
Trial Court recorded in the impugned
judgment and order on this point is
perverse and against the evidence and
settled principle of law.

Injured / eyewitnesses:-

20. The informant Phoolan Singh
(P.W. 1) was an injured person, who had
received the multiple injuries of pellets and
soon after the occurrence had gone to
Police Station along with the persons of his
village, namely, Phoolan Singh S/o Lakhan
Singh, Bheekam Singh, Brahm Pal Singh
and Indra Pal Singh. There is no evidence
of any deliberations or any conspiracy to
lodge the false FIR against accused persons
leaving real assailant/ culprit, if any. Five
persons have been named in the FIR as
accused persons assigning role to attack on
deceased and informant with fire arms. The
injured witness P.W. 1 had received four
injuries of laccerated wound caused by
pellets of fire arm. On the other hand
deceased Buddha Singh had received ten
injuries of gun shot entry wounds. No
suggestion has been given by counsel for
defence to witness P.W. 1 in his cross
examination indicating the fact of any
deliberation of P.W. 1 with any other person
to implicate the accused persons falsely.
Although, in the impugned judgment and
order, to show contradiction, learned Trial
Court has discussed the evidence of P.W. 2,
who had mentioned in his oral statement
the distance of Police Station from the
place of occurrence as 18 miles, but the
said distance is not proved. Apart from that
witness P.W. 2 who had affixed his thumb
impression on his oral evidence, seems an
illiterate / rustic person. The witness P.W. 2
had stated that they reached at Police
Station by 07.00 p.m. on the date of
occurrence. Considering the above part of
his statement, the trial Court wrongly
interpreted the statement of witness P.W. 2,
and wrongly believed the distance of Police
Station from the place of occurrence as 18
miles. The above distance has been shown
in FIR as 8 k.m. and the fact has not been
confronted with the Investigating Officer in
his cross examination. In absence of any
evidence regarding the distance of Police
Station as 18 miles, the distance mentioned
in the FIR, which has been mentioned by a
public servant performing his public duty,
is liable to be believed and can be
concluded that the FIR of the occurrence
was lodged by the informant promptly.

21. The witness P.W. 1 has stated that
on the date of occurrence, while going
towards pond with their animal, he had
accompanied his brother Buddha Singh. On
the way the accused persons came out from
the hut (Mandvi / Chhappar) of Master
Singh (since died). The accused persons
gave threat of life to deceased. Seeing the
activities of the accused persons the
deceased and witnesses P.W. 1 ran towards
north then towards east to save their lives.
The accused persons chased them and for
taking shelter, when they reached inside the
house of Phoolan Singh S/o Lakhan Singh,
the
accused
persons
opened
fire
indiscriminately from the gate of his house.
It has been mentioned in the statement of
P.W. 1 that in the house of Phoolan Singh
the victims had tried to shut the door, but
before closing the door the accused persons
had reached at the gate and started firing
78 INDIAN LAW REPORTS ALLAHABAD SERIES
from outside the gate in which Buddha
Singh received as many as 10 fire arm
injuries and fell down on the spot.

22. Learned counsel for the accused
respondents has submitted that the witness
P.W. 1 in his cross examination has stated
that he could not see as to which accused
had fired how many shots / bullets on them,
therefore the witness P.W. 1 can not be
termed as eyewitness. In our view, the
aforesaid argument of learned counsel for
the respondent is not acceptable, as at the
time of firing, both the victims, (the
deceased as well as the informant) were
trying to save their lives. The accused
persons had started firing from the gate of
Phoolan
Singh's
house
which
was
indicriminate, therefore, in the above
situation, if the witness P.W. 1, who was
under shelter and had received the pellet's
injuries in firing, could not see that which
of the accused had fired how many shots /
bullets, (as it was asked by defence counsel
in cross examination of witness), it can not
be inferred that P.W. 1 was not the eye
account witness of the incident. It is to be
noticed that witness P.W. 1 had received the
injuries of lacerated wound caused by
pellets of fire arm during the course of
same
occurrence.
Soon
before
the
occurrence he was accompaying Buddha
Singh with whom the accused persons were
having enmity due to the reason that he had
purchased the land of accused Braj Raj
Singh in auction and was trying to take
possession over the said land. In this
context,
learned
counsel
for
the
respondents argued that if the accused
persons had opened fire to kill Buddha
Singh why they left informant and Phoolan
Singh S/o Lakhan Singh alive, who were
also present at the place of occurrence.
Learned AGA in reply has submitted that
the accused persons as well as victims were
resident of same village, there was direct
enmity of accused persons with Buddha
Singh. Only Buddha Singh was target.
Therefore, if accused persons, who were
not the habitual criminals, have not killed
the other persons, who were also present in
the house of Phoolan Singh S/o Lakhan
Singh it was their natural behaviour. It is
not denied that the witness P.W. 1 had not
received
the
injuries
in
the
same
occurrence. Therefore, his presence on the
spot is established and in this regard, in
absence of any evidence otherwise the
evidence of witness P.W. 1 is liable to be
believed. In our considered view he is
trustworthy witness. Finding of the Trial
Court recorded in the impugned judgment
and order on this point is also perverse and
against the evidence and settled principle of
law.

23. In the case of Surjit Singh Alias
Gurmit Singh Vs. State of Punjab 1993
Supp (1) SCC 208 the Hon'ble Apex Court
has held in para 9, which reads as under:-

"9. To be fair to the learned counsel
for the appellant, we may mention that he
ventured to argue that the evidence
regarding the marrying of the crime bullet
shells with the pistol recovered was not
convincing, mor so when the .303 pistol,
the alleged crime weapon, was recovered
from Gurmit Singh, co-accused. It is
noteworthy that Gurmit Singh, co-accused,
stands convicted under the Arms Act for
being in possession of that pistol. This
aspet of the case cannot be a substitute to
the eyewitness account or the plea taken by
the appellant. Had the presence of the two
witnesses, that is, Jaswinder Kaur PW5 the
Taljit Singh PW2 at the scene of the
occurrence been doubted, the recovery of
the weapon of offence and its connection
with the empty shells recovered at the spot
6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
79
would have assumed some significance.
When the two eyewitnesses are natural
witnesses of the crime, one being the young
wife who would normally be in the
company of the husband at 10.30 p.m. on a
summer night and the other the newphew
of the deceased who had suffered grievous
injuries in the occurrence and was thus a
stamped witness, not much importance is to
be attached to this aspect of the case. The
venture is futile."

24. In the case of Majju & Another
Vs. State of M.P. 2002 SCC (Cri) 597, the
Apex Court has held in para 5, which reads
as under:-

"5. The counsel for the appellants
contended that the evidence adduced by the
prosecution was interested and therefore, it
cannot be relied upon. It is important to
note that the witnesses examined on the
side of the prosecution were all injured in
the incident. PW6 Ramchandra Sustained
a grievous injury, in the sense that he lost
one of his teeth. The other witnesses also
sustained injuries. That is proved by the
various medical certificates issued by the
doctor who examined them. Therefore, the
presence of these witnesses at the place of
occurrence cannot be suspected. All these
witnesses gave evidence to the effect that
when they along with deceased Bihari Lal
were coming from the temple after
performing some ceremony, the accused
surrounded and attacked them. We do not
find any infirmity in the evidence of these
witnesses."

25. In the case of Prithvi (Minor) Vs.
Mam Raj & Others (2004) 13 SCC 279,
the Apex Court held that the fact that
eyewitness sustained serious injuries in the
incident in question the Hon'ble Apex
Court held that giving credence to the
prosecution story that he was at the spot
when the offence was committed.

Relative and interested witness:-

26. P.W. 2, the son of deceased's brother, is
also resident of the same village and
locality, therefore, his presence on the place
of occurrence is not improbable. He had
also given the evidence of occurrence as
eye witness account and further stated that
when the accused persons were firing on
the deceased and informant, he had taken
shelter behind the animals. No questions
have been asked in cross examination of
P.W. 2 challenging the above fact and there
is no reason on record to disbelieve his
testimony. The oral testimony of eye
witnesses P.W. 1 and 2 are supported with
medical examination report of injured
witness P.W. 1 and with post mortem report
of
deceased
Buddha
Singh.
The
genuineness of its contents have been
admitted by the accused persons, hence in
absence of any evidence contrary, the same
are admissible in evidence.

27. In the case of Kathi Bharat
Vajsur and Anr. Vs. State of Gujarat AIR
2012 SC 2163 the Hon'ble Apex Court has
held in para 21, which reads as under:-

"21. When the medical evidence is in
consonance with the principal part of the
oral / ocular evidence thereby supporting
the prosecution story, there is no question
of ruling out the ocular evidence merely on
the
ground
that
there
are
some
inconsistencies or contradictions in the
oral evidence. We are not inclined to agree
with Shri. Dholakia on this count."

28. Learned counsel for the accused
respondents
has
submitted
that
the
witnesses P.W. 1 and 2 are the relative of
80 INDIAN LAW REPORTS ALLAHABAD SERIES
victim and are interested witnesses. Since
P.W. 1 is the real brother of the deceased
Buddha Singh and P.W. 2 is the S/o Buddha
Singh's brother, therefore, their evidence is
not trustworthy. We are not convinced with
the argument of learned counsel for the
respondents. Although witnesses P.W. 1 and
P.W. 2 are close relative and family
members of deceased yet there is no
discrepancy in their evidence on the point
of occurrence. A close scrutiny of evidence
of P.W. 1 and 2 indicates that there is no
contradiction
in
their
statements
on
material points. Neither any contrary
evidence nor any cogent evidence is on
record,
which
may
prove
the
facts
otherwise or may place the ground to
disbelieve their testimony. Hence, finding
of the Trial Court recorded in the impugned
judgment and order on this point is also
perverse and against the evidence and
settled principle of law.

29. In the case of Yogesh Singh Vs.
Mahabeer Singh & Others AIR 2016 SC
5160 the Hon'ble Supreme Court has held
in para 28, which reads as under:-

"28.
A
survey
of
the
judicial
pronouncements of this Court on this point
leads to the inescapable conclusion that the
evidence of a closely related witnesses is
required to be carefully scrutinised and
appreciated before any conclusion is made
to
rest
upon
it,
regarding
the
convict/accused in a given case. Thus, the
evidence cannot be disbelieved merely on
the ground that the witnesses are related to
each other or to the deceased. In case the
evidence has a ring of truth to it, is cogent,
credible and trustworthy, it can, and
certainly should, be relied upon. (See Anil
Rai Vs. State of Bihar, (2001) 7 SCC 318;
State of U.P. Vs. Jagdeo Singh, (2003) 1
SCC 456; Bhagalool Lodh & Anr. Vs. State
of U.P., (2011) 13 SCC 206; Dahari & Ors.
Vs. State of U. P., (2012) 10 SCC 256; Raju
@ Balachandran & Ors. Vs. State of Tamil
Nadu, (2012) 12 SCC 701; Gangabhavani
Vs. Rayapati Venkat Reddy & Ors., (2013)
15 SCC 298; Jodhan Vs. State of M.P.,
(2015) 11 SCC 52) : (AIR 2015 SC (Supp)
1991)."

30. In the case of State of U.P. Vs.
Jagdeo & Others (2003) 1 SCC 456, the
Apex Court has held in para 7, which reads
as under:-

"7. There are three eye-witnesses of
the incident, that is, P.W.1 Ramraj son of
the deceased Ram Lachhan, P.W.2 Firangi
and P.W.4 Sudama, who is an injured
witness and whose son Rajendra is the
other deceased. The High Court doubted
the evidence of these eye-witnesses merely
on the ground that they had motive in
supporting the prosecution case. Legally
speaking, we are unable to accept this
reasoning. Most of the times eye-witnesses
happen to be family members or close
associates because unless a crime is
committed in a public place, strangers are
not likely to be present at the time of
occurrence. Ultimately, eye-witnesses have
to be persons who have reason to be
present on the scene of occurrence because
they happen either to be friends or family
members of the victim. The law is long
settled that for the mere reason that an
eye- witness can be said to be an interested
witness, his/her testimony need not be
rejected. For the interest which an eyewitness may have, the court can while
considering his or her evidence exercise
caution and give a reasonable discount, if
required. But this surely cannot be reason
to ignore the evidence of eye-witnesses. The
High Court was clearly in error in not
considering the evidence of eye-witnesses
6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
81
at all in the present case for the reason that
they were interested witnesses. As seen
earlier, one of the eye-witnesses in an
injured person who received injuries in the
incident itself. He was rather seriously
injured. If he was not present at the time of
occurrence, wherefrom he received the
injuries, would be an obvious question. In
fact, P.W.4 is also the father of the deceased
Rajendra. It is common in villages that
male members of a family sleep together in
the open during summer season. Sleeping
near the tube-well is understandable
because that would lend some coolness to
the atmosphere. The High Court totally
ignored the other aspect of the evidence of
the eye-witnesses. That is, the evidence was
consistent and the version of the witnesses
tallied with each other. In our view, there
was no reason to discard the evidence of
the
eye-witnesses.
This
evidence
is
clinching and it clearly implicates the
accused persons. There is no reason to
doubt the veracity of the evidence of at
least P.W.1 and P.W.4 and that is sufficient
to convict the accused persons."

31. In the case of Munigadappa
Meenaiah Vs. State of Andhra Pradesh
(2008) 11 SCC 661, the Apex Court has
held in para 10, which reads as under:-

"10. We shall first deal with the
contention regarding interestedness of the
witnesses
for
furthering
prosecution
version.

10..... Relationship is not a factor to
affect credibility of a witness. It is more
often than not that a relation would not
conceal actual culprit and make allegations
against an innocent person. Foundation
has to be laid if plea of false implication is
made. In such cases, the Court has to adopt
a careful approach and analyse evidence to
find out whether it is cogent and credible."

32. In the case of Brahma Swarup &
Others Vs. State of U.P. 2004 (2) JIC 827
(All), this Court has also expressed the
same view.

33. In the case of Hardev Singh &
Others Vs. Harbhej Singh & Others 1996
(4) Crimes 216 (SC), the Hon'ble Supreme
Court has held that the evidence of close
relations who testified facts relating to
occurrence be not rejected merely on
ground that they happened to be relatives.
Evidence of such witnesses be scrutinized
very carefully.

34. In the case of State of U.P. Vs.
Naresh & Others (2011) ACR 370, the
Apex Court has held that mere relationship
cannot be a factor to affect credibility of a
witness. Evidence of a witness cannot be
discarded solely on the ground of his
relationship
with
victim
of
offence.
Contrary to the same the finding of trial
Court is perverse.

Hostile witness:-

35. Although P.W. 3 Phoolan Singh S/o
Lakhan Singh has not fully supported the
prosecution story in his oral statement yet he is
the same person in whose house the informant
and deceased Buddha Singh took shelter to save
their lives and on the same place they had
received the fire arm injuries. P.W. 3 has not
denied the above fact in his evidence. The part
of oral evidence of an hostile witness, which
supports the prosecution case, is admissible in
evidence. So far as evidence of hostile witness
is concerned, in the case of State of Rajasthan
Vs. Bhawani & Another (2003) 7 SCC 291 it
has been held by Hon'ble Apex Court in para
no. 10, which reads as under:-

"10. The fact that the witness was
declared hostile by the Court at the request
82 INDIAN LAW REPORTS ALLAHABAD SERIES
of the prosecuting counsel and he was
allowed to cross-examine the witness, no
doubt
furnishes
no
justification
for
rejecting en bloc the evidence of the
witness. But the Court has at least to be
aware that prima facie, a witness who
makes different statements at different times
has no regard for truth. His evidence has to
be read and considered as a whole with a
view to find out whether any weight should
be attached to the same. The Court should
be slow to act on the testimony of such a
witness and, normally, it should look for
corroboration to his evidence. The High
Court has accepted the testimony of the
hostile witnesses as gospel truth for
throwing overboard the prosecution case
which had been fully established by the
testimony of several eyewitnesses, which
was of unimpeachable character. The
approach of the High Court in dealing with
the case, to say the least, is wholly
fallacious."

36. In the instant case in the light of
the statement of P.W. 3, taking into
consideration of evidence of eye witnesses
P.W. 1 and 2, it can not be said that
prosecution could not prove its case beyond
reasonable doubt by the evidence of
trustworthy witnesses. Learned Trial Court,
against the settled law, has wrongly
appreciated the evidence of witness P.W. 3,
which resulted in acquittal of accused
respondents.

Number of witnesses:-

37. Learned counsel for the accused
respondents submitted that prosecution had
failed to prove its case by proper /
independent witness. P.W.1 and P.W. 2 are
relative witness. P.W. 3 has been declared
as hostile, therefore, no proper and
independent witnesses have been produced
by prosecution. In our view, the argument
of learned counsel has no force, as no fixed
/ particular number of witness is prescribed
in law for the proof of any fact. In this
regard Section 134 of Evidence Act makes
following provision:-

"134 Number of witnesses- No
particular number of witnesses shall in any
case be required for the proof of any fact."

38. Accordingly quality of evidence is
material not the number.

39. On the above point, it has been
held by Apex Court in the case of Amar
Singh Vs. Balwinder Singh & Others 2003
(46) ACC 619 that no particular number of
witnesses are required for proof of any fact.

40. In the case of Munshi Prasad
And Others Vs. State of Bihar 2002 SCC
(Cri) 175, the Apex Court has held that it is
the quality of the evidence and not the
quantity, which is required. It is to be seen
that whether prosecution has been able to
bring home the charges with the evidence
available on record and if the evidence on
record
is
otherwise
satisfactory
and
trustworthy, an increase of number of
witnesses are not required.

41. Learned counsel for accused
respondents
also
argued
that
the
occurrence, as alleged, took place in the
aabadi of village in day light even then no
public witness has been procured /
produced by the prosecution. The evidence
on record shows that there are two groups
of Thakurs in the village. The victims and
assailants belong to rival groups. In
general, in villages and in backward areas
where generally the people are uneducated
/ less educated, unexperienced and rustic,
nobody wants to interfere in dispute / invite
6 All. The State of U.P. Vs. Brj Raj Singh & Ors.
83
enimity by giving evidence before police
and Court. In society the behaviour of
police with illiterate people / general public
is known by everybody.